For college students accused of assault, 'ramifications are real'

Mark Hicks
The Detroit News

While attending a lecture one day in April, two weeks before starting final exams, a University of Michigan student received an email with startling news.

It was then, the aspiring engineer claims, that school officials first informed him that an acquaintance had recently filed a complaint alleging he forced her to have sex in his dorm room several months earlier.

The young man denies the accusation, which has not resulted in charges. However, in a federal lawsuit filed last week, attorneys argue the report alone led the college to unfairly “hold” his degree this spring as well as official transcripts without a chance to defend himself.

(Caption)  University of Michigan Mall and the Diag. In a federal lawsuit filed last week, attorneys argue the report alone led the college to unfairly “hold” his degree this spring as well as official transcripts without a chance to defend himself.


They now are asking a judge to tackle an issue some critics say has become increasingly common as state authorities address sexual assaults in the era of #MeToo and the Larry Nassar abuse scandal: whether campus policies go too far in penalizing those accused while protecting their accusers.

“If the government can decide today that people accused of sexual misconduct are not entitled to due process rights, who’s next?” said Deborah Gordon, the Bloomfield Hills-based lawyer representing the unidentified student in the UM case. “It’s a very slippery slope to start going down.”

The university is not publicly discussing details of the case, citing legal limits.

But some activists support the Ann Arbor school's measures aimed at offering options for alleged victims to seek recourse.

“Schools are required to provide these types of policies,” said Carly Mee, interim executive director at SurvJustice, a national nonprofit that advises sexual assault victims. “It sends a message to survivors that they have a right to be safe on campus, which they do under Title IX.”

Violations involving the anti-discrimination federal civil rights law are the focus of the complaint filed for the UM student June 4 in U.S. District Court.

Last fall, “John Doe” was in his second year as an adviser in a UM residence hall when he became acquainted with a female student, according to the filing. The pair exchanged messages before meeting in his room Nov. 11, 2017, when they watched movies and had consensual sex, the suit states.

The two remained in touch for weeks and saw each other on campus, but the residence hall adviser declined another intimate encounter and told the young woman “all he could offer was friendship,” legal representatives wrote.

It wasn’t until March 12 that the woman filed a complaint with the UM Office for Institutional Equity, which handles such issues, claiming they had sex against her will, his attorneys claim. That prompted a school official to issue a no-contact directive, meaning the young man risked suspension or other penalties if still sharing a class, job, organization, activity or dining hall with the claimant.

The accused “was not given notice of the charges against him sufficient for him to be able to defend himself,” the lawsuit alleges.  Full details — including the woman, a martial arts  instructor, who alleged he trapped her — were only revealed in an executive summary to which he responded late last month, the lawsuit alleges.

Meanwhile, an investigator has not finalized a report or determined whether the student violated the university’s sexual misconduct policy, Gordon said.

As that decision looms, the accused student, who lives outside Michigan, can’t follow through on graduate school plans this fall and “continues to be irreparably harmed with each day that passes,” his lawyers claim.  “No findings against him have been made. Based only on a mere allegation against him, Defendants have placed an indefinite hold on his official transcript and his degree, halting his ability to pursue his education or obtain employment. This is a violation of his due-process rights.”

The filing seeks a jury trial and injunction halting the university sexual misconduct policy.

UM spokesman Rick Fitzgerald said: “Because this is a student matter, we are limited regarding what we can say outside of the legal proceedings by federal privacy laws.”

The case follows renewed interest in how colleges respond to such incidents.

An Association of American Universities report last year found that all 55 of the 62 institutional members that responded to a survey had developed, redefined or enhanced programs to assist victims of sexual assault and misconduct in the previous three academic years. Those same schools had also changed or started updating their education and training for students and faculty, according to the analysis. 

“Our report clearly demonstrates that university leaders understand the seriousness of this issue,” said AAU President Mary Sue Coleman, who formerly led UM, in a statement at the time.

U.S. Education Department Office of Civil Rights guidance issued in 2011 asked schools to treat rape cases as a form of sexual harassment prohibited under Title IX. The directive urged campuses to promptly handle allegations of assault, and specified which standard of evidence to employ while probing cases in internal proceedings as well as how details should be shared with accusers and the accused.

UM is among the Michigan schools the Office of Civil Rights has investigated for possible policy violations.

Before Education Secretary Betsy DeVos last year announced new, interim instructions that allow universities to require higher standards of evidence when handling complaints, the school had pursued numerous efforts to respond to campus assault as well as expanded the definition for conduct that would be considered as such.

Representatives have said the university’s policy on student sexual misconduct, implemented in 2016, is consistent with the interim guidance.

UM Title IX Coordinator Pam Heatlie recently told lawmakers the university's procedure requires officials to check for conflicts of interest among expert witnesses used in an investigation. She also said the school would deliver identical reports to both the accuser and the accused when an investigation ends.

But Gordon argues the measures mete separate and unequal rules on student misconduct. Those accused of stalking, stealing or other behavior are allowed due process, including a hearing with witnesses and the university providing evidence, she said. “That’s just flatly unconstitutional.”

However, “schools vary in how they investigate” sexual misconduct under Title IX and don’t necessarily need steps such as a hearing, Mee of SurvJustice said. “It’s really up to the school how they adjudicate complaints.”

That means findings can withstand legal challenges about the process, she added. “Courts are very hesitant to challenge or redo a school’s investigation. … They’re not going to challenge exactly how they completed the investigation.”

Still, the policies can prove problematic for those faced with accusations.

Last month, former Michigan State University football player Keith Mumphery sued the school, claiming officials expelled him after a false sex assault report, halting his NFL career.

His New York-based lawyer, Andrew Miltenberg, has defended many other students in such cases and estimates “over the last three or four years, we’ve commenced over 50 around the country. … It is a real issue. I get somewhere from eight to 10 calls a week from students who feel that they’ve been punished or sanctioned. They feel that there has been significant lack of due process in the policy or procedure that their particular institution has followed.”

While adhering to federal guidance, Miltenberg said, “the policies are the majority of universities and colleges are not well developed to address this issue. The procedures are not well developed and I think universities are particularly ill-equipped to handle these types of cases right now. It’s a little bit of a perfect storm.”

Part of the problem in strict misconduct policies lies in universities being “under an inordinate degree of pressure” to comply with guidelines and project a certain image, said Cynthia Garrett, co-president at the nonprofit Families Advocating for Campus Equality and a lawyer who has joined an American Bar Association task force on due process rights and protections.Also, she added: “There are a lot of variations in how campuses handle things. ….It’s not the same as in the criminal system.”

That’s partly why “false allegations are very hard to prove and in these cases, you start with a presumption that the accuser is telling the truth,” Miltenberg said. And that’s part of how university staff are trained."

As in the UM case, merely the claim can wreak havoc for students.

Accusation cases can be “incredibly traumatic,” Garrett said, adding some her group, which has fielded about 30 more reports this year compared to 2017, has seen suicide attempts and "many, many traumatized students to the point where they can’t go back to school.”

When it comes to such situations, “the ramifications are real,” Miltenberg said. “The taint of a suspension, or worse an expulsion, on your academic record … is really enough to alter the course of someone’s life.”