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UM sexual misconduct policy 'unconstitutional,' judge says

Robert Snell
The Detroit News

Detroit — A University of Michigan sexual misconduct policy is unconstitutional and an accused student is entitled to cross-examine witnesses, including his accuser, a federal judge said late Monday.

The order by U.S. District Judge Arthur Tarnow ends a contentious lawsuit filed in 2018 that drew public attention last year when the judge accused university officials of being more concerned about shielding President Mark Schlissel from scrutiny than fairly handling sexual misconduct cases involving students.

A University of Michigan sexual misconduct policy is unconstitutional and an accused student is entitled to cross-examine witnesses, including his accuser, a federal judge said late Monday.

In a 31-page order, Tarnow said the university's previous sexual misconduct policy and an interim sexual misconduct policy created last year that allowed for students to be suspended without a hearing are unconstitutional. The interim policy should be clarified and hold university administrators accountable by providing a fair process for accused students, Tarnow wrote.

"An accused student’s rights must be guaranteed — not left open for interpretation," the judge wrote. "Imposing a suspension, prior to a hearing and adjudication is unconstitutional."

On Tuesday, university spokesman Rick Fitzgerald said "the university will carefully review the order as we consider next steps."

The case was filed two years ago by a graduate student accused of sexual misconduct. The student, identified as John Doe, accused UM administrators of freezing his undergraduate degree and academic transcript until Tarnow intervened, said the student's attorney, Deborah Gordon.

The student denied any wrongdoing and said the sex was consensual after the pair watched movies in a dorm room, his lawyer said. Alcohol and drugs weren’t involved.

"We are very pleased that our client has obtained an order guaranteeing him the constitutional due process to which he is entitled," Gordon wrote in an email to The Detroit News. "The university has been reticent to include that guarantee in their procedures; hence we were forced to file this lawsuit."

rsnell@detroitnews.com

Twitter: @robertsnellnews