A lawsuit filed against Michigan State University may become the first prospective class-action suit to benefit students accused of campus sex assault.
Inside Higher Ed reported the lawsuit “could theoretically challenge, even retroactively, the results of any campus sexual violence case that didn’t offer due process protections.”
The lawsuit was filed by anonymous male student “John Doe,” who was accused of sexually assaulting a date at a fraternity party in February 2018.
According to the suit, Doe said sexual activity between himself and a female student was consensual, but discovered soon afterward she had accused him of forcing himself on her. The female student reported the alleged sexual assault several days later to the school’s Office of Institutional Equity.
After a campus investigation, Doe was suspended from Michigan State for two years. His attorney, Andrew Miltenberg, who also represented former Columbia University student Paul Nungesser – falsely accused of rape by “mattress girl” Emma Sulkowicz – has now amended Doe’s complaint and requested class-action status.
According to Inside Higher Ed, Miltenberg said he believes “several hundred” current and former students could be affected by potential flaws in their Title IX cases conducted by university processes.
The case looks to a September 2018 appeals court ruling that directed universities to allow students or their representatives to cross-examine the accuser during a live hearing.
“[O]ur circuit has made two things clear,” wrote the U.S. Court of Appeals for the Sixth Circuit, and continued:
(1) if a student is accused of misconduct, the university must hold some sort of hearing before imposing a sanction as serious as expulsion or suspension, and (2) when the university’s determination turns on the credibility of the accuser, the accused, or witnesses, that hearing must include an opportunity for cross-examination.
“Due process requires cross-examination in circumstances like these because it is ‘the greatest legal engine ever invented’ for uncovering the truth,” the court ruled.
The ruling was consistent with the thinking of the Trump administration.
In November, Education Secretary Betsy DeVos released a long-awaited proposed Title IX rule, calling for a “presumption of innocence throughout the grievance process,” as well as “written notice of allegations and an equal opportunity to review all evidence collected.”
The new rule would also allow both parties to have the right to cross-examination and would define sexual harassment as “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity.”
Alleged incidents of sexual misconduct would only be investigated if they occurred on campus or during a school-sponsored event, according to the proposed rule.
Retired university administrator Pat Daugherty told Breitbart News she “watched the panic first-hand” when the Obama-era “Dear Colleague” letter was issued in 2011.
With the Obama policy, students accused of sexual misconduct have regularly been denied the ability to cross-examine their accuser and to have access to the alleged evidence against them. The school teams investigating campus sex assault cases have often been referred to as “kangaroo courts.”
“Everyone wants accusers to be heard in sexual assault allegations,” Daugherty explained. “However, the Obama administration’s Title IX guidelines suddenly inserted the federal government into student judicial processes and reduced many of the due process protections that had been in place for the accused.”
Daugherty said the pressure of the new rules was significant and the “emphasis was now on handling each case from the accuser’s point of view, as due process for the accused unfortunately took a back seat.”
She added the potential class action lawsuit “indicates there are many young men who feel they were victimized by the rush to judgment mentality that took over.”
To promote its campus sex rules, the Obama administration also used a false statistic — “1 in 5” women experience sexual assault in college — that was repeated in the mainstream media and on college campuses to promote the narrative that women in college were frequently victims of sexual assault.
According to the Bureau of Justice Statistics, however, a division of the Department of Justice, the actual rate of sexual assault on college campuses is 6.1 per 1,000 students, or .03 in five. The rate of rape and sexual assault for non-students is actually 1.2 times higher than for students — 7.6 per 1,000.
“We need a much more transparent, fair and equitable system that gives everybody the chance to be heard completely,” Miltenberg said.
The case is Doe v. Michigan State University, No. 1:18-cv-01413-JTN-ESC, in United States District Court for the Western District of Michigan Southern Division.