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Court ruling opens new avenue for lawsuits from students accused of sexual assault

A ruling in a Michigan federal court could open the path for more students accused of sexual assault at private colleges and universities to sue.

Ironically, the case involves a public university.

In late May, federal Judge Gordon Quist ruled that a suit from an unnamed Northern Michigan University student could continue on a breach of contract basis because Northern Michigan didn't follow its rules and procedures for investigating a sexual assault case.

It's the first ruling to make that jump — that because a student had paid money to a school, the institution had essentially entered into a contract with the student, saying it will abide by its procedures and policies.

"The ruling will have a bigger impact on private universities," said attorney David Nacht, who is representing the Northern Michigan student who is suing. "If you go to Albion or Aquinas or wherever that is private, you don't have due process protection."

That means a private college student couldn't sue under due process claims, because due process legally applies only to public schools.

Most of the recent wave of lawsuits by students accused of sexual assault against their schools have relied on due process claims — that they didn't get a fair chance to defend themselves.

The federal 6th Circuit, which includes Michigan, has led the charge in ruling that universities and colleges must offer those accused a live hearing with a chance to cross-examine the accuser. That's the same standard U.S. Education Secretary Betsy DeVos has proposed in her new rules on how colleges across the country handle sexual assault investigations.

In the Northern Michigan lawsuit, the accused student said he met a female student while they were both working in a cafeteria on campus in September 2016. They struck up a relationship and had consensual sex a couple times a week for the next month, including after a pre-Halloween party on Oct. 30, 2016. The male student says they also had consensual sex in 2017.

In March 2018, the female student went to Northern Michigan administrators and filed a complaint, alleging she was too drunk to give consent in that Oct. 30, 2016, encounter.

The school took the accused through its process and eventually found him to have violated the school's conduct code. He was expelled.

In his suit, the student argued, among other things, that the school didn't adhere to its own rules. The student policy at the time said accused students would be told he could "have one adviser of their choosing attend meetings and interviews with them, which may include an attorney (at their own expense), colleague or other person they identify; the adviser may not be a witness or a material party in the investigation; the adviser is limited to advising the complainant or respondent; and may not speak for the party they are advising; their role is to provide support and assistance."

The student said that didn't happen. The judge agreed that the student has a plausible case to go forward on that claim.

The suit is ongoing in federal court. Northern Michigan spokesman Derek Hall said: "NMU looks forward to a resolution of this case and appreciates the judge’s recent ruling. As is common practice, NMU does not comment on ongoing litigation."

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