Lawsuit by student accused of sex assault seeks class-action status against Michigan State

July 7, 2019

A move to turn a lawsuit against Michigan State University by one student accused of sexual assault into a class action could overturn dozens of findings against students accused of sexual assault.


It could also lead to widespread class actions against other public universities, both in Michigan and neighboring states.


The suit, filed late last year and amended late last week, is the first in the nation to seek class-action status and could drastically change the landscape of lawsuits against universities.


“Unfortunately, the misapplication of Title IX has reached new depths at Michigan State,” said Andrew Miltenberg, the lawyer who filed the suit for a student going by John Doe.  “Michigan State, in trying to distract attention from its own misdeeds, is consistently and systemically using Title IX as a weapon of law against its accused students, with life-altering consequences for these young men and women.”


The suit was originally filed by an MSU student in December 2018.


Doe filed the lawsuit Dec. 20, seven months after he was suspended from the university.


In the lawsuit, Doe said he had sex that he believed was consensual with a female friend on the night of Feb. 23, 2018, at his fraternity house. During sex, Doe said the woman "appeared uncomfortable and was shivering." He stopped and asked her if she was OK, according to the lawsuit. She then left his room. Later that night, Doe got a text from a friend, who said the woman told her he forced himself onto her. The woman filed a sexual assault report with the Office of Institutional Equity four days later. 


The male student was then suspended from MSU for two years.


But his original lawsuit and the filing late last week argue that MSU did not offer him true due process — a chance for a live hearing where he could question his accuser directly.


The federal 6th Circuit Court of Appeals, which covers Michigan and nearby states, ruled in 2018 that the University of Michigan erred in a sexual assault investigation when it did not offer a live hearing with direct questioning when cases involved he said/she said questions of credibility.


That ruling left the door open for a class-action suit, said Miltenberg, of Nesenoff & Miltenberg LLP. His firm has handled hundreds of cases for students accused of sexual assault around the country.


"For a long time, people would ask why there wasn't a class action," Miltenberg told the Free Press. "There wasn't a law on the books we could hold a class action on. Now there is."


That law is the ruling in the U-M case. An exact number of students who could be impacted isn't known — however, Miltenberg said lawyers intend to look back to 2011, when the then-Obama administration sent a "Dear Colleague" letter to universities upping the pressure to run sex assault investigations and spelling out what needed to be done.


In the suit, those eligible are defined as: "All MSU students and/or former students, including prospective and future students, subjected to a disciplinary sanction, suspension, or expulsion pursuant to a finding of responsibility under the (sexual violence) Policy (or its predecessor and/or successor policy/policies) without first being afforded a live hearing and opportunity for cross examination."


The class action would seek to have MSU ordered to "vacating/expunging their disciplinary records and reversing/vacating the sanctions."


If successful, the same strategy could be tried at universities all across Michigan and the Midwest.


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