University's $1.6 million sexual misconduct lawsuit explained
Correction: A previous version of this article stated the $1.6 million lawsuit as Doe v. University of Michigan. The lawsuit in question is actually Doe v. Baum. The University has spent $650,000 on Doe v. University of Michigan as of Sept 27.
As of Sept. 27, the University of Michigan spent $1.6 million defending against the Doe v. Baum lawsuit and has spent about $650,000 on the ongoing Doe v. University of Michigan lawsuit, MLive reported at the beginning of October. Both lawsuits allege the University’s policies violate the due process rights of those accused of sexual misconduct.
When asked by The Daily, University spokesperson Rick Fitzgerald clarified costs incurred by the Doe v. Baum lawsuit are not drawn from tuition money and state appropriations. Instead, Fitzgerald explained, the University’s legal fees are covered by its insurer, Veritas Insurance Corporation, which the University owns.
A report in 2017 found higher education institutions around the nation spend an average of $350,000 on sexual misconduct lawsuits. To explain the significantly higher cost of the Doe v. Baum lawsuit, Fitzgerald pointed to the amount of legal work required in the “3-year-old, heavily litigated case involving complicated legal issues.”
“The plaintiff filed an initial complaint, an amended complaint, and second amended complaint, the latter of which is 40 pages long and contains more than 200 paragraphs of allegations,” Fitzgerald wrote in an email. “There has been a total of 64 briefs in the trial court, with 38 filed by the plaintiff, resulting in a record that exceeds 5,000 pages. There have been five lengthy hearings and four status conferences in the trial court, as well as full briefing and oral arguments in the Sixth Circuit Court of Appeals.”
However, Deborah Gordon, the attorney representing the anonymous plaintiff, pushed back against the University’s explanation. According to Gordon, $1.6 million is an “incredible” sum of money to spend on a case not involving discovery of evidence. Instead, she blamed the cost on the University’s legal briefings.
“I’m a four-person law firm, I do contingency fee work mostly,” Gordon told The Daily. “At one point they had 12 different attorneys working for them from three different law firms, two of them out-of-state … I’m a very small firm and they’re saying it’s me that caused this? That’s laughable.”
The lawsuit Doe v. Baum was first filed in September 2016 by a male undergraduate student, referred to in the lawsuit as “John Doe.” It arises from a complaint filed by a female student against Doe in the University’s Office of Institutional Equity, claiming Doe sexually assaulted her.
After a three-month investigation, OIE determined there was not enough evidence to conclude if the male student had sexually assaulted the female student given his inebriated state at the time. The female student appealed the decision, and the appeals board reversed OIE’s determination without further investigation.
A few classes short from graduation, the male student withdrew from the University in June 2016 after being told he would be expelled if he did not do so. He filed the Doe v. Baum lawsuit shortly after, which was first dismissed by the federal District Court. It was then appealed to the U.S. Sixth Circuit Court of Appeals.
At the time, the University’s sexual misconduct policy operated under the single-investigator model, which involved one investigator who had conversations with the accuser, the accused and witnesses, without opportunity for parties to confront one another. Doe claims this procedure violated his due process rights and amounted to gender discrimination against male students accused of sexual assault.
In June 2018, Gordon filed another lawsuit, Doe v. University of Michigan, for a different male undergraduate student who also claimed his due process rights were violated by the University’s investigative process. In this lawsuit, Doe said he was not made aware of the female student’s allegations when he was interviewed by the OIE investigator, leaving him unable to fully respond to the accusations against him.
In addition, the University put Doe’s official transcript and degree on hold following the complaint, which the Doe v. University of Michigan lawsuit argued put Doe’s academic and professional future at risk without full investigation. Doe’s transcript was released soon after the lawsuit was filed.
In September 2018, the Sixth Circuit Court struck down the University’s single-investigator model in Doe v. Baum. The ruling required the University’s sexual misconduct policy to grant students accused of sexual misconduct the option of a live hearing and cross-examination.
The University tried to appeal the ruling, arguing cross-examination discourages those who have been sexually assaulted from reporting and disadvantages lower income students who cannot afford legal counsel. The Sixth Circuit Court declined to re-hear the appeal, forcing the University to release a new interim sexual assault policy in December 2018 that included cross-examination and a live hearing.
In June 2019, a week before University President Mark Schlissel was prepared to appear in U.S. District Court for a private, off-the-record settlement conference for the Doe v. University of Michigan lawsuit, the University filed a motion to dismiss the lawsuit, contending the due process argument was no longer relevant because of changes in the new policy.
U.S. District Judge Arthur Tarnow opened the conference to the public and to the media on June 11, two days before it was scheduled to occur. Sixteen hours before the planned conference, the Sixth Circuit Court granted a request by the University to postpone the meeting, a move Tarnow criticized. In August, the Sixth Circuit Court ruled that Schlissel did not have to appear in court for the settlement conference, determining Tarnow had overstepped his discretion by requiring so.
The University maintains the ongoing Doe v. University of Michigan lawsuit is irrelevant now that the sexual misconduct policy requires a live hearing and cross-examination and already meets the ruling of Doe v. Baum. However, Gordon explained she is still pursuing the lawsuit because she wants to obtain relief for her client, which includes clearing his permanent record.
Ultimately, she said she wants the District Court to issue an order requiring the University to have a live hearing and cross-examination to further ensure the University will maintain these due process procedures. Gordon explained the ruling in Doe v. Baum is a court opinion, which only allows the University to be sued. If there were a court order and the University changed its policy, it would be in contempt of court, which imposes further punishment.
“It’s like a University rule you could think of it … Unless there’s somebody that sends you disciplinary action, the rule doesn’t really mean as much,” Gordon said. “You just know you’re not supposed to violate it, until you get a directive saying if you do violate it you’re out.”
Gordon said she believes the University should address sexual misconduct by providing the option of a live hearing and cross-examination as it does all other cases of student misconduct. She disparaged the Start by Believing campaign, a program the University’s Division of Public Safety and Security has signed onto, that nationally works to change the way sexual misconduct is responded to.
“They think student-to-student sexual misconduct is not like other misconduct. Why is that, I don’t know,” Gordon said. “I guess it’s because they want to be politically correct, they like the ‘Start by Believing campaign,’ which is the antithesis of due process … But our whole system of justice is based upon the concept (of) innocent until proven guilty.”
In November 2018, Secretary of Education Betsy DeVos proposed new regulations for Title IX — the federal law preventing sex discrimation in federally-funded universities often raised in discussions about sexual assault — that would allow for cross-examination of victims. Some have lauded the move as a necessary to ensuring due process rights of the accused.
However, students at the University and activists against sexual assault across the nation have criticized the use of cross-examination in cases of sexual misconduct, arguing it re-traumatizes victims and thus discourages reporting. In addition, some scholars suggest the practice is actually counterproductive to truth-finding as it encourages manipulation and intimidation. Lawyers and Title IX professionals also worry cross-examination will push colleges to facilitate courtroom-esque hearings they may not have the capacity to take on.
LSA sophomore Emma Sandberg is the founding member and executive director of the non-profit Roe v. Rape, which works to help survivors of sexual violence heal through activism and prevent sexual misconduct through education. She explained she believes cases of sexual assault should be handled differently from other cases of misconduct because the former can often be very personal and is especially traumatizing.
Sandberg also noted fewer than 5 percent of campus sexual assaults are reported nationally and only 2 to 8 percent of sexual assault reports are false. However, Sandberg said she knows several students who didn’t report or who dropped their case because of the cross-examination requirement.
“The amount of students who would be falsely accused at the University is just so low compared to the amount of survivors who are prevented from both getting justice and ensuring they feel safe at school,” Sandberg said. “When a perpetrator is off the hook, it puts all the rest of the students in danger.”
When asked about concerns surrounding cross-examination, Gordon pointed to resolution of sexual assault cases in the criminal justice system. According to Gordon, students who protest cross-examination by bringing up the trauma it can cause are “extremely immature,” “short-sighted,” and “focused only on themselves.”
“Rape victims that don’t go to the University of Michigan don’t have these special protections, and still the system somehow works, more or less,” Gordon said. “There’s nothing unique about being a college student that should give you more protection than anybody else … I realize they’re college students, and so maybe they’re just not thinking of the bigger picture, but lawyers are. To me, it just seems really straightforward situation. Whatever pain you feel and trauma is unfortunate, but it doesn’t trump throwing aside our justice system.”
The University has received criticism for implementing cross-examination in its sexual assault policy. However, in a previous Daily article, LSA junior Sidney Aloisi, co-coordinator at the Sexual Assault and Prevention Awareness Center, noted some may not realize the University did not voluntarily require a live hearing and cross-examination.
“I think that a lot of people have the misconception that it was Michigan’s decision completely and that’s what we wanted, but that is a myth I am happy to debunk,” Aloisi told The Daily in October. “It wasn’t our decision … We didn’t really have a say in the hearing, and it’s something that we’ve tried and tried again to get the Sixth Circuit Court to reconsider, but repeatedly they will not.”
Many remain unsatisfied with this explanation. Though the Doe v. Baum decision requires cross-examination in sexual misconduct cases, it allows the option for representatives to do the questioning, yet the University’s policy requires the accuser and accused to cross-examine one another.
In January, Sandberg created a petition — which has over 78,000 signatures at the date of publication — calling for the University to allow cross-examination by a third-party adviser instead. Last month, the American Civil Liberties Union, at Sandberg’s request, released a public letter calling for the University to change its policy.
In response to these concerns, University spokeswoman Kim Broekhuizen previously told The Daily the University does not allow for a third-party representative to conduct cross-examinations for equity reasons.
“Questioning by personal advisors — often attorneys — is not allowed at U-M out of concern that not all students would be able to afford counsel,” Broekhuizen said.
However, both Sandberg and Gordon agreed the University should pay for legal counsel if a student, either the accused or the accuser, would like a lawyer but cannot afford it. Gordon noted she would be willing to represent these cases pro-bono for both sides and conjectured many other lawyers would feel the same. She accused the University of intentionally preventing third-party representatives to provide justification for fighting the Doe v. Baum ruling.
“I personally think they’re doing that on purpose to make this more traumatizing so they can say they were right all along,” Gordon said.
Sandberg conjectured the University refuses to change its policy to discourage reporting.
“The conclusion I have reached is that they chose this cross-examination model because they want fewer students reporting,” Sandberg said. “They want less perpetrators suing them, and it’s about money. I find this very concerning, that administrators seem to be valuing the school’s money over the emotional wellbeing of survivors.”
In messages to the University community, Schlissel has emphasized the University’s hopes to increase rates of reporting. In support of this claim, the administration has pointed to the implementation of the adaptable resolution pathway to handle sexual misconduct cases without a live hearing or cross-examination.
The University recently released two reports on trends of sexual misconduct on campus. The Campus Climate Survey found a decrease in sexual assault rates overall since 2015 and an increase of trust in the University’s investigation process, and the DPSS report showed the number of on-campus sexual assault reports have dramatically increased.
In an email to University students, faculty and staff last week, Schlissel announced a new draft umbrella policy for sexual and gender-based misconduct. According to Schlissel, the umbrella policy aims to clarify the University’s policies to ensure consistency between them for all University groups.
Before the umbrella policy is implemented in early 2020, Schlissel asked members of the University community in an email to submit survey feedback through Nov. 22. He said the University continues to work on its goal of ensuring a safe and respectful community for all.
“The number of sexual assaults and misconduct cases continues to be too high at U-M, on college campuses across the country, and throughout our society in general,” Schlissel wrote. “We must do everything we can as we strive to reduce the number to zero."