By Jonathan Stempel
(Reuters) – The University of Michigan must face a former male student’s claims that it wrongly refused to let him cross-examine a female student who accused him of sexual misconduct, as well as other adverse witnesses, at a disciplinary proceeding.
In a decision on Friday, the 6th U.S. Circuit Court of Appeals reversed a lower court judge’s dismissal of claims by the male student, known as John Doe, that the school violated his due process rights and Title IX, a U.S. law barring gender discrimination by schools that receive federal funds.
Doe, who left school 13-1/2 credits short of his business degree rather than face expulsion, was accused of having non-consensual sex with a woman at a “Risky Business” themed fraternity party when he was a junior and she a freshman.
The woman, known as Jane Roe, said she was too drunk to consent, while Doe said she participated willingly.
Circuit Judge Amul Thapar rejected university claims that cross-examination was not necessary because Doe could review the woman’s statement, had ample opportunity to challenge witnesses’ testimony and confessed in a police interview, a claim the judge said was unproven.
“Due process requires cross-examination in circumstances like these because it is the greatest legal engine ever invented for uncovering the truth,” Thapar wrote, noting that the school allows cross-examination in all misconduct cases not involving sexual assault.
In reviving the Title IX claim, Thapar, an appointee of President Donald Trump, said without ruling on the merits that Doe raised a “plausible” claim that the university showed “anti-male” bias in discrediting testimony from his fraternity brothers.
He said this came against the backdrop of a federal probe into the school’s handling of sexual misconduct claims.
The Cincinnati-based appeals court ruled after reports last week that Education Secretary Betsy DeVos is preparing new policies to bolster the rights of college students accused of sexual misconduct.
University of Michigan spokesman Rick Fitzgerald in an email said the school is “carefully reviewing the court’s decision.”
The appeals court voted 3-0 to revive the due process claim, and 2-1 to revive the Title IX claim.
Deborah Gordon, a lawyer for Doe, called the decision a “huge win” after the school had “taken it upon itself to tilt the playing field.”
She said Doe is now employed after earning his degree from another school but plans to continue suing the University of Michigan for damages and his degree there.
The case is Doe v Baum et al, 6th U.S. Circuit Court of Appeals, No. 17-2213.
(Reporting by Jonathan Stempel in New York; Editing by Cynthia Osterman)