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Could Your Campus Be Next to Face a Class Action Challenge to Title IX Outcomes?

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August 5, 2019

By Bill Pokorny and Jackie Wernz

A recent class-action lawsuit filed in Michigan, which seeks to overturn scores of Title IX decisions at Michigan State University, is the first of its kind. The case relies on a 2018 federal court ruling in Michigan that public colleges and universities must allow direct confrontation of the accuser by the accused in such proceedings.

The recent lawsuit, Doe v. Michigan State University, involves a complaint by a male former-MSU student who says he was wrongly accused and found guilty of sexual assault by the University in 2015. Among other concerns, he claims that he was not allowed to cross-examine his accuser during the adjudication of the complaint, which he alleges denied him due process in violation of the Fourteenth Amendment to the U.S. Constitution. Attorneys for the student recently amended the lawsuit to include a similar due process claim against MSU by a class of students. The proposed class includes “[a]ll 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 [relevant grievance policies] . . . without first being afforded a live hearing and opportunity for cross examination of witnesses.” The plaintiffs seek a declaration that MSU’s disciplinary policies and practices are unconstitutional, a prohibition of future use of the policies and practices, and individual relief for the named plaintiff. Plaintiffs also seek to vacate and expunge all “findings and sanctions resulting from the unconstitutional process” for the entire class of plaintiffs.

The lawsuit relies on a 2018 decision by the Sixth Circuit Court of Appeals, Doe v. Baum. The court in Baum held that due process requires the opportunity for a live hearing and cross-examination for Title IX disciplinary proceedings at public universities. The case was heralded as an unparalleled decision and win for proponents of the rights of the accused in the Title IX process. Although the reach of the decision is limited to the Sixth Circuit’s jurisdiction of Kentucky, Michigan, Ohio, and Tennessee, the proposed Title IX rules currently under review by the Department of Education would apply the requirements in Baum to both public and private schools across the country.

It is uncertain whether the case will be able to proceed as a class action or what the outcome of the lawsuit will be. However, the case is an important reminder that the legal pendulum in Title IX cases has swung heavily in the direction of the accused. Public colleges and universities should use this example as an opportunity to review their Title IX policies and procedures to mitigate the risk of due process violations. While they are less directly affected, private colleges and universities should also keep a close eye on the developing law in this area, including the anticipated Department of Education guidance. Frequent training for administrators and employees who implement Title IX is also increasingly necessary to keep up with the swift pace of change in this area. For assistance with a review or training, or for more information on this case, contact Bill Pokorny, Jackie Wernz, or another Franczek attorney.

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