It’s a bold move. The first time anyone tries a new legal approach is, almost invariably, a bold move. The law likes precedent, the comfort of knowing that somebody already signed off on something, whether it’s teeth marks as admissible forensic science evidence despite it being neither science nor evidence, or an individual cause of action brought on behalf of a group of students. A class action.
Andrew Miltenberg already had two cases on his plate with Michigan State. That’s the same school that concealed Larry Nasser’s abuse of female athletes for decades. Unsurprisingly, the taint, not to mention the liability, of Nasser caused Michigan State to overcompensate by crafting Title IX procedures certain to damn any male accused of any sexual misconduct. See? We’re the good guys now!
From an inquisition by investigators, who are supposed to be neutral but instead dedicate themselves to “trauma informed” ideology, building the case of the accused’s guilt, demanding a defense before disclosing the accusations, to the denial of a live hearing and deprivation of the right to cross-examine, the process at Michigan State was carefully calculated to bring a smile to then-DoE Office of Civil Rights bureaucrat Catherine Lhamon’s face, prevent her from eliminating its federal funding and appeasing her vicious appetite to ruin a school that gave the accused a tenth of a chance.
But the fact that two students had parents with the ability to fund federal litigation against Michigan State presented a nagging problem for Miltenberg. Every male student accused was denied the same due process as his clients, but not every male student had the wherewithal to fight back. Did they not suffer the same denial of due process as his clients? If it was wrong for two, what about the hundreds of other students who, according to the school’s annual Clery Report, suffered the same or similar fates for the same reasons?
Are they not all entitled to relief for Michigan State’s denial of due process?
“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.”
After the Sixth Circuit held in Doe v. Baum that the accused are entitled to a live hearing where they can examine witnesses, actions shifted from the particular facts of any case to the denial of required due process. This could be the game changer.
“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.”
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.”
Up to this point, actions were highly fact specific, requiring students seeking relief to show entitlement based on the facts of their case and the particularized handling by the school. The Baum decision, however, makes clear that regardless of anything else, the absence of a live hearing that includes the opportunity to cross-examine witnesses is sufficient to prevail. Rather than have to fight each individual case based on its facts, the unconstitutional process used by colleges, and imposed by Lhamon, is sufficient, and this is common across the class of students.
It’s not as if Miltenberg anticipates this class action to produce huge legal fees while doing little for the students, as is the case in tort class actions. The relief sought isn’t money damages, but reputation cleansing.
The class action would seek to have MSU ordered to “vacating/expunging their disciplinary records and reversing/vacating the sanctions.”
The years lost to these students, expelled or suspended, tainted so they can’t gain admission elsewhere, and the psychological damage each wrongly punished student suffered may go unremedied in a class action, but at least their record will be expunged and they will no longer have their futures permanently darkened by having been expelled from college as a sex offender.
That is, if this bold effort survives and receives the court’s approval.
If successful, the same strategy could be tried at universities all across Michigan and the Midwest.
Miltenberg is going out on a limb here for the sake of students who can’t afford to hire him, to challenge their college, to fight back against this outrageously unfair ruination of their lives in the name of gender politics. If successful, this could be huge. It’s still an “if,” however, and now the courts will have to determine whether they are bold enough to approve a class action against Michigan State even though it has never been done before.