How Do You Stop A Problem Like University of Michigan?

When the Sixth Circuit ruled in Doe v. Baum, following up on its decision in Doe v. University of Cincinnati, the law appeared settled: The male students accused of sexual misconduct were entitled to cross-examination in Title IX sexual misconduct proceedings. Problem solved, right? So why then didn’t the University of Michigan’s president get the message?

In its desire to be a mecca of political correctness, the University of Michigan continues to prioritize the rights of some students over others.

And that does not fly in the courts, thanks to the U.S. Constitution, which demands free expression and due process for everyone.

UM’s resistance to ensuring its codes of conduct abide by that framework keep landing the university in court.

It got slapped once again by a federal judge this week.

In Doe v. University of Michigan, Judge Arthur Tarnow rejected UM’s effort to game the ruling in Baum, which UM President Mark Schlissel calls “wrong,” by creating an “interim” rule after the case was brought and then claiming the case was moot.

The university then argued that Doe’s case was moot, since it would now adjudicate his case using the Interim Policy. The district court noted, however, that voluntary cessation of unconstitutional conduct is alone insufficient to moot a claim. Rather, a claim is only moot if it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” And because the university continued to defend its old policy — among other things, the university’s president explicitly declared that “the Sixth Circuit got it wrong” in Baum — the court held that the university had “failed to meet its burden of proving that the challenged policy will not be re-enacted.” Doe’s claim, therefore, was not moot.

There is a belief that law is somehow magically self-effectuating, that if a court holds that the law requires that something be done, it will be done. After all, that’s the law. Isn’t that how law works? The UM case proves otherwise.

The judge says ignoring court rulings is a pattern with UM. He cited a 2018 free speech case brought against the university by Speech First. That lawsuit targeted UM’s bias response team, which encouraged students to spy on each and report behavior that made them feel uncomfortable. The 6th Circuit Court determined that even though the university amended its policy following the suit it had done so in a “disingenuous” manner.

The judicial branch was characterized as the “least dangerous” as its ability to compel people to comply with its orders was severely limited. It relied primarily on the acceptance of the courts as legitimate arbiter of law so that people complied because they chose to apply. Beyond that, the judiciary relies on the kindness of strangers from the executive branch, because they have the guns.

But while Michigan didn’t want to appear not to comply, it simultaneously chose not to comply because, well, it didn’t want to. It didn’t agree, as if this is a debate between peers with the Sixth Circuit (and Judge Tarnow) on one side and UM president Schlissel on the other, both sides being entitled to their own opinion and, therefore, entitled to agree to disagree and go about their lives doing what they believe to be the right thing.

It wasn’t as if Judge Tarnow could shut down University of Michigan for its failure to adhere with the rulings. It’s a huge public university, with almost 45,000 students. Should he shut down UM, deny those students an education? Should he impose Draconian sanctions, to be paid from student tuition or public monies? What possible effective solution would serve to drive home the point that UM wasn’t above the law without doing significant (and likely ineffectual) harm?

From its inception to the University’s appeal in Baum, the [University of Michigan] was in violation of Circuit precedent. Five months before publishing its 2018 Policy and likely during its drafting, the Sixth Circuit held that cross-examination was “‘essential to due process’” only where the finder of fact must choose “‘between believing an accuser and an accused,’” and implored universities to provide a means for decision makers “to evaluate an alleged victim’s credibility.” Cincinnati, 872 F.3d at 405-06. The Court of Appeals further emphasized that deciding the plaintiff’s fate without a hearing and cross-examination was a “disturbing . . . denial of due process.” Cincinnati, 872 F.3d at 402. Because the Individual Defendants violated this ruling and Plaintiff’s clearly established constitutional rights, the Court finds that they are not entitled to qualified immunity. (Emphasis added.)

Subsumed in the “et al.” portion of the caption are numerous individual defendants who either participated in the underlying conduct by UM or were decision-makers in the university’s policies. By denying them “qualified immunity,” they can potentially be held individually liable for the deprivation of constitutional rights suffered by the plaintiff. Mind you, this doesn’t mean they will, or that the school won’t pay any judgment imposed as a consequence of the case, but it theoretically exposes the individual defendants to liability.

Is this the right answer? On the one hand, the individual defendants who were integral to the due process violations, such as the Title IX coordinator and investigator, were doing what they were told to do, what their job was understood to be. They weren’t the policy makers here, and their performance of their jobs, which they may well have been more than happy to do with gusto, was as the school’s administration required of them.

On the other hand, the policy makers weren’t determined to go forth and violate constitutional rights, but were crafting policy for purposes that were, based upon their understanding and belief, supportive of the victims of rape, sexual assault and sexual harassment. What could be wrong with such benign, if not laudable, goals?

As more suits are brought, more rulings obtained, holding that campus sex tribunals involve unconstitutional deprivations of due process to accused male students, some colleges will comply, but others will simply resist, firm in their belief that they are on the right side of history and, even if courts don’t agree, are doing what they have to, what they should, do to protect women. They are, in essence, challenging the courts by saying “make me,” and the reality is that the “least dangerous branch” doesn’t have any really good magic to do so.

17 thoughts on “How Do You Stop A Problem Like University of Michigan?

  1. Warren

    “They weren’t the policy makers here, and their performance of their jobs, which they may well have been more than happy to do with gusto, was as the school’s administration required of them.”
    Sounds like what the guards at the concentration camp said.

    1. SHG Post author

      It’s true that “just following orders” was the Nazis excuse, but the comparison fails in every other possible respect. While it may well be legally and constitutionally wrong, comparing the wrongfulness to genocide and concentration camps is absurd.

      1. Grant

        I disagree with Warren’s basic point, but cite this in his support:

        “Churchill: “Madam, would you sleep with me for five million pounds?”
        Socialite: “My goodness, Mr. Churchill… Well, I suppose… we would have to discuss terms, of course… ”
        Churchill: “Would you sleep with me for five pounds?”
        Socialite: “Mr. Churchill, what kind of woman do you think I am?”
        Churchill: “Madam, we’ve already established that. Now we are haggling about the price.”

        1. SHG Post author

          Yes, we’re all familiar with the old Churchill gag. Was there a point to your bringing it up or were you just wasting my bandwidth on an old joke now that vids are banned?

          1. Grant

            Degrees of wrong are a matter of degree, not kind. Comparing the two is not absurd, even if several orders of magnitude separate them.

            1. SHG Post author

              So favoring female accusers at the expense of male accuseds isn’t a difference in kind over murdering millions of people? Sorry, not persuaded.

            2. Miles

              Not all “wrongs,” whether civil, criminal (malum in se or malum prohibitum) are inherent crimes against humanity that no one, no matter what the orders, should ever do. Get your head out of your ass.

  2. orthodoc

    Please forgive my naiveté (and make fun of it if you like) but at what point are criminal sanctions in order? (In answer to “Is it a crime to deny rights?” google points me to “18 U.S. Code § 241.Conspiracy against rights”)

  3. Casual Lurker

    While rare, there have been situations where the court has advised non-compliant defendants to “bring your toothbrush” to the next scheduled hearing.

    As the non-lawyer in this here hotel, what’s to prevent the court from similarly incentivizing said delinquent administrators?

    1. SHG Post author

      I could explain civil and criminal contempt to you, but SJ law school is closed today. Have you considered paxil?

      1. Casual Lurker

        “Have you considered paxil?”

        SSRIs (Paxil, Prozac, Etc.), in general, are not my first go-to meds for treating most of the approved, listed conditions.

        I could explain why, but unfortunately, like the SJ School of Law, the Rest Spa School of Psychopharmacology is also closed for the foreseeable future. (At least until I’m no longer living out of my office).

  4. Steve White

    Maybe I just hate them more than you do, or do not understand the legal ramifications, but it seems to me the removal of qualified immunity for Title IX staff is the best way to solve this problem.
    All the things you said about it being unfair to them may be true , but in general, if you have a job where you can really harm innocent people, you are expected to have high competence to not do so. Meaning, Title IX staff will need to understand the minimum due process the courts require and adhere to it , or face lawsuits and judgments.
    Cops can get sued, Lawyers can. Doctors can – and unlike those professions, if everyone bails out of Title IX staffing because they can’t stand the liability, there is no real loss to society – any student who is a serious problem will be violating actual laws and get prosecuted if the evidence is there. With the DOE OCR office under Betsy Devos apparently not demanding due process rights be restored, in the manner the Dear Colleague letter took them away, this seems like the best thing that can happen.

    1. SHG Post author

      Your argument boils down to you just think it’s not an important enough function. Obviously, others disagree. The question isn’t whether your feelz are better than their feelz, but why this specific remedy is better or worse than others, and whether denying QI will be more effective than others in achieving due process for male students.

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