Doe v. Univ. of Mich.

448 F.Supp.3d 715

John DOE, Plaintiff,

v.UNIVERSITY OF MICHIGAN, et al., Defendants.

Case No. 18-11776

United States District Court, E.D. Michigan, Southern Division.

Signed March 23, 2020

Deborah L. Gordon, Deborah L. Gordon Assoc., Bloomfield Hills, MI, for Plaintiff.

Amy Lynn Piccola, Joshua W.B. Richards, Saul Ewing Arnstein & Lehr LLP, Philadelphia, PA, Brian M. Schwartz, Miller, Canfield, Detroit, MI, Patrica M. Petrowski, Timothy Gerard Lynch, University of Michigan Office of General Counsel, Ann Arbor, MI, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS [49]; GRANTING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT [53]; DENYING DEFENDANTS' MOTION FOR PROTECTIVE ORDER AS MOOT [66]; DENYING DEFENDANTS' MOTION TO VACATE ORDER ENJOINING STUDENT CONDUCT HEARING AS MOOT [85]

Arthur J. Tarnow, Senior United States District Judge

Plaintiff John Doe, a male student accused of sexual assault at the University of Michigan, commenced this 42 U.S.C. § 1983 action claiming, inter alia , that Defendant University of Michigan's Policy and Procedures on Student Sexual and Gender-Based Misconduct and Other Forms of Interpersonal Violence ("2018 Policy") deprives students of due process in violation of the Fourteenth Amendment. He is suing to seek adjudication of the allegations against him through a hearing with an opportunity to cross-examine witnesses. Before the Court are four motions: Defendants' Motion to Dismiss [49], Plaintiff's Motion for Partial Summary Judgment [53], Defendants' Motion for Protective Order [66], and Defendants' Motion to Vacate Order Enjoining Student Conduct Hearing [85].

For the reasons stated below, the Court GRANTS IN PART and DENIES IN PART Defendants' Motion to Dismiss [49]; GRANTS Plaintiff's Motion for Partial Summary Judgment [53]; DENIES Defendants' Motion for Protective Order as MOOT [66]; and DENIES Defendants' Motion to Vacate Order Enjoining Student Conduct Hearing as MOOT [85].

FACTUAL BACKGROUND

On March 12, 2018, a female student ("Claimant") at the University of Michigan filed an Office of Institutional Equity ("OIE") complaint against Plaintiff alleging that he had a sexual encounter with her that was not consensual. Plaintiff alleges that it was consensual. (Dkt. 53, pg. 4). There were no witnesses to the encounter. (Id. ). The University began investigating the OIE complaint using the February 7, 2018 Policy. (Id. ).

I. 2018 Sexual Misconduct Policy

At the start of the investigation, the University had a bifurcated system of addressing student misconduct. The Statement of Student Rights & Responsibilities provided a hearing to the accused; while the 2018 Policy, which governed sexual assault claims, did not. When a student reported sexual misconduct to the OIE, the 2018 Policy set forth two resolution processes: 1) formal resolution, involving an investigation, and where necessary, an appeal and sanctions; and 2) alternative resolution. (Dkt. 47-1, pg. 20-21). The formal resolution process is challenged here.

Pursuant to the 2018 Policy, once a claimant files a report of an alleged violation, the accused is notified in writing of the start of an investigation. (Id. at 30). The accused may decline to participate in the process, but the investigation will nevertheless continue. (Id. at 31-32). Throughout this process, the accused may have an advisor or an attorney. (Id. at 31).

At the onset of the investigation, the OIE investigator meets separately with the claimant and the accused. (Id. at 29). After the interviews, the investigator provides the accused with a draft summary of his or her statement so he or she may comment and ensure its accuracy. (Id. at 33-34).

The investigator is responsible for reviewing the information provided by the parties and determining its relevance and probative value. (Id. at 29-32). The accused may submit suggested questions to the investigator to be asked of the claimant or other witnesses; however, it is within the investigator's discretion to determine which questions are appropriate. (Id. at 29).

Once the parties have had the opportunity to comment on their statements, identify witnesses, and submit suggested questions, and the investigator has completed gathering evidence, the investigator prepares a Preliminary Investigation Report. (Id. at 34). The Preliminary Investigation Report includes a summary of the witness interviews, but does not contain any findings. (Id. ). The parties are given a copy of the Report and may comment and offer feedback. (Id. ).

Thereafter, the investigator makes a determination by a preponderance of the evidence, as to whether the accused has violated the 2018 Policy. (Id. at 35). No live hearing is held. The investigator then drafts a final written report ("Final Report") summarizing his or her findings and supporting rationale. (Id. at 34-35). The Final Report is reviewed by the Title IX Coordinator and the Office of General Counsel before it is given to the parties. (Id. at 35).

Either party may appeal the investigator's findings. (Id. at 39). An external reviewer reviews the Final Report and the parties' written submissions. (Id. at 39-40). Typically, within seven days of receipt of the relevant documents, the external reviewer determines whether there are any issues of concern and may affirm, set aside, or modify the investigator's decision. (Id. ).

II. Doe's Investigation

Defendant Suzanne McFadden, the OIE investigator, commenced an investigation into Claimant's complaint against Doe. (Compl. ¶ 10). She interviewed Claimant on March 29, 2018. (Id. at ¶ 62). On April 2, 2018, Doe received an email from the OIE stating that a complaint had been filed against him. (Id. at ¶ 32). The complaint alleged Doe engaged in sexual activity without Claimant's consent at a residence hall on November 11, 2017. (Id. at ¶ 20). The OIE Senior Director and Title IX Coordinator, Defendant Pamela Heatlie, issued a no contact directive against Doe. (Id. at ¶ 31). The directive required Doe to avoid all incidental contact with Claimant. (Id. at ¶ 31-32).

On April 3, 2018, McFadden interviewed Doe. (Id. at ¶ 60). Doe claims that he was not given any information as to what Claimant told McFadden in their interview. (Id. at ¶ 63-65). McFadden also interviewed witnesses on unknown dates. (Id. at ¶ 65). Doe claims he was not given a summary of their statements or an opportunity to respond. (Id. ).

On April 19, 2018, the University informed Doe that an administrative hold had been placed on his student account, rendering him unable to register for classes or receive a copy of his transcript. (Id. at ¶ 44-45).

On May 24, 2018, McFadden issued an Executive Summary. (Id. at ¶ 67). Doe was given five days to provide written feedback. (Id. at ¶ 68). On May 29, 2018, Doe submitted his feedback. (Id. at ¶ 69). McFadden then investigated the new information and issues submitted to her. (Id. at ¶ 70). On June 21, 2018, McFadden sent Doe a second Executive Summary, which included additional information provided by the parties. (Id. at ¶ 71). The proceedings have been stayed since May 8, 2019 and no findings have been made. (See Dkt. 45).

III. Baum Decision and the 2019 Interim Sexual Assault Policy

Plaintiff filed this suit on June 4, 2018. On September 25, 2018, Doe v. Baum was decided. 903 F.3d 575 (6th Cir. 2018). Similar to here, in Baum , a student accused of sexual misconduct challenged the University's 2018 Policy for depriving him of a hearing with cross-examination. Baum held that "if a public university has to choose between competing narratives to resolve a case, the university must give the accused student or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder." Baum , 903 F.3d at 578.

On January 9, 2019, Defendants issued an Interim Sexual Misconduct Policy ("2019 Policy" or "Interim Policy") that is still in effect today. (See Dkt. 47-3). When a complaint is filed under the 2019 Policy, the Title IX Coordinator does an initial assessment and responds to any immediate health and safety concerns. (Id. at 26). Once the Coordinator decides to initiate an investigation, he or she will ensure that the respondent is informed of the nature of the investigations, the parties involved, and a summary of the conduct alleged. (Id. at 27). The Coordinator also decides whether or not to impose interim protective measures including, but not limited to: a no contact directive, placing a hold on respondent's transcript and/or degree, imposing an interim suspension. (Id. at 13-14).

Once an investigation begins, the Title IX Coordinator choses an investigator, who is usually a OIE staff member, to interview the parties and witnesses, gather relevant evidence, and submit a preliminary investigation report for the parties to review and respond. (Id. at 34-35). If a hearing is required, parties will have ten days to review the final investigation report and provide a response to the hearing officer. (Id. at 38).

The hearing officer has broad discretion to determine the format of the hearing. (Id. at 39). Generally, the hearing provides both parties an opportunity to address the hearing officer in person and question the opposing party and witnesses. (Id. at 38). Attendance is voluntary; if either party or a material witness will not attend, the Title IX Coordinator decides whether the University will proceed with the hearing. (Id. ). Following the hearing, the hearing officer decides, by a preponderance of the evidence, whether the respondent violated the 2019 Policy. (Id. at 41). After a finding of a violation, sanctions may be imposed. (Id. ). Possible sanctions range from disciplinary probation to expulsion. (Id. at 43-44).

Either party may appeal the hearing outcome, the sanctions, or both. Appellate review is conducted by an external examiner. (Id. at 45). In reviewing the hearing outcome, the external examiner can affirm the hearing officer's finding,...