Over the past few weeks, students who claim they were wrongfully accused or investigated for sexual misconduct have brought class action lawsuits on behalf of themselves and students in similar situations. The lawsuits are part of a trend challenging the fairness and requirements of college and university conduct investigations.
According to Insider Higher Ed, last month’s lawsuit against Michigan State University was “the first-ever prospective class-action lawsuit that would benefit students accused of sexual assault.” The prospective class of plaintiffs effectively includes all current, former, and prospective students who were found responsible for sexual misconduct and sanctioned in some way.
Michigan was likely the first state to see the class action lawsuit because of a decision from the Sixth Circuit Court of Appeals which encompasses federal district courts in Michigan, Ohio, Tennessee, and Kentucky. The case, a lawsuit brought by a John Doe, alleged that the University of Michigan had violated John Doe’s due process rights because the investigation into his alleged sexual assault of another student did not allow him to cross-examine the person he allegedly assaulted. See Doe v. Baum, 903 F.3d 575, 578 (6th Cir. 2018).
The Sixth Circuit Court of Appeals, which had previously hinted at the need for cross-examination in school conduct cases, held: “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.” Order at 2 (citing Flaim v. Med. Coll. of Ohio, 418 F.3d 629 (6th Cir. 2005); Doe v. Univ. of Cincinnati, 872 F.3d 393 (6th Cir. 2017).
A short time after the Michigan suit was filed, two class actions were also brought in California. The lawsuits are against the University of California (USC) and the California State University (CSU) systems. Both lawsuits reportedly include all students suspended or expelled since June 2015.
The California cases come on the heels of a January 2019 ruling from a California state court involving a former football player from the University of Southern California. The court found he was denied due process in a case investigating allegations he sexually assaulted another student in 2014. The court determined some form of cross-examination was required for a fair process.
All of the class actions will face challenges not just to the substance of the claims, but to their ability to be brought as class actions in the first place. Although each of the lawsuits involves only students subject to their respective school or system’s policies, the cases likely involve very different facts, circumstances, investigators, and sanctions which may make class certification difficult.
While those lawsuits are pending, all educational programs and institutions that receive federal funding are still waiting for the Department of Education to release revised Title IX regulations. Beyond colleges and universities, Title IX applies to public elementary and secondary schools and school districts, some grant-funded research projects; many national laboratories; and overseas fieldwork or study abroad programs sponsored by federal grants or colleges or universities. The revisions were expected last year and are currently expected sometime this fall.
Based on proposed revisions released last year, the Title IX regulations will also require that sexual misconduct investigations include cross-examination. It is not clear whether the revisions would mandate live cross-examination or whether other methods such as questions posed to a neutral party would be permitted.
It is likely that whatever the Department of Education’s revisions look like, the regulations will be the subject of litigation from both students bringing and facing misconduct complaints. It also seems likely, as one expert noted, that a Supreme Court case may be on the horizon as other courts, including federal courts of appeal outside the Sixth Circuit, may reach different conclusions about what Title IX or due process requires.
In the meantime, institutions and programs subject to Title IX will continue to face considerable uncertainty about what is and is not required for compliance with their state and federal obligations.
By Alexandra Tracy-Ramirez, HopkinsWay PLLC. | © HopkinsWay PLLC 2019. All rights reserved.