Campus Due Process Litigation Tracker

Doe v. University of Michigan, 325 F. Supp. 3d 821 (E.D. Mich. 2018)

School type: Public
State: Michigan
Federal Circuit: Sixth
Decision primarily favorable to: Student
Stage of litigation: Motion for TRO/preliminary injunction
Keywords: Cross-examination, Due process, Single investigator

Plaintiff’s motion for a temporary restraining order was granted in part and denied in part.

Plaintiff brought suit against the University of Michigan during their investigation into him for sexual misconduct based on an allegedly nonconsensual sexual encounter.

Facing expulsion, Plaintiff challenged the university’s “formal resolution” process for sexual misconduct cases, which called for an “investigation, and where necessary, an appeal and sanctions.” Under the formal resolution investigation, one investigator was in charge of interviewing the accuser, the accused, and “cross-examining” the accuser on behalf of the accused, “but it remain[ed] within the investigator’s discretion to determine whether and how to ask the questions.” The investigator then produced a “Preliminary Investigation Report” which included a summary of witness statements. “When the investigator has completed gathering evidence, she makes a determination, by a preponderance of the evidence, as to whether the accused has violated the [p]olicy.”

Citing Doe v. University of Cincinnati, the court held that Plaintiff had the right to cross-examine his accuser because this was a case largely based on a credibility determination.

Plaintiff sought a preliminary injunction to stop Defendants from continuing their investigation, sanctions, and appeals process under the Policy and to require Defendants to provide all students accused of sexual assault with the protections guaranteed in the University’s Statement of Student Rights and Responsibilities.

The court declined to require the university to change its policy with regard to all students, but ordered the university to provide Plaintiff with “the opportunity for a live hearing” and with the opportunity to conduct indirect cross-examination through a hearing officer or other administrator.