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Court decision highlights importance of representation for students in disciplinary proceedings

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Earlier this week, a Michigan federal judge held that Northern Michigan University may have breached its contract with an accused student by failing to inform him, as required by university policy, of his right to have an adviser present throughout his sexual misconduct disciplinary proceedings.

The facts of the case also highlight precisely why representation, by an attorney or at least a trained advocate, is so critical in these cases.

The lawsuit, brought by a student known in court papers as John Doe, stems from Doe’s expulsion from NMU following claims brought by a female NMU student. The student alleged that, a year and a half earlier, Doe had engaged in sexual activity with her while she was too drunk to consent, and had forced her to perform oral sex on him. At a meeting with the associate dean of students, Doe denied forcing the student (known as Jane Roe) to perform oral sex on him, but affirmed the allegations related to Roe’s level of intoxication because he thought that being cooperative might lead to a lesser punishment. As Doe put it in his complaint:

Nervous, and without representation, Plaintiff affirmed removing Roe’s clothing on October 30, 2016 and having vaginal intercourse with her that night. … Plaintiff thought that affirming the allegation would lead to a lesser punishment. He also thought that once he explained his side of the story he may not receive any punishment at all.

Following an investigation, NMU’s Sexual Misconduct Review Board found Doe not responsible for the charge of forcing Roe to perform oral sex on him, but “found that [Doe] had affirmed the other two charges, and based on those findings, Plaintiff would be expelled effective May 5, 2018.”

This is a textbook example of why it is so critical that students have access to representation in campus disciplinary cases with potentially life-altering consequences like suspension or expulsion. John Doe claims that he essentially admitted to things he hadn’t done because he thought being cooperative would help his case — something an attorney or other representative would very likely have advised him against doing. And far from being helpful, Doe’s admissions were ultimately the direct cause of his expulsion.

NMU’s policies do allow students to have an adviser, including an attorney, present for disciplinary proceedings (although they do not allow advisers to participate actively in those proceedings, which FIRE believes is also essential to a fair process). But if NMU administrators present students with the allegations against them, without prior notice, in the way that Doe’s complaint describes, students are unlikely to know of that right at their first meeting — which is presumably why NMU’s sexual misconduct policy also provides that respondents “will be informed of the right to ... have one adviser of their choosing attend meetings and interviews with them.”

John Doe claims that he was never informed, at any stage of the process, of this right. On Tuesday, a federal judge ruled that Doe had “alleged a plausible breach of contract based on Defendants’ failure to inform him that he could have an adviser, which could be an attorney, present for meetings and interviews in connection with his disciplinary proceedings.” The judge also ruled that Doe had stated a plausible claim for due process violations based on the fact that he was not given a live hearing or the opportunity to cross-examine his accuser.

While Doe may obtain some relief in the courts, to a large extent, the damage is done: He was expelled from NMU more than a year ago. And while we know nothing about his particular circumstances (since he filed anonymously), we do know that these disciplinary actions often have a tremendously harmful impact on students’ future educational and employment opportunities. Which is entirely appropriate, of course, if a student is actually responsible for sexual misconduct — but that is precisely why it is so critical that findings of responsibility be made only after a full and fair process.

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