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Federal Judge Orders University of Michigan to Give Student Live Hearing in Sexual Misconduct Case

July 24, 2018 Criminal Law and Procedure

A Federal Judge in Detroit ruled that a University of Michigan Student gets a live hearing in the University’s Title IX investigation of him for sexual assault.

The University Investigation Process

Currently, a University of Michigan student accused of sexual harassment or sexual assault is subject to the University’s investigation system.

This system has an investigator who speaks separately with the student making the accusation and the student accused. The accused can ask questions of the accuser and third parties. However, those questions must go through the investigator. The investigator determines which of the accused’s questions are relevant and the form the questions will be asked.

This is markedly different from a normal cross examination in a criminal trial. In a trial, the accused’s attorney questions the accuser in open court. The attorney can question in any format and on any topic, subject to the rules of evidence.

The investigator makes the final decision of responsibility for violations.

University investigations into sexual harassment and sexual assault do not permit a live hearing. However, investigations into other types of alleged wrongdoing do permit students the opportunity for a live hearing. The two sets of rules creates very different systems – one in which the accused receives a hearing and one in which they do not.

This university process is separate from a criminal investigation for criminal sexual conduct. The University uses a standard of proof called preponderance of the evidence is used to determine responsibility for a violation.

This standard of proof is the equivalent to the standard in civil legal cases. The standard of proof in a criminal case is the much higher standard of beyond a reasonable doubt.

The Judge’s Ruling

Federal judge Arthur Tarnow ruled this system violated the accused student’s Due Process rights.

The Judge wrote, “[t]his Policy deprives Plaintiff [the Accused Student] of a live hearing and the opportunity to face his accuser. Because of the University’s method of private questioning through the investigator, Plaintiff has no way of knowing which questions are actually being asked of Claimant [Accuser] or her response to those questions.”

The live hearing will permit questioning, but the accused student may not ask the questions. The questions will be asked through a student resolution panel, a resolution coordinator, or a resolution officer.

The Implications

Universities in Michigan all have some system of Title IX investigations into harassment and misconduct. Other universities follow the investigator model employed by the University of Michigan. Moving forward, all Title IX investigations in Michigan could require an actual hearing in which the accused is permitted to question the accuser.

The Judge’s ruling was only mid-way through the U of M student’s lawsuit. The final result of the lawsuit may have far-ranging implications.

Call us

Contact Sam Bernstein at 734-883-9584 or by e-mail at

Sam Bernstein is a Criminal Defense Attorney in Ann Arbor.

ArborYpsi Law is located at 4158 Washtenaw Ave., Ann Arbor, MI 48108.

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