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Doe v. University of Michigan

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

July 6, 2018

John Doe, Plaintiff,
v.
University of Michigan, et al., Defendants.

          Elizabeth A. Stafford Magistrate Judge

          ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION [4]

          Arthur J. Tarnow United States District Judge

         Plaintiff, John Doe, a student who has completed all of the requirements to receive his undergraduate degree at the University of Michigan, has been accused of sexual assault and faces a possible penalty of expulsion. In the midst of the University's investigation into his alleged conduct, Plaintiff commenced this 42 U.S.C. § 1983 action claiming, inter alia, that the University of Michigan's Policy and Procedures on Student Sexual and Gender-Based Misconduct and Other Forms of Interpersonal Violence (“Policy”) deprives students of due process in violation of the Fourteenth Amendment.

         Before the Court is Plaintiff's Motion for Temporary Restraining Order and Preliminary Injunction [4] filed on June 5, 2018. Plaintiff argues that due process requires that he be given a live hearing and the opportunity for cross-examination of his accuser.

         For the reasons explained below, Plaintiff's Motion for TRO [4] is GRANTED in part and DENIED in part.

         Factual Background

         I. Policy and Procedures on Student Sexual and Gender-Based Misconduct and Other Forms of Interpersonal Violence

         The Policy, enacted on February 7, 2018, governs claims of sexual assault on campus. Where a student reports sexual misconduct to the University's Office of Institutional Equity (“OIE”), the Policy sets forth two resolution processes: 1) formal resolution, involving an investigation, and where necessary, an appeal and sanctions; and 2) alternative resolution. The formal resolution process is challenged here.

         Pursuant to the Policy, once a claimant files a report of an alleged violation, the OIE investigator meets privately with the claimant and conducts an interview. Thereafter, the accused is notified in writing of the start of an investigation. The investigator meets separately with the accused, who may have an attorney or advisor present. The investigator takes statements from both parties and asks them to identify possible witnesses.

         After the interviews, the investigator provides the accused with a draft summary of his statement so he may comment and ensure its accuracy. The accused may submit suggested questions to the investigator to be asked of the claimant or other witnesses, but it remains within the investigator's discretion to determine whether and how to ask the questions.

         The investigator is responsible for reviewing the information provided by the parties and determining its relevance and probative value. Once the parties have had the opportunity to comment on their statements, identify witnesses, and submit suggested questions, the investigator prepares a Preliminary Investigation Report. The Preliminary Investigation Report includes a summary of all witness interviews, but does not contain any findings. The parties are given a copy of the Report and may comment and offer feedback.

         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 Policy. No. live hearing is held. The investigator drafts a final written report (“Final Report”) summarizing her findings and rationale in support. The Final Report is reviewed by the Title IX Coordinator and the Office of General Counsel before it is given to the parties. The University strives to complete this entire process within sixty days.

         Either party may appeal the investigator's findings. An external reviewer, reviews the Final Report and the parties' written submissions. If the external reviewer determines that there are no issues of concern, he may affirm the investigator's findings. Alternatively, if he identifies any issues of concern, he may remand or make necessary modifications to the report. The Policy authorizes the external reviewer to reverse an investigator's finding of no violation.

         Where a student is found responsible for violating the Policy, the University imposes sanctions which may include: probation, suspension, expulsion, and revocation of the student's degree.

         II. Doe Investigation

         In April 2014, John Doe enrolled at the University as an undergraduate student. Throughout his four-year tenure, Doe successfully completed the University's requirements for graduation in April 2018. During his senior year, Doe was a Residence Advisor. On February 26, 2018, he was accepted to the University's College of Engineering Master's Degree Program to begin in September 2018. He has since been accepted to out-of-state graduate engineering programs as well.

         On March 20, 2018, a female student (“Claimant”) filed a complaint with the OIE alleging that a non-consensual sexual encounter had occurred between her and Doe on November 11, 2017. No. witnesses were present.

         Doe and Claimant had known each other prior to the sexual encounter in November 2017. In the weeks that followed, they continued to speak to each other via text and in person. Doe maintains that Claimant asked to have sex again and he declined, telling her he just wanted to be friends.

         Defendant Suzanne McFadden, the OIE investigator, commenced an investigation into the complaint. On March 29, 2018, she interviewed Claimant and took notes contemporaneously. The interview was not recorded.

         On April 2, 2018, Doe received an email from the OIE stating that a report had been filed against him. The report alleged the following conduct: “unwanted oral, vaginal, and anal penetration without consent, at [] residence hall on November, 11, 2018 [sic].” The OIE informed Doe that it would investigate a potential policy violation of sexual assault and that he may retain a support person, such as an attorney.

         On April 3, 2018, McFadden interviewed Doe. During the interview, she advised him of the allegations against him and asked him to identify witnesses and other evidence.

         On April 11, 2018, McFadden provided Doe with a copy of his statement and an opportunity to submit comments. Doe made comments on the same day. He also provided McFadden with six additional witnesses and evidence.

         McFadden interviewed three of Doe's witnesses.[1] She also interviewed two other witnesses, presumably at Claimant's request.

         On April 19, 2018, the University informed Doe that an administrative hold had been placed on his student account, rendering him unable to register ...


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