Lawyer attempts first-ever class action lawsuit for college students accused of sexual assault

In a groundbreaking move, the first-ever prospective class-action lawsuit that would benefit students accused of sexual assault has been filed against a university, potentially reversing the outcomes of dozens of sexual violence cases.

Experts say the suit against Michigan State University is a clever legal maneuver that takes advantage of a significant ruling in the U.S. Court of Appeals for the Sixth Circuit. Judges determined in September 2018 that students accused of sexual assault, or their representatives, had a right to directly question their accuser, which legal experts said would reshape the notion of due process in these cases.

The lawsuit could theoretically challenge, even retroactively, the results of any campus sexual violence case that didn’t offer due process protections.

Advocates for accused students have long maintained that institutions disregard due process rights in investigating and adjudicating campus rape charges, ever since the Obama administration in 2011 released guidance around Title IX of the Education Amendments of 1972, the federal sex antidiscrimination law.

Though these rules were popular among sexual assault survivor advocates for giving victims more protections, Education Secretary Betsy DeVos pulled them nearly two years ago and replaced them with regulations that have not yet been finalized. These regulations, and other rulings in the Sixth Circuit, have asserted that students are entitled to due process under Title IX.

“If those protections are inherent in law, all decisions made without those protections could be revisited by the courts as procedurally insufficient to meet due process,” said Brett Sokolow, president of the Association of Title IX Administrators. “The Sixth Circuit opened the door to this, and now it’s going to need to figure out how to clean up the mess.”

The lawsuit was filed by a male student, who is anonymous in the court filings and referred to as John Doe. He was accused of sexually assaulting his date to a fraternity party in February 2018. He sued Michigan State in December 2018.

The lawsuit states that Doe believed he and the female student were just friends after she rejected a kiss from him earlier that year. But at the party, the female student kissed him, giving him the impression that she was interested in him, the lawsuit states.

According to the lawsuit, Doe asked the student to return to his dormitory, and she agreed. Although Doe initially believed their sexual activities in his room were consensual, the woman “appeared uncomfortable and was shivering” after he started to initiate sex, the lawsuit states.

The female student left shortly after the encounter, and Doe thought that she regretted going home with him. But around 3 a.m., he received a text from a mutual friend saying that she was told that Doe forced himself on the student.

Several days later, the student with whom he had the sexual encounter reported the alleged assault to the Office of Institutional Equity. After an investigation, Doe was suspended from Michigan State for two years. The lawsuit alleged that investigators were biased and ignored conflicting statements from the female student.

The suit notes that Michigan State was already under scrutiny for mishandling sexual assault allegations by female students, which Doe suggested affected the outcome of his case.

Around the same time that Doe was accused, a scandal was unfolding at Michigan over the long-term conduct of Larry Nassar, a former team physician at the university and a doctor for the U.S.A. gymnastics team who was found to have sexually abused hundreds of patients, including Michigan State athletes. Officials were widely criticized for allegedly ignoring students’ complaints about Nassar’s conduct. (​Lou Anna K. Simon, Michigan State’s former president, lost her job over the controversy and faces charges for possibly lying to police during the criminal investigation.)

At the time, the university was also under investigation by the Education Department’s Office for Civil Rights for potentially violating Title IX in its handling of complaints unrelated to the Nassar case.

“Determined to placate OCR, to avoid the potential loss of millions of dollars in federal funding, to restore its reputation, and to protect itself from future liability, defendants … launched a campaign to — in its own words — go ‘above and beyond’ even OCR’s demands, and to ‘drive cultural change,’ prosecuting female students’ sexual assault claims aggressively, proving its willingness to believe female students who claimed sexual assault, and convicting and punishing alleged assailants,” the lawsuit states.

Andrew Miltenberg, the lawyer representing the accused student, amended the complaint this month and requested class-action status. The court would need to be persuaded that enough current or former students accused of sexual misconduct may have been denied due process to justify them as a class. Michigan State could also request that the case not be classified as a class action. A spokeswoman for the university declined to comment.

Miltenberg, a managing partner at Nesenoff & Miltenberg, said his client is not asking for monetary damages, but rather that sanctions imposed on these students be reversed.

Several Michigan State students have approached his firm about flaws they perceived in their Title IX cases and problems with the university’s processes, he said. After researching the number of potential accused students and after the Sixth Circuit decision in September, Miltenberg said he believed the class action was possible.

Miltenberg said he believes “several hundred” current and former students could be affected.

The lawsuit includes statistics on sexual violence that universities must disclose under federal law. Michigan State fielded 86 reports of sex crimes in 2017, with similar numbers in 2015 and 2016. If the lawsuit was successful, the findings in all those cases could be overturned. These numbers may be inaccurate, however, because of the way incidents are reported — a report of dating violence might also count as stalking, creating duplicates.

Miltenberg said he believes he will win the lawsuit and if he does, he hopes it would pave the way for similar class actions in other jurisdictions.

“We need a much more transparent, fair and equitable system that gives everybody the chance to be heard completely,” Miltenberg said.

The lawsuit’s success hinges on whether the right to cross-examination was a key factor in every Title IX case at Michigan, said David A. Russcol, a lawyer specializing in Title IX at Zalkind Duncan & Bernstein in Boston. Russcol reiterated that the Sixth Circuit has been strong on issues related to due process.

“It certainly does make it plausible that with the dozens of cases at Michigan State over several years, it could raise these issues,” Russcol said.