There’s a plethora of unfair policies and procedures enacted by colleges and universities regarding their pseudo-judicial systems set up to find culpability of those accused of sexual assault. But there is also an inherent inequality after the fact, as many — if not most — students who are wrongly accused can’t afford an attorney to sue the school and clear their good name.
That may be about to change thanks to attorney Andrew Miltenberg, who has been one of the leading lawyers in the fight for campus due process rights.
At Michigan State University — which has already been investigated by the federal government for taking too long to find accused students responsible and harbored Larry Nassar for years — a student referred to in court documents as John Doe was accused of sexual assault.
John said he thought the sex was consensual, but at some point during it he noticed the woman “appeared uncomfortable and was shivering.” He says he stopped having sex with her and asked if she was alright. She then left the room. Later, her friend texted John to say the woman claimed John forced himself on her. Four days later, she reported the incident to the school.
John was suspended for two years after an investigation that did not provide a chance for John to defend himself in a live hearing. He was unable to cross-examine his accuser or the witnesses against him. A 6th Circuit Court of Appeals ruling found that rival University of Michigan was wrong to deny an accused student the ability to cross-examine his accuser. That ruling, Miltenberg told the Detroit Free Press, opened the door for a class-action lawsuit, something that has been consistently brought up in due process circles.
“For a long time, people would ask why there wasn't a class action," Miltenberg said. "There wasn't a law on the books we could hold a class action on. Now there is."
A class-action allows accused students who can’t afford an attorney to fight on their behalf the chance to receive relief from the harm caused to them. The lawsuit defines eligible participants as follows:
All MSU students and/or former students, including prospective and future students, subjected to a disciplinary sanction, suspension, or expulsion pursuant to a finding of responsibility under the (sexual violence) Policy (or its predecessor and/or successor policy/policies) without first being afforded a live hearing and opportunity for cross examination.
As the Free Press, noted, if Miltenberg is successful, the class-action strategy could be used elsewhere.
Thanks to professor and author K.C. Johnson, we know there have been hundreds of lawsuits and more than 100 good rulings in favor of wrongly accused students — but those numbers only reflect the students who can afford to file a lawsuit. We don’t know the number of students who were punished for a crime they didn’t commit but who couldn’t afford legal counsel.
Miltenberg previously was the first attorney on this issue to try and sue the federal government over the policies it imposed on institutions of higher education. A judge knocked the government out of the lawsuit, but the school ended up settling with the student.