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University’s lawyer doesn’t know what ‘cross-examination’ means

The University of Michigan does not have a good history with Senior U.S. District Judge Arthur Tarnow.

That history got even worse on Monday.

The federal judge let loose a stream of invective against the university in an eight-page brief to the 6th U.S. Circuit Court of Appeals, citing its behavior in a due-process lawsuit by a student accused of sexual misconduct.

Tarnow accused UMich and its “ever-expanding” legal team – three law firms and its general counsel – of caring more about President Mark Schlissel’s image than “providing a fair process for adjudicating sexual misconduct claims.”

The university has been arguing with Tarnow for more than a month about his demand that Schlissel (feature image) appear at a settlement conference in the case. A transcript of a May 1 conference shows UMich lawyer Joshua Richards repeatedly relitigating the order, questioning Tarnow’s intelligence, and then asking the judge to dismiss himself from the case.

The 6th Circuit approved the university’s motion to stay Tarnow’s hearing last week, where Schlissel had been ordered to appear, and asked him for an explanation. Tarnow’s Monday brief blamed the university for bad-faith stalling tactics and needless publicity.

He also questioned the intelligence of Richards, the university’s lawyer, who “repeatedly claimed that he did not understand the meaning of the term ‘cross-examination’” at an April 25 teleconference.

“The Court hopes to hold this informal conference in open court” – a point of contention with UMich – “to quell the public’s confusion concerning the status of the case which has been generated by the University’s recent filings,” Tarnow told the 6th Circuit.

The Bill Clinton-appointed judge has twice ruled against UMich in the past year for withholding due process from parties accused of sexual misconduct, in this case and another brought by a female professor.

‘Delay, uncertainty, and additional billable hours’ for no reason

UMich has repeatedly insisted that Schlissel has better things to do than appear in Tarnow’s court, and that the president does not have “primary responsibility” for the Title IX policy.

It could not tell Tarnow which official actually has that authority, however, and the judge demanded Schlissel appear as the only person who can approve a final settlement proposal. Resolving this case “should be more important to [Schlissel] than almost anything going on at the university,” he said May 1.

In his Monday brief, Tarnow (left) defended his prerogative over “case management” and his belief that the parties were “not working together” to institute a sexual misconduct policy that can pass legal muster.

He laid the blame squarely on the university, which failed to consult the accused student’s attorney before issuing a new sexual misconduct policy.

MORE: Stop arguing and turn over Schlissel, Tarnow says

The 6th Circuit’s Baum ruling last fall, which ordered universities to let an “agent” of the accused student cross-examine the accuser in a live hearing, “should have been helpful in formulating a hearing procedure acceptable to both parties” in this case, Tarnow wrote.

The revised UMich policy followed four months later, and its lawyers cited it “as a basis for declaring compliance with due process and for filing a motion to dismiss” the lawsuit:

The University’s unilateral actions virtually guarantee the possibility of an appeal of any ruling by the Court. The result? Delay, uncertainty, and additional billable hours for an ever-expanding defense team, with no added value to its client. … [UMich should have]—at a minimum—sought input from Plaintiff’s counsel before instituting a
policy which directly affects her client and the outcome of this case.

Tarnow showed his irritation in footnotes. One identifies the three firms on retainer for UMich in this case and says its general counsel is “probably on a salary” yet didn’t make an appearance in the year-old suit until early June.

He also distinguished the behavior of the university’s many lawyers, who seek “a fair result to be achieved expeditiously,” from the university itself, though he singled out Richards for contempt.

The 6th Circuit had just remanded the case to Tarnow’s court when the parties met for a settlement conference, but Richards (right) used the occasion to make a “performance,” the judge said. This is where Richards confessed his confusion at the meaning of “cross-examination,” and apparently it caused Tarnow to swear at him.

The judge did not deny UMich’s accusation of the “expletive,” but said if he did swear, it was because of the “insincere behavior” of Richards. The reason the May 1 conference had a transcript was because of the “tenor” of the April 25 “off-the-record” meeting, he told the appeals court.

MORE: UMich withholds degree, transcript with no hearing

Tarnow laid out his argument again for Schlissel’s appearance in court, including the president’s “ultimate authority” to resolve the case and UMich’s failure to even provide the title of another official with “full settlement authority.”

Schlissel has already violated the rules of Tarnow’s court by refusing to appear as the “client” in the lawsuit at the initial status conference, the judge said:

His attendance at the conference avoids the need to resort to the bureaucratic and lengthy settlement process inherent in university litigation. It is also important for the President to be aware of the demeanor of his legal representative.

He mocked the university’s argument that Tarnow plans to “cross-examine” Schlissel. He doesn’t have to say anything, the judge said: “As with any settlement conference, the talking will be left to the attorneys.”

Conference should be public because of university’s bumbling

The university’s stated desire to protect the settlement talks from becoming a media circus is belied by its own actions, according to Tarnow.

The settlement conference with Schlissel was Tarnow’s attempt to protect everyone from “unnecessary publicity and delay,” yet “the University’s attorneys have refused to participate in good faith,” the judge wrote.

Richards’ refusal to provide the president unless Tarnow put it in a written order has resulted in publicity that “neither helped the University’s image nor contributed to the resolution of this case,” according to the judge. He noted a local legal publication ran an “ambiguous headline” that suggested Schlissel himself was wanted for sexual misconduct.

UMich attorneys look “more concerned with keeping the President out of the public eye” than designing a fairer sexual misconduct process, he said. Tarnow has “bent over backwards” to accommodate Schlissel’s schedule, to no avail.

MORE: UMich’s terrible, horrible, no good, very bad day at the 6th Circuit

It’s true that Tarnow made a “last-minute decision” to hold the settlement conference in public, as opposed to the in-chambers private meeting he had previously suggested.

But the judge said the change was prompted by his desire for transparency and the university’s June 5 motion to dismiss, which “incited confusion amongst the media on whether it was an attempt by the University to avoid the conference.”

The university has “pursued every possible avenue for garnering publicity in this case,” including by using an “improper method” to get the 6th Circuit to intervene, Tarnow wrote. It wasted a month by seeking a “writ of mandamus,” giving the appeals court one day to consider the filing, rather than seeking “interlocutory appeal” of Tarnow’s May 8 order denying reconsideration.

UMich told the Detroit Free Press that Tarnow’s brief showed why the public university “is deeply concerned by the fairness of the proceeding in this case.”

Spokesperson Kim Broekhuizen cited Tarnow’s change of mind on the openness of the settlement conference “less than 48 hours before” as the reason for Schlissel’s backing out. He was “fully prepared” to attend a closed conference, she said, and Tarnow has not explained how an open conference would lead to a faster resolution “than a private discussion between the parties and the court.”

MORE: UMich violated professor’s right to cross-examine accusers

Get ready for ‘explosion of frivolous investigations into protected speech’

Greg Abbott issued broad protections for campus speech a week ago. A few days later, he rendered those new protections meaningless.

Ignoring warnings from a civil-liberties groupand yours truly, the Republican governor signed provisions into Texas law that use criminal law to enforce the Obama administration’s unconstitutional definition of campus sexual harassment.

Their practical effect will be scaring faculty and other university employees into reporting any “sex-based” conduct or speech that may be “unwelcome” to someone at their campus. That includes overheard sex jokes.

SB 212 threatens termination and up to six months in jail for any campus employee who “witnesses or receives information” – that means hearsay – that may count as sexual harassment under this exceedingly broad definition, and fails to report it to the Title IX apparatus.

Those staggering employment and criminal penalties practically ensure that Title IX offices will be flooded with sexual harassment reports, and that students will be subjected to wide-ranging administrative investigations for constitutionally protected speech.

Abbott signed both SB 212 and a related bill, HB 1735, that uses the same definition of sexual harassment and deprives accused students of basic due process. Texas law will conflict with U.S. Department of Education rules if proposed Title IX revisions remain substantially similar in the final published regulation.

MORE: Texas lawmakers approve unconstitutional campus speech restrictions

The purportedly conservative governor has been on notice for three years that broad definitions of sexual harassment are unconstitutional on their face.

In a 2016 op-ed in Abbott’s local newspaper, Executive Director Robert Shibley of the Foundation for Individual Rights in Education noted that an anti-gun protest at the University of Texas counts as sexual harassment under the Obama administration’s Title IX guidance.

Why is that? Because students were waving around sex toys in the “Cocks Not Glocks” protest. It would be shocking if the display of silicone erections and sexually themed chanting were not “unwelcome” to someone on campus.

The new Texas laws now functionally incorporate the Obama administration guidance that the Trump administration’s Department of Education rescinded. The “unwelcome” standard – which has no objective component – was mandated by President Obama’s department in a “blueprint” agreement with the University of Montana in 2013, a move it repeated with the University of New Mexico in 2016.

The non-criminal provisions of the bills take effect in September, while the criminal portion takes effect in January, FIRE’s Tyler Coward writes in a blog post:

This means Texas’s students and faculty will be forced to navigate new, unconstitutional speech codes this academic year that will inevitably lead to an explosion of frivolous investigations into protected speech, self-censorship, and possibly even jail time for faculty members who run afoul of the new law.

Coward, who serves as legislative counsel for FIRE, predicted that the new Texas laws will be struck down in court, since similar speech restrictions “have fallen time, and time, and time again in Texas.”

But in the meantime, he encourages students and faculty to contact FIRE if the two laws result in “deprivation of their free speech or due process rights.”

MORE: Free speech advocates alarmed by Obama’s campus harassment rules

VICTIM-CENTERED, TRAUMA-INFORMED APPROACH DEFIES REQUIREMENTS FOR A FAIR AND
IMPARTIAL TITLE IX PROCESS By Margaret Valois, Esq.

During a Title IX investigation on college campuses, accused students must
bear the lion’s share when dealing with ambiguous and contradictory policies
and procedures. For example, the University of Virginia promises accused
students a “thorough, fair, and impartial investigation.” The sexual
misconduct policy goes on to explain that the investigation will be carried
out by an investigator who also “protects the safety of Complainants and the
University community while promoting accountability.”

In practice, the only party being held “accountable” under this policy is
the accused student. Unfortunately, the average student is not sophisticated
enough to decipher the contradictory promises being promulgated by their
school.

Accused students may receive notice that they have been named in a complaint
via an informal text message. Invited to come by the Title IX office and
discuss the events of a certain evening, an unsuspecting student will likely
go alone to discuss the allegations levied against him, trusting in a
process promised to be fair and respectful for both accusers and the
accused.

What colleges are not sharing with accused students is that the deck is
stacked against them from the minute the complaint is filed. Many schools
subscribe to an increasingly popular approach to sexual misconduct
investigation and adjudication known as “victim-centered” or
“trauma-informed.”

What is a “trauma-informed” investigation? A presentation titled “What It
Means to Be “Trauma-Informed” instructs university investigators, counselors
and hearing panel members to rationalize contradictory statements, memory
gaps, and inconsistent behavior exhibited by complainants as symptomatic of
life-threatening trauma. As a result, all scrutiny is applied to the accused
student.

This approach was promoted by the Obama administration in its 2014 Questions
and Answers on Title IX and Sexual Violence, and in 2015 the Office of Civil
Rights reached a Resolution Agreement with the University of Virginia. This
agreement delineated that institutions are required to provide
trauma-informed training for all parties involved in investigating and
adjudicating sexual misconduct complaints. Failure to do so could result in
the loss of federal funding (i.e., student loan dollars).

Organizations such the Association of Title IX Administrators (ATIXA)
provide training based on trauma-informed ideology. Its guide, The 7 Deadly
Sins of Title IX Investigations, identifies a trauma-informed approach as
the first rule of an effective Title IX investigation. The report identifies
ways in which investigations should support complainants, going so far as to
suggest stress-balls and stuffed animals as therapy for dealing with the
stress of answering questions about the allegations made.

In its victim-centered rush to support complainants, the ATIXA report fails
to explain the real purpose of an investigation: to discover, what, if
anything, occurred that violates the school’s sexual misconduct policy. If
an investigation is approached from the position that a traumatizing event
has occurred and that the accusing student is the person who is traumatized,
then the accused student is already presumed to have caused that trauma.
This model flies in the face of Title IX , which requires “equitable
resolution” of complaints of sexual misconduct.

Consistent with victim-centered ideology, Title IX investigators are known
to include false or misleading information in their reports, in order to
enhance the purported trauma suffered by the complainant, thereby making the
accused student appear guilty. Here’s an example that recently came to my
attention:

During an investigation at a large university in the in the Southeast, the
Title IX investigator included fourteen times in her report that the
Respondent admitted to pinching the Complainant’s nipple. Upon review of the
entire audio recording of the initial interview, it was revealed that the
Respondent never once said the word, “nipple.” The investigator was forced
to correct her report. The investigator also omitted that the Complainant
had kneed the Respondent in the crotch, inflicting serious pain and
humiliation.

“Victim-centered” and “trauma-informed” approaches foster a practically
insurmountable presumption that the complaining student is a victim who must
be treated deferentially so as not to inflict more trauma than what they
have already endured. In contrast, Title IX requires “equitable resolution”
of complaints of sexual misconduct. But as schools are increasingly
employing trauma-informed techniques, that requirement is becoming
unattainable. Only when there is a return to the presumption of innocence
and investigations are carried out to discover the facts and not to protect
purported victims can the Title IX requirement be met.

Margaret Valois is a Virginia-based attorney who has advised both accused
students and complainants in Title IX adjudications.