Miltenberg: “The Title IX Class At Michigan State,” Simple Justice

It’s a bold move. The first time anyone tries a new legal approach is, almost invariably, a bold move. The law likes precedent, the comfort of knowing that somebody already signed off on something, whether it’s teeth marks as admissible forensic science evidence despite it being neither science nor evidence, or an individual cause of action brought on behalf of a group of students. A class action. Andrew Miltenberg already had two cases on his plate with Michigan State. That’s the same school that concealed Larry Nasser’s abuse of female athletes for decades. Unsurprisingly, the taint, not to mention the liability, of Nasser caused Michigan State to overcompensate by crafting Title IX procedures certain to damn any male accused of any sexual misconduct. … From an inquisition by investigators, who are supposed to be neutral but instead dedicate themselves to “trauma informed” ideology, building the case of the accused’s guilt, demanding a defense before disclosing the accusations, to the denial of a live hearing and deprivation of the right to cross-examine, the process at Michigan State was carefully calculated to bring a smile to then-DoE Office of Civil Rights bureaucrat Catherine Lhamon’s face, prevent her from eliminating its federal funding and appeasing her vicious appetite to ruin a school that gave the accused a tenth of a chance. But the fact that two students had parents with the ability to fund federal litigation against Michigan State presented a nagging problem for Miltenberg. Every male student accused was denied the same due process as his clients, but not every male student had the wherewithal to fight back. Did they not suffer the same denial of due process as his clients? If it was wrong for two, what about the hundreds of other students who, according to the school’s annual Clery Report, suffered the same or similar fates for the same reasons? Are they not all entitled to relief for Michigan State’s denial of due process? … After the Sixth Circuit held in Doe v. Baum that the accused are entitled to a live hearing where they can examine witnesses, actions shifted from the particular facts of any case to the denial of required due process. This could be the game changer.

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