DETROIT _ A series of federal cases in the Midwest is likely to shift the way universities investigate sexual assault claims on their campuses.
On the way out is a process that puts the onus for collecting information on a staff member, who interviews the person making the claim of a sexual assault, the person accused of the sexual assault and any witnesses.
On the way in is more opportunity for the two sides to ask questions of each other, with some judges saying there needs to be a live hearing with all parties present, even if it's through something like Skype.
It's a change being praised by those who think universities have weighted the process in favor of the mostly female students who file the complaints and condemned by those who say the move will have a chilling effect on students reporting sexual assaults.
The reshaping is focused in the U.S. 6th Circuit Court of Appeals and the courts that make up its district. There's been a ruling by the appeals court and one by a federal court in Michigan shaping the movement. Another case is pending before the appeals court, while another case in a federal court based in Michigan is also pushing for the change. All the cases are federal cases, with arguments that the universities are violating the U.S. Constitution's due process protections.
"I think it's a game changer," said Saundra Schuster, an attorney and partner at the NCHERM Group, which advises and trains universities on how to investigate sexual assault cases. "I'm saying to my clients right now, 'If you have a case where you don't have collaborative evidence, you must provide a live hearing. We've got cases with rulings by the full (appeals court) and district courts. ... saying that if the case hinges on the credibility of those involved, they (those involved) have the right to pose questions of each other."
The cases will likely cause public universities to ponder their current approaches, said Kathryn Nash, an attorney with Gray Plant Mooty in Minneapolis. She conducts trainings and investigations for universities.
"I expect the general counsel's offices at public university are having these discussions and weighing what is right for their campuses," she said. "I would expect to see more challenges" in the courts over how public universities provide due process rights to students.
Both Schuster and Nash said schools also are waiting to see if other federal circuits rule on these types of cases. If judges in other federal circuits issue different rulings and standards, the issue could end up at the U.S. Supreme Court.
