UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ JOHN DOE, │ Plaintiff-Appellant, │ v. > No. 20-1043 │ │ MICHIGAN STATE UNIVERSITY; ROBERT KENT, RICK │ SCHAFER, and ARON SOUSA, M.D., in their individual │ and official capacities, jointly and severally, │ Defendants-Appellees. │ ┘

Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. No. 1:19-cv-00226—Paul Lewis Maloney, District Judge.

Argued: October 23, 2020

Decided and Filed: February 25, 2021

Before: CLAY, GIBBONS, and NALBANDIAN, Circuit Judges.

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COUNSEL ARGUED: Eric J. Rosenberg, ROSENBERG & BALL CO. LPA, Granville, Ohio, for Appellant. Scott R. Eldridge, MILLER, CANFIELD, PADDOCK, AND STONE, P.L.C., Lansing, Michigan, for Appellees. ON BRIEF: Eric J. Rosenberg, ROSENBERG & BALL CO. LPA, Granville, Ohio, for Appellant. Scott R. Eldridge, Kamil Robakiewicz, MILLER, CANFIELD, PADDOCK, AND STONE, P.L.C., Lansing, Michigan, Brian M. Schwartz, MILLER, CANFIELD, PADDOCK AND STONE, P.L.C., Detroit, Michigan, for Appellees.

GIBBONS, J., delivered the opinion of the court in which CLAY, J., joined, and NALBANDIAN, J., joined in the disposition. NALBANDIAN, J. (pp. 18–23), delivered a separate concurring opinion. No. 20-1043 Doe v. Mich. State Univ., et al. Page 2

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OPINION _________________

JULIA SMITH GIBBONS, Circuit Judge. This case arises from the investigation and eventual expulsion of John Doe from the Michigan State University College of Human Medicine (“CHM”) for allegedly sexually assaulting two women, Roe 1 and Roe 2, on the night of the school’s formal dance.

The two women reported to the university that Doe had sexually assaulted them, after which the university began an investigation led by an outside consultant. The consultant determined that the evidence supported a finding that Doe had indeed sexually assaulted the women. Then, the CHM convened a panel, which affirmed the findings without an in person hearing. While this process was ongoing, we released Doe v. Baum, holding that universities must offer an in person hearing with cross-examination in cases where the factfinder’s determination depends on witness credibility. 903 F.3d 575, 581 (6th Cir. 2018). Accordingly, the CHM gave Doe an in person hearing, conducted over the course of three days before a Resolution Officer, who was an Administrative Law Judge selected by the university to oversee the hearing. At this hearing, Doe was permitted to testify and, through his attorney, to cross- examine Roe 1 and Roe 2. The Resolution Officer did not require Roe 1 to answer every question that Doe’s attorney posed to her. Both Doe and his attorney were present throughout the entire hearing.

After considering the credibility of the witnesses including Roe 1, Roe 2, and Doe, the Resolution Officer again found that the evidence supported a finding that Doe had sexually assaulted the women. After these proceedings, and several years after the alleged sexual