The University of Michigan is moving this month into the second phase of community engagement on the umbrella policy for addressing sexual and gender-based misconduct and related procedures that was initially vetted with the community last fall.
A working group that is focused on putting a final policy into effect by July 1 will collect community feedback on a new interim policy and related procedures through a survey, a dedicated email address and a number of targeted community engagement sessions being scheduled for the Ann Arbor, Dearborn and Flint campuses as well as at Michigan Medicine.
The interim policy applies to all students, faculty, staff and third parties across the university community. It went into effect last August to meet requirements under U.S. Department of Education Title IX regulations that were released in May 2020 with a required effective date of Aug. 14, 2020. Because of that tight time frame, the policy was implemented on an interim basis and further community feedback is now being sought.
The U-M Interim Policy on Sexual and Gender-Based Misconduct includes common definitions for prohibited conduct, including sexual and gender-based misconduct and Title IX misconduct, separate procedures for addressing allegations against students and those against employees and third parties, and further clarifies available confidential resources and ways to report misconduct.
The interim policy was developed in 2019 by a team representing all U-M campuses, and was informed by recommendations of an external review of existing campus sexual misconduct policies and procedures and the study of policies at peer institutions.
The team shared the draft policy and procedures extensively with the university community during the fall of 2019 to gather feedback. New Title IX regulations that were released in May 2020 required significant changes to the draft policy before it could be implemented. Even though the new federal regulations narrowed the scope of Title IX violations, the interim U-M policy continues to include a broader definition of prohibited conduct that falls outside of federal Title IX regulations.
A new effort to gather feedback is now underway after operating for the fall term under the interim policy. Members of the working group are now scheduling feedback sessions with groups of students, faculty and staff on all three campuses and at Michigan Medicine. The sessions will run through March 15. The survey is now available and will remain open through March 15.
This effort to gather feedback on the policy is moving forward simultaneously with the university’s work with Guidepost Solutions, a consulting firm assisting the university to implement recommendations made by the firm WilmerHale following its independent investigation of former provost Martin Philbert.
WilmerHale’s investigation into allegations of sexual misconduct regarding the late Robert E. Anderson is ongoing.
One of the most significant changes in the interim policy is the way federal regulations define sexual harassment. U-M is required under applicable law and regulations to have policies and detailed procedures to respond to reports of Title IX misconduct, which includes a narrower definition of sexual harassment, as well as dating violence, domestic violence, stalking and sexual assault as defined by the Clery Act.
Under the new regulations, the Title IX definition of sexual harassment has been changed from conduct that is “severe, persistent, or pervasive” to conduct that is so “severe and pervasive and objectively offensive that it effectively denies a person” equal access to education.
The U-M interim policy still includes a broader definition of prohibited conduct that falls outside of Title IX regulations, including off-campus misconduct and misconduct that occurs in a study abroad program. This broader definition is allowed by the federal regulations and allows the university to cover the same prohibited conduct it had previously.
Individuals with reporting obligations
While the new federal regulations removed references and requirements related to responsible employees, the university policy has retained reporting obligations.
The umbrella policy identifies “individuals with reporting obligations” who are obligated to report to the Office for Institutional Equity information they learn within the scope of their employment regarding prohibited conduct. All individuals with reporting obligations are obligated to report any information they learn about prohibited conduct in the scope of their employment.
Certain university employees (those the federal government sees as “officials with authority” to institute corrective measures) have broader reporting responsibilities and are required to report all information about prohibited conduct they receive, regardless of how and when they learn of the information.
Examples of “officials with authority” include the president and executive officers, deans and department heads, and head coaches. Other individuals with reporting obligations include those serving in vice, associate and assistant roles to executive officers, academic and staff supervisors, most Student Life employees and others.
Employee, student procedures
The interim policy also contains separate sections with procedures for students and then for faculty, staff and third parties.
There are two sets of procedures that apply to faculty, staff and third parties — one for allegations of Title IX misconduct and another for complaints of sexual or gender-based misconduct. Having two processes for employees and third parties is compliant with applicable law and regulations.
The student procedures remain largely consistent with the earlier student sexual misconduct policy. In matters where allegations are made against students, the process will continue to have live hearings, with cross-examination by advisers and the opportunity to appeal for all prohibited conduct. This includes the newly defined Title IX misconduct as well as other prohibited sexual and gender-based misconduct.
Maintaining one procedure for all forms of prohibited conduct involving students ensures that sexual misconduct occurring in a university residence hall will be treated the same as sexual misconduct that takes place in a private, off-campus house.
Students still may voluntarily agree to an adaptable resolution process with approval of the Title IX coordinator.