The University of Michigan has finalized an interim umbrella policy for addressing sexual and gender-based misconduct that would apply to all students, faculty, staff and third parties across the university community.
The policy will go into effect Aug. 14 on the Ann Arbor, Dearborn and Flint campuses, including Michigan Medicine, in order to meet U.S. Department of Education regulations.
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. It differs in significant ways from the draft policy shared widely last fall, primarily because of new federal regulations released in May.
“Improving how we prevent and address sexual and gender-based misconduct in our community must always remain a foremost priority at U-M,” said President Mark Schlissel. “We strive to do better, always, and creating an umbrella policy that covers all members of the U-M community is one key measure we are implementing.
“This interim policy includes common definitions for prohibited conduct 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 informed by recommendations of an external review of existing campus sexual misconduct policies and procedures and the study of more than 20 policies at peer institutions.
The team shared the draft policy and procedures extensively with the university community during a six-week period in the fall of 2019, gathering feedback from more than 70 stakeholder groups and individuals from across all campuses and through an online survey.
While the university originally planned to implement the policy in early 2020, the university decided in January 2020 to delay implementation until this summer due to the Department of Education’s pending release of the final Title IX regulations. Those regulations were released in May with a mandated implementation date of Aug. 14.
Moving forward this fall, the team that developed the policy will reach out broadly across all campuses to share details of the policy and procedures. Beginning in early 2021, the team will formally engage the university community to solicit additional feedback before the policy is finalized by July 1, 2021. The formal processes for gathering feedback will be shared later this year.
Separately, the university will continue to carefully consider the recommendations made by the WilmerHale law firm 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 that new 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.
Because of that more narrowly focused definition of Title IX misconduct, the new U-M interim policy includes a definition of Title IX misconduct to meet federal regulations and a broader definition of prohibited conduct that includes sexual and gender-based misconduct that falls outside of Title IX regulations.
The interim U-M policy continues to prohibit the more broadly defined sexual misconduct that is not Title IX misconduct, including off-campus misconduct and study-abroad misconduct. This broader definition is allowed by the federal regulations.
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 regarding prohibited conduct. The policy defines these individuals as “officials with authority” to institute corrective measures as required by the regulations, as well as many other positions that were previously designated as responsible employees under the previous draft policy.
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 and others.
All individuals with reporting obligations are obligated to report any information they learn about prohibited conduct in the scope of their employment, but “officials with authority” 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.
The procedures for faculty, staff and third parties now include two processes: one for allegations of Title IX misconduct and another for complaints of sexual or gender-based misconduct. For employees covered by a collective bargaining agreement, the university will initiate discussions on how to implement the new federal regulations within those agreements.
Complaints that an employee has engaged in sexual or gender-based misconduct will continue to be adjudicated through the process in which an OIE investigator conducts the fact-gathering, analyzes the evidence and makes a determination as to whether the policy was violated. If a finding is made and corrective action is taken, staff and faculty may grieve that corrective action through the applicable grievance procedures.
New to the employee procedures — and only for Title IX misconduct — is the provision of a live hearing, cross-examination by advisers and an opportunity for both parties to appeal the hearing officer’s finding as required by the federal Title IX regulations.
The university will provide advisers to any party who does not have one to conduct the cross-examination of the other party or any witnesses. The advisers will be volunteers, similar to the volunteers used in other employee processes, including the staff and faculty grievance process, where employees volunteer to serve as members of a grievance panel.
The exception to the live hearing process for Title IX misconduct is for patient complaints, which will include a hearing in which the parties will be able to ask questions in writing, through the hearing officer, and without university-provided advisers.
Having two processes for employees and third parties is compliant with applicable law and regulations. It also affords the university sufficient flexibility to meet its obligations under both Title IX of the Higher Education Act and Title VII of the Civil Rights Act, while also meeting its commitment to ensure a safe and non-discriminatory campus community.
All resolution processes continue to use a “preponderance of the evidence” standard.
Other new aspects under the employee procedures include identification of witnesses and notification of corrective action to the parties involved.
The student procedures in the interim umbrella policy remain largely consistent with the current interim student sexual misconduct policy.
In matters where allegations are made against students, the process will continue to have live hearings, with cross-examination 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 that occurs in a university residence hall will be treated the same as sexual misconduct that takes place in a private, off-campus house.
New to the policy, as required under the new federal regulations, is that the cross examination will be conducted by a student’s adviser. The university will provide advisers to conduct cross-examination for those students who need them. Advisers appointed in student hearings will be outside attorneys provided by the university.
All resolution processes continue to use a “preponderance of the evidence” standard.
Students still can voluntarily agree to an adaptable resolution process with approval of the Title IX coordinator.
Student claimants and respondents continue to have the opportunity to appeal the finding and also appeal the sanction as clearly inappropriate or disproportionate for the conduct for which the person was found responsible.