The University of Michigan’s revised student sexual misconduct policy and procedures include additional options and support for students involved in the resolution process, as well as an in-person hearing where students have the opportunity to ask questions of each other and witnesses.
The new Interim Policy and Procedures on Student Sexual and Gender-Based Misconduct and Other Forms of Interpersonal Violence will take effect on Jan. 9, 2019. All pending cases will be addressed under the new policy.
The update to the policy follows the September ruling of the U.S. Court of Appeals for the 6th Circuit that states when credibility is at issue in student sexual misconduct cases, a public university must give the accused student an in-person hearing with the opportunity for the accused student or their adviser to cross-examine the accuser and witnesses.
Following the ruling, U-M sought a rehearing from the 6th Circuit panel that rendered the adverse decision, or from all of the 6th Circuit judges, to clarify that no student has a constitutional right to a direct, cross-examination. That petition was denied.
“As we comply with the requirements for an in-person hearing, we also have expanded the options and support available to our students impacted by sexual misconduct,” says Royster Harper, vice president of student life.
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“The university recognizes that it is important to take into account the needs of students, and offer the most robust set of resources and options as they seek to resolve these sensitive matters.”
The policy outlines two processes for resolving reports of sexual misconduct: investigative resolution and adaptable resolution.
Under the new policy, a case manager from the Office for Student Conflict Resolution will join the Office for Institutional Equity investigator when they meet with either student — the claimant or respondent — to discuss available resources and processes.
The case manager will serve as a primary contact for both the claimant and respondent, and will be responsible for sharing information, coordinating logistics and connecting the students with resources throughout either process.
The OIE investigator will continue to be responsible for conducting the investigative process.
Under the investigative resolution process, students will have the opportunity to ask questions of each other and witnesses at an in-person hearing conducted by a trained hearing officer.
The hearing officer also will have an opportunity to ask questions of those involved in sexual misconduct cases before making a determination, using a “preponderance of the evidence” standard on whether a violation of the policy occurred. That standard means it is determined to be more likely than not that a violation occurred.
To comply with the 6th Circuit ruling, students will no longer be able to appeal the outcome determination on the grounds that the evidence is insufficient to support the finding.
The new policy also will allow for adaptable resolution options to be used in any case as long as both the claimant and respondent are in agreement, participate voluntarily and the university’s Title IX Coordinator approves.
Adaptable resolution is a remedies-based, structured process between or among affected parties that balances support and accountability without formal disciplinary action against a respondent.
An adaptable resolution process is conducted by a trained coordinator within the Office of Student Conflict Resolution and options include:
• Direct facilitated conversations.
• A circle process with impacted parties.
• “Shuttle” negotiation where parties remain separate and an agreement is explored through a facilitator.
• A circle-of-accountability model, which is designed to provide education and opportunity for the respondent to repair harm without direct participation from the claimant.
“Adaptable resolution represents an alternative to the investigative process and includes the use of restorative options that are designed to eliminate the prohibited conduct, prevent its reoccurrence and remedy its effects,” Harper says.
Additionally, the timeframe for the completion of the investigative resolution process has been extended from 75 to 120 days from the date of a claimant’s interview with OIE through the investigation, hearing and, if applicable, sanctions and appeal.
The revised timeframe is intended to better align with the amount of time necessary to appropriately handle cases under the policy and procedures and take into account the addition of a hearing.
The policy will be considered interim pending a period of time in which the university can engage the student community to provide feedback on the effectiveness of the policy, and after the U.S. Department of Education Office for Civil Rights has issued new Title IX regulations. OCR recently shared proposed regulations and those proposed regulations are currently open to public comment.
To assist in reviewing feedback on the interim policy, a student advisory committee will be created. Applications for this committee will be available in January.
In addition, the Statement of Student Rights and Responsibilities is in an amendment cycle. Through that process, considerations will be explored to align the statement and the updated policy, including the use of the preponderance standard of evidence. Changes to the Statement of Student Rights and Responsibilities will be effective July 1, 2019.
The university encourages anyone with information of alleged sexual misconduct to report to either OIE or U-M Police Department or to the confidential resource Sexual Assault Prevention and Awareness Center.