October 25, 2018
Topic: Campus News
The University of Michigan is revising its student sexual misconduct policy and procedures to include an in-person hearing where students involved in sexual misconduct investigations have the opportunity to ask questions of each other and witnesses.
The update to the policy follows a recent ruling of the U.S. Sixth Circuit Court of Appeals 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.
U-M’s updated policy, which is expected to be available later this fall, will include an in-person hearing facilitated by a trained hearing officer. Details are still being worked out, but officials have indicated that students who are parties to a student sexual misconduct investigation — as opposed to their advisers — likely will be responsible for asking questions at the hearing.
“We have carefully reviewed the Sixth Circuit decision, which includes a significant dissent from one of the circuit judges. While we believe that our current, single-investigator model is fair and consistent with prior legal precedent, the Sixth Circuit disagreed,” says Jeffery Frumkin, associate vice provost and senior director of academic and human resources, as well as interim senior director of the Office for Institutional Equity and Title IX coordinator.
“We believe that an appropriate and lawful hearing model is one in which cross-examination is allowed, but in a less intrusive, more trauma-informed manner that allows parties to submit written questions through a neutral hearing officer to ask of the other party and witnesses.
“However, we will move forward with the process that best meets the needs of our community as well as adheres to the new requirement.”
Following the Sept. 7 Sixth Circuit ruling, U-M sought a rehearing from the Sixth Circuit panel that rendered the adverse decision, or from all of the Sixth Circuit judges, to clarify that no student has a constitutional right to a direct cross-examination. That petition was denied.
OIE will continue its investigations but will not issue conclusions regarding policy violations while the university implements the necessary policy changes.
“It’s important that our reporting process be as approachable as possible for all students,” adds E. Royster Harper, vice president for student life. “To that end, we are exploring ways to make certain that we’re accessible to and inclusive of students, while also considering the expansion of alternative resolution options.
“While that process is ongoing, we want to remind our campus community that our support services — including our confidential resources Sexual Assault Prevention and Awareness Center, Counseling and Psychological Services and the University Ombuds — are always available.”
The university last updated its Policies and Procedures on Student Sexual and Gender-Based Misconduct and Other Forms of Interpersonal Violence in February 2018.
Policy changes will be considered interim pending a period of time in which the university can engage the community to provide feedback on the effectiveness of the policy.