U-M adopts policy, procedures for addressing misconduct

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The University of Michigan has finalized a policy and procedures for addressing sexual and gender-based misconduct that will add consistency by applying to all students, faculty, staff and third parties across the entire university community.

The U-M Policy on Sexual and Gender-Based Misconduct, Standard Practice Guide 601.89, employee procedures and student procedures, all go into effect Oct. 1 on the Ann Arbor, Dearborn and Flint campuses, including Michigan Medicine. They will replace the interim policy, SPG, and related procedures that were put in place in August 2020.

President Mark Schlissel will address the changes during his remarks at the start of the Sept. 23 Board of Regents meeting in Ann Arbor. The board will meet in person for the first time in more than a year starting at 4 p.m. at the U-M Golf Course. The meeting also will be livestreamed.

“The Board of Regents, the university’s leadership team and I remain sharply focused on continually improving the ways in which we prevent prohibited conduct, support survivors in our community, and promptly investigate reports of misconduct,” Schlissel said. “This policy reflects important feedback from our entire community, including students, faculty, staff and alumni.”

The policy includes common definitions for prohibited conduct, 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 also refers specifically to the Equity, Civil Rights and Title IX Office, which was officially created Aug. 1 to replace the Office for Institutional Equity.

“President Schlissel and the Board of Regents have been focused on making sure we improve our policies and procedures around sexual misconduct for as long as I’ve been on the board,” said Regent Jordan Acker, board chair. “This new policy and accompanying procedures will help us prevent sexual misconduct, but also protect survivors from unnecessary trauma. Although we have more work to do, this is a significant step forward and I want to commend all in the community who have worked to make this change happen.” 

This policy and related procedures include significant revisions for addressing misconduct, especially among employees. Those include:

  • Designating two categories of “individuals with reporting obligations,” who are required to report information regarding prohibited conduct they receive. Each category has slightly different reporting obligations.
  • The addition of an appeals process for employees who are found to have violated university policy regarding sexual and gender-based misconduct as defined by the policy. Since Aug. 14, 2020, appeals have been available for Title IX misconduct, as defined by the policy, and that is now being expanded.
  • All appeals will be decided by an external reviewer. In those instances in which corrective action is taken, employees will continue to have the opportunity to grieve the action using already available grievance processes.
  • A pilot program for the use of adaptable resolution under some circumstances for employees who wish to do so to resolve allegations of misconduct through various adaptable resolution practices rooted in restorative justice. This resolution option has been used effectively with students.
  • Giving students the option to use a university-provided adviser (typically attorneys at outside law firms) earlier in the ECRT investigative resolution process instead of just in the hearing stage.

The new policy is an outgrowth of work that goes back to 2019 when a team representing all U-M campuses was appointed to develop the policy and procedures. That work was informed by recommendations of an external review of existing policies and procedures and the study of more than 20 policies at peer institutions.

“We want to be a place where those who report misconduct can feel supported, believed, respected and cared for; where education and prevention efforts are prioritized and protection from retaliation is the standard and accountability is the expectation of our community,” Acker said.

“Our firm resolve is that all of these actions combined will place the University of Michigan on a path to becoming a national leader and an example for other universities.”

Individuals with reporting obligations

Designating “individuals with reporting obligations” also was part of earlier versions of the policy, and the new policy seeks to clarify the scope of reporting obligations.

Under this new approach, university officials who have authority to institute corrective action — regents, executive officers, chancellors, deans, head coaches and others — are required to report all information about prohibited conduct they receive, regardless of how or when they learn of the information.

Other “individuals with reporting obligations,” including assistant and associate deans, other administrators and supervisors, and faculty members who accompany students on university-related travel abroad, are required to report information about prohibited conduct that they learn in the scope of their university employment, but there are specific scenarios in which a disclosure is exempt from reporting obligations (sexual misconduct awareness events).

Employee procedures

The procedures for faculty, staff and third parties will continue to include two distinct investigation processes as they did under the interim policy: one for allegations of Title IX misconduct and another for complaints of sexual or gender-based misconduct. 

Formal complaints that an employee has engaged in sexual or gender-based misconduct will continue to be adjudicated through the process in which ECRT conducts the fact-gathering, analyzes the evidence and makes a determination as to whether the policy was violated. 

New to the process starting Oct. 1 is an expanded opportunity to appeal a finding for procedural irregularity, newly discovered evidence or bias that affected the outcome.

This appeals process now applies to findings of sexual and gender-based misconduct, and continues to apply to findings of Title IX misconduct. This change is in response to community feedback. Corrective action is not subject to appeal, but it can be challenged through the existing grievance process.

For Title IX misconduct, there also is a 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 continue to provide advisers to any party who does not have one to conduct the cross-examination of the other party or any witnesses.  

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 Title IX of the Higher Education Act, Title VII of the Civil Rights Act and applicable state law, 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.

Additionally, the university will offer a pilot program for the use of adaptable resolution, which includes a spectrum of facilitated, structured and adaptable processes that seek to identify and meet the needs of the complainant while providing an opportunity for the respondent to acknowledge harm and seek to repair harm (to the extent possible).The procedures used in this pilot will be similar to what has been used successfully in an increasing number of student cases. 

This pilot program will be offered on a limited basis — from Oct. 1, 2021, to June 30, 2022 — and the continued use of adaptable resolution will be assessed at that time. The Office of Student Conflict Resolution, which conducts adaptable resolution processes for students, will also conduct the processes for employees during the pilot.

Student procedures

The student procedures remain largely consistent with the earlier versions of the student sexual misconduct procedures. 

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 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.

New to the student procedures is the availability of university-provided advisers earlier in the investigative process. Under earlier versions of the student procedures, advisers — typically attorneys from outside the university — were available to students only during the hearing, which comes at the end of the investigative process. Now students are able to engage with advisers throughout the investigative process. This change was in direct response to community feedback, including from students.

Students still may request and voluntarily agree to an adaptable resolution process with approval of the Title IX coordinator. This has proven to be an effective way of resolving many types of cases.

Next steps

The working group that developed the new policy and procedures will begin to review any other SPGs or related policies to determine whether they may need to be revised. It also will develop new training in collaboration with the ECRT staff and other campus units.

Already in development is a training component for “individuals with reporting obligations” that builds on previous training modules.

Additional U-M actions

In addition to finalizing the policy and related procedures, the university continues to take a wide range of additional steps to better prevent, identify and respond to sexual and gender-based misconduct from the university community.

Annual reports: The university’s Title IX coordinator will continue to produce an annual report detailing the university’s response to reports of prohibited conduct involving students, employees or third-party vendors. The fiscal year 2021 report is expected in October.

Culture change: A campuswide working group on culture change will lead an effort to establish workplace behaviors and norms to “create an environment of mutual respect and accountability that is free from retaliation, where everyone can feel safe to report misconduct and feel supported throughout the process.” The working group will oversee development of a statement of shared values and desired behaviors through a process that includes sessions this fall to engage stakeholders and seek input. A website also is under development.

ECRT formation: The new Equity, Civil Rights and Title IX Office is taking shape with expanded resources dedicated to support and prevention while continuing to investigate allegations of misconduct and discrimination. Hiring is underway to fill key positions that will serve and enhance the mission. The office reports directly to the president under the continued leadership of Tamiko Strickman, who will serve as special adviser to the president and executive director of the new unit. A new website for ECRT also is under development.

Ethics and compliance: The university remains committed to examining its compliance and ethics function across the university to consider whether it is aligned with best practices around the country. A working group has been established to facilitate this review.

Emeritus revocation: In July, the university revised its policy on emeritus status for retiring faculty members to include, for the first time, a process to revoke that status from faculty members for misconduct or other compelling circumstances.

Protection from retaliation: Work continues on a new policy that will strengthen and clarify the university’s position against any form of retaliation. The new policy on sexual and gender-based misconduct prohibits retaliation against anyone who reports prohibited conduct, but a team continues to develop a clearer policy explicitly prohibiting retaliation across the university community.

Reporting channels: The university’s website was updated in July to improve access to ways in which sexual or gender-based misconduct can be reported to police or to the university. The new approach makes it easier to find contact information for where to report on each of U-M’s three campuses, and provides a link to online reporting tools.

Supervisor-employee relationships: In July, the university put in place a best-practices policy that prohibits supervisors from initiating or attempting to initiate an intimate relationship with anyone they supervise. A supervisor who violates the policy could face dismissal. 

Title IX advisory group: The Title IX Coordinator has established an advisory committee of students, faculty and staff to provide perspectives and input on policies, procedures, prevention efforts and other matters related to sexual and gender-based misconduct.

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