The American Civil Liberties Union (ACLU) of Michigan and the ACLU Women’s Rights Project on Thursday called for revisions to the University of Michigan’s student sexual misconduct policy via a letter sent to administration officials.
The policy in question was revised in 2018 to allow students to be given “an in-person hearing” if they are under investigation for sexual misconduct. In a hearing, they would have the opportunity to “ask questions of each other and witnesses,” according to an October 2018 university release.
The policy update came after the U.S. 6th Circuit Court of Appeals ruled in September 2018 that public universities are required to give students accused of misconduct an in-person hearing, with the opportunity for students or their advisers to question the other party and witnesses.
In its letter, the ACLU writes that U of M’s policy based from that ruling “risks deterring complaints, traumatizing those who go forward with complaints, and creating a hostile campus environment, all in contravention of Title IX. Most universities do not require cross-examination to be conducted by the parties themselves.”
Bonsitu Kitaba, deputy legal director of the ACLU of Michigan, said in a statement that the university “should not require those who allege sexual violence to undergo cross-examination conducted by the very individual accused of having committed the assault. The only people conducting cross-examination in these very difficult hearings should be representatives with professional training.”
Live hearings and cross-examination are fundamental to upholding due process rights, the 6th Circuit Court wrote. But university sexual misconduct policies adapted from the ruling could be re-traumatizing for sexual assault survivors who do not want to see or interact with the person they have reported, the ACLU said.
“The University of Michigan’s policy is unnecessarily traumatizing for those who report sexual assault and could deter survivors from coming forward,” said Sandra Park, a senior staff attorney with the Women’s Rights Project. “It could also contribute to a hostile environment on campus in violation of Title IX.”
The 6th Circuit Court’s ruling stems from a case involving a U of M male student who was accused of sexual misconduct by a female student. In a lawsuit, he claimed the university denied him his due process and Title IX rights by not allowing him to question the student brought the allegations against him.
“Without the back-and-forth of adversarial questioning, the accused cannot probe the witness’ story to test her memory, intelligence or potential ulterior motives,” the 6th Circuit Court wrote in its opinion.
A University of Michigan spokesperson could not be reached for comment at the time of publication.