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U-M Gets A 'C' From Civil Rights Watchdog On Due Process

Report from FIRE examines policies governing student misconduct

The University of Michigan ranks poorly in a new study that grades how top universities in the country ensure that students’ due process rights are honored when they are accused of non-academic misconduct.

The Foundation for Individual Rights in Education gave the University of Michigan a C grade for its non-academic misconduct policies in its Spotlight on Due Process 2018 report, released on Dec. 18. FIRE, as the foundation is also known, gave the university a D for its policies governing students accused of sexual misconduct. The university was among 47 of 53 universities included in the study that received a D or an F.

FIRE rated each university’s procedures based on what it called 10 “fundamental elements of due process,” such as a presumption of innocence, the right to a hearing and the right to appeal a finding. The Philadelphia-based organization awarded points according to how or if a university codified each of the 10 elements in writen policies.

“For each element, institutions received zero points if the safeguard was absent, was too narrowly defined to substantially protect students, or was subject to the total discretion of an administrator; one point if the policy provided some protection with respect to that element; and two points if the safeguard was clearly and completely articulated,” FIRE said in the report.

The University of Michigan scored 12 out of 20 points for its non-academic misconduct policies, resulting in a C. The university does provide safeguards for the presumption-of-innocence standard and the right to be present when allegations are presented to a fact-finder, FIRE said. FIRE also said that the university gives students the right to conduct a meaningful cross-examination of adverse witnesses, but it does not provide other elements of due process, or only partially so.

The university fared worse for its sexual misconduct procedures, scoring 8 out of 20 points, giving it a D. According to FIRE, the university doesn’t fully protect the presumption-of-innocence standard and does not allow adequate time for the accused to prepare for disciplinary hearings, among other shortfalls.

FIRE noted in its report that some universities maintain two separate sets of policies for non-academic misconduct — one for sexual misconduct and one for other cases. The University of Michigan is one such institution.

The university, according to spokesman Rick Fitzgerald, recently updated its sexual misconduct policy, and changes will go into effect in January.

The most significant change includes adding a hearing process and cross-examination, standards which U-M previously did not protect, according to FIRE’s report.

“During the time it has taken FIRE to prepare this report, some institutions may have revised their policies and procedures. Accordingly, this report might not reflect very recent policy changes,” FIRE noted.

The University Record, U-M’s official newspaper, cites a September ruling from the 6th U.S. Circuit Court of Appeals as the reason for updating its policy.

The court’s ruling in Doe vs. Baum said that universities must offer accused students “an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder.”

“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,” the Record reported.

Michigan Capitol Confidential previously reported on a separate 6th Circuit ruling from July that ordered the University of Michigan to provide a hearing for a male student who was accused of sexual assault, citing due process concerns.

The University of Michigan was the only university in the state to be included in FIRE’s report.

“Our findings were troubling; most institutions lacked most of the procedural safeguards we looked for in written policies,” FIRE said.

FIRE added that it’s focusing on due process issues because of the success it’s had in the past with First Amendment issues.

“The dramatic drop in restrictive speech codes in the years since FIRE first began rating university speech policies — and challenging institutions to improve them — has encouraged us to strive towards similarly positive results in the due process context,” FIRE said. “It is our hope that our due process ratings will provide universities with clear criteria for improving the fairness of their student conduct processes.”

In November, the U.S. Department of Education proposed new regulations for how schools handle sexual misconduct complaints, in place of Obama-era Title IX guidance that critics say did not properly protect the due process rights of the accused.