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In the past academic year, the Office for Institutional Equity, the entity on campus charged with investigating complaints of discrimination and harassment, has been widely talked about on campus. After a ruling by the Sixth Circuit Court of Appeals in September 2018, the University had to change its student sexual misconduct policy regarding student sexual misconduct complaints to include an in-person hearing between the accused and the accuser.
In October 2018, The Daily published an article following a student survivor of sexual assault’s painful experience going through OIE’s reporting process. In November 2018, The Daily investigated the University granting Music, Theatre & Dance professor David Daniels tenure after a student reported an instance of Daniels’ sexual harassment to OIE.
In light of this heightened conversation surrounding OIE and the reporting process, The Daily sat down with Jeffery Frumkin, OIE interim senior director, and Elizabeth Seney, OIE senior associate director and interim Title IX coordinator, to talk about OIE’s mission, its new policy, its investigator training processes and other areas of interest.
The Michigan Daily: What would you say OIE’s overarching mission is in helping the campus community? What are the office’s priorities in investigations?
Elizabeth Seney: For the first question, I would say the overarching mission really is to make sure that the University is responding fairly and appropriately to concerns that exist. Then, of course we also have a role in preventive and educational work as well. So I wouldn’t limit our overall mission to just responding to particular concerns, but I would say that is where we spend a lot of our time and efforts and that’s a significant priority. And that really is in making sure that the process is designed and conducted in a way that there’s broad access to make reports, broad access to engage in either an investigative process or whatever might be the appropriate and requested resolution, and that all of those processes are both legally compliant but also meet the needs of the community, so they’re fair. People are being treated with respect throughout the process … not causing more harm as much as that is possible. I would say that’s the overall mission.
(Regarding OIE’s priorities in investigations,) that’s a little bit of a difficult question because I would say our priority of course is always to address all of the matters, right. And as quickly as possible, which is difficult to do, especially as we’ve had really significant increases over the last couple of years and the number of reports that we’ve received, and to do them again in that fair and appropriate way, make sure that people are supported. We are not advocates; we’re neutral, so we’re not advocates for anyone, but making sure that people do have the information and the ability to connect with resources that they might need for support. And then at the same time, of course, when things come in, we have to assess things like, is there an immediate safety threat? What is the impact on our community? Is there a risk of ongoing and continuing harm to members of the community?
And so we have to look at that and assess those things. So of course, that doesn’t mean that sometimes things come in that need a more immediate response. We’re never wanting to drop anything or let anything fall through the cracks or drop off the plate in order to do that. But that does necessarily mean that if something comes in and it’s an urgent, recent (allegation), there might be an immediate safety issue. We need to drop everything we’re doing to call the police. We might need to reach out to someone and make sure that there are appropriately connected with officers at other places pretty quickly. There’s sometimes some actions or investigations that we need to move forward because we need to address potential ongoing issues.
Jeffery Frumkin: I think we spend… an appropriate amount of time in the initial assessment of the complaint that comes in. Oftentimes, there’s a third-party person who’s reporting it. And so we try to get in touch with the person that it’s about. They may or may not want to talk to us. We still have to go through the same kind of assessment that is, is there something that needs to be looked at further either from a safety standpoint or from a policy violation standpoint? So it’s not as “clean” as, “I feel that I have somebody has violated the policy against me and I’m filing a complaint.” Oftentimes a complaint comes much farther down in the process. But yet there is still work being done trying to get to that point.
TMD: On campus, you’re mainly associated with sexual misconduct investigation — that’s where most of the conversation is. What else does OIE do?
ES: So the only student cases that we address are the sexual and gender-based misconduct. But we also do all of the discrimination and discriminatory harassment complaints related to faculty and staff. So that would mean any protected class identified under the University’s nondiscrimination policy: age, race, color, religion, national origin, disability, veteran status, height, weight, marital status, all of those protected classes that are identified if someone has … all of those things … then those would be things that we would look into. And just like with the student sexual and gender-based misconduct, that might mean an investigation. Sometimes we do climate assessments of particular areas … if a staff member files a grievance through the staff grievance process, they could do that instead of filing a complaint with OIE, particularly if they have other concerns that might not relate to one of those protected classes.
TMD: Can you describe the process once a claimant or complainant files a complaint or claim, specifically noting this increased use of adaptable resolutions?
The Daily created a flow chart summarizing Seney’s explanation of OIE’s process.
JF: And how many of these have we actually been able to do?
ES: One of them has been completed so far.
JF: So it’s that longer process as well at the court order last October.
ES: Well, right. It wouldn’t generally take that one, but of course, because we had cases that were open at the time that we’ve had to revise the policy and the court had ordered us to change the policy including for those cases.
JF: We had to ramp up for the new policy. Fortunately or unfortunately, cases that were in queue just had to be put on hold until the new policy was up and running.
TMD: How are OIE investigators trained? What is that process like?
ES: … One of the first things is to spend some time looking at case files and reading reports and going through how an investigation happens, reading what the analysis is and why, going to talk to the investigator to talk about any questions, or what about this piece of it, or they might agree or disagree or whatever it might be. At the same time that they’re doing that to familiarize themselves with that in a real case kind of way. They also will shadow other investigators. So if parties or witnesses are comfortable, they would sit in on interviews, they might help in preparing those statements and have someone else, the more experienced investigator look over the statement. They would work closely with investigators that are already in the office and the assistant and associate directors and senior director to walk through cases.
… Then amidst all of this we have materials that are a combination of University policies, some documents that we’ve put together outlining what the standards and principles are behind these investigations and these processes, and things like government guidance and all of that. So people are getting a well-rounded expertise in the legal framework, in the things that have come from our particular policies and also our institutional values. So this might not be written into a policy, but an institutional value, obviously, is we want to treat people with respect. We want people to feel comfortable when they’re coming in to meet with us and to feel like they’re being heard and to be heard. So we want to do those things.
… And then there’s lots of external sources that we use for training too when someone starts out, but also on an ongoing basis. So things like webinars, attending conferences, attending trainings. We might have someone come in sometimes to provide some education and some training or continuing education on an area of particular expertise. For example, we had someone come in related to intimate partner violence when that became part of the scope of the policy. So that’s a lot of what it looks like at the beginning, but then that continues as well.
TMD: Throughout this, is there any kind of sensitivity training?
ES: There is — I would say that’s woven throughout it. So that’s definitely part of the written materials. That’s definitely a strong part of the conversation that when you’re sitting in, when an investigator is sitting in and when they are taking the lead that the other staff would be talking about the more experienced investigators, the assistant director, associate director would be talking about those things … So there’s not a point where we sit down and say, okay, now for 90 minutes we’re going to talk about things to say and things not to say.
… And typically, I mean, when we’re hiring someone, they generally — we hope and, and this has been the case, thankfully — want to do this work because they already know why it’s important and they think it’s important for it to be done well. But that’s still not something that we would just assume that everyone knows or is experienced with. This is a different, again, people have come from different educational and different professional experience backgrounds. … But that’s definitely something that we talk about at the very outset.
… This is not my original thought, so I’ll, I’ll credit it to our last, our most recent senior director of Pam Heatlie. She’s said this more articulately than I probably will. But this really, I feel like resonates with probably everyone in the office, is that you can do this work. And as I said, it’s compliancy … and you can do this work in a way that’s compliant but not done well. And it’s really important to us to not just check the compliance boxes, but to actually do it well. So I think that’s actually one of the very initial conversations about how all of the interactions need to go.
JF: The interview process itself involves a small public presentation. So we get an opportunity to see how the individual is interacting outside of the search committee setting. In some cases, it has been very determinative one way or the other as to whether or not we think the person can do more than just what are the facts. Because you are dealing with human beings, and at various levels in the continuum. Students or faculty and staff depending on what the case is, who have a problem, and they want somebody to help them with the problem. And we’re also dealing with people who are maybe scratching their head as to why they’re being called in there. Plus the witnesses in between. So yeah, it’s important.
TMD: How do you handle situations of investigators mishandling cases?
ES: So mishandling cases could mean any number of things. So, if a concern is brought to our attention, and certainly it’s the case that these are not pleasant things. So no one is going to be like, “Oh, that was a great time. I’m super glad that I got the opportunity to go through that process.” No one on any side of it feels that way, no matter what. It can be done the best it possibly can and it’s still not going to be pleasant. Having said that, of course we want to do the best we can to mitigate the extent to which it is additionally unpleasant, beyond it’s an inherently stressful situation. So all of that is to say that it is not uncommon that someone might have a concern or feel sort of unhappy and that might be general or it might be about one specific aspect. For example, if they felt like someone said something to them that was offensive or they didn’t feel respected in an interaction. That is definitely feedback that we welcome and want.
I think it’s really important for us to have the opportunity to make something right if we have made a mistake, and to learn from, if it’s something that’s applicable. I think people have different preferences about different things and there will be some things that might feel bad or someone might think is inappropriate and someone else might actually find that to be supportive and helpful and vice versa. And having said that, I appreciate if we can get that feedback so that we can know about it and address it. So when those concerns are brought to our attention, we look pretty carefully at what has happened… If we find that we have made a mistake in some way, I think it’s hard to answer to that sort of globally what we would do, because I think it depends on the mistake. So if we’ve made a mistake that’s impacted a case, that would certainly be something that we would need to remedy in a pretty tangible way. If it’s more about something that has happened where an interaction wasn’t as comfortable for someone as it could have been, then I think we would want to address that, but it would also depend on what they would want. Would they like to have a chance to talk to the investigator about it and express how they felt about it? Would they like to just have a different investigator? Where are we in the process? So it really depends on the specific circumstances, but I would say I think it’s really important.
JF: I think I’ve had, since I started back in October, probably four, maybe five, either complainants or respondents, a request to come talk to me about some aspect of the of the process. Each one has its own circumstances, but they kind of fall into two categories. One is procedurally, the investigator made a mistake. And then the other one is they don’t like the outcome. Procedurally, if an investigator has made a mistake, the investigator and I will talk about that before the individual comes in. I have an operational standard, which is the truth is as bad as it gets. If we made a mistake, we’re going to own up to it and we’re going to admit it. If it’s had, as Elizabeth said, a material impact on the case, we’ll go back and try and correct that and its implications as much as possible. And I apologize. Sometimes that is all that is necessary. Other times people decide they want to complain to others in the University, that’s fine. We have those conversations face to face. And usually the investigator is in the conference with me. The other one, the other category is when they say, well, you just got it wrong. There’s not much we can do about that other than to listen. We’re not going to re-litigate, to use that term, unless there’s some new material piece of evidence or information. And of course we will take that and look at it. If somebody has come in to complain that they have been sexually harassed or discriminated in some way and they’re told that whatever happened, it didn’t rise to the level of violating our policy, they don’t like to hear that.
But that’s a responsibility that we have is that, is to be clear that if everything the individual has said to us is absolutely true, and yet in our judgment, and there’s … two or three different levels of review on this. If everything the person said is true and yet it still doesn’t rise to the level of whatever the standard is in the policy, then we’re not going to say that the policy’s been violated. That doesn’t mean that what happened to the individual didn’t happen. Those are tough conversations to have and we recognize that.
TMD: In general, so not counting when you had to leave cases open while you revised the policy, what is the ideal timeline of an investigation?
ES: So we have timeframes laid out in the policy right now on a student sexual misconduct policy for whole, start to finish an investigation, any sanctions, any appeals, et cetera. I think that whole process is 120 days. What we used to have in the policy has been 60. At one point it was 45, which was based on guidance from the federal government that they felt that schools should be able to investigate cases, sanction if there’s a finding of a violation and hear any appeals in 60 days.
In most cases, 60 days is not realistic. And so we have had that in our policy. We would be transparent with people up front that that is absolutely what we’re striving for. It very well may not be the case. So now we’ve, we’ve changed those timelines to reflect that we haven’t taken anything out of the process and we have given people longer to review (the) preliminary report and evidence file and we have this whole extra step of a hearing. And so it’s necessarily, it’s going to take longer. And this is one of the things about the hearing model. That is what it is. We try not to have to go to a hearing model as an institution, and have a ruling that we have to. So it is longer than that typically. And I would say we still have that conversation at the outset of speaking to people. It’s really hard and this is, it’s frustrating for us. I’m 100 percent sure that it’s much more frustrating for the people who are participating in this not as their job like it is for us, but because it’s stressful for them, they’re in it, they’re in the middle of it, it’s their life and they’re trying to balance all of the other things going on in their life at the same time with this hanging over their head, whatever their role in it is.
… But we’re still working on getting caught up in terms of staffing resources to make sure that we can handle the case load that we have. And you know, certainly with #MeToo, with Larry Nassar, I think it’s probably safe to say that’s contributed to an increase in case load. So that’s great. We don’t want to ever say we have too many cases right now, so we’ll call you back in three months and then maybe you can report then. We’ll take all of the cases. But then that does mean that they might all take a little bit longer. And then in any given case, there might be requests for extensions or law enforcement holds or unavailability of a witness who has super critical information or whatever it might be.
So that’s a long answer to a short question. The short answer is we’re always driving for 120 days. It’s often going to be longer than that. We just try to do our best to stay within it and be transparent with people about it.
TMD: How frequently do you keep the complainants and respondents updated?
ES: So this is part of, I think something that’s great about having the OSCR case manager, is I think that we will able be able to really improve and make that better. So we’ve always tried to do that sort of regular intervals. If we said we’re striving for 60 days and it’s getting to be 60 days, then we are going to want to check in.
There’s regular check-ins throughout the process anyway. At a minimum because of the process. So I’m sending you your statement, I’m sending you the preliminary report, whatever it might be. We also check in at points like, “Spring Break is coming up, if I have something for you, are you going to be available? Just want to let you know where the case is going,” all of those things. So we try to do that pretty regularly and we also encourage people, they should feel free to reach out to us, too, even though we’re trying to proactively keep them involved. And having said that, there are times when you’re investigating a case where there might be a long period of time where you’re talking to witnesses and you’re working on it every day … I know I’m working on it every day cause here I am doing it. I’m thinking about this case all day, every day and the parties might be thinking, why haven’t heard from her in two weeks, what’s going on? So we try to stay on top of that… We do try to encourage people if they want updates to check in, but we also, the OSCR case manager will be doing quite a bit of that now, which I think might be helpful. For parties’ comfort, in reaching out to the case manager that’s a little bit more removed from the actual investigation process, and that also might create a little more space for some more regular check ins.
Anyone who’s moving right through an investigative resolution or an adaptable resolution, they have this primary point of contact where they can say, “I need an interim measure, I need an academic accommodation. Where is my investigation? I have questions about this process.” So we’ve always tried to do that check-in and the investigators have always been able to refer people to different resources.
TMD: Do you approach things differently if the respondent is a University faculty or staff member versus a student? On that note, at what level of an investigation would you inform the supervisor of a faculty or staff member of the investigation?
ES: I would say yes. There’s, at this time, a different policy and it’s a slightly different procedure. (On the faculty side,) there’s not hearings. We identify witnesses on the student side. The witnesses at this time are generally not identified with faculty and staff. And we have some different obligations about moving forward. So if we learn that a faculty or staff member is accused of engaging in sexual harassment, we have to take some steps to address it. What that looks like can depend. It may or may not include a formal investigation and we may or may not have enough information, but we don’t have as much ability under our legal framework to honor someone’s request that we not move forward like we can on the student side.
So if we’ve opened an investigation into a faculty or staff member, we would let the appropriate HR person and the appropriate supervisory authority over the respondent know. So it’s not usually a direct immediate supervisor, but a couple levels up. So for example, if it’s a faculty member, it’s the dean of their school or college. We do this anytime that we’re going to be reaching out to a respondent. So if we’re opening an investigation or if we have serious sexual harassment concerns about a faculty member, even if we don’t necessarily know who the complainant is or we don’t have a lot of specifics, we typically would notify the appropriate person in the Provost’s Office, the dean or appropriate person in the Dean’s Office. Sometimes it’s an associate dean, the general counsel’s office and then the appropriate HR. So for a faculty member the person would be academic human resources. (We tell them) about the general information about what the concern is, who the respondent is and what we’re planning to do to follow up.
We usually let them know with the outset and then again at the end. And an investigation report would be issued to, again, that dean or if it’s a staff member, sometimes it’s the dean or it might be a program director or director of a unit if it’s not academic, just depending on who it is. So again, it’s typically not a direct supervisor, but it’s the highest level in unit supervisory authority over the respondent.
TMD: When do you decide not to further investigate a case?
ES: I would say there’s generally three categories of where that would happen. One is that we don’t have enough information. So this could happen if we don’t know who the complainant is, we don’t have enough specifics about a concern. That doesn’t mean that we wouldn’t do anything. We would try to get more information, but we might ultimately sometimes get to a point where we say we just don’t have enough information to open an investigation and reach a finding. We just don’t have enough information to reach a finding. The other thing, and this would happen more on the student side than the faculty or staff side, sometimes you have a complainant who says, “Here’s what happened to me. I would love to have it investigated. I don’t know who did it.” “For a variety of reasons, someone stalking me and I can’t tell who it is.” “I was groped at a party and I don’t know the person,” whatever it might be. And in that case we would say, we talked to them about the processes and the options we collect, connect them with the police if that’s appropriate, which often is in those circumstances, and make sure that they know and that the police know if they’re working with them to let us know if anyone’s ever identified. And so that we can sort of check back in with them about it if they would still like to move forward. We can and have done things to try to identify who a respondent might be. But again, that’s not always possible.
(Second), if we do know who the complainant is and they ask us not to investigate, and again, if the respondent is a student, then we’re most often able to say, “You can change your mind at any time. Please let us know if there’s additional concerns,” but (we) grant that request and not move forward with an investigation, as long as we haven’t gotten other complaints about the same person and things like that. On the faculty and staff side, we are pretty transparent with people that we’re going to need to do something. It depends on how much information we have and what the concerns are. So if someone is saying this person makes inappropriate comments, they’re telling dirty jokes in the lunchroom and it’s making me uncomfortable, they’re not directed at me, but it’s an uncomfortable situation, and I really don’t want them to know I raised the concern or I really don’t want to be involved in anything moving forward — that might be something that we could do with a training for the whole area. We sometimes do one-on-one trainings, let people know that concerns have been raised, talk to them about what the concerns are and do some education around appropriate workplace or whatever interactions. So there might be other things that we can do or we might have to move forward with an investigation, depending on the circumstances.
The third category …sometimes people will come forward with concerns and they’ll say, “Here’s what happened.” And it turns out that what they’ve described, even if we have all the evidence in the world to support it, and so there’s not a question of having enough evidence to conclude that it occurred, but it doesn’t fit into a definition under the policy. Maybe it was one comment one time and it wasn’t severe or persistent or pervasive enough to create a hostile environment. Or, another time that we wouldn’t investigate is we might get a report that a student was stalked or sexually assaulted or whatever it might be … experienced some type of prohibited conduct, but by someone who has no connection to the University at all. … We can’t really impose disciplinary action on someone who’s not connected to the University in some way. Again, that wouldn’t mean that we would do nothing. We would certainly make sure that our student is supported, make sure they know about supportive measures, like academic accommodations, resources on campus, connect them with the police. If the person, the respondent is at another institution, we can help make a report to that institution. But that would also be a case where something doesn’t fit under our policy, either based on the nature of the allegation or based on the lack of connection to U-M.
Here are definitions of some of the terms used by Frumkin and Seney, taken from OIE’s policies:
Claimant: the individual who is reported to have experienced Prohibited Conduct, regardless of whether that individual makes a report or participates in the review of that report by the University, and regardless of whether that individual is a student, is referred to as the Claimant.
Complainant: the individual bringing forth the complaint under SPG 201.89-0, which is OIE’s Standard Practice Guide for faculty.
Respondent: the person who is reported to have engaged in behavior that may violate the applicable policy.
Adaptable resolution: Adaptable resolution is a voluntary, remedies-based, structured process between or among affected parties that balances support and accountability without formal disciplinary action against a Respondent.
Investigative resolution: This is the process OIE undertakes to investigate a claim. A flowchart depicting this process can be found on page 24 of the student policy, as well as later in this article.
Compliancy: This refers to efforts to ensure the University adheres to applicable legal obligations, recognizing that those are typically the floor and not the ceiling in terms of our efforts to prevent misconduct and address matters.
Correction: This article has been updated to clarify the University had to change its student sexual misconduct policy after the Sixth Circuit Court Decision, not OIE’s. The flowchart has also been updated.