'U' to draft new policy on sexual misconduct

By Haley Goldberg, Daily Staff Reporter
Published October 23, 2011

University officials plan to start crafting a permanent policy for addressing allegations of sexual misconduct this winter term with input from the campus community.

The University put an interim policy in place in August that lowers the standard of evidence needed for investigating allegations of sexual misconduct from clear and convincing evidence to a preponderance of the evidence.

The interim procedure was created in response to federal guidelines for federally funded universities regarding Title IX compliance, which University officials received from the U. S. Department of Education in a “Dear Colleague” letter on April 4. In anticipation of the guidelines, the University’s Sexual Assault Prevention and Awareness Center and other University organizations had already begun developing a temporary plan, according to SAPAC Director Holly Rider-Milkovich.

“We knew this was coming back in February and March, and nationally, our colleagues were put on notice that there was going to be guidance,” Rider-Milkovich said.

The advanced notice enabled University groups to mobilize and start drafting an interim procedure, Rider-Milkovich said. The groups include the Office of Student Conflict Resolution, the Office of Institutional Equity, the Office of the Vice President and General Counsel, among others.

Jay Wilgus, director of the Office of Student Conflict Resolution, agreed that the temporary plan — which became effective on Aug. 18 — gave the University a head start to develop a permanent procedure.

“This (guidance) invites and requires significant input from various stakeholders — undergraduate students, graduate students, professional students, faculty, staff, community stakeholders — and we wanted to have a robust process to engage those stakeholders,” Wilgus said.

E. Royster Harper, the University’s vice president for student affairs, and Suellyn Scarnecchia, the University’s vice president and general counsel, spearheaded the development of the interim procedure. They hired a project manager to oversee the production of a permanent University procedure, according to Wilgus. He added that the University plans to develop a forum for students to give their input on the topic.

“In the winter term of this academic year, that process will flush itself out," Wilgus said. "All students will be notified of places where they might engage, whether that is online surveys or in-person focus groups.”

The interim policy doesn't change the University's Statement of Student Rights and Responsibilities — the code every University student must follow. A permanent amendment can be proposed by the Michigan Student Assembly, the Senate Assembly, or University executive officers.

MSA President DeAndree Watson said he looks forward to helping develop a permanent policy for the University community. He added that he agrees with University officials’ decision to implement an interim policy while they garner input from students and other members of the University community.

Watson said he intends to draft a summary of information regarding the issue to present to MSA and wants to invite administrators to speak to the assembly. The diverse student demographic of MSA makes the assembly a key voice in developing the policy, he added.

“I think that it is important at this particular moment that student representatives and other members of MSA have a seat at the table shaping a policy that’s going to last for years and affect students in a substantial way,” Watson said.

Though the next year to amend the Statement is 2013, the SRAC “may entertain proposed amendments at other times,” Wilgus said.

Watson said implementing the procedure with students’ input should occur sooner rather than later.

“I think that something of this magnitude that affects so many students on campus is worth pushing the review date up ...” Watson said.

In addition to lowering the standard of evidence for investigating sexual misconduct allegations, the interim procedure differs from the current procedure in that it uses an investigative model instead of a complaint-driven model, according to Wilgus. Under the interim procedure, it is no longer the responsibility of a student to “drive a complaint forward” in regard to sexual misconduct, Wilgus said. Rather, the University takes the responsibility of investigating a complaint when officials become aware “of a disclosure that may involve sexual misconduct,” he said.

“When the University knows or should have known that sexual misconduct has transpired, we must do something,” Wilgus said.

This follows guidelines mentioned in the DOE letter which state that, "If a school knows or reasonably should know about student-on-student harassment that creates a hostile environment, Title IX requires the school to take immediate action to eliminate the harassment, prevent its recurrence, and address its effects."

Once a disclosure of sexual misconduct is shared with the University, the allegation is reviewed, and if the complainant chooses to proceed with an investigation, it will ensue. Under the previous complainant-driven model, if a complainant decided not to have the University investigate the allegation, the investigation would not occur. Now, however, the University must consider pursuing an investigation without the complainant’s consent in order to protect the community, according to Wilgus.

“A review panel ... will try to balance the survivor’s interests in not moving forward and not having an investigation ensue with the community’s interest in making sure that the alleged perpetrator is not running around campus and in a position to commit the same behavior again," Wilgus said.

Rider-Milkovich said that in shifting over to the investigative model, the interim procedure succeeds in maintaining both the survivor’s confidentiality and the safety of the community.

“I am pleased with our interim procedure because I feel as though we have taken significant effort to balance the institution’s commitment to survivors with also the institution’s commitment to safety and to accountability," Rider-Milkovich said.

The interim procedure also maintains due process, which it fully awards to those accused of sexual misconduct, Wilgus added.

The change in model and the lowered standard of evidence outlined in the “Dear Colleague” letter has sparked conversation nationally, according to Wilgus, and he anticipates learning the University’s stance on these issues through discussions about the interim policy.

“There is lots of good discourse on campus and nationally about the standard of evidence, as there should be, and about the investigative model versus the complainant-driven model,” Wilgus said. “Holly (Rider-Milkovich) and I, along with others who drafted the interim procedure, look forward to that rich dialogue on our campus."