New University policy spurs controversy over due process, campus safety and free speech

Thursday, February 7, 2019 - 4:42pm

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Roseanne Chao

The University of Michigan enacted a new policy in the Standard Practice Guide regarding felony disclosure on Monday. The policy requires all faculty, staff, student employees, volunteers and visiting scholars to self-report both felony charges and convictions within a week of the occurrence.

The policy does not apply to those covered by a collective bargaining agreement through a union—such as the Graduate Employees’ Organization.

According to the policy, each report will be assessed thoroughly by Human Resources on a case-by-case basis based on the nature and gravity of the offense, the timeliness and accuracy of the disclosure, and the relevancy of the crime or conviction to the role(s) held at the University. Human Resources will then determine whether disciplinary action will be taken.

Additionally, those who do not disclose their felony charges and convictions face consequences up to, and including, dismissal.

Since its enactment, the policy has garnered attention and criticism among faculty.

Laurita Thomas, associate vice president for Human Resources, said the policy was created with the intention of making sure all members of the community feel safe on campus.

“We became aware of circumstances where we were not aware of this kind of situation across higher ed — not necessarily at Michigan,” Thomas said. “And many institutions have moved to enhance the safety of our community, and this knowledge will help us do that.”

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L. Rowell Huesmann, professor of communication studies and psychology, claims the policy infringes on the rights of students, faculty and staff. He discussed how, in the past, many people have been arrested for protesting and charged with felonies.

“I’m old enough to remember very clearly the Vietnam era and the Civil Rights era when a lot of University of Michigan faculty and students demonstrated, not just in Michigan but in the South, and a lot of them were arrested, a lot of them were charged,” Huesmann said. “And police liked to charge them with felonies, like resisting arrest.”

Huesmann discussed how the requirement to report all felony charges, regardless of whether an individual is guilty or not, could restrict free speech. He said the policy could instill a sense of fear into community members and make them question actions they have a right to exercise, such as peaceful protesting.

“I suspect it (arrests at protests) could easily happen again and people could engage in demonstrations and protests about civil rights and they could well be charged with the felony of resisting arrest, and this policy requires them within one week to report it to the University,” Huesmann said. “And that really is going to have an inhibiting effect on what people do.”

Huesmann sent an email to the Senate Advisory Committee on University Affairs voicing his concerns. He said he hopes the committee will issue a statement opposing the policy.

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Law professor Samuel Gross said this policy should not interfere with current dismissal procedures.

“Michigan is an ‘employment-at-will state,’ but the University policy on employment is considerably more restrictive,” Gross said. “Your boss could fire you (in the state of Michigan) because he’d rather hire his nephew, or because you came into work late once, or because you were in possession of marijuana. There’s no problem with that because they can also fire you for no reason. The University is much more restricted by its own policies.”

Thomas said the University will review the cases fairly and not use the policy as an excuse to fire employees.

“If you review our discipline policies in our SPG, we move toward a fair approach and process,” Thomas said. “We do not discharge people on a lark.”

Another concern about the policy is whether the need to report not only convictions, but charges as well, is a violation of due process.

Ashley Lucas, director of the Prison Creative Arts Project and associate professor of theatre and drama, said in an email interview with The Daily the policy infringes on the rights of employees during the assessment process, when the University must act as a judge and determine the consequences for a felony charge.

“A requirement to report felony charges puts University administrators in the position of having to evaluate the guilt or innocence of a person who has not yet had the opportunity to have their case adjudicated in a court of law,” Lucas wrote. “This is a violation of our right to due process.”

Gross said while being charged with a crime is not the same as being convicted, an employer has the right to know and there is nothing intrinsically wrong with the gathering of all information.

“It is the case, and it’s very important, that being accused of a crime or arrested for a crime or held in pre-trial detention is not in itself proof or anything like proof that you committed a crime, and can’t be the subject of some types of actions,” Gross said. “But that doesn’t mean it’s not a fact that people can’t be made aware of … and that’s something an employer is entitled to know about.”

Thomas claimed the University is not violating employees’ right to due process and the safety of the community is the number one priority.

“Felony charges are very serious,” Thomas said. “It means that they have found enough evidence to do the charge, and so we will review charges in order to ensure the safety of our community.”

Gross discussed how the University could find out about all felony charges and convictions regardless of self-reporting by simply going to the police and asking for a list. However, the requirement of self-disclosure makes the process more convenient for the University.

Gross concluded he understands where the University is coming from and it is important to be aware of the criminal history of all employees, but he also sees how this knowledge could potentially be abused.

“I think everybody would agree it’s really important to know that if, for example, it (a felony charge or conviction) would make it really difficult or impossible for the person to do his or her responsibilities, especially to teach or attend classes,” Gross said. “Under some circumstances, it is really important because of the nature of the work somebody does you really want to know if there’s any possibility that they might have committed a crime. The problem is what happens next and what’s done with that information, how it is used. And it can certainly be abused.”

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Heather Thompson, professor of history in the department of Afro-American and African studies, is the co-founder and current co-director of the Carceral State Project. She believes the problem with the policy is not in its legality, but in the adverse effect it could have on campus safety.

“We have a real problem with overcompensation in this country which means that many people are arrested and never serve any time and are never convicted,” Thompson said. “So it just puts a fear over folks who have been trying to rebuild their lives at the University of Michigan, and that includes students and faculty and staff and visitors.”

She argued policies involving criminal background checks or the disclosure of felonies isolates people and has no real impact on campus safety.

“The irony here is that these policies cause harm and do not make the public safe,” Thompson said. “Frankly, some of the evidence says when you criminalize people and you make them feel fearful of reporting, then in fact you increase danger.”

Thompson related this policy to immigrants’ fears of reporting crimes because they do not want police in their house. She claimed people who have been charged or convicted with a felony will fail to bring other issues to light due to fear.  

“So imagine a situation on campus where someone has just been charged with a felony, maybe a driving or drug felony, and they’re sexually assaulted on campus,” Thompson said. “Now are they going to feel comfortable with this university reporting their assault? Or are they going to be living in fear that their assault will in turn trigger their own disclosure of being arrested?”

Thompson and the Carceral State Project are writing an open letter to the University regarding their concerns about the policy. They hope the letter will incite new conversations and new policies to support criminal justice and campus safety.

Thompson also said she doesn’t think the policy will work because background checks did not work at Michigan State University with Larry Nassar. She feels different policies are needed to provide support and safety to all community members.

“Larry Nassar would never have been caught with a background check, and he never had been charged with a felony,” Thompson said. “And so he was allowed to abuse those girls for decades simply because the apparatus to support victims and to believe victims was so weak. We don’t want anyone to be assaulted or a victim of crime on our campus, and for that reason we take great lessons from places like Michigan State and we cannot assume that background checks are sufficient if we’re serious about public safety.”

Thompson further noted the necessary next steps for the University should be putting procedures in place where assault and victimization on campus can be reported and victims can be fully supported. Thompson claimed these programs would eliminate the need to seek out people who have or are currently suspected of committing a crime.

Lucas also claimed felonies are often disproportionately charged on minority populations, and this policy will reflect that.

“Arbitrary felony charges can be wrongfully made against people,” Lucas wrote in an email interview with The Daily. “This policy will disproportionately affect members of vulnerable populations, including undocumented people, people of color, members of the LGBTQIA community, those with prior experience in the justice system, youth, and those who do not know their rights.”

Public Health senior Omar Ilyas is one of the founders of the Prison Re-Entry Project, a student organization dedicated to prisoner rights. Ilyas agreed with Lucas and added the policy enhances stigma surrounding the formerly incarcerated and makes it harder for them to reintegrate back into society.

“A lot of the times if you look at the statistics behind criminal history, a lot of it disproportionately happens in low-SES environments,” Ilyas said. “Whatever policies that exist that are a barrier to reentry and a barrier to reintegrate and a barrier to become a student here and really get access to that creative freedom and academic freedom. Limit those barriers and be cognizant that these things are affecting people disproportionately.”

Ilyas also claimed the policy will negatively affect student workers because if they have recently been charged with a felony, it could make them feel like outsiders on campus and, in turn, restrict them from reaching their full potential at the University.

“I think students aren’t going to feel safe because all of the sudden they’ve been branded as this ‘other.’” Ilyas said. “We’re doing this for the safety of campus, right, and now you’re putting them in a weird spot where it’s like, ‘Now people are scared of me; am I going to get the same opportunity as everyone else and my due process?’ It’s really inhibiting people from growing and inhibiting it from being a free academic environment.”