The University of Michigan should change its interim student sexual misconduct policy. That's according to a letter sent on Thursday to U of M from the American Civil Liberties Union of Michigan and the American Civil Liberties Union Women's Rights Project.
The interim policy follows a decision by the U.S. Sixth Circuit Court of Appeals in which the court ruled that a public university must give an accused student an in-person hearing with the opportunity for the accused student or their representative to cross-examine.
Under the interim policy, only students, and not their representatives, can conduct cross-examinations. That means a student accused of sexual assault or harassment may cross-examine the accuser.
The ACLU has asked U of M to replace its interim policy with "a policy that guarantees cross-examination, but does not permit it to be conducted personally by the accused student."
The ACLU called for U of M to appoint counsel for any student who requests it and training for representatives on the appropriate scope and manner of cross-examination, including the prohibition on abusive questioning.
"Having a student who files a claim who is an alleged victim of sexual violence be cross-examined by their abuser is going to lead to further trauma and further harm to that student," said Bonsitu Kitaba, deputy legal director of the ACLU of Michigan.
"It's going to lead to less and less reporting," said Kitaba. "And it will invariably lead to a greater hostile educational environment on the University of Michigan campus."
The U of M replied to a request for comment about the ACLU's letter with the following written statement:
The U-M student sexual misconduct policy is an interim policy put in place to comply with the ruling by the United States Court of Appeals for the Sixth Circuit.
It's important to note, Doe v. Baum calls for a student or their advisor to conduct the cross-examination. Questioning by personal advisors - often attorneys - is not allowed at U-M out of concern that not all students would be able to afford counsel.
U-M has selected three outside trial attorneys to serve as hearing officers, who are experienced in what constitutes appropriate cross examination questioning. In addition, students can request that the hearing be conducted with the students located in separate rooms using technology, or written questions with no sound or video, to communicate with each other. Of the nine hearings conducted to date under the interim policy, all have occurred with the students being separated.
We continue to evaluate the effectiveness of the interim policy through feedback from the student community. U-M also is working to develop an umbrella policy for students, faculty and staff and separate procedures for students and employees, all of which will undergo vetting by our community.