ANN ARBOR, MI - The American Civil Liberties Union is calling on the University of Michigan to change an interim student sexual misconduct policy that was updated earlier this year to adhere to a ruling of the U.S. Sixth Circuit Court of Appeals.

The court ruled that a public university must give a student accused of sexual misconduct an in-person hearing and an opportunity for cross-examination.

The ACLU of Michigan and the ACLU Women’s Rights Project sent a letter to UM Thursday, Sept. 5 urging its administration to withdraw the policy, calling it “deeply problematic."

The ACLU said a policy that allows those accused of assault or harassment to personally question their accuser risks deterring complaints, traumatizing those who make complaints and creating a hostile campus environment.

“The University should not require those who allege sexual violence to undergo cross-examination conducted by the very individual accused of having committed the assault,” said Bonsitu Kitaba, deputy legal director at the ACLU of Michigan, in a release. “The only people conducting cross-examination in these very difficult hearings should be representatives with professional training.”

UM announced it was updating its student sexual misconduct policy in December after the Sixth Circuit ruled against its policy in September. It has been in effect since Jan. 9.

Following the ruling from the 6th Circuit, UM sought a rehearing to clarify that no student has a constitutional right to a direct cross-examination, but its petition was denied.

“It’s important to note, Doe v. Baum calls for a student or their adviser to conduct the cross-examination,” UM Spokesman Rick Fitzgerald said of the 6th Circuit ruling. "Questioning by personal advisers - often attorneys - is not allowed at UM out of concern that not all students would be able to afford counsel. UM has selected three outside trial attorneys to serve as hearing officers, who are experienced in what constitutes appropriate cross-examination questioning.'

In December, UM noted the changes would be part of an interim policy pending engagement with the student community to provide feedback on its effectiveness, and after the U.S. Department of Education Office for Civil Rights has issued new Title IX regulations.

The new federal rules proposed in 2018 apply basic due process protections for students, including a presumption of innocence throughout the grievance process; written notice of allegations and an equal opportunity to review all evidence collected; and the right to cross-examination. After a public comment period, colleges and universities across the country have waited months for the final rules to come out.

Fitzgerald noted students may request a 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, Fitzgerald said.

The ACLU’s letter urges UM to rescind its interim policy and adopt a policy that complies with Title IX and due process by providing for cross-examination by those trained in the practice.

“The University of Michigan’s policy is unnecessarily traumatizing for those who report sexual assault and could deter survivors from coming forward,” said Sandra Park, senior staff attorney with the ACLU Women’s Rights Project. “It could also contribute to a hostile environment on campus in violation of Title IX.”

Under the investigative resolution process in the interim policy, students can ask questions of each other and witnesses at an in-person hearing conducted by a trained hearing officer.

The hearing officer also can ask questions of those involved in sexual misconduct cases before making a determination, using a “preponderance of the evidence” standard on whether a violation of the policy occurred. That standard means it is determined to be more likely than not that a violation occurred.

To comply with the Sixth Circuit ruling, students can no longer appeal the outcome determination on the grounds that the evidence is insufficient to support the finding.

The new policy also allows for adaptable resolution options to be used in any case, as long as both the claimant and respondent are in agreement, participate voluntarily and the university’s Title IX Coordinator approves.