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‘There could easily be a lot of spurious investigations started’

Its press release doesn’t mention it, but the Faculty Senate noticed.

The University of Michigan is proposing to suspend faculty and staff without pay if they are the subject of a “sexual and gender-based misconduct” investigation, under a draft “umbrella policy” released last month. Comments are due Nov. 22.

The administration, however, says the alarm is for naught: suspension without pay is not a new option.

An email from Faculty Senate leaders forwarded to The College Fix warns faculty that the proposed policy would “give the Office of Institutional Equity (OIE) broad discretion to implement sanctions, such as suspension without pay, at the outset of an investigation of a complaint.” Sexual and gender-based misconduct can include speech protected by the First Amendment.

The body is meeting Nov. 18 to discuss the policy and gather feedback, given the “short period of time” the university has allowed for feedback. “Representatives will be present from the Provost’s office and from the Vice President and General Counsel’s office to answer questions,” the email says.

None of the PR materials made public by the university that The Fix has reviewed mentions the suspension-without-pay provision.

“Considering that there is now a button for reporting sexual misconduct right next to the Search box on the Umich.edu website, there could easily be a lot of spurious investigations started, and a lot of faculty who will suffer damage from this new policy,” said the person who shared the email with The Fix.

The Faculty Senate homepage asks all faculty to attend the Nov. 18 meeting and lists concerns and “proposed actions” by the faculty.

Employees would be “subject to significantly less due process protections than students” under the proposal; a “single investigator” would both lead the investigation and render the decision; OIE could implement suspension without pay “without prior notice” to the subject; and the draft policy is not clear whether the immediate penalty applies to tenured faculty.

MORE: Judge rules UMich violated professor’s right to cross-examine accusers

Suspension without pay is mentioned only once in the 30-page draft policy, under the heading “Protective Measures” on the 19th page (the numbering of the pages does not match the length of the policy). It applies to the Ann Arbor, Flint and Dearborn campuses.

Protective measures are instituted “when a proceeding is initiated” against a student, employee or third party who “has an existing relationship” with the university. They are preceded by an “individualized assessment,” and include:

Work schedule or job assignment modifications, including suspending employment with or without pay (for University positions)

Two faculty resolutions have been offered in response. The first says students, faculty and staff “must be afforded the same level of consideration and due process,” and it lays out several requested procedures.

They include the opportunity to challenge “interim measures” such as suspension without pay in writing before it takes effect; a hearing with a trained officer and trained faculty review panel; two-day review of immediate suspension, based on a finding that the employee constitutes “immediate danger to the university community”; the opportunity to appeal findings and hearing outcomes; and appeals overseen by an external reviewer not chosen by the administration.

The second, by the Committee on Civil Rights and Liberties, mentions legal precedents on due process and cross-examination from the Supreme Court and more recently the 6th U.S. Circuit Court of Appeals, which are binding on UMich.

The 6th Circuit specifically ordered the university to allow cross-examination in sexual misconduct proceedings between students, but warned that peer-to-peer questioning could cause “emotional trauma” to accusers. It suggested the university instead allow students to retain third parties – including lawyers – to cross-examine each other.

The university rejected the second option and chose the first, provoking outrage from both victims advocates and lawyers for accused students.

The resolution asks the university to prevent accused students from directly questioning accusers, adopt a policy laying out cross-examination by representative, and “[c]reate a forum” for representatives “trained in the appropriate scope and manner of cross-examination” to question each party.

UMich told The College Fix Wednesday late afternoon that suspension without pay “is not a change under the umbrella policy,” which is why it’s not highlighted in the press release.

Spokesperson Rick Fitzgerald wrote in an email that the university “currently has the ability to suspend staff and research faculty without pay as an interim measure during an OIE investigation,” and that tenured and tenure-track faculty can’t be suspended without pay as an interim measure because of a regents’ bylaw. “The umbrella policy does not change that.”

Faculty have had six weeks to review the policy, which the university considers “an appropriate amount of time to collect feedback for all portions of our community,” Fitzgerald wrote.

The Fix has asked the Faculty Senate leaders who sent the message, Joy Beatty and David Potter, to respond to the administration’s claims.

Read the draft policy and faculty resolutions, and file comments.

UPDATE: The administration responded to The Fix after this post was published. Its comments have been added, and the headline has been modified to reflect its response.

MORE: UMich angers everyone by banning lawyers from Title IX proceedings

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