Report Raises Familiar Concerns About Faculty Due Process at U. of Michigan

In a report released earlier this month, the University of Michigan (UM) Senate Advisory Committee on University Affairs (SACUA) concurred with an earlier conclusion reached by the Faculty Hearing Committee (FHC) that UM faculty accused of sexual discrimination and harassment are not afforded even “the most basic elements of fairness and due process.” Some of the specific problems with UM’s treatment of these cases mirror those in student sexual misconduct cases and those in faculty disciplinary cases at other universities, demonstrating the breadth of universities’ struggles to act as adjudicatory bodies.

SACUA and FHC reviewed complaints from three individuals who had been investigated by the Office of Institutional Equity (OIE) and claimed that their cases were improperly handled. SACUA wrote in its report:

1. The procedures of the Office of Institutional Equity currently in effect, as presented in their policy documents, lack adequate due process protections for faculty subject to OIE investigations, including fair and adequate notice, fair investigation processes, and the ability to appeal OIE findings and decisions based on such findings.

2. In carrying out its inquiries, OIE sometimes fails to follow its stated procedures or exploits discretion in its procedures to deviate from “typical” practices, without justification and to the detriment of respondents.

3. Both OIE and AHR [Academic Human Resources] are staffed by employees who lack the academic backgrounds necessary to evaluate matters of an academic nature and whose status as employees subordinate and reporting to the executive officers of the University creates a conflict of interest inconsistent with their professed neutrality.

The report’s details should worry anyone concerned with due process, and they include trends FIRE has seen too many times before. The report notes, for example:

• OIE operations combine the functions of, in effect, investigation, fact-finding, prosecution, and judgment in a single office and, often, a single non-academic staff member.
• As a matter of deliberate policy, OIE provides respondents with “minimal information” about the complaints against them and expects respondents to answer questions without knowledge of the specific allegations or the evidence supporting it.

Common sense dictates that notice of the charges against oneself is an essential component of due process—after all, how can people defend themselves if they do not know what they are alleged to have done? Yet UM isn’t the only school to leave faculty in the dark when it comes to alleged conduct violations. As FIRE reported earlier this year, Marquette University suspended Professor John McAdams without even specifying what university policy he supposedly violated to earn that suspension. Students accused of sexual assault, too, have filed lawsuits against their universities alleging that the institutions did not provide adequate notice of the charges against them before proceeding with an investigation and questioning.

UM’s alleged failure to follow its own written procedures isn’t unique, either. Marquette ignored its own policies in handling McAdams’s case. Frederick Fagal, formerly a tenured professor at Pennsylvania’s Marywood University, argued in a recent lawsuit against the university that it terminated his employment without following its written policies governing discipline of tenured faculty members. Students suffer from similar mistreatment: California’s Occidental College, for example, accepted a hired external adjudicator’s finding that a student had committed sexual assault despite the fact that the adjudicator applied a definition of “incapacitation” that was inconsistent with Occidental’s written standards.

Finally, colleges and universities are increasingly adopting disciplinary procedures that all but guarantee a conflict of interest, threatening the integrity of the fact-finding process and increasing the likelihood of an inaccurate and unfair outcome. My colleague Ari Cohn recently wrote about the ludicrous result of the University of Tulsa employing the “single investigator model.” There, a single administrator acting as investigator, prosecutor, judge, and jury found a student guilty of harassment for posts that another person admitted—in a sworn affidavit—to having authored.

Other institutions are adopting this problematic model following recommendations from the White House Task Force to Protect Students from Sexual Assault. In a feature for The American Prospect this winter, Harvard Law School professor and retired federal judge Nancy Gertner noted the particular danger in having sexual misconduct cases decided within the Title IX office, as they are at Harvard. “This is,” she wrote, “after all, the office whose job it is to see to it that Harvard’s funding is not jeopardized on account of Title IX violations, an office which has every incentive to see the complaint entirely through the eyes of the complainant.”

SACUA’s findings should, therefore, come as no surprise to Torch readers.

The report recommends that the three cases it reexamined be reconsidered and that OIE revise its policies and procedures in order to ensure that faculty facing punishment receive the due process to which they are entitled. According to campus newspaper The Michigan Daily, university spokesman Rick Fitzgerald said that UM will “carefully consider” SACUA’s recommendations. FIRE hopes UM follows through on this promise, and that it takes all steps necessary to protect faculty due process rights.

SACUA’s full report is available on the University of Michigan’s website.