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    August 2018

    Michigan Court Disapproves Single Investigator Model at Public Institution

    In 2016, United Educators (UE) recommended that public institutions not adopt the single investigator model for adjudicating sexual misconduct allegations, as it could expose them to due process claims. In July 2018, a Michigan federal court held that the University of Michigan’s single investigator model violated an accused student’s due process rights by employing a disciplinary procedure that included no hearing or opportunity to question witnesses. Although the case directly affects only the University of Michigan (UM), all public institutions now using a single investigator approach should carefully consider this ruling, which may be persuasive to other courts.

      Note: Neither UE’s recommendation nor the court’s ruling applies to private institutions, which are not bound by federal constitutional due process requirements.

    The University’s Process 

    In spring 2018, “John Doe” was a senior about to graduate from UM when a female student accused him of sexual assault. Under Michigan’s internal process for sexual misconduct allegations, the investigator also serves as the adjudicator.

    After interviewing the parties and witnesses and considering other evidence, the investigator produces a preliminary report on which the parties comment, then a final report concluding, based on a preponderance of the evidence, whether the respondent violated the university’s sexual misconduct policy. Sanctions may include expulsion or degree revocation.


    The Court’s Decision

    Doe sued in June 2018—before the investigator issued a final report in his case—seeking an order preventing the university from continuing its process in his case or using it in other sexual misconduct cases. The judge rejected the university’s argument that Doe’s court case was premature in the absence of findings.

    Stating that when the parties’ credibility is at stake, “due process requires a live hearing and cross-examination,” the judge granted Doe’s motion to require the university to hold a hearing on the sexual assault allegations, consistent with the disciplinary process UM used for other types of student misconduct. However, the judge denied Doe’s request for campuswide changes to the university’s sexual misconduct policies and procedures.


    UE’s Recommendations

    Although single investigator models have advantages over processes involving hearings, such as often speedier resolution, they appear inconsistent with public institutions’ obligation to provide students with due process, at least when serious discipline may result.

    • UE reiterates its recommendation that public institutions provide a hearing in student misconduct matters involving potential suspension or expulsion. UE further recommends that both parties have the chance to question witnesses. This does not mean that every institution must hold elaborate hearings featuring direct cross-examination. Allowing parties to directly question each other can increase trauma in sexual misconduct matters. The judge in the Michigan case prohibited Doe from questioning the complainant directly, allowing him only to submit questions to a hearing official.
    • Public institutions generally should provide the same type of hearing in sexual misconduct cases as in other student disciplinary matters. This may mean using a hearing panel or a single hearing officer.
    • If a public institution using a single investigator model prefers not to revise its approach, UE recommends consulting with legal counsel. Although the Michigan court’s decision in the Doe case has limited application, other judges may adopt the same reasoning. Considering the potential ramifications, public institutions should at a minimum review their disciplinary procedures with counsel and remain alert for further legal developments.
    • A public institution should plan ahead when moving from a single investigator to a hearing model. For example, a hearing panel model requires a sufficiently large pool of potential panel members for the anticipated number of hearings. All hearing panelists, as well as individual hearing officers, need appropriate training before they serve.

    Resources

    EduRisk, Sexual Misconduct Adjudications: The Single Investigator Model

    EduRisk, Title IX and Beyond: The Adjudicatory Process

    University of Michigan Policy and Procedures on Student Sexual and Gender-Based Misconduct and Other Forms of Interpersonal Violence

    By Hillary Pettegrew, senior risk management counsel


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