** The College does not avail itself to any federal or state law, rule, or regulation that is not applicable to the College regardless of whether it is cited in these procedures.
All financial and administrative policies involving community members across campus, including volunteers are within the scope of this policy. If there is a variance between departmental expectations and the common approach described through college policy, the college will look to the campus community, including volunteers to support the spirit and the objectives of college policy. Unless specifically mentioned in a college policy, the college’s Board of Trustees are governed by their Bylaws.
Procedures
Contents
I. Introduction
II. Definitions
III. Response to Reports of Title IX Sexual Harassment
IV. Filing a Formal Complaint
V. Notice of Allegations
VI. Title IX Formal Grievance Process
VII. Appeal Process
VIII. Final Outcome
XI. Informal Resolution Process
X. Miscellaneous
I. INTRODUCTION
These Title IX Sexual Harassment Grievance Procedures conform to legal requirements under Title IX of the Education Amendments of 1972 (“Title IX”), a civil rights law that prohibits sex discrimination by recipients of federal financial assistance, like ϳԹ, and the U.S. Department of Education’s regulations for Title IX. These grievance procedures further ϳԹ’s commitment to providing an environment free from Title IX Sexual Harassment. The College regularly reviews and updates the following procedures to ensure consistency with the federal Title IX regulations and agency guidance.
Sexual misconduct that constitutes Title IX Sexual Harassment is illegal and violates the College’s Nondiscrimination and Anti-Harassment Policy and Procedures. It is also contradictory to the standards of our community. Sexual harassment can be devastating to the person who experiences it directly, and it can adversely impact family, friends, and the larger community. Individuals who believe they have experienced any form of sexual misconduct are encouraged to report the incident and to seek medical care (as appropriate) and support as soon as possible.
The grievance procedures outlined herein only apply to sexual misconduct that constitutes Title IX Sexual Harassment, as defined below, that takes place in an educational program or activity of the College against a person in the United States. An educational program or activity, also defined below, includes (1) locations, events, or circumstances over which the College exercised substantial control over both the Title IX Respondent and the context in which Title IX Sexual Harassment occurs, and (2) any building owned or controlled by a student organization that is officially recognized by the College.
Any terms not defined in these grievance procedures are defined in the Nondiscrimination and Anti-Harassment Policy and Procedures.
Matters that do not fall under Title IX (as described in these grievance procedures) are not within the scope of these grievance procedures but may still constitute misconduct that is incompatible with the College’s standards and may be addressed at the discretion of the College through other applicable College policies and procedures, including but not limited to the Nondiscrimination and Anti-Harassment Policy and Procedures.
The contents of these grievance procedures do not create a contract between any individual and the College. These grievance procedures are subject to change from time to time at the sole discretion of the College, and updated information and changes may be distributed from time to time.
II. DEFINITIONS
A. The following terms apply to the Title IX Sexual Harassment Grievance Procedures. These definitions should be read in concert with the defined terms in the Nondiscrimination and Anti-Harassment Policy and Procedures.
1. Actual knowledge means notice of alleged Title IX Sexual Harassment to the College’s Title IX Coordinator or Deputy Title IX Coordinator or to any “official with authority” identified in Section A.2. below, who can institute corrective measures on behalf of the College. “Notice” as used in this paragraph includes, but is not limited to, a report of sexual harassment to the Title IX Coordinator or Deputy Title IX Coordinator. Actual knowledge is not satisfied when the only official with authority with notice of allegations of Title IX Sexual Harassment is the complainant or respondent.
2. Advisor of choice means a support person who may or may not be an attorney or affiliated with the College but whom the complainant or respondent selects to accompany them to any meetings or proceedings during the investigation and grievance procedures.
3. Complainantmeans an individual who is alleged to be the target of conduct that could constitute Title IX Sexual Harassment.
4. Consent means each person involved in sexual activity has given knowing, willing, free, and clear permission to engage in the sexual activity or contact. The College requires consent, as defined in Section III.C.3 of the Nondiscrimination and Anti-Harassment Policy and Procedures, for all sexual contact and activity.
5. Decisionmakermeans an individual responsible for reaching a determination regarding responsibility in a formal complaint. The appellate decisionmaker means an individual responsible for reviewing an appeal of a decision to dismiss or a determination regarding responsibility. Neither the decisionmaker nor the appellate decisionmaker can be the Title IX Coordinator or the investigator(s) assigned to the same formal complaint.
6. Education program or activitymeans locations, events, or circumstances over which the College exercises substantial control over both the complainant and respondent and the context in which the Title IX Sexual Harassment occurs, such as but not limited to, any building owned or controlled by a student organization that is officially recognized by the College.
7. Formal complaint means a document signed and filed with the College by a complainant or signed by the Title IX Coordinator on behalf of the complainant, alleging Title IX Sexual Harassment against a respondent and requesting that the College investigate the allegations of Title IX Sexual Harassment. For more information about the formal complaint, see “Filing a Formal Complaint,” Section IV of this Policy.
8. Investigatormeans an individual who investigates a formal complaint. The investigator may also be the Title IX Coordinator or Deputy Title IX Coordinator but cannot be the decisionmaker.
9. Respondentmeans an individual who has been reported to be the perpetrator of conduct that could constitute sex-based discrimination or Title IX Sexual Harassment.
10. Supportive measures mean non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the complainant or respondent before or after a formal complaint or where no formal complaint has been filed. For more information about supportive measure, see “Response to Reports of Sexual Harassment,” Section III of this Policy.
11. Title IX Coordinator and Deputy Title IX Coordinator mean the persons who oversee the College’s response to discrimination, harassment and retaliation reports and complaints, and other duties and responsibilities as required by law. The Title IX Coordinator and Deputy Title IX Coordinator and their contact information is:
Title IX Coordinator
AVP for Civil Rights and Title IX Coordinator
Phone: (719) 389-6881
Office: 214 E. Dale St. Unit 210
Deputy Title IX Coordinator
Assistant Director for Civil Rights and Deputy Title IX Coordinator
Phone: (719) 389-6886
Office: 214 E. Dale St. Unit 210
12. Title IX Sexual Harassment means conduct on the basis of sex that occurs in the United States within the educational program or activity of the College, which falls under the jurisdiction of Title IX of the Education Amendments of 1972 because it satisfies one or more of the following:
• An employee of the College conditions the provision of an aid, benefit, or service of the College on an individual’s participation in unwelcome sexual conduct;
• Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the College’s education program or activity; or
• Constitutes “Sexual assault,” “dating violence,” “domestic violence,” or “stalking” as defined in the Nondiscrimination and Anti-harassment Policy and Procedures.
Title IX Sexual Harassment will be remedied under the grievance procedures described below, which is compliant with the Title IX regulations.
III. RESPONSE TO REPORTS OF TITLE IX SEXUAL HARASSMENT
A. Actual Knowledge
1. Initiation of the Process: If the College has actual knowledge, as defined herein, of Title IX Sexual Harassment that occurs in the College’s education programs or activities against a person in the United States, the College’s Title IX Coordinator or Deputy Title IX Coordinator will promptly contact the complainant to discuss the availability of supportive measures and to explain the process for filing a formal complaint if one has not yet been filed.
2. Official with Authority: The College has actual knowledge of a violation of law and/or policy when the Title IX Coordinator or Deputy Title IX Coordinator or “official with authority” has notice of Title IX Sexual Harassment or allegations of Title IX Sexual Harassment. An official with authority is an employee of the College who has authority to take action to redress the alleged sexual harassment or who has a duty to report sexual harassment to appropriate officials. The mere ability or obligation to report sexual harassment or to inform a student about how to report sexual harassment, or having been trained to do so, does not qualify an individual as one who has authority to institute corrective measures on behalf of the College.
a. The following individuals are designated officials with authority:
• Vice President for Student Life / Dean of Students;
• Dean of the Faculty; and
• Senior Vice President of Finance and Administration.
b. Officials with authority shall ensure that the complainant understands: (1) the official with authority’s reporting obligation; and (2) the confidential and supportive resources available to the complainant.
B. Supportive Measures
1. Types: The Title IX Coordinator, in partnership with other departments of the College, is responsible for coordinating the effective implementation of supportive measures to students and employees who are impacted by sexual misconduct that may constitute Title IX Sexual Harassment. These supportive measures are intended to restore or preserve equal access to the education program or activities for the complainant without unreasonably burdening the respondent and should also be targeted at protecting the safety of all parties or the College’s community while deterring further sexual misconduct. Supportive measures may include, but are not limited to:
a. counseling;
b. extensions of deadlines or other course-related adjustments, as deemed feasible and appropriate by faculty;
c. modifications of work or class schedules;
d. excused absences;
e. campus escort services;
f. mutual restrictions on contact between the parties;
g. changes in work or housing locations;
h. leaves of absence; and
i. increased security and monitoring of certain areas of the campus, and other similar measures.
2. Discretion to Implement: The College will prioritize requests from parties as to appropriate supportive measures but the final decision whether to implement measures and, if so, what type, is within the sole discretion of the College. In some cases, supportive measures, such as work or housing re-assignments, may not be made until a threat assessment team has conducted an individualized safety and risk assessment and, in coordination with the Title IX Coordinator or Deputy Title IX Coordinator, has determined an immediate threat requires such modifications. See Section III.C. below for more information on the emergency removal process.
3. Monitoring: During the investigative process and resolution proceedings, the College may in its discretion reassess and modify supportive measures previously implemented for either party.
4. Confidentiality: Any supportive measures provided to the complainant or respondent will remain confidential to the extent that maintaining such confidentiality would not impair the ability of the College to provide supportive measures.
C. Emergency Removal
1. Purpose: The College can fully or partially remove a respondent from the College’s education programs or activities on an emergency basis when an individualized safety and risk assessment has determined that the respondent poses an immediate threat to the physical health or safety of one or more individuals arising from the allegations of Title IX Sexual Harassment.
a. A respondent may be removed on an emergency basis at any time there is an emergency situation arising from the alleged conduct that could constitute Title IX Sexual Harassment, regardless of whether these grievance procedures are underway.
b. The College may conduct interim assessments of whether the immediate threat to physical health or safety of a student or another individual remains unchanged or whether it has dissipated justifying the respondent’s full or partial return to the education program or employment activities.
c. An emergency removal is not a determination of responsibility or a sanction. The emergency removal process allows the College to address emergency situations subject to the respondent’s right to receive notice and the opportunity to challenge such removal action.
2. Removal Process
a. Step One: Conduct an individualized safety and risk assessment
Based on the circumstances and the urgent need or demand posed by the risk of harm, the College may decide to convene a multidisciplinary threat assessment team to oversee and review the assessment. All personnel involved in the threat assessment procedures will be impartial and capable of making a determination free of bias and conflict. The respondent will be given 24 hours’ advance notice of the scheduling of the threat assessment. The respondent may attend the threat assessment to participate in the process and challenge the allegations that the student poses an immediate threat to the subject of an alleged violation or others. The respondent may be accompanied by an advisor of their choice. The College may decide to allow the complainant (or any other relevant party) and their advisor of choice to participate in the meeting. A decision on removal will be issued in writing by the Title IX Coordinator or Deputy Title IX Coordinator to both parties.
b. Step Two: Assess the immediate threat
i. The individualized safety and risk assessment must determine whether the respondent poses an “immediate threat” based on the specific circumstances arising from the allegations of sexual harassment that justifies an emergency removal. The College may review any and all factors it deems relevant and give appropriate weight and significance to each factor in its discretion, including but not limited to, the subjective fear of any individual whose physical health or safety has been threatened as compared to an objective reasonable person standard; the respondent’s propensity, opportunity and ability to effectuate an identified or potential threat; and the respondent’s behavioral history.
ii. The determination of an immediate threat may not be justified by only a person’s mental or emotional health or safety. In such circumstances, the College may focus responsive action on appropriate supportive measures that ensure the individual’s equal access to education programs or activities.
iii. If the respondent’s actions that pose a threat are unrelated to the allegations of sexual harassment, then the College may address the conduct through disciplinary processes outlined in other applicable conduct policies.
c. Step Three: Evaluate applicable disability laws
Consideration will be given to applicable disability laws prior to removing a respondent who identifies as having a disability.
3. Administrative Leave: Notwithstanding the emergency removal procedures set forth in this Section III, a non-student employee may be placed on administrative leave during the pendency of the Title IX Sexual Harassment Grievance Procedures at the College’s discretion.
IV. FILING A FORMAL COMPLAINT
A. Who can File a Complaint?
1. Formal Complaint Filed by Complainant: A complainant may file a formal complaint with the Title IX Coordinator, requesting the College to investigate and adjudicate a report of Title IX Sexual Harassment. A formal complaint requires a physical or digital signature by the complainant, or an indication that the complainant is the person filing the formal complaint. At the time of filing a formal complaint, the complainant must be participating in or attempting to participate in the College’s education programs or activities.
2. Formal Complaint Filed by Title IX Coordinator on Complainant’s Behalf: If the complainant chooses not to file a formal complaint, the College may still initiate the grievance procedures if the Title IX Coordinator signs the formal complaint. The Title IX Coordinator will only sign a formal complaint after considering the complainant’s wishes and evaluating whether an investigation is clearly unreasonable in light of the specific circumstances. Where the Title IX Coordinator signs a formal complaint, the Title IX Coordinator is not a complainant or otherwise a party. The complaint is brought in the interest of the College community on behalf of the complainant.
B. Time Limit to File a Formal Complaint
There is no time limit for filing a formal complaint of Title IX Sexual Harassment. However, complainants should report their allegations as soon as they are able so as to maximize the College’s ability to respond promptly and effectively. Delayed reporting often results in, among other things, the loss of relevant evidence and faded and unreliable memories. It also impairs the College’s ability to summon witnesses, assess evidence, and, if appropriate, adjudicate claims and impose sanctions and other remedies.
C. Consolidating Formal Complaints
The College may consolidate formal complaints where the allegations of Title IX Sexual Harassment arise out of the same facts or circumstances.
D. Bifurcating Allegations in Formal Complaints
To the extent a formal complaint alleging Title IX Sexual Harassment contains allegations of discrimination or harassment that are not protected by Title IX, then the College reserves the right to bifurcate the allegations and resolve the Title IX Sexual Harassment allegations in accordance with these grievance procedures and process the remaining allegations in accordance with the Nondiscrimination and Anti-Harassment Policy and Procedures or other applicable College conduct policies. Notwithstanding the foregoing, the investigators selected in a Title IX Sexual Harassment Grievance Procedure may investigate all allegations concurrently so long as the investigative report applies the appropriate process, definitions, and standards for collecting and evaluating evidence for each type of alleged discrimination or harassment.
E. Dismissal of a Formal Complaint
1. Mandatory Dismissal: The Title IX Coordinator will dismiss a formal complaint or any allegations therein from the Title IX Sexual Harassment Grievance Procedures if at any time during the investigation or hearing it is determined that the conduct alleged in the formal complaint:
a. does not meet the definition of Title IX Sexual Harassment;
b. did not occur in the College’s education program or activity;
c. did not occur against a person in the United States; or
d. if, at the time of filing a formal complaint, the complainant is not participating in or attempting to participate in the College’s education program or activity.
2. Discretionary Dismissal: The Title IX Coordinator may dismiss a formal complaint or any allegations therein if, at any time during the investigation or hearing, it is determined that:
a. the complainant notifies the Title IX Coordinator in writing that the complainant wishes to withdraw the formal complaint or any allegations therein;
b. the respondent is no longer enrolled or employed by the College; or
c. specific circumstances prevent the College from gathering evidence sufficient to reach a determination as to the allegations of the formal complaint.
3. Notice of Dismissal and Right to Appeal: Upon dismissal of a formal complaint or any allegations therein, the Title IX Coordinator will promptly send written notice to the parties, stating the reasons for the dismissal. Both parties have a right to appeal the dismissal decision in accordance with the procedures specified in the “Appeal Process,” Section VII of these procedures.
4. Finality: The determination regarding a dismissal of a formal complaint becomes final either on the date that the parties are provided with the written determination of the result of an appeal, if filed, or if an appeal is not filed, the date on which an appeal would no longer be considered timely. Once a dismissal is final, a complainant cannot file a formal complaint under the Title IX Grievance Procedures concerning the same alleged conduct.
5. Other Process and Remedies: When a formal complaint is dismissed as provided herein, such dismissal does not preclude the reporting party or the College from proceeding with another complaint procedure or remedies granted by other College policies or federal, state or local law. Moreover, such dismissal does not preclude the College from offering supportive measures or from addressing the allegations in any manner the College deems appropriate.
A. Notice Prior to Initial Interview: Within seven (7) days of receiving a formal complaint, the Title IX Coordinator will provide a written notice of the allegations to both parties. The parties will have at least three (3) days from the day the written notice is sent to prepare for an initial interview.
B. Duty to Supplement: If the College, at any time during the investigation, starts to investigate allegations that are materially beyond the written notice, the College will provide a supplemental written notice describing the additional allegations to be investigated.
C. Options for Resolving a Formal Complaint: There are generally two ways to resolve the allegations of a formal complaint:
1. Formal Grievance Process: The formal grievance process involves a full investigation and adjudication as described in “Title IX Formal Grievance Process,” Section VI of these procedures.
2. Informal Resolution Process: At the College’s discretion, the parties may also be offered the opportunity to participate in an informal resolution process as opposed to the more formal grievance process. The informal resolution process does not involve a full investigation. Participation in the process is voluntary. For more information on the informal resolution process see “Informal Resolution Process,” Section VIII of these procedures.
VI. TITLE IX FORMAL GRIEVANCE PROCESS
The filing of a formal complaint initiates the formal grievance process provided in these procedures unless the parties are eligible and willing to participate in an informal resolution process. The College’s formal grievance process treats complainants and respondents equitably by: offering both parties equal notice and opportunity to review and respond to the evidence collected; providing remedies to a complainant when a respondent is found responsible; and following a grievance process that complies with Title IX before imposing any disciplinary sanctions or other actions that are not supportive measures against a respondent. As part of this process, a respondent is presumed not to have violated the Nondiscrimination and Anti-Harassment Policy and Procedures, and a determination regarding responsibility is made only at the conclusion of the formal grievance process.
A. Timeframe
1. General timeframe: The College is committed to providing a prompt, impartial, and thorough investigation and resolution that is consistent with the Title IX regulations. The complainant and respondent will be kept apprised of the investigation’s status and anticipated timeframes. The formal grievance process, in most cases, will take between 60 to 90 days to complete.
2. Delay or extension for good cause: The College may delay or extend timeframes for good cause. Good cause may include, but is not limited to, the absence of a party, a party’s advisor, or a witness; concurrent law enforcement activity; the need for language assistance or accommodation of disabilities; challenges in gaining access to evidence; or campus closures for holidays or vacations. If the formal grievance process must be delayed or extended, the Title IX Coordinator will provide the complainant and respondent with written notice.
B. Right to an Advisor of Choice
Each party is entitled to an advisor of their choice, who may be an attorney, to provide support, guidance, and advice during the process. The participation of advisors of choice is limited as outlined in the Nondiscrimination and Anti-Harassment Policy and Procedures. The College will not limit the choice or presence of an advisor in any meeting or resolution proceeding; however, the College may establish expectations of advisors related to their participation in proceedings, which will apply equally to both parties. If an advisor fails to adhere to such expectations, they may be subject to consequences, including removal from any current meeting or any future meeting or proceeding. A list of qualified advisors is available with the Title IX Coordinator and Deputy Title IX Coordinator.
A party is encouraged to retain through the duration of the process their advisor of choice selected at the outset of a matter. Once an advisor of choice is selected, absent good cause shown, the party will not be permitted to change their selection. However, at the request of a party and/or in the opinion of the Title IX Coordinator, if the advisor selected by a party at the outset of a matter is not qualified to conduct cross-examination at a live hearing, then the party may designate an alternate advisor or the College may appoint a second advisor solely for the purpose of conducting cross examination. A party is otherwise restricted to only having one advisor present at the live hearing. This prohibition does not mean that a party cannot also have a support person present at the live hearing but such support person is prohibited from participating in the hearing, such as conducting cross examination.
C. Investigation Procedures
All Title IX investigations will be conducted in a prompt, thorough, fair, and impartial manner. The investigative process will generally include: (1) interviewing the complainant, the respondent, and witnesses; (2) collecting evidence and objectively evaluating whether the evidence is relevant; and (3) preparing an investigative report that fairly summarizes relevant evidence.
1. Interviewing Parties and Witnesses
The College will provide written notice to parties and witnesses before the investigators conduct an interview. At the interview, or any other meeting or related proceeding, the complainant or respondent may be accompanied by their advisor. The advisor may not participate in the meeting beyond providing advice and support to the party. The investigators will attempt to contact and interview any witness identified by the complainant or respondent that the investigators deems relevant to the resolution of the complaint. Witnesses offered solely for the purpose of supporting or criticizing a person’s character or reputation may not be interviewed unless the testimony is relevant to the allegations at issue in the complaint. The College may conduct follow-up interviews with parties and witnesses, as necessary.
2. Collecting Evidence
a. The College bears the burden of gathering evidence relevant to the resolution of the complaint. The College is responsible for gathering evidence sufficient to reach a determination. The parties will have an equal opportunity to: present witnesses, present inculpatory or exculpatory evidence, inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint or any other allegations raised during the course of the investigation; provided, however, that the College has provided the parties with notice of the additional allegations under investigation.
b. The College will not collect medical records. Unless the College obtains a party’s voluntary, written consent, the College will not access, consider, disclose, or otherwise use a party’s records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional’s or paraprofessional’s capacity, or assisting in that capacity, and which are made and maintained in connection with the provision of treatment to the party.
c. The College will not collect privileged information. The College also will not require, allow, rely upon, or otherwise use questions or evidence that constitute, or seek disclosure of, information protected under a legally recognized privilege, unless the person holding such privilege has waived the privilege.
3. Preparing the Investigative Report
a. Review by the Parties. After completing the investigation, the investigators will draft an investigative report and send the draft in an electronic format to the parties along with the evidence obtained as part of the investigation that is directly related to the allegations raised in the formal complaint, including the evidence upon which the decisionmaker does not intend to rely in reaching a determination regarding responsibility. The parties will have ten (10) days to review the draft investigative report and to submit a written response, providing addition input for the investigators to consider, which revisions or supplemental material the investigators may include in the report at the investigators’ discretion. Failure to timely respond within this ten- (10-) day period will be deemed a waiver of the right to respond. Before finalizing the report, the investigators can meet with the parties to ask additional questions about the evidence presented by either party in response to the investigative report or to clarify the process for the parties or to follow up with other witnesses or new information. The investigators will then finalize the investigative report, fairly summarizing all relevant evidence. The investigators are ultimately responsible for determining what evidence is relevant.
b. Submission to Decisionmaker. The investigators will submit the final investigative report and all relevant evidence to the decisionmaker for their review at least ten (10) days before the live hearing. The parties will also receive copies of the final investigative report and all evidence. The parties shall be permitted to submit a written response to the decisionmaker and may refer to the evidence during the hearing.
4. Prohibition on Knowingly Making False Statements
Members of the College community are expected to provide truthful information in any report, meeting or proceeding under this Policy or the applicable College policies and standards. Providing or submitting false or misleading information in bad faith is prohibited and such conduct may be disciplined under the relevant College standards and policies. Reports made or information provided in good faith, even if the facts are later unsubstantiated, will not be subject to disciplinary consequences.
D. Live Hearing
1. Scheduling: Upon receipt of the investigative report and relevant evidence, the decisionmaker, who is responsible for conducting the live hearing, will coordinate with the Title IX Coordinator or Deputy Title IX Coordinator and schedule a live hearing at which both parties and their advisors of choice are encouraged to attend. Live hearings will not be rescheduled due to conflicts with a party’s or advisor’s schedule; therefore, parties are recommended to select an advisor who is available to attend the scheduled live hearing. At the request of either party, the College will provide for a live hearing to occur with the parties located in separate rooms with technology enabling the decisionmaker and parties to simultaneously see and hear the party or the witness answering questions. The College will create an audio or audiovisual recording, or transcript, of any live hearing and make it available to the parties for inspection and review.
2. Pre-hearing Meeting: The decisionmaker may conduct pre-hearing meetings with each party and their advisors for the purpose of reviewing hearing procedures, reviewing witness lists, resolving evidentiary questions, and considering any other pre-hearing matters.
3. Advisor: If a party is not accompanied by an advisor at the live hearing, the College will provide, without fee or charge, to that party an advisor of the College’s choice to conduct cross-examination on behalf of that party.
4. Questioning of Parties and Witnesses
a. The decisionmaker will facilitate the exchange of questions between parties and witnesses and may itself ask questions of the parties and witnesses. At the live hearing, the parties shall not be permitted to ask questions of each other or witnesses. Instead, each party’s advisor may ask the other party and any witnesses relevant questions and follow-up questions, including questions challenging credibility. The questions must be asked directly, orally, and in real time by the party’s advisor of choice and never by a party personally.
b. Before a complainant, respondent, or witness answers a question, the decisionmaker will first determine whether the question is relevant. If the decisionmaker determines that cross-examination questions or evidence are not relevant, then the decisionmaker may exclude such questions or evidence. For example, questions and evidence about the complainant’s sexual predisposition or sexual behavior are not relevant, unless such questions and evidence are offered to prove (1) that someone other than the respondent committed the conduct alleged by the complainant, or (2) if the questions and evidence concern specific incidents between the complainant and respondent and are offered to prove consent. The decisionmaker will explain any decision to exclude a question as irrelevant.
5. Determining Responsibility
a. The decisionmaker will evaluate relevant evidence. The decisionmaker will objectively evaluate all evidence and determine what is relevant. They will not make credibility determinations based only on a person’s status as a complainant, respondent, or witness.
b. The decisionmaker will apply the preponderance of the evidence standard. The decisionmaker will determine whether a party is responsible for the conduct alleged in the formal complaint. The standard of proof used to determine whether a violation of Policy has occurred is a “preponderance of the evidence” meaning that the evidence shows that it is more likely than not, or more than a 50% likelihood, that the individual is responsible for the violation.
c. The decisionmaker will issue a written determination. The decisionmaker will issue a written determination simultaneously to both parties within ten (10) days after reviewing the investigative report. If the respondent is found responsible, they may be subject to a range of disciplinary sanctions, up to and including dismissal, and the complainant may receive remedies that are designed to restore or preserve equal access to the College’s education program or activity. Title IX Coordinator is responsible for implementing these measures.
d. The decisionmaker may consult on sanctioning. The decisionmaker may consult with the College’s sanctioning authority for students, staff or faculty, as necessary, before issuing sanctions as part of a final determination of responsibility.
e. Decisionmaker assignments. In its sole discretion, the College may engage an individual outside the College to serve as a decisionmaker or the College will appoint as decisionmaker the Vice President for Student Life/Dean of Students to cases involving student respondents, the Vice President for People and Workplace Culture to cases involving staff respondents, and the Dean of the Faculty to cases involving faculty respondents.
E. Sanctions and Remedial Measures
1. Sanctions: The decisionmaker will make a determination as to whether to impose or recommend sanctions on a student, group of students, staff member or faculty who are found responsible for a violation of College policy under these procedures. Any sanctions on respondents who are students or staff will be implemented by the decisionmaker. If the respondent is a faculty member and the decisionmaker is not the Dean of the Faculty, then any considerations of sanctions of a faculty member will be reviewed with the Dean of the Faculty prior to issuance of the final determination. If the decisionmaker recommends dismissal for a tenured faculty member, then such recommendation will be presented by the Dean of the Faculty to the Board of Trustees for review in accordance with the College’s Faculty Handbook. If a recommendation for dismissal is not upheld by the Board of Trustees, then the Dean of the Faculty will recommend modifications to any contemplated sanctions.
a. Examples of possible sanctions are outlined in Section VI.B.5 of the Nondiscrimination and Anti-Harassment Policy and Procedures.
b. Except as otherwise provided herein, when determining appropriate sanctions the decisionmaker may consider a variety of factors outlined in the Nondiscrimination and Anti-Harassment Policy and Procedures.
2. Remedial Measures: The College will take any remedial measures that are necessary to remedy the effects of any discrimination, harassment, sexual misconduct, or retaliation, including cases where a respondent is a visitor or other third party, over whom the College has limited, if any, authority.
3. Pattern of Inappropriate Behavior: The College reserves the right to further discipline individuals who have a demonstrated a pattern of inappropriate behavior that violates the College’s policies or community standards, regardless of whether some conduct is prohibited by Title IX. A pattern of behavior is defined as two or more instances determined to violate College policy regardless of whether the behavior is similar or close in duration. When appropriate, the College will further discipline these individuals (up to and including dismissal or termination) in accordance with other College policies.
VII. APPEAL PROCESS
A. Grounds for Appeal
1. Either party may submit an appeal of the College’s dismissal of a formal complaint or any allegations therein or the decisionmaker’s determination regarding responsibility. The parties may only appeal such determinations on the following bases:
a. A procedural irregularity affected the outcome of the matter;
b. New evidence was not reasonably available at the time the determination regarding responsibility or dismissal was made, that could affect the outcome of the matter; or
c. The Title IX Coordinator, investigator, or decisionmaker had a conflict of interest or bias for or against complainants or respondents generally or the individual complainant or respondent that affected the outcome of the matter.
2. The College will not accept any appeal that is not properly or timely filed and will provide both parties notice of such dismissal. The College will notify the other party in writing when an appeal is filed.
B. Appeal Procedure
1. Submitting an Appeal
a. Appealing the decision to dismiss: If either party wishes to appeal the Title IX Coordinator’s decision to dismiss the formal complaint or any allegations therein from these Title IX procedures, then the party must submit an appeal in writing on a form provided by the College within seven (7) days of the Title IX Coordinator’s written decision, outlining the justification for full or partial dismissal of the formal complaint. The appeal will be submitted to the President and will be reviewed by a member of the President’s Office. Each party is limited to submitting one appeal of a dismissal decision per case.
b. Appealing the determination regarding responsibility: If either party wishes to appeal the decisionmaker’s finding of responsibility or non-responsibility, then the party must submit an appeal in writing on a form provided by the College to the Title IX Coordinator within seven (7) days of the decisionmaker’s written decision. The appeal will be reviewed by the Vice President of Student Life/Dean of Students for cases involving staff respondents, the Vice President for People and Workplace Culture for student respondents, and a member of the President’s Office for faculty respondents. Each party is limited to submitting one appeal of the determination regarding responsibility per case.
c. Suspension of Sanctions: Sanctions will be suspended pending the outcome of the appeal. All sanctions will take effect upon the expiration of the deadline for appeal or the issuance of the final decision by the appellate decisionmaker.
2. Dismissing Groundless Appeals: The appellate decisionmaker may, after reviewing the appeal, deny the appeal without further process if the appeal is groundless—i.e., the appeal is not based on the grounds specified above. In such a case, both parties will be notified of the decision, and the party who did not submit the appeal will be provided a copy of the appeal, but they will not need to provide any response.
3. Responding to the Appeal: If an appeal is not denied without further process, then both parties will have an equal opportunity to submit a written statement in support of, or challenging, the outcome in response to the appeal filed by the other party. Each party will receive a copy of the other party’s appeal and must respond to the appeal within the designated time period, which shall be equivalent for both parties.
C. Reaching a Decision
1. The appellate decisionmaker will review the appeal materials and take any other steps that are reasonably necessary to impartially evaluate the appeal. The appellate decisionmaker may conclude:
a. The original decision may be upheld, modified or reversed, including imposing different, enhanced or reduced disciplinary action or sanctions;
b. The case may be referred to the same or different investigator(s) for additional investigation; or
c. The case may be referred for some other appropriate resolution.
2. Written Determination on Appeal: The appellate decisionmaker will prepare a written determination to send to both parties simultaneously. The decision of the appellate decisionmaker is final.
VIII. FINAL OUTCOME
A. Notice of Final Outcome: Once the deadline for filing an appeal on a decision to dismiss or determination regarding responsibility has passed or upon the issuance of a final determination on appeal by the appellate decisionmaker, as applicable, a notice of final outcome will be issued by the Title IX Coordinator or Deputy Title IX Coordinator. The final outcome notice is what officially closes the formal complaint. In the event that a final outcome notice is issued following a decision to dismiss a formal complaint, then the College may, in its discretion, in consultation with the reporting party, proceed to resolve the allegations in accordance with the Nondiscrimination and Anti-Harassment Policy and Procedures.
B. Follow-up: If, as a result of these procedures, a party is found responsible for violating the Nondiscrimination and Anti-Harassment Policy and Procedures, then the Title IX Coordinator or Deputy Title IX Coordinator, may follow-up with both parties, as necessary, to ensure that the any sanctions issued have been implemented and served, and otherwise to address any issue that may arise. Following the issuance of a notice of outcome, the parties are expected to notify the Title IX Coordinator or Deputy Title IX Coordinator if prohibited conduct has not ceased or any acts of retaliation have occurred.
C. Continuing Effects: Even after a sanction is served, a reporting party may feel continuing effects of the incident. The College retains discretion to address continuing effects by instituting reasonable supportive measures.
IX. INFORMAL RESOLUTION PROCESS
A. Initiation of Informal Resolution Procedures: The College may offer an informal resolution process on a case-by-case basis, at any time after a formal complaint is filed. Given the inherent power dynamics, a formal complaint alleging sexual harassment by an employee against a student, will not be allowed to proceed through an informal resolution process to resolve allegations that an employee sexually harassed a student.
1. General Requirements: An informal resolution may only be offered after a formal complaint is filed. An informal resolution process will not involve a full investigation and adjudication. The informal resolution process will commence only if the College receives both parties’ voluntary, written consent to the informal resolution process
2. Written Notice Before Process Begins: Before proceeding with an informal resolution process, the ollege will provide written notice to both parties. The notice will contain the allegations and the requirements of the informal resolution process. The notice will inform the parties that all communications concerning and during the informal resolution process will be kept confidential in the event that the parties withdraw from the informal resolution process and proceed with the investigative procedures.
3. Withdrawing from the Informal Resolution Process: At any time prior to agreeing to a resolution, any party has the right to withdraw from the informal resolution process and resume the formal grievance process with respect to the formal complaint. Any records or documentation generated concerning the parties’ engagement in the informal process will not become part of the investigative file.
B. Possible Informal Resolution Processes: The College will determine, based on the circumstances and with input from both parties, which informal resolution process is appropriate to resolve the formal complaint.
1. Facilitated Communication: The Title IX Coordinator, Deputy Title IX Coordinator, or other designated official may facilitate communication with the respondent where the complainant should not communicate directly with the respondent.
2. Mediation: The reporting party and the respondent may discuss and attempt to resolve the matter informally with the assistance of a person the College designates as the mediator.
3. Other Processes: There may be other available informal resolution procedures. For example, a restorative justice approach may be offered to the parties and used as an approach to address a complaint or report of prohibited conduct under this Policy.
C. Possible Outcomes: A decision on responsibility will not be made as part of the informal resolution process. The wishes of the parties will govern the outcome of the informal resolution process. Additionally, the College will seek to ensure that the parties’ agreeable outcome is targeted at stopping the alleged misconduct.
X. MISCELLANEOUS
A. Retaliation prohibited
The College prohibits retaliation. It is a violation of this Policy to intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX or because the individual has made a report or complaint, testified, assisted, participated or refused to participate in any manner in an investigation, proceeding, or hearing under this Policy.
B. Recordkeeping
1. Creation. In each instance, the College will document the basis for its conclusion that its response was not deliberately indifferent, and document that it has taken measures designed to restore or preserve equal access to the College’s education program or activity. If the College does not provide a complainant with supportive measures, then the College will document the reasons why such a response was not clearly unreasonable in light of the known circumstances. The documentation of certain bases or measures does not limit the College in the future from providing additional explanations or detailing additional measures taken.
2. Maintenance. All recordkeeping obligations required by Title IX, including records of the College’s response to formal complaints of Title IX Sexual Harassment and Title IX training materials are as specified in the Records Policy: Retention and Disposition of Records and the Policy on Disciplinary Records and Sexual Harassment Investigations.
C. Training
1. Title IX Coordinator, Investigators, Decisionmakers. The Title IX Coordinator, investigators, decisionmakers and persons who facilitate the informal resolution process will receive periodic training on how to serve impartially and without bias, including by avoiding prejudgment of the facts at issue, conflict of interest and bias. The Title IX Coordinator and Deputy Title IX Coordinator will receive additional training related to handling of reports of unlawful discrimination and harassment and the Title IX grievance procedures. The decisionmaker, as necessary, will receive training on facilitating live hearings.
2. Officials with Authority. The College will provide officials with authority training so that they know how to respond appropriately to reports of unlawful Title IX Sexual Harassment.
3. Employees. The College will provide periodic training to employees related to recognizing and reporting Title IX Sexual Harassment.
4. Students. The College annually notifies students of the College’s Nondiscrimination and Anti-Harassment Policy and Procedures, the Title IX Coordinator’s contact information, and information about how to report and file complaints of sex discrimination and how to report and file formal complaints of Title IX Sexual Harassment. Materials used to train the Title IX Coordinator, Deputy Title IX Coordinator, investigators, decisionmakers, and employees will be accessible on the College’s website.
