Title IX Policy and Procedure
Members of The W community, guests and visitors have the right to be free from all forms of sex/gender harassment, discrimination and misconduct, examples of which can include acts of sexual violence, sexual harassment, domestic violence, dating violence, and stalking. All members of the campus community are expected to conduct themselves in a manner that does not infringe upon the rights of others. When an allegation of misconduct is brought to an appropriate official’s attention, protective and other remedial measures will be offered and may be used to reasonably ensure that such conduct ends, is not repeated, and the harm on the individual affected and community are remedied, including serious sanctions when a responding party is found to have violated this policy.
This policy has been developed to reaffirm these principles and to provide recourse for those individuals whose rights have been violated. The W’s Title IX Policy (“Policy”) is not meant to inhibit or prohibit educational content or discussions inside or outside of the classroom that include controversial or sensitive subject matters protected by academic freedom. Academic freedom extends to topics that are pedagogically appropriate and germane to the subject matter of courses or that touch on academic exploration of matters of public concern.
Non-Discrimination Policy Statement
Mississippi University for Women is committed to providing an environment that is free from discrimination and harassment based upon race, color, ethnicity, national origin, sex, pregnancy, religion, disability, age, sexual orientation, gender identity, genetic information, veteran status or any other status protected by state or federal law. The University will not tolerate discrimination or harassment in any of its programs or activities and is committed to preventing and stopping discrimination or harassment whenever it may occur at the University or in its programs.
This policy will be interpreted so as to avoid infringement upon First Amendment rights of free speech or academic freedom. A determination as to whether discrimination or harassment has occurred will be based upon the context in which the alleged conduct occurs.
This policy applies to all employees, students, visitors, volunteers, applicants and program participants. Any person who has experienced or observed any discrimination and/or harassment must report it as soon as possible. No student or employee should assume that an official of the University knows about a particular situation unless it has been reported. To make a report, go to https://www.muw.edu/reporting or contact EthicsPoint (1-877-310-0424) or online at www.muw.ethicspoint.com. Reporters may remain anonymous if desired.
It is a violation of this policy for a supervisor or administrator to disregard or delay reporting an allegation of discrimination or harassment. In addition, retaliation against a person who has made a report or filed a complaint, is a witness to, or has participated in the investigation of a complaint of discrimination or harassment is prohibited.
Title IX of the Education Amendments of 1972
Title IX of the Education Amendments of 1972 The Policy addresses all forms of discrimination on the basis of sex, including sexual harassment. Mississippi University for Women does not discriminate on the basis of sex, gender, or gender identity in its educational, extracurricular, athletic, or other programs or in the context of admissions or employment in accordance with Title IX of the Education Amendments of 1972 and the regulations found in Part 106 of Title 34 of the Code of Federal Regulations (Title IX).
Title IX is a federal law that provides that, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
The W, as an educational community, will promptly and equitably respond to all reports of sex discrimination in order to eliminate the misconduct and/or harassment, prevent its recurrence, and address its effects on any individual or the community. The Policy applies to all members of the University community including: students, employees, volunteers, independent contractors, visitors, and any individuals regularly or temporarily employed, studying, living, visiting, conducting business, or having any official capacity at the University.
Title IX Coordinator and Title IX Deputies (“Title IX Team”)
The Title IX Coordinator is the employee at the University, designated and authorized to coordinate the institution’s efforts to comply with Title IX. The Title IX Coordinator and the Title IX Deputies (“Title IX Team”) oversee the implementation of grievance procedures, which includes notification, investigation and disposition of complaints of sex discrimination and sexual harassment. The Title IX Coordinator will coordinate the provision of educational materials and training for the campus community. Additionally, the Title IX Team will ensure a fair and neutral process for all parties and monitor all other aspects of the University’s Title IX compliance.
Reports of sex discrimination or sexual harassment to the University Title IX Coordinator can be made in person, by mail, by telephone, or by electronic mail, using the contact information listed for the Title IX Coordinator, or by any other means that results in the Title IX Coordinator receiving the person’s verbal or written report. A report may be submitted at any time (including during non-business hours) by using the telephone number or electronic mail address, or by mail to the office address, listed for the Title IX Coordinator. The Title IX Coordinator can be contacted by telephone, email, or in person at:
Title IX Coordinator
Karen G. Clay, University Counsel and Interim Title IX Coordinator
Mississippi University for Women
Welty Hall, Room 301, 1100 College Street, Columbus MS 39701
(662) 329-7104 or firstname.lastname@example.org
Office of Civil Rights
U.S. Department of Health and Human Services
61 Forsyth Street, S.W.
Atlanta, GA 30303-8909
Phone: (404) 331-2867
Section 1: Definitions
Actual Knowledge: Actual Knowledge is notice of sexual harassment or allegations of sexual harassment to one of the University’s Title IX Coordinator, Title IX Deputies, or any University official who has authority to institute corrective measures on behalf of the University.
Formal Complaint: A document filed by a reporting party, or signed by the University Title IX Coordinator, alleging sexual harassment against a responding party and requesting that the University investigate the allegation of sexual harassment. At the time of filing a formal complaint, a complainant must be participating in or attempting to participate in the institution’s education program or activity of the institution in with which the formal complaint is filed. A formal complaint may be filed with the Title IX Coordinator in person, by mail, or by electronic mail, by using the contact information required to be listed for the Title IX Coordinator or any additional method designated by the institution. Additionally, a “document filed by a reporting party” can be in the form of an electronic submission (such as by electronic mail or through an online portal provided for this purpose by the institution) that contains the reporting party’s physical or digital signature, or otherwise indicates that the reporting party is the person filing the formal complaint.
Complainant: A reporting party is defined as an individual who is alleged to be the victim of conduct that could constitute sexual harassment as defined in 34 C.F.R. § 106.30(a).
Responding Party: A responding party is defined as an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment as defined in 34 C.F.R. § 106.30(a).
Title IX Sexual Harassment: Conduct on the basis of sex that satisfies one or more of the following:
- Quid Pro Quo – An employee of the recipient conditioning the provision of an aid, benefit, or service of the recipient on an individual’s participation in unwelcome sexual conduct;
- Hostile Environment – 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 recipient’s education program or activity; or
- Sexual assaulti – a forcible or non-forcible sex offense as classified under the Uniform Crime Reporting system of the FBI, to include:
- Rape – The carnal knowledge of a person, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity. Carnal knowledge is defined as the slightest penetration of the sexual organ of the female (vagina) by the sexual organ of the male (penis). Attempts or assaults to commit rape are considered rape under this Policy.
- Sodomy – Oral or anal sexual intercourse with another person, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity.
- Sexual Assault with An Object – To use an object or instrument to unlawfully penetrate, however slightly, the genital or anal opening of the body of another person, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity. An object or instrument is anything used by the offender other than the offender’s genitalia, e.g., a finger, bottle, handgun, stick.
- Fondling– The touching of the private body parts of another person for the purpose of sexual gratification, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity.
- Incest– Sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.
- Statutory Rape – Sexual intercourse with a person who is under the statutory age of consent.
- Dating violence means the use of physical, sexual or emotional abuse or threats to control another person who is, or has been involved in, a sexual, dating, or other intimate relationship with the Complainant. Whether there was such a relationship will be gauged by its length, type, and frequency of the interaction.
- Domestic Violence is any crime of violence, to include misdemeanors or felonies committed by current or former spouse or intimate partner, or anyone else protected under domestic or family violence laws in Mississippi.
- Stalking is engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear for their safety or the safety of others or suffer substantial emotional distress.
Supportive Measures: 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 the filing of a formal complaint or where no formal complaint has been filed. Such measures are designed to restore or preserve equal access to the University’s education program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties or the University’s educational environment, or deter sexual harassment.
Supportive measures may include:
- Extensions of deadlines or other course-related adjustments;
- Modifications of work or class schedules;
- Campus escort services;
- Mutual restrictions on contact between the parties;
- Changes in work or housing locations;
- Increased security and monitoring of certain areas of campus; and
- Other similar measures.
Consent: An informed, freely given agreement, communicated by clearly understandable words or actions, to participate in each form of sexual activity. General guidance for consent:
- Consent cannot be inferred from silence, passivity, or lack of active resistance.
- A current or previous dating or sexual relationship is not sufficient to constitute consent, and consent to one form of sexual activity does not imply consent to other forms of sexual activity.
- When consent is requested verbally, absence of any explicit verbal response constitutes lack of consent. A verbal “no” constitutes lack of consent, even if it sounds insincere or indecisive.
- By definition, there is not consent when there is a threat of force or violence or any other form of coercion or intimidation, physical or psychological.
- Either person may withdraw consent at any time. Withdrawal of consent should be outwardly demonstrated by words or actions that clearly indicate a desire to end sexual activity. Once withdrawal of consent has been expressed, sexual activity must cease.
- A person who is the object of sexual aggression is not required to physically or otherwise resist the aggressor; the lack of informed, freely given consent to sexual contact constitutes sexual misconduct. Intoxication is not an excuse for failure to obtain consent.
- A person incapacitated by alcohol or drug consumption, or who is unconscious or asleep or otherwise physically or mentally impaired, is incapable of giving consent.
- A person who is below the legal age of consent is incapable of giving consent.
Advisor: The term “Advisor” means any person who is invited by the Respondent or Complainant, or who is assigned by the University, to attend any meetings, investigative sessions, hearings, or conferences. For the purposes of hearings, the Advisor must conduct a cross-examination on all issues of credibility.
Education Program or Activity: Means locations, events, or circumstances over which the University exercises substantial control over both the Respondent and the context in which the sexual harassment occurs and also includes any building owned or controlled by a student organization that is officially recognized by The W.
Section 2: Grievance Procedure
The W strongly supports and encourages prompt reporting of sex discrimination and harassment so that resources can be provided and the community can remain safe. All University community members (students, faculty, and staff) should help ensure that violations of the Policy are promptly reported. Most University employees are mandatory reporters as described in the Importance of Reporting section below. Normally, this means reporting any witnessed violations or violations learned about through the disclosure of a reporting party. Reporting is not the same as filing a formal complaint (although for some purposes a formal complaint may also serve as a report).
If a person believes they or someone they directly know has been the victim of sex discrimination, it should promptly be reported to the University’s Title IX Coordinator. This could be done in person, by mail, by telephone, or by electronic mail using the contact information listed above for the Title IX Coordinator. Such a report can be made at any time (including during non-business hours) by using the telephone number, email address, or by sending mail to the office address listed in this policy. Additionally, if a person believes they or someone they directly know has been the victim of sex discrimination a report may be made to the University Police Department at (662) 241-7777.
A person filing a complaint will be provided with information regarding the University’s Title IX policy and procedures as well as confidential resources and information for reporting criminal offenses to campus and local law enforcement. Instances of sex discrimination may violate both the University’s sex discrimination policy and the law. As a result, the University encourages victims to pursue their complaints through both the University’s process for sex discrimination and through the criminal justice system. The Columbus Police Department, which can be reached at (662) 244-3500, can explain the procedures for pursuing a criminal investigation of sex discrimination.
Notice to Respondent: When a formal, written complaint is made, notice will be given to the accused party prior to any initial interview. The Respondent will be provided with notice of the grievance process, notice of the allegations, including sufficient details known at the time, and will be provided with a written statement that the respondent is presumed not responsible for the alleged conduct and that a determination on responsibility is made at the end of the grievance process. The Respondent will also be provided with supportive measures.
Notice to Both Parties: Parties may have an advisor of their choice throughout the course of the process and each party will be provided with a Pre-Hearing Process Advisor at the time of making the formal complaint and receiving the notice of the allegation. Both parties will also be informed that the student code of conduct and employee handbook prohibit submitting false information or statements. Unless the complaint involves an employee, both parties are also informed that they may request Informal Resolution at any time.
Investigation: A complete and thorough investigation into a complaint shall be conducted by members of the Title IX Team. The preliminary investigation shall be concluded as quickly as possible within the timeline set by this policy. The investigation will be conducted in a manner that is thorough, reliable, and impartial and may include interviews of the parties involved, including witnesses, and the gathering of other relevant information and documentation. A copy of the investigative report will be made available to both the Complainant and Respondent for the purposes of review all evidence obtained that will be used in reaching a determination of responsibility.
Privacy: To the greatest extent possible, the University will treat all reported violations of this policy as private and confidential. If a Complainant requests confidentiality or asks that the incident not be pursued, the University will take all reasonable steps to investigate and respond to the incident consistent with the request for confidentiality or the request not to pursue an investigation. If the Complainant asks that his or her name or other identifiable information not be revealed, the University will evaluate that request in the context of its responsibility to provide a safe and nondiscriminatory environment for all members of the community.
Grounds for Dismissal of Formal Complaint: If upon review of the formal complaint the University determines any of the following, the University will dismiss the complaint from investigation under this Policy if the alleged conduct:
- Would not constitute Sexual Harassment, assuming the allegations were true;
- Did not occur in the University’s education program or activity, or;
- Did not occur against a person in the United States.
The University may also dismiss a formal complaint or allegations therein if:
- A Complainant notifies the Title IX Coordinator in writing that the Complainant would like to withdraw the formal complaint or any allegations therein;
- The Complainant or Respondent is no longer enrolled or employed by the University, or;
- Specific circumstances prevent the University from gathering evidence sufficient to reach a determination as to the formal complaint or allegations therein.
Such a dismissal does not preclude the University from proceeding under another University conduct process.
The University will send written notice of the dismissal and the reasons for dismissal simultaneously to all parties.
Equitable Treatment: The parties are eligible for Supportive Measures as defined within this Policy. The University will not impose disciplinary sanctions against a respondent unless a determination of responsibility for sexual harassment has been made against the respondent.
The University will provide an equal opportunity for the parties to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence.
The University will conduct an objective evaluation of all relevant evidence – including both inculpatory and exculpatory evidence. The University will not require, allow, rely upon, evaluate, or otherwise use questions or evidence that constitute, or seek disclosure of, information protected by a legally recognized privilege (e.g., attorney client), unless the person holding such privilege has waived the privilege.
The parties will have an equal opportunity to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint, including the evidence upon which the University does not intend to rely in reaching a determination regarding responsibility and inculpatory or exculpatory evidence whether obtained from a party or other source. The University will not consider or provide for inspection and review evidence which the University knows was illegally or unlawfully created or obtained. The University may impose on the parties and party advisors restrictions or require a non-disclosure agreement not to disseminate any of the evidence subject to inspection and review.
Bias and Conflicts of Interest: Any individual designated by the University as a Title IX Coordinator, investigator, hearing officer, or any person designated by a University to facilitate an informal resolution process, must not have a conflict of interest or bias for or against complainants or respondents, generally, or any individual complainant or individual respondent.
The following will not be considered evidence of bias:
- The Title IX Coordinator’s initiation of a formal complaint, or;
- An individual’s decision that allegations warrant an investigation.
The University will apply an objective (whether a reasonable person would believe bias exists), common sense approach to evaluating whether a particular person serving in a Title IX role is biased, and will exercise caution not to apply generalizations that might unreasonably conclude that bias exists. An individual’s current job title, professional qualifications, past experience, identity, or sex will not alone indicate bias.
Use of trauma-informed practices will not be considered evidence of bias when such practices do not:
- Rely on sex stereotypes;
- Apply generalizations to allegations in specific cases;
- Cause loss of impartiality, and;
- Prejudge of the facts at issue.
Presumption of Not Responsible: There is a presumption that a respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process.
Timeframe: The University will attempt to complete most investigations within  days. The timeframe for formal investigations will begin upon filing of a complaint and will conclude upon submittal for adjudication. Investigations may be delayed and timeframes for investigations may be extended for good cause and with written notice provided by the University to reporting parties and responding parties including the reason for the delay or extension. Good cause may include considerations such as the absence of a party, a party’s advisor, or a witness; concurrent law enforcement activity; or the need for language assistance or accommodation of disabilities. Delays caused solely by administrative needs are not considered good cause. The University will attempt to accommodate the schedules of parties and witnesses, however, grievance resolution must be completed in a reasonably prompt timeframe, and must proceed to conclusion even in the absence of a party or witness.
Emergency Removal: If, after receipt of a complaint and an individualized safety and risk assessment, the University determines that an immediate threat to the physical health or safety of any student or other individual arising from the allegations of sexual harassment justifies removal of a respondent, the University may remove the respondent on an emergency basis. A removed respondent will receive notice and an opportunity to challenge the decision immediately following the removal. Threats must pose more than a generalized, hypothetical, or speculative risk to health and safety for emergency removal to be appropriate. Non-student employees may be placed on administrative leave during the grievance process.
Notice: The University will provide to all known parties, written notice of:
- The University’s Title IX grievance process;
- Allegations of sexual harassment, including sufficient details known at the time and with sufficient time to prepare a response before any initial interview;
- The University’s position that the responding party is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the grievance process;
- The parties right to have an advisor of their choice, who may be an attorney;
- The parties right to inspect and review evidence;
- The University’s prohibition on knowingly making false statements or knowingly submitting false information during the grievance process;
- The date, time, location, participants, and purpose of all hearings, investigative interviews, or other meetings, with sufficient time for the party to prepare to participate; and
- Additional allegations not included in the original notice.
Consolidation of Formal Complaints: The University may consolidate formal complaints as to allegations of sexual harassment against more than one responding party, or by more than one reporting party against one or more responding parties, or by one party against the other party, where the allegations of sexual harassment arise out of the same facts or circumstances. The same facts and circumstances means that the multiple reporting parties’ allegations are so intertwined that their allegations directly relate to all parties.
Advisors: Parties will have equal opportunities to have others present during the grievance proceeding, including the opportunity to be accompanied by the advisor of their choice, who may be, but is not required to be, and attorney. Each party will also be assigned a Title IX Deputy as a pre-hearing process advisor. The University will not limit the choice or presence of an advisor for either party in any meeting or grievance proceeding. Advisors are required to abide by University restrictions regarding the extent to which they may participate in proceedings, and any restrictions will apply equally to both parties. If a party’s advisor refuses to comply with restrictions set by the University, the University may require the party to use a different advisor.
Treatment Records: The University 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, unless the University obtains that party’s voluntary, written consent.
Party Discussion of Allegations: The University will not restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence. A party’s communication with a witness or potential witness is considered part of a party’s right to meaningfully participate in furthering the party’s interests in the case, and not an “interference” with the investigation. However, where a party’s conduct toward a witness might constitute “tampering” (for instance, by attempting to alter or prevent a witness’s testimony), such conduct also is prohibited as retaliation.
Section 3: Interim Support Measures
Upon receipt of a report, the University will provide interim support and reasonable protective measures to prevent further acts of misconduct, and to provide a safe educational and work environment. The University will determine the necessity and scope of any interim support measures. Even when a complainant and/or respondent does not specifically request that protective action be taken, the University may choose to impose interim support measures at its discretion to ensure the safety of any individual, the broader University community, or the integrity of the review process.
The Title IX Coordinator or designee will promptly contact the complainant to discuss the availability of supportive measures, consider the complainant’s wishes with respect to supportive measures, inform the complainant of the availability of supportive measures with or without the filing of a formal complaint, explain to the complainant the process for filing a formal complaint, and will coordinate such requests on the behalf of the person. The University will maintain contact with the parties to ensure that all safety and emotional and physical well-being concerns are being addressed.
All individuals are encouraged to report concerns about failure of another individual to abide by any restrictions imposed by an interim measure. The University will take immediate and responsive action to enforce measures previously ordered or implemented by the University.
The University may impose any remedy that can be tailored to the involved parties to achieve the goals of this policy, even if not specifically listed here. The range of interim support measures may include, but are not limited to:
- No Contact Order: a complainant or respondent may request, or the University may impose, communication and contact restrictions to prevent further potentially harmful interaction. These communications and contact restrictions generally preclude in person, telephone, electronic or third party communications. In some cases, an individual may also wish to consider a Protection Order from the local courts. This is a civil proceeding independent of the University. If a court order is issued, the University will, to the best of institution’s ability, assist the protected person in benefiting from the restrictions imposed by the court and facilitate on campus compliance with the order. The University may also limit an individual or organization’s access to certain University facilities or activities as part of the no contact order.
- Academic, Employment, or Residence Modifications: A complainant or respondent may request an academic or employment modification or a change in residence after a report of sex discrimination. An individual who requests assistance in changing their academic, employment or living situation after an incident of sex discrimination will receive appropriate and reasonably available modifications. These may include:
- Academic modifications; including a change in class schedule, taking an incomplete, dropping a course without penalty, attending a class via electronic or other alternative means, providing an academic tutor, or extending deadlines for assignments;
- Change of residential living assignment;
- Change in work assignment or schedule;
- Providing an escort to ensure safe movement around campus.
- Emotional Support: The University will provide access to counseling services for students through The Campus Counseling Center or may assist in providing a referral to off campus agencies. Employees will have access to counseling resources through the Employee Assistance Program (EAP).
- Interim Separation: Where the report of sex discrimination poses an ongoing risk of harm to the safety or well-being of an individual or members of the campus community, the University may place an individual or organization on interim suspension or impose leave for an employee. Pending resolution of the complaint, the individual or organization may be denied access to campus. When interim suspension or leave is imposed, the University will make reasonable efforts to complete the investigation and resolution within an expedited time frame.
Section 4: Informal Resolution
With the agreement of both parties, a formal complaint under the sex discrimination policy may be resolved using an informal resolution process (mediation) overseen by one or more members of the Title IX Team or its designee if (i) the University determines, in its discretion, that such a process would be appropriate; and (ii) all parties voluntarily agree and provide written consent to participate. An informal resolution process is available at any time prior to reaching a determination regarding responsibility in the grievance process. Informal resolution is not available in cases of sexual harassment of a student by a University employee.
Before initiating informal resolution, the University will provide written notice to the parties disclosing the allegations, the requirements of the informal resolution process, and any consequences resulting from participating in the informal resolution process, including the records that will be maintained or could be shared.
The parties to any such informal process will not be required to deal directly with one another. Instead, after a preliminary review of the reported incident the Title IX Coordinator or other official selected by the Title IX Team will commence coordinated discussions with both the reporting party and the responding party in order to seek a mutually agreed upon resolution. At any time, if either party is dissatisfied with the proceedings of the informal resolution process, that party may request the informal resolution process be terminated, in which case the formal resolution procedure (described below) would commence. In addition, any party can pursue formal resolution if dissatisfied with a proposed informal resolution. The parties may not request formal resolution after the parties fully complete the informal resolution process. Finally, as described above, the University may elect to pursue a formal resolution procedure even if the reporting party does not wish a formal resolution. During informal resolution, the parties have the right to be assisted by an advisor of their choice. The parties, however, are responsible for presenting their own information and, therefore, advisors are not permitted to cross-examine or question any party or to participate directly in the informal resolution process.
Section 5: Formal Resolution
For allegations of sexual discrimination that cannot be resolved informally, a Title IX Hearing Panel, comprised of three Title IX Deputies who have not been involved in advising or investigating the parties, shall be conducted. One member of the panel will serve as the Chairperson. The purpose of the Hearing Panel is to determine responsibility and make recommendations for sanctioning. The obligation of the Hearing Panel is to objectively evaluate all relevant evidence both inculpatory and exculpatory, and must therefore independently reach a determination regarding responsibility without giving deference to the investigative report.
The Title IX Hearing Panel has the right and responsibility to ask questions and elicit information from parties and witnesses on their own initiative to aid the Hearing Panel in obtaining relevant evidence. The parties also have equal rights to present evidence in front of the Hearing Panel so that the Hearing Panel has the benefit of perceiving each party’s unique perspectives about the evidence. The Title IX Coordinator may also appoint a hearing officer to oversee and/or conduct the hearing.
Investigative Report: The University will prepare an investigative report that fairly summarizes relevant evidence. Prior to completion of the investigative report, the University will send to each party and the party’s advisor, if any, the evidence subject to inspection and review in an electronic format or a hard copy, and the parties will have 10 days to submit a written response, which the investigators will consider prior to completion of the investigative report. All evidence subject to the parties’ inspection and review will be available at any hearing to give each party equal opportunity to refer to such evidence during the hearing, including for purposes of cross-examination.
At least 10 days prior to a hearing or other time of determination regarding responsibility, the University will send to each party and the party’s advisor, if any, the investigative report in an electronic format or a hard copy, for their review and written response. The report will not include a summary of evidence not considered to be relevant. If a party disagrees with an investigator’s determination about relevance, the party may argue relevance in their written response and/or to the Hearing Panel at the hearing.
The investigative report may include recommended findings and conclusions, however, the Hearing Panel will objectively evaluate relevant evidence and will not defer to recommendations made by the investigator. The investigative report may include a credibility analysis, but such analysis cannot result in a determination regarding responsibility. If the report involves multiple reporting parties, multiple responding parties, or both, the University may issue a single investigative report.
The report will include an assessment as to whether the conduct, if proven, would constitute Title IX Sexual Harassment as defined within this Policy, including whether the University has jurisdiction under this Policy. If not, the Title IX Coordinator or their designee will dismiss the formal complaint, notify the parties of the finding, and refer the matter to the appropriate University conduct process. The notification will include notice of the right of either party to appeal the dismissal of the formal complaint through the process set forth in this Policy.
Standard of Evidence: The standard of evidence for review of formal complaints under this Policy against students and employees, including faculty, is preponderance of the evidence. Preponderance of the evidence is a determination based on facts that are more likely true. Under the preponderance of the evidence standard, where the evidence in a case is “equal” or “level” or “in equipoise,” the preponderance of the evidence standard results in a finding that the responding party is not responsible.
The standard of evidence reflects the “degree of confidence” that the Hearing Panel has in correctness of the factual conclusions reached.
The University will apply the same standard of evidence for formal complaints against students as for formal complaints against employees, including faculty, and apply the same standard of evidence to all formal complaints of sexual harassment.
Burden of Proof: The burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility rests on the University and not on the parties.
Live Grievance Hearing
The parties will be provided with the Final Investigative Report not less than 10 days prior to the live grievance hearing and will also be provided with an informational packet including, but not limited to: a final investigative report, hearing rules and procedures, and the list of Title IX Hearing Panel officers.
The following are general guidelines for the hearing:
- The hearing is of an educational nature and is not subject to the rules of criminal proceedings.
- The hearing normally shall be conducted in private.
- The hearing shall be conducted live. Separate rooms, with technology enabling the Hearing Panel and the parties to simultaneously see and hear all proceedings may be arranged at the request of either party.
- The complainant, respondent, and their Advisors, shall be allowed to attend the entire portion of the live grievance hearing at which information is received.
- The complainant and respondent will receive the name(s) of the Hearing Panel officers prior to the live hearing. Either party may challenge any Hearing Panel Officer prior to the live hearing if they believe they have a conflict of interest. The Title IX Coordinator will review the concern and will have sole discretion to make a change in Hearing Panel Officers, including reducing the number on the panel.
- In hearings involving more than one respondent, the Title IX Coordinator, in his or her discretion, may permit the live hearing concerning each person to be conducted either separately or jointly.
- The parties have the right to be assisted by an Advisor that they select. In the event a party does not select an Advisor, the University will provide, without fee or charge to that party, an advisor who will conduct cross-examination on behalf of that party. Parties will not be permitted to conduct cross examination on their own. The University may require parties to acknowledge whether they intend to have an advisor present during the hearing.
- The complainant, respondent, and the Hearing Panel may arrange for witnesses to present pertinent information to the Hearing Panel. Witnesses will provide information to and answer questions from the Hearing Panel and answer questions during cross examination by either party’s advisor.
- The Hearing Panel Chair will make all determinations of relevance and procedure for the conference.
- After the portion of the hearing concludes, in which all pertinent information has been received, the Hearing Panel shall determine, by private deliberation and through majority vote, whether the respondent has violated the sex discrimination policy. In the event of a two-member panel, the decision must be unanimous.
- The Hearing Panel’s determination shall be made on the basis of whether it is more likely than not (a preponderance of evidence) that the respondent violated the University’s sex discrimination policy.
- There shall be a single verbatim record, such as a tape recording of the live grievance hearing. The record shall be the property of the University but, upon request, will be made available to the parties for inspection or review. No other recording is to be made during the hearing.
- After the hearing, the Hearing Panel will issue a written notice of outcome (determination of responsibility). The notice will include:
- Identification of the allegations potentially constituting sexual harassment
- A description of the procedural steps taken from the receipt of the formal complaint through the determination, including any notifications to the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, and hearings held;
- Findings of fact supporting the determination;
- Conclusions regarding the application of the Policy to the facts;
- A statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility, recommendations for disciplinary sanctions the University may impose, and whether remedies will be provided by the University to the complainant, and;
- The University’s procedures and permissible bases for the reporting party and responding party to appeal.
The determination will lay out the evidentiary basis for conclusions reached in the case. The nature of remedies, if any, will not be included within the determination. The determination will be provided to the parties simultaneously. The determination of responsibility becomes final either on the date that the Title IX Coordinator provides the parties with the written determination of the result of the appeal, if an appeal is filed, or if an appeal is not filed, the date on which an appeal would no longer be considered timely.
At the live hearing, the Hearing Panel will permit each party’s advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility. Cross examination at the live hearing will be conducted directly, orally, and in real time by the party’s advisor of choice and never by a party personally. All questioning will be relevant, respectful, and non-abusive. No party or witness will be “yelled” at or asked questions in an abusive or intimidating manner.
The Hearing Panel may determine a question is irrelevant, however, parties are not permitted to waive a question.
If a party or witness does not submit to cross-examination at the live hearing, the Hearing Panel will not rely on any statement of that party or witness in reaching a determination regarding responsibility. The Hearing Panel will not draw an inference about the determination regarding responsibility based solely on a party’s or witness’s absence from the live hearing or refusal to answer cross-examination or other questions. Exceptions to this rule will not be made, including for:
- Statements against a party’s interest;
- Unavailability of a witness, including for death or post-investigation disability;
- Statements of a party or witness contained within police or SANE reports;
- Statements in texts or emails which do not constitute verbal conduct.
Video evidence showing the conduct alleged within a complaint may be considered, even if the party does not submit to cross-examination.
A respondent’s alleged verbal conduct, that itself constitutes the sexual harassment at issue, is not considered the respondent’s statement, and constitutes part or all of the underlying allegation of sexual harassment itself.
Relevance: During the hearing, only relevant cross-examination and other questions may be asked of a party or witness. The following may be considered irrelevant:
- Repetition of the same question;
- Evidence that is duplicative of other evidence;
- Information protected by a legally recognized privilege;
- Questions and evidence about the reporting party’s sexual predisposition or prior sexual behavior, unless:
- Such questions and evidence about the complainant’s prior sexual behavior are offered to prove that someone other than the respondent committed the conduct alleged by the complainant; or
- The questions and evidence concern specific incidents of the reporting party’s prior sexual behavior with respect to the responding party and are offered to prove consent;
- Any party’s medical, psychological, and similar records, unless the party has given voluntary, written consent; and
- Party or witness statements that have not been subjected to cross examination at a live hearing.
The University will not exclude relevant evidence because such relevant evidence may be unduly prejudicial, concern prior bad acts, or constitute character evidence, however, the Hearing Panel Chair may objectively evaluate such evidence by analyzing whether that evidence warrants a high or low level of weight or credibility. Before a party or witness answers a cross-examination or other question, the Hearing Panel Chair will first determine whether the question is relevant and explain any decision to exclude a question as not relevant. The University will not require parties to submit cross-examination questions before they are asked. The Hearing Panel Chair is not required to give a lengthy or complicated explanation of a relevancy determination during the hearing.
The Chair may send to the parties after the hearing any revisions to the Chair’s explanation that was provided during the hearing.
Weighing Credibility: The Hearing Panel will evaluate all admissible, relevant evidence for weight or credibility. The degree to which any inaccuracy, inconsistency, or implausibility in a narrative provided by a party or witness should affect a determination regarding responsibility is a matter to be decided by the Hearing Panel, after having the opportunity to ask questions of parties and witnesses, and to observe how parties and witnesses answer the questions posed by the other party. Corroborating evidence is not required.
Credibility determinations are not based solely on observing demeanor, but also are based on other factors (e.g., specific details, inherent plausibility, internal consistency, corroborative evidence). Cross-examination brings those important factors to a Hearing Panel’s attention. A party’s answers to cross-examination questions can and should be evaluated by a Hearing Panel in context, including taking into account that a party may experience stress while trying to answer questions. Parties will not be unfairly judged due to inability to recount each specific detail of an incident in sequence, whether such inability is due to trauma, the effects of drugs or alcohol, or simple fallibility of human memory.
Section 6: Sanctions and Remedies
Sanctions and Remedies: Sanctioning can vary according to the relationship (student, faculty, or staff) the respondent has with the University. If the complainant is a student, the Hearing Panel will make sanctioning recommendations based on sanctions described in the Student Code of Conduct. The recommendation will be sent to the Vice President for Student Affairs for final approval. If the reporting party is a faculty member, the Hearing Panel will make sanctioning recommendations. The recommendation will be sent to the Provost for final approval. If the reporting party is a staff member, the Hearing Panel will make sanctioning recommendations. The recommendation will be sent to the Office of Human Resources for final approval. Sanctions may include anything from a warning, up to and including disciplinary expulsion or termination.
The University will also provide remedies to complainants found to have been subjected to conduct which violates the Policy. Remedies could include counseling, academic accommodations, academic support, and employment accommodations.
Section 7: Appeals
A decision reached by the Title IX Hearing Panel may be appealed by either party to the Title IX Coordinator within five (5) business days of receiving the written determination. Such appeals shall be in writing and shall be delivered to the Title IX Coordinator.
The University will notify the other party in writing when an appeal is filed and implement appeal procedures equally for both parties. Both parties will have a reasonable, equal opportunity to submit a written statement in support of, or challenging, the outcome.
The appeal will be assigned to a three-member Appellate Panel who will issue a written decision describing the result of the appeal and the rationale for the result and provide the written decision simultaneously to both parties.
Except as required to explain the basis of new information, an appeal shall be limited to a review of the verbatim record of the Title IX Hearing and supporting documents for one or more of the following purposes:
- A procedural irregularity that affected the outcome of the matter.ii
- To determine whether the Hearing Panel was conducted fairly in light of the charges and information presented, and in conformity with prescribed procedures giving the reporting party a reasonable opportunity to prepare and to present information that the Title IX policy was violated, and giving the responding party a reasonable opportunity to prepare and to present a response to those allegations. Deviations from designated procedures will not be a basis for sustaining an appeal unless significant prejudice results.
- To consider new information, sufficient to alter a decision, or other relevant facts not brought out in the original hearing, because such information and/or facts were not known to the person appealing at the time of the original living hearing. Failure to appear at a hearing and prepare and to present information, when appropriate notice was provided, will not be an acceptable reason for appeal.
- The Title IX Coordinator, investigator(s), or decision-maker(s) had a conflict of interest or bias for or against complainants or respondents or the individual complainant or respondent that affected the outcome of the matter.
All grounds for appeal will be available to all parties.
The Appellate Panel will not have served as the advisor, investigator, or hearing panel officer in the case.
If an appeal is upheld by a majority decision of the Appellate Panel the matter shall be returned to the original Title IX Hearing Panel for re-opening of the grievance hearing to allow reconsideration of the original determination and/or sanction(s). If an appeal is not upheld by a majority decision, the matter shall be considered final and binding upon all involved.
Section 8: Amnesty for Those Who Report Sex Discrimination
The University encourages reporting and seeks to remove any barriers to reporting by making the procedures for reporting transparent and straightforward. The University recognizes that an individual who has been drinking alcohol or using drugs at the time of an act of sex discrimination may be hesitant to make a report because of potential consequences for his/her/their own conduct. An individual who reports sex discrimination, either as a reporting party or a third-party witness, will not be subject to disciplinary action by the University for his/her/their own personal consumption of alcohol or drugs at or near the time of the incident, provided that any such violations did not and do not place the health or safety of any other person at risk. The University may, however, initiate an educational discussion or pursue other educational remedies regarding alcohol or other drugs.
Section 9: Anti-Retaliation
Neither the University nor any other person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by this Policy, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under the regulations.
Intimidation, threats, coercion, or discrimination, including charges against an individual for code of conduct violations that do not involve sex discrimination or sexual harassment, but arise out of the same facts or circumstances as a report or complaint of sex discrimination, or a report or formal complaint of sexual harassment, for the purpose of interfering with any right or privilege secured by title IX or the regulations, constitutes retaliation. Complaints alleging retaliation may be filed according to the grievance procedures for sex discrimination adopted by the University.
Charging an individual with a code of conduct violation for making a materially false statement in bad faith in the course of a grievance proceeding under the regulations does not constitute retaliation, as described above, provided, however, that a determination regarding responsibility, alone, is not sufficient to conclude that any party made a materially false statement in bad faith. The exercise of rights protected under the First Amendment does not constitute retaliation prohibited under this provision.
Individuals who are alleged to engage in retaliatory tactics may face disciplinary action independent of the sanction or interim measures imposed in response to the underlying allegations of sex discrimination. Any acts of retaliation should be reported promptly to the Title IX Coordinator.
Section 10: Bystander Intervention
The University expects all community members to take reasonable and prudent actions to prevent or stop an act of sex discrimination. Appropriate action may include direct intervention, calling law enforcement, or seeking assistance from a person in authority. The University will support its members who choose to intervene in this fashion.
i The definitions used here are taken from the FBI UCR National Incident-Based Reporting System User Manual 2019.2, May 7, 2020.
ii Procedural irregularity includes the University’s failure to objectively evaluate all relevant evidence, including inculpatory and exculpatory evidence. It also includes erroneous relevance determinations.