- Title IX Compliance Office
Title IX Officer
- Susan Sermeno
The University is committed to providing a learning and working environment free from all forms of harassment and unlawful discrimination under any program or activity offered under its control. In keeping with this commitment, the University maintains a strict policy that prohibits sexual harassment and sexual violence, which includes sexual assault, and stalking.
Complaints may be made in person, by phone, in writing or by email to the Title IX Officer. The University encourages submission of complaints in written form. Title IX Policies and procedures are found in the General Catalog 2017-18, pp. 33 -37. The Academic Catalog is on the Current Student page of this website.
Sexual harassment, sexual violence and other gender-based or sex-based harassment occurring in the college setting invokes a federal law called Title IX of the Higher Education Amendments of 1972, which prohibits discrimination on the basis of sex in educational programs or activities, which triggers certain responsibilities on the part of the school. The University is committed to maintaining a positive learning and working environment and will address all complaints appropriately.
The University will respond promptly and effectively to reports of sexual harassment and sexual violence, and the take appropriate actions to prevent, correct, and when necessary, to discipline conduct that violates institutional policy. When the University determines, through its administrative process, that a violation has occurred, serious sanctions will be used to reasonably ensure that such actions are not repeated.
The University prohibits retaliation against any individual because that individual participated in any manner in a complaint process.
Civil Rights and Title IX Violations
Students who believe that they have been subjected to unlawful discrimination or harassment, sexual harassment, including sexual assault, sexual violence, and stalking carried out by employees, faculty, students and/or third parties, may use the formal grievance procedure to resolve their complaint. The student will have to file a formal complaint in writing. A student has the right, and can expect, to have allegations taken seriously by JFK University, and to have those incidents investigated and properly resolved through grievance procedures. Under the Civil Rights and Title IX grievance procedures students may, at any time, elect to stop these procedures. Upon receiving a report or complaint, the University’s Title IX Coordinator will review the complaint and conduct an immediate inquiry to determine whether there is reasonable cause to believe that there was a violation of the policy prohibiting class-based discrimination or harassment, i.e. a reasonable person would determine that further inquiry is warranted.
Conflicts of interest (real or perceived) by those handling the Title IX grievance procedure is prohibited. Either party may raise bias or conflict of interest regarding the Title IX Coordinator or others handling the Title IX Grievance Procedures. Reports of bias or conflict of interest committed by the Title IX Coordinator should be reported to the University President or Provost.
Office of the President
John F. Kennedy University
100 Ellinwood Way
Pleasant Hill, CA 94523-4817
Phone: (925) 969-3302
Office of Civil Rights definitions:
- Recipient is the school
- Complainant is the reporting party
- Respondent is the responding party
- Resolution is the grievance process
A complaint need not be limited to someone who was the target of the discrimination or harassment. As necessary, the University may initiate a complaint, serve as Complainant, and initiate University proceedings without a formal complaint by the alleged victim. You may wish to report to the University to access support or file a complaint against a University student, faculty, staff member, or third party who engaged in the unwelcome behavior. Please be aware that a University employee who receives a complaint of this nature must report all pertinent information to a designated school officer charged with responding.
Upon notice to the Title IX Coordinator, the resolution process involves a prompt preliminary inquiry to determine if there is reasonable cause to believe the nondiscrimination policy has been violated. If so, the University will initiate a confidential investigation that is thorough, reliable, impartial, prompt and fair. The investigation and the subsequent resolution process determine whether the Nondiscrimination Policy has been violated. If so, the University will promptly implement effective remedies designed to end the discrimination, prevent its recurrence, and address its effects.
All JFK University employees have a duty to report, subsequently students may want to consider carefully whether they share personally identifiable details with employees, as those details must be reported to the Title IX Coordinator. Employees must promptly report all details of the allegations they receive. Generally, climate surveys, classroom writing assignments or discussions, human subjects research, or advocacy events to not provide Notice to the University that must be reported by employees, unless the reporting party clearly indicates that they wish a report to be made. Supportive actions may result from such disclosures without formal University action.
Formal reporting still affords privacy to the Complainant, and only a small group of officials who need to know will be told, and if necessary NUS General Counsel. Information will be shared as necessary with investigators, witnesses and the responding party. The circle of people with this knowledge will be kept as tight as possible to preserve a reporting party’s rights and privacy.
Failure of an employee, as described in this section, to report an incident or incidents of sex/gender harassment or discrimination of which they become aware is a violation of JFK University policy and can be subject to disciplinary action for failure to comply.
The University encourages prompt reporting of complaints so that a rapid response can be made and appropriate action can be taken. There is no time limit on filing a complaint as long as the accused individual remains subject to the University’s jurisdiction although a significant delay in reporting may negatively affect the ability of the investigator to gather information about what occurred.
Office for Civil Rights Reporting
The accuser has the right to file a complaint with the Office for Civil Rights of the U.S. Department of Education (OCR). An accuser is not required to use the school’s grievance process before filing such a complaint.
San Francisco Office
Office for Civil Rights
U.S. Department of Education
50 United Nations Plaza
Mail Box 1200, Room 1545
San Francisco, CA 94102
Telephone: (415) 486-5555; TDD: 800-877-8339
Assistant Secretary for Civil Rights
Office for Civil Rights, National Headquarters
U.S. Department of Education
Lyndon Baines Johnson Dept. of Education Building
400 Maryland Avenue, SW
Washington, DC 20202-1100
Telephone: (800) 421-3481 TDD: (800) 877-8339
Fax: (202) 453-6012
The University will complete its investigation and make findings on a complaint filed at the University, even if a complaint has also been filed with the Office for Civil Rights.
Consent is knowing, voluntary, and clear permission by words or actions to engage in sexual activity. It is the responsibility of each party to determine that the other has consented before engaging in the activity. Consent cannot be gained by force, threats, intimidation, or coercion.
Sexual Harassment is a form of sex/gender discrimination and, therefore, an unlawful discriminatory practice. JFK University has adopted the following definition of sexual harassment in order to address the special environment of an academic community which consists not only of employer and employees, but of students as well.
Sexual harassment is unwelcome, sexual, sex-based and/or gender based, verbal, written, online and/or physical conduct.
Anyone experiencing sexual harassment in any JFK University program is encouraged to report it immediately to the Title IX Coordinator. Remedies, education and/or training can be provided in response. Sexual harassment may be disciplined when it takes the form of quid pro quo harassment, retaliatory harassment and/or creates a hostile environment.
A hostile environment is created when sexual harassment is severe, persistent, pervasive and objectively offensive, such that it unreasonably interferes with, denies or limits someone’s ability to participate in or benefit from the University’s educational, employment, and/or social programs.
Quid Pro Quo Sexual Harassment
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature by a person having power or authority over another constitutes sexual harassment when submission to such sexual conduct is made either explicitly or implicitly as a term or condition of rating or evaluating an individual’s educational development or performance.
Sexual Misconduct Violations
- Sexual harassment
- Non-consensual sexual intercourse defined as any sexual intercourse however slight with any object by a person upon another person that is without consent and/or by force.
- Sexual touching including contact with breasts, groin, or genitals, mouth or touching another with any of these body parts, or making another touch you or themselves with or on any of these body parts; or any other bodily contact in a sexual manner.
- Sexual exploitation refers to a situation in which a person takes non-consensual or abusive sexual advantage of another, and that behavior does not otherwise fall within the definitions of Sexual Harassment, Non-Consensual Sexual Intercourse, or Non-Consensual Sexual Contact.
- Force is the use of physical violence and/or imposing on someone physically to gain sexual access. Force also includes threats, intimidation (implied threats) and coercion that overcome resistance or produce consent (“Have sex with me or I’ll hit you.” “Okay, don’t hit me, I’ll do what you want.”).
- Coercion is unreasonable pressure for sexual activity. When someone makes it clear to you that they do not want sex, that they want to stop, or that they do not want to go past a certain point of sexual interaction, continued pressure beyond that point can be considered coercive.
Other Civil Rights Offenses
In addition to the forms of sexual misconduct described above, the following behaviors are also prohibited as forms of discrimination when the act is based upon the reporting party’s actual or perceived membership in a protected class:
- Threatening or causing physical harm, extreme verbal abuse, or other conduct which threatens or endangers the health or safety of any person;
- Discrimination, defined as actions that deprive, limit or deny other members of the community of educational or employment access, benefits or opportunities;
- Intimidation, defined as implied threats or acts that cause an unreasonable fear of harm in another;
- Bullying, defined as repeated and/or severe aggressive behavior likely to intimidate or intentionally hurt, control or diminish another person, physically or mentally that is not speech or conduct otherwise protected by the 1st Amendment;
- Intimate Partner Violence, defined as violence or abuse between those in an intimate interaction and/or relationship to each other; and
- Stalking, a course of conduct directed at a specific person on the basis of actual or perceived membership in a protected class that is unwelcome, AND would case a reasonable person to feel fear, and could also involve a repetitive, menacing pursuit, following, harassing and/or interfering with the peace and/or safety of another.
Sanctions for the above-listed “Other Civil Rights Behaviors” range from reprimand through expulsion (students) or termination of employment.
Conduct that is Criminal in Nature
The University has authority to address these complaints in a non-criminal context. The University process is completely separate from the police and courts.
For any incident that potentially involves criminal activity, a Complainant may wish to report directly to law enforcement in addition to, or instead of, reporting to the University. In addition, in some cases there may be time-sensitive considerations for reporting to law enforcement, such as the option to have medical or other evidence collected and preserved. University personnel can assist a Complainant in making a report to law enforcement. A Complainant may pursue both the University process and the criminal process simultaneously. In addition, state law may require a University official to report certain crimes to law enforcement if the police have not already been notified.
Formal Reporting Options
Any student who feels that they have been subjected to discrimination, other civil rights offenses, or a Title IX offense (sexual harassment/sexual misconduct) by a student or by the University through any of its employees, contractors, entities, policies, procedures, or programs may file a complaint to the Title IX Coordinator. Also accepted are inquiries concerning the application of Title IX. The University encourages submission of complaints in written form. Complaints should clearly describe the incident, the timeframe, the parties involved, incorporate supporting documentation, and describe the desired remedy. Anything shared in a complaint will be shared with the Respondent.
Reports of discrimination, harassment and/or retaliation may be made using any one of the following options:
- Call or email the complaint to 925-969-3339, or titleIX@jfku.edu
- Report directly to the Title IX Coordinator’s office (closed until further notice due to State of California Shelter-in-Place Order)
Title IX Coordinator
John F. Kennedy University
100 Ellinwood Way, Room S-201
Pleasant Hill, CA 94523-4817
Phone: (925) 969-3339
The University will take steps to investigate and respond to complaints consistent with a Complainant’s request for confidentiality, but that its ability to respond may be limited in the event of such a request (including pursuing discipline against the accused) and/or that it may have to override a request to meet its obligations in limited instances
The University has no on-campus resources that may maintain confidentiality. If a reporting party would like the details of an incident to be kept confidential, the reporting party may find off-campus resources that maintain confidentiality including:
- Licensed professional counselors
- Local rape crisis counselors
- Domestic violence resources
- Local or state assistance agencies
All of the above-listed individuals will maintain confidentiality except in extreme cases of immediacy of threat or danger or abuse of a minor.
The University offers informal resolution options, such as mediation, restorative justice, or other options, but it cannot mandate that parties attempt to resolve the complaint through informal means or condition enrollment or employment on the waiver of the right to investigation and adjudication of a formal complaint. Any person who is selected to facilitate informal resolution of a Title IX complaint will be well-trained.
Informal resolution options may only be initiated after a formal complaint has been filed by a complainant. However, before informal resolution can be initiated, both parties must be provided written notice of the allegations and the requirements of the informal resolution process and give their voluntary, informed consent in writing, which can be withdrawn at any time in favor of a formal resolution. Parties have to agree on the finding and the sanctions. Informal resolution is a final decision.
If Respondent disagrees with sanctions, self-sanctioning can be discussed and negotiated. Under a Negotiated Resolution a Respondent can self-sanction as long as no threat is evident moving forward.
If the process shifts back to a formal resolution everything revealed in the informal process cannot be brought into an ongoing formal resolution.
It is important to note that informal resolution methods may not be used to resolve allegations that an employee sexually harassed a student. In such instances, the University’s established formal grievance process will be followed.
Supportive Measures During the Resolution
Non-disciplinary, non-punitive, individualized services are offered as appropriate, as reasonably available, without a fee or charge to the Complainant or the Respondent before or after the filing of a formal complaint or where no formal complaint has been filed. Any adjustments will be designed to minimize the burden on the Complainant’s and Respondent’s educational program. The designated officer may modify work or academic arrangements during an investigation as it deems necessary, in order to protect the safety or welfare of a member of the campus community or to allow the Complainant and the Respondent to continue to receive the benefits of education. These steps will be taken promptly and at no cost to the Complainant or Respondent, and the University will continue to take these steps if a sexual violation is found to have occurred.
The Title IX Coordinator will take interim steps to protect a Complainant while the case is pending. Depending on the case, the Complainant’s wishes and what is reasonably available, these steps may include changes to academic and working situations over which the University has control, directing the Respondent to not have contact with a Complainant, excluding a Respondent from parts of campus, or providing a Complainant with an escort on campus, counseling: health, and mental health services, and sources of advocacy and support.
The Title IX Coordinator may place a Respondent on an interim suspension pending the resolution of the case where there is a substantial concern for the health, safety, or welfare of any person, and will notify the Respondent by email if this occurs. An interim suspension means that the student cannot attend class and must remain off of University property until the grievance procedure is completed. Should a Respondent need to be on campus during this period, they must submit a request to the Title IX and/or Deputy Title IX Coordinator in writing 24 hours in advance, including the reason for needing to be on campus and the specific date, time frame and location requested. The Title IX Coordinator will review the request and respond as to whether or not the request has been approved. Until the student receives written approval granting their request, their presence on campus will be considered trespass and law enforcement will be contacted.
The University will contact the Respondent by email to notify them of the investigation, describe the alleged misconduct and the policies it may violate, and offer the Respondent the opportunity to meet with the investigator in person or by phone to respond to the allegations within the timeframe described in the email. Notice to the Respondent is considered received on the date the email is sent. If the Respondent fails to attend a meeting by the specified date, or if the Respondent schedules but does not attend or attends but does not participate, the investigator may complete the investigation, issue findings, and, as appropriate, issue sanctions without the Respondent’s participation. The University encourages Respondents to participate in the grievance process.
When a John F. Kennedy University Student is identified as the Respondent, The Title IX Coordinator will review the complaint and determine the most appropriate method for responding. Options may include voluntary informal mechanisms like mediation and/or a formal investigation as described.
Resolution Process for Allegations of Harassment, Sexual Misconduct and Other Forms of Discrimination
Overview of Formal Grievance Process
The basic requirements of the grievance process include an objective evaluation of both inculpatory and exculpatory evidence and a requirement that credibility may not be based on a person’s status as a Complainant, Respondent, or witness. The grievance process also ensures that the Title IX Coordinator, investigator, decision-maker, or facilitator of an informal resolution process be free of conflicts of interest or bias against a party, and that each such person receive training on the application of the Title IX policy and the grievance process, including, where appropriate, how to conduct hearings and make relevancy determinations.
Universities accepting Federal Financial Aid are required to provide annual Title IX training to the Title IX Coordinator and investigators. John F. Kennedy University employees receive training from ATIXA. The 2020 training materials are located at: https://atixa.org/events/training-certification/title-ix-training-national-university-bas/
The grievance process includes a presumption that the Respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process. Furthermore, the grievance process includes “reasonably prompt time frames” for concluding the grievance process, including filing and resolving any appeal and any informal resolution process, while also providing for temporary delays or extensions of time frames for good cause. The grievance process also describes the range of possible sanctions and remedies that a recipient may implement following a determination of responsibility.
In addition, the grievance process states the applicable standard of evidence and includes the applicable appeal procedures (described below). The University will use the preponderance of evidence (more likely than not) standard mandated by the 2011 Dear Colleague Letter. Each recipient applies the same standard of evidence for all formal complaints brought by or against a student and or an employee, including faculty members.
Furthermore, the grievance process includes formal notice to both parties of the applicable process governing the complaint and detailed notice of the allegations with sufficient details to prepare a response before any initial interview, including the identity of the parties involved in the incident (if known), the conduct allegedly constituting sexual harassment, and the date and location of the alleged incident (if known). The notice also includes: (i) a statement that the Respondent is presumed not responsible until a determination is made at the conclusion of the process; (ii) information regarding the parties’ right to an advisor and the right to review evidence; and (iii) notice of any provision in the recipient’s code of conduct that prohibits knowingly making false statements or submitting false information during the grievance process. If additional allegations are later included within the scope of the investigation, additional notice is provided at that time.
The grievance process also includes a provision for mandatory dismissal of a complaint if the allegations would not constitute sexual harassment, even if proven; if the alleged conduct did not occur in the Recipient’s educational program or activity; or if it did not occur in the United States. However, such a dismissal does not preclude action under other provisions of the Recipient’s code of conduct. In addition, a Recipient may dismiss a complaint at any time if the Complainant provides written notice of their request for dismissal to the Title IX Coordinator, if the respondent is no longer enrolled or employed by the Recipient, or when specific circumstances prevent the gathering of evidence sufficient to reach a determination.
In conducting an investigation, the Recipient ensures that the burden of gathering evidence sufficient to reach a determination is on the Recipient, not the parties, recognizing that the Recipient cannot obtain information protected by a legally recognized privilege (e.g., doctor-patient) without the party’s voluntary waiver. The Recipient also provides an equal opportunity to the parties to present witnesses and evidence; not restrict either party from discussing the allegations or from gathering evidence (i.e. no “gag orders”); provides the parties the same opportunities to have advisors present during the grievance proceeding (subject to limitations on the advisors’ participation); and provides the parties written notice of all hearings, interviews, or meetings with sufficient time to prepare.
In addition, the Recipient provides both parties an equal opportunity to review “any evidence obtained as part of the investigation that is directly related to the allegations raised in the formal complaint,” including evidence upon which the Recipient does not intend to rely, and each party must be provided at least 10 days to submit a written response to the evidence prior to the conclusion of the investigation. Finally, the Recipient creates an investigation report that fairly summaries the relevant evidence and provides the report to the parties at least 10 days prior to a hearing for their review and written response.
The Title IX Coordinator will discuss retaliation with the parties. Parties who believe they have been retaliated against due to participation in a grievance proceeding should notify the Title IX Coordinator as soon as possible.
The University will use best efforts to provide equitable rights to the parties throughout the resolution process:
- The parties are afforded the ability to discuss the allegations under investigation and to gather and present relevant evidence.
- The parties are afforded similar and timely access to any documents and information used at a hearing, including the University’s Title IX investigation report.
- The parties are afforded an equal right to have an advisor/representative of their choice at the hearing, including whether an attorney may serve in this role.
- Parties are equally permitted expert testimony, and equal cross examination of witnesses.
- Parties are not restricted from discussing and sharing Information relating to their complaint with others that may support them or assist them in presenting their case.
- Parties may not personally question or cross-examine each other during a hearing.
- Parties are afforded fair and equitable appeal/review rights of the initial investigation/determination regarding the complaint, the hearing outcome, and/or the sanctions/remedies.
- Parties are afforded equal opportunities to participate in any further process.
Both parties have the right to identify witnesses and provide other information relevant to the investigation. Evidence of the Complainant’s past relationships with anyone other than the accused is inadmissible. The Complainant and Respondent will not be permitted to directly question each other and are not required to be present together at any point in the grievance process. The Complainant is not required to be present at the hearing as a prerequisite to proceed.
Following receipt of notice or a report of misconduct, the Title IX Coordinator will engage in a prompt preliminary inquiry to determine if there is a reasonable cause to believe the Nondiscrimination Policy has been violated. This inquiry may also serve to help determine if the allegations have evidence of violence, threat, pattern, predation and/or weapon, in the event that the Complainant has asked for no action to be taken. If the initial inquiry indicates there is not reasonable cause to believe that there was a violation of the policy, the designated officer will close the case. In some cases, the University may attempt to resolve the complaint through mediation or intervention with the parties, although these methods will not be utilized in cases of sexual violence. If the initial inquiry indicates that there is reasonable cause to believe that the policy may have been violated, the designated officer will begin the formal grievance procedure described below. If there is reasonable cause to believe a violation occurred and mediation is not used, the University will initiate a thorough, equitable, impartial and prompt investigation designed to provide a reliable determination about whether or not a violation has occurred. The process followed considers the preference of the parties but is ultimately determined at the discretion of the Title IX Coordinator.
If, during the preliminary or at any point during the formal investigation the Title IX Coordinator determines that there is no reasonable cause to believe that policy has been violated, the process will end unless the reporting party requests that the University make an extraordinary determination to re-open the investigation. This decision lies in the sole discretion of the Title IX Coordinator.
All investigations will be thorough, reliable, impartial, prompt and fair. An investigation will be conducted by individuals who have received specialized training in conducting civil rights-based investigations. In general, the investigation may include interviews with the parties, interviews with relevant witnesses, the identification, solicitation and review of any information relevant to the investigation including educational or personnel records and available police reports, and consultation with expert witnesses as the investigator deems necessary. An investigative record keeping file will be maintained for the purpose of adequate documentation of the proceedings.
All complaints will be reviewed regardless of where the conduct occurred, including conduct occurring online or through technological means, to determine whether the conduct occurred in the context of an educational program or had continuing effects on campus or in an off-campus educational program or activity.
The University will resolve complaints in a prompt manner, and will make best efforts to resolve complaints within 60 calendar days, with additional time for any appeals. Some investigations take months, depending on the nature, extent and complexity of the allegations, availability of witnesses, police involvement, etc. A concurrent criminal investigation by police may impact this time frame. All parties will be provided with periodic updates as to the status of the case as the parties’ desire and as is reasonable. Notification will be provided to parties when additional time will be necessary, as well as the process for extending deadlines.
The procedure will include a provision for weighing requests by Complainants not to proceed with a formal resolution, including criteria for when to proceed with a full investigation and when to limit the investigation (including, for the latter, specifications of steps that can be taken while honoring the request). The parties have the right to end the Informal process and begin the formal process at any time.
The investigators will typically take the following steps, if not already completed (not necessarily in order):
- In coordination with campus partners, initiate any necessary supportive actions;
- Determine the identity and contact information of the Complainant;
- Identify and discrimination, harassment and/or retaliation policies allegedly violated;
- Conduct an immediate preliminary inquiry to determine if there is reasonable cause to believe the responding party has violated policy. (If there is insufficient evidence to support reasonable cause, the inquiry will be closed with no further action);
- Commence a thorough, reliable and impartial investigation by developing a strategic investigation plan, including a witness list, evidence list, intended timeframe, and order of interviews for all witnesses and the responding party, who may be given notice prior to or at the time of the interview;
- Prepare the notice of allegation on the basis of the preliminary inquiry;
- Meet with the Complainant to finalize their statement, if necessary;
- If possible, provide written notification to the parties prior to their interviews that they may have the assistance of an advisor of their choosing present for all meetings attended by the advisee;
- Provide Complainant and responding party with a written description of the alleged violation(s), a list of all policies allegedly violated, a description of the applicable procedures and a statement of the potential sanctions/responsive actions that could result;
- Prior to the conclusion of the investigation, provide the Complainant and the responding party with a list of witnesses whose information will be used to render a finding;
- Allow each party the opportunity to suggest questions they wish the investigators to ask of the other party and witnesses;
- Provide parties with all relevant evidence to be used in rendering a determination and provide each with a full and fair opportunity to address that evidence prior to a finding being rendered;
- Complete the investigation promptly, and without unreasonable deviation from the intended timeline;
- Provide regular updates to the reporting party throughout the investigation, and to the responding party, as appropriate;
- Once the report is complete, the report is shared with the parties for their review and comment. The investigators may incorporate feedback from the parties as appropriate; and
- Investigators will finalize and present the report to the parties, without undue delay between notifications.
At any point during the investigation, if it is determined there is no reasonable cause to believe that University policy has been violated, the Title IX Coordinator has authority to determine the investigation and end resolution proceedings.
Witnesses are expected to cooperate with and participate in the University’s investigation and the resolution process. Failure of a witness to cooperate with and/or participate in the investigation or resolution process constitutes a violation of policy and may be subject to discipline. Witnesses may provide written statements in lieu of interviews during the investigation and may be interviewed remotely by phone, or by Zoom or similar technology, if they cannot be interviewed in person or if the investigators determine that timeliness or efficiency dictate a need for remote interviewing. Parties who elect not to participate in the investigation or to withhold information from the investigation do not have the ability to offer evidence later during the appeal if it could have been offered during the investigation. Failure to offer evidence prior to an appeal does not constitute grounds for appeal on the basis of new evidence. No unauthorized audio or video recording of any kind is permitted during investigation meetings or other resolution process proceedings.
The parties are afforded an equal opportunity to have an advisor or representative of their choice at any meeting or interview, from intake through to final determination. The advisor must be eligible and available, not be involved in the Resolution Process, and not serve as a witness. An advisor may be a friend, mentor, family member, attorney, or any other supporter a party chooses. The parties may choose advisors from inside or outside the campus community. The parties may ask the Title IX Coordinator to assign a trained member of the University pool to work as their advisor.
If a party does not have an advisor present at the hearing, the University will provide one free of charge to the party to conduct cross-examination on behalf of that party. The advisor provided by the University may be, but is not required to be, an attorney, as no training or qualification is necessary for a person to serve as an advisor. The University cannot guarantee equal advisory rights, meaning that if one party selects an advisor who is an attorney, but the other party does not, or cannot afford an attorney, the University is not obligated to provide one.
All advisors are subject to the same campus rules, whether they are attorneys or not. Advisors may not address campus officials in a meeting or interview unless invited to do so. The parties are expected to ask and respond to questions on their own behalf in meetings and interviews. Advisors may confer quietly with their advisees or in writing as necessary, as long as they do not disrupt the process. For longer more involved discussions, the parties and their advisors should ask for breaks or step out of meetings to allow for private conversation. Advisors will typically be given an opportunity to meet in advance of any interview or meeting with the administrative officials conducting that interview or meeting. The pre-meeting will allow advisors to clarify any questions they may have and allows the University an opportunity to clarify the role the advisor is expected to take.
Equal restrictions apply to the ability of advisors/representatives to speak or otherwise participate during an interview or meeting. Any attorney acting as an advisor may not formally represent a party in University Administrative proceedings. The investigator may exclude any advisor who disrupts a meeting. When an advisor is removed from a meeting, that meeting will typically continue without the advisor present. Subsequently, the Title IX Coordinator will determine whether the advisor may be reinstated, or may be replaced by a different advisor for the remainder of the process.
Parties will wish to share documentation related to the allegations with their advisors. The University authorizes such sharing. The parties must complete a form before the University is able to share records with an advisor, though parties may share the information directly with their advisors if they wish. Advisors are expected to maintain the privacy of the records shared with them. These records may not be shared with third parties, disclosed publicly, or used for purposes not explicitly authorized by the University. The University may seek to restrict the role of any advisor who does not respect the sensitive nature of the process or who fails to abide by the University’s privacy expectations.
Advisors should help their advisees prepare for each meeting, and are expected to advise ethically, with integrity and in good faith. The University expects an advisor to adjust their schedule to allow them to attend University meetings when scheduled. The University does not typically change scheduled meetings to accommodate an advisor’s inability to attend. The University will, however, make reasonable provisions to allow an advisor who cannot attend in person to attend a meeting by telephone, video and/or virtual meeting technologies as may be convenient and available. A party may elect to change advisors during the process and is not locked into using the same advisor throughout.
The grievance process provides for live hearings before the decision-makers and permits both parties’ advisors to ask the other party and witnesses relevant questions, including those challenging credibility, with any exclusions of questions or evidence based on relevance as determined by the decision-makers. The cross examination is conducted directly, orally, and in real time by the party’s advisor but never by a party. A party is prohibited from producing evidence at the last minute at a hearing. All evidence has to be reviewed beforehand.
The hearing has a hearing panel generally composed of two or three trained individuals. There is a hearing panel chair who makes the ultimate judgment for the panel, and explains how the formal hearing process works to the parties. The Chair has pre-hearing meetings with the Complainant and Respondent, with the Title IX Coordinator present. The Chair can question the evidence and why it is being presented. Any challenges presented by the Chair will need an explanation at the meetings. If sensitive information is put into play it will have to be explored.
At the hearing all questions by the panel are funneled through the Chair. The Chair has the right to rule on all evidence on relevance. Questions may be ruled out by the Chair. For example, the advisor can pose a question into the open for the Chair to consider. The Chair gives feedback about a question and decides if a question is or is not allowed. The Chair can rule a question as irrelevant, abusive, or unduly repetitious and explain why if necessary. The Chair reposes questions and serves as a buffer between parties and their advisors. The parties are prohibited from posing questions directly to one another. Advisors may pose question directly to a party, however it is preferable that the questions be buffered through the Chair.
Importantly, the Final Rule provides rape shield protections for Complainants by making it clear that questions and evidence about a Complainant’s sexual disposition or prior sexual history are to be considered irrelevant, with two limited exceptions relating to proving someone other than the Respondent committed the conduct in question or to prove consent by showing Complainant’s prior history with Respondent.
At the request of either party, the hearing may be conducted in separate rooms with technology that connects the decision-makers to the parties and witnesses. At the Recipient’s discretion, hearings may be conducted virtually, with the parties, witnesses, or other participants appearing using technology to allow participants simultaneously to see and hear each other. In addition, Recipients will create an audio or visual recording or a transcript of the hearing and make it available to the parties for inspection and review.
If a party or witness does not submit to cross-examination at the hearing, the decision-makers may not rely on any statement of that party or witness in reaching a decision of responsibility, although the decision-maker cannot draw an inference about responsibility based solely on a party or witness’s absence or refusal to answer questions.
After an investigation and hearing is concluded, the decision-maker (who cannot be the same person as the Title IX Coordinator or the investigator) issues a written determination regarding responsibility with findings of fact, conclusions about whether the alleged conduct occurred, rationale for the result as to each allegation, any disciplinary sanctions imposed on the Respondent, and whether remedies will be provided to the Complainant. This determination is sent simultaneously to the parties along with information about how to file an appeal.
The investigation will result in a determination as to whether or not the policy has been violated. The finding will be based on a preponderance of the evidence standard of proof utilized in both the investigating and adjudicating of Title IX complaints, i.e., whether it is more likely than not that the conduct occurred.
A written determination to the parties of the outcome of the complaint based on allegations as defined in 106.30 (whether sex discrimination was found) will be provided. The Complainant and Respondent will be informed of the determination, the rationale for the finding and any relevant sanctions to the extent permissible by law simultaneously and via email, usually within one week of the decision. If the decision finds that the Complainant falsely accused another of discrimination or harassment knowingly or in a malicious manner, the Complainant will be subject to appropriate sanctions.
Sanctions and Remedies
When the accused is found not responsible for the alleged violation, the investigation will be closed and the Complainant and Respondent notified. When the accused is found responsible for the violation, the University will take action to end the discrimination or harassment, prevent its recurrence, and remedy its effects on the victim and the University community. The Title IX Coordinator will provide the consequences or sanctions for the Respondent and remedies for the Complainant, and as appropriate, the University community. Any student found responsible for a violation may receive sanctions ranging from probation to expulsion along with any other sanctions, depending on the severity of the incident and taking into account factors such as any previous incidents. The decision-makers reserve the right to broaden or lessen this range of sanctions in the event of mitigating factors or egregiously offensive behavior. Sanctions imposed are implemented immediately unless the President delays their implementation in extraordinary circumstances pending the outcome of an appeal as described below.
Long Term Remedies/Actions
The University will determine which remedies may be offered to a Complainant depending on the nature of the case, including changes to academic or work obligations under the school’s control. Possible remedies may include providing an escort to ensure that the Complainant can move safely between classes; ensuring the Complainant and Respondent do not share classes or extracurricular activities; providing victim services such as counseling and academic support services; or arranging for a Complainant to retake a class, have extra time to complete a class, or withdraw from a class without an academic or financial penalty.
The University provides an equitable appeal process to both parties, providing notice to both parties when the appeal is filed, ensuring that the decision-maker for the appeal is not the same person as the initial decision-maker on the formal complaint, the investigator, or the Title IX Coordinator, providing both parties a chance to submit a written statement, and issuing a written decision that is provided to both parties.
A party may file a written appeal within ten (10) days of receipt of the findings from the Title IX Coordinator. Any party may appeal, but appeals are limited to the following grounds:
- Procedural irregularity that affected the outcome of the matter;
- New evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made that could affect the outcome of the matter;
- The Title IX Coordinator, investigator, or decision-maker had a conflict of interest or bias that affected the outcome of the matter.
Upon receipt of the Appeal, the Title IX Coordinator will forward a copy to the other party(ies), who may file a response within fourteen (14) days and/or bring their own appeal on separate grounds. If new grounds are raised, the original appealing party will be permitted to submit a written response to these new grounds within ten (10) days. These response or appeal requests will be shared with each party.
The Title IX Coordinator will render a written decision on the appeal within ten (10) days of the resolution of the appeal or remand. Once an appeal is decided, the outcome is final; further appeals are not permitted, even if a decision or sanction is changed on remand. All parties will be informed in writing within three (3) days of the outcome of the Appeals Panel, without significant delay between notifications, and in accordance with the standards for notice of outcome as defined above.
Retaliatory action of any kind by any member of the University community against anyone seeking
redress under these procedures, cooperating in the investigation, or other participation in these procedures is prohibited and will be regarded as the basis for disciplinary action.
Individuals and Recipients may not intimidate, threaten, coerce, or discriminate against an individual for the purpose of interfering with their Title IX rights or because the individual filed a complaint, testified, participated, or refused to participate in a Title IX proceeding.
Charging an individual with code of conduct violations for the purpose of interfering with any right or privilege secured by Title IX constitutes impermissible retaliation. Thus, if an individual is charged with conduct violations that do not involve sexual harassment but arise out of the same set of facts or circumstances as a report or formal complaint of sexual harassment, a claim of retaliation may be implicated if those charges were made with the purpose of interfering with the student’s Title IX rights.