Live hearings will be provided in Title IX Sexual Harassment matters, as required by the May 2020 Title IX regulations.
Hearings will be presided over by a hearing officer, who will make the decision as to whether or not the respondent violated the Policy provisions at issue. This decision will be made using the preponderance of the evidence standard, which means that a Policy violation will only be found if the evidence establishes that it is more likely than not that the violation occurred. The hearing officer has broad authority to determine the process, timing, and conduct of a hearing. For example, the hearing officer will determine the order of presentation, timing and overall duration of the hearing, what information and evidence will be heard, what information and questions are relevant to the determination of the matter, and what cross-examination questions will or will not be permitted.
Hearing officers will be appointed by the Coordinator. In selecting a hearing officer for a particular matter, the Coordinator will take care to select an individual who does not have a conflict of interest or bias against complainants or respondents generally or an individual complainant or respondent. The University will notify the parties of the identity of the hearing officer in advance of the hearing, and parties may, within 3 calendar days of such notice, object to the service of the hearing officer by providing a written statement (which may be transmitted electronically) as to why the party believes that the hearing officer has a conflict of interest or bias. The Coordinator or designee will make decisions regarding such objections and the appointment of an alternate hearing officer, as necessary.
Each party may have an advisor of their choice present at a hearing for the limited purpose of conducting cross-examination on behalf of that party. Advisors may be, but are not required to be, attorneys. If a party does not have an advisor of their choice present at a hearing, the University will without fee or charge to the party provide an advisor of the University’s choice, again for the limited purpose of conducting cross-examination on behalf of that party. No later than 10 calendar days before the hearing, parties should inform the Coordinator of the identity of any advisor of choice who will accompany them to the hearing, so that the University will know whether or not it needs to arrange for the presence of a University-provided advisor.
At a time and manner deemed appropriate by the hearing officer, the advisor for each party will be permitted to ask the other party and any witnesses all relevant cross-examination questions and follow-up questions, including those challenging credibility. Except for that limited role, advisors may not participate actively in the hearing and may not speak or otherwise communicate on the part of the party that the advisor is advising. However, the advisor may consult privately in a non-disruptive manner with their advisee during and/or at a recess in the hearing. Scheduling accommodations generally will not be made for advisors if they unduly delay the process. The University reserves the right to take appropriate action regarding any advisor who disrupts the process, or who does not abide by the restrictions on their participation as determined in the sole discretion of the hearing officer, which may include exclusion of the advisor from the hearing and the appointment of an alternate University-provided advisor.
Requests for Appearance of Witnesses
If a party wishes to have an individual appear at the hearing as a witness, they must provide notice of the identity of the proposed witness and a brief description of the subject matter of the witnesses’ testimony to the Coordinator or designee at least 10 calendar days before the date of the hearing. The Coordinator or designee, in consultation with the hearing officer as necessary, will determine whether the witness is likely to have information that is relevant to the hearing and if it is determined that the witness is likely to have relevant information, the Coordinator or designee will inform the witness that their presence at the hearing is required (to the extent that the University has jurisdiction to require the presence of the witness) or requested.
Conduct of Hearings and Relevance
At or before the hearing, the hearing officer will receive a copy of the final investigative report, any attachments thereto, and copies of the parties’ written responses to the final investigative report, if any, which will be part of the information of record to be considered by the hearing officer. The recommendation regarding responsibility made by the investigator in the final investigative report is only advisory and is not binding on the hearing officer; the hearing officer will make an independent determination regarding responsibility based upon the investigative report sections that may be considered in light of which individuals appear at the hearing and submit to cross-examination, evidence admitted at the hearing, and the testimony and cross-examination of parties and witnesses at the hearing, as applicable.
Subject to the discretion of the hearing officer, hearings will ordinarily begin with introductory remarks by the hearing officer, followed by opening statements from any party who wishes to provide one, followed by the hearing officer’s asking relevant initial questions of the parties as deemed appropriate by the hearing officer. During this portion of the hearing, advisors may confer privately and in a non-disruptive manner with their advisee, but they are not allowed to make opening statements or otherwise address the hearing officer or anyone else present at the hearing. After the hearing officer has asked their initial questions of the parties, the hearing officer will permit each party’s advisor to ask the other party all relevant questions and follow-up questions, including those challenging credibility. Subject to the discretion of the hearing officer, questioning of witnesses will generally follow a similar process, whereby the hearing officer will pose relevant questions to each witness, then the parties’ advisors will be permitted to ask relevant questions of witnesses.
In accordance with May 2020 Title IX regulations, such cross-examination by advisors will be conducted directly, orally, and in real-time by the party’s advisor of choice and never by a party personally. Only relevant cross-examination and other questions may be asked of a party or witness. Before a complainant, respondent, or witness answers a cross-examination or other question, the hearing officer will first determine whether the question is relevant and explain any decision to exclude a question as not relevant. Advisors are not permitted to object to hearing officer decisions regarding relevance during a hearing.
Regarding the evidence subject to inspection and review that was provided to the parties and their advisors under the investigation procedures outlined above, a copy of such evidence will be made available at the hearing, and each party and/or their advisor (as applicable) will have an equal opportunity to refer to such evidence during the hearing, including for purposes of cross-examination.
Questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant, 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 if the questions and evidence concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent. Information protected under a legally recognized privilege (such as, for example, privileged communications between a party and their physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in a treatment capacity, or privileged communications between a party and their attorney), is not relevant unless the person holding the privilege has waived the privilege.
At the request of either party, the University will provide for the hearing to occur with the parties located in separate rooms with technology enabling the hearing officer and parties to simultaneously see and hear the party or the witness answering questions. Live hearings may be conducted with all parties physically present in the same geographic location or, at the University’s discretion, any or all parties, witnesses, and other participants may appear at the live hearing virtually, with technology enabling participants simultaneously to see and hear each other.
The hearing officer may, at the hearing officer’s discretion, consider statements of a party or witness made before or at a hearing and/or other information, and give the weight to such information as they determine is appropriate under the circumstances, regardless of whether the party or witness appears at a hearing or answers some or all questions at a hearing. The hearing officer 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.
At the discretion of the hearing officer, parties (but not their advisors) will usually be given an opportunity to make a closing statement at the conclusion of the hearing.
Record of Hearings
The University will create an audio or audiovisual recording and/or transcript, of any live hearing, and will make it available to the parties for inspection and review.
Determinations Regarding Responsibility
Within twenty-one days after the hearing, the hearing officer (and if necessary, the sanctioning officer, as provided below) will prepare and issue a written determination regarding responsibility and sanctions. In determining responsibility, the hearing officer will apply the preponderance of the evidence standard. The written determination will include:
- Identification of the section(s) of the University’s Title IX Sexual Harassment policy alleged to have been violated;
- A description of the procedural steps taken from the receipt of the complaint through the determination, including but not limited to, as applicable, 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 definitions of sexual harassment in the University’s Title IX Sexual Harassment Policy to the facts;
- A statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility and, where necessary and in collaboration with the sanctioning officer, a statement regarding any sanctions and the rationale therefore; and
- Identification of the University’s procedures and permissible bases for the complainant and respondent to appeal (as outlined below).
The determination regarding responsibility becomes final either on the date that the University provides the parties with the written determination of the appeal, if an appeal is filed, or if an appeal is not filed, the date on which the appeal would no longer be considered timely.
The determination will also notify the parties whether remedies designed to restore or preserve equal access to the University’s education program or activity will be provided by the University to the complainant, but will not provide details about any such remedies.
If sanctions are necessary, they will be assigned in accordance with the Sanctions section below. The parties will receive notice simultaneously of the written determination regarding responsibility and, if necessary, any sanctions as determined through the procedures outlined below.
Sanctions for engaging in Title IX Sexual Harassment may include but are not limited to:
- A written warning or reprimand placed in a student’s record or an employee’s personnel file;
- Mandatory training and/or counseling;
- Probation for students;
- Dismissal from University housing;
- Suspension from participating in University activities;
- Suspension without pay;
- Change in job duties;
- Issuance of a no-trespass notice;
- Referral to another University process as appropriate and/or necessary for determination of employment-status related issues;
- Non-renewal of contract; and/or
- Dismissal from the University or termination of employment.
Sanctions in student respondent cases will be determined by the Dean of Student Life. Sanctions in staff respondent cases will be determined by the Chief of Human Resources. Sanctions in faculty respondent cases will be determined by the Chief of Human Resources.
When a hearing officer makes a determination that a respondent is responsible for committing Title IX Sexual Harassment and/or other misconduct addressed through a Complaint Resolution Process for Title IX Sexual Harassment Cases, the hearing officer will advise the Coordinator of that determination, and the Coordinator will provide information to the sanctioning officer regarding the matter as requested by the sanctioning officer. The sanctioning officer will make a decision regarding appropriate sanctions, and will then work with the hearing officer to incorporate into the written determination described above a description of the sanctions and the rationale therefor. The hearing officer and the sanctioning officer will prepare a single written determination document containing all of the information described above, and the Coordinator will provide a copy of the written determination to the parties simultaneously.
Each party to a case involving allegations of Title IX Sexual Harassment has a right to appeal 1) the Coordinator’s dismissal of a formal complaint for Title IX purposes or 2) a determination regarding responsibility and/or sanctions, on 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; and/or
- The Coordinator, investigator(s), or decision-maker(s) had a conflict of interest or bias for or against complainants or respondents generally or the individual complainant or respondent that affected the outcome of the matter.
Appeals in student respondent cases must be filed with the Provost within five business days of the delivery of the written determination. Appeals in faculty respondent cases must be filed with the Provost within five business days of the delivery of the written determination. Appeals in staff employee respondent cases must be filed with the Provost within five business days of the delivery of the written determination.
The other party may be notified of any submitted appeal through the Coordinator or their designee. The other party may submit a written response to the appeal within five working days of delivery of the appealing party’s appeal. Both parties will be informed of any change to the results of a disciplinary process that occurs prior to the time that such results become final, and when such results become final.
Where an appeal is based on procedural irregularity, new evidence and/or bias/conflict of interest grounds, the appeals officer may affirm a finding of responsibility or return the matter to a hearing officer for further proceedings consistent with the appeal decision. Appeal decisions will be sent to the parties simultaneously. The decision of an appeal is final in all cases.