Title IX Grievance Policy

Introduction 

What is the purpose of the Title IX Grievance Policy? 

Title IX of the Educational Amendments of 1972 prohibits any person in the United States from being discriminated against on the basis of sex in seeking access to any educational program or activity receiving federal financial assistance. The U.S. Department of Education, which enforces Title IX, has long defined the meaning of Title IX’s prohibition on sex discrimination broadly to include various forms of sexual harassment and sexual violence that interfere with a student’s ability to equally access our educational programs and opportunities. 

On May 19, 2020, the U.S. Department of Education issued a Final Rule under Title IX of the Education Amendments of 1972 that: 

• Defines the meaning of “sexual harassment” (including forms of sex-based violence);
• Addresses how this institution must respond to reports of misconduct falling within that definition of sexual harassment; and 
• Mandates a grievance process that this institution must follow to comply with the law in these specific covered cases before issuing a disciplinary sanction against a person accused of sexual harassment. 

85 Fed. Reg. 30026 (May 19, 2020). See the full text of the Final Rule and its extensive preamble (PDF).

Based on the Final Rule, SUNY Cortland will implement the following Title IX Grievance Policy, effective Aug. 14, 2020.

How does the Title IX Grievance Policy impact other campus disciplinary policies? 

In recent years, “Title IX” cases have become a shorthand for any campus disciplinary process involving sex discrimination, including those arising from sexual harassment and sexual assault. But under the Final Rule, SUNY Cortland must narrow both the geographic scope of its authority to act under Title IX and the types of “sexual harassment” that it must subject to its Title IX investigation and adjudication process. Only incidents falling within the Final Rule’s definition of sexual harassment will be investigated and, if appropriate, brought to a live hearing through the Title IX Grievance Policy defined below. 

SUNY Cortland remains committed to addressing any violations of its policies, even those not meeting the narrow standards defined under the Title IX Final Rule.  

Specifically, our campus has: 

• A Student Code of Conduct that defines certain behavior as a violation of campus policy, including sections addressing sexual harassment, sexual assault, domestic violence, dating violence, stalking and related sex-based offenses. The Student Code of Conduct is available online. 
• A Discrimination Complaint Procedure that provides a mechanism through which the university will identify, respond to, prevent and eliminate illegal discrimination, including discrimination based on sex, sexual orientation, domestic violence victim status and gender identity. The Discrimination Complaint Procedure is available on the Human Resources Office’s website.

To the extent that alleged misconduct falls outside the Title IX Grievance Policy, or misconduct falling outside the Title IX Grievance Policy is discovered in the course of investigating covered Title IX misconduct, the institution retains authority to investigate and adjudicate the allegations under the policies and procedures defined within the Student Code of Conduct or Discrimination Complaint Procedure through a separate grievance proceeding. 

The elements established in the Title IX Grievance Policy under the Final Rule have no effect and are not transferable to any other policy of the university for any violation of the Code of Conduct, employment policies or any civil rights violation except as narrowly defined in this Policy. This Policy does not set a precedent for other policies or processes of the university and may not be cited for or against any right or aspect of any other policy or process. 

How does the Title IX Grievance Policy impact the handling of complaints? 

Our existing Title IX Office and reporting structure remains in place. What has changed is the way our Title IX Office will handle different types of reports arising from sexual misconduct, as detailed in full throughout Section 2.

Table of Contents 

• General Rules of Application
• Definitions
• Making a Report Regarding Covered Sexual Harassment to the Institution
• Non-Investigatory Measures Available Under the Title IX Grievance Policy
• Filing a Formal Complaint
• Informal Resolution
• Multi-Party Situations
• Determining Jurisdiction
• Notice of Allegations
• Advisor of Choice and Participation of Advisor of Choice
• Investigation
• Investigative Report
• Hearing
• Determination Regarding Responsibility
• Appeals
• Retaliation

The Title IX Grievance Policy

General Rules of Application 

Effective Date 

The Title IX Grievance Policy is effective as of Aug. 14, 2020 and will only apply to sexual harassment alleged to have occurred on or after that date. Incidents of sexual harassment alleged to have occurred before Aug. 14, 2020, will be investigated and adjudicated according to the process in place at the time the incident allegedly occurred.

Revocation by Operation of Law 

Should any portion of the Title IX Final Rule, 85 Fed. Reg. 30026 (May 19, 2020), be stayed or held invalid by a court of law, or should the Title IX Final Rule be withdrawn or modified to not require the elements of this policy, this policy, or the invalidated elements of this policy, will be deemed revoked as of the publication date of the opinion or order and for all reports after that date, as well as any elements of the process that occur after that date if a case is not complete by that date of opinion or order publication. Should the Title IX Grievance Policy be revoked in this manner, any conduct covered under the Title IX Grievance Policy shall be investigated and adjudicated under the existing Student Code of Conduct or Discrimination Complaint Procedure.    

Non-Discrimination in Application 

The requirements and protections of this policy apply equally regardless of sex, sexual orientation, gender identity, gender expression or other protected classes covered by federal or state law. All requirements and protections are equitably provided to individuals regardless of such status or status as a complainant, respondent or witness. Individuals who wish to file a complaint about the institution’s policy or process may contact the Department of Education’s Office for Civil Rights:
New York Office
Office for Civil Rights
U.S. Department of Education
32 Old Slip, 26th Floor
New York, NY 10005-2500
Telephone: 646-428-3900
FAX: 646-428-3843; TDD: 800-877-8339
Email: OCR.NewYork@ed.gov 

Definitions 

Covered Sexual Harassment 

For the purposes of this Title IX Grievance Policy, “covered sexual harassment” includes any conduct on the basis of sex that satisfies one or more of the following:  

1. An employee conditioning educational benefits on participation in unwelcome sexual conduct (i.e., quid pro quo); 
2. Unwelcome conduct that a reasonable person would determine is so severe, pervasive and objectively offensive that it effectively denies a person equal access to the educational institution’s education program or activity; 
3. Sexual assault (as defined in the Clery Act), which includes any sexual act directed against another person, without the consent of the victim including instances where the victim is incapable of giving consent;
4. Dating violence (as defined in the Violence Against Women Act (VAWA) amendments to the Clery Act), which includes any violence committed by a person: (A) who is or has been in a social relationship of a romantic or intimate nature with the victim; and (B) where the existence of such a relationship shall be determined based on a consideration of the following factors: (i) The length of the relationship; (ii) The type of relationship; and (iii) The frequency of interaction between the persons involved in the relationship.
5. Domestic violence (as defined in the VAWA amendments to the Clery Act), which includes any felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner, by a person similarly situated to a spouse of the victim under New York state’s domestic or family violence laws or by any other person against an adult or youth victim who is protected from that person's acts under the domestic or family violence laws of New York.
6. Stalking (as defined in the VAWA amendments to the Clery Act), meaning engaging in a course of conduct directed at a specific person that would cause a reasonable person to:(A) fear for their safety or the safety of others; or (B) suffer substantial emotional distress.

Note that conduct that does not meet one or more of these criteria may still be prohibited under the Student Code of Conduct or Discrimination Complaint Procedures.  

Consent 

For the purposes of this Title IX Grievance Policy, “consent” is a knowing, voluntary and mutual decision among all participants to engage in sexual activity. Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity. Silence or lack of resistance, in and of itself, does not demonstrate consent. The definition of consent does not vary basic upon a participant’s sex, sexual orientation, gender identity or gender expression. Additionally: 

• Consent to any sexual act or prior consensual sexual activity between or with any party does not necessarily constitute consent to any other sexual act.
• Consent is required regardless of whether the person initiating the act is under the influence of drugs and/or alcohol.
• Consent may be initially given but withdrawn at any time.
• Consent cannot be given when a person is incapacitated, which occurs when an individual lacks the ability to knowingly choose to participate in a sexual activity. Incapacitation may be caused by the lack of consciousness or being asleep, being involuntarily restrained, or if an individual otherwise cannot consent. Depending on the degree of intoxication, someone who is under the influence of alcohol, drugs or other intoxicants may be incapacitated and therefore unable to consent.
• Consent cannot be given when it is the result of any coercion*, intimidation, force or threat of harm.  
• When consent is withdrawn or can no longer be given, sexual activity must stop.

*Note: Sexual coercion is the act of using pressure (emotional and/or verbal), alcohol or drugs in a persistent manner in order to wear down a victim making them feel obligated to engage in sexual activity with another person when they had already refused or would be doing so against their will. 

Education Program or Activity 

For the purposes of this Title IX Grievance Policy, SUNY Cortland’s “education program or activity” includes: 

• Any on-campus premises
• Any off-campus premises that the university has substantial control over. This includes buildings or property owned or controlled by a recognized student organization.
• Activity occurring within computer and internet networks, digital platforms and computer hardware or software owned or operated by or used in the operations of the university’s programs and activities over which the university has substantial control.

Cases outside of the United States do not fall within the jurisdiction of the Title IX Grievance Process. Refer to the section on jurisdiction below.

Formal Complaint 

For the purposes of this Title IX Grievance Policy, “formal complaint” means a document — including an electronic submission — filed by a complainant/reporting individual with a signature or other indication that the complainant/reporting individual is the person filing the formal complaint, or signed by the Title IX Coordinator, alleging sexual harassment against a respondent about conduct within the university’s education program or activity and requesting initiation of the procedures consistent with the Title IX Grievance Policy to investigate the allegation of sexual harassment.  

Complainant/Reporting Individual   

For the purposes of this Title IX Grievance Policy, complainant/reporting individual means any individual who has reported being or is alleged to be the victim of conduct that could constitute covered sexual harassment as defined under this policy. 

Relevant Evidence and Questions 

“Relevant” evidence and questions refer to any questions and evidence that tends to make an allegation of sexual harassment more or less likely to be true. 

“Relevant” evidence and questions do not include the following types of evidence and questions, which are deemed “irrelevant” at all stages of the Title IX Grievance Process: 

• Evidence and questions about the complainant/reporting individual’s sexual predisposition or prior sexual behavior unless:
  • They are offered to prove that someone other than the respondent committed the conduct alleged by the complainant/reporting individual, or
  • They concern specific incidents of the complainant/reporting individual’s prior sexual behavior with respect to the respondent and are offered to prove consent. 34 C.F.R. § 106.45(6)(i).
• Evidence and questions that constitute, or seek disclosure of, information protected under a legally-recognized privilege.
• Any party’s medical, psychological and similar records unless the party has given voluntary, written consent. 85 Fed. Reg. 30026, 30294 (May 19, 2020).

Respondent

For the purposes of this Title IX Grievance policy, respondent means any individual who has been reported to be the perpetrator of conduct that could constitute covered sexual harassment as defined under this policy.

Privacy vs. Confidentiality  

Consistent with the Student Code of Conduct, references made to confidentiality refer to the ability of identified confidential resources to not report crimes and violations to law enforcement or university officials without permission, except for extreme circumstances, such as a health and/or safety emergency or child abuse. References made to privacy mean the university’s offices and employees who cannot guarantee confidentiality but will maintain privacy to the greatest extent possible and information disclosed will be relayed only as necessary to investigate and/or seek a resolution and to notify the Title IX coordinator or designee, who is responsible for tracking patterns and spotting systemic issues. The university will limit the disclosure as much as practicable, even if the Title IX coordinator determines that the request for confidentiality cannot be honored. 

More information about confidentiality for cases involving student respondents is available in the Student Code of Conduct. 

Confidential Reporting 

Offices and officials who are confidential resources will not report to law enforcement or university officials without a complainant/reporting party's permission, except for extreme circumstances, such as a health and/or safety emergency. SUNY Cortland offices:

• Counseling Center
• Student Health Service
• Campus Ministries

Disability Accommodations 

This policy does not alter any institutional obligations under federal disability laws including the Americans with Disabilities Act of 1990 and Section 504 of the Rehabilitation Act of 1973. Parties may request reasonable accommodations for disclosed disabilities to the Title IX coordinator at any point before or during the Title IX Grievance Process that do not fundamentally alter the process. The Title IX coordinator will not affirmatively provide disability accommodations that have not been specifically requested by the parties, even where the parties may be receiving accommodations in other institutional programs and activities. 

Making a Report Regarding Covered Sexual Harassment to the Institution 

Any person may report sex discrimination, including sexual harassment (whether or not the person reporting is the person alleged to be the victim of conduct that could constitute sex discrimination or sexual harassment), 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.  

Contact Information: 

Name: Maggie Wetter
Title: Title IX Coordinator 
Office Address: Miller Building, Room 404
Email Address: maggie.wetter@cortland.edu 
Telephone Number: 607-753-4550 

Such a report may be made 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. 

Additional reporting options are available on the Title IX website.

Non-Investigatory Measures Available Under the Title IX Grievance Policy 

Supportive Measures 

Complainants/reporting individuals (as defined above), who report allegations that could constitute covered sexual harassment under this policy, have the right to receive supportive measures from the university regardless of whether they desire to file a complaint. Supportive measures are non-disciplinary and non-punitive. These measures may include but are not limited to: 

• Counseling
• Extensions of deadlines or other course-related adjustments
• Modifications of work or class schedules
• Campus escort services
• Restrictions on contact between the parties (no contact orders)
• Changes in work or housing locations
• Leaves of absence
• Increased security and monitoring of certain areas of the campus

See 85 Fed. Reg. 30401. 

Emergency Removals 

SUNY Cortland retains the authority to impose emergency removals on a student respondent on an emergency basis, where the university (1) undertakes an individualized safety and risk analysis and (2) determines that an immediate threat to the physical health or safety of any student or other individual arising from the allegations of covered sexual harassment justifies a removal. 

If the university determines an emergency removal is necessary, the respondent will be provided notice and an opportunity to challenge the decision immediately following the notification. The respondent may challenge the emergency removal in writing to the vice president for student affairs or their designee within 3 business/school days of the receipt of the emergency removal notification.   

Administrative Leave 

The university retains the authority to place a non-student employee respondent on administrative leave during the Title IX Grievance Process, consistent with the relevant collective bargaining agreement. 

The Title IX Grievance Process

Filing a Formal Complaint 

The timeframe for the Title IX Grievance Process begins with the filing of a Formal Complaint. The Grievance Process will be concluded within a reasonably prompt manner, after the filing of the Formal Complaint, provided that the process may be extended for a good reason, including but not limited to 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. The procedure for applying for extensions is described below. 

To file a Formal Complaint, a complainant/reporting individual must provide the Title IX coordinator a written, signed complaint describing the facts alleged. Complainants/reporting individuals are only able to file a Formal Complaint under this policy if they are currently participating in, or attempting to participate in, the education programs or activities of the University, including as an employee. For complainants/reporting individuals who do not meet this criteria, the university will utilize existing policy in the Student Code of Conduct and/or Discrimination Complaint Procedure. 

If a complainant/reporting individual does not wish to make a Formal Complaint, the Title IX coordinator may determine a Formal Complaint is necessary. The university will inform the complainant/reporting individual of this decision in writing and the complainant/reporting individual need not participate in the process further but will receive all notices issued under this policy and process. 

Nothing in the Title IX Grievance Policy, Student Code of Conduct or Discrimination Complaint Procedure prevents a complainant/reporting individual from seeking the assistance of state or local law enforcement alongside the appropriate on-campus process.

Informal Resolution 

A complainant/reporting individual who files a Formal Complaint may elect, at any time, to address the matter through the institution’s Informal Resolution Process. All parties to a Formal Complaint must agree to enter the Informal Resolution Process through an informed written consent. Information about this process is available on the Title IX Office’s website.

Multi-Party Situations 

The institution may consolidate Formal Complaints alleging covered sexual harassment against more than one respondent, or by more than one complainant/reporting individual against one or more respondents, or by one party against the other party, where the allegations of covered sexual harassment arise out of the same facts or circumstances.  

Determining Jurisdiction 

The Title IX coordinator or designee will determine if the instant Title IX Grievance Process should apply to a Formal Complaint. The process will apply when all of the following elements are met, in the reasonable determination of the Title IX coordinator: 

1. The conduct is alleged to have occurred on or after Aug. 14, 2020; 
2. The conduct is alleged to have occurred in the United States; 
3. The conduct is alleged to have occurred in the university’s education program or activity; and 
4. The alleged conduct, if true, would constitute covered sexual harassment as defined in this policy. 

If all of the elements are met, the university will investigate the allegations according to the Grievance Process.  

Allegations Potentially Falling Under Two Policies 

If the alleged conduct includes conduct that would constitute covered sexual harassment and conduct that would not constitute covered sexual harassment, the Title IX Grievance Process will be applied in the investigation and adjudication of all of the allegations involving student respondents and may be applied in the investigation and adjudication of allegations involving employee respondents consistent with relevant collective bargaining agreements. 

Mandatory Dismissal 

If any one of these elements are not met, the Title IX coordinator or designee will notify the parties that the Formal Complaint is being dismissed for the purposes of the Title IX Grievance Policy. Each party may appeal this dismissal using the procedure outlined in “Appeals,” below.   

Discretionary Dismissal 

The Title IX coordinator or designee may dismiss a Formal Complaint brought under the Title IX Grievance Policy, or any specific allegations raised within that Formal Complaint, at any time during the investigation or hearing, if: 

• A complainant/reporting individual notifies the Title IX coordinator in writing that they would like to withdraw the Formal Complaint or any allegations raised in the Formal Complaint; 
• The respondent is no longer enrolled or employed by the university; or, 
• If specific circumstances prevent the university from gathering evidence sufficient to reach a determination regarding the Formal Complaint or allegations within the Formal Complaint. 

Any party may appeal a dismissal determination using the process set forth in “Appeals,” below. 

Notice of Dismissal 

Upon reaching a decision that the Formal Complaint will be dismissed, the institution will promptly send written notice of the dismissal of the Formal Complaint or any specific allegation within the Formal Complaint and the reason for the dismissal, simultaneously to the parties through their institutional email accounts. It is the responsibility of parties to maintain and regularly check their email accounts. 

Notice of Removal 

Upon dismissal for the purposes of Title IX, the university retains discretion to utilize the Student Code of Conduct and/or the Discrimination Complaint Procedure to determine if a violation of the Student Code of Conduct and/or the Discrimination Complaint Procedure has occurred. If so, the university will promptly send written notice of the dismissal of the Formal Complaint under the Title IX Grievance Process and removal of the allegations to the conduct process. 

Notice of Allegations 

The Title IX coordinator will draft and provide the Notice of Allegations to any party to the allegations of sexual harassment. Such notice will occur as soon as practicable, when the institution receives a Formal Complaint of the allegations, if there are no extenuating circumstances. 

The parties will be notified by their institutional email accounts if they are a student or employee and by other reasonable means if they are neither. 

The institution will provide sufficient time for the parties to review the Notice of Allegations and prepare a response before any initial interview. 

The Title IX coordinator or designee may determine that the Formal Complaint must be dismissed on the mandatory grounds identified above and will issue a Notice of Dismissal. If such a determination is made, any party to the allegations of sexual harassment identified in the Formal Complaint will receive the Notice of Dismissal in conjunction with, or in separate correspondence after, the Notice of Allegations. 

Contents of Notice 

The Notice of Allegations will include the following: 

• Notice of the institution’s Title IX Grievance Process, including any informal resolution process and a hyperlink to a copy of the process. 
• Notice of the allegations potentially constituting covered sexual harassment and sufficient details known at the time the notice is issued, such as the identities of the parties involved in the incident, if known, including the complainant/reporting individual; the conduct allegedly constituting covered sexual harassment; and the date and location of the alleged incident, if known. 
• A statement that the respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the grievance process. 
• A statement that the parties may have an advisor of their choice, who may be, but is not required to be, an attorney, as required under 34 C.F.R. § 106.45(b)(5)(iv); 
• A statement that before the conclusion of the investigation, the parties may inspect and review evidence obtained as part of the investigation that is directly related to the allegations raised in the Formal Complaint, including the evidence upon which the institution does not intend to rely in reaching a determination regarding responsibility, and evidence that both tends to prove or disprove the allegations, whether obtained from a party or other source, as required under 34 C.F.R. § 106.45(b)(5)(vi); 
• Students are prohibited from knowingly making false statements or knowingly submitting false information during the grievance process as is cited in the Student Code of Conduct, Acts of Dishonesty. 

Ongoing Notice  

If, in the course of an investigation, the institution decides to investigate allegations about the complainant/reporting individual or respondent that are not included in the Notice of Allegations and are otherwise covered “sexual harassment” falling within the Title IX Grievance Policy, the institution will notify the parties whose identities are known of the additional allegations by their institutional email accounts or other reasonable means. 

The parties will be provided sufficient time to review the additional allegations to prepare a response before any initial interview regarding those additional charges. 

Advisor of Choice and Participation of Advisor of Choice 

The university will provide the parties equal access to advisors and support persons; any restrictions on advisor participation will be applied equally. 

Individuals participating as complainant/reporting individual or respondent in this process may be accompanied by an advisor of choice to any meeting or hearing to which they are required or are eligible to attend. The advisor of choice is not an advocate. Except where explicitly stated by this policy, as consistent with the Final Rule, advisors of choice shall not participate directly in the process as per standard policy and practice of the university.  

The university will not intentionally schedule meetings or hearings on dates where the advisors of choice for all parties are not available, provided that the advisors act reasonably in providing available dates and work collegially to find dates and times that meet all schedules, within a reasonable timeframe.  

The university’s obligations to investigate and adjudicate in a prompt timeframe under Title IX and other university policies apply to matters governed under this policy, and the university cannot agree to extensive delays solely to accommodate the schedule of an advisor of choice. The determination of what is reasonable shall be made by the Title IX coordinator or designee. The university will not be obligated to delay a meeting or hearing under this process more than five (5) days due to the unavailability of an advisor of choice, and may offer the party the opportunity to obtain a different advisor of choice or utilize one provided by the university. 

Additional information about the role of an advisor for students participating in the Title IX Grievance Process is available in the Student Code of Conduct. 

Notice of Meetings and Interviews 

The university will provide, to a party whose participation is invited or expected, written notice of the date, time, location, participants and purpose of all hearings, investigative interviews or other meetings with a party, with sufficient time for the party to prepare to participate.

Investigation 

General Rules of Investigations 

The investigator will perform an investigation under a reasonably prompt timeframe of the conduct alleged to constitute covered sexual harassment after issuing the Notice of Allegations.  

The university, and not the parties, has the burden of proof and the burden of gathering evidence, i.e. the responsibility of showing a violation of this policy has occurred. This burden does not rest with either party and either party may decide not to share their account of what occurred or may decide not to participate in an investigation or hearing. This does not shift the burden of proof away from the university and does not indicate responsibility.  

The university cannot access, consider or disclose medical records without a waiver from the party (or parent, if applicable) to whom the records belong or of whom the records include information. The university will provide an equal opportunity for the parties to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence, (i.e. evidence that tends to prove and disprove the allegations) as described below. 

Inspection and Review of Evidence 

Prior to the completion of the investigation, the parties will have an equal opportunity to inspect and review the evidence obtained through the investigation. The purpose of the inspection and review process is to allow each party the equal opportunity to meaningfully respond to the evidence prior to conclusion of the investigation. 

Evidence that will be available for inspection and review by the parties will be any evidence that is directly related to the allegations raised in the Formal Complaint. It will include any: 

1. Evidence that is related, even if that evidence does not end up being relied upon by the institution in making a determination regarding responsibility; 
2. Inculpatory or exculpatory evidence (i.e. evidence that tends to prove or disprove the allegations) that is directly related to the allegations, whether obtained from a party or other source. 

All parties must submit any evidence they would like the investigator to consider prior to when the parties’ time to inspect and review evidence begins. See 85 Fed. Reg. 30026, 30307 (May 19, 2020).  

The institution will send the evidence made available for each party and each party’s advisor, if any, to inspect and review. The process for cases with student respondents to inspect and review the materials is consistent with the Student Code of Conduct. SUNY Cortland is not under an obligation to use any specific process or technology to provide the evidence and shall have the sole discretion in terms of determining format and any restrictions or limitations on access. 

Any evidence deemed relevant after inspection and review will be available at any hearing, including for purposes of cross-examination. 

The parties and their advisors must sign an agreement not to disseminate any of the evidence subject to inspection and review or use such evidence for any purpose unrelated to the Title IX grievance process. See 85 Fed. Reg. 30026, 30435 (May 19, 2020).  

The parties and their advisors agree not to photograph or otherwise copy the evidence. See 85 Fed. Reg. 30026, 30435 (May 19, 2020).  

Inclusion of Evidence Not Directly Related to the Allegations

Evidence obtained in the investigation that is determined in the reasoned judgment of the investigator not to be directly related to or relevant to the allegations in the Formal Complaint will be included in the appendices to the investigative report. These appendices will be made available exclusively to both parties unless an appeal is filed. 

Investigative Report 

The investigator will create an Investigative Report that fairly summarizes relevant evidence.   

The Investigative Report is not intended to catalog all evidence obtained by the investigator, but only to provide a fair summary of that evidence. 

Only relevant evidence (including both inculpatory and exculpatory — i.e. tending to prove and disprove the allegations — relevant evidence) will be referenced in the Investigative Report.  

The investigator may redact irrelevant information from the Investigative Report when that information is contained in documents or evidence that is/are otherwise relevant. See 85 Fed. Reg. 30026, 30304 (May 19, 2020).

Hearing 

General Rules of Hearings 

The university will not issue a disciplinary sanction arising from an allegation of covered sexual harassment without holding a live hearing unless otherwise resolved through an informal resolution process. 

The live hearing 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. This technology will enable participants simultaneously to see and hear each other. At its discretion, the university may delay or adjourn a hearing based on technological errors not within a party’s control.  

All proceedings will be recorded or transcribed. That recording or transcript will be made available to the parties for inspection and review.  

Prior to obtaining access to any evidence, the parties and their advisors must sign an agreement not to disseminate any of the testimony heard or evidence obtained in the hearing or use such testimony or evidence for any purpose unrelated to the Title IX Grievance Process. Once signed, this agreement may not be withdrawn See 85 Fed. Reg. 30026, 30435 (May 19, 2020). 

For additional details about the Title IX Grievance Process Rules of Hearings, please refer to the Student Code of Conduct or Discrimination Complaint Procedure.

Continuances or Granting Extensions 

The university may determine that multiple sessions or a continuance (i.e. a pause on the continuation of the hearing until a later date or time) is needed to complete a hearing. If so, the university will notify all participants and endeavor to accommodate all participants’ schedules and complete the hearing as promptly as practicable. 

Newly-discovered Evidence

As a general rule, no new evidence or witnesses may be submitted during the live hearing. 

If a party identifies new evidence or witnesses that were not reasonably available prior to the live hearing and could affect the outcome of the matter, the party may request that such evidence or witnesses be considered at the live hearing.  

The decision-maker will consider this request and make a determination regarding (1) whether such evidence or witness testimony was actually unavailable by reasonable effort prior to the hearing and (2) whether such evidence or witness testimony could affect the outcome of the matter. The party offering the newly-discovered evidence or witness has the burden of establishing these questions by the preponderance of the evidence. 

If the decision-maker answers in the affirmative to both questions, then the parties will be granted a reasonable pause in the hearing to review the evidence or prepare for questioning of the witness. 

Participants in the Live Hearing 

Live hearings are not public and the only individuals permitted to participate in the hearing are as follows: 

Complainant/Reporting Individual and Respondent (The Parties) 

• The parties cannot waive the right to a live hearing. 
• The institution may still proceed with the live hearing in the absence of a party and may reach a determination of responsibility in their absence.
• The university will not threaten, coerce, intimidate or discriminate against the party in an attempt to secure the party’s participation. See 34 C.F.R. § 106.71; see also 85 Fed. Reg. 30026, 30216 (May 19, 2020). 
• The decision-maker cannot draw an inference about the determination regarding responsibility based solely on a party’s absence from the live hearing or refusal to answer cross examination or other questions. See 34 C.F.R. §106.45(b)(6)(i).
• In cases involving student respondents, the parties shall be subject to the institution’s Rules of Decorum in the Student Code of Conduct

The Decision-maker 

• The hearing body will consist of a single decision-maker. For cases involving a student respondent, more information about the decision-maker is available in the Student Code of Conduct. 
• No member of the hearing body will also have served as the Title IX coordinator, Title IX investigator or advisor to any party in the case, nor may any member of the hearing body serve on the appeals body in the case. 
• No member of the hearing body will have a conflict of interest or bias in favor of or against complainants/reporting individuals or respondents generally, or in favor or against the parties to the particular case. 
• The hearing body will be trained on topics including how to serve impartially, issues of relevance, including how to apply the rape shield protections provided for complainants/reporting individuals, and any technology to be used at the hearing.  
• The parties will have an opportunity to raise any objections regarding a decision-maker’s actual or perceived conflicts of interest or bias at the commencement of the live hearing.  

Advisor of choice 

• The parties have the right to select an advisor of their choice, who may be, but does not have to be, an attorney.  
• The advisor of choice may accompany the parties to any meeting or hearing they are permitted to attend, but may not speak for the party, except for the purpose of cross-examination at a live hearing. 
• The parties are not permitted to conduct cross-examination; it must be conducted by the advisor. As a result, if a party does not select an advisor, the institution will select an advisor to serve in this role for the limited purpose of conducting the cross-examination at no fee or charge to the party. 
• If a party does not attend the live hearing, the party’s advisor may appear and conduct cross-examination on their behalf. 85 Fed. Reg. 30026, 30340 (May 19, 2020). 
• If neither a party nor their advisor appear at the hearing, the university will provide an advisor to appear on behalf of the non-appearing party. See 85 Fed. Reg. 30026, 30339-40 (May 19, 2020). 
• In cases involving student respondents, more information about the institutions Rules of Decorum as it applies to advisors is available in the Student Code of Conduct.  

Witnesses 

• Witnesses cannot be compelled to participate in the live hearing and have the right not to participate in the hearing free from retaliation. See 85 Fed. Reg. 30026, 30360 (May 19, 2020).
• If a witness does not submit to cross-examination, as described below, the decision-maker cannot rely on any statements made by that witness in reaching a determination regarding responsibility, including any statement relayed by the absent witness to a witness or party who testifies at the live hearing. 85 Fed. Reg. 30026, 30347 (May 19, 2020). 

Hearing Procedures 

For student respondents, the procedure for live hearings conducted under this Title IX Grievance Process is available in the Student Code of Conduct. 

For employee respondents, the procedure for live hearings conducted under this Title IX Grievance Process is available in the Discrimination Complaint Procedures. 

Live Cross-Examination Procedure 

Each party’s advisor will conduct live cross-examination of the other party or parties and witnesses. During this live-cross examination the advisor will ask the other party or parties and witnesses relevant questions and follow-up questions, including those challenging credibility directly, orally and in real time. 

Before any cross-examination question is answered, the decision-maker will determine if the question is relevant. Cross-examination questions that are duplicative of those already asked, including by the decision-maker may be deemed irrelevant if they have been asked and answered. 

Review of Transcript/Recording 

The recording or transcript of the hearing will be available for review by the parties. The recording or transcript of the hearing will not be provided to parties or advisors of choice.

Determination Regarding Responsibility 

Standard of Proof 

The university uses the preponderance of the evidence standard for investigations and determinations regarding responsibility of formal complaints covered under this policy. This means that the investigation and hearing determines whether it is more likely than not that a violation of the policy occurred. 

General Considerations for Evaluating Testimony and Evidence

While the opportunity for cross-examination is required in all Title IX hearings, determinations regarding responsibility may be based in part, or entirely, on documentary, audiovisual and digital evidence, as warranted in the reasoned judgment of the decision-maker. 

Decision-makers shall not draw inferences regarding a party or witness’ credibility based on the party or witness’ status as a complainant/reporting individual, respondent or witness, nor shall decision-makers base their judgments in stereotypes about how a party or witness would or should act under the circumstances. 

Generally, credibility judgments should rest on the demeanor of the party or witness, the plausibility of their testimony, the consistency of their testimony, and its reliability in light of corroborating or conflicting testimony or evidence. 

Still, credibility judgments should not rest on whether a party or witness’ testimony is non-linear or incomplete, or if the party or witness is displaying stress or anxiety.  

Decision-makers will afford the highest weight relative to other testimony to first-hand testimony by parties and witnesses regarding their own memory of specific facts that occurred. Both inculpatory and exculpatory (i.e. tending to prove and disprove the allegations) evidence will be weighed in equal fashion. 

Except where specifically barred by the Title IX Final Rule, a witness’ testimony regarding third-party knowledge of the facts at issue will be allowed, but will generally be accorded lower weight than testimony regarding direct knowledge of specific facts that occurred.

The Final Rule requires that the university allow parties to call “expert witnesses,” character witnesses and for the university to admit and allow testimony regarding polygraph tests and other procedures that are outside of standard use in academic and non-academic conduct processes. While these witnesses, testimonies and evidence are allowed by the Final Rule, the decision-maker will be instructed to afford lower weight to such processes relative to the testimony of fact witnesses. 

Where a party or witness’ conduct or statements demonstrate that the party or witness is engaging in retaliatory conduct, including but not limited to witness tampering and intimidation, the decision-maker may draw an adverse inference as to that party or witness’ credibility. 

Components of the Determination Regarding Responsibility 

The written Determination Regarding Responsibility will be issued simultaneously to all parties through their institution email account, or other reasonable means as necessary. The Determination will include: 

1. Identification of the allegations potentially constituting covered sexual harassment; 
2. 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; 
3. Findings of fact supporting the determination; 
4. Conclusions regarding which section of the Student Conduct Code or definitions in the Discrimination Complaint Procedure, if any, the respondent has or has not violated. 
5. For each allegation: 
1. A statement of, and rationale for, a determination regarding responsibility; 
2. A statement of, and rationale for, any disciplinary sanctions the recipient imposes on the respondent; and  
3. A statement of, and rationale for, whether remedies designed to restore or preserve equal access to the recipient’s education program or activity will be provided by the recipient to the complainant/reporting individual; and 
6. The recipient’s procedures and the permitted reasons for the complainant/reporting individual and respondent to appeal (described below in “Appeal”).  

Timeline of Determination Regarding Responsibility 

For cases involving student respondents, if there are no extenuating circumstances, the determination regarding responsibility will be issued by the university within ten (10) school/business days of the completion of the hearing. 

For cases involving employee respondents, the timeline will be consistent with the relevant collective bargaining agreement. 

Finality 

The determination regarding responsibility becomes final either on the date that the institution provides the parties with the written determination of the result of the appeal, if an appeal is filed consistent with the procedures and timeline outlined in “Appeals” below, or if an appeal is not filed, the date on which the opportunity to appeal expires.  

Appeals 

Each party may appeal (1) the dismissal of a formal complaint or any included allegations and/or (2) a determination regarding responsibility.

Appeals for Dismissal of a Formal Complaint or any Included Allegations 

Parties may appeal a dismissal of a Formal Complaint or any included allegations by responding to the Title IX Coordinator within five (5) business/school days of initial written receipt of the decision. Such appeals shall be in writing and shall be delivered to the Chief of Staff or their designee. The written appeal shall not be longer than ten (10) double-spaced typed pages in length or 2,500 words. Supporting evidence submitted shall not be counted toward the page limitation. Appeals will be reviewed by either the associate vice president for human resources or designee in cases involving employee respondents or the Vice President for student affairs or designee in cases involving student respondents. 

Appeals for Determination Regarding Responsibility 

Information regarding the appeal process for a student respondent is available in the Student Code of Conduct. 

Information regarding an appeal process for an employee respondent is available in the Discrimination Complaint Procedure.

Retaliation

The university will keep the identity of any individual who has made a report or complaint of sex discrimination confidential, including the identity of any individual who has made a report or filed a Formal Complaint of sexual harassment under this Title IX Grievance Policy, any complainant/reporting individual, any individual who has been reported to be the perpetrator of sex discrimination, any respondent, and any witness, except as permitted by the FERPA statute, 20 U.S.C. 1232g, or FERPA regulations, 34 CFR part 99, or as required by law, or to carry out the purposes of 34 CFR part 106, including the conduct of any investigation, hearing or judicial proceeding under this Title IX Grievance Policy.  

No person may intimidate, threaten, coerce or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX of the Education Amendments of 1972 or its implementing regulations. 

No person may intimidate, threaten, coerce or discriminate against any individual 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 this Title IX Grievance Policy.  

Any intimidation, threats, coercion or discrimination, for the purpose of interfering with any right or privilege secured by Title IX or its implementing regulations constitutes retaliation. This includes any charges filed against an individual for code of conduct violations that do not involve sex discrimination or sexual harassment, but which arise from the same facts or circumstances as a report or complaint of sex discrimination or a report or Formal Complaint of sexual harassment. Information about the university amnesty policy is available on the Title IX website. 

Complainants/reporting individuals alleging retaliation may be filed according to the Affirmative Action Officer or Title IX coordinator. 

Director of Title IX/Affirmative Action Investigator

Maggie Wetter
Title IX Office
Miller Building, Room 309
607-753-4550 

Last Updated 4/4/2024