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Sexual Misconduct Hearings and Appeals

Created By
David J. Freedman, Esquire

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Part I

Title IX Overview

Scope of Sexual Misconduct Policy

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Title IX Overview

Prohibits sex-based discrimination by recipients of federal funding

Sexual Discrimination
Sexual Harassment
Sexual Misconduct

Goals

Stop sexual violence, sexual harassment, and sex-based discrimination
Prevent its recurrence
Provide support and assistance when it occurs

Let’s start off with a discussion about Title IX of the Educational Amendments Act. This is a federal law that prohibits recipients of federal funding from engaging in sex discrimination in the provision of educational programs and activities. Of course, HACC—like most other institutions of higher learning in the United States—receives significant funding from the federal government, primarily through participation in student loan programs funded in whole or in part by the federal government. As a result, HACC is subject to Title IX’s requirements.

Title IX’s prohibitions against sex-based discrimination include conduct that could be classified as sex discrimination—that is treating individuals better or worse based only on sex. Title IX also prohibits other forms of sexual misconduct, such as sexual harassment. Shortly, we will explain to you the definitions of these terms.

For now, it is sufficient for you to understand that Title IX’s ultimate goal is stop sexual violence, sexual harassment, and sex-based discrimination, prevent its recurrence, and provide support and assistance if it occurs.

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SGP: 114 Sexual Misconduct Policy �and Grievance Procedure

Required by Dept. of Education’s Title IX regulations

Implements Title IX’s requirement

Establishes procedures for processing grievances regarding allegations of sexual misconduct

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Title IX only applies to the College’s “education program and activities.”

Conduct is alleged to have occurred on College property or other property owned, controlled, used, or managed by HACC
Occurs in any building owned or controlled by an officially recognized HACC student organization
Occurs in any other location, event, or circumstance over which HACC exercises substantial control over the respondent and the context in which the conduct is alleged to have occurred.

May include online conduct, if there is a substantial enough connection to the College’s education program and activities

Education Program and Activities

The U.S. Department of Education’s Title IX regulations make clear that if any sexual misconduct can be said to have occurred in the College’s “education program and activities,” then the College is obligated to take certain steps to investigate those allegations and, if necessary, to take action to remedy prohibited discrimination that may have occurred. So it is important to understand how the Department of Education’s regulations define the term, “education programs and activities.” Under the Department of Education’s regulations, an event occurs within the College’s “education programs and activities” if the conduct is alleged to have occurred on College property or other property that is owned, controlled, used, or managed by the college.

Additionally, if the conduct in question occurs in any building owned or controlled by an officially recognized HACC student organization, then the conduct would be said to have occurred as part of the College’s “educational programs and activities.”

The College might also be required to take action if conduct occurs in any other location, or during any event or circumstances if the College exercises substantial control over the respondent (that is, the person accused of sexual misconduct) and the context in which the conduct is alleged to have occurred. For example, sexual misconduct may occur online. If there is a substantial connection between the online conduct and the education program or activity provided by the College, then HACC would be required to respond to that event.

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Limits of Sexual Misconduct Policy’s Scope

Complainant must allege that harm was suffered within the territorial limits of the United States

But nothing prevents the imposition of discipline for violation of other policies, even if the event falls outside the scope of the Sexual Misconduct Policy

Study Abroad Program Rules
College Internet Usage Rules
Student Code of Conduct
Academic Program Requirements

The Department of Education, however, has made it clear that there are limits to how far Title IX reaches. For example, Title IX only applies if the complainant (that is, the person alleging to be the victim of sexual misconduct) suffered harm within the territorial limits of the United States. If the conduct in question harms a complainant outside of the United States, then Title IX does not apply to that situation. But even if a situation falls outside of Title IX’s coverage (that is, it cannot be said to have occurred in the College’s education programs or activities), the College is permitted to apply non-Title IX rules to that conduct. So, for example, let’s suppose that a HACC student claims that he has been subjected to sexual harassment by a fellow student while the two participated in a study abroad program and that the alleged harassment harmed the complainant while he was outside of the United States. Then that situation cannot be said to be prohibited by the College’s Sexual Misconduct Policy. That said, the conduct still could be prohibited by other College policies, such as rules related to the study abroad program or the College’s policies regarding the appropriate use of the internet or the College’s information technology infrastructure. The conduct could also run afoul of rules in the Student Code of Conduct. And the conduct might violate specific academic program requirements. If so, then the College may impose discipline against the harassing student under those policies, although the harassing student would not be subject to the Sexual Misconduct Policy.

You might be asking yourself: Why does that matter? As you will hear shortly, this is an important distinction. If conduct falls within the scope of the College’s Sexual Misconduct Policy, then a specific grievance procedure must be used. That procedure complies with the requirements of the U.S. Department of Education’s Title IX regulations. Conversely, if the conduct falls outside of the scope of the College’s Sexual Misconduct Policy, then the grievance procedure described in the Sexual Misconduct Policy need not be followed, although other grievance procedures, such as the Student Grievance or Employee Grievance procedures, might have to be followed.

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Sexual Misconduct: Defined

Per Se Sexual Misconduct

Sexual Assault
Dating or Domestic Violence
Sex-Based Stalking

Sexual Harassment

Unwelcome conduct that a reasonable person would consider so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the College’s education programs or activities (“Hostile Educational Environment” or “Hostile Work Environment”)

As stated in Shared Governance Policy 114, the College prohibits “sexual misconduct.” And the policy defines “sexual misconduct” as “discrimination on the basis of sex that takes the form of sexual harassment, sexual assault, domestic violence, dating violence, and sex-based stalking.” Each one of these terms has its own definition in SGP 114 and we encourage you to consult the policy for those definitions.

For now, though, it’s important to understand that there are two basic categories of sexual misconduct under the Department of Education’s Title IX regulations and the College’s Sexual Misconduct Policy. Those categories are what we’ll call “per se sexual misconduct” violations and sexual harassment.

The “per se” sexual misconduct violations are sexual assault, dating violence, domestic violence, and sex-based stalking. These are called “per se sexual misconduct” because the single occurrence of any of these activities constitutes a violation of the sexual misconduct policy.

Sexual harassment, however, it is a bit different. Sexual harassment is defined as unwelcome conduct that a reasonable person would consider so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the College’s education programs or activities. Sometimes, this is referred to as “hostile educational environment” or “hostile work environment.”

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Sexual Harassment: Key Points

Key: Severe and Pervasive and Objectively Offensive

Conduct must satisfy all three

If it doesn’t, it still might violate another College policy

Judged from the complainant’s perspective
Requirement does not apply to “Per se Sexual Misconduct”

Sexual Assault
Dating or Domestic Violence
Sex-Based Stalking

Unintentional consequences may constitute sexual harassment

To qualify as sexual harassment that violates the College’s Sexual Misconduct Policy, the conduct in question must satisfy all three criteria. That is, it must be severe—meaning the conduct in question cannot be minor or involve a de minimis level of discomfort. The conduct must also be pervasive—meaning that it is widespread or occurs often; a single instance of behavior likely would not satisfy this standard. Additionally, the conduct must be objectively offensive, meaning that a reasonable person in the target’s shoes would have found the conduct offensive. If the conduct in question does not satisfy all three requirements—severe, pervasive, and objectively offensive—then it cannot be considered sexual harassment under the College’s Sexual Misconduct Policy. Again, though, the conduct in question might be subject to discipline under another College policy even if it doesn’t qualify as sexual harassment.

But to be clear, these three requirements do not apply to “per se sexual misconduct.” Again, a single instance of sexual assault, dating violence, domestic violence, or sex-based stalking qualifies as sexual misconduct.

One more point about sexual harassment. The respondent need not intend to cause harm to the complainant to have engaged in sexual harassment. So a respondent may be responsible for sexual harassment for the unintentional consequences of their actions, provided that it has been demonstrated that the conduct in question would be considered severe, pervasive, and objectively offensive.

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Retaliation

Threats, coercion, or other materially adverse action
Purpose of interfering with any right or privilege under Sexual Misconduct Policy
Because the individual has:

Made a report
Filed a formal complaint
Testified
Assisted
Participated

Related to an investigation or proceeding alleging sexual misconduct

Title IX not only prohibits sexual misconduct, it also provides protections for individuals who lodge complaints of sexual misconduct or who participate in investigations or hearings regarding allegations of sexual misconduct. The College’s Sexual Misconduct Policy mirrors Title IX in this regard. The College’s policies prohibit any individual from threatening, coercing, or taking any other material action against an individual because that individual has made a report of sexual misconduct, filed a formal complaint of sexual misconduct, testified during a hearing before the Sexual Conduct Hearing Board, assisted in the investigation of sexual misconduct or assisted a complainant in making a sexual misconduct report, or because the individual has participated in an investigation or hearing regarding the allegation of sexual misconduct.

To establish that a respondent is responsible for retaliation, the College must demonstrate that the respondent engaged in the conduct in question for the purpose of interfering with any right or privilege that an individual has under the Sexual Misconduct Policy.

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Part II: Consent

A knowing and voluntary agreement to engage in specific sexual activity at the time of the activity.

May be expressed verbally or non-verbally.
Must be unambiguous
May be withdrawn at any time
An individual may consent to certain sexual activities, but not others
Consent may expire
Incapacitated individuals are incapable of consenting to sexual activity.

Part II: Consent. Now, let’s shift gears to talk about some issues relevant to allegations of sexual assault. Obviously, sexual assault cases are some of the most difficult and disturbing cases that Colleges have to address. The definition of “sexual assault” in the College’s Sexual Misconduct policy refers to sexual activity undertaken without a person’s consent. So it is important that, when evaluating allegations of sexual assault, hearing board and appeal board members have a complete understanding of what it means to say that a person has the consent of another person to engage in sexual activities.

Under the College’s policy, the term “consent” means a knowing and voluntary agreement to engage in specific sexual activity at the time of that activity. To be valid, consent must be knowing, voluntary, active, present, and ongoing. Consent must be clear and unambiguous, although consent may be expressed verbally or non-verbally. But even if consent is granted unambiguously, any party to sexual activity may withdraw consent at any time. If a party initially consents to sexual activity, but withdraws that consent during the activity and the other party does not heed that withdrawal, then consent would no longer be present. Similarly, a consent to engage in one form of sexual activity is not an automatic agreement to engage in any and all sexual activities. Consent may also expire. For example, a person may invite another to engage in sexual activity on a Saturday evening but for some reason or another the activity does not take place. The inviting party then might have a change of heart and determine that they no longer wishes to engage in sexual activity with that party. As a result, the previously invited party would not have consent to engage in sexual activity on the Monday evening following that Saturday.

Another very important point to keep in mind is that incapacitated individuals are incapable of consenting to sexual activity.

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Incapacity

A person is unable to provide effective consent due to:

Age

No one under age 14
If 14 or 15 years old, then no more than four years older

Cognitive Limitations

Incapacitation due to the consumption of drugs or alcohol

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Drugs and Alcohol

Key factor: whether a sober and reasonable person in the same circumstances would have known that the other party could not consent to sexual activity.

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Impairment, Intoxication, and Incapacity

Impairment=any ingestion of drugs or alcohol

Intoxication=.08 blood alcohol content in Pennsylvania

Drugs are more complicated.

Overdose=enough to cause coma or death

Incapacity=between intoxication and overdose

In making that determination, it is important to be able to distinguish between impairment, intoxication, overdose, and incapacity. They don’t mean the same things, although some of these concepts overlap.

Impairment means that a person has ingested some level of drugs or alcohol that affects that person’s ability to think or act as compared to if the person had not ingested the substance. But just because a person is impaired does not necessarily mean that such a person is intoxicated or incapacitated.

Intoxication is a term that refers to a significant level of consumption of drugs or alcohol. With respect to alcohol, a blood alcohol content level of .08 is considered intoxication to a level that it would be unsafe for that person to operate an automobile. A person can be intoxicated through the use of drugs, as well. And just as with intoxication based on alcohol use, intoxication due to the use of drugs means a level of consumption that would render that person unsafe to operate a motor vehicle. But there isn’t quite the same bright line measurement as there is with respect to alcohol.

Overdose is the consumption of enough drugs or alcohol to cause coma or death.

The relevant determination under the College’s policy, however, is incapacity. Again, a person incapacitated due to the consumption of drugs or alcohol is incapable of providing effective consent to sexual activity. So where does incapacity fall on this spectrum? Incapacity means a state of impairment that is more than mere intoxication but less than overdose. It is a significant level of impairment.

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Incapacitation Factors

Different people become incapacitated at different points

Body Weight and Height
Tolerance for Alcohol or Other Substances
Amount Consumed
Whether Substances Have Been Mixed
Voluntariness of Consumption

You should also understand that when it comes to consuming drugs or alcohol, different people become incapacitated at different levels of consumption. Thus, when determining whether a person was incapacitated due to the consumption of alcohol or drugs—and, therefore, unable to consent to sexual activity—you will want to take into account the person’s body weight and height. Obviously, the larger the person, the larger amount of alcohol or drugs would have to be consumed for that person to become incapacitated. Conversely, the smaller the person, the more likely that such a person would become incapacitated by consuming a smaller amount of alcohol or drugs.

The person’s prior experience with the substance is also relevant to evaluating incapacitation. If a person has significant experience consuming the substance, then the person might have built up a tolerance for the substance, which would mean that the person will not become incapacitated through consumption of a small amount of the substance. But, again, the converse is true as well. If a person has very little or no experience consuming the substance, then that person is more likely to become incapacitated through consumption of a relatively lower amount of the substance.

If multiple substances are consumed at the same time, that may have the effect of amplifying the incapacitating effect.

It is also important to evaluate whether the person willingly consumed the substance. If a person is tricked or coerced into consuming the substance, that means that it is more likely that the person has been incapacitated than if the person had willingly agreed to consume the substance.

And the person’s predisposition, like prior experience with the substance, is an important factor to evaluate when determining if the person has been incapacitated due to the consumption of alcohol or drugs.

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Evidence of Incapacity

Person not know how much they have consumed
Slurred speech
Bloodshot eyes
Odor of alcohol or marijuana
Shaky equilibrium
Vomiting
Outrageous behavior
Unconsciousness (automatically incapacitated)

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Final Points on Consent

A respondent’s intentional ingestion of drugs or alcohol does not excuse conduct.

A capable complainant’s unreasonable failure to communicate withdraw of consent may insufficient to establish a lack of consent.

A few final points on the concept of consent before we move on. In the past, some respondents have alleged that they were intoxicated themselves and, therefore, cannot be held responsible for engaging in nonconsensual sexual activity. Obviously, consumption of drugs or alcohol can lower an individual’s inhibitions, making them more likely to act out of normal character than if that person had not consumed that substance. But that is not normally a defense to an allegation of sexual assault. A respondent cannot excuse their conduct simply because they intentionally ingested drugs or alcohol.

As stated before, the key factor in evaluating whether a respondent had consent to engage in the sexual activity is whether a reasonable person under the same circumstances would have a clear or unambiguous understanding that the sexual activity in question was consensual. In this sense, we require the members of our college community to be reasonable. But we do not require them to be clairvoyant. As a result, if a complainant initially consents to sexual activity but then decides to withdraw that consent, then the complainant must communicate the withdrawal of consent. And an unreasonable failure to do so may result in a finding that the activity in question was consensual.

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Part III: Reporting and Responding to Allegations of Sexual Misconduct

Reporters v. “Responsible College Employees”

Supportive Measures

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Mandatory Reporting vs. Responsible College Employees

Title IX and College policy carry two distinct reporting responsibilities

Sexual Misconduct Policy requires “Responsible College Employees” to report sexual misconduct to the Title IX Coordinator

All HACC employees have an obligation to report sexual misconduct of which they are aware.

Let’s start by discussing reporting requirements.

With respect to who is expected to report sexual misconduct, it is important to understand that Title IX and College policy apply different rules. Consistent with the Department of Education’s regulations regarding Title IX, the College has designated certain employees as “Responsible College Employees” who have an obligation to report sexual misconduct to the College’s Title IX Coordinator. But “Responsible College Employees” are simply those College employees for whom the College may be held legally liable for failing to report sexual misconduct.

The College still maintains that all HACC employees, as a minimum requirement of their employment, are mandatory reporters. That means that all College employees have an obligation to report sexual misconduct involving members of the College community of which they become aware. That obligation applies to all College employees, regardless of whether those employees are named as “Responsible College Employees” in the Sexual Misconduct Policy.

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Responsible College Employees

Title IX Coordinator and Deputies
Vice President of Human Resources and Organization Development
Executive Director of Employee Relations
Coordinator, Employee Relations
BIT Team Members
Intercollegiate Athletic Coaches
Student Access Services
Public Safety and Security Department

The “Responsible College Employees” as listed in the Sexual Misconduct policy are the Title IX Coordinator, the Deputy Title IX Coordinators, the Vice President of Human Resources, the Executive Director of Employee Relations, the Coordinator, Employee Relations, members of the College’s Behavioral Intervention Team, coaches of the College’s intercollegiate athletic teams, and all employees who work in the Student Access Services and Public Safety and Security Departments. These “Responsible College Employees” have an obligation to report to the Title IX Coordinator any allegations of sexual misconduct of which they become aware. If a “Responsible College Employee” fails to report an incident of sexual misconduct, then that would expose the College to potential legal liability under Title IX.

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Reports to Title IX Coordinator

Contact alleged victim

Initiates and processes grievances

Offers supportive measures to both parties

Conducts investigation

Once a report of potential sexual misconduct finds its way to the Title IX coordinator, that triggers certain action. As an initial matter, that will require that the Title IX Coordinator promptly contact the alleged victim of sexual misconduct, discuss with the alleged victim the availability of supportive measures to assist that person, and explain to the alleged victim the process for filing a formal complaint under the College’s Sexual Misconduct policy.

If a formal complaint is filed, the Title IX Coordinator initiates an investigation and manages the grievance process, which includes the responsibility of ensuring that both the accuser (that is, the complainant) and the accused (that is, the respondent) are treated equitably.

And if a formal complaint is filed, the Title IX Coordinator must explain to both the complainant and the respondent that supportive measures are available to both of them.

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Supportive Measures

Non-punitive and designed to restore or preserve equal access
Available to both the complainant and the respondent
May include:

Counseling services
Academic extensions or accommodations
Modifications of work or class schedules
Campus escort services
Mutual non-contact orders
Leaves of absence
Increased Security
Workplace accommodations
Other similar measures

What are supportive measures? Supportive measures are non-disciplinary and non-punitive individualized services that are offered to a complainant or respondent without charge or fee. Such measures are designed to restore or preserve equal access to HACC’s education programs and activities without unreasonably burdening the other party. Supportive measures include measures designed to protect the safety of all parties and the College’s educational environment. Supportive measures may include providing the parties with counseling services, academic extensions or accommodations, modifications of work or class schedules, campus escort services, mutual non-contact orders, leaves of absence, increased security, workplace accommodations when one or both of the parties are HACC employees, and other similar measures.

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Grievance Process Overview

Formal Complaint
Investigation
Pre-Hearing Dismissals
Appeals of Pre-Hearing Dismissal Decisions
Provision of Evidence to the Parties
Comments Period
Issuance of Investigative Report that Fairly Summarizes the Evidence
Notice of Hearing
Hearing
Appeals

Any allegation of sexual misconduct may trigger the Sexual Misconduct Grievance process. Let’s talk about the various parts of the grievance process. That process begins with the filing of a formal written complaint requesting that the College investigate an allegation of sexual misconduct. The alleged victim may file the formal complaint, but any other party may file a formal complaint, including the Title IX Coordinator.

Once a formal complaint has been signed, an investigation will occur. Under the College’s Sexual Misconduct Policy, the investigation will be conducted primarily by one of the College’s two deputy Title IX Coordinators. If the respondent—that is the person accused of sexual misconduct—is a student, then the investigation will be conducted primarily by the Director of Student Conduct, who is the Deputy Title IX Coordinator for Students. For all other respondents—including the non-student employees of the College—the investigation will be conducted primarily by the Executive Director of Employee Relations, who also holds the position of Deputy Title IX Coordinator for Employees. The Title IX Coordinator is also responsible for investigating sexual misconduct allegations, and the College’s legal counsel may also be engaged to serve as an investigator when the College deems that necessary and appropriate.

Upon completion of an investigation, the Title IX Coordinator will determine whether the matter should be presented to the Sexual Conduct Hearing Board for a hearing. Generally speaking, the Title IX Coordinator will forward the matter for a hearing if the complainant’s allegations, if assumed true, would constitute a violation of the Sexual Misconduct Policy. That said, the Title IX Coordinator must dismiss the formal complaint if the alleged conduct, even if proved, would not constitute “sexual misconduct.” Additionally, the Title IX Coordinator must dismiss the formal complaint if it is established that the alleged conduct did not occur in the College’s education programs or activities or if the alleged conduct did not harm a person located in the United States. The Title IX Coordinator may also dismiss a formal complaint if it is determined that the specific circumstances prevent the College from gathering or presenting sufficient evidence to reach a determination regarding the allegations in the formal complaint.

Any party may file an appeal if the Title IX Coordinator forwards a case to the Sexual Misconduct Hearing Board. Likewise, any party may file an appeal of a decision to dismiss a formal complaint. The Title IX Coordinator must notify all other parties of any such appeal. If the respondent is a student, then the College’s Vice President of Human Resources will decide the appeal of the Title IX Coordinator’s decision. If the respondent is anyone other than a student, including non-student employees of the College, then the Assistant Vice President of Student Engagement will decide the appeal of the Title IX Coordinator’s decision. The Title IX Coordinator’s decision will only be overturned if the appeal officer determines that a procedural irregularity affected the Title IX Coordinator’s decision, new evidence not reasonably available before has been located and would affect the Title IX Coordinator’s decision had it been known previously, or if it is determined that the Title IX Coordinator or the investigator had a conflict of interest or bias that affected the matter. Prohibited biases include bias against an individual complainant or respondent or bias against complainants and respondents generally.

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Part IV: The Hearing Process

Hearing Roles and Process

Evidentiary Issues

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Hearing Roles

Parties
Advisors
Witnesses
Title IX Coordinator
Sexual Conduct Hearing Board (“the Hearing Board”)
Hearing Officer

Many of you will be called upon to serve as decision makers for hearings regarding allegations of violations of the College’s Sexual Misconduct Policy. So it’s important for you to understand the roles that people play during such hearings.

Let’s start with the parties. As stated before, the complainant is either the individual alleged to have been the victim of sexual misconduct or the Title IX Coordinator. The respondent is the person who is accused of sexual misconduct. The College will also be a party to any hearings before the Sexual Conduct Hearing Board. In these hearings, the College will be represented by the Title IX Coordinator or, in some cases, by the College’s outside legal counsel.

Other parties who will participate in the hearings include the parties’ advisors, witnesses, the Sexual Conduct Hearing Board, and the hearing officer.

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Witnesses

Fact witnesses

Expert witnesses

Let’s explain what these roles are. During the hearing, witnesses will provide statements to the hearing board about the events in question. This testimony will be similar to what you might imagine would occur in a courtroom, with some significant differences that we will discuss shortly.

For the time being, it is important to understand that there are two general types of witnesses who are permitted to testify during a hearing. Those are fact witnesses and expert witnesses. Fact witnesses are those witnesses who have direct and relevant information about the who, what, where, when, or why of the alleged events. Expert witnesses, in contrast, may have no direct involvement in a situation. But expert witnesses may be permitted to testify when such a witness is qualified by education or experience to render an opinion that is relevant to resolving the factual dispute at issue in a case. Each party to a hearing before the Sexual Misconduct Board is entitled to call fact and expert witnesses, provided the information to be provided by such witnesses is relevant to the case and provided that the party complies with the requirements for disclosing such witnesses, as listed in the Sexual Misconduct Policy.

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Advisors

Each party has the right to assistance from an advisor of their choosing

May be, but does not have to be, an attorney

If the complainant or the respondent does not have an advisor, the College must provide one at no cost to the student

The College will be represented by the Title IX Coordinator or its legal counsel, depending on whether the complainant or the respondent is represented by counsel.

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Advisors

Must agree to comply with Rules of Decorum

Must sign confidentiality agreement

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Rules of Decorum

Applies to all participants
Respect Required
Sets Limits on Cross Examination

Relevant questions
Rape Shield Rule

Hearing Officer has the right to exclude any participant for

Inappropriate language, volume or tone of voice
Intimidation, violence, or threats

The Rules of Decorum don’t just apply to advisors. All parties to the hearing are required to sign the Rules of Decorum as a condition of their participation. Those rules set limits regarding respect for all parties involved in the hearing and set important limits on the extent of cross examination that may be conducted, which (we’ll discuss soon) ensure that cross examination questions implicate only relevant evidence and do not violate the grievance procedure’s Rape Shield Rule.

The Hearing Officer has the right to exclude any participant who engages in inappropriate language, who raises their voice, or uses a sarcastic or caustic tone. Likewise, the Hearing Officer is entitled to exclude any participant who engages in intimidation, violence, or anyone who threatens anyone else.

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Title IX Coordinator

Oversees investigation process.

Deputy Title IX Coordinators conduct investigation:

For Student Respondents: Anthony Beard
For All Other Respondents: Executive Director of Employee Relations

Makes decisions regarding whether the allegations are sufficient for case to go to hearing or whether the formal complaint must be dismissed
Issues investigative report that fairly summarizes the evidence
In charge of making arrangements for hearing and ensuring a smooth process

The Title IX Coordinator plays an important role during the Sexual Misconduct Grievance process well before a matter ends up before the Sexual Conduct Hearing Board. The Title IX Coordinator initially decides whether a formal complaint will be forwarded to the Hearing Board or whether the formal complaint must be dismissed. The Title IX Coordinator oversees the investigation process, and ensures that the complainant and the respondent are provided with the evidence from the investigation. And the Title IX Coordinator, at the conclusion of the investigation, authors an investigative report that fairly summarizes the evidence.

The Title IX Coordinator also plays an important role during the hearings before the Sexual Conduct Hearing Board. Specifically, the Title IX Coordinator represents the College’s interest in these hearing. The Title IX Coordinator does not necessarily represent the complainant or the respondent.

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Sexual Conduct Hearing Board

Three member board
College officials designated by the Vice President of Student Affairs and Enrollment Management (if Respondent is student) or Vice President of Human Resources and Organization Development (if Respondent is not a student)
Cannot include Title IX Coordinator
No conflicts of interest or bias

Bias regarding parties in particular matter
Bias in favor of or against complainants or respondents generally

Cannot serve on Appeal Board in same matter

The Sexual Conduct Hearing Board is a three-person panel of College officials who have been selected and trained to hear and decide allegations of Sexual Misconduct under the College’s policy. That is, the members of the Sexual Conduct Hearing Board are the decision-makers at these hearings. They hear the evidence and determine whether the respondent is for the specific alleged violations of the Sexual Misconduct policy, and if so, the Hearing Board fashions the appropriate remedies or sanctions that will be imposed.

The Title IX Coordinator may not serve as a member of the Hearing Board, ever.

And no one may participate as a member of the Hearing Board in a particular matter if that person has a conflict of interest or bias that would prohibit that person from deciding a matter based on the evidence presented. Prohibited biases include bias in favor or against the specific parties before the Hearing Board or a bias in favor or against complainants or respondents generally.

No member of the Sexual Conduct Hearing Board in a particular matter may serve on the Appeal Board for that same matter, although individuals may be called upon to serve as Hearing Board members or Appeal Board members in separate matters.

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Sexual Conduct Hearing Board

Decision-makers at the hearing level

Responsibility/Non-Responsibility
Remedy or Sanctions

Permitted to ask questions, subject to hearing officer’s control

Issues detailed written decision

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Hearing Officer

Trained, outside attorney
Presides over hearing
Decides procedural and evidentiary issues
Enforces rules of decorum
Serves as legal advisor to the Hearing Board
Composes written decision, subject to Hearing Board’s review and approval

The hearing officer plays a complimentary role to the Hearing Board. The hearing officer presides over the hearings and decides procedural and evidentiary disputes, if they arise during the course of a hearing before the Sexual Conduct Hearing Board. The hearing officer is also a non-voting member of the Sexual Conduct Hearing Board and, as a result, participates in the Hearing Board’s deliberations. At least for the time being, the College has agreed to retain professional attorneys to serve as the hearing officers. As a result, the hearing officer essentially functions as a legal advisor to the Hearing Board. The hearing officer is expected to compose the Hearing Board’s written decision. But the Hearing Board must approve of the written decision and sign off on it. Toward the conclusion of this presentation, we’ll discuss what must be included in the Hearing Board’s written decision.

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What will this new process look like?

Agreed Upon Opening Statement
Presentation of the College’s Evidence
Presentation of Evidence by the Complainant and Respondent
Closing Arguments Regarding Responsibility
Deliberations Regarding Responsibility
Oral Decision Regarding Responsibility
Additional Presentation of Evidence Regarding Remedy (if necessary)
Deliberations Regarding Remedy
Oral Decision Regarding Remedy
Written Decision Issued

Now that we have some rough idea of the roles played during the hearing process, let’s talk about the sequence of events.

The hearing will begin by the hearing officer providing the hearing board with a basic overview of the undisputed facts agreed to by the parties. The point of this is to provide you with some background regarding what the case is about and what you will be called upon to decide.

Once that is complete, the College will be provided its opportunity to present evidence through witnesses’ testimony. Once the College presents its evidence, both the Complainant and the Respondent will be permitted to present any additional witnesses or evidence that they feel necessary, provided such evidence is relevant.

Once the presentation of evidence is complete, each party (the College, the complainant, and respondent) will have the opportunity to make a closing argument to the hearing board. Once the closing arguments are complete, the hearing will be adjourned temporarily for the hearing board to engage in private deliberations along with the hearing officer. During this round of deliberations, the hearing board will make determinations about responsibility only—that is whether the College has satisfied its burden of demonstrating that it is more likely than not that the respondent is responsible for each alleged violation of the Sexual Misconduct Policy.

Once that process is complete, the hearing board will return to the hearing room, and the hearing officer will announce the hearing board’s determinations. If the respondent is found responsible, then the parties will be provided an opportunity to provide evidence relevant to the Board’s decision regarding whether to impose sanctions or order other remedies. During this phase—what I’ll call the remedy phase—the hearing board may hear evidence and argument regarding the effect of the alleged conduct on the complainant, the respondent’s character, penalties that have been imposed in other, similar cases, and whether certain remedies may be necessary.

Once the presentation of that evidence is complete, the hearing board will retreat to private again so that it may decide, in consultation with the hearing officer, what sanctions or remedies to order. Once that has been decided, the hearing will be called to order once again so that the hearing officer may announce the Board’s determination regarding the remedies or sanctions. At that point, the hearing will be adjourned. But the hearing officer will continue to work with the hearing board members on the written decision, which must be issued within seven days of the conclusion of the hearing.

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What will this process look like?

Live-In Person Hearings, or

Virtual Hearings

Either party may request
All parties must be able to simultaneously see and hear all parties and witnesses

Either way, hearing will be recorded in its entirety

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Evidentiary Issues: Live Cross Examination

Live cross examination conducted by advisors, never the parties.

Direct
Orally
In real time

Only regarding relevant evidence

Challenges to party or witness’s credibility is relevant

Let’s now talk about some of the unique issues regarding the presentation of evidence that may arise during hearings before the Sexual Conduct Hearing Board.

As alluded to previously, all witnesses are potentially subject to live cross examination. Any cross examination that occurs, however, must be conducted by the parties’ advisors, never the parties themselves. But any cross examination by parties’ advisor will be conducted orally, not by submitting written questions. And the cross examination will be conducted in real time while the witness is appearing before the hearing board.

But the hearing officer will only permit cross examination regarding relevant topics. Challenges to a party or witness’s credibility are relevant, and you likely will hear evidence regarding credibility if you serve on the Sexual Conduct Hearing Board.

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Uncooperative Witnesses

Parties are not required to submit to cross examination.

Hearing Board may not consider a witness’s prior statement if that party refuses to undergo or is unavailable for cross examination.

Hearing Board is permitted to question parties and witnesses.

The Hearing Board may consider a party or witness’s prior statement if that party or witness refuses to answer the Hearing Board’s questions.

The parties are permitted to conduct cross examination of witnesses, but under the Department of Education’s Title IX regulations, the College may not compel a party to submit to cross examination.

So what happens if a party—either the complainant or the respondent—refuses to submit to cross examination or is unavailable for cross examination. If that occurs, then the Hearing Board may not consider any prior statements that such a witness issued before the hearing. As a result, the hearing officer will likely prohibit the presentation of a prior statement from a witness who refuses to submit to cross examination, including prior statements that the witness may have made during the College’s investigation.

That said, the Hearing Board is also permitted to question parties and witnesses. That is not considered cross examination. And if a party or witness refuses to respond to the Board’s questions, then any other party may present to the Hearing Board the witness’s prior statements, if any, regarding that topic. So hearing board members should pay close attention when a witness refuses to submit to cross examination or refuses to answer a specific question. If that occurs, hearing board members would be permitted to ask the questions that the witness refused to answer under cross examination, provided the hearing officer finds that the question is relevant.

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Evidentiary Issues: Relevant Evidence

Only relevant evidence will be permitted.

Evidence that has any tendency to make a fact more or less likely to have occurred than it would without the evidence; and

The fact, if proven, would,

Make it more or less likely that the respondent is responsible, or
Demonstrates the appropriate remedy (if any) to be imposed.

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Evidentiary Issues: Relevant Evidence

Character evidence is not automatically irrelevant

Prior bad acts evidence is not automatically irrelevant

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Evidentiary Evidence: Relevant Evidence

But Hearing Officer may instruct the Board to,

Consider evidence only for its relevant purpose

Evaluate objectively whether the evidence merits a high-level or low-level of weight or credibility

That said, the hearing officer is empowered—through SGP 114—to instruct the Board to consider evidence only for its relevant purpose. So, for example, if the evidence suggests that a respondent committed the violation alleged but also suggests that the respondent is a bad person, the hearing officer may instruct the hearing board only to consider the evidence for the purpose of establishing whether or not the respondent committed the allegation and not for determining that the respondent is a bad person.

Similarly, if evidence tends to only have a low level of relevance to the important issues, but might tend to unfairly prejudice a party, then the hearing officer may instruct the hearing board to evaluate objectively whether the evidence merits a high-level or low-level of weight or credibility.

Because these hearings could potentially involve a far wider scope of evidence than what would normally be permitted during a trial in civil or criminal court, the hearing board will likely be called upon to sift through evidence to identify what really is important and what is less important.

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Evidentiary Issues: Rape Shield Rules

Evidence of the complainant’s sexual predisposition or prior sexual behavior is irrelevant, unless:

Offered to prove that someone other than the respondent committed the alleged conduct; or

Concerns specific incidents of the complainant’s prior sexual behavior with respondent and is offered to prove consent.

Rape shield protections do not apply to the respondent.

Despite the wide scope of potential evidence that might be presented, there are certain classes of evidence that will be excluded from the hearing board’s consideration.

One such class of evidence is the “Rape Shield Rule.” That rule prohibits the presentation or consideration of evidence of the complainant’s sexual predisposition or prior sexual behavior. That evidence is considered irrelevant automatically, unless it is offered to prove that someone other than the respondent committed the alleged conduct or if the evidence concerns specific incidents of the complainant’s prior sexual behavior with the respondent and is offered to prove that the sexual conduct in question was consensual.

Keep in mind, however, that the rape shield rule only applies to evidence regarding the complainant’s prior sexual history. Evidence regarding the respondent’s prior sexual history is not prohibited by the rape shield rule. But, again, if a party introduces evidence regarding a respondent’s prior sexual history, you will have to evaluate that evidence to determine whether it is worth you assigning it a high level or low level of importance.

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Evidentiary Rules: Irrelevant Evidence

Information protected by a legal privilege, such as the attorney-client privilege.

A party’s treatment records, absent a voluntary written waiver of confidentiality by the party.

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Presumption of Non-Responsibility

“A person accused of violating the Sexual Misconduct Policy is presumed to be not responsible, unless and until the person is found responsible through the grievance process. . . .”

“The mere fact that an allegation has been made or that a formal complaint has been filed will not result in any presumption that the accused is responsible for the alleged violations.”

“The determination regarding responsibility is made at the completion of the grievance process.”

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Prohibited and Permitted Presumptions

If a party refuses to answer the Hearing Board’s questions, the Hearing Board may determine that the answer would have been adverse to the refusing party’s position.

But decision cannot be based solely on refusal

If a party or witness refuses to submit to cross examination, the Hearing Board may not draw an inference based solely on the absence from the live hearing or refusal to answer cross examination questions.

Could implicate the party or witness’s privilege against self-incrimination under the Fifth Amendment to the United States Constitution
Could implicate the complainant’s desire not to be re-traumatized

There are other presumptions that the College’s policy prohibits and permits that you should be aware of.

First, if a party (that is a complainant or a respondent) refuses to answer questions posed by the Hearing Board members, then the Hearing Board may determine that the answer would be adverse (or harmful) to the refusing party’s position in the matter. A couple of restrictions apply to that permitted presumption. First, even when the Hearing Board is permitted to draw such an adverse inference, it may not base its decision regarding responsibility solely on the party’s refusal to answer the Hearing Board members’ question. There must be some other evidence to support the Board’s responsibility determination. Second, this only applies to a party who refuses to answer questions posed by Hearing Board members. So that presumption would not be permitted if a party refuses to answer cross examination questions posed by the other party’s advisors.

Again, the Hearing Board may not draw an adverse inference based solely on a party or witness’s refusal to answer cross examination questions or absence from the live hearing. There are many, perfectly reasonable reasons why parties (both complainants and respondents) might refuse to attend a hearing or to answer cross examination questions. For example, the parties have the right under the Fifth Amendment to the United States Constitution to refuse to self-incriminate themselves. And because a case might implicate a criminal investigation, that party may not wish to waive that right against self-incrimination. On the flip side, a complainant who was the victim of sexual misconduct might decide that the danger of potential re-traumatization is so significant that the complainant won’t attend the hearing.

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Burden of Proof

Preponderance of the Evidence

More likely than not that the respondent is responsible

College bears the burden, never the complainant or the respondent

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Part V: Sanctions and Remedies

Focus of Sanctioning

Scope of Appropriate Remedies and Sanctions

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Sanctions and Remedies

Under SGP 114, the Hearing Board should normally assign a remedy in accordance with sanctions matrix.

Matrix establishes appropriate sanctions for minor, moderate, and major policy violations.

Board must provide a written justification for deviating from sanctions matrix.

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Sanctions and Remedies

For Student Respondents

Written Warning
Loss of Privileges
No-Contact Directive
Mandatory Training
Mandated Counseling
Other Educational Sanctions
Disciplinary Probation
Suspension
Expulsion
Or Any Combination of These Sanctions

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Sanctions and Remedies

For Non-Student Employee Respondents

Written Reprimand
Final Written Warning
Change in Work Assignment
Loss of Privileges
No-Contact Directive
Mandatory Training
Mandatory Counseling
Suspension (With or Without Pay)
Termination of Employment
Or Any Combination of These Sanctions

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Sanctions and Remedies

Ultimate goal: Restore the complainant’s equal access to the College’s education programs and activities.

Sanctioning may take into account prior discipline.

Sanctions may include supportive measures.

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Part VI: Written Decisions and Appeal Process

Hearing Board’s Written Decision

Appeal Process

Grounds for Appeal

Written Appellate Decision

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Hearing Board’s Written Decision

Must include,

Description of the allegations constituting sexual misconduct
Procedural steps from receipt of formal complaint through hearing process
Specific factual findings
Application of factual findings to definition of sexual misconduct
Conclusions regarding responsibility or non-responsibility for all charges
The disciplinary sanctions or other remedies, if any, to be imposed and the factual support for their imposition
Must be issued within seven days of conclusion of the hearing, absent extenuating circumstances.

As discussed earlier, the Hearing Board must issue a written decision. That written decision must include a description of the allegations that could potentially constitute sexual misconduct, as defined in SGP 114. The written decision must also include a description of all procedural steps taken from the receipt of the formal complaint through the board’s decision, including any notifications provided to the parties, interviews conducted of the parties and witnesses, site visits that were conducted, methods used to gather other evidence, and a description of the hearings held. The Hearing Board’s written decision must include the Hearing Board’s specific factual findings that support its determination. The written decision must also include conclusions regarding the application of the Hearing Board’s factual findings to the relevant definitions of “sexual misconduct” in SGP 114. And the written decision must include a statement regarding the rationale for each determination of responsibility regarding each alleged violation of the Sexual Misconduct Policy and any disciplinary sanctions or other remedies imposed, along with the procedures and permissible bases for the complainant or the respondent to appeal. The Hearing Board’s written decision must be issued within seven days of the conclusion of the hearing, absent extenuating circumstances. Again, the Hearing Officer is responsible for drafting the written decision, but the written decision is not final until at least a majority of the Hearing Board members sign off on that.

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Appeals

Any party may file an appeal on the following basis:

Procedural irregularity that affected the outcome

New evidence not reasonably available at the time the determination was made and which could affect the matter’s outcome

The Hearing Board’s remedy decision was inappropriate

All parties will be provided an opportunity to submit a written statement in support of or in opposition to the appeal or hearing outcome.

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Appeals

Student Respondent: Appeal will be decided by the Appeal Board

Three member group

Non-Student Employee Respondent: College President or designee will decide appeal.

Limits

Cannot include Title IX Coordinator
Cannot have served on Hearing Board in matter under consideration
No conflicts of interest or bias

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Appeals

Appeal decision-maker may:

Affirm Hearing Board determination
Reverse Hearing Board determination
Issue split decision on responsibility and sanction
May order new hearing due to procedural irregularity, but only if it determines that irregularity may have affected the matter’s outcome.

Harmless error is insufficient

Decision-maker must issue a written decision within five days of the expiration of the period for the parties to submit appellate statements.

Title IX Coordinator will advise the appeal decision-maker in writing of the deadline for the issuance of the written decision.

On appeal, the appeal decision-maker may take a number of actions. The appeal decision-maker may affirm the Hearing Board’s determination in all respect or reverse that decision in all respects. Alternatively, the appeal decision-maker may uphold certain portions of the hearing board’s decision yet uphold other portions. The appeal decision-maker is entitled to order a new hearing due to a finding that a procedural irregularity occurred, but only if the appeal decision-maker determines that such an irregularity may have affected the matter’s outcome. If the error was harmless, a new hearing would be unjustified.

Regardless of the appeal’s outcome, the appeal decision-maker must issue a written decision and that written decision must be issued within five days of the expiration of the deadline for the parties to submit statements in support of, or in opposition to, an appeal. The Title IX Coordinator will advise the appeal decision-maker in writing of the deadline for the issuance of the written decision.

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Decisions

The Title IX Coordinator is responsible for:

Simultaneous transmission of Hearing Board’s written decision to the parties

Simultaneous transmission of written appeal decision to the parties

Implementation of final decision

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The End