Title IX Policy & Procedure
Title IX is a federal law that prohibits discrimination based on sex, including sexual harassment and sexual assault, in education programs and activities that receive federal financial assistance. On May 6, 2020, the Department of Education released sweeping regulations directing schools to implement a procedure to redress Title IX-based reports of sexual harassment and sexual assault. The regulations went into effect on August 14, 2020. “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance”. Title IX of the Education Amendments of 1972. The College has a duty to promptly respond to complaints of sexual harassment and sexual violence in a way that limits its effects and prevents its recurrence.
Definitions
Sex discrimination: includes all forms of sexual harassment, including verbal sexual harassment and sexual violence by employees, students or third parties against employees, students or third parties.
Sexual violence: physical sexual acts perpetrated without consent. Consent is clear, unambiguous, and voluntary agreement between the participants to engage in specific sexual activity.
Sexual harassment: unwelcome conduct of a sexual nature that is sufficiently severe, persistent or pervasive that it unreasonably interferes with, denies, or limits someone’s ability to participate in or benefit from a program or activity. Examples include requests for sexual favors, unwelcome advances, sexist comments.
Who are the parties: victims of sexual harassment or sexual violence might be faculty, staff, students or third parties, and the accused may be from any of those groups. Victims and alleged perpetrators can be male or female.
What should I report: any observed, experienced or known sex discrimination, including sexual harassment and sexual violence.
Who needs to report?: anyone who experiences, observes or hears about an incident of sexual harassment or sex discrimination should report it to the Title IX Coordinator as soon as possible.
How do I report?: Report to the Title IX Coordinator. S/he will contact the complainant (individual who is alleged to be the victim of conduct that could constitute sexual harassment) confidentially to discuss the availability of supportive measures, ask the complainant if s/he wishes supportive measures, inform her/him of the availability of supportive measures with or without the filing of a formal complaint, and explain the process for filing a formal complaint.
A formal complaint may be filed with the title IX Coordinator in person, by mail, or by electronic mail. Following a formal complaint, a transparent grievance process will be conducted. Complaints and respondents (the alleged perpetrator) will be treated equitably and no disciplinary sanctions will be enacted without following the grievance process.
The College will investigate allegations in any formal complaint and send written notice to both parties. The burden of gathering evidence and burden of proof lies with the College, not on the parties. The College will provide equal opportunity for the parties to present fact and expert witnesses and other inculpatory and exculpatory evidence. Parties have the same opportunity to select an advisor of the party’s choice who may be, but need not be, an attorney. The College will send written notice of any investigative interviews, meetings or hearings, and send to the parties and their advisors, evidence directly related to the allegations in electronic format or hard copy, giving at least 10 days for the parties to respond.
The College will dismiss allegations of conduct that do not meet the definition of sexual harassment or did not occur in a school’s education program or activity against a person in the US. Such dismissal is only for title IX purposes and does not preclude the school from addressing the conduct in any manner the College deems appropriate.
The College may dismiss a formal complaint or allegation if the complainant informs the Title IX Coordinator in writing that the complainant desires to withdraw the formal complain or allegation, if the respondent is no longer employed or enrolled at the college, of if specific circumstances prevent the college from gathering sufficient evidence to reach a determination. Written notice of a dismissal with reasons will be sent to both parties and advisors.
The College will protect the privacy of a party’s medical, psychological and similar treatment records by requiring the party’s voluntary, written consent to access or use such records. The College will conduct a live hearing, with the following guidelines:
- At the live hearing, the decision-maker(s) must permit each party’s advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility.
- Such cross-examination at the live hearing must be conducted directly, orally, and in real time by the party’s advisor of choice and never by a party personally.
- At the request of either party, the recipient must provide for the entire live hearing (including cross-examination) to occur with the parties located in separate rooms with technology enabling the parties to see and hear each other.
- Only relevant cross-examination and other questions may be asked of a party or witness. Before a complainant, respondent, or witness answers a cross-examination or other question, the decision-maker must first determine whether the question is relevant and explain to the party’s advisor asking cross-examination questions any decision to exclude a question as not relevant.
- If a party does not have an advisor present at the live hearing, the school must provide, without fee or charge to that party, an advisor of the school’s choice who may be, but is not required to be, an attorney to conduct cross-examination on behalf of that party.
- If a party or witness does not submit to cross-examination at the live hearing, the decision-maker(s) must not rely on any statement of that party or witness in reaching a determination regarding responsibility; provided, however, that the decision-maker(s) cannot draw an inference about the determination regarding responsibility based solely on a party’s or witness’s absence from the live hearing or refusal to answer cross-examination or other questions.
- Live hearings may be conducted with all parties physically present in the same geographic location or, at the school’s discretion, any or all parties, witnesses, and other participants may appear at the live hearing virtually.
- Schools must create an audio or audiovisual recording, or transcript, of any live hearing.
The decision-maker, who is not the Title IX coordinator or investigator, will issue a written determination regarding responsibility with findings of fact, conclusions about whether the alleged conduct occurred, rational for the result as to each allegation, an disciplinary sanctions imposed on the respondent, and whether remedies will be provided to the complainant. The written determination must be sent simultaneously to the parties along with information about how to appeal.
The Final Rule allows a school, in its discretion, to choose to offer and facilitate informal resolution options, such as mediation or restorative justice, so long as both parties give voluntary, informed, written consent to attempt informal resolution. Any person who facilitates an informal resolution must be well trained. The Final Rule adds:
- A school may not require as a condition of enrollment or continuing enrollment, or employment or continuing employment, or enjoyment of any other right, waiver of the right to a formal investigation and adjudication of formal complaints of sexual harassment. Similarly, a school may not require the parties to participate in an informal resolution process and may not offer an informal resolution process unless a formal complaint is filed.
- At any time prior to agreeing to a resolution, any party has the right to withdraw from the informal resolution process and resume the grievance process with respect to the formal complaint. – Schools must not offer or facilitate an informal resolution process to resolve allegations that an employee sexually harassed a student.
The Final Rule expressly prohibits retaliation.
- Charging an individual with code of conduct violations that do not involve sexual harassment, but arise out of the same facts or circumstances as a report or formal complaint of sexual harassment, for the purpose of interfering with any right or privilege secured by Title IX constitutes retaliation.
- The school must keep confidential the identity of complainants, respondents, and witnesses, except as may be permitted by FERPA, as required by law, or as necessary to carry out a Title IX proceeding.
- Complaints alleging retaliation may be filed according to a school’s prompt and equitable grievance procedures.
- The exercise of rights protected under the First Amendment does not constitute retaliation.
- Charging an individual with a code of conduct violation for making a materially false statement in bad faith in the course of a Title IX grievance proceeding does not constitute retaliation; however, a determination regarding responsibility, alone, is not sufficient to conclude that any party made a bad faith materially false statement.
