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Process for Investigating and Resolving Complaints

How the College Will Address Unlawful Discrimination and Harassment, including Sexual Misconduct and Retaliation

The College’s commitment to non-discrimination includes an assurance that the College will not tolerate unlawful discrimination or harassment on the basis of person’s sex, marital or parental status, sexual orientation, gender identity or any other unlawful basis or retaliation in its community.

The College follows through on that commitment, in part, through the implementation of its Sexual Misconduct Policy and Process for Investigating and Resolving Complaints.  These policies and procedures apply to all College community members, and all members of the College community are responsible for being familiar with and abiding by them at all times.

This process describes how the College will investigate a report that an individual or a group of individuals has engaged in conduct that could violate the College of the Holy Cross Sexual Misconduct Policy, and determine what, if any, safety measures and/or disciplinary sanctions are appropriate.

1.   Initial Steps: Interim Measures

After receiving a report of conduct that could fall under the Sexual Misconduct Policy, the Title IX Coordinator or his or her designee (5) will take a number of initial steps.  These initial steps are not an investigation.  Rather, these initial steps will enable the College to assess the need to take any immediate action to address the safety and health needs of the Complaining Party (6) and the College community, and to determine the next steps for investigating the reported conduct and the need for any interim measures. 

These initial steps may include, but are not limited to, the following:

(A)  The Title IX Coordinator will contact the Complaining Party and encourage him/her/zie/them to meet to discuss the nature and circumstances of the reported conduct, review relevant documentation that is available and address the need for any interim measures. Examples of interim measures with respect to sexual misconduct may include no-contact orders, requests for academic adjustments, changes to living, dining, transportation, working and/or immigration situations, statutorily provided leave to employees pursuant to M.G.L. c. 49, §52D, and other actions to address the situations and the Complaining Party’s immediate physical safety and emotional needs and concerns on an interim basis.

(B)  The Title IX Coordinator will assess the reported conduct to determine whether the circumstances pose a threat to the health or safety of the College community that warrants issuance of a timely warning, a stay-away order for any persons, or any other interim protections, including, but not limited to, suspension of a student, placing an employee on leave, or restricting any individual from other privileges prior to completing an investigation.  During the interim action, the College reserves the right to prohibit the individual from entering upon the College’s property or participating in any College activities absent written authorization from an appropriate College official.  The failure of an individual to comply with an interim restriction is a violation of this Policy and may lead to additional disciplinary action.  The decision to impose interim restrictions will be communicated by the Title IX Coordinator in writing and will be effective immediately.

(C)  The Title IX Coordinator will notify the Complaining Party about:  (a) the availability of the  Sexual Misconduct Policy; and (b) the right to report and the right to decline to report the matter to Department of Public Safety and/or to local law enforcement if the conduct is potentially criminal in nature (and that such a report will not change the College’s obligation to potentially investigate the matter but it may briefly delay the timing of the investigation if a law enforcement agency requests that the College delay its process for a reasonable amount of time to allow it to gather evidence of criminal conduct).

(D)  The Title IX Coordinator will notify the Complaining Party of the available resources for seeking medical treatment, counseling, spiritual guidance,  other interim measures and other resources.  See Sections IV and V.  See College and Community Resources.  

(E)  If the Title IX Coordinator determines the reported conduct could, in any way, trigger the Sexual Misconduct Policy, he or she will contact the Complaining Party to discuss that determination.  In connection with allegations of sexual misconduct, if, at this time, the Complaining Party requests that the process not move forward, the College will weigh that request against the College’s obligation to address any risk of harm to the Complaining Party or other individuals in the community and the nature of the incident or conduct at issue.  Except in limited circumstances in which a Complaining Party’s request not to proceed to investigation is granted, the Title Coordinator will proceed to Section 3.  For further information, please see Additional Considerations – Requests for Confidentiality or No Investigation.

(F)  If the Title IX Coordinator determines that the reported conduct would not, in any way, trigger the Sexual Misconduct Policy, he or she will advise the Complaining Party of such in writing and refer the reported conduct to the appropriate administrator for handling consistent with any other appropriate College policy.  (If new information is subsequently provided, the decision whether or not to investigate the reported conduct may be reevaluated.)

2.   Optional Informal Resolution Procedure.

The following Informal Resolution Procedure may not be used in an effort to resolve allegations of Sexual Violence, Other Inappropriate Sexual Contact, Inducing Incapacitation, Stalking or Relationship Violence, as each of those terms is defined in the Sexual Misconduct Policy.

At any time prior to convening a Determination Panel, a Party may request an informal resolution of a complaint rather than an investigation by contacting the Title IX Coordinator in writing. All Parties and the Title IX Coordinator must agree to informal resolution for this option to be used. The Title IX Coordinator will assess the request for informal resolution against the severity of the alleged violation and the potential risks to campus community members.  If the Title IX Coordinator determines that informal resolution is appropriate, the Title IX Coordinator will notify the Parties. 

The Title IX Coordinator will designate a College representative to facilitate a dialogue with the Parties in an attempt to reach a resolution.  The allegation will be deemed resolved when the Parties expressly agree to an outcome that is acceptable to them which is approved by the Title IX Coordinator in consultation with other appropriate College administrators.  A Party may withdraw from the informal resolution process at any time. The informal resolution process will be conducted in accordance with procedures specified by the Title IX Coordinator, as determined in his/her sole discretion.

The Title IX Coordinator may initiate an investigation at any time that deems it appropriate in his or her sole discretion.

3.   The Investigation Phase

(A)  Notice of an Investigation.  If it is determined that the reported conduct could trigger the Sexual Misconduct Policy and an investigation is required, the Title IX Coordinator will prepare a written notice to the Complaining Party and Responding Party that will include a brief description of the allegations, the portions of this Policy that are alleged to have been violated, and any interim measures in place about which either Party must be made aware.  This written notice does not constitute a finding or a determination of responsibility. 

(B)  Information about Advisors in Connection with Allegations of Sexual Violence, Other Inappropriate Sexual Contact, Relationship Violence and Stalking.  In connection with an allegation of sexual misconduct involving sexual violence, other inappropriate sexual contact, relationship violence or stalking (7), each Party, including any Reporting Party, may have a single advisor of such Party’s choice present during any College disciplinary proceeding, including any related meeting, interview, or hearing, held pursuant to the Sexual Misconduct Policy.  Once an advisor has been selected by a Party, the Party must provide the name and contact information of the advisor to the Title IX Coordinator. Changes to the advisor selected by a Party may be made for good cause with the prior approval of the Title IX Coordinator, as determined in his/her sole discretion. Advisors may not participate actively while present at any disciplinary proceeding and may not speak or otherwise communicate on the part of the Party that the advisor is advising.  However, the advisor may ask to suspend any meetings, interviews, or hearings briefly to provide private consultation related to the disciplinary proceeding in progress.  An advisor is subject to the same confidentiality expectations applicable to others in attendance. Accommodations, including scheduling of interviews or reviews, generally will not be made for any advisors if they unduly delay the process. The advisor is not permitted to attend a meeting or proceeding without the Party without the prior approval of the Title IX Coordinator, as determined in his/her sole discretion. The College reserves the right to take appropriate action regarding any advisor who disrupts the process, or who does not abide by the restrictions on their participation as determined in the sole discretion of the Title IX Coordinator.  A union-represented employee who is a Responding Party may choose as an advisor a person who is not a union representative, if the Responding Party does not desire to have the union representative participate in the proceeding.

(C)  Support Services and Resources.  The Title IX Coordinator will notify the Responding Party about (a) the availability of the Sexual Misconduct Policy, (b) available resources set forth in Sections IV and V, and (c) discuss interim measures. The Parties should review College and Community Resources regarding the available support services and resources at the College and in the community. At the request of either Party or witness, the Title IX Coordinator can discuss further the support services, resources, and options available.  

(D)  Designation of Investigator.  The Title IX Coordinator will designate at least one investigator to conduct a prompt, fair, and impartial investigation of the reported conduct and prepare a report of investigative findings (the “Investigative Report”).  At the College’s discretion, the investigator may be an internal or an external investigator and more than one investigator may be assigned.  All investigators – internal or external – will be selected from a group of qualified and trained individuals employed by the College or engaged by the College for the purpose of conducting investigations under the Sexual Misconduct Policy.  The Title IX Coordinator will provide the Parties with the name of the person(s) assigned to investigate the reported conduct (the “Investigator(s)”).  As soon as possible, but no later than three (3) calendar days after delivery of the identity of the Investigator(s), the Parties should inform the Title IX Coordinator (in writing) of any conflicts of interest with regard to the selected Investigator(s).  The Title IX Coordinator will consider the nature of the conflict and determine if different individuals should be assigned as Investigator(s).  The Title IX Coordinator’s decision regarding any conflicts is final.  The Title IX Coordinator may consult with other College personnel (e.g., the chair of the Committee on Faculty Affairs in the case of teaching faculty) to discuss any conflicts of interest.

(E)  Nature of the Investigation.  The investigation will include separate interviews with the Complaining Party, the Responding Party, and any witnesses whom the Investigator(s) believe will provide necessary and relevant information.  The investigation may include the review of documentation or other items relevant to the reported conduct.  The Investigator(s) will provide the Parties with written notice of meetings at which their presence is required.    

(F)  The Parties’ Identification of Potential Witnesses and Documentation. The Parties have the opportunity (and are expected) to provide the Investigator(s) with the identification of potential witnesses who have specific information about the reported conduct and with whom they would like the Investigator(s) to speak.  The Parties also have the opportunity (and are expected) to provide the Investigator(s) any documentation or other items or questions they would like to be considered or posed to any witness or the other Party.  All information and questions described in this section must be presented to the Investigator(s) in writing and include a brief description as to how the persons, documents, and/or items are relevant to the reported conduct.  This information must be provided to the Investigator(s) during the Investigation Phase and without delay upon becoming aware of it.  The Investigator(s) will exercise discretion in their determination of what information and questions to consider and which potential witnesses identified by the Parties can provide relevant information to the investigation.

(G)  Investigation Prohibitions. Neither Party will be permitted to question or cross-examine directly the other Party directly during the investigation or disciplinary proceedings; questions for the other Party may be submitted to the Investigator(s) as described above. Moreover, the Investigator(s) generally will not gather or consider information related to either Party’s sexual history outside of the conduct in question except as relevant to the alleged policy violation, as determined in the sole discretion of the Investigator(s).

(H)  Responding Party Voluntary Agreement to Policy Violation.  At any point prior to the convening of a Determination Panel, a Responding Party may agree in writing to the alleged violation(s) of the Sexual Misconduct Policy and, in the cases of sexual harassment not involving sexual violence, other inappropriate sexual contact, sexual exploitation, stalking or relationship violence, a sanction proposed by the Vice President of Student Affairs (students), Provost/Dean of the College (faculty) or the Director of Human Resources (staff or third party), as applicable.  In cases of sexual violence, other inappropriate sexual contact, sexual exploitation, stalking or relationship violence, the individuals responsible for imposing sanctions will determine and impose sanction(s) pursuant to Section VII.B.5(a) below.

4.   Investigative Report and Determination of Responsibility by Determination Panel

(A)  Content of the Investigative Report.  At the conclusion of the Investigation Phase, the Investigator(s) will prepare an Investigative Report, which should include a summary of the factual information presented during the Investigation Phase, a separate section where the Investigator(s) point out relevant consistencies or inconsistencies (if any) between different sources of information, and a separate section describing the Investigator(s)’ perception of the demeanor of the individuals interviewed.  The Investigative Report will not include a determination by the Investigator(s) as to whether a Party has violated the Sexual Misconduct Policy or what sanctions may be appropriate.  These determinations will be made by the Determination Panel, as described below.

(B)  Review by the Parties. The Parties will have an opportunity to review the Investigative Report and may submit written comments about the content of the Investigative Report to the Investigator(s) within five (5) calendar days of the date they are notified that the Investigative Report is available for review.  This review will take place at a secure location and in a secure manner determined by the College.  The time to submit written comments can be extended for a brief period if the Title IX Coordinator concludes, in his/her sole discretion, that the additional time is warranted.  Likewise, the secure location and manner of reviewing the Investigative Report can be modified if the Title IX Coordinator deems it necessary and appropriate.  Each Party may have such Party’s advisor review the Investigative Report with them in connection with an allegation of sexual misconduct involving sexual violence, other inappropriate sexual contact, relationship violence or stalking.  Photographs or any other copies of the Investigative Report are not allowed by either Party or advisor.  The comments submitted by the Parties may not exceed ten (10) double spaced pages (12 point font and one inch margins) unless a higher page limit is otherwise determined to be necessary and appropriate in the sole discretion of the Title IX Coordinator.  After reviewing the submissions, if any, from the Parties, the Investigator(s) may determine that either additional investigation is required or no further investigation is needed.  If further investigation is conducted, the Investigator(s) will include any additional relevant information in the Investigative Report.  The Investigative Report will then be submitted to the Title IX Coordinator.  Any submissions made by either Party pursuant to this section, as well as any other documentation deemed relevant by the Investigator(s), will be attached to the Investigative Report.

(C)  Convening the Determination Panel.  The Title IX Coordinator will convene a three-member Determination Panel (the “Determination Panel”) from a previously established pool of College community members trained to decide cases pursuant to this Policy and sexual misconduct cases.  In no instance shall the Panel include students. In the event that a Responding Party is a teaching faculty member (8), at least one of the members of the Determination Panel shall be a tenured faculty member. The Title IX Coordinator will provide the Parties with the names of the persons assigned as the  Determination Panel members for their case.  As soon as possible, but no later than three (3) calendar days after delivery of the identity of the assigned Determination Panel members, the Parties should inform the Title IX Coordinator (in writing) of any conflicts of interest in regard to the selected members assigned to the Determination Panel.  If a conflict of interest is raised regarding any of the individuals assigned to the Determination Panel, the Title IX Coordinator will consider the nature of the conflict and determine if different individuals should be assigned to the Determination Panel.  The Title IX Coordinator may consult with other College personnel (and shall consult with the chair of the Committee on Faculty Affairs in the case of any conflict of interest with respect to a proposed Determination Panel member who is a teaching faculty member) to assess any conflicts of interest. The Title IX Coordinator’s decision regarding any conflicts is final.  The Title IX Coordinator will then submit the Investigative Report to the Determination Panel members and set a subsequent date for the Determination Panel to meet to determine responsibility.

(D)  Review and Determination by the Determination Panel. The Determination Panel will make a determination as to whether or not the Responding Party is responsible for violating the Sexual Misconduct Policy by having engaged in some or all of the reported conduct.  The Determination Panel has the authority to accept the Investigative Report without seeking additional investigation, or to ask the Investigator(s) to conduct additional investigation on specific points.  The Determination Panel, in its discretion, may invite the Investigator(s) to attend a Determination Panel meeting if the Panel believes it would be helpful to have an opportunity to ask the Investigator(s) any questions arising from the Investigative Report.  The Determination Panel also has the authority, in their discretion, to speak directly with any persons identified in the Investigative Report.  The Determination Panel, as the ultimate decision-maker in the matter, is provided broad discretion. In appropriate circumstances, the Title IX Coordinator may give special instructions to the Determination Panel.

(E)  Notification of Decision. Upon reaching a determination of responsibility, the Determination Panel will provide a written notification of its decision to the Title IX Coordinator. If sanctions are necessary, they will be assigned in accord with Section 5 below. The notification will consist of a brief statement of the allegations and the determinations made by the Determination Panel and with respect to a Responding Party who is a student, any sanctions that are imposed pursuant to Section 4.  While the notification may, at the discretion of the Determination Panel, include a brief description of the determination process, it will not include any recommendations for sanctions with respect to Responding Parties who are employees or faculty members.

(F)  Standard of Proof.  All findings and determinations of responsibility for a violation of the Sexual Misconduct Policy under the Sexual Misconduct Policy will be made using a preponderance of the evidence standard. This standard requires the determination of whether it is more likely than not that a fact exists or a violation of the Sexual Misconduct Policy occurred. 

Please note that the preponderance of the evidence standard is not the standard used for criminal culpability in most jurisdictions and a determination of responsibility under the Sexual Misconduct Policy does not equate with a finding of a violation of criminal laws. Conversely, lack of a prosecution or conviction in a criminal proceeding does not necessarily imply that the College’s Sexual Misconduct Policy was not violated. The two procedures are significantly different and utilize different standards for determining violations.

(G) Student Groups, Organizations and Teams.  A student group, organization or team may be held collectively responsible for a violation of this Policy when one or more members of the group or other individuals associated with the group, organization or team are found responsible for a violation of this Policy and the Determination Panel separately determines that:

  • members of the group, organization or team acted in concert with respect to misconduct;
  • the individual found responsible for committing the misconduct was either acting on behalf of the group, organization or team or engaged in an activity sponsored, financed or endorsed by the group, organization or team or its leaders;
  • the misconduct grows out of, occurs during, or is related to any activity or event sponsored, financed or endorsed by the group, organization or team;
  • any leader, officer, or team captain of group, organization or team had knowledge of the misconduct or incident before or while it occurred and failed to take corrective action; and/or
  • a pattern of individual misconduct by members of the group, organization or team is found to exist.

The designated student leader or leaders (e.g., president, officer(s), or team captain(s)) shall represent the student group, organization or team throughout the process. There shall be no right of individual appeal of any member of the student group, organization or team to a group sanction.

5.   Determining Sanctions

(A)  Sanctioning Decision. The College employees responsible for determining sanctions are as follows:

(i)   Students.  Sanctions regarding students and student groups, organizations and teams will be determined by the Determination Panel. The Determination Panel, in its discretion, may ask a Student Affairs representative to appear before and address the Determination Panel regarding sanctions.  The Determination Panel’s determination will be shared with the Parties as set forth in Section 6.  Sanctions may be determined during the same meeting in which responsibility is determined, as set forth in Sections 4(c) and (d).
(ii) Teaching Faculty.  The Title IX Coordinator will provide the Provost/Dean of the College (“Dean of the College”) with a copy of the Determination Panel’s written notification of its determination of responsibility as well as the Investigative Report.  The Dean of the College will determine an appropriate sanction(s). If the Dean of the College determines that a sanction of dismissal for is recommended, the sanction will be reviewed under Section VII.B.7(b). The Dean of the College will then provide written notification to the Title IX Coordinator of the action taken with regard to the faculty member.

(iii) Exempt Employees, Other Than Teaching Faculty. Sanctions regarding exempt employees, as defined by the College, will be determined by the Employee’s Vice President (or his/her designee) or in the case of an employee in the Athletics Department or who reports to the President, the President’s designee.  The Director of Human Resources (or his/her designee) will be consulted on any sanction.   The Title IX Coordinator will provide such official(s) with a copy of the Determination Panel’s written notification of its determination of responsibility as well as the Investigative Report.

(iv) Non-Exempt Employees.  Sanctions regarding non-exempt employees, as defined by the College, vendors, independent contractors and other third parties will be determined by the Director of Human Resources (or his/her designee). The Title IX Coordinator will provide such official with a copy of the Determination Panel’s written notification of its determination of responsibility as well as the Investigative Report.

(B) Types of Sanctions.

(i)   Employees, including Faculty Members.  Sanctions imposed with respect to Responding Parties who are employees or faculty members may include, but are not limited to, one or more of the following:  dismissal from employment, non-renewal of an employment contract, suspension, probation, reprimand, warning, training and/or counseling, no-contact order, among others.
(ii) Students.  Sanctions may include, but are not limited to, one or more of the following: expulsion, suspension, probation, reprimand, warning, restitution, education/counseling, no-contact order, restriction from extracurricular programs or activities, loss of leadership opportunity or positions in activities, housing restriction/relocation, and/or loss or restriction from College employment.
(iii) Student Groups, Organizations and Teams.  Sanctions for groups, organizations and teams may include suspension, revocation or denial of registration or recognition, probation, reprimand, warning, restitution, education, restriction, among other possible sanctions
(iv) Considerations. In determining an appropriate sanction, the College may take into account the following:

  • The nature and circumstances of the misconduct.
  • The impact of the misconduct on the Complaining Party.
  • The impact of the misconduct on the College community.
  • The disciplinary history of the Party deemed responsible.
  • Any other mitigating or aggravating circumstances in order to reach a fair and appropriate resolution in each case.
  • Range of sanctions typically imposed for similar violations.

    Possible sanctions for those found responsible for sexual violence, other inappropriate sexual contact, domestic/dating violence, stalking and hate crimes:
    10 hours community service
    15 hours community services
    20 hours community service
    25 hours community service
    Reflection paper
    1 hour educational training
    2 hours educational training
    3 hours educational training
    4 hours educational training
    5 hours educational training
    Probation 1 semester
    Probation 2 semesters
    Probation 3 semesters
    Probation 4 semesters
    Probation 5 semesters
    Probation 6 semesters
    Probation 7 semesters
    Probation 8 semesters
    Suspension 1 semester
    Suspension 2 semesters
    Suspension 3 semesters
    Suspension 4 semesters
    Suspension 5 semesters
    Suspension 6 semesters
    Suspension 7 semesters
    Suspension 8 semesters
    Suspension 9 semesters
    Suspension 10 semesters
    Expulsion/termination of employment
    Except for expulsion/termination of employment, all sanctions may be combined with one or more other sanctions listed in Section 5(b)(i) or (ii) above.

(v)  Additional Remedies.  The sanctioning authority described in Section 5(a) may also identify additional remedies to address the effects of the conduct on the impacted Party.  Remedies may include extending or making permanent any interim or safety measures. If a Complaining Party or Responding Party declined or did not take advantage of a specific service or resource previously offered, the College may re-offer the service as applicable or necessary. The Title IX Coordinator also may consider broader remedial action for the campus community, such as increased supervision or monitoring, targeted or increased education and prevention efforts, and review of policies and procedures.  In addition, in the Title IX Coordinator may refer any matter raised, but not addressed hereunder, that may potentially violate any other College policy, rule, or procedure to the appropriate College officials to address such matters, irrespective of the finding under this Policy.

6.   Notification of Investigation Outcome

Upon completion of Sections 4 or 5, as necessary, the Title IX Coordinator will inform the Parties simultaneously and in writing of (i) the outcome of the disciplinary proceeding; and (ii) the procedures for either Party to appeal the result of the disciplinary proceeding.  The Title IX Coordinator will also inform other College officials with a legitimate educational or employment interest about the outcome of the finding.  Notice to these other individuals will be accompanied with a request that the information should remain confidential except in situations in which disclosure is necessary to protect the safety of the community.

If the alleged victim is deceased as a result of a crime involving sexual assault, other nonconsensual sexual contact, stalking, domestic/dating violence or hate crime, the next of kin of such alleged victim will be provided the notice of outcome upon written request to the Title IX Coordinator.

7.   Appeals

(A)  All Appeals (Other Than Appeals Involving a Responding Party Who Is a Teaching Faculty Member with a Recommended Sanction of Dismissal).
The following appeal process applies to all appeals other than any appeal involving a determination in which a Responding Party is a Teaching Faculty Member with a recommended sanction of dismissal which are addressed under Section 7(b) below. 
Within seven (7) calendar days of the delivery of the notice of the decision of responsibility and/or sanction, either Party may appeal the decision by submitting to the Title IX Coordinator a letter stating why the Party requesting the appeal believes the determination of responsibility and/or the sanctions were inappropriate.  A Party appealing under this section may only appeal on the following grounds:

  • Procedural error by the Investigator(s) or Determination Panel that materially prejudiced the Party requesting review; and/or
  • Newly discovered material information that was not known to the Party requesting review and not available to the Investigator(s), the Determination Panel, or the individual determining the sanction, and which likely would have changed the finding of responsibility or the sanction imposed had it been available.

The Party submitting the appeal must set forth in detail the grounds for review and must attach all materials that he or she wishes to have considered in the appeal process.  The Title IX Coordinator will provide a copy of the appeal submitted by one Party to the other Party, and the other Party may submit materials that he or she wishes to have considered in the appeal process within seven (7) calendar days of receipt of the appeal. The appeal and appeal materials submitted by a Party may not exceed ten (10) double spaced pages (12 point font with one inch margins) unless a higher page limit is otherwise determined to be necessary and appropriate in the sole discretion of the Title IX Coordinator

The Appellate Officer(s): In the instance of an appeal under this Section 7(a), the Title IX Coordinator will appoint one or more Appellate Officer or Officers (the “Appellate Officer(s)”) from a previously established pool of College employees who have received training on sexual misconduct cases and appeals; in any case involving a teaching faculty member, there will be a three Appellate Officer panel, including at least one tenured faculty member (selected by the Title IX Coordinator in consultation with the chair of the Committee on Faculty Affairs).  The Vice President of Student Affairs (or his/her trained designee) generally will be the Appellate Officer for matters in which a Responding Party is a student.  The Title IX Coordinator will provide the Parties with the names of the assigned Appellate Officer(s) for their case.  As soon as possible, but no later than three (3) calendar days after delivery of the identity of the assigned Appellate Officer(s), the Parties should inform the Title IX Coordinator in writing of any conflicts of interest in regard to the assigned Appellate Officer(s).  The Title IX Coordinator will consider the nature of the conflict and determine if different individual(s) should be assigned as the Appellate Officer(s).  The Title IX Coordinator may consult with other College personnel to discuss any conflicts of interest (and shall consult with the chair of the Committee on Faculty Affairs in the case of any conflict of interest with respect to a teaching faculty member assigned as an Appellate Officer). The Title IX Coordinator’s decision regarding any conflicts is final. 

The Appellate Officer(s) will decide the merits of the appeal and, in so doing, may consult with the Investigator(s), the Determination Panel, the individual(s) issuing the sanction, or any other individual that the Appellate Officer(s) deems appropriate. In appropriate circumstances, the Title IX Coordinator may give special instructions to the Appellate Officer(s).
Sanctions of all types (including, but not limited to, any form of suspension, dismissal, or separation from the College) can be imposed, in full or in part, while an appeal is pending at the sole discretion of the College. 

The Appellate Officer(s) may deny the appeal and affirm all or part of the determination of responsibility or the determination of sanction, or the Appellate Officer(s) may refer the matter back to the Investigator(s), the Determination Panel, and/or the individual determining the sanction for further consideration.  If the matter is referred back to the Investigator(s), the Determination Panel, and/or the individual determining the sanction for further consideration, the Appellate Officer(s) will provide specific instructions with the referral.  In the event of a referral for further consideration, the Title IX Coordinator will be consulted and further proceedings may be commenced, as appropriate under the circumstances and consistent with this Policy.

The decision of the Appellate Officer(s) regarding the appeal will be in writing and is final. The Title IX Coordinator will inform the Parties simultaneously and in writing of the outcome of the appeal.

(B)  Appeals with respect to a Responding Party who is a Teaching Faculty Member Involving a Recommended Sanction of Dismissal.

The following appeal process applies to appeals involving a determination in which a Responding Party is a Teaching Faculty Member with a recommended sanction of dismissal of the Teaching Faculty Member and is the sole method of appeal.  The appeal will be reviewed using the following procedure:

(i) Within seven (7) calendar days of the delivery of the notification of the investigation outcome and/or sanction, either Party may appeal the decision by submitting to the Title IX Coordinator a letter stating why the Party requesting the appeal believes the determination of responsibility and/or the sanctions were inappropriate.  A Party appealing under this section may only appeal on the following grounds:

a. Procedural error by the Investigator(s) or Determination Panel that materially prejudiced the Party requesting review; and/or

b. Newly discovered material information that was not known to the Party requesting review and not available to the Investigator(s), the Determination Panel, or the individual determining the sanction, and which likely would have changed the finding of responsibility or the sanction imposed had it been available; and/or

c. That the sanction of dismissal was inappropriate based on a consideration of the nature and circumstances of the misconduct, including the severity, frequency and duration, the impact of the misconduct on the Complaining Party and/or the College community, the disciplinary history of the Responding Party found responsible, and any other mitigating or aggravating circumstances and the need to take effective corrective action to prevent the reoccurrence of the violation(s) and remedy its effects.

The Party submitting the appeal must set forth in detail the grounds for review and must attach all materials that he or she wishes to have considered in the appeal process.  The Title IX Coordinator will provide a copy of the appeal submitted by one Party to the other Party, and the other Party may submit materials that he or she wishes to have considered in the appeal process within seven (7) calendar days of receipt of the appeal. The appeal and appeal materials submitted by a Party may not exceed ten (10) double spaced pages (12 point font with one inch margins) unless a higher page limit is otherwise determined to be necessary and appropriate in the sole discretion of the Title IX Coordinator.

In the instance a Party appeals, the Chair of the Committee on Faculty Affairs in consultation with the Title IX Coordinator will convene a three member Appeal Panel (the “Appeal Panel”) consisting of tenured members of the Committee on Faculty Affairs (or other tenured faculty members from a previously established pool in the event there are not enough members of the Committee on Faculty Affairs to so serve) who have received training on sexual misconduct cases and appeals.  The Title IX Coordinator will provide the Parties with the names of the persons assigned to the Appeal Panel for their case.  As soon as possible, but no later than three (3) calendar days after delivery of the identity of the assigned Appeal Panel members, the Parties should inform the Title IX Coordinator (in writing) of any conflicts of interest in regard to the individuals assigned to the Appeal Panel.  The Title IX Coordinator will consider the nature of the conflict and determine if different individuals should be assigned to the Appeal Panel.  The Title IX Coordinator shall consult with the chair of the Committee on Faculty Affairs to assess any conflicts of interest. The Title IX Coordinator’s decision regarding any conflicts is final.  

The Appeal Panel will decide the merits of the appeal and, in so doing, may consult with the Investigator(s), the Determination Panel, the Dean of the College issuing the sanction, or any other individual that the Appeal Panel deems appropriate.  

Sanctions of all types (including, but not limited to, any form of suspension or separation from the College but excluding dismissal of a faculty member) can be imposed, in full or in part, while an appeal is pending at the sole discretion of the College.

The Appeal Panel may deny the appeal and affirm all or part of the determination of responsibility or the determination of sanction, or may refer the matter back to the Investigator(s), the Determination Panel, and/or the Dean of the College (regarding determination of the sanction) for further consideration.  If the matter is referred back to the Investigator(s), the Determination Panel, and/or the Dean of the College (regarding determination of the sanction) for further consideration, the Appeal Panel will provide specific instructions with the referral. In the event of a referral for further consideration, the Title IX Coordinator will be consulted and further proceedings may be commenced, as appropriate under the circumstances and consistent with this Policy.

Any Appeal Panel decision regarding the appeal under Section VII.B.7(b)(i)(a) (procedural error) or (b) (newly discovered information) is final.  Any Appeal Panel decision regarding an appeal under Section VII.B.7(b)(i)(c) (recommended dismissal) and/or any Dean of the College’s recommended sanction of dismissal under Section VII.B.4 will be referred to the President for review under immediately following section.

(ii) President and Executive Committee Review of Recommended Sanction of Dismissal.  

a. If the Dean of the College recommended a sanction of dismissal and no appeal was requested, the President will refer the sanction recommendation to the Executive Committee of the Board for review and consideration.

b. If the Dean of the College recommended a sanction of dismissal and the Appeal Panel recommended a sanction less than dismissal, the President will determine whether to accept the Appeal Panel sanction recommendation (which shall then become the final sanction); impose a different sanction that is less than dismissal (which shall then become the final sanction) or recommend a sanction of dismissal for review and consideration by the Executive Committee of the Board.

c. If the Dean of the College and the Appeal Panel recommended dismissal, the President will refer the sanction recommendation(s) to the Executive Committee of the Board for review and consideration.  

d. If the President refers a recommended sanction of dismissal to the Executive Committee of the Board, the referral will be communicated in writing by the President to the Complaining Party and Responding Party.  The President will provide the Executive Committee with the Investigative Report, any response of the Complaining Party and/or Responding Party to the Investigative Report, the Determination Panel written findings, the recommendation of the Dean of the College of dismissal, and if applicable, the written appeal materials submitted by the Complaining Party and/or the Responding Party to the Appeal Panel, the Appeal Panel’s written decision pursuant to Section VII.B.7(b)(i), and the Dean of the College’s recommended sanction following such appeal. The Executive Committee may grant both the Responding Party and the Complaining Party the right to address the Executive Committee, if the Executive Committee deems it appropriate. The Executive Committee of the Board of Trustees will make the final determination of the sanction.  

e. The Title IX Coordinator will inform the Parties simultaneously and in writing of the outcome of the appeal.

Training of the President and Executive Committee of the Board.  Each of the President and the Executive Committee of the Board of Trustees shall receive training on sexual misconduct cases and appeals prior to reviewing any matter under this Section VII.B.7(b)(ii).

 

8.   Timeframe for Completion of Investigation and Disciplinary Process

The College cannot promise the definitive timeframe of this process, but endeavor to complete its investigation and disciplinary process, if any, within sixty (60) days of the delivery of the written notice of the investigation to the Parties.  This time period does not include the time for any appeal.  The U.S. Department of Education has made clear that the length of investigations may vary with the complexity and unique factors in each case.  Examples of such factors include, without limitation, circumstances in which critical witnesses are unavailable or if law enforcement requests the College temporarily halt its investigation for a brief period of time.  Accordingly, all timeframes set forth in this Policy may be altered by the Title IX Coordinator for good cause.  The College’s overarching goal is that all  complaints be investigated in a prompt, fair, and impartial manner. 

9.   Additional Matters

(A)  Duty of Honesty.  All Parties and witnesses are obligated to be completely honest during the course of the entire process set forth in this Policy.  Any person who knowingly makes a false statement – either explicitly or by omission – in connection with any part of the process may be subject to separate College disciplinary action.  A report made in good faith, however, is not considered false merely because the evidence does not ultimately support the allegation of violation of the policy.

(B)  Duty of Cooperation.  All Parties and witnesses are obligated to cooperate with the Title IX Coordinator and any persons charged with implementing the Sexual Misconduct Policy and these procedures.  Any person who knowingly interferes with the actions taken to implement the reporting, investigation, or resolution of matters under the Sexual Misconduct Policy may be subject to separate and/or additional College disciplinary action.

(C)  Respect for Privacy. The College values the privacy of individuals involved in the reporting, investigation, and/or resolution of matters subject to the Sexual Misconduct Policy.  The U.S. Department of Education has provided guidance indicating that there are situations in which it may be necessary for an institution to override a request for privacy or confidentiality in order to meet its obligations under the law.  In the event circumstances result in the College overriding a request for privacy or confidentiality to meet its obligations, the College will do so with the utmost sensitivity and respect for the circumstances and the individuals involved.  See Additional Considerations – Requests for Confidentiality or No Investigation.

(D) Recording the Proceedings.  The Parties are not permitted to make video, audio, or other electronic, photographic, or digital recordings of any meetings or proceedings held under the Sexual Misconduct Policy or these procedures or the Investigative Report.  The Title IX Coordinator may make exceptions to this prohibition in limited circumstances if he or she concludes, in his or her sole discretion, that a recording is warranted, and upon written request of the Party seeking the recording that explains the need for the recording.

(E)  Follow-up with Reporting Party.  Where the Title IX Coordinator deems appropriate, he or she may contact the Reporting Party to provide an update on the process, the timing and extent of which will be determined by the Title IX Coordinator and depend upon the nature of the allegations and the situation.

(F)  Prohibition against Retaliation.  The College will not tolerate retaliation in any form against any persons for their participation or involvement in the reporting, investigation, and/or resolution of matters reported or subject to the Sexual Misconduct Policy.  The College will take appropriate steps to prevent and/or address retaliatory conduct immediately.  The College includes retaliation in its definition of prohibited conduct under this Policy. See Prohibited Conduct.

(G)  Amnesty for Students Reporting Sexual Violence, Relationship Violence and Stalking.  The College encourages reporting under the Sexual Misconduct Policy and seeks to remove barriers to reporting.  Students may be hesitant to report sexual violence, relationship violence or stalking out of a concern that they, or witnesses, might be charged with a violation of the College’s drug and alcohol policies or Community Standards.  While the College does not condone such behavior, the College places a priority on the need to address sexual violence, relationship violence and stalking. The College generally will not hold a student who in good faith reports or is a witness during an investigation of sexual violence, relationship violence and stalking under the Sexual Misconduct Policy accountable for disciplinary violations of the College’s Community Standards that do not place the health and safety of any other person at risk or create a danger to the College community.  The College retains the right to require students to attend counseling or drug/alcohol related courses even in circumstances in which disciplinary conduct will not be pursued under this part.

(H)  Special Situations.  

The College retains the right to determine, in its sole discretion, if it will address a report of conduct under the Sexual Misconduct Policy administratively and outside of the process described herein when the safety of the College community is at risk, if the material facts are undisputed, if there are extenuating circumstances involving either of the Parties, or if the Title IX Coordinator, in consultation with appropriate administrators, determines it is in the best interest of the College and/or the community to do so.  Without limiting the foregoing:

(i)   In any situation in which the behavior alleged by the Complaining Party is determined, in the sole discretion of the Title IX coordinator, to appear to pose concerns of minor or moderate significance for the community (specifically excluding all allegations of the following Policy violations: sexual violence, quid pro quo harassment, other inappropriate sexual contact, relationship violence, and stalking), the Title IX Coordinator may direct the matter to be investigated and/or resolved outside the process set forth in Section VII.B.  In such case, the Title IX Coordinator may require an adequate, reliable and impartial investigation and resolution of the alleged Policy violations pursuant to the Discriminatory Harassment Policy (employees and third parties) or Community Standards (students) with the following additional provisions (a) the process will use the definitions of the Prohibited Conduct, the preponderance of evidence standard, and the potential sanctions set forth in this Policy; (b) both the Complaining Party and the Responding Party will have an opportunity to present witnesses and evidence as described in the applicable procedure; (c) there will be designated and reasonably prompt time frames for the major stages of the process; (d) there will be written notice to the Complaining Party and the Responding Party of the outcome of the complaint; and (d) the College will take steps to prevent recurrence of violation(s) and remedy discriminatory effects on the Complaining Party and others, if appropriate.

(ii)  When an investigative report in a student matter indicates that there may be possible Student Code of Conduct violations in addition to an alleged violation of the Sexual Misconduct Policy, the Title IX Coordinator will consult with the Director of Student Conduct and Community Standards or designee, to determine appropriate Community Standards violations.  In these situations the investigation and resolution procedure may follow the Sexual Misconduct Policy to determine whether violations of the Code of Conduct and Community Standards took place in addition to the alleged violation of the Sexual Misconduct Policy as determined by the Title IX Coordinator.

(iii) When an investigative report in employee or third party matter indicates that there may be possible violations of other College policies, rules, procedures or agreements, in addition to an alleged violation of the Sexual Misconduct Policy, the Title IX Coordinator will consult with relevant College personnel, to determine appropriate violations. In these situations the investigation and resolution procedure may follow the Sexual Misconduct Policy to determine whether violations took place in addition to the alleged violation of the Sexual Misconduct Policy as determined by the Title IX Coordinator.

(iv) If, following the receipt of an alleged violation of the Sexual Misconduct Policy, the Complaining Party declines to participate in the investigation or resolution process, the Title IX Coordinator may decide to administratively close the investigation at any point in the investigation and resolution process after consideration of the factors set forth in Section VI.A.1 in the Title IX Coordinator’s sole discretion.

  1. Delegation.  Where the Title IX Coordinator is listed as the designated point of contact for any role in the Sexual Misconduct Policy, he or she may designate a Deputy Title IX Coordinator or another qualified member of the College community to assume the role at issue, as necessary and appropriate.  Where another College official or employee is listed as the designated point of contact for any role in the Sexual Misconduct Policy, he or she may designate another College official or employee to assume the role at issue, as necessary and appropriate.

 

 

(5)

Where the Title IX Coordinator is listed as the designated point of contact for any role in the Sexual Misconduct Policy, he or she may designate a Deputy Title IX Coordinator or another qualified member of the College community to assume the role at issue, as necessary and appropriate. Where another College official or employee is listed as the designated point of contact for any role in the Sexual Misconduct Policy, he or she may designate another College official or employee to assume the role at issue, as necessary and appropriate.

 

 

(6)

The individual who experienced conduct that may have violated the Sexual Misconduct Policy will be referred to as the “Complaining Party.”  The individual who is alleged to have violated the Sexual Misconduct Policy will be referred to as the “Responding Party.”  When the Complaining Party and the Responding Party are discussed collectively, they will be referred to as the “Parties” and may be referred to as a “Party.”  There may be instances where another person, who has not experienced but is aware of the occurrence of prohibited conduct, may bring a complaint under the Sexual Misconduct Policy, and that person is referred to as the “Reporting Party.”  In those limited circumstances, the College will determine which of the protections provided to the Complaining Party under the Sexual Misconduct Policy are also applicable to the Reporting Party. 

 

 

 

(7)

Advisors are not permitted in connection with investigations of any other allegations of violations of the Sexual Misconduct Policy. Nothing in the College’s Sexual Misconduct Policy is intended to undermine or alter any rights afforded to a union-represented employee, as provided by applicable law or any collective bargaining agreement, including, but not limited to, a union-represented employee’s Weingarten rights.

 

 

(8)

For purposes of this Policy, the “teaching faculty” is defined by reference to Chapter I, Section A of the Faculty Statutes.