Many questions have been raised this year about our Sexual Misconduct Policy and Title IX resolution process. These are good questions, which will be answered in a variety of ways. The answers below are meant to give summary background and information about the College’s current Policy and procedures. The full Policy is available at this link.
In addition to these written responses, small group discussion sessions will be held in the coming months during which subject matter experts from various offices on campus will answer questions and walk through examples of how these policies and procedures play out and the considerations that are made in different scenarios.
This page will continue to be updated to address additional questions about our policies and processes as well as the applicable legal guidelines and best practices. Answers to questions about specific cases will not be included.
For several of the questions possible changes in policy and practice will be considered going forward. Our community will continue to engage in conversation and dialogue around them, and they may also be addressed through the work of the Planning Groups or in the Title IX Policy Review Process. In many of the answers below, some of the further questions these groups might consider are noted as “Next Steps”.
Questions and Answers
- How are interim measures determined?
- Why do investigations take so long?
- How is conflict of interest determined and who does that?
- Who can know information about cases and what can they know?
- How are sanctions determined and who determines them?
- Who should know about the sanctions and who is responsible for monitoring them?
- How does the College define retaliation?
- Are all reports of sexual misconduct fully investigated?
- If a person is reported multiple times and the person is found not responsible each time, does the College take that into consideration?
- If someone goes to Public Safety can they bring an attorney with them?
- Is there a Holy Cross policy regarding when a community member can bring an attorney to a meeting?
- What is a timely warning and what are the criteria that trigger one being sent? Who decides and how do they determine what information to include?
Interim measures are determined by the Title IX Coordinator prior to an investigation, after an individualized review of the information that is available at the time of the complaint. They are assessed throughout the investigation if circumstances change. The Title IX Coordinator may consult with relevant College personnel to discuss potential interim measures.
In the Sexual Misconduct Policy (“Policy”), the Title IX Coordinator or Deputy Title IX Coordinator assigned to a matter:
- Assesses the need for interim measures to address the complaining party’s immediate physical safety and emotional needs and concerns on an interim basis
- Assesses the reported conduct to determine whether circumstances pose a threat to health or safety of the College community such that they warrant interim protections
Examples of interim measures with respect to sexual misconduct may include no-contact orders, requests for academic adjustments, or changes to living, dining, transportation or working situations.
In assessing whether allegations of misconduct warrant administrative leave or an interim suspension for an employee, the Title IX Coordinator will consider the potential threat to health or safety of the complaining party and of the campus community, based on concerns expressed by the parties and an initial individualized assessment of the available information.
The determination of interim measures will be considered as part of the Policy Review Process. Do we as a community want to adjust either our process or our threshold for determining interim measures? For example, should we consider a wider range of harm in determining appropriate interim measures? Do we want to mandate who would be consulted in determining interim measures? Title IX guidance and the impact of any regulatory changes in this area must be considered in addition to considering our own community standards.
Why do investigations take so long?
Timelines for some investigations have been longer than desired. Factors contributing to longer investigations include:
- Number of incidents and complexity of claims
- Number of parties and witnesses and number of interviews of each such person
- Scheduling of interviews
- Waiting for witnesses/parties to respond to requests to schedule interviews
- Aligning investigator and party and/or witness availability
- Length of interviews
- Granting time extensions to parties for
- Reviewing reports
- Filing appeals
- Availability of evidence
- Length and amount of documentation submitted by parties. The documentation must be carefully reviewed by the investigator to determine relevance for inclusion with the report.
- Using external investigators who have other commitments beyond Holy Cross. The College has engaged with external investigators almost exclusively since June 2017. Additional external investigators have been added when capacity has been needed.
- Availability of trained individuals to serve on determination panels or appeal panels.
In addition to general scheduling issues that arise in trying to align calendars, the Title IX Office will generally grant extensions when requested by a party. When granted, the extension is always granted to both parties in the matter. The Title IX Office has also been liberal in giving time for parties and witnesses to respond, understanding that these are sensitive issues and that individuals sometimes need time to prepare, and to come forward and sit down for interviews.
In the same vein, parties may bring forward whatever documentary evidence they feel is relevant. The College has not restricted the timeframe for doing so during the investigation. In some cases, there have been large amounts of documentation submitted and its review has taken time.
As part of the Policy Review Process, additional mechanisms will be considered that may ensure investigations are completed more quickly. For example, establishing shorter deadlines may help to shorten the timelines for investigations.
How is conflict of interest determined and who does that?
The Title IX Coordinator for each case makes a determination of conflict of interest in assigning members to the Determination and Appeal Panels.
Both Title IX and the Violence Against Women Act (VAWA) require impartiality in the investigation and resolution process, and that the process be conducted by officials with no bias for or against either party. It is the responsibility of the Title IX Coordinator or the Deputy Title IX Coordinator assigned to the matter to do conflict of interests checks to determine if the proposed members of the Determination Panel and Appeal Panel are conflicted in a given matter and thus unable to render impartial decision.
For members of the Determination Panel and Appeal Panel, both the Complaining Party and the Responding Party review the list of potential panelists and are required to notify the Title IX Coordinator of any potential conflicts of interest. Potential panelists are also required to notify the Title IX Coordinator of any potential conflicts of interest after they receive the names of the parties. The Title IX Coordinator reviews all potential conflicts of interest to determine the makeup of the Panel(s). In practice, the Title IX Coordinator has not used any individual on a panel if a conflict of interest concern has been raised by a party.
The Policy designates sanctioning officials for different types of matters by official role. Occasionally, parties have raised conflicts of interest concerns about a sanctioning official at which time the conflict of interest is also assessed by the Title IX Coordinator. Any time that there is a determination of conflict of interest with a Sanctioning Official, a different Sanctioning Official will be appointed by the Title IX Coordinator.
Who can know information about cases and what can they know?
In determining the answer to this question for Title IX cases, the College must consider federal and state law and the provisions of the Policy. The College also considers the interests of the parties, requests for confidentiality, and the effect of disclosure on the parties and future cases.
The U.S. Department of Education 2001 Title IX guidance states: “In all cases, schools should make every effort to prevent disclosure of the names of all parties involved - the complainant, the witnesses, and the accused - except to the extent necessary to carry out an investigation.” The College Policy reflects this guidance in the privacy provision: “The College will act with discretion with regard to the privacy of individuals and the sensitivity of the situation when it receives a report of conduct that could trigger the Sexual Misconduct Policy. Absent special circumstances, Title IX Coordinator and Deputy Title IX Coordinators will share information with College personnel who assist in implementing the College’s policies and procedures.”
In addition to Title IX, there are legal requirements with respect to the privacy rights of parties and others involved, including:
- Student privacy rights under the Family Educational Rights and Privacy Act (FERPA) and
- Privacy rights of all individuals under Massachusetts law.
The College must comply with legal requirements when determining what information may be disclosed about a matter.
The College generally limits disclosure of information directly related to a specific case to those individuals with direct responsibility for the investigation, the Determination Panel, the Appeal Panel, and the sanctioning official in compliance with the Policy and applicable law.
How are sanctions determined and who determines them?
Title IX (34 CFR 106.8(b)) and the Violence Against Women Act (34 CFR § 668.46(k)) require an institution to adopt grievance procedures for sexual misconduct and harassment claims. The College adopted the Sexual Misconduct Policy for such claims. When a violation is found under the Sexual Misconduct Policy, sanctions are determined and issued under that policy.
In each matter where a violation is found to have occurred, sanctions are determined by a Sanctioning Official based on considerations articulated in the Policy.
How Determined: If a violation of the Sexual Misconduct Policy is found, sanctions that are designed to stop the misconduct that was found and prevent its recurrence are imposed. The Policy provides that the Sanctioning Official may take into account the following factors among others:
- Nature and circumstances of the misconduct
- Impact of misconduct on complaining party (each investigation report contains a section on impact on the complaining party)
- Impact of misconduct on the College community
- Disciplinary history of the party deemed responsible
- Any other mitigating/aggravating circumstances in order to reach a fair and appropriate resolution in each case
- Range of sanctions typically imposed for similar violations
The Sanctioning Official makes an individualized assessment based on these factors. The Sanctioning Official may consult with individuals to clarify questions with regards to the Policy or to ensure that possible sanctions are workable in practice.
Some types of sanctions require completion of a task, such as completion of a training program. Other sanctions restrict participation in particular activities. Some sanctions are imposed for a period (e.g., probation and suspension). In some cases the Sanctioning Official determines that the behavior requires permanent separation from the College.
Unless there are conflicts of interest found or other extenuating circumstances, the policy provides that the sanctioning official for Responding Parties found responsible of a violation are as follows:
- Students: Associate Dean of Students
- Teaching Faculty: Provost
- Exempt Staff: Vice President of the division where the employee works or President’s designee if the person reports directly to the President or is employed in a division that reports to the President.
- Non-exempt Staff: Director of Human Resources
In all instances, the responsibility for sanctioning can be delegated to another member of the College community by the designated sanctioning official. In addition, the Title IX Coordinator may appoint an alternative sanctioning official if there is a conflict of interest.
As part of the Policy Review Process, the Review Committee will consider whether to include more specific guidelines for sanctioning based on the severity of the violation. For example, in certain circumstances the College community may want to consider establishing minimum mandatory sanctions. In addition, the Academic Governance Council (AGC) ad hoc subcommittee on faculty sexual misconduct and the Committee on Faculty Affairs (CFA) will be considering possible changes to the Statutes of the Faculty to develop policies for progressive discipline for faculty.
Who should know about the sanctions and who is responsible for monitoring them?
The current Policy provides that results of investigations can be shared with individuals who have “a legitimate education/employment interest in the outcome.”
FERPA states that “school officials with legitimate educational interests” may be given access to student information in order to fulfill their job responsibilities as determined by the relevant College appointed keeper of the records. Under FERPA, sanctions with respect to a student may be shared with a complaining party to the extent the sanctions relate to the complaining party (for example, a no contact order or a restriction from an activity in which the complaining party also participates) or if a statutory exception applies, such as crimes of violence.
With respect to employees, the Title IX Coordinator typically shares the sanctions with the individual's supervisor and works with the supervisor to determine who else may need to be informed, with consideration to the privacy of all parties involved.
The College Policy does not contain specific language about monitoring sanctions. In practice sanctions are monitored based on the form they take. In all cases, we make it clear to the responding party that violation of sanctions will result in further sanctions, up to and including expulsion from the College or termination of employment.
In the Policy Review Process, the principles regarding the determination of whom should be informed about sanctions will be reviewed and additional methods for monitoring sanctions will be considered within the bounds of applicable legal requirements.
How does the College define retaliation?
In the Policy, retaliation is defined as:
Conduct that may reasonably be perceived to:
- adversely affect a person’s educational, living, or work environment because of their good faith participation in the reporting, investigation, and/or resolution of a report of a violation of the Sexual Misconduct Policy; or
- discourage a reasonable person from making a report or participating in an investigation under the Sexual Misconduct Policy, any other College policy, or any other local, state, or federal complaint process, e.g., filing a complaint with an entity like the U.S. Department of Education.
Retaliation includes, but is not limited to, acts or words that constitute intimidation, threats, or coercion intended to pressure any individual to participate, not participate, or provide false or misleading information during any proceeding under the Sexual Misconduct Policy. Retaliation may include abuse or violence, other forms of harassment, and/or making false statements about another person in print or verbally with intent to harm their reputation.
Retaliation can be committed by any individual or group of individuals, not just a responding party or a complaining party. Retaliation may constitute a violation of the Sexual Misconduct Policy even when the underlying report made did not result in a finding of responsibility. Retaliation, even in the absence of provable discrimination or harassment in the original complaint or charge, constitutes a serious violation of this Policy.
The College takes retaliation very seriously. Complaints of retaliation may be brought to the Title IX office by any member of the community who believes that retaliation may have occurred. The Title IX office will review the complaint and, just like for any other complaint brought to the Title IX office under the Policy, will make a decision about whether an investigation should be undertaken.
Are all reports of sexual misconduct fully investigated?
The Title IX Office reviews all information it receives to determine if the alleged behavior could constitute a violation of the Sexual Misconduct Policy, and initiates the investigation process if appropriate.
There are three sets of circumstances in which an allegation may not be investigated:
The first is a case in which the alleged behavior, if true, would not constitute a violation of the Policy or other College policy. For example, if the behavior does not fall under “Prohibited Conduct” as defined by the Policy or conduct prohibited by other College policies it may not be investigated.
The second set of circumstances is receipt of an anonymous report or other report which includes no details that are able to be investigated. For example, an anonymous report such as “I (unidentified) experienced sexual misconduct” without providing any other details or “I heard a rumor but I don’t have any details ” are not reports that can be investigated. These type of reports would be reviewed and noted by the Title IX office and a record maintained. The Title IX Coordinator will consider other remedial measures depending on the information received. This type of information could be investigated if there are additional allegations or additional information becomes available.
Finally, the College has a process to assess cases in which a person does not want to participate or go forward with a formal complaint/investigation or requests confidentiality. The assessment is based on federal guidance. The Title IX Coordinator balances the individual’s desire for confidentiality or no investigation against the College’s need to address the behavior and prevent future misconduct. In making the determination about whether to go forward without the participation of an individual who may have experienced misconduct or over the expressed objection of that individual, the Title IX Coordinator will consider the nature of the alleged incident/conduct at issue and the risk of further harm to the complaining party and others in the community. In some cases, the College will move forward with an investigation without the individual’s participation or over an individual’s request for confidentiality or for no investigation. In other cases, it may be difficult to find witnesses or other available evidence to investigate a matter when the complaining party refuses to participate in the investigation or insists that their name not be disclosed. In these cases, the Title IX Coordinator will consider other remedial measures to address the issue in lieu of investigation.
If a person is reported multiple times and the person is found not responsible each time, does the College take that into consideration?
The sanctioning official, in determining appropriate sanctions, may take into account the findings from a previous case if there was a finding of responsibility and the prior disciplinary record of the responding party. The sanctioning official should not take into account information from a previous case for which there was no finding.
The Title IX office does keep a record of all reports received by the office, whether they were investigated or not, and what happened in the matter. As described above, reports which have not been investigated (see possible reasons described above) could be investigated if additional information is alleged or becomes available.
If someone goes to Public Safety can they bring an attorney with them?
It depends. The Department of Public Safety, as sworn police, is committed to abiding by constitutional requirements for when attorneys must be permitted. When an individual is in police custody and being interviewed as a person of interest or suspect in a criminal matter, they have a right to an attorney. In other police matters, there is no absolute right to an attorney. The public safety officer having the conversation must use their discretion in determining when to allow another person to be present during a conversation or interview. These situations are complex, and while there are guidelines, best practices and Constitutional procedures in this area, they are regularly reinterpreted by the courts.
Is there a Holy Cross policy regarding when a community member can bring an attorney to a meeting?
The College’s policy regarding legal notices and communication provides that all external attorneys need to be referred to the College’s general counsel. Attorney rules of professional responsibility require attorneys to refrain from communicating directly with a person or an organization who is represented by counsel. If someone wants to bring an attorney to a meeting with a faculty or staff member, a college attorney would have to be present to protect the rights of the College, and to protect the faculty or staff member if they are acting within the scope of their job. This is the reason that the College’s policy, like others in higher education, requires attorneys to contact the general counsel. If attorneys were allowed into every such meeting, the College would have to have its attorney present in every such meeting as well.
Attorneys may be advisors in certain Title IX investigations, as allowed by VAWA, but are not permitted to speak on behalf of their client. Attorneys are not currently permitted to participate in in Community Standards and Code of Student Conduct investigations.
What is a timely warning and what are the criteria that trigger one being sent? Who decides and how do they determine what information to include?
According to the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, the College is required to send out a timely warning as soon as it receives a report of a Clery crime that presents a threat to the campus community that may be repeated. This warning must be sent out promptly, with the information available at the time. Chief Shawn de Jong determines the details to include in a particular warning. All reported details may not be shared in the warning in order to the protect the integrity of an ongoing investigation or the privacy rights of individuals involved.
An FAQ on timely warnings has been posted on the Department of Public Safety website.