Title IX Investigative Process
A. Commencement and Timing
After the written notice of Formal Complaint is transmitted to the Parties, an investigator selected by the Title IX Coordinator will undertake an investigation to gather evidence relevant to the alleged misconduct, including inculpatory and exculpatory evidence. The burden of gathering evidence sufficient to reach a determination in the adjudication lies with the University and not with the Parties. The investigation will culminate in a written investigation report that will be submitted to the adjudicator during the selected adjudication process. Although the length of each investigation may vary depending on the totality of the circumstances, the University strives to complete each investigation within 45 days of the transmittal of the written notice of Formal Complaint.
B. Equal Opportunity
During the investigation, the investigator will provide an equal opportunity for the Parties to be interviewed, to present witnesses (including fact and expert witnesses), and to present other inculpatory and exculpatory evidence. Notwithstanding the foregoing, the investigator retains discretion to limit the number of witness interviews the investigator conducts if the investigator finds that testimony would be unreasonably cumulative, if the witnesses are offered solely as character references and do not have information relevant to the allegations at issue, or if the witnesses are offered to render testimony that is categorically inadmissible, such as testimony concerning sexual history of the Complainant. The investigator will not restrict the ability of the parties to gather and present relevant evidence on their own.
The investigation is a Party’s opportunity to present testimonial and other evidence that the Party believes is relevant to resolution of the allegations in the Formal Complaint. A Party that is aware of and has a reasonable opportunity to present particular evidence and/or identify particular witnesses during the investigation, and elects not to, will be prohibited from introducing any such evidence during the adjudication absent a showing of mistake, inadvertence, surprise, or excusable neglect.
C. Witnesses and Evidence
The Investigator will make reasonable attempts to contact and interview individuals who are identified as witnesses with information relevant to the allegations of misconduct. The Investigator may elect not to interview witnesses whose sole purpose is to provide character information or who are otherwise unlikely to have relevant information as determined in the sole discretion of the Investigator. The Investigator will make reasonable attempts to obtain other relevant evidence available from the parties, witnesses, or other University departments.
D. Documentation of Investigation
The investigator will take reasonable steps to ensure the investigation is documented. Interviews of the parties and witnesses may be documented by the investigator’s notes, audio recorded, video recorded, or transcribed. The particular method utilized to record the interviews of parties and witnesses will determined by the investigator in the investigator’s sole discretion, although whatever method is chosen shall be used consistently throughout a particular investigation.
E. Access to Evidence
At the conclusion of the evidence-gathering phase of the investigation, but prior to the completion of the investigation report, the investigator will transmit to each Party and their advisor, in either electronic or hard copy form, all evidence obtained as part of the investigation that is directly related to the allegations raised in the Formal Complaint, including evidence the University may choose not to rely on at any hearing and inculpatory or exculpatory evidence whether obtained from a Party or some other source. The parties will have ten days in which to submit to the investigator a written response, which the investigator will consider prior to completing the investigation report.
The parties and their advisors are permitted to review the evidence solely for the purposes of this grievance process and may not duplicate or disseminate the evidence to the public.
F. Investigation Report
After the period for the parties to provide any written response has expired, the investigator will complete a written investigation report that fairly summarizes the various steps taken during the investigation, summarizes the relevant evidence collected, lists material facts on which the parties agree, and lists material facts on which the parties do not agree. When the investigation report is complete, the investigator will transmit a copy to the Title IX Coordinator. The investigator will also transmit the investigation report to each Party and their advisor, in either electronic or hard copy form.
After the investigator has sent the investigation report to the parties, the Title IX Coordinator will transmit to each Party a notice advising the Party of the Hearing and Administrative Adjudication processes specified below. The hearing process will be used to adjudicate all Formal Complaints unless both parties timely consent to administrative adjudication or informal resolution.
B. Hearing Process
The University will utilize the following procedures to administer a hearing under this section.
1. Hearing Officer
After selection of the hearing process as the form of administrative adjudication, the Title IX Coordinator will promptly appoint a hearing officer who will oversee the hearing process and render a determination of responsibility for the allegations in the Formal Complaint, at the conclusion of the hearing process. The Title IX Coordinator will see that the hearing officer is provided a copy of the investigation report and a copy of all evidence transmitted to the parties by the investigator.
2. Hearing Notice and Response to the Investigation Report
After the hearing officer is appointed by the Title IX Coordinator, the hearing officer will promptly transmit written notice to the parties notifying the parties of the hearing officer’s appointment; setting a deadline for the parties to submit any written response to the investigation report; setting a date for the pre-hearing conference; setting a date and time for the hearing; and providing a copy of the University’s Hearing Procedures. Neither the pre-hearing conference, nor the hearing itself, may be held any earlier than ten days from the date of transmittal of the written notice.
A Party’s written response to the investigation report must include:
- To the extent the Party disagrees with the investigation report, any argument or commentary regarding such disagreement;
- Any argument that evidence should be categorically excluded from consideration at the hearing based on privilege, relevancy, the prohibition on the use of sexual history, or for any other reason;
- A list of any witnesses that the Party contends should be requested to attend the hearing pursuant to an attendance notice issued by the hearing officer;
- A list of any witnesses that the Party intends to bring to the hearing without an attendance notice issued by the hearing officer;
- Any objection that the Party has to the University’s Hearing Procedures;
- Any request that the parties be separated physically during the pre-hearing conference and/or hearing;
- Any other accommodations that the Party seeks with respect to the pre-hearing conference and/or hearing;
- The name and contact information of the advisor who will accompany the Party at the pre-hearing conference and hearing;
- If the Party does not have an advisor who will accompany the Party at the hearing, a request that the University provide an advisor for purposes of conducting questioning.
A Party’s written response to the investigation report may also include:
- Argument regarding whether any of the allegations in the Formal Complaint are supported by a preponderance of the evidence; and
- Argument regarding whether any of the allegations in the Formal Complaint constitute Sexual Harassment.
3. Pre-Hearing Conference
Prior to the hearing, the hearing officer will conduct a pre-hearing conference with the parties and their advisors. The pre-hearing conference will be conducted live, with simultaneous and contemporaneous participation by the parties and their advisors. By default, the pre-hearing conference will be conducted with the hearing officer, the parties, the advisors, and other necessary University personnel together in the same physical location. However, upon request of either Party, the parties will be separated into different rooms with technology enabling the parties to participate simultaneously and contemporaneously by video and audio.
In the hearing officer’s discretion, the pre-hearing conference may be conducted virtually, by use of video and audio technology, where all participants participate simultaneously and contemporaneously by use of such technology.
During the pre-hearing conference, the hearing officer will discuss the hearing procedures with the parties; address matters raised in the parties’ written responses to the investigation report, as the hearing officer deems appropriate; discuss whether any stipulations may be made to expedite the hearing; discuss the witnesses the parties have requested be served with notices of attendance and/or witnesses the parties plan to bring to the hearing without a notice of attendance; and resolve any other matters that the hearing officer determines, in the hearing officer’s discretion, should be resolved before the hearing.
4. Issuance of Notices of Attendance
After the pre-hearing conference, the hearing officer will transmit notices of attendance to any University employee (including administrator, faculty, or staff) or student whose attendance is requested at the hearing as a witness. The notice will advise the subject of the specified date and time of the hearing and advise the subject to contact the hearing officer immediately if there is a material and unavoidable conflict.
The subject of an attendance notice should notify any manager, faculty member, coach, or other supervisor, as necessary, if attendance at the hearing will conflict with job duties, classes, or other obligations. All such managers, faculty members, coaches, and other supervisors are required to excuse the subject of the obligation, or provide some other accommodation, so that the subject may attend the hearing as specified in the notice.
The University will not issue a notice of attendance to any witness who is not an employee or a student.
After the pre-hearing conference, the hearing officer will convene and conduct a hearing pursuant to the University’s Hearing Procedures. The hearing will be audio recorded. The audio recording will be made available to the parties for inspection and review on reasonable notice, including for use in preparing any subsequent appeal.
The hearing will be conducted live, with simultaneous and contemporaneous participation by the parties and their advisors. By default, the hearing will be conducted with the hearing officer, the parties, the advisors, witnesses, and other necessary University personnel together in the same physical location. However, upon request of either Party, the parties will be separated into different rooms with technology enabling the parties to participate simultaneously and contemporaneously by video and audio. The hearing may, in the hearing officer’s discretion, be conducted virtually, by use of video and audio technology, where all participants participate simultaneously and contemporaneously by use of such technology.
While the Hearing Procedures and rulings from the hearing officer will govern the particulars of the hearing, each hearing will include, at a minimum:
- Opportunity for each Party to address the hearing officer directly and to respond to questions posed by the hearing officer;
- Opportunity for each Party’s advisor to ask directly, orally, and in real time, relevant questions, and follow up questions, of the other Party and any witnesses, including questions that support or challenge credibility;
- Opportunity for each Party to raise contemporaneous objections to testimonial or non-testimonial evidence and to have such objections ruled on by the hearing officer and a reason for the ruling provided;
- Opportunity for each Party to submit evidence that the Party did not present during the investigation due to mistake, inadvertence, surprise, or excusable neglect;
- Opportunity for each Party to make a brief closing argument.
Except as otherwise permitted by the hearing officer, the hearing will be closed to all persons except the parties, their advisors, the investigator, the hearing officer, the Title IX Coordinator, and other necessary University personnel. With the exception of the investigator and the parties, witnesses will be sequestered until such time as their testimony is complete.
During the hearing, the parties and their advisors will have access to the investigation report and evidence that was transmitted to them.
While a Party has the right to attend and participate in the hearing with an advisor, a Party and/or advisor who materially and repeatedly violates the rules of the hearing in such a way as to be materially disruptive, may be barred from further participation and/or have their participation limited, as the case may be, in the discretion of the hearing officer.
Subject to the minimum requirements specified in this Section, the hearing officer will have sole discretion to determine the manner and particulars of any given hearing, including with respect to the length of the hearing, the order of the hearing, and questions of admissibility. The hearing officer will independently and contemporaneously screen questions for relevance in addition to resolving any contemporaneous objections raised by the parties and will explain the rational for any evidentiary rulings.
The hearing is not a formal judicial proceeding and strict rules of evidence do not apply. The hearing officer will have discretion to modify the Hearing Procedures, when good cause exists to do so, and provided the minimal requirements specified above are met.
6. Subjection to Questioning
In the event that any Party or witness refuses to attend the hearing, or attends but refuses to submit to questioning by the Parties’ advisors, the statements of that Party or witness, as the case may be, whether given during the investigation or during the hearing, will not be considered by the hearing officer in reaching a determination of responsibility.
Notwithstanding the foregoing, the hearing officer may consider the testimony of any Party or witness, whether given during the investigation or during the hearing, if the parties jointly stipulate that the testimony may be considered or in the case where neither Party requested attendance of the witness at the hearing.
In applying this Section, the hearing officer will not draw an inference about the determination regarding responsibility based solely on a Party or a witness’s absence from the live hearing and/or refusal to submit to questioning by the parties’ advisors.
C. Deliberation and Determination
After the hearing is complete, the hearing officer will objectively evaluate all relevant evidence collected during the investigation, including both inculpatory and exculpatory evidence, together with testimony and non-testimony evidence received at the hearing, and ensure that any credibility determinations made are not based on a person’s status as a Complainant, Respondent, or witness. The hearing officer will take care to exclude from consideration any evidence that was ruled inadmissible at the pre-hearing conference, during the hearing, or otherwise. The hearing officer will resolve disputed facts using a preponderance of the evidence (i.e., “more likely than not”) standard and reach a determination regarding whether the facts that are supported by a preponderance of the evidence constitute one or more violations of the policy as alleged in the Formal Complaint.
D. Written Decision
After reaching a determination and consulting with the appropriate University official and Title IX Coordinator as required above, the hearing officer will prepare a written decision that will include:
- Identification of the allegations potentially constituting Sexual Harassment made in the Formal Complaint;
- A description of the procedural steps taken by the University upon receipt of the Formal Complaint, through issuance of the written decision, including notification to the parties, interviews with the parties and witnesses, site visits, methods used to gather non-testimonial evidence, and the date, location, and people who were present at or presented testimony at the hearing.
- Articulate findings of fact, made under a preponderance of the evidence standard, that support the determination;
- A statement of, and rationale for, each allegation that constitutes a separate potential incident of Sexual Harassment, including a determination regarding responsibility for each separate potential incident;
- The discipline determined by the appropriate University official;
- Whether the Complainant will receive any ongoing support measures or other remedies as determined by the Title IX Coordinator; and
- A description of the University’s process and grounds for appeal.
The hearing officer’s written determination will be transmitted to the parties. Transmittal of the written determination to the parties concludes the hearing process, subject to any right of appeal.
Although the length of each adjudication by hearing will vary depending on the totality of the circumstances, the University strives to issue the hearing officer’s written determination within 15 days of the conclusion of the hearing.
E. Administrative Adjudication
In lieu of the hearing process, the Parties may consent to have a Formal Complaint resolved by administrative adjudication. Administrative adjudication is voluntary and must be consented to in writing by both parties and approved by the Title IX Coordinator. At any time prior to the issuance of the administrative officer’s determination, a Party has the right to withdraw from administrative adjudication and request a live hearing.
If administrative adjudication is selected, the Title IX Coordinator will appoint an administrative officer. The Title IX Coordinator will ensure that the administrative adjudicator is provided a copy of the investigation report and a copy of all the evidence transmitted to the parties by the investigator.
The administrative officer will promptly send written notice to the Parties notifying the parties of the administrative officer’s appointment; setting a deadline for the parties to submit any written response to the investigation report; and setting a date and time for each party to meet with the administrative officer separately. The administrative officer’s meetings with the parties will not be held any earlier than ten days from the date of transmittal of the written notice specified in this paragraph.
A Party’s written response to the investigation report must include:
- To the extent the party disagrees with the investigation report, any argument or commentary regarding such disagreement;
- Any argument that a particular piece or class of evidence should be categorically excluded from consideration at the hearing based on privilege, relevancy, the prohibition on the use of sexual history, or for any other reason;
- Argument regarding whether any of the allegations in the Formal Complaint are supported by a preponderance of the evidence;
- Argument regarding whether any of the allegations in the Formal Complaint constitute Sexual Harassment.
After reviewing the Parties’ written responses, the administrative officer will meet separately with each party to provide the Party with an opportunity make any oral argument or commentary the Party wishes to make and for the administrative officer to ask questions concerning the Party’s written response, the investigative report, and/or the evidence collected during the investigation.
After meeting with each Party, the administrative officer will objectively revaluate all relevant evidence, including both inculpatory and exculpatory evidence and ensure that any credibility determinations made are not based on a person’s status as a Complainant, Respondent, or witness. The administrative officer will take care to exclude from consideration any evidence that the administrative officer determines should be ruled inadmissible based on the objections and arguments raised by the Parties in their respective written responses to the investigation report. The administrative officer will resolve disputed facts using a preponderance of the evidence (i.e., “more likely than not”) standard and reach a determination regarding whether the facts that are supported by a preponderance of the evidence constitute one or more violations of the policy as alleged in the Formal Complaint.
Thereafter, the administrative officer will consult with any University official and the Title IX Coordinator and will prepare and transmit a written decision which shall serve as a resolution for purposes administrative adjudication.
Transmittal of the administrative officer’s written determination concludes the administrative adjudication, subject to any right of appeal.
Although the length of each administrative adjudication will vary depending on the totality of the circumstances, the University strives to issue the administrative officer’s written determination within thirty days of the transmittal of the initiating written notice.
G. Discipline and Remedies
In the event the hearing panel determines that the Respondent is responsible for violating this policy, the hearing chair will, prior to issuing a written decision, consult with an appropriate University official with disciplinary authority over the Respondent and such official will determine any discipline to be imposed. The hearing chair will also, prior to issuing a written decision, consult with the Title IX Coordinator who will determine whether and to what extent ongoing support measures or other remedies will be provided to the Complainant. Sanctions that can be imposed upon a final determination of responsibility may range from a written warning or reprimand up to and including expulsion of a student or dismissal of an employee for cause.
If a student is found responsible for Sexual Harassment and the sanction imposed makes the student ineligible to reenroll in the University (i.e., suspension or expulsion), the University will include a notation on the student’s transcript. The student may request the removal of a transcript notation imposed under this policy if:
- the student becomes eligible to reenroll at the University; or
- the University determines that good cause exists to remove the notation.
If the University receives an appropriate request by another postsecondary educational institution, the University will provide to the requesting institution information relating to the University’s determination that the student violated this policy.
IX. Dismissal During Investigation or Adjudication
The University may dismiss a Formal Complaint at any point during the investigation or adjudication process if the Title IX Coordinator determines that any one or more of the following is true:
- The Complainant provides the Title IX Coordinator written notice that the Complainant wishes to withdraw the Formal Complaint or any discrete allegations therein (in which case those discrete allegations may be dismissed);
- The Respondent is no longer employed by the University; or
- Specific circumstances prevent the University from gathering evidence sufficient to reach a determination as to the Formal Complaint, or any discrete allegations therein (in which case those discrete allegations may be dismissed).
In the event the Title IX Coordinator determines that a Formal Complaint should be dismissed pursuant to this Section, the Title IX Coordinator will provide written notice of dismissal to the parties and advise them of their right to appeal. The Title IX Coordinator may refer the subject matter of the Formal Complaint to other University offices, as appropriate. A dismissal pursuant to this Section is presumptively a final determination as it pertains to this policy, unless otherwise specified in writing by the Title IX Coordinator in the written notice of dismissal.
A. Grounds for Appeal
Either Party may appeal the determination of an adjudication, or a dismissal of a Formal Complaint, on one or more of the following grounds:
- A procedural irregularity affected the outcome;
- There is new evidence that was not reasonably available at the time the determination or dismissal was made, that could have affected the outcome;
- The Title IX Coordinator, investigator, hearing officer, or administrative officer had a conflict of interest or bias for or against complainants or respondents generally, or against the individual Complainant or Respondent, that affected the outcome.
- The sanctions imposed are substantially disproportionate to the severity of the violation.
Appeals are not intended to be full re-hearings of the complaint. In most cases, appeals are confined to a review of the written documentation and evidence available at the time of the Investigation, and pertinent documentation regarding the grounds for appeal.
B. Deadline to File Appeal
A Party must file an appeal within seven days of the date they receive notice of dismissal or determination appealed from or, if the other Party appeals, within three days of the other Party appealing, whichever is later. The appeal must be submitted in writing to the University President, who serves as the appeal officer. The appeal must specifically identify the determination and/or dismissal appealed from, articulate which one or more of the three grounds for appeal are being asserted, explain in detail why the appealing Party believes the appeal should be granted, and articulate what specific relief the appealing Party seeks.
C. Resolution of Appeal
Promptly upon receipt of an appeal, the appeal officer will conduct an initial evaluation to confirm that the appeal is timely filed and that it invokes at least one of the permitted grounds for appeal. If the appeal officer determines that the appeal is not timely, or that it fails to invoke a permitted ground for appeal, the appeal officer will dismiss the appeal and provide written notice of the same to the parties.
If the appeal officer confirms that the appeal is timely and invokes at least one permitted ground for appeal, the appeal officer will provide written notice to the other Party that an appeal has been filed and that the other Party may submit a written opposition to the appeal within seven days. The appeal officer shall also promptly obtain from the Title IX Coordinator any records from the investigation and adjudication necessary to resolve the grounds raised in the appeal.
Upon receipt of any opposition, or after the time period for submission of an opposition has passed without one being filed, the appeal officer will promptly decide the appeal and transmit a written decision to the parties that explains the outcome of the appeal and the rationale. The determination of a Formal Complaint, including any discipline, becomes final when the time for appeal has passed with no Party filing an appeal or, if any appeal is filed, at the point when the appeal officer has resolved all appeals, either by dismissal or by transmittal of a written decision. No further review beyond the appeal is permitted.
Although the length of each appeal will vary depending on the totality of the circumstances, the University strives to issue the appeal officer’s written decision within 21 days of an appeal being filed.
XI. Informal Resolution
The University may, in the Title IX Coordinator’s discretion, facilitate an Informal Resolution in accordance with the protocol outlined below.
A. Guiding Principles
Generally, informal resolution involves a structured, supervised interaction between the Parties and/or other affected community members that seeks to identify and meet the needs of the Complainant while providing an opportunity for the Respondent and/or other affected community members to accept responsibility and repair harm (to the extent possible). Informal resolution may not include an investigation, hearing, or disciplinary action against a Respondent (including transcript notations), but may include imposing appropriate and reasonable remedies as agreed to by the Parties. All informal resolutions are facilitated by a trained administrator or outside expert.
B. Availability of Informal Resolution
Informal resolution is available in matters in which the Title IX Coordinator, in the Title IX Coordinator’s discretion, determines it is appropriate. Factors the University will consider when determining whether a report of Prohibited Conduct is suitable for Alternative Resolution include, but are not limited to:
- the nature and severity of the conduct, including whether the use of force or a weapon was involved;
- the Respondent’s prior known disciplinary or criminal conduct, including whether the University has received other reports of Prohibited Conduct committed by the Respondent;
- whether the alleged incident poses a risk of harm to other individuals or the community;
- the dynamics of power or control commonly associated with the alleged conduct or the nature of the parties’ relationship;
- whether multiple parties are affected or involved;
- any admissions of responsibility by the Respondent; and
- any other factor deemed relevant by the Title IX Coordinator or their designee in the interest of overall campus safety or safety of the parties involved.
Informal resolution will not be permitted if the Respondent is a non-student employee accused of committing Sexual Harassment against a student.
C. Informal Resolution Process
At any time after the parties are provided written notice of the Formal Complaint, and before the completion of any appeal, the parties may voluntarily consent, with the Title IX Coordinator’s approval, to engage in mediation, facilitated resolution, or other form of dispute resolution the goal of which is to enter into a final resolution resolving the allegations raised in the Formal Complaint by agreement of the parties. Administrative Adjudication is a form of informal resolution.
The specific manner of any informal resolution process will be determined by the Parties and the Title IX Coordinator, in consultation together. Prior to commencing the informal resolution process agreed upon, the Title IX Coordinator will transmit a written notice to the Parties that:
- Describes the parameters and requirements of the informal resolution process to be utilized;
- Identifies the individual responsible for facilitating the informal resolution (who may be the Title IX Coordinator, another University official, or a suitable third-Party);
- Explains the effect of participating in informal resolution and/or reaching a final resolution will have on a Party’s ability to resume the investigation and adjudication of the allegations at issue in the Formal Complaint; and
- Explains any other consequence resulting from participation in the informal resolution process, including a description of records that will be generated, maintained, and/or shared.
After receiving the written notice specified in this paragraph, each Party must voluntarily provide written consent to the Title IX Coordinator, before the informal resolution may commence. The University will not pressure or compel any individual to engage in mediation, to directly confront the other, or to participate in any particular form of informal resolution. Individuals may be accompanied by an adviser or support person at any meetings related to the informal resolution process.
If the Parties reach a resolution through the informal resolution process, and the Title IX Coordinator agrees that the resolution is not clearly unreasonable, the Title IX Coordinator will reduce the terms of the agreed resolution to writing and present the resolution to the parties for their written signature. Once both parties and the Title IX Coordinator sign the resolution, the resolution is final, and the allegations addressed by the resolution are considered resolved and will not be subject to further investigation, adjudication, remediation, or discipline by the University, except as otherwise provided in the resolution itself, absent a showing that a Party induced the resolution by fraud, misrepresentation, or other misconduct or where required to avoid a manifest injustice to either Party or to the University. Notwithstanding the forgoing if the form of informal resolution is Administrative Adjudication, there shall not be an agreed resolution requiring the parties’ signatures; instead, the determination issued by the administrative officer shall serve as the resolution and conclude the informal resolution process, subject only to any right of appeal. With the exception of a resolution resulting from the Administrative Adjudication process, all other forms of informal resolution pursuant to this Section are not subject to appeal.
D. Termination of Informal Resolution
A Party may withdraw their consent to participate in informal resolution at any time before a resolution has been finalized.
E. Deadlines for Informal Resolution
Absent extension by the Title IX Coordinator, any informal resolution process must be completed within 21 days. If an informal resolution process does not result in a resolution within 21 days, and absent an extension, abeyance, or other contrary ruling by the Title IX Coordinator, the informal resolution process will be deemed terminated, and the Formal Complaint will be resolved pursuant to the investigation and adjudication procedures. The Title IX Coordinator may adjust any time periods or deadlines in the investigation and/or adjudication process that were suspended due to the informal resolution.
During the pendency of the informal resolution process, the investigation and adjudication processes that would otherwise occur are stayed and all related deadlines are suspended.
XII. Other Investigation and Adjudication Considerations
A. Advisor of Choice
From the point a Formal Complaint is made, and until an investigation, adjudication, and appeal are complete, the Complainant and Respondent will have the right to be accompanied by an advisor of their choice to all meetings, interviews, and hearings that are part of the investigation, adjudication, and appeal process. The advisor may be, but is not required to be, an attorney.
Except for the questioning of witnesses during the hearing specified in Section XVIII.A.5, the advisor will play a passive role and is not permitted to communicate on behalf of a Party, insist that communication flow through the advisor, or communicate with the University about the matter without the Party being included in the communication. In the event a Party’s advisor of choice engages in material violation of the parameters specified in this Section XXI and Section XVIII.A.5, the University may preclude the advisor from further participation, in which case the Party may select a new advisor of their choice.
In the event a Party is not able to secure an advisor to attend the hearing specified in Section XVIII.A.5, and requests the University to provide an advisor, the University will provide the Party an advisor, without fee or charge, who will conduct questioning on behalf of the Party at the hearing. The University will have sole discretion to select the advisor it provides. The advisor the University provides may be, but is not required to be, an attorney.
The University will provide an advisor to any Party upon receipt of a request to the Title IX Coordinator or their designee. The University will provide an advisor for any Party at a hearing specified in Section XVIII.A.5 for the purpose of cross-examining a Party or witness.
B. Conflicts of Interest, Bias, and Procedural Complaints
The Title IX Coordinator, investigator, hearing officer, administrative officer, appeals officer, and informal resolution facilitator will be free of any material conflicts of interest or material bias. Any Party who believes one or more of these University officials has a material conflict of interest or material bias must raise the concern promptly so that the University may evaluate the concern and find a substitute, if appropriate. The failure of a Party to timely raise a concern of a conflict of interest or bias may result in a waiver of the issue for purposes of any appeal.
Parties are generally expected to raise any objections, concerns, or complaints about the investigation, adjudication, and appeals process in a prompt and timely manner so that the University may evaluate the matter and address it, if appropriate.
C. Treatment of Medical Records and Other Privileged Information
During the investigation and adjudication processes, the investigator and adjudicator are not permitted to access, consider, disclose, permit questioning concerning, or otherwise use:
- a Party’s records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional or paraprofessional’s capacity, or assisting in that capacity, and which are made and maintained in connection with the provision of treatment to the Party; or
- information or records protected from disclosure by any other legally-recognized privilege, such as the attorney client privilege
unless the University has obtained the Party’s voluntary, written consent to do so for the purposes of the investigation and adjudication process.
Notwithstanding the foregoing, the investigator and/or adjudicator, may consider any such records or information otherwise covered by this Section XIX if the Party holding the privilege affirmatively discloses the records or information to support their allegation or defense.
D. Sexual History
During the investigation and adjudication processes, questioning regarding a Complainant’s sexual predisposition or prior sexual behavior are not relevant, unless such questions and evidence about the Complainant’s prior sexual behavior are offered to prove that someone other than the Respondent committed the conduct alleged, or if the questions and evidence concern specific incidents of the Complainant’s prior sexual behavior with respect to the Respondent and are offered to prove consent. Notwithstanding the foregoing, a Complainant who affirmatively uses information otherwise considered irrelevant by this Section for the purpose of supporting the Complainant’s allegations, may be deemed to have waived the protections of this Section.
E. Student Withdrawal or Graduation Pending Disciplinary Charges
If a student withdraws or graduates from the University pending an investigation of a complaint of Sexual Misconduct under this policy, the University will expedite the disciplinary process as necessary to accommodate both the Complainant and the Respondent’s interest in a speedy resolution and continue the investigation with or without the participation of the Respondent.
F. Relationship With Criminal Process
This policy sets forth the University’s processes for responding to reports and Formal Complaints of Sexual Harassment. The University’s processes are separate, distinct, and independent of any criminal processes. While the University may temporarily delay its processes under this policy to avoid interfering with law enforcement efforts if requested by law enforcement, the University will otherwise apply this policy and its processes without regard to the status or outcome of any criminal process.
Wherever this policy specifies that an audio or video recording will be made, the recording will be made only by the University and is considered property of the University, subject to any right of access that a Party may have under this policy, FERPA, and other applicable federal, state, or local laws. Only the University is permitted to make audio or video recordings under this policy. The surreptitious recording of any meeting, interview, hearing, or other interaction contemplated under this policy is strictly prohibited. Any Party who wishes to transcribe a hearing by use of a transcriptionist must seek pre-approval from the hearing officer.
XIII. Discretion in Application
The University retains discretion to interpret and apply this Policy in a manner that is not clearly unreasonable, even if the University’s interpretation or application differs from the interpretation of the Parties.
The provisions of this policy and the Hearing Procedures are not contractual in nature, whether in their own right, or as part of any other express or implied contract. Accordingly, the University retains discretion to revise this policy and the Hearing Procedures at any time, and for any reason. The University may apply policy revisions to an active case provided that doing so is not clearly unreasonable.
B. Other Sex-Based Misconduct
This policy only applies to Sexual Harassment as defined in this policy. The University may refer and resolve complains of other forms of sex discrimination consistent with other institutional policies, including the University’s Non-Discrimination Policy.
C. Outside Appointments, Dual Appointments, and Delegations
The University retains discretion to retain and appoint suitably qualified persons who are not University employees to fulfill any function of the University under this policy, including, but not limited to, the investigator, hearing officer, administrative officer, informal resolution officer, and/or appeals officer. The University also retains discretion to appoint two or more persons to jointly fulfill the role of investigator, hearing officer, administrative officer, informal resolution officer, and/or appeals officer.
The functions assigned to a given University official under this policy, including but not limited to the functions assigned to the Title IX Coordinator, investigator, hearing officer, administrative officer, informal resolution officer, and appeals officer, may, in the University’s discretion, be delegated by such University official to any suitably qualified individual and such delegation may be recalled by the University at any time.
D. Vendors, Contractors and Third Parties
The University does business with various vendors, contractors, and other third-parties who are not students or employees of the University. Notwithstanding any rights that a given vendor, contractor, or third-party Respondent may have under this policy, the University retains its right to limit any vendor, contractor, or third-party’s access to campus for any reason. And the University retains all rights it enjoys by contract or law to terminate its relationship with any vendor, contractor, or third-party irrespective of any process or outcome under this policy.