Title IX of the Education Amendments of 1972
Students, staff, faculty, and all employees have the right to pursue education and work in an environment free from Sexual Harassment. Consistent with Amberton University’s Non-Discrimination Policy and the U.S. Department of Education’s implementing regulations for Title IX of the Education Amendments of 1972 (“Title IX”) (see 34 C.F.R. § 106 et seq.), the University prohibits Sexual Harassment that occurs within its education programs and activities.
As further defined below, Sexual Harassment includes Quid Pro Quo Sexual Harassment, Hostile Environment Sexual Harassment, Sexual Assault, Domestic Violence, Dating Violence, and Stalking. The University will provide persons who have experienced Sexual Harassment ongoing remedies as reasonably necessary to restore or preserve access to the University’s education programs and activities.
This policy applies to Sexual Harassment that occurs within the University’s Education Programs and Activities that is committed by a student, employee (including administrators, faculty, staff, and part-time employees), trustee, visitor, volunteer, and others affecting the University community.
This policy does not apply to Sexual Harassment that occurs off-campus, in a private setting, and outside the scope of the University’s Education Programs and Activities; such sexual misconduct may be prohibited by other University policies, including the Non-Discrimination Policy. Consistent with the U.S. Department of Education’s implementing regulations for Title IX, this policy does not apply to Sexual Harassment that occurs outside the geographic boundaries of the United States, even if the Sexual Harassment occurs in the University’s Education Programs and Activities. Sexual Harassment that occurs outside the geographic boundaries of the United States is governed by the Non-Discrimination Policy.
A. “Sexual Harassment” for purposes of this policy is conduct on the basis of sex that constitutes Quid Pro Quo Sexual Harassment, Hostile Environment Sexual Harassment, Sexual Assault, Domestic Violence, Dating Violence, or Stalking.
B. “Quid Pro Quo Sexual Harassment” occurs when an employee of the University conditions the provision of aid, benefit, or service of the University on an individual’s participation in unwelcome sexual contact.
C. “Hostile Environment Sexual Harassment” is unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person access to the University’s education programs and activities.
In determining whether a Hostile Environment exists, the University will consider the totality of circumstances, including factors such as the actual impact the conduct has had on the Complainant; the nature and severity of the conduct at issue; the frequency and duration of the conduct; the relationship between the parties (including accounting for whether one individual has power or authority over the other); the respective ages of the parties; the context in which the conduct occurred; and the number of persons affected. The University will evaluate the totality of circumstances from the perspective of a reasonable person in the Complainant’s position. A person’s adverse subjective reaction to conduct is not sufficient, in and of itself, to establish the existence of a hostile environment.
Sexual Harassment also includes gender-based harassment, which may include acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on gender or gender stereotyping, even if those acts do not involve conduct of a sexual nature. Further, making employment or educational decisions based on sexual favoritism or on the basis of gender is strictly prohibited.
Some specific examples of conduct that may constitute Sexual Harassment if unwelcome include, but are not limited to:
- Unreasonable pressure for a dating, romantic, or intimate relationship or sexual contact;
- Unwelcome kissing, hugging, or massaging;
- Sexual innuendos, jokes, or humor;
- Displaying sexual graffiti, pictures, videos, or posters;
- Using sexually explicit profanity;
- Asking about, or telling about, sexual fantasies, sexual preferences, or sexual activities;
- E-mail and Internet use that violates this policy;
- Leering or staring at someone in a sexual way, such as staring at a person’s breasts or groin;
- Sending sexually explicit emails, text messages, or social media posts;
- Commenting on a person’s dress in a sexual manner;
- Giving unwelcome personal gifts such as lingerie that suggest the desire for a romantic relationship; or
- Insulting, demeaning, or degrading another person based on gender or gender stereotypes.
D. “Sexual Assault” includes the sex offenses and attempted offenses of Rape, Sodomy, Sexual Assault with an Object, Fondling, Incest, and Statutory Rape.
1. “Rape” is the carnal knowledge of a person, without the Consent of the victim, including instances where the victim is incapable of giving Consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity. There is “carnal knowledge” if there is the slightest penetration of the sexual organ of the female (vagina) by the sexual organ of the male (penis).
2. “Sodomy” is oral or anal sexual intercourse with another person, without the Consent of the victim, including instances where the victim is incapable of giving Consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity.
3. “Sexual Assault with an Object” is using an object or instrument to unlawfully penetrate, however slightly, the genital or anal opening of the body of another person, without the Consent of the victim, including instances where the victim is incapable of giving Consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity. An “object” or “instrument” is anything used by the actor other than the actor’s genitalia.
4. “Fondling” is the touching of the private body parts of another person for the purpose of sexual gratification, without the Consent of the victim, including instances where the victim is incapable of giving Consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity.
5. “Incest” is sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by Texas law.
6. “Statutory Rape” is sexual intercourse with a person who is under the statutory age of consent as defined by Texas law.
E. “Domestic (Family) Violence” is felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of Texas, or by any other person against an adult or youth victim who is protected from that person’s acts under the domestic or family violence laws of Texas.
F. “Dating Violence” is violence committed by a person:
1. Who is or has been in a social relationship of a romantic or intimate nature with the victim; and
2. Where the existence of such a relationship will be determined based on a consideration of the following factors:
- The length of the relationship;
- The type of relationship; and
- The frequency of interaction between the persons involved in the relationship.
G. “Stalking” is engaging in a course of conduct directed at a specific person that would cause a reasonable person to:
- Fear for their safety or the safety of others; or
- Suffer substantial emotional distress.
For the purposes of this definition—
1. “Course of Conduct” means two or more acts, including, but not limited to, acts in which the stalker directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveils, or communicates to or about a person threats, that a reasonable person would regard as threatening bodily injury or death of that person, their family members including someone with whom the person is dating or interferes with that person’s property.
2. “Reasonable Person” means a person under similar circumstances and with similar identities to the person subjected to the stalking behavior would fear for their safety or the safety of others, or suffer substantial emotional distress.
3. “Substantial Emotional Distress” means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.
H. “Consent” is a voluntary, ongoing, mutual understanding among all participants that clearly indicates a willingness, through words or clear unambiguous actions, and demonstrates a knowing, intentional agreement to engage in each instance and stage of sexual activity. Knowledge of Consent is the responsibility of each person involved in every instance of sexual activity and Consent can be withdrawn at any time.
A current or previous dating or sexual relationship or manner of dress does not, by itself, constitute Consent. Even in the context of a relationship, there must be a voluntary, mutually understandable agreement that clearly demonstrates a willingness to engage in each instance of sexual activity. Consent to one act does not imply Consent to another, and past consent does not imply future Consent. Consent to engage in sexual activity with one person does not imply consent to engage in sexual activity with another. Any expression of an unwillingness to engage in any instance of sexual activity establishes a presumptive lack of Consent.
Consent is not effective if:
- The Respondent compels the Complainant to submit or participate by the use of physical force or violence;
- The Respondent compels the Complainant to submit or participate by threatening to use force or violence against the Complainant or any other person, and the Complainant believes that the Respondent has the present ability to execute the threat;
- The Respondent knew or reasonably should have known that another person involved was Incapacitated or otherwise unaware that the sexual assault is occurring;
- The Respondent knows that the other person has a mental disorder or developmental or physical disability that renders the Complainant incapable of either of appraising the nature of the act or of resisting it;
- The Respondent has intentionally impaired the Complainant’s power to appraise or control the other person’s conduct by administering any substance without the other person’s knowledge;
- The Respondent is a mental health services provider or a health care services provider who causes the Complainant, who is a patient or former patient of the Respondent, to submit or participate by exploiting the Complainant’s emotional dependency on the Respondent;
- The Respondent is a clergyman who causes the Complainant to submit or participate by exploiting the Complainant’s emotional dependency on the clergyman in the clergyman’s professional character as spiritual adviser;
- The Complainant is under age 17 and (1) is not a spouse of the Respondent or (2) is more than three years younger than the victim at the time of the offense;
- The Respondent obtains consent through Coercion; or
- Any other factor that would eliminate an individual’s ability to exercise their own free will to choose whether or not to have sexual activity.
I. “Coercion” is the use of pressure and/or other oppressive behavior, including expressed or implied threats of physical harm, or severe and/or pervasive emotional intimidation which places an individual in fear of immediate or future harm or physical injury or causes a person to engage in unwelcome sexual activity. A person’s words or conduct amounts to coercion if they wrongfully limit the other’s ability to freely choose whether or not to engage in sexual activity. Coercion also includes administering a drug, intoxicant, or other substance that impairs the person’s ability to give Consent.
J. “Incapacitated” refers to a state of being that prevents an individual from having the mental ability, emotional stability, or maturity to provide consent at the time the alleged behavior occurs. Incapacitation could result from the use of drugs or alcohol, a person being asleep or unconscious, or because of an intellectual or other disability or medical condition.
Incapacitation is a state where an individual cannot make an informed and rational decision to Consent to engage in sexual contact because the individual lacks conscious knowledge of the nature of the act (e.g., to understand the “who, what, where, when, why or how” of the sexual interaction), is physically or mentally helpless, or is otherwise unaware that the sexual act is occurring.
Incapacitation can only be found when the Respondent knew or should have known that the Complainant was Incapacitated when viewed from the position of a sober, reasonable person. One’s own intoxication is not an excuse for failure to recognize another person’s Incapacitation.
Incapacitation is beyond mere drunkenness or intoxication, and consumption of alcohol of other drugs, inebriation, or intoxication alone are insufficient to establish Incapacitation. The impact of alcohol or drugs varies from person to person, and evaluating Incapacitation requires an assessment of how consumption of alcohol and/or drugs impacts an individual’s:
- Decision-making ability
- Awareness of consequences
- Ability to make informed judgments
- Capacity to appreciate the nature of circumstances of the act.
No single factor is determinative of Incapacitation. Some common signs that someone may be incapacitated include slurred speech, confusion, shaky balance, stumbling or falling down, vomiting, and unconsciousness.
K. “Retaliation” is intimidation, threats, coercion, or discrimination against any individual for the purpose of interfering with any right or privilege secured by Title IX and its implementing regulations or because an individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this policy. Retaliation is prohibited and is considered a stand-alone policy violation without regard to any finding of responsibility for violation of this policy.
L. “Complainant” means the individual(s) who is alleged to have been impacted by a violation of this policy.
M. “Respondent” means the individual(s) who is alleged to have violated this policy.
N. “Formal Complaint” means a document filed by a Complainant or signed by the Title IX Coordinator alleging Sexual Harassment against a Respondent and requesting that the University investigate the allegation of Sexual Harassment in accordance with this policy. At the time of filing a Formal Complaint, a Complainant must be participating in or attempting to participate in the University’s education programs and activities. A “document filed by a Complainant” means a document or electronic submission (such as an email) that contains the Complainant’s physical or electronic signature or otherwise indicates that the Complainant is the person filing the Complaint.
O. “Supportive Measures” are non-disciplinary, non-punitive individualized services offered, as appropriate, and reasonably available, and without fee or charge, that are designed to restore or preserve equal access to the University’s Education Programs and Activities without unreasonably burdening another Party, including measures designed to protect the safety of all parties implicated by a report or the University’s education environment, or to deter Sexual Harassment. Supportive measures may include: counseling, extensions of academic or other deadlines, course-related adjustments, modifications to work or class schedules, campus escort services, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of campus, and other similar measures. Supportive Measures may also include mutual restrictions on contact between the parties implicated by a report.
P. “Education Programs and Activities” refers to all the operations of the University, including, but not limited to, in-person and online educational instruction, employment, research activities, extracurricular activities, athletics, residence life, dining services, performances, and community engagement and outreach programs. The term applies to all activity that occurs on campus or on other property owned or occupied by the University. It also includes off-campus locations, events, or circumstances over which the University exercises substantial control over the Respondent and the context in which the Sexual Harassment occurs, including Sexual Harassment occurring in any building owned or controlled by a student organization that is officially recognized by the University.
Q. “Preponderance of the Evidence” is the standard for determining allegations of prohibited conduct under this policy. Preponderance of the evidence means the greater weight of the credible evidence. This standard is satisfied if the evidence and information gathered in the matter indicate that the action is more likely to have occurred than not.
R. “Employee” means an individual who receives compensation for work or services for which the University has the right (whether or not it exercises the right) to supervise and control the manner of performance as well as the result of the work or service. Volunteers and independent contractors are not considered “employees” for the purposes of this policy.
 The University’s definition of “Sexual Assault” is mandated by federal regulations implementing Title IX of the Education Amendments of 1972. Those regulations require the University to adopt a definition of “Sexual Assault” that incorporates various forcible and non-forcible sex crimes as defined by the FBI’s Uniform Crime Reporting System. See 34 C.F.R. § 106.30(a).
 Family Violence is defined by the Texas Family Code Section 71.004 as:
(1) an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or Sexual Assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or Sexual Assault, but does not include defensive measures to protect oneself;
(2) abuse, as that term is defined by Sections 261.001(1)(C), (E), and (G), by a member of a family or household toward a child of the family or household; or
(3) Dating violence, as that term is defined by Section 71.0021.
 A Complainant and Respondent are each individually a “Party” and collectively the “Parties” with respect to a Formal Complaint filed under this policy.