After the investigation, the College will provide for a live hearing for all Formal Complaints of sexual harassment that have not been dismissed or resolved by informal resolution. At the request of either party, or at the discretion of the assigned Deputy Title IX Coordinator, the College will provide for the live hearing to occur with the parties located in separate rooms with technology enabling the Hearing Decisionmaker and parties to simultaneously see and hear the other party or witness answering questions.
The Hearing Decisionmaker(s) will be appointed by the College and will not be the assigned Deputy Title IX Coordinator or Investigator. The Hearing Decisionmaker(s) will be trained, impartial, and without a conflict of interest. The Hearing Decisionmaker(s) may be a panel of three (3) College employees with one panel member serving as a chairperson, or a single Hearing Decisionmaker, or an external individual designated by the College.
Either party may challenge the appointment of a Hearing Decisionmaker, based on conflict of interest or bias, in writing to the assigned Deputy Title IX Coordinator, no less than five (5) business days prior to the scheduled hearing.
The College will create an audio or audiovisual recording of all live hearings and make the recording available to the parties for inspection or review.
The assigned Deputy Title IX Coordinator will serve as the hearing process facilitator to coordinate the hearing, including, but not limited to, coordination and scheduling of the hearing; the logistics of physical or virtual rooms for parties and/or witnesses, including separation of the parties; ensuring all technology is working appropriately; ensuring the parties have access to electronic documents during the hearing; distributing materials; etc. The assigned Deputy Title IX Coordinator may invite the parties and their advisors, separately, to a meeting prior to the hearing to review the hearing process for the purpose of ensuring a smooth hearing. This meeting is separate from the pre-hearing conference discussed below.
Participants at the hearing include the Hearing Decisionmaker(s), the Investigator(s) who conducted the investigation, the parties, advisors to the parties, witnesses, and anyone providing authorized accommodations. In addition, the assigned Deputy Title IX Coordinator, serving as the hearing facilitator, is present. Any witnesses scheduled to participate in the hearing must have been first interviewed by the Investigator(s) or have provided a written statement or answered questions from the Investigator in writing.
Advisor’s Role at the Hearing
Each party must have an Advisor present at the hearing. The Advisor’s role is limited to supporting, advising, and assisting the party during the hearing and conducting questioning (cross-examination) of participants. Advisors are required to follow the rules of decorum enforced by the Hearing Decisionmaker(s). Failure to follow the rules of decorum by an Advisor may result in the removal of an Advisor from the hearing. If a party does not have an Advisor present at the live hearing, the College will appoint the party with an Advisor without fee or charge.
Pre-Hearing Conference
The Hearing Decisionmaker(s) may hold a pre-hearing conference. In order to streamline the hearing process, the Hearing Decisionmaker(s) may request the submission of questions prior to the hearing through electronic submission and/or a pre-hearing conference. During the pre-hearing conference, parties and their advisors will be asked to submit, in writing, any questions they wish to ask during the live hearing so that the Hearing.
Decisionmaker(s) can be prepared to respond to relevancy at the hearing. The Hearing Decisionmaker(s) may allow for the pre-hearing submission of questions regardless of whether a pre-hearing conference occurs.
This conference does not preclude an Advisor from asking additional questions live during the hearing.
At the pre-hearing conference, the Hearing Decisionmaker(s) may also hear arguments regarding the relevance of the evidence identified in the investigation report as relevant or not relevant, and/or directly related to the allegations.
Hearing Process
The hearing process will proceed as follows:
- Notice of Hearing: After the investigative report has been completed and at least ten (10) business days prior to the date set for the hearing, the parties and their advisors (if any) will be provided with a Notice of the Hearing. The Notice will include the date, time, location, name of the Hearing Decisionmaker(s), names of all participants in the hearing, and the location (virtual or in person) of the hearing.
- Opening Statement: Each party will have the opportunity to present an opening statement, no more than five (5) minutes, to the Hearing Decisionmaker(s).
- Review of Hearing Procedures, Formal Complaint, and Notice of Allegations by Hearing Decisionmaker(s).
- Questioning of Parties and Witnesses: The College will provide a process that enables the Hearing Decisionmaker(s) to question parties and witnesses to adequately assess a party’s or witness’s credibility to the extent credibility is both in dispute and relevant to evaluating one or more allegations of sexual harassment.
The Hearing Decisionmaker(s) will ask initial questions of the participants at the hearing.
After the Hearing Decisionmaker(s) ask questions of a participant, each party’s Advisor will be permitted to ask relevant questions and follow-up questions orally, directly, and in real time to the participant. The parties are never permitted to ask questions of participants directly. The questioning of participants by Advisors will be conducted in the following manner:
- a question is asked by an Advisor
- Before the participant answers the question, the Hearing Decisionmaker(s) determines whether the question is relevant
- If the question is determined to be relevant by the Hearing Decisionmaker(s), the participant answers the question
- If the question is determined not to be relevant by the Hearing Decisionmaker(s), the Hearing Decisionmaker(s) must explain the decision to exclude a question as not relevant.
Questions that are unclear or harassing of the party or witness being questioned will not be permitted. The Hearing Decisionmaker(s) will give a party an opportunity to clarify or revise a question that the Hearing Decisionmaker(s) determines is unclear or harassing. If the party sufficiently clarifies or revises the question, the question will be asked by the party’s Advisor.
Evidence and Questions Excluded
Sexual Predisposition or Prior Sexual Behavior of the Complainant: Questions and evidence about the 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 by the Complainant, 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.
Privileged Information: No person will be required to disclose information protected under a legally recognized privilege. The Hearing Decisionmaker(s) must not allow into evidence or rely upon any questions or evidence that may require or seek disclosure of such information, unless the person holding the privilege has waived the privilege. This includes information protected by the attorney-client privilege.
Medical Records: Evidence or records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional’s 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, are not permitted to be used during a hearing unless the party provides voluntary, written permission to do so for the grievance process within these Procedures.
The Hearing Decisionmaker(s) may choose to place less or no weight upon statements by a party or witness who refuses to respond to questions deemed relevant and not impermissible. The Hearing Decisionmaker(s), however, will not draw an inference about the determination regarding responsibility based solely on a party’s or witness’s absence from the live hearing or refusal to answer cross-examination or other questions.
Closing Statements: Each party will have the opportunity to present a closing statement, no more than five (5) minutes, to the Hearing Decisionmaker(s).
Determination Whether Sexual Harassment Occurred
Following an investigation and evaluation of all relevant and not otherwise impermissible evidence, the Hearing Decisionmaker(s) will deliberate in private and will:
- Use the preponderance of the evidence standard of proof to determine whether sexual harassment occurred. This means that the Hearing Decisionmaker(s) will decide whether it is more likely than not, based upon the available information at the time of the decision, that the Respondent is in violation of the alleged Policy violation(s). The standard of proof requires the Hearing Decisionmaker(s) to evaluate relevant and not otherwise impermissible evidence for its persuasiveness. If the Hearing Decisionmaker(s) is not persuaded under the applicable standard by the evidence that sexual harassment occurred, whatever the quantity of the evidence is, the Hearing Decisionmaker(s) will not determine that sexual harassment occurred.
- Notify the parties simultaneously in writing of the determination whether sexual harassment occurred under Title IX, including:
o Identification of the allegations potentially constituting sexual harassment;
o A description of the procedural steps taken from the receipt of the Formal Complaint through the determination, including any notifications to the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, and hearings held;
o Findings of fact supporting the determination;
o Conclusions regarding the application of the Procedure to the facts;
o A statement of, and rationale for, the result of each allegation, including a determination regarding responsibility, any disciplinary sanctions that the College imposes on the Respondent, and whether remedies designed to restore or preserve equal access to the College’s education program or activity will be provided by the College to the Complainant; and
o The procedures and permissible bases for the Complainant and Respondent to appeal.
The Hearing Decisionmaker(s) will send the written notification of the hearing outcome to both parties within fourteen (14) business days of the conclusion of the hearing.
The College will not impose disciplinary sanctions on a Respondent for sexual harassment prohibited by Title IX unless there is a determination at the conclusion of the Title IX grievance procedures that the Respondent engaged in prohibited sexual harassment.
If there is a determination that sexual harassment occurred, as appropriate, the assigned Deputy Title IX Coordinator will:
- Coordinate the provision and implementation of remedies to a Complainant and other people the College identifies as having had equal access to the College’s education program or activity limited or denied by sexual harassment;
- Coordinate the imposition of any disciplinary sanctions on a Respondent, including notification to the Complainant of any such disciplinary sanctions; and
- Take other appropriate prompt and effective steps to ensure that sexual harassment does not continue or recur within the College’s education program or activity.
The College shall not discipline a party, witness, or others participating in the Title IX grievance procedures for making a false statement or for engaging in consensual sexual conduct based solely on the determination whether sexual harassment occurred.
Sanctions
Factors considered by the Hearing Decisionmaker(s) when determining sanctions and responsive actions may include, but are not limited to:
- The nature, severity of, and circumstances surrounding the violation(s)
- The Respondent’s disciplinary history
- The need for sanctions/responsive actions to bring an end to the discrimination, harassment, and/or retaliation
- The need for sanctions/responsive actions to prevent the future recurrence of discrimination, harassment, and/or retaliation
- The need to remedy the effects of the discrimination, harassment, and/or retaliation on the Complainant and the community
- The impact on the parties
- Any other information deemed relevant by the Hearing Decisionmaker(s)
The sanctions will be implemented upon the outcome of any appeal or the expiration of the window to appeal, without an appeal being requested.
Student Sanctions
The following are the common sanctions that may be imposed upon students singly or in combination:
- Reprimand
- Required Counseling
- Probation
- Suspension
- Expulsion
- Withholding Diploma
- Revocation of Degree
- Other Actions: In addition to, or in place of, the above sanctions, the College may assign any other sanctions as deemed appropriate.
Employee Sanctions/Responsive/Corrective Actions
Responsive actions for an employee who has engaged in sex-based harassment include:
- Verbal or Written Warning
- Performance Improvement Plan/Management Process
- Enhanced Supervision, Observation, or Review
- Required Counseling
- Required Training or Education
- Probation
- Denial of Pay Increase/Pay Grade
- Loss of Oversight or Supervisory Responsibility
- Demotion
- Transfer
- Shift or schedule adjustments
- Reassignment
- Delay of (or referral for delay of) Tenure Track Progress
- Assignment to New Supervisor
- Restriction of Stipends, Research, and/or Professional Development Resources
- Suspension/Administrative Leave with Pay
- Suspension/Administrative Leave without Pay
- Termination
Other Actions: In addition to or in place of the above sanctions/responsive actions, the College may assign any other responsive actions as deemed appropriate.