Title IX

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TITLE IX SEX DISCRIMINATION AND SEXUAL HARASSMENT

 

  1. Purpose and Statement of Policy

 

  1. Scope and applicability

 

The School is required by federal and state law to provide an academic and working environment that is free from discrimination on the basis of sex.  Federal regulations require specific processes when allegations of sexual discrimination may constitute sexual harassment under Title IX of the Educational Amendments of 1972.  This Policy outlines the policies and procedures that the School will use to address reports of conduct that constitute sex discrimination and sexual harassment as defined by Title IX and its implementing regulations (“Title IX violations”). The School does not discriminate in its education program or activities, which include admission to and employment at the School.

 

The School has also adopted a grievance procedure to provide the prompt and equitable resolution of student and employee complaints of Title IX sex discrimination and sexual harassment.  This procedure also describes how members of the School’s community can report or file a complaint of sex discrimination, sexual harassment, and will outline how the School will respond to these reports and formal complaints.

 

The School has designated the following employee to coordinate its efforts to comply with Title IX.  This individual is called the Title IX Coordinator.  The Title IX Coordinator’s contact information is below:

 

Vicki Lowry

Title IX Coordinator

Main Officer Manger and Events Coordinator

61830 Sandy Ridge Road

Barnesville, OH 43713

 

740-425-3655 (Ext. 203)

 

AND

 

Shea Bugala

Title IX Coordinator

Student Life and Activities Coordinator

61830 Sandy Ridge Road

Barnesville, OH 43713

 

740-425-3655 (Ext. 253)

 

Any person may, and any School employee will, report sex discrimination, including sexual harassment, whether or not the person reporting is the person who has been subject to the conduct that constitutes sex discrimination or sexual harassment.  This could be done in person, by mail, by telephone, or by electronic mail using the contact information listed above for the Title IX Coordinator.  Such a report can be made at any time (including during non-business hours) by using the telephone number, email address, or by sending mail to the office address listed above.

 

Please note that a report of sexual harassment does not automatically result in a formal investigation as defined in this Policy.  The Title IX Coordinator will work to provide supportive measures, access to resources, information about formal and informal resolution procedures, and information about filing a report with the appropriate law enforcement agency.

 

Investigations may be delayed and any timeframes contained in this Policy may be extended for good cause with written notice provided by the School to complainants and respondents, including the reason for the delay or extension. Good cause may include but is not limited to considerations such as the absence of a party, a party’s advisor, or a witness; concurrent law enforcement activity; or the need for language assistance or accommodation of disabilities. Delays caused solely by administrative needs are not considered good cause.

 

 

  1. Jurisdiction

 

Under this Policy, the School has jurisdiction to address conduct that constitute Title IX violations that occur within the School’s educational programs or activities within the United States.  For the purposes of the Policy, the School’s “educational programs or activities” include locations, events, or circumstances over which the School exercises substantial control over both the responding party and the context in which the prohibited conduct occurred.

 

The conduct prohibited by this Policy may also constitute prohibited conduct under other School Policies, procedures and/or the code of conduct.  The School maintains the right to respond to conduct prohibited under this Policy that occurs on campus, at School events, regardless of where they occur, and academic, co-curricular and extra-curricular programs that occur off-campus, including those that occur outside the United States, under other provisions of its policies, procedures and/or the code of conduct, provided, however, that no such investigation and/or discipline will be pursued if the purpose is to interfere with any right or privilege secured by Title IX or its regulations.

 

  1. Definitions

 

For purposes of this Policy, the following definitions are applicable:

 

Complainant: A Complainant is defined as an individual who is alleged to be the victim of conduct that could constitute sexual harassment.

 

Day:  A day is defined as an academic day (8:15 AM – 4:15 PM).

 

Formal complaint: Formal complaint is defined as a document filed by a complainant or signed by the Title IX Coordinator alleging sexual harassment against a respondent and requesting that the School investigate the allegation of sexual harassment. At the time of filing a formal complaint, a complainant must be participating in or attempting to participate in the School’s education program or an activity of the School. A formal complaint may be filed with the Title IX Coordinator in person, by mail, or by electronic mail, by using the contact information for the Title IX Coordinator listed above or any additional method designated by the School.  Additionally, a “document filed by a complainant” can be in the form of an electronic submission (such as by electronic mail or through an online portal provided for this purpose by the School) that contains the complainant’s physical or digital signature, or otherwise indicates that the complainant is the person filing the formal complaint.

           

Respondent: A Respondent is defined as an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment.

 

Title IX Coordinator: The Title IX Coordinator is the employee, or employees, designated to coordinate the School’s efforts to comply with Title IX and its regulations found in Part 106 of Title 34 of the Code of Federal Regulations.  The Title IX Coordinators will designate other individuals, regardless of whether such individuals are School employees or neutral third-parties, to perform the duties of investigator(s), decision-maker(s), appeal officer(s) and person(s) who facilitate informal resolutions under this Policy.   No person can fill more than one of these roles on a particular matter.  For instance, the investigator cannot also be the decision-maker in the same case.

 

  • Confidentiality

 

The School strives to respect the privacy of both parties and other participants in the Title IX investigation process. To the extent permitted by law, information related to the report and investigation of alleged Title IX violations under this Policy will only be shared with a limited selection of individuals whose knowledge is necessary to respond to claims of such violations. Responding to claims may require that certain information be shared on a limited basis in order to review reports, investigate claims, participate in investigations, including but not limited to interviewing witnesses, adjudicate the complaint, review appeals, participate in judicial proceedings and other related issues.

 

The School will keep confidential the identity of any individual who has made a report or complaint of sex discrimination, any complainant, any individual who has been reported to be the perpetrator of sex discrimination, any respondent, and any witness, except as may be permitted by the FERPA statutes or regulations, as required by law, or to carry out the purposes of this Policy, including the conduct of any investigation, adjudication of the complaint, appeals, or judicial proceeding arising thereunder. Student education records are protected in compliance with the Family Educational Rights and Privacy Act (FERPA), Revised Code Section 3319.321 and other applicable laws in Ohio.

 

The School must obtain written consent from a party before the School may receive any health or other treatment records. If a party provides written consent for medical or other treatment records to become part of an investigation’s case file, both parties must be able to review and comment on those records if the investigation moves towards an investigative report and decision.

 

  1. Making a Formal Report

 

While reporting of all harassment by everyone is encouraged, third parties other than the Title IX Coordinator are not permitted to file formal complaints.  In the case of a complainant who is under the age of 18, the complaint may be signed by a parent or guardian who has the legal right to act on behalf of the complainant.  A complainant may file a formal complaint by either using the School-provided electronic submission system, or by physically or digitally signing a document and filing it as authorized in person, by mail, or by e-mail. At the time of filing a formal complaint, a complainant must be participating in or attempting to participate in the education program or activity of the School.  There is no time limit or statute of limitations on a complainant’s decision to file a formal complaint.  To the extent possible, the School will investigate a complainant’s formal complaint, even if the respondent’s identity is unknown, as the investigation may reveal the respondent’s identity.

 

When the Title IX Coordinator believes that with or without the complainant’s desire to participate in a grievance process, the allegations require an investigation, the Title IX Coordinator has the discretion to initiate a grievance process. In situations where the Title IX Coordinator initiates or signs a formal complaint, the Title IX Coordinator is not a complainant and such an action is not an indication of bias on the Title IX Coordinator’s part.  When a formal complaint is signed by the Title IX Coordinator, all parties must receive notice with details of the allegations and the identities of the parties, if known.

 

Title IX Violations

 

  1. Title IX Sexual Harassment[1]

 

“Sexual harassment” within the scope of Title IX and for purposes of this Policy means conduct on the basis of sex that satisfies the definition of one or more of the following:

 

  • An employee of the School conditioning the provision of an aid, benefit, or service of the School on an individual’s participation in unwelcome sexual conduct (employee-to-student quid pro quo);
  • Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the School’s education program or activity (hostile environment sexual harassment); or
  • Sexual assault[2], dating violence[3], domestic violence[4], or stalking.[5]

 

  1. Retaliation

 

Neither the School nor any other person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by this Policy, or because the 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 the Title IX regulations and/or this Policy.  Complaints alleging retaliation may be filed according to the grievance procedures for sex discrimination adopted by the School and set forth in this Policy.

 

Charging an individual with a code of conduct violation for making a materially false statement in bad faith in the course of a grievance proceeding under the regulations does not constitute retaliation, as described above, provided, however, that a determination regarding responsibility, alone, is not sufficient to conclude that any party made a materially false statement in bad faith.

 

The exercise of rights protected under the First Amendment does not constitute retaliation prohibited under this provision.

 

  1. Supportive Measures

 

“Supportive measures” are non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the complainant or the respondent before or after the filing of a formal complaint or where no formal complaint has been filed.  Such measures are designed to restore or preserve equal access to the School’s education program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties or the School’s educational environment, or deter sexual harassment.

 

Supportive measures at the School may include but are not limited to: counseling, extension of deadlines or other course-related adjustments, modifications of work or class schedules, campus escort services, mutual restrictions on contact between the parties, changes in work locations, leaves of absence, increased security and monitoring of certain areas of the campus and other similar measures.

 

The School will maintain as confidential any supportive measures provided to the complainant or respondent, to the extent that maintaining such confidentiality would not impair the ability of the School to provide the supportive measures.  The Title IX Coordinator is responsible for coordinating the effective implementation of supportive measures.

 

The School offers supportive measures to both complainants and respondents.  Upon receipt of a report of an identifiable complainant, the Title IX Coordinator will promptly contact the complainant to discuss the availability of supportive measures, consider the complainant’s wishes with respect to supportive measures, inform the complainant of the availability of supportive measures with or without the filing of a formal complaint and explain to the complainant the process for filing a formal complaint.  If the Title IX Coordinator does not offer supportive measures to the complainant, the Title IX Coordinator must document the reasons why such a response was not clearly unreasonable in light of the known circumstances.

 

Upon noticing a respondent of a report raising potential sexual harassment violations against the respondent, the Title IX Coordinator will discuss with the respondent the availability of counseling and may discuss the availability of other supportive measures discussed above, where the Title IX Coordinator deems appropriate.

 

Throughout any informal process, formal process, and/or appeals process, the Title IX Coordinator will continually reassess and discuss appropriate supportive measures with the parties to ensure they remain effective.

 

The Title IX Coordinator will document all discussions and offers of supportive measures to all parties, as well as whether the parties accepted or declined any offers.  If a party declines an offer of supportive measures, the Title IX Coordinator will document the party’s stated reason for declining the offer.

 

  1. Investigation Process for Formal Complaints

 

  1. Grounds for Dismissal of Formal Complaint

 

If upon review of the formal complaint the School determines that it does not have jurisdiction to pursue the complaint pursuant to Title IX, it will dismiss the complaint from investigation under this Policy. The School may also dismiss a formal complaint under this Policy or allegations therein if:

 

  • A complainant notifies the Title IX Coordinator in writing that the complainant would like to withdraw the formal complaint or any allegations therein;
  • The respondent is no longer enrolled or employed by the School, or;
  • Specific circumstances prevent the School from gathering evidence sufficient to reach a determination as to the formal complaint or allegations therein.

 

The School will send written notice of the dismissal and the reasons for dismissal simultaneously to all parties.

 

  1. Equitable Treatment

 

Complainants and respondents are eligible for Supportive Measures as defined within this Policy. The School will not impose disciplinary sanctions against a respondent pursuant to the Policy unless a determination of responsibility for sexual harassment has been made against the respondent.

 

The School will conduct an objective evaluation of all relevant evidence – including both evidence indicating that the respondent is responsible for the alleged Policy violation (“inculpatory evidence”) and evidence indicating that the respondent is not responsible for the alleged Policy violation (“exculpatory evidence”). The School will not require, allow, rely upon, evaluate, or otherwise use questions or evidence that constitute, or seek disclosure of, information protected by a legally recognized privilege (e.g., attorney client), unless the person holding such privilege has waived the privilege.

 

  1. Bias and Conflicts of Interest

 

Any individual designated by the School as a Title IX Coordinator, investigator, decision-maker, or any person designated by a School to facilitate an informal resolution process, must not have a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent. An individual’s decision that allegations warrant an investigation will not be considered evidence of bias.

 

The School will apply an objective (whether a reasonable person would believe bias exists), common sense approach to evaluating whether a particular person serving in a Title IX role is biased, and will exercise caution not to apply generalizations that might unreasonably conclude that bias exists. An individual’s current job title, professional qualifications, past experience, identity, or sex will not alone indicate bias.

 

  1. Presumption of Not Responsible

 

There is a presumption that a respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process.

 

  1. Timeframe

 

The School will attempt to complete most investigations within 30 days. The timeframe for formal investigations will begin upon filing of a complaint and will conclude upon submittal for adjudication. The School will attempt to accommodate the schedules of parties and witnesses, however, grievance resolution must be completed in a reasonably prompt timeframe, and must proceed to conclusion even in the absence of a party or witness.

 

  1. Sanctions and Remedies

 

If it is determined that a respondent violated the Policy, the School will institute sanctions reasonably calculated to stop the conduct, prevent its recurrence and remedy its effects.

Sanctions for respondents may include anything from a warning, up to and including disciplinary expulsion or termination. The School will also provide remedies to complainants found to have been subjected to conduct which violates the Policy. Remedies could include counseling, academic accommodations, academic support, and employment accommodations.

 

  1. Evidence

 

The standard of evidence under this Policy for review of formal complaints against students and employees is preponderance of the evidence.  The standard of evidence reflects the “degree of confidence” that a decision-maker has in the correctness of the factual conclusions reached.  Under the preponderance of the evidence standard, the decision-maker determines that a conclusion is based on facts that are more likely true than not. Where the decision-maker determines that the evidence in a case is “equal” or “level” or “in equipoise,” the preponderance of the evidence standard has not been met and results in a finding that the respondent is not responsible.

 

The School will apply the same standard of evidence for formal complaints against students as for formal complaints against employees and apply the same standard of evidence to all formal complaints of sexual harassment.

 

The burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility rests on the School and not on the parties.  The School will provide an equal opportunity for the parties to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence.

 

The School will not access, consider, disclose, 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’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, unless the School obtains that party’s voluntary, written consent.

 

The School will not restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence. A party’s communication with a witness or potential witness is considered part of a party’s right to meaningfully participate in furthering the party’s interests in the case, and not an “interference” with the investigation. However, where a party’s conduct toward a witness might constitute “tampering” (for instance, by attempting to alter or prevent a witness’s testimony), such conduct also is prohibited as retaliation.

 

The parties will have an equal opportunity to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint. The School will not consider or provide for inspection and review evidence that the School knows was illegally or unlawfully created or obtained. The School may impose on the parties and party advisors restrictions or require a non-disclosure agreement not to disseminate any of the evidence subject to inspection and review.

 

Prior to completion of the investigative report, the School will send to each party and the party’s advisor, if any, the evidence subject to inspection and review in an electronic format or a hard copy, and the parties will have 10 days to submit a written response, which the investigator will consider prior to completion of the investigative report.

 

  1. Emergency Removal/Administrative Leave

 

If, after receipt of a complaint and an individualized safety and risk assessment, the School determines that an immediate threat to the physical health or safety of any student or other individual arising from the allegations of sexual harassment justifies removal of a respondent, the School may remove the respondent on an emergency basis. A removed respondent will receive notice and an opportunity to challenge the decision immediately following the removal. Any emergency removal under this paragraph must also comply with ORC 3313.66, the IDEIA, and Section 504 of the Rehabilitation Act, as applicable and is not considered discipline for purposes of this Policy.  Threats must pose more than a generalized, hypothetical, or speculative risk to health and safety for emergency removal to be appropriate.

 

Non-student employees may be placed on administrative leave during the grievance process.  Such leave is not considered an emergency removal.

 

  1. Notice

 

The School will provide to all known parties written notice of:

 

  • The School’s grievance process;
  • Allegations of sexual harassment, including sufficient details known at the time and with sufficient time to prepare a response before any initial interview;
  • The School’s position that the respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the grievance process;
  • The parties right to have an advisor of their choice, who may be an attorney;
  • The parties right to inspect and review evidence;
  • The School’s prohibition on knowingly making false statements or knowingly submitting false information during the grievance process;
  • The date, time, location, participants, and purpose of all hearings, investigative interviews, or other meetings, with sufficient time for the party to prepare to participate, and;
  • Additional allegations not included in the original notice.

 

  1. Consolidation of Formal Complaints

 

The School may consolidate formal complaints as to allegations of sexual harassment against more than one respondent, or by more than one complainant against one or more respondents, or by one party against the other party, where the allegations of sexual harassment arise out of the same facts or circumstances. The same facts and circumstances means that the multiple complainants’ allegations are so intertwined that their allegations directly relate to all parties.

 

  1. Advisors

 

Parties will have equal opportunities to have others present during the grievance proceeding, including the opportunity to be accompanied by the advisor of their choice, who may be, but is not required to be, an attorney. The School will not limit the choice or presence of an advisor for complainant or respondent in any meeting or grievance proceeding. Advisors are required to abide by School restrictions regarding the extent to which they may participate in proceedings, and any restrictions will apply equally to both parties. If a party’s advisor refuses to comply with restrictions set by the School, the School may require the party to use a different advisor.

 

  1. Investigative Report

 

The School will prepare an investigative report that fairly summarizes relevant evidence and, at least 10 days prior to the time of determination regarding responsibility, send to each party and the party’s advisor, if any, the investigative report in an electronic format or a hard copy, for their review and written response. This 10 day period for the parties to provide written responses runs concurrently with the 10 day period in Article VII (A) for parties to provide any questions to the decision-maker. The report will not include a summary of evidence not considered to be relevant. If a party disagrees with an investigator’s determination about relevance, the party may argue relevance in their written response and/or to the decision-maker during adjudication of the complaint.

 

The investigative report may include recommended findings and conclusions, however, the decision-maker will objectively evaluate relevant evidence and will not defer to recommendations made by the investigator.  The investigative report may also include a credibility analysis, but such analysis cannot result in a determination regarding responsibility.  If the report involves multiple complainants, multiple respondents, or both, the School may issue a single investigative report.

 

  • Adjudication

 

  1. Introduction

 

Upon the conclusion of the investigation, the grievance procedure will move into the adjudication phase.  The Title IX Coordinator will appoint a person to serve as decision-maker for the complaint. The decision-maker will not be the Title IX Coordinator or the investigator. The decision-maker is under an obligation to objectively evaluate all relevant evidence and must therefore independently reach a determination regarding responsibility without giving deference to the investigative report. The decision-maker has the right and responsibility to ask questions and elicit information from parties and witnesses on the decision-maker’s own initiative to aid the decision-maker in obtaining relevant evidence both inculpatory and exculpatory, and the parties also have equal rights to present evidence to the decision-maker so the decision-maker has the benefit of perceiving each party’s unique perspectives about the evidence.

 

After the School sends the investigative report to the parties and before reaching a determination regarding responsibility, the decision-maker will afford each party the opportunity to submit written, relevant questions that the party wants asked of any party or witness.  The parties will provide any questions to the decision-maker within 10 days of issuance of the investigative report. This 10 day period runs concurrently with the 10 day period in Article VI (L) for the parties to provide written responses to the investigative report.  After the close of the period to submit questions, the decision-maker will forward relevant questions to each party/witness.  Each party/witness will have five (5) days to provide the decision-maker with answers, which the decision-maker will share with the parties.   The decision-maker will allow for additional, limited follow-up questions from each party. Questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant, unless 1) it is offered to prove that someone other than the respondent committed the conduct alleged by the complainant; or 2) it concerns specific incidents of the complainant’s prior sexual behavior with respect to the respondent and is offered to prove consent. The decision-maker will explain to the party proposing the questions any decision to exclude a question as not relevant.

 

  1. Relevance

 

During the adjudication process only relevant questions may be asked of a party or witness.  The following will be considered irrelevant:

 

  • Repetition of the same question;
  • Evidence that is duplicative of other evidence;
  • Information protected by a legally recognized privilege;
  • Questions and evidence about the complainant’s sexual predisposition or prior sexual behavior, 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;
    • 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, and;
  • Any party’s medical, psychological, and similar records, unless the party has given voluntary, written consent.

 

The School will not exclude relevant evidence because such relevant evidence may be unduly prejudicial, concern prior bad acts, or constitute character evidence, however, the decision-maker may objectively evaluate such evidence by analyzing whether that evidence warrants a high or low level of weight or credibility.

 

  1. Determination Regarding Responsibility

 

Within 10 days after the conclusion of the question and answer process described in Article VII (A) is complete, the decision-maker will issue a written determination of responsibility. The determination of responsibility will include:

 

  • Identification of the allegations potentially constituting sexual harassment
  • 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, if any;
  • Findings of fact supporting the determination;
  • Conclusions regarding the application of the Policy to the facts;
  • A statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility, any disciplinary sanctions the School imposes on the respondent, and whether remedies will be provided by the School to the complainant, and;
  • The School’s procedures and permissible bases for the complainant and respondent to appeal.

 

The determination will lay out the evidentiary basis for conclusions reached in the case. While the determination will indicate whether remedies will be provided, the nature of such remedies will not be included within the determination. The determination will be provided to the parties simultaneously. The determination becomes final only after the time period for appeal has expired or, if a party does file an appeal, after the appeal decision has been sent to the parties.

 

  1. Weighing Credibility

 

The decision-maker will evaluate all relevant evidence for weight or credibility. The degree to which any inaccuracy, inconsistency, or implausibility in a narrative provided by a party or witness should affect a determination regarding responsibility is a matter to be decided by the decision-maker.  Credibility determinations are not based solely on observing demeanor, but also are based on other factors (e.g., specific details, inherent plausibility, internal consistency, corroborative evidence).  Corroborating evidence is not required.

 

  1. Remedies

 

Where a determination of responsibility for sexual harassment is made, the School will provide remedies to a complainant designed to restore or preserve equal access to the School’s education program or activity. Such remedies may include the same individualized services provided as supportive measures; however, remedies need not be non-disciplinary or non-punitive and need not avoid burdening the respondent. The Title IX Coordinator is responsible for effective implementation of remedies. Where the final determination has indicated that remedies will be provided, the complainant can then communicate separately with the Title IX Coordinator or their designee to discuss what remedies are appropriately designed to preserve or restore the complainant’s equal access to education. Remedies for a complainant which do not affect the respondent must not be disclosed to the respondent.  Persons found to be responsible for violations of this Policy are subject to discipline, up to and including expulsion and/or termination of employment with the School.

 

  • Appeals

 

Complainants and respondents may appeal the decision-maker’s determination regarding responsibility, or the School’s dismissal of a formal complaint or any allegations therein by filing a notice of appeal with the Title IX Coordinator, including the grounds supporting the appeal, within five (5) days of issuance of the determination. The School will notify the other party in writing when an appeal is filed and implement appeal procedures equally for both parties. Both parties will have a reasonable, equal opportunity to submit a written statement in support of, or challenging, the outcome. The parties must file their written statement with the School within five (5) days of receipt of the notice of appeal.  The appeal officer will issue a written decision describing the result of the appeal and the rationale for the result within ten (10) days of the due date for the written statements of the parties and provide the written decision simultaneously to both parties.

 

The grounds for appeal are:

 

  • Procedural irregularity that affected the outcome of the matter[6];
  • New evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made that could affect the outcome of the matter, and;
  • The Title IX Coordinator, investigator(s), or decision-maker(s) had a conflict of interest or bias for or against complainants or respondents generally or the individual complainant or respondent that affected the outcome of the matter.

 

All grounds for appeal will be available to all parties.

 

The appeal officer will not be the same person as the decision-maker that reached the determination regarding responsibility or dismissal, the investigator, or the Title IX Coordinator.

 

  1. Informal Resolution

 

The School does not require as a condition of enrollment or continuing enrollment, or employment or continuing employment, or enjoyment of any other right, the waiver of the right to an investigation and adjudication of formal complaints of sexual harassment under this Policy.  Similarly, the School does not require the parties in a sexual harassment allegation to participate in an informal resolution process, as described below.

 

After the initiation of a formal complaint of sexual harassment, if all parties voluntarily consent in writing, the School will assist the parties in an informal resolution process.  An informal resolution process is available at any time prior to reaching a determination regarding responsibility in the grievance process, except in the cases of reports of sexual harassment of a student by a School employee.

 

Before initiating an informal process, the School will: (1) provide the parties a written notice; and (2) obtain the parties’ voluntary, written consent to the informal resolution process.  The written notice that the School will provide to the parties will disclose the allegations, the requirements of the informal resolution process (described below), and any consequences resulting from participating in the informal resolution process, including the records that will be maintained or could be shared.  The School’s informal process provides that, at any time prior to agreeing to a resolution, any party has a right to withdraw from the informal resolution process and resume the grievance process with respect to the formal complaint.

 

Upon initiation of the informal process, the Title IX Coordinator will designate an individual who will attempt to mediate the dispute through meetings with the parties.  The informal resolution process will be completed within five (5) days of such designation, except that the Title IX Coordinator may approve an adjustment to this timeframe with the consent of the parties. Although face-to-face mediation or a restorative justice conference may be suggested, parties will never be required to meet directly with one another as part of the informal resolution process.

 

When sexual harassment allegations can be resolved through informal resolution by mutual consent of the parties and on a basis that is acceptable to the Title IX Coordinator, the resolution process shall be considered finally decided and there will be no subsequent process or appeal.

 

  1. Record Keeping

 

The School will retain all records of each investigation instituted under this Policy for seven (7) years. Records will include all documents, recordings, or transcripts from investigations, hearings, appeals, and informal resolutions. The first date of the first record created by the School will begin the seven year retention period. Records will be maintained for all investigations including investigations that have been dismissed, completed, or otherwise resolved.

 

The School will also maintain and publish on the School’s website training materials of employees who serve as Title IX Coordinators, investigators, decision-makers, and persons who facilitate informal resolutions.

 

  1. Educational Programs

 

The Title IX Coordinator, investigators, decision-makers, and any person who facilitates an informal resolution process, will receive training on the definition of sexual harassment, the scope of the School’s education program or activity, how to conduct an investigation and grievance process including hearings, if any, appeals, and informal resolution processes, and how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias. This includes how to apply the definitions with respect to consent (or the absence or negation of consent) consistently, impartially, and in accordance with this Policy.

 

Investigators will receive training on issues of relevance to create an investigative report that fairly summarizes relevant evidence.

 

Decision-makers will receive training on any technology to be used at a live hearing, if any, and on issues of relevance of questions and evidence, including when questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant.

 

Any materials used to train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process, must not rely on sex stereotypes and must promote impartial investigations and adjudications of formal complaints of sexual harassment.

 

Training under this section is required on an as-needed basis. Training materials for training under this section will be made publicly available through the School’s website. Published training materials will be up-to-date and reflect the latest training provided.

[1] Note that the definitions in this section are different under a Title VII analysis.

[2] As defined in 20 U.S.C. 1092(f)(6)(A)(v).

[3] As defined in 34 U.S.C. 12291(a)(10).

[4] As defined in 34 U.S.C. 12291(a)(8).

[5] As defined in 34 U.S.C. 12291(a)(30).

[6] Procedural irregularity includes the School’s failure to objectively evaluate all relevant evidence, including inculpatory and exculpatory evidence. It also includes erroneous relevance determinations.