ɫ��ɫ

2. Notice of Non-Discrimination

ɫ��ɫ University adheres to all federal, state, and local civil rights laws and regulations prohibiting discrimination in private institutions of higher education. The University does not discriminate against any employee, applicant for employment, student, or applicant for admission on the basis of actual or perceived age (40 years and over in the employment context), caste, citizenship status, color, disability status, ethnicity, familial status, gender expression, gender identity, genetic information (including family medical history), marital status, national origin (including ancestry), pregnancy or related conditions, race, religion, sex, sexual orientation, veteran/military status, or any other protected category under applicable local, state, or federal law, including protections for those opposing discrimination or participating in any grievance process on campus, with the Equal Employment Opportunity Commission, or other human rights agencies.

This policy covers non-discrimination in both employment and access to educational opportunities. Therefore, any member of the ɫ��ɫ University community whose acts deny, deprive, or limit the educational, employment, residential, and/or social access, benefits, and/or opportunities of any member of the University community, guest, or visitor on the basis of actual or perceived membership in a protected class is in violation of this policy. The University will promptly and effectively address any such discrimination of which it has Knowledge/Notice^[1] using the resolution process in the Equal Opportunity, Harassment, and Non-Discrimination Procedures.

3. Civil Rights Team Contacts

The University has appointed the Civil Rights Team, comprised of the following individual(s), to coordinate the University’s compliance with federal, state, and local civil rights laws and ordinances:

For discrimination and harassment allegations, including sex discrimination and sex-based harassment allegations:

Becki Achey
Equal Opportunity and Title IX Coordinator
Equal Opportunity and Title IX
Office: 1309 Main Street (101)
Mailing address: 1200 Main Street

Bethlehem, PA 18018
610-625-7023
equalopportunity@moravian.edu
www.moravian.edu/titleix 

For concerns regarding disability status and/or the provision of reasonable accommodations under ADA:

Leah Naso
Dean for Compliance, Training and Development (ADA/504 Coordinator)
Compliance, Training and Development
Office: 1309 Main Street (201)
Mailing address: 1200 Main Street

Bethlehem, PA 18018
610-861-1529
compliance@moravian.edu
www.moravian.edu/disabilityandaccommodations/grievance-procedures

For concerns specific to gender and equity in athletics:

Rebecca May
Associate Director of Athletics (Deputy Title IX Coordinator for Athletics)
Office: 109 Johnston Hall
Mailing address: ɫ��ɫ University
1200 Main Street
Bethlehem, PA 18018
Phone: 610.625.7791
mayr@moravian.edu 

Collectively, these individuals are responsible for providing comprehensive nondiscrimination education and training; coordinating the University’s timely, thorough, and fair response, investigation, and resolution of all alleged prohibited conduct under this Policy; and monitoring the effectiveness of this Policy and related procedures to ensure an education and employment environment free from discrimination, harassment, and retaliation.

The University recognizes that allegations under this Policy may include multiple forms of discrimination and harassment as well as violations of other University policies; may involve various combinations of students, employees, and other members of the University community; and may require the simultaneous attention of multiple University departments. Accordingly, all University departments will share information, combine efforts, and otherwise collaborate, to the maximum extent permitted by law and consistent with other applicable University policies, to provide uniform, consistent, efficient, and effective responses to alleged discrimination, harassment, or retaliation.

4. External Contact Information

Concerns about the University’s application of this Policy and compliance with certain federal civil rights laws may also be addressed to:

(OCR)

U.S. Department of Education

400 Maryland Avenue, SW

Washington, D.C.  20202-1100

Customer Service Hotline #: (800) 421-3481

Facsimile: (202) 453-6012

TDD#: (877) 521-2172

OCR@ed.gov

Office for Civil Rights (OCR)

Philadelphia Office

The Wanamaker Building, 100 Penn Square East, Suite 515

Philadelphia, PA, 19107-3323

OCR.Philadelphia@ed.gov

For Complaints involving employee-on-employee conduct:

(EEOC)

EEOC Regional Office

801 Market Street, Suite 1300

Philadelphia, PA, 19107-3127

(PHRC)

Harrisburg Regional Office

333 Market Street, 8th Floor

Harrisburg, PA 17101-2210

5. Mandated Reporting and Confidential Employees

All University faculty and employees (including student-employees), other than those deemed Confidential Employees, are Mandated Reporters and are expected to promptly report all known details of actual or suspected discrimination, harassment, retaliation and/or Other Prohibited Conduct to the Coordinator immediately, although there are some limited exceptions. Supportive measures may be offered as the result of such disclosures without formal University action.

Complainants may want to carefully consider whether they share personally identifiable details with Mandated Reporters, as those details must be shared with the Coordinator.

If a Complainant expects formal action in response to their allegations, reporting to any Mandated Reporter can connect them with resources to report alleged crimes and/or Policy violations, and these employees will immediately pass Notice to the Coordinator (and/or the ɫ��ɫ University Police Department (“MUPD”), if desired by the Complainant or required by law), who will act when an incident is reported to them.

The following sections describe the reporting options for a Complainant or third party (including parents/guardians when appropriate):

A. Confidential Employees

There are three categories of Confidential Employees: 1) those with confidentiality bestowed by law or professional ethics, such as lawyers, medical professionals, clergy, and mental health counselors; 2) those whom the University has specifically designated as Confidential Resources for purposes of providing support and resources to the Complainant; and 3) those conducting human subjects research as part of a study approved by the University’s Institutional Review Board (IRB). For those in category 1), above, to be able to respect confidentiality, they must be in a confidential relationship with the person reporting, such that they are within the scope of their licensure, professional ethics, or confidential role at the time of receiving the Notice. These individuals will maintain confidentiality except in extreme cases of immediacy of threat or danger or abuse of a minor, elder, or individual with a disability, or when required to disclose by law or court order.

To enable Complainants to access support and resources without filing a Complaint, the University has designated specific employees as Confidential Resources. Those designated by the University as Confidential Resources are not required to report actual or suspected discrimination, harassment, or retaliation in a way that identifies the Parties. They will, however, provide the Complainant with the Coordinator’s contact information and offer options and resources without any obligation to inform an outside agency or the University official unless a Complainant has requested the information be shared.

If a Complainant would like the details of an incident to be kept confidential, the Complainant may speak with the following Confidential Employees:

Confidential Employees

• On-campus licensed professional counselors and staff

• On-campus health service providers and staff

• On-campus members of the clergy/chaplains working within the scope of their licensure or ordination

Designated Confidential Resources

• On-campus Victim Advocates (when contacted anonymously)

University counselors (for students) and/or the Employee Assistance Program (for employees) are available to help free of charge and may be consulted on an emergency basis during normal business hours.

Failure of a Mandated Reporter, as described above in this section, to report an incident of discrimination, harassment, or retaliation of which they become aware is a violation of this Policy, and the individual may be subject to disciplinary action for failure to comply/failure to report. This also includes situations when a harasser is a Mandated Reporter. Such individuals are obligated to report their own misconduct, and failure to do so is a chargeable offense under this Policy.

A Mandated Reporter who is themselves a target of discrimination, harassment, or other misconduct under this Policy is not required to report their own experience, though they are, of course, encouraged to do so.

In addition, Complainants may speak with individuals unaffiliated with the University without concern that this Policy will require them to disclose information to the University without permission:

• Licensed professional counselors and other medical providers

• Local rape crisis counselors

• Domestic violence resources

• Local or state assistance agencies

• Clergy/Chaplains

• Attorneys

6. Disability-based Grievances and Complaints

Allegations of discrimination on the basis of an actual or perceived disability, including instances in which the provision of reasonable accommodations has a discriminatory effect, will be resolved under the procedures in this Policy. Individuals with a qualified disability requesting reasonable accommodations during the University’s Resolution Process in this Policy should contact the Coordinator at equalopportunity@moravian.edu.

Grievances related to disability status and/or provision of accommodations are addressed using the procedures outlined in the University’s Grievance Procedure for Reasonable Accommodation under the Americans with Disabilities Act.

7. Scope

This Policy is only applicable to alleged incidents that occur on or after August 1, 2024. For alleged incidents of sex discrimination or sexual harassment occurring prior to August 1, 2024, the policy and procedures in place at the time of the alleged incident apply. The prior policies and procedures are available at /policy/harassment-discrimination-2020version.

This Policy applies to all employees and students, as well as other individuals participating in or attempting to participate in the University’s program or activities, including education and employment.

This Policy prohibits all forms of discrimination on the basis of the protected characteristic(s), and may be applied to incidents, to patterns, and/or to the institutional culture/climate, all of which may be addressed in accordance with this Policy.

8. Jurisdiction

This Policy applies to the University’s Education Programs and Activities (defined as including locations, events, or circumstances in which the University exercises substantial control over both the Respondent and the context in which the conduct occurred), circumstances in which the University has disciplinary authority, and to misconduct occurring within any building owned or controlled by a the University-recognized student organization. A Complainant does not have to be a member of the University community to file a Complaint, subject to the discretion of the Coordinator.

This Policy may also apply to the effects of off-campus misconduct that limit or deny a person’s access to the University’s education program or activities. The University may also extend jurisdiction to off-campus and/or to online conduct when the conduct affects a substantial University interest.

A substantial University interest includes:

1. Any action that constitutes a criminal offense as defined by law. This includes, but is not limited to, single or repeat violations of any local, state, or federal law.

2. Any situation in which it is determined that the Respondent poses an imminent and serious threat to the health or safety of any student, employee, or other individual.

3. Any situation that significantly impinges upon the rights, property, or achievements of others, significantly breaches the peace, and/or causes social disorder.

4. Any situation that substantially interferes with the University’s educational interests or mission.

For disciplinary action to be issued under this Policy, the Respondent must be a University student or employee at the time of the alleged incident. If the Respondent is unknown or is not a member of the University community, the Coordinator will offer to assist the Complainant in identifying appropriate University and local resources and support options, and will implement appropriate supportive measures and/or remedial actions (e.g., trespassing a person from campus). The University can also assist in contacting local or institutional law enforcement if the individual would like to file a police report about criminal conduct.

All vendors serving the University through third-party contracts are subject to the policies and procedures of their employers and to these policies and procedures to which their employer has agreed to be bound by their contracts.

When a party is participating in a dual enrollment/early college program, the University will coordinate with the party’s home institution to determine jurisdiction and coordinate providing supportive measures and responding to the complaint under the appropriate policy and procedures based on the allegations and identities of the Parties.

When the Respondent is enrolled in or employed by another institution, the Coordinator can assist the Complainant in contacting the appropriate individual at that institution, as it may be possible to pursue action under that institution’s policies.

Similarly, the Coordinator may be able to assist and support a student or employee Complainant who experiences discrimination in an externship, study abroad program, or other environment external to the University where sexual harassment or nondiscrimination policies and procedures of the facilitating or host organization may give the Complainant recourse. If there are effects of that external conduct that impact a student or employee’s work or educational environment, those effects can often be addressed remedially by the Coordinator if brought to their attention.

10. Supportive Measures

The University will offer and implement appropriate and reasonable supportive measures to the Parties upon Notice of alleged discrimination, harassment, and/or retaliation. Supportive measures are non-disciplinary, non-punitive, individualized services offered as appropriate and reasonably available. They are offered, without fee or charge to the Parties, to restore or preserve access to the University’s education program or activity, including measures designed to protect the safety of all Parties and/or the University’s educational environment and/or to deter discrimination, harassment, and/or retaliation.

The Coordinator promptly makes supportive measures available to the Parties upon receiving Notice/Knowledge or a Complaint. At the time that supportive measures are offered, if a Complaint has not been filed, the University will inform the Complainant, in writing, that they may file a Complaint with the University either at that time or in the future. The Coordinator will work with a party to ensure that their wishes are considered with respect to any planned and implemented supportive measures.

The University will maintain the confidentiality of the supportive measures, provided that confidentiality does not impair the University’s ability to provide those supportive measures. The University will act to ensure as minimal an academic/occupational impact on the Parties as possible. The University will implement measures in a way that does not unreasonably burden any party.

These actions may include, but are not limited to:

• Referral to the Advocates for Survivors of Sexual Violence (24/7 support hotline 484-764-9242)

• Referral to counseling, medical, and/or other healthcare services

• Referral to the Employee Assistance Program

• Referral to community-based service providers

• Visa and immigration assistance

• Student financial aid counseling

• Education to the campus community or community subgroup(s)

• Altering campus housing assignment(s)

• Altering work arrangements for employees or student-employees

• Safety planning

• Providing campus safety escorts, to the extent available

• Providing transportation assistance

• Implementing contact limitations between the parties

• Academic support, extensions of deadlines, or other course/program-related adjustments

• Trespass, Persona Non Grata (PNG), or other orders issued by MUPD

• Timely warnings

• Class schedule modifications, withdrawals, or leaves of absence

• Increased security and monitoring of certain areas of the campus

• Any other actions deemed appropriate by the University

Violations of contact limitations or other restrictions may be referred to appropriate student or employee conduct processes for enforcement or added as collateral misconduct allegations to an ongoing Complaint under this Policy.

The Parties are provided with a timely opportunity to seek modification or reversal of the University’s decision to provide, deny, modify, or terminate supportive measures applicable to them. A request to do so should be made in writing to the Coordinator. An impartial employee other than the employee who implemented the supportive measures, who has authority to modify or reverse the decision, will determine whether to provide, deny, modify, or terminate the supportive measures if they are inconsistent with the Title IX regulatory definition of supportive measures. The University will also provide the Parties with the opportunity to seek additional modification or termination of supportive measures applicable to them if circumstances materially change. The University typically renders decisions on supportive measures within seven (7) calendar days of receiving a request and provides a written determination to the impacted party(ies) and the Coordinator.

11. Online Harassment and Misconduct

University policies are written and interpreted broadly to include online manifestations of any of the behaviors prohibited by this Policy, when those behaviors occur in or have an effect on the University’s education program and activities or employment, or when they involve the use of the University networks, technology, or equipment.

Although the University may not control websites, social media, and other venues through which harassing communications are made, when such communications are reported to the University, it will take steps to address and mitigate the effects. These means may include use of the Resolution Process to address off-campus conduct whose effects contribute to limiting or denying a person access to the University’s education program or activity.

12. Inclusion Related to Gender Identity/Expression

The University strives to ensure that all individuals are safe, included, and respected in their education and employment environments. As such, discrimination and harassment on the basis of gender identity or expression are not tolerated by the University. If a member of the University community believes they have been subjected to discrimination under this Policy, they should follow the appropriate reporting process described herein.

Bias incidents may also be reported to University’s Campus Climate Education Team (CCET) for non-punitive response options including supportive measures, respectful conversation, remedial actions, education, Alternative Resolution, and/or other Informal Resolution mechanisms, often in collaboration with the Coordinator.

In upholding the principles of inclusive excellence, the University supports the full integration and healthy development of those who are gender diverse and seeks to eliminate any stigma related to gender identity and expression. Concepts like misgendering and deadnaming may not be familiar to all but understanding them is essential. Engaging in misgendering or deadnaming may be considered a form of bullying, outing, or otherwise harassing an individual and may constitute a violation of this Policy if the effect is greater than de minimis harm.

This Policy should be interpreted consistent with the goals of maximizing the inclusion of intersex, transgender, transitioning, agender, nonbinary, and gender-diverse students and employees, including:

• Maintaining the privacy of all individuals consistent with law

• Ensuring all students have equal access to educational programming, activities, and facilities, including restrooms and locker rooms

• Ensuring all employees have equal access to employment opportunities and work, service, or health-related facilities

• Providing professional development for employees and education for students on topics related to gender inclusion

• Encouraging all students and employees to respect the pronoun usage and identities of all members of the University community 

The University uses a number of interventions to address concerns that are raised related to gender-based harassment or discrimination, including problem-solving, intervention, confrontation, investigation, and enforcement of policies. When conflicts arise between the right of members of the community to be free from gender-identity discrimination and those exercising their right to religious freedom, the University will try to balance rights and interests to find mutually agreeable outcomes or compromises. When that is not possible, the University will offer remedial solutions or enforce policies while respecting the rights of all members of its community.

12. Prohibited Conduct

Students and employees are entitled to an educational and employment environment that is free of discrimination, harassment, and retaliation. This Policy is not meant to inhibit or prohibit educational content or discussions inside or outside of the classroom that include germane, but controversial or sensitive, subject matters protected by academic freedom and University policies.

The sections below describe the specific forms of legally prohibited discrimination, harassment, and retaliation that are prohibited under this Policy. When speech or conduct is protected by academic freedom and/or University policy, it will not be considered a violation of this Policy, though supportive measures will be offered to those impacted.

All offense definitions below encompass actual and/or attempted offenses.

Any of the following offenses can be charged as, or combined as, pattern offenses, in which case the Notice of Investigation and Allegation (NOIA) will clearly indicate that both individual incidents and a pattern of conduct are being investigated. A pattern may exist and be charged when there is a potential substantial similarity to incidents where the proof of one could make it more likely that the other(s) occurred, and vice-versa. Patterns may exist based on target selection, similarity of offense, or other factors. Where a pattern is found, it can be the basis to enhance sanctions, accordingly.

Violation of any other University policies may constitute discrimination or harassment when motivated by actual or perceived protected characteristic(s), and the result is a limitation or denial of employment or educational access, benefits, or opportunities.

A. Discrimination

Discrimination is different treatment with respect to a person’s employment or participation in an education program or activity based, in whole or in part, upon the person’s actual or perceived protected characteristic. Discrimination also includes allegations of a failure to provide reasonable accommodations as required by law or policy, such as for disability and/or religion.

Discrimination can take two primary forms:

1) Disparate Treatment Discrimination:

Any intentional differential treatment of a person or persons that is based on a person’s actual or perceived protected characteristic and that:

• Excludes a person from participation in;
• Denies the person benefits of; or
• Otherwise adversely affects a term or condition of a person’s participation in a University program or activity.

2) Disparate Impact Discrimination:

Disparate impact occurs when policies or practices that appear to be neutral unintentionally result in a disproportionate impact on a protected group or person that:

• Excludes an individual from participation in;
• Denies the individual benefits of; or
• Otherwise adversely affects a term or condition of an individual’s participation in a University program or activity. 

The University reserves the right to address offensive conduct and/or harassment that (1) does not rise to the level of creating a hostile environment, or (2) that is of a generic nature and not based on a protected characteristic. Addressing such conduct will not result in the imposition of discipline under this Policy, but may be addressed through the University’s Campus Climate Education Team (CCET). CCET offers opportunities for supportive measures, respectful conversation, remedial actions, education, Alternative Resolution, and/or other Informal Resolution mechanisms, often in collaboration with the Coordinator.

B. Discriminatory Harassment

• unwelcome conduct on the basis of actual or perceived protected characteristic(s), that
• based on the totality of the circumstances,
• is subjectively and objectively offensive, and
• is so severe or pervasive,
• that it limits or denies a person’s ability to participate in or benefit from the University’s education program or activity

C. Sex-based Harassment (Applicable under Title IX, Title VII, and the Fair Housing Act)

Sex-based Harassment is a form of sex discrimination and means sexual harassment and other harassment on the basis of sex,^[2] including sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity; sexual assault, dating violence, domestic violence, and stalking.

1) Quid Pro Quo:

• an employee agent, or other person authorized by the University,
• to provide an aid, benefit, or service under the University’s education program or activity,
• explicitly or impliedly conditioning the provision of such aid, benefit, or service,
• on a person’s participation in unwelcome sexual conduct.

2) Hostile Environment Harassment:

• unwelcome sex-based conduct, that
• based on the totality of the circumstances,
• is subjectively and objectively offensive, and
• is so severe or pervasive,
• that it limits or denies a person’s ability to participate in or benefit from the University’s education program or activity

The University reserves the right to address offensive conduct and/or harassment that (1) does not rise to the level of creating a hostile environment, or (2) that is of a generic nature and not based on a protected characteristic. Addressing such conduct will not result in the imposition of discipline under this Policy, but may be addressed through the University’s Campus Climate Education Team (CCET). CCET offers opportunities for supportive measures, respectful conversation, remedial actions, education, Alternative Resolution, and/or other Informal Resolution mechanisms, often in collaboration with the Coordinator.

3) Sexual Assault: ^[3]

a.  Rape:

• Penetration, no matter how slight,
• of the vagina or anus of the Complainant,
• with any body part of the Respondent or by Respondent’s use of an object, or
• oral penetration of the Complainant by a sex organ of Respondent,
• without the consent of the Complainant.

b.  Fondling:

• The touching of the private body parts of the Complainant (buttocks, groin, breasts),
• by the Respondent for the purpose of sexual gratification,
• without the consent of the Complainant,
• including instances where the Complainant is incapable of giving consent because of their age or because of a temporary or permanent mental incapacity.

c.  Incest:

• Sexual intercourse,
• between persons who are related to each other,
• within the degrees wherein marriage is prohibited by PA law.

d.  Statutory Rape:

• Sexual intercourse,
• with a person who is under the statutory age of consent of 18.

4) Dating Violence, defined as:

• violence,
• on the basis of sex,
• committed by a person,
• who is in or has been in a social relationship of a romantic or intimate nature with the Complainant.

The existence of such a relationship shall be determined based on the Complainant’s statement and with consideration of the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship. For the purposes of this definition—

1. Dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse.
2. Dating violence does not include acts covered under the definition of domestic violence.

5) Domestic Violence,^[4] defined as:

• violence,
• on the basis of sex,
• committed by a current or former spouse or intimate partner of the Complainant,
• by a person with whom the Complainant shares a child in common, or
• by a person who is cohabitating with, or has cohabitated with, the Complainant as a spouse or intimate partner, or
• by a person similarly situated to a spouse of the Complainant under the domestic or family violence laws of PA, or
• by any other person against an adult or youth Complainant who is protected from that person’s acts under the domestic or family violence laws of PA.

6) Stalking, defined as:

• engaging in a course of conduct,
• on the basis of sex,
• directed at the Complainant, that
  • would cause a reasonable person to fear for the person’s safety, or
  • the safety of others; or
  • Suffer substantial emotional distress.

For the purposes of this definition:

• Course of conduct means two or more acts, including, but not limited to, acts in which the Respondent directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates to or about a person, or interferes with a person’s property.
• Reasonable person means a reasonable person under similar circumstances and with similar identities to the Complainant.
• Substantial emotional distress means significant mental suffering or anguish that may but does not necessarily require medical or other professional treatment or counseling.

Sexual Misconduct           

7) Sexual Exploitation:^[5]

• A person taking non-consensual or abusive sexual advantage of another, that does not constitute Sex-based Harassment as defined above,
• for their own benefit or for the benefit of anyone other than the person being exploited. 

Examples of Sexual Exploitation include, but are not limited to:

• Sexual voyeurism (such as observing or allowing others to observe a person undressing or using the bathroom or engaging in sexual acts, without the consent of the person being observed)
• Knowingly exposing one’s genitals in non-consensual circumstances or inducing another to expose their genitals
• Knowingly exposing another to pornography without their consent
• Invasion of sexual privacy (e.g., doxxing)
• Knowingly making an unwelcome disclosure of (or threatening to disclose) a person’s sexual orientation, gender identity, or gender expression
• Taking pictures, video, or audio recording of another person in a sexual act, or in any other sexually related activity when there is a reasonable expectation of privacy during the activity, without the consent of all involved in the activity; or exceeding the boundaries of consent (such as allowing another person to hide in a closet and observe sexual activity, or disseminating sexual pictures without the photographed person’s consent), including the making or posting of non-consensual pornography
• Prostituting another person
• Engaging in sexual activity with another person while knowingly infected with human immunodeficiency virus (HIV) or a sexually transmitted disease (STD) or infection (STI), without informing the other person of the virus, disease, or infection
• Causing or attempting to cause the incapacitation of another person (through alcohol, drugs, or any other means) for the purpose of compromising that person’s ability to give consent to sexual activity, or for the purpose of making that person vulnerable to non-consensual sexual activity
• Misappropriation of another person’s identity on apps, websites, or other venues designed for dating or sexual connections (e.g., spoofing)
• Forcing a person to take an action against that person’s will by threatening to show, post, or share information, video, audio, or an image that depicts the person’s nudity or sexual activity
• Knowingly soliciting a minor for sexual activity
• Engaging in sex trafficking
• Knowingly creating, possessing, or disseminating child sexual abuse images or recordings
• Creating or disseminating synthetic media, including images, videos, or audio representations of individuals doing or saying sexually-related things that never happened, or placing identifiable real people in fictitious pornographic or nude situations without their consent (i.e., Deepfakes)

D. Other Prohibited Conduct

1)  Bullying:^[6]

Bullying (including cyberbullying occurring online), defined as a repeated and/or severe behavior that likely intimidates or intentionally harms or controls another person physically or emotionally, and which is not protected by freedom of expression, as defined further in the University's Bullying Policy.

2)  Threatening Behaviors:

Threatening behaviors, defined as written, verbal or physical conduct that causes a reasonable expectation of injury to the health or safety of any person or damage to any property.

3)  Hazing:

Hazing, defined as acts likely to cause physical or psychological harm or social ostracism to any person within the ɫ��ɫ University community, when related to the admission, initiation, pledging, joining, or any other group-affiliation activity, as defined further in the University's Hazing Policy.

For the purposes of this definition:

• It is not necessary that a person’s initiation or continued membership is contingent upon participation in the activity, or that the activity was sanctioned or approved by the student group or student organization, for an allegation of hazing to be upheld.
• It shall not constitute an excuse or defense to a hazing allegation that the participants took part voluntarily, gave consent to the conduct, voluntarily assumed the risks or hardship of the activity, or that no injury was suffered or sustained.
• The actions of alumni, active, new, and/or prospective members of a student group or student organization may be considered hazing.
• Hazing is not confined to the student group or student organization with which the person subjected to the hazing is associated.

4) Invasion of Privacy:

Invasion of Privacy, defined as including, but not limited to, using any device to make or stream an audio, photographic or video recording or any person without their prior knowledge or consent, when such recording is of information or images take from or of a person at a time or place in which they a reasonable expectation of privacy.

5) Retaliation:

• Adverse action, including intimidation, threats, coercion, or discrimination,
• against any person,
• by the University, a student, employee, or a person authorized by the University to provide aid, benefit, or service under the University’s education program or activity,
• for the purpose of interfering with any right or privilege secured by law or Policy, or
• because the person has engaged in protected activity, including reporting information, making a Complaint, testifying, assisting, or participating or refusing to participate in any manner in an investigation or Resolution Process under the Equal Opportunity, Harassment, And Non-Discrimination Procedures, including an Informal Resolution process, or in any other appropriate steps taken by the University to promptly and effectively end any sex discrimination in its education program or activity, prevent its recurrence, and remedy its effects.

The exercise of rights protected under the First Amendment does not constitute retaliation. It is also not retaliation for the University to pursue Policy violations against those who make materially false statements in bad faith in the course of a resolution under the Equal Opportunity, Harassment, and Non-Discrimination Policy. However, the determination of responsibility, by itself, is not sufficient to conclude that any party has made a materially false statement in bad faith.

6)  Unauthorized Disclosure:^[7]

• Distributing or otherwise publicizing materials created or produced during an investigation or Resolution Process except as required by law or as expressly permitted by the University; or
• publicly disclosing institutional work product that contains personally identifiable information without authorization or consent.

7)  Failure to Comply/Process Interference

• Intentional failure to comply with the reasonable directives of Coordinator in the performance of their official duties, including with the terms of a no contact order
• Intentional failure to comply with emergency removal or interim suspension terms
• Intentional failure to comply with sanctions
• Intentional failure to adhere to the terms of an Informal Resolution agreement
• Intentional failure to comply with mandated reporting duties as defined in this Policy
• Intentional interference with the Resolution Process, including but not limited to:
  • Destruction of or concealing of evidence
  • Actual or attempted solicitation of knowingly false testimony or providing false testimony or evidence
  • Intimidating or bribing a witness or party

Violation of any other ɫ��ɫ University policies may constitute a Civil Rights Offense when a violation is motivated by an actual or perceived protected characteristic, and the result is a discriminatory limitation or denial of employment or educational access, benefits, or opportunities. Sanctions for the above-listed Civil Rights Offenses range from reprimand through expulsion/termination. 

E.  Sanction Ranges

The following sanction ranges apply for Prohibited Conduct under this Policy. Sanctions can be assigned outside of the specified ranges based on aggravating or mitigating circumstances, or the Respondent’s cumulative conduct record.

• Discrimination: warning through expulsion or termination.

• Discriminatory Harassment: warning through expulsion or termination.

• Quid Pro Quo Harassment: warning through expulsion or termination.

• Hostile Environment Harassment: warning through expulsion or termination.

• Rape: suspension through expulsion or termination.

• Fondling: warning through suspension or termination.

• Incest: warning through suspension or termination.

• Statutory Rape: warning through suspension or termination.

• Stalking: suspension through expulsion or termination.

• Dating/Domestic Violence: suspension through expulsion or termination.

• Sexual Exploitation: warning through expulsion or termination.

• Bullying: warning through expulsion or termination.

• Threatening Behaviors: warning through expulsion or termination.

• Hazing: warning through expulsion or termination.

• Invasion of Privacy: warning through expulsion or termination.

• Retaliation: warning through expulsion or termination.

• Unauthorized Disclosure: warning through expulsion or termination.

• Failure to Comply/Process Interference: warning through expulsion or termination. 

F.  Consent, Force, and Incapacitation

As used in this Policy, the following definitions and understandings apply:

1) Consent

• Consent is defined as:
• knowing, and
• voluntary, and
• clear permission
• by word or action
• to engage in sexual activity.^[8]

Individuals may perceive and experience the same interaction in different ways. Therefore, it is the responsibility of each party to determine that the other has consented before engaging in the activity.

If consent is not clearly provided prior to engaging in the activity, consent may be ratified by word or action at some point during the interaction or thereafter, but clear communication from the outset is strongly encouraged.

For consent to be valid, there must be a clear expression in words or actions that the other individual consented to that specific sexual conduct. Consent is evaluated from the perspective of what a reasonable person would conclude are mutually understandable words or actions. Reasonable reciprocation can establish consent. For example, if someone kisses you, you can kiss them back (if you want to) without the need to explicitly obtain their consent to be kissed back.

Consent can also be withdrawn once given, as long as the withdrawal is reasonably and clearly communicated. If consent is withdrawn, sexual activity should cease within a reasonably immediate time.

Silence or the absence of resistance alone should not be interpreted as consent. Consent is not demonstrated by the absence of resistance. While resistance is not required or necessary, it is a clear demonstration of non-consent.

Consent to some sexual contact (such as kissing or fondling) cannot be assumed to be consent for other sexual activity (such as intercourse). A current or previous intimate relationship is not sufficient to constitute consent. If an individual expresses conditions on their willingness to consent (e.g., use of a condom) or limitations on the scope of their consent, those conditions and limitations must be respected. If a sexual partner shares the clear expectation for the use of a condom, or to avoid internal ejaculation, and those expectations are not honored, the failure to use a condom, removing a condom (e.g. stealthing), or internal ejaculation can be considered acts of sexual assault.

Proof of consent or non-consent is not a burden placed on either party involved in a Complaint. Instead, the burden remains on the University to determine whether its Policy has been violated. The existence of consent is based on the totality of the circumstances evaluated from the perspective of a reasonable person in the same or similar circumstances, including the context in which the alleged misconduct occurred and any similar and previous patterns that may be evidenced.

Going beyond the boundaries of consent is prohibited. Thus, unless a sexual partner has consented to slapping, hitting, hair pulling, strangulation, or other physical roughness during otherwise consensual sex, those acts may constitute dating violence or sexual assault.^[9] 

2) Force

Force is the use of physical violence and/or physical imposition to gain sexual access. Sexual activity that is forced is, by definition, non-consensual, but non-consensual sexual activity is not necessarily forced. Force is conduct that, if sufficiently severe, can negate consent.

Force also includes threats, intimidation (implied threats), and coercion that is intended to overcome resistance or produce consent (e.g., “Have sex with me or I’ll hit you,” which elicits the response, “Okay, don’t hit me. I’ll do what you want.”).

Coercion is unreasonable pressure for sexual activity. Coercive conduct, if sufficiently severe, can render a person’s consent ineffective, because it is not voluntary. When someone makes clear that they do not want to engage in sexual activity, that they want to stop, or that they do not want to go past a certain point of sexual interaction, continued pressure beyond that point can be coercive. Coercion is evaluated based on the frequency, intensity, isolation, and duration of the pressure involved. 

3) Incapacitation

Incapacitation is a state where a person is incapable of giving consent. An incapacitated person cannot make rational, reasonable decisions because they lack the capacity to give knowing/informed consent (e.g., to understand the “who, what, when, where, why, and how” of their sexual interaction). A person cannot consent if they are unable to understand what is happening or are disoriented, helpless, asleep, or unconscious for any reason, including because of alcohol or other drug consumption.

This Policy also covers a person whose incapacity results from a temporary or permanent physical or mental health condition, involuntary physical restraint, and/or the consumption of incapacitating substances.

Incapacitation is determined through consideration of all relevant indicators of a person’s state and is not synonymous with intoxication, impairment, blackout, and/or being drunk.

If the Respondent neither knew nor should have known the Complainant to be physically or mentally incapacitated, the Respondent is not in violation of this Policy. “Should have known” is an objective, reasonable person standard that assumes that a reasonable person is both sober and exercising sound judgment.

G. Unethical Relationships

There are inherent risks in any romantic or sexual relationship between persons in unequal positions. As such, the University’s Employee Handbook sets expectations related to Student-Employee Relationships (Section 10.13) and the Faculty Handbook’s Statement on Professional Ethics (Section 2.4.1.1) provides guidance related to faculty-student relationships. Student employees, including but not limited to Resident Advisors (RAs), may also be subject to similar employment expectations related to relationships with students in their charge.

13. Standard of Proof

 The University uses the preponderance of the evidence standard of proof when determining whether a Policy violation occurred. This means that the University 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).

14. Reports/Complaints of Discrimination, Harassment, and/or Retaliation

A Report provides notice to the University of an allegation or concern about discrimination,  harassment, or retaliation and provides an opportunity for the Coordinator to provide information, resources, and supportive measures. A Complaint provides notice to the University that the Complainant would like to initiate an investigation or other appropriate resolution procedures. A Complainant or individual may initially make a report and may decide at a later time to make a Complaint. Reports or Complaints of discrimination, harassment, and/or retaliation may be made using any of the following options:

1. File a Complaint with, or give verbal Notice directly to, the Coordinator or to any member of the Civil Rights Team. Such a Complaint may be made at any time (including during non-business hours) by using the telephone number, email address, or by mail to the office of the Coordinator. Reports made to other University departments, such as MUPD, Student Life, Residence Life (inclusive of student staff), will be forwarded to the Coordinator under this Policy.   

2. Submit online Notice at. While individuals may submit a Notice anonymously, an Anonymous Notice typically limits the University’s ability to investigate, respond, and provide remedies, depending on what information is shared. Measures intended to protect the community or redress or mitigate harm may be enacted. It also may not be possible to provide supportive measures to Complainants who are the subject of anonymous Notice.

Reporting carries no obligation to initiate a Complaint, and in most situations, the University is able to respect a Complainant’s request to not initiate a resolution process. However, there may be circumstances, such as pattern behavior, allegations of severe misconduct, or a compelling threat to health and/or safety, where the University may need to initiate a resolution process. If a Complainant does not wish to file a Complaint, the University will maintain the privacy of information to the extent possible. The Complainant should not fear a loss of confidentiality by giving Notice that allows the University to discuss and/or provide supportive measures, in most circumstances.

15. Time Limits on Reporting

There is no time limitation on providing Notice/Complaints to the Coordinator. However, if the Respondent is no longer subject to the University’s jurisdiction and/or significant time has passed, the ability to investigate, respond, and/or provide remedies may be more limited or even impossible.

Acting on Notice/Complaints significantly impacted by the passage of time (including, but not limited to, the rescission or revision of Policy) is at the Coordinator’s discretion; they may document allegations for future reference, offer supportive measures and/or remedies, and/or engage in informal or formal action, as appropriate.

16. False Allegations and Evidence

Deliberately false and/or malicious accusations under this Policy are a serious offense and may be subject to appropriate disciplinary action. This does not include allegations that are made in good faith but are ultimately shown to be erroneous or do not result in a determination of a Policy violation.

Additionally, witnesses and Parties who knowingly provide false evidence, tamper with or destroy evidence, or deliberately mislead an official conducting an investigation or resolution process may be subject to discipline under appropriate University policies.

17. Confidentiality/Privacy

The University makes every effort to preserve the Parties’ privacy. The University will not share the identity of any individual who has made a Complaint of discrimination, harassment, or retaliation; any Complainant; any individual who has been reported to be the perpetrator of discrimination, harassment, or retaliation; any Respondent; or any witness, except as permitted by, or to fulfill the purposes, of applicable laws and regulations (e.g., Title IX), Family Educational Rights and Privacy Act (FERPA) and its implementing regulations, or as required by law; including any investigation, or resolution proceeding arising under these policies and procedures.^[10],[11] Additional information regarding confidentiality and privacy can be found in Appendix D.

Unauthorized Disclosure of Information

Parties and Advisors are prohibited from disclosing information obtained by the University through the Resolution Process, to the extent that information is the work product of the University (meaning it has been produced, compiled, or written by the University for purposes of its investigation and resolution of a Complaint), without authorization. It is also a violation of this Policy to publicly disclose institutional work product that contains a party or witness’s personally identifiable information without authorization or consent. Violation of this Policy is subject to appropriate sanctions.

18. Emergency Removal/Interim Actions/Leaves

The University can act to remove a student Respondent accused of Sex Discrimination or Sex-based Harassment from its education program or activities, partially or entirely, on an emergency basis when an individualized safety and risk analysis has determined that an imminent and serious threat to the health or safety of any student or other individual justifies removal. This risk analysis is performed by the Coordinator and may be done in conjunction with the University’s Threat Assessment Team (TAT) using its standard objective violence risk assessment procedures. Employees are subject to existing procedures for interim actions and leaves.

19. Federal Timely Warning Obligations

The University must issue timely warnings for reported incidents that pose a serious or continuing threat of bodily harm or danger to members of the University community.  The University will ensure that a Complainant’s name and other identifying information are not disclosed, while still providing enough information for community members to make safety decisions in light of the potential danger.

20. Amnesty

The University community encourages the reporting of misconduct and crimes by Complainants and witnesses. Sometimes, Complainants or witnesses are hesitant to give Notice to University officials or participate in resolution processes because they fear that they themselves may be in violation of certain policies, such as underage drinking or use of illicit drugs at the time of the incident. Respondents may hesitate to be forthcoming during the process for the same reasons.

It is in the best interests of the University community that Complainants choose to give Notice of misconduct to University officials, that witnesses come forward to share what they know, and that all Parties be forthcoming during the process.

To encourage reporting and participation in the process, the University offers Parties and witnesses amnesty from minor policy violations, such as underage alcohol consumption or the use of illicit drugs, related to the incident. Granting amnesty is a discretionary decision made by the University, and amnesty does not apply to more serious allegations, such as physical abuse of another or illicit drug distribution.

A. Students

 The University maintains an amnesty policy for students in addition to witnesses who offer help to others in need. The amnesty policy is housed in the Student Code of Conduct. 

B. Employees 

Sometimes, employees are hesitant to report discrimination, harassment, or retaliation they have experienced for fear of getting in trouble themselves. The University may, at its discretion, offer employee Complainants amnesty from such policy violations (typically more minor policy violations) related to the incident.

21. Preservation of Evidence

The preservation of evidence is critical to potential criminal prosecution and to obtaining restraining/protective orders, and it is particularly time sensitive. The University will inform the Complainant of the importance of preserving evidence by taking actions such as the following:

Sexual Assault

• Seek forensic medical assistance at the nearest hospital, ideally within 120 hours of the incident (sooner is better).
• Avoid urinating, showering, bathing, washing hands or face, or douching, if possible, but evidence may still be collected even if you do.
• If oral sexual contact took place, refrain from smoking, eating, drinking, or brushing teeth.
• If clothes are changed, place soiled clothes in a paper bag (plastic destroys evidence) or a secure evidence container (if provided one by law enforcement)
• Seeking medical treatment can be essential, even if it is not for the purposes of collecting forensic evidence.

Stalking/Dating Violence/Domestic Violence/Sex-Based Harassment

• Evidence in the form of text and voice messages will be lost in most cases if the Complainant changes their phone number.
  • Make a secondary recording of any voice messages and/or save the audio files to a cloud server.
  • Take screenshots and/or a video recording of any text messages or other electronic messages (e.g., Instagram, Snapchat, Facebook).
• Save copies of email and social media correspondence, including notifications related to account access alerts.
• Take time stamped photographs of any physical evidence, including notes, gifts, etc., in place when possible.
• Save copies of any messages, including those showing any request for no further contact.
• Obtain copies of call logs showing the specific phone number being used rather than a saved contact name if possible.

During the initial meeting between the Complainant and Coordinator, the importance of taking these actions will be discussed, if timely.

22. Federal Statistical Reporting Obligations

Certain institutional officials (those deemed Campus Security Authorities) have a duty to report the following for federal (Clery Act) and state (Uniform Crime Reporting Act) statistical reporting purposes:

1. All “primary crimes,” which include criminal homicide, sexual assault, robbery, aggravated assault, burglary, motor vehicle theft, and arson

2. Hate crimes, which include any bias-motivated primary crime as well as any bias-motivated larceny or theft, simple assault, intimidation, or destruction/damage/vandalism of property

3. Violence Against Women Act (VAWA-based crimes), which include sexual assault, domestic violence, dating violence, and stalking^[12]

4. Arrests and referrals for disciplinary action for weapons law violations, liquor law violations, and drug law violations

All personally identifiable information is kept private, but statistical information regarding the type of incident and its general location (on- or off-campus or in the surrounding area, but no addresses are given) must be shared with MUPD for publication in the Annual Security Report and daily campus crime log. Campus Security Authorities include student affairs/student conduct staff, campus law enforcement/public safety/security, local police, coaches, athletic directors, residence life staff, student activities staff, human resources staff, advisors to student organizations, and any other official with significant responsibility for student and campus activities and designated by the University. Additional information regarding Clery reporting can be found at www.moravian.edu/campuspolice/reporting.

23. Independence and Conflicts of Interest

The Coordinator manages the Civil Rights Team and acts with independence and authority, free from bias and conflicts of interest. The Coordinator oversees all resolutions under this Policy and these procedures. The members of the Resolution Pool are vetted and trained to ensure they are not biased for or against any party in a specific Complaint, or for or against Complainants and/or Respondents, generally.

To raise any concern involving bias, conflict of interest, misconduct, or discrimination by the Coordinator, contact Leah M. Naso, Dean for Compliance, Training and Development. Concerns of bias, misconduct, discrimination, or a potential conflict of interest by any other Resolution Pool member should be raised with the Coordinator.

24. Revision of this Policy

This Policy succeeds previous policies addressing discrimination, harassment, sexual misconduct, and/or retaliation, though previous policies and procedures remain in force for incidents occurring before August 1, 2024. The Coordinator reviews and updates these policies and procedures regularly. The University reserves the right to make changes to this Policy as necessary, and once those changes are posted online, they are in effect.

If government laws or regulations change or court decisions alter the requirements in a way that impacts this Policy, this Policy will be construed to comply with the most recent government laws, regulations, or court holdings.

This Policy does not create legally enforceable protections beyond the protections of the state and federal laws that frame such policies and codes, generally.

This Policy is effective August 1, 2024.

Resolution Process for Alleged Violations of the Equal Opportunity, Harassment, and Non-Discrimination Policy

(Hereinafter the "Resolution Process")

1. Overview

The University will act on any Notice, Complaint, or Knowledge of a potential violation of the Equal Opportunity, Harassment, and Non-Discrimination Policy (“the Policy”) that the Coordinator or any other Mandated Reporter receives by applying the Resolution Process below.

The procedures below apply to all allegations of discrimination on the basis of an actual or perceived protected characteristic, harassment, retaliation, or Other Prohibited Conduct involving students, employees, or third parties.

2. Notice/Complaint

Upon receipt of Notice, a Complaint, or Knowledge of an alleged Policy violation, the Coordinator will initiate a prompt initial evaluation to determine the University’s next steps. The Coordinator will contact the Complainant/source of the Notice to offer supportive measures, provide information regarding resolution options, and determine how they wish to proceed.

3. Collateral Misconduct

Collateral misconduct is defined to include potential violations of other University policies not incorporated into the Policy that occur in conjunction with alleged violations of the Policy, or that arise through the course of the investigation, for which it makes sense to provide one resolution for all allegations. Thus, the collateral allegations may be charged along with potential violations of the Policy, to be resolved jointly under these Procedures. In such circumstances, the Coordinator may consult with the University officials who typically oversee such conduct (e.g., human resources, student accountability and conflict transformation, academic affairs) to solicit their input as needed on what charges should be filed, but the exercise of collateral charges under these procedures is within the discretion of the Coordinator. All other allegations of misconduct unrelated to incidents covered by the Policy will typically be addressed separately through procedures described in the student, employee, and/or faculty handbooks.

4. Initial Evaluation

The Coordinator conducts an initial evaluation typically within seven (7) calendar days of receiving Notice/Complaint/Knowledge of alleged misconduct.^[13] The initial evaluation typically includes:

• Assessing whether the reported conduct may reasonably constitute a violation of the Policy,

  • If the conduct may not reasonably constitute a violation of the Policy, the matter is typically dismissed from this process, consistent with the dismissal provision in these procedures. It may then be referred to another process, if applicable.

• Determining whether the University has jurisdiction over the reported conduct, as defined in the Policy.

  • If the conduct is not within the University’s jurisdiction, the matter is typically dismissed from this process, consistent with the dismissal provision in these procedures. If applicable, the conduct will be referred to the appropriate University office for resolution.

• Offering and coordinating supportive measures for the Complainant.

• Offering and coordinating supportive measures for the Respondent, as applicable.

• Notifying the Complainant, or the person who reported the allegation(s), of the available resolution options, including a supportive and remedial response, an Informal Resolution option, or the Resolution Process described below.

• Determining whether the Complainant wishes to initiate a Complaint.

• Notifying the Respondent of the available resolution options, including a supportive and remedial response, an Informal Resolution option, or the Resolution Process described below, if a Complaint is made.

Helping a Complainant to Understand Resolution Options

If the Complainant indicates they wish to initiate a Complaint (in a manner that can reasonably be construed as reflecting intent to make a Complaint), the Coordinator will help to facilitate the Complaint, which will include:

• Working with the Complainant to determine whether the Complainant wishes to pursue one of three resolution options:

  • a supportive and remedial response, and/or

  • Informal Resolution, or

  • the Resolution Process described below.

The Coordinator will seek to abide by the wishes of the Complainant but may have to take an alternative approach depending on their analysis of the situation.

If the Complainant elects for the Resolution Process below, and the Coordinator has determined the Policy applies and that the University has jurisdiction, they will provide the Parties with a Notice of Investigation and Allegation(s) and will initiate an investigation consistent with these Procedures.

If any Party indicates (either verbally or in writing) that they want to pursue an Informal Resolution option, the Coordinator will assess whether the matter is suitable for Informal Resolution and refer the matter accordingly.

If the Complainant indicates (either verbally or in writing) that they do not want any action taken, no Resolution Process will be initiated (unless deemed necessary by the Coordinator), though the Complainant can elect to initiate one later, if desired.

Coordinator Authority to Initiate a Complaint

If the Complainant does not wish to file a Complaint, the Coordinator, who has ultimate discretion as to whether a Complaint is initiated, will offer supportive measures and determine whether to initiate a Complaint themselves. To make this determination, the Coordinator will evaluate the circumstances to determine if there is a serious and imminent threat to someone's safety or if the University cannot ensure equal access without initiating a Complaint. The Coordinator will consider the following non-exhaustive factors to determine whether to file a Complaint:

• The Complainant’s request not to initiate a Complaint.

• The Complainant’s reasonable safety concerns regarding initiating a Complaint.

• The risk that additional acts of discrimination would occur if a Complaint is not initiated.

• The severity of the alleged discrimination, including whether the discrimination, if established, would require the removal of a Respondent from campus or imposition of another disciplinary sanction to end the discrimination and prevent its recurrence.

• The age and relationship of the Parties, including whether the Respondent is a University employee.

• The scope of the alleged discrimination, including information suggesting a pattern, ongoing discrimination, or discrimination alleged to have impacted multiple individuals.

• The availability of evidence to assist a Decision-maker in determining whether discrimination occurred.

• Whether the University could end the alleged discrimination and prevent its recurrence without initiating its resolution process.

If deemed necessary, the Coordinator may consult with appropriate University employees, and/or work with the Threat Assessment Team to conduct a violence risk assessment^[14] to aid their determination whether to initiate a Complaint.

When the Coordinator initiates a Complaint, they do not become the Complainant. The Complainant is the person who experienced the alleged conduct that could constitute a violation of this Policy.

5. Dismissal

The University may dismiss a Complaint if, at any time during the investigation or Resolution Process, one or more of the following grounds are met:

1. The University is unable to identify the Respondent after taking reasonable steps to do so

2. The University no longer enrolls or employs the Respondent

3. A Complainant voluntarily withdraws any or all of the allegations in the Complaint, and the Coordinator declines to initiate a Complaint

4. The University determines the conduct alleged in the Complaint would not constitute a Policy violation, if proven

In addition to the other members of the Civil Rights Team, as authorized by the Coordinator, a Decision-maker can recommend dismissal to the Coordinator if they believe the grounds are met. A Complainant who decides to withdraw a Complaint may later request to reinstate or refile it.

Upon any dismissal, the University will promptly send the Complainant written notification of the dismissal and the rationale for doing so. If the dismissal occurs after the Respondent has been made aware of the allegations, the University will also notify the Respondent of the dismissal.

This dismissal decision is appealable by any party.

6. Appeal of Dismissal

The Complainant may appeal a dismissal of their Complaint. The Respondent may also appeal the dismissal of the Complaint if dismissal occurs after the Respondent has been made aware of the allegations. All dismissal appeal requests must be filed within three (3) calendar days of the notification of the dismissal.

The Coordinator will notify the Parties of any appeal of the dismissal. If, however, the Complainant appeals, but the Respondent was not notified of the Complaint, the Coordinator must then provide the Respondent with a NOIA and will notify the Respondent of the Complainant’s appeal with an opportunity to respond.

Throughout the dismissal appeal process, the University will:

• Implement dismissal appeal procedures equally for the Parties.

• Assign a trained Dismissal Appeal Officer who did not take part in an investigation of the allegations or dismissal of the Complaint.

• Provide the Parties a reasonable and equal opportunity to make a statement in support of, or challenging, the dismissal.

• Notify the Parties of the result of the appeal and the rationale for the result.

The grounds for dismissal appeals are limited to:

1. Procedural irregularity that would change the outcome.

2. New evidence that would change the outcome and that was not reasonably available when the dismissal was decided.

3. The Coordinator, Investigator, or Decision-maker had a conflict of interest or bias for or against complainants or respondents generally or the individual Complainant or Respondent that would change the outcome.

The appeal should specify at least one of the grounds above and provide any reasons or supporting evidence for why the ground is met. Upon receipt of a written dismissal appeal request from one or more Parties, the Coordinator will share the petition with all other Parties and provide three (3) calendar days for other Parties and the Coordinator to respond to the request. At the conclusion of the response period, the Coordinator will forward the appeal, as well as any response provided by the other Parties and/or the Coordinator to the Dismissal Appeal Officer for consideration.

If the Request for Appeal does not provide information that meets the grounds in this Policy, the Dismissal Appeal Officer will deny the request, and the Parties, their Advisors, and the Coordinator will be notified in writing of the denial and the rationale.

If any of the asserted grounds in the appeal satisfy the grounds described in this Policy, then the Dismissal Appeal Officer will notify all Parties and their Advisors, and the Coordinator, of their decision and rationale in writing. The effect will be to reinstate the Complaint.

In most circumstances, appeals are confined to a review of the written documentation or record of the original determination and pertinent documentation regarding the specific appeal grounds. The Dismissal Appeal Officer has seven (7) calendar days to review and decide on the appeal, though extensions can be granted at the discretion of the Coordinator, and the Parties will be notified of any extension.

Appeal decisions are deferential to the original determination, making changes only if there is a compelling justification to do so.

The Dismissal Appeal Officer may consult with the Coordinator and/or legal counsel on questions of procedure or rationale for clarification, if needed. The Coordinator will maintain documentation of all such consultation.

7. Emergency Removal/Interim Suspension of a Student

The University may remove on an emergency basis a student accused of Sex Discrimination or Sex-based Harassment upon receipt of Notice/Knowledge, a Complaint, or at any time during the Resolution Process. Prior to an emergency removal, the University will conduct an individualized risk assessment and may remove the student if that assessment determines that an imminent and serious threat to the health or safety of a Complainant or any students, employees, or other persons arising from the allegations of sex discrimination justifies such action. Students accused of other forms of discrimination (not sex) are subject to interim suspension, which can be imposed for safety reasons.

When an emergency removal or interim suspension is imposed, wholly or partially, the affected student will be notified of the action, which will include a written rationale, and the option to challenge the emergency removal or interim suspension within two (2) calendar days of the notification. Upon receipt of a challenge, the Coordinator will meet with the student (and their Advisor, if desired) as soon as reasonably possible thereafter to allow them to show cause why the removal/action should not be implemented or should be modified.

This meeting is not a hearing on the merits of the allegation(s), but rather is an administrative process intended to determine solely whether the emergency removal or interim suspension is appropriate, should be modified, or lifted. When this meeting is not requested within two (2) calendar days, objections to the emergency removal or interim suspension will be deemed waived. A student can later request a meeting to show why they are no longer an imminent and serious threat because conditions related to imminence or seriousness have changed. A Complainant and their Advisor may be permitted to participate in this meeting if the Coordinator determines it is equitable for them to do so.

The Respondent may provide information, including expert reports, witness statements, communications, or other documentation for consideration prior to or during the meeting. When applicable, a Complainant may provide information to the Coordinator for review.

An emergency removal or interim suspension may be affirmed, modified, or lifted as a result of a requested review or as new information becomes available. The Coordinator will communicate the final decision in writing, typically within three (3) calendar days of the review meeting.

8. Placing an Employee on Leave

When the Respondent is an employee, existing provisions for interim action outlined in the Employee Handbook are typically applicable instead of the above emergency removal process. When a student employee is accused of misconduct in the course of their employment, any expectations specific to their role and/or department will apply.

9. Counter-Complaints

The University is obligated to ensure that the Resolution Process is not abused for retaliatory purposes. Although the University permits the filing of counter-complaints, the Coordinator will use an initial evaluation, as described above, to assess whether the allegations in the counter-complaint are made in good faith. When counter-complaints are not made in good faith, they will not be permitted. They will be considered potentially retaliatory and may constitute a violation of the Policy.

Counter-complaints determined to have been reported in good faith will be processed using the Resolution Process below. At the Coordinator’s discretion, investigation of such claims may take place concurrently or after resolution of the underlying initial Complaint.

10. Advisors in the Resolution Process

A. Who Can Serve as an Advisor?

The Parties may each have an Advisor (friend, mentor, family member, attorney, or any other individual a party chooses) present with them for all meetings, interviews ,and hearings within the Resolution Process, including intake. The Parties may select whomever they wish to serve as their Advisor as long as the Advisor is eligible and available.^[15]

The Coordinator will offer to assign a trained Advisor to any party if the party chooses. If the Parties choose an Advisor from the pool available from the University, the University will have trained the Advisor and familiarized them with the University’s Resolution Process.

The University cannot guarantee equal Advisory rights, meaning that if one party selects an Advisor who is an attorney, but the other party does not, or cannot afford an attorney, the University is not obligated to provide an attorney to advise that party.

A party may elect to change Advisors during the process and is not obligated to use the same Advisor throughout. Parties are expected to provide the Coordinator with timely notification if they change Advisors. If a party changes Advisors, consent to share information with the previous Advisor is assumed to be terminated, and a release for the new Advisor must be submitted.

The University generally permits Parties to have an Advisor as well as a support person. Upon special request to the Coordinator, a Party may be permitted more than one Advisor. The decision to grant this request is at the Coordinator’s sole discretion and will be granted equitably to all Parties.

If a party requests that all communication be made through their attorney Advisor instead of to the party, the University will agree to copy both the party and their Advisor on all communications.

Advisors appointed by the institution cannot be Confidential Employees, and although they will not be asked to disclose details of their interactions with their advisees to institutional officials or Decision-makers absent an emergency, they are still reminded of their Mandated Reporter responsibilities.

B.  Advisor’s Role in the Resolution Process

Advisors should help the Parties to prepare for each meeting and are expected to advise ethically, with integrity, and in good faith. Advisors may not provide testimony or speak on behalf of their advisee unless given specific permission to do so.

The Parties are expected to ask and respond to questions on their own behalf throughout the Resolution Process. Although the Advisor generally may not speak on behalf of their advisee, the Advisor may consult with their advisee, either privately as needed, or by conferring or passing notes during any Resolution Process meeting or interview. For longer or more involved discussions, the Parties and their Advisors should ask for breaks to allow for private consultation.

C.  Records Shared with Advisors

Advisors are entitled to the same opportunity as their advisee to access relevant evidence, and/or the same written investigation report that accurately summarizes this evidence.

Advisors are expected to maintain the confidentiality of the records the University shares with them, per Section 17 of the Policy addressing Confidentiality. Advisors may not disclose any University work product or evidence the University obtained solely through the Resolution Process for any purpose not explicitly authorized by the University. The University may restrict the role of any Advisor who does not respect the sensitive nature of the process or who fails to abide by the University’s confidentiality expectations. 

D.  Advisor Expectations

The University generally expects an Advisor to adjust their schedule to allow them to attend the University meetings/interviews/hearings when planned, but the University may change scheduled meetings/interviews/hearings to accommodate an Advisor’s inability to attend, if doing so does not cause an unreasonable delay.

The University may also make reasonable provisions to allow an Advisor who cannot be present in person to attend a meeting/interview/hearing by telephone, video conferencing, or other similar technologies.

All Advisors are subject to the same University policies and procedures, whether they are attorneys or not, and whether they are selected by a party or appointed by the University. Advisors are expected to advise without disrupting proceedings.

E.  Advisor Policy Violations

Any Advisor who oversteps their role as defined by the Policy, who shares information or evidence in a manner inconsistent with the Policy, or who refuses to advise their Party without disruption to the process will be warned. If the Advisor continues to disrupt or otherwise fails to respect the limits of the Advisor role, the meeting/interview/hearing may be ended, or other appropriate measures implemented, including the University requiring the party to use a different Advisor or providing a different University-appointed Advisor. Subsequently, the Coordinator will determine how to address the Advisor’s non-compliance and future role.

11. Resolution Options Overview

This Resolution Process, consisting of Informal Resolution or Hearing Resolution, is the University’s chosen approach to addressing complaints of sex-based harassment and sexual exploitation. The process considers the Parties’ preferences but is ultimately determined at the Coordinator’s discretion.

For complaints involving harassment, discrimination, and/or retaliation based on a protected characteristic, including sex discrimination as defined in the Policy, Parties may mutually agree to forgo the Hearing Resolution Process outlined below and instead utilize the Administrative (non-hearing) Resolution Process outlined in Appendix C.

Resolution proceedings are confidential. All individuals present at any time during the Resolution Process are expected to maintain the confidentiality of the proceedings in accordance with this Policy.

A. Informal Resolution

To initiate Informal Resolution, a Complainant or Respondent may make a request to the Coordinator at any time prior to a final determination, or the Coordinator may offer the option to the Parties, in writing. The University will obtain voluntary, written confirmation that all Parties wish to resolve the matter through Informal Resolution before proceeding and will not pressure the Parties to participate in Informal Resolution.

 Before initiation of an Informal Resolution process, the University will provide the Parties with a NOIA that explains:

• The allegations.

• The requirements of the Informal Resolution process.

• That, prior to agreeing to a resolution, any party has the right to withdraw from the Informal Resolution process and to initiate or resume the University’s Resolution Process.

• That the Parties’ agreement to a resolution at the conclusion of the Informal Resolution Process will preclude the Parties from initiating or resuming the Resolution Process arising from the same allegations.

• The potential terms that may be requested or offered in an Informal Resolution agreement, including notification that an Informal Resolution agreement is binding only on the Parties.

• What information the University will maintain, and whether and how it could disclose such information for use in its Resolution Process.

The University offers four categories of Informal Resolution:

1. Supportive Resolution. When the Coordinator can resolve the matter informally by providing supportive measures (only) designed to remedy the situation.

2. Educational Conversation. When the Coordinator can resolve the matter informally by having a conversation with the Respondent to discuss the Complainant’s concerns and institutional expectations or can accompany the Complainant in their desire to confront the conduct.

3. Accepted Responsibility. When the Respondent is willing to accept responsibility for violating Policy and is willing to agree to actions that will be enforced similarly to sanctions, and the Complainant(s) and the University are agreeable to the resolution terms.

4. Alternative Resolution. When the Parties agree to resolve the matter through an alternative resolution mechanism (which could include, but is not limited to, mediation, shuttle negotiation, restorative practices, facilitated dialogue, etc.), as described below.

The individual facilitating an Informal Resolution must be trained and cannot be the Investigator, Decision-maker, or Appeal Decision-maker.

It is not necessary to pursue Informal Resolution first in order to pursue a Hearing Resolution Process. Any party participating in Informal Resolution can withdraw from the Informal Resolution Process at any time and initiate or resume the Hearing Resolution Process.

The Parties may agree, as a condition of engaging in Informal Resolution, on what statements made or evidence shared during the Informal Resolution process will/will not be considered in the Hearing Process, should Informal Resolution not be successful. The Parties may modify this agreement prior to engaging in the Hearing Process, provided the modifications are agreed to by all Parties.

If an investigation is already underway, the Coordinator has discretion to determine if an investigation will be paused, if it will be limited, or if it will continue during the Informal Resolution process.

Categories of Informal Resolution

1. Supportive Resolution

The Coordinator will meet with the Complainant to determine reasonable supportive measures that are designed to restore or preserve the Complainant’s access to the University’s education program and activity. Such measures can be modified as the Complainant’s needs evolve over time or circumstances change. If the Respondent has received the NOIA, the Coordinator may also provide reasonable supportive measures for the Respondent as deemed appropriate. This option is available when the Complainant does not want to engage the other resolution options, and the Coordinator does not initiate a Complaint. 

2. Educational Conversation

The Complainant(s) may request that the Coordinator address their allegations by meeting (with or without the Complainant) with the Respondent(s) to discuss concerning behavior and University policies and expectations. Such a conversation is non-disciplinary and non-punitive. Respondent(s) are not required to attend such meetings, nor are they compelled to provide any information if they attend. The conversation will be documented as the Informal Resolution for the matter, if it takes place. In light of this conversation, or the Respondent’s decision not to attend, the Coordinator may also implement remedial actions to ensure that policies and expectations are clear and to minimize the risk of the recurrence of any behaviors that may not align with the Policy.

3.  Accepted Responsibility^[16] 

The Respondent may accept responsibility for any or all of the alleged Policy violations at any point during the Resolution Process. If the Respondent indicates an intent to accept responsibility for all alleged Policy violations, the ongoing process will be paused, and the Coordinator will determine whether Informal Resolution is an option.

If Informal Resolution is available, the Coordinator will determine whether all Parties and the University are able to agree on responsibility, restrictions, sanctions, restorative measures, and/or remedies. If so, the Coordinator implements the accepted finding that the Respondent is in violation of the University Policy, implements agreed-upon restrictions and remedies, and determines the appropriate responses in coordination with other appropriate administrator(s), as necessary.

This resolution is not subject to appeal once all Parties indicate their written agreement to all resolution terms. When the Parties cannot agree on all terms of resolution, the Resolution Process will either commence or resume.

When a resolution is reached, the appropriate sanction(s) or responsive actions are promptly implemented to effectively stop the discrimination or harassment, prevent its recurrence, and remedy the effects of the discriminatory conduct, both for the Complainant and the community.

4.  Alternative Resolution 

The University offers a variety of alternative resolution mechanisms to best meet the specific needs of the Parties and the nature of the allegations. Alternative resolution may involve agreement to pursue individual or community remedies, including targeted or broad-based educational programming or training; supported direct conversation or interaction with the Respondent(s); indirect action by the Coordinator or other appropriate University officials; and other forms of resolution that can be tailored to the needs of the Parties. Some alternative resolution mechanisms will result in an agreed-upon outcome, while others are resolved through dialogue. All Parties must consent to the use of an alternative resolution approach, and the Parties may, but are not required to, have direct or indirect contact during an alternative resolution process.

The Coordinator may consider the following factors to assess whether alternative resolution is appropriate, or which form of alternative resolution may be most successful for the Parties:

• The Parties’ amenability to alternative resolution

• Likelihood of potential resolution, considering any power dynamics between the Parties

• The nature and severity of the alleged misconduct

• The Parties’ motivation to participate

• Civility of the Parties

• Results of a violence risk assessment/ongoing risk analysis

• Respondent’s disciplinary history

• Whether an emergency removal or other interim action is needed

• Skill of the alternative resolution facilitator with this type of Complaint

• Complaint complexity

• Emotional investment/capability of the Parties

• Rationality of the Parties

• Goals of the Parties

• Adequate resources to invest in alternative resolution (e.g., time, staff) 

The Coordinator has the authority to determine whether alternative resolution is available or successful, to facilitate a resolution that is acceptable to all Parties, and/or to accept the Parties’ proposed resolution, usually through their Advisors, often including terms of confidentiality, release, and non-disparagement.

Parties do not have the authority to stipulate restrictions or obligations for individuals or groups that are not involved in the alternative resolution process. The Coordinator will determine whether additional individual or community remedies are necessary to meet the University’s compliance obligations in addition to the alternative resolution.

The Coordinator maintains records of any resolution that is reached and will provide notification to the Parties of what information is maintained. Failure to abide by the resolution agreement may result in appropriate responsive/disciplinary actions (e.g., dissolution of the agreement and resumption of the Resolution Process, referral to the conduct process for failure to comply, application of the enforcement terms of the agreement). The results of Complaints resolved by alternative resolution are not appealable.

If an Informal Resolution option is not available or selected, the University will commence or continue an investigation and subsequent Resolution Process to determine whether the Policy has been violated.

B. Hearing Resolution Process (see Section 22 below)

12. Resolution Process Pool

The Resolution Process relies on a pool of administrators (“the Pool”) to carry out the process.^[17] 

A. Pool Member Roles 

Members of the Pool are trained annually, and can serve in the following roles, at the discretion of the Coordinator:

• Appropriate intake of and initial guidance pertaining to Complaints

• Advisor to Parties

• Informal Resolution Facilitator

• Perform or assist with initial evaluation

• Investigator

• Hearing Facilitator

• Decision-maker for challenges to emergency removal and supportive measures

• Decision-maker

• Appeal of Dismissal Decision-maker

• Appeal Decision-maker

B. Pool Member Appointment 

The Coordinator, in consultation with senior administrators as necessary, appoints the Pool, which acts with independence and impartiality. Although members of the Pool are typically trained in a variety of skill sets and can rotate amongst the different roles listed above in different Complaints, the University can also designate permanent roles for individuals in the Pool. 

C. Training (see Appendix G for details of training for Pool Members)

13. Notice of Investigation and Allegations (NOIA)

Prior to an investigation, the Coordinator will provide the Parties with a detailed written NOIA. Amendments and updates to the NOIA may be made as the investigation progresses and more information becomes available regarding the addition or dismissal of various allegations. For climate/culture investigations that do not have an identifiable Respondent, the NOIA will be sent to the department/office/program head for the area/program being investigated.

The NOIA typically includes:

• A meaningful summary of all allegations

• The identity of the involved Parties (if known)

• The precise misconduct being alleged

• The date and location of the alleged incident(s) (if known)

• The specific policies/offenses implicated

• A description of, link to, or copy of the applicable procedures

• A statement that the Parties are entitled to an equal opportunity to access the relevant and not otherwise impermissible evidence

• The name(s) of the Investigator(s), along with a process to notify the Coordinator of any conflict of interest that the Investigator(s) may have in advance of the interview process

• A statement that the University presumes the Respondent is not responsible for the reported misconduct unless and until the evidence supports a different determination

• A statement that determinations of responsibility are made at the conclusion of the process and that the Parties will be given an opportunity during the review and comment period to inspect and review all relevant evidence

• A statement that retaliation is prohibited

• Information about the confidentiality of the process, including that the Parties and their Advisors (if applicable) may not share the University work product obtained through the Resolution Process

• A statement that the Parties may have an Advisor of their choice who may accompany them through all steps of the Resolution Process

• A statement informing the Parties that the Policy prohibits knowingly making false statements, including knowingly submitting false information during the Resolution Process

• Detail on how a party may request disability accommodations or other support assistance during the Resolution Process

• A link to the University’s VAWA Brochure

• An instruction to preserve any evidence that is directly related to the allegations

Notification will be made in writing and may be delivered by one or more of the following methods: in person, mailed to the Parties’ local or permanent address(es) as indicated in official University records, or emailed to the Parties’ University-issued email or designated accounts. Once mailed, emailed, and/or received in person, the notification will be presumptively delivered.

14. Resolution Timeline

The University will make a good faith effort to complete the Resolution Process within 60-90 calendar days, including any appeals, which the Coordinator can extend as necessary for appropriate cause. The Parties will receive regular updates on the progress of the Resolution Process, as well as notification and a rationale for any extensions or delays, and an estimate of how much additional time will be needed to complete the process.

Investigations are completed expeditiously, normally within sixty (60) calendar days, though some investigations may take longer, depending on issues such as the nature, extent, and complexity of the allegations, witness availability, law enforcement involvement, and other factors.

If a party or witness chooses not to participate in the Resolution Process or becomes unresponsive, the University reserves the right to continue without their participation to ensure a prompt resolution. Non-participatory or unresponsive Parties retain the rights outlined in this Policy and the opportunity to participate in the Resolution Process.

The University may undertake a short delay in its investigation (several days to a few weeks) if circumstances require. Such circumstances include, but are not limited to, a request from law enforcement to temporarily delay the investigation, the need for language assistance, the absence of Parties and/or witnesses, and/or health conditions. The University will promptly resume its Resolution Process as soon as feasible. During such a delay, the University will implement and maintain supportive measures for the Parties as deemed appropriate.

The University action(s) or processes are not typically altered or precluded on the grounds that civil or criminal charges involving the underlying incident(s) have been filed or that criminal charges have been dismissed or reduced.

The University will make a good faith effort to complete the Resolution Process as promptly as circumstances permit and will regularly communicate with the Parties to update them on the progress and timing of the process.

15. Ensuring Impartiality

 Any individual materially involved in the administration of the Resolution Process, including the Coordinator, Investigator(s), and Decision-maker(s), may neither have nor demonstrate a conflict of interest or bias for a party generally, or for a specific Complainant or Respondent.

The Coordinator will vet the assigned Investigator(s), Decision-maker(s), and Appeal Decision-makers for impartiality by ensuring there are no actual or apparent conflicts of interest or disqualifying biases. At any time during the Resolution Process, the Parties may raise a concern regarding bias or conflict of interest, and the Coordinator will determine whether the concern is reasonable and supportable. If so, another Pool member will be assigned, and the impact of the bias or conflict, if any, will be remedied. If the source of the conflict of interest or bias is the Coordinator, concerns should be raised with Leah M. Naso, Dean for Compliance, Training and Development.

The Resolution Process involves an objective evaluation of all available relevant and not otherwise impermissible evidence, including evidence that supports that the Respondent engaged in a Policy violation and evidence that supports that the Respondent did not engage in a Policy violation. Credibility determinations may not be based solely on an individual’s status or participation as a Complainant, Respondent, or witness. All Parties have a full and fair opportunity, through the investigation process, to suggest witnesses and questions, to provide evidence, and to receive a written investigation report that accurately summarizes this evidence.

16. Investigator Appointment

Once an investigation is initiated, the Coordinator appoints an Investigator(s) to conduct it. These Investigators may be members of the Resolution Process Pool, or any other properly trained Investigator, whether internal or external to the University community.

17. Witness Role and Participation in the Investigation

Employees (not including Complainant and Respondent) are required to cooperate with and participate in the University’s investigation and Resolution Process. Student witnesses and witnesses from outside the University community cannot be required to participate but are encouraged to cooperate with the University investigations and to share what they know about a Complaint.

Interviews may be conducted in person, via online video platforms (e.g., Zoom, Microsoft Teams, FaceTime, WebEx), or, in limited circumstances, by telephone. The University will take appropriate steps to ensure the security/privacy of remote interviews. Parties and witnesses may also provide written statements in lieu of interviews or choose to respond to written questions, if deemed appropriate by the Investigator(s), though not preferred.

18. Interview Recording

It is standard practice for Investigators to create a record of all interviews pertaining to the Resolution Process. The Parties may review copies of their own interviews, upon request. No unauthorized audio or video recording of any kind is permitted during investigation meetings.

All interviews are recorded, and all involved persons should be made aware of the audio and/or video recording. The recording and/or transcript of those meetings will be provided to the Parties for their review, after which the Parties may pose additional questions to each other. Those subsequent meetings or interviews are also recorded and/or transcribed and shared with the Parties.  

19. Evidentiary Considerations

The Investigator(s) and the Decision-maker(s) will only consider evidence that is deemed relevant and not otherwise impermissible.

Relevant Evidence is that which may aid in determining whether the allegation occurred, or whether the behavior constitutes a violation of Policy. 

Impermissible evidence is defined as evidence that relates to the Complainant’s sexual interests or prior sexual conduct, unless 1) evidence about the Complainant’s prior sexual conduct is offered to prove that someone other than the Respondent committed the alleged conduct, or 2) is evidence about specific incidents of the Complainant’s prior sexual conduct with the Respondent that is offered to prove consent.

The fact that prior consensual sexual conduct occurred between the Complainant and Respondent does not by itself demonstrate or imply the Complainant’s consent or preclude a determination that sex-based harassment occurred.

Previous disciplinary action of any kind involving the Respondent may not be considered unless there is an allegation of a pattern of misconduct. Such information may also be considered in determining an appropriate sanction upon a determination of responsibility. Barring a pattern allegation, this information is only considered at the sanction stage of the process and is not shared until then.

Within the limitations stated above, the investigation and determination can consider character evidence, if offered, but that evidence is unlikely to be relevant unless it is fact evidence or relates to a pattern of conduct.

20. Respondent Admits Responsibility

At any point in the proceedings, if a Respondent elects to admit to the charged violations and waive further process, the Decision-maker is authorized to accept that admission, adopt it as their finding/final determination, and administer sanctions. This would waive the Respondent’s right to appeal. If the Respondent rejects the finding/final determination/sanctions, or does not admit to all conduct charged, the Resolution Process continues to its conclusion. The Complainant retains their right to appeal a determination when a Respondent admits responsibility.

21. Investigation

All investigations are adequate, thorough, reliable, impartial, prompt, and fair. They involve interviewing all relevant Parties and witnesses, obtaining relevant evidence, and identifying sources of expert information, as necessary.

After an interview, Parties and witnesses will be asked to verify the accuracy of the recording, transcript, or summary of their interview. They may submit changes, edits, or clarifications. If the Parties or witnesses do not respond within the time period designated for verification, objections to the accuracy of the recording, transcript, or summary will be deemed to have been waived, and no changes will be permitted.

The University may consolidate Complaints against more than one Respondent, or by more than one Complainant against one or more Respondents, when the allegations arise from the same facts or circumstances or implicate a pattern, collusion, and/or other shared or similar actions.

The Investigator(s) typically take(s) the following steps, if not already completed and not necessarily in this order:

• Determine the identity and contact information of the Complainant.

• Identify all offenses implicated by the alleged misconduct and notify the Complainant and Respondent of all specific policies implicated.

• Assist the Coordinator, if needed, with conducting a prompt initial evaluation to determine if the allegations indicate a potential Policy violation.

• Work with the Coordinator, as necessary, to prepare the initial NOIA. The NOIA may be amended with any additional or dismissed allegations.

• Commence a thorough, reliable, and impartial investigation by identifying issues and developing an investigation plan, including a witness list, evidence list, intended investigation timeframe, and order of interviews for the Parties and witnesses.

• When participation of a party is expected, provide that party with written notification of the date, time, and location of the meeting, as well as the expected participants and purpose.

• Make good faith efforts to notify each party of any meeting or interview involving another party, in advance when possible.

• Interview the Complainant and the Respondent and conduct any necessary follow-up interviews with each.

• Interview all available, relevant witnesses and conduct follow-up interviews as necessary.

• Provide each interviewed party and witness an opportunity to review and verify the Investigator’s summary notes (or transcript or recording) of the relevant evidence/testimony from their respective interviews and meetings.

• Allow each party the opportunity to suggest witnesses and questions they wish the Investigator(s) to ask of another party and/or witnesses. Document which questions were asked with a rationale for any changes or omissions in the investigation report.

• Where possible, complete the investigation promptly and without unreasonable deviation from the intended timeline.

• Provide the Parties with regular status updates throughout the investigation.

• Prior to the conclusion of the investigation, provide the Parties and their respective Advisors with a list of witnesses whose information will be used to render a finding.

• Ask the Parties to provide a list of questions they would like asked of the other party or any witnesses. The Investigator will ask those questions deemed relevant, and for any question deemed not relevant, will provide a rationale for not asking the question.

• Write a draft investigation report that gathers, assesses, and synthesizes the evidence, summarizes the investigation, and party and witness interviews, and provides all relevant evidence.

• Provide the Parties and their respective Advisors an electronic copy of the draft investigation report as well as an opportunity to inspect and review all relevant evidence obtained as part of the investigation for a review and comment period of ten (10) calendar days so that each party may meaningfully respond to the evidence. The Parties may elect to waive all or part of the review period.

• The Investigator may share the investigation report with the Coordinator and/or legal counsel for their review and feedback. 

22. Hearing Resolution Process

A. Live Hearing Requirements

The following provisions apply to a live hearing:

• Hearing Venue Options and Recordings. The live hearing may occur in person or via video technology. The Decision-maker and Parties must be able to simultaneously see and hear a party or witness while that person is speaking. Both options are considered fair and equitable. Alternative arrangements may also be made at the Coordinator’s discretion.

  •  The Parties may make a request to the Coordinator that the hearing occur in person or via video technology, but they must do so at least five (5) calendar days prior to the hearing. The Coordinator retains discretion to determine whether the hearing will occur in person or via video technology.

  • All hearings will be recorded, and Parties may request a copy of the recording from the Coordinator following the live hearing.

  • No unauthorized recordings are permitted.

• Hearing Participants. Persons who may be present for a hearing include the Decision-maker(s), hearing facilitator, Investigator(s), the Parties and their respective Advisor (and approved support person if applicable), anyone providing authorized accommodations, interpretation, and/or assistive services, and anyone else deemed necessary by the Decision-maker. Witnesses are present only during their portion of the testimony.

• Advisors. The Parties may have the assistance of an Advisor of their choosing at the hearing or can request that the University appoint a trained Advisor for them. Appointed Advisors are not attorneys. If a party wishes to have an attorney as their Advisor, they must locate and pay for the attorney themselves. If a party decides not to have an Advisor, they will forfeit the option of asking questions at the hearing.

  • During the pre-hearing meeting and live hearing, Parties may only be accompanied by their Advisor and one approved support person (if applicable). No other persons (e.g., additional support persons, advisors, friends, family) may accompany, attend, or listen in on the hearing unless explicitly authorized by the Coordinator, with each party being provided the same opportunity.

  • Parties and Advisors are permitted to have their phones and a laptop or tablet, but these should only be used during the hearing in a manner consistent with Policy.

  • During the hearing, all questions that a party wishes to ask must be posed by the Decision-MakerAdvisor, not the Parties.

•  Impact Statements. Each party may submit an impact and/or mitigation statement to the Coordinator that the Decision-maker will review during any sanction determination.

  • Upon receipt of an impact and/or mitigation statement, the Coordinator will review the impact/mitigation statement to determine whether any immediate needs exist.

  • The Coordinator will only provide the impact statements to the Decision-maker if the Decision-maker determines that the Policy has been violated. When the Coordinator shares the impact statements with the Decision-maker, they will also be shared with the Parties.

• Disability Accommodations and Other Assistance. Parties should contact the Coordinator at least five (5) calendar days prior to the hearing to arrange any disability accommodations, language assistance, and/or interpretation services that may be needed at the hearing, if possible.

• Conflicts of Interest or Bias. The Decision-maker must not have a bias for or against complainants or respondents generally or the individual Complainant or Respondent in particular.

  • The Decision-maker must recuse themself if such bias or conflict of interest exists.

  • If the Decision-maker believes there is possible conflict of interest or bias, they will consult with the Coordinator about possible recusal or removal.

  • The Parties may raise challenges that the Decision-maker is biased or has a conflict of interest. The Parties must raise challenges with the Coordinator within two (2) calendar days of receiving the hearing notice.

  • The Coordinator will only remove and replace a Decision-maker in situations of demonstrated bias or conflicts of interest. Perceptions of bias or conflict are not sufficient to cause removal.

  • If a Decision-maker recuses themself as the result of a conflict of interest or bias, or is removed, the Coordinator will promptly appoint a new Decision-maker who does not have a conflict of interest or bias and notify the Parties accordingly.

• Evidence Provided to Decision-maker and Parties.

  • The Decision-maker will be provided electronic copies of the Final Investigation Report and all relevant but not impermissible evidence, including the names of all Parties, witnesses, and Advisors, at least seven (7) calendar days in advance of the hearing.

  • The Parties will be provided with electronic copies of all the materials provided to the Decision-maker as part of the hearing notice, unless those materials have already been provided.^[18]

B. Hearing Notice 

The Coordinator will send the Parties a Notice of Hearing with sufficient time for the Parties to prepare for the hearing, typically at least seven (7) calendar days prior to the hearing. Once mailed, emailed, and/or received in-person, notice will be presumptively delivered. The hearing notice includes:

• A description of the alleged violation(s), a list of all policies allegedly violated, a description of the applicable hearing procedures, and a statement of the potential sanctions/responsive actions that could result.

• The time, date, and location of the hearing.

• A description of any technology that will be used to facilitate the hearing.

• Relevant information regarding hearing logistics, pre-hearing meetings, the Final Investigation Report, the Parties and witnesses participating in the hearing, the identity of the Decision-maker, details related to questioning, the role of Advisors, impact/mitigation statements, and how to request disability accommodations or other assistance.

C. Witness Participation

Student witnesses are encouraged to participate in, and make themselves reasonably available for, the hearing. Employee witnesses are expected to participate in, and make themselves reasonably available for, the hearing. Witnesses may participate in-person or via video technology that allows the Decision-maker and the Parties to see and hear the witness while that person is speaking. Witnesses are not permitted to be accompanied by an advisor without express permission of the Coordinator. At the discretion of the Decision-maker, a witness may join by phone if no other reasonable alternative is available.

If any party or witness does not appear at the scheduled hearing, the hearing may be held in their absence. For compelling reasons, the Coordinator may reschedule the hearing.

Hearings for possible violations that occur near or after the end of an academic term (assuming the Respondent is still subject to this Policy) and are unable to be resolved prior to the end of the term will typically be held immediately after the end of the term, including during the summer, as needed, to meet the University’s resolution timeline and ensure a prompt resolution. Employees, including Parties and witnesses, who do not have 12 month positions are still expected to participate in Resolution Processes that occur during these time periods.

The Coordinator will notify all witnesses of their requested participation in the hearing at least five (5) calendar days prior to the hearing. Witnesses will be present for the hearing only during their testimony.

Any witness scheduled to participate in the hearing must have been first interviewed by the Investigator(s), unless:

• All Parties and the Decision-maker assent to the new witness’s participation in the hearing without remanding the complaint back to the investigator, and

• The Decision-maker deems the evidence presented by the new witness to be relevant, not impermissible, and not information already established in the record, and

• The witness’s late involvement was not the result of bad faith by the witness, the Parties, or others.

If the above criteria are not met, but the witness’s evidence is deemed relevant, not impermissible, and not duplicative, the Decision-maker may, at their discretion, engage in any of the following actions:

• Delay the hearing.

• Provide the Parties at least five (5) calendar days to review the relevant portions of the new witness’s statements, if such statements are submitted.

• Remand the Complaint back to the Investigator for further investigation or verification.

• Allow the Parties to review and comment on the testimony of the new witness.

If the evidence is deemed not relevant or impermissible, the Decision-maker may proceed with the hearing absent the new witness’s participation.

D. Pre-Hearing Meetings 

The Decision-maker will offer to convene a pre-hearing meeting(s) with the Parties and their Advisors and invite them to submit the questions or topics they wish to ask or discuss at the hearing. This allows the Decision-maker to consider their relevance ahead of time to avoid any improper evidentiary introduction in the hearing or to provide recommendations for more appropriate phrasing.

However, this advance review opportunity does not preclude the Parties from submitting a question at the hearing for the first time or asking for a reconsideration on a Decision-maker’s pre-hearing decision based on any new information or testimony offered at the hearing. The Decision-maker will document and share their rationale for any evidence or question exclusion or inclusion, if any, at a pre-hearing meeting with each party.

The Decision-maker will work with the Parties to finalize a witness list for the hearing, and the Coordinator will notify any witnesses of the hearing’s logistics. The Decision-maker, only with the agreement of all Parties, may decide in advance of the hearing that certain witnesses do not need to be present if their testimony can be adequately summarized by the Investigator(s) in the Final Investigation Report or during the hearing, and their presence is not essential to assess their credibility.

Pre-hearing meeting(s) will not be recorded. The pre-hearing meetings will typically be conducted as separate meetings with each party/Advisor, and can be done remotely, or as a written communication exchange. The Decision-maker will work with the Parties to establish the format and timing of the meetings and will circulate a summary of any rulings made to ensure all Parties and Advisors are aware.

E.  Hearing Procedures

1.  Evidentiary Considerations 

The Parties must provide all evidence to the Investigator(s) prior to completing the Final Investigation Report. Evidence offered after that time will be evaluated by the Decision-maker for relevance. If deemed relevant and not impermissible, the Parties and Decision-maker must agree to admit it into the record. If the evidence is deemed not relevant or impermissible, the Decision-maker may proceed with the hearing absent the new evidence.

The new relevant evidence will be admitted to the record if:

• All Parties and the Decision-maker assent to the new evidence being included in the hearing without remanding the Complaint back to the investigator, and

• The evidence is not duplicative of evidence already in the record, and

• It is not impermissible, and

• The new evidence was either not reasonably available prior to the conclusion of the Final Investigation Report, or the failure to provide it in a timely manner was not the result of bad faith by the Parties, witnesses, or others. 

If the above criteria are not met, but the evidence is deemed materially relevant and not duplicative, the Decision-maker may, at their discretion, engage in any of the following actions:

•  Delay the hearing.

• Provide the Parties with at least five (5) calendar days to review the relevant evidence.

• Remand the Complaint back to the Investigator for further investigation or analysis.

• Allow the Parties to review and comment on the new evidence. 

If the evidence is deemed not relevant or impermissible, the Decision-maker may proceed with the hearing without allowing the new evidence.

2.  Collateral Misconduct

The Decision-maker has the authority to hear and make determinations on all allegations of discrimination, harassment, retaliation, and Other Prohibited Behavior under the Policy and may also hear and make determinations on any additional alleged collateral misconduct that occurred in concert with the discrimination, harassment, retaliation, or Other Prohibited Behavior, even though those collateral allegations may not specifically fall within the Policy.

3.  Joint Hearings 

In Complaints involving more than one Respondent and/or involving more than one Complainant accusing the same person of substantially similar conduct, the default procedure will be to hear the allegations jointly.

However, the Coordinator may permit the investigation and/or hearings pertinent to each Respondent or Complaint to be conducted separately if there is a compelling reason to do so. In joint hearings, separate determinations of responsibility will be made for each Respondent and/or for each Complaint with respect to each alleged Policy violation.

4.  Introductions and Hearing Procedure Explanation 

The Decision-maker will explain the hearing procedures and introduce the participants. The Decision-maker will answer any procedural questions prior to and as they arise throughout the hearing.

5.  Investigator Presentation of Final Investigation Report 

The Investigator(s) will present a summary of the Final Investigation Report, including a review of the facts that are contested and those that are not. The Investigator may be questioned first by the Decision-maker and then by the Parties. The Investigator may attend the duration of the hearing or be excused after their testimony at the Decision-maker’s discretion.

6.  Testimony and Questioning 

The Parties and witnesses may provide relevant information in turn, beginning with the Complainant’s opening statement, then the Respondent’s, and then questioning in the order determined by the Decision-maker. The Decision-maker will facilitate questioning of the Parties and witnesses first by the Decision-maker and then by the Parties through their Advisors.

All questions must be directed toward and asked through the Decision-maker and are subject to a relevance determination before they are asked. The Decision-maker will determine the method by which the Parties will submit their questions to the Decision-maker for their review and, if approved, to be posed. Questions that the Parties wish to have posed can be questions for that party themselves, another party, or witnesses.

The Decision-maker will explain any decision to exclude a question as not relevant, or to reframe it for relevance.

The Decision-maker will limit or disallow questions they deem not appropriate on the basis that they are irrelevant, unduly repetitious (and thus irrelevant), seek or pertain to impermissible evidence, or are abusive. The Decision-maker has final say on all questions and determinations of relevance and appropriateness. The Decision-maker may consult with legal counsel on any questions of admissibility.

The Decision-maker then poses the questions deemed relevant, not impermissible, and appropriate to the party and/or witness.

If the Parties raise an issue of bias or conflict of interest of an Investigator or Decision-maker at the hearing, the Decision-maker may elect to address those issues, consult with legal counsel, refer them to the Coordinator, and/or preserve them for appeal. If bias is not an issue at the hearing, the Decision-maker should not permit irrelevant questions that probe for Investigator bias.

The Decision-maker will allow witnesses who have relevant and not impermissible information to appear at a portion of the hearing to respond to specific questions from the Decision-maker and the Parties, and the witnesses will then be excused.

7.  Refusal to Submit to Questioning and Inferences 

Any party or student witness may choose not to offer evidence and/or answer questions at the hearing, either because they do not attend the hearing, or because they attend but refuse to participate in some or all questioning. Employee witnesses are required to participate in the hearing if they are reasonably available. The Decision-maker can only rely on the available relevant and not impermissible evidence in making the ultimate determination of responsibility. The Decision-maker may not draw any inference solely from a party’s or witness’s absence from the hearing or refusal to answer any or all questions.

An Advisor may not be called as a witness at a hearing to testify to what their advisee has told them during their role as an Advisor unless the party being advised consents to that information being shared.

8.  Hearing Recordings

The University records hearings (but not deliberations) for purposes of review in the event of an appeal. No unauthorized audio or video recording of any kind is permitted during the hearing.

The Decision-maker, the Parties, their Advisors, Appeal Decision-makers, and other appropriate University officials will be permitted to review the recording or review a transcript of the recording upon request to the Coordinator. No unauthorized disclosure, including sharing, copying, or distribution of the recording or transcript, is permitted.

F.  Deliberation and Determination

After closing statements from the Parties, the Decision-maker will deliberate in closed session to determine whether the Respondent is responsible for the alleged Policy violation(s) based on the standard of proof. If a panel is used, a simple majority vote is required to determine the finding. Deliberations are not recorded.

When there is a finding of responsibility for one or more of the allegations, the Decision-maker may then consider any previously submitted impact and/or mitigation statement(s) provided by the Parties in determining appropriate sanction(s). The Coordinator will ensure that any submitted statements are exchanged between the Parties if they are viewed by the Decision-maker. Impact/mitigation statements do not influence the finding, they only potentially influence the sanctions.

The Decision-maker will then prepare and provide the Coordinator with a written outcome letter detailing all findings and final determinations, the rationale(s) explaining the decision(s), the relevant and not impermissible evidence used in support of the determination(s), the evidence not relied upon in the determination(s), any credibility assessments, and any sanction(s) and rationales explaining the sanction(s).

This statement is typically submitted to the Coordinator within ten (10) calendar days from the conclusion of the hearing, unless the Coordinator grants an extension. The Coordinator will notify the Parties of any extension.

23. Sanctions

Factors the Decision-maker may consider when determining sanctions and responsive actions 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

• The Respondent’s acceptance of responsibility

• Any other information deemed relevant by the Decision-maker(s) 

The sanctions will be implemented as soon as it is feasible once a determination is final, either upon the outcome of any appeal or the expiration of the window to appeal, without an appeal being requested.

The sanctions described in this Policy are not exclusive of, and may be in addition to, other actions taken, or sanctions imposed, by external authorities.

A. Student Sanctions 

The general sanctioning philosophy and menu of sanctions applicable to students at ɫ��ɫ University, including for violation(s) of this Policy, is detailed in the University's Student Code of Conduct.

B. Student Group and Organization Sanctions 

The conduct of any Recognized Student Organization (RSO) at ɫ��ɫ University is governed by the Student Organization Code of Conduct, which outlines potential sanctions for misconduct, including violations of this Policy, up to and including de-recognition of the organization by the University. Individual members of an RSO engaging in behaviors that violate this Policy are also subject to discipline as a student. 

C. Employee Sanctions/Responsive/Corrective Actions

The sanctions/corrective actions applicable to employees (faculty, staff, administrators) for violation(s) of this Policy is detailed in the University's Employee Handbook (Section 10.9).

24. Notice of Outcome

Within ten (10) calendar days of the conclusion of the Resolution Process, the Coordinator provides the Parties with a written outcome notification. The outcome notification will specify the finding for each alleged Policy violation, all applicable sanctions that the University is permitted to share pursuant to state or federal law, and a detailed rationale, written by the Decision-maker, supporting the findings to the extent the University is permitted to share under federal or state law.

The notification will also detail the Parties’ equal rights to appeal, the grounds for appeal, the steps to request an appeal, and when the determination is considered final if no party appeals.

The Coordinator will provide the Parties with the outcome notification simultaneously, or without significant time delay between notifications. The written outcome notification may be delivered by one or more of the following methods: in person, mailed to the Parties’ local or permanent address as indicated in official University records, or emailed to the Parties’ University-issued or designated email account. Once mailed, emailed, and/or received in person, the outcome notification is presumptively delivered.

25. Withdrawal or Resignation Before Complaint Resolution

A. Students 

If a student Respondent decides not to participate in the Resolution Process, the process proceeds absent their participation to a reasonable resolution. If a student Respondent withdraws from the University, the Resolution Process may continue, or the Coordinator may exercise their discretion to dismiss the Complaint. If the Complaint is dismissed, the University will still provide reasonable supportive or remedial measures as deemed necessary to address safety and/or remedy any ongoing effects of the alleged harassment, discrimination, and/or retaliation.

Regardless of whether the Complaint is dismissed or pursued to completion of the Resolution Process, the University will continue to address and remedy any systemic issues or concerns that may have contributed to the alleged violation(s), and any ongoing effects of the alleged discrimination, harassment, and/or retaliation.

When a student withdraws or leaves while the process is pending, the student may not return to the University in any capacity until the Complaint is resolved and any sanctions imposed are satisfied. If the student indicates they will not return, the Coordinator has discretion to dismiss the Complaint. Information may be shared as necessary with relevant University offices in accordance with FERPA. 

If the student Respondent takes a leave for a specified period of time (e.g., one semester or term), the Resolution Process may continue remotely. If found in violation, that student is not permitted to return to the University unless and until all sanctions, if any, have been satisfied. 

B. Employees

If an employee Respondent decides not to participate in the Resolution Process, the process proceeds absent their participation to a reasonable resolution. If an employee Respondent leaves their employment with the University with unresolved allegations pending, the Resolution Process may continue, or the Coordinator may exercise their discretion to dismiss the Complaint. If the Complaint is dismissed, the University may still provide reasonable supportive or remedial measures as deemed necessary to address safety and/or remedy any ongoing effects of the alleged discrimination, harassment, and/or retaliation.

When an employee resigns and the Complaint is dismissed, the employee may not return to the University in any capacity. Information may be shared as necessary with relevant University offices in accordance with FERPA. A note will be placed in the employee’s personnel file that they resigned with allegations pending and are not eligible for academic admission or rehire with the University. The records retained by the Coordinator will reflect that status.
 

26. Appeal of the Determination

The Coordinator will designate an Appeal Decision-maker – either a three-member panel, an individual chosen from the Pool, or other trained internal or external individuals, to hear the appeal. No Appeal Decision-maker(s) will have been previously involved in the Resolution Process for the Complaint, including in any supportive measure challenge or dismissal appeal that may have been decided earlier in the process. If a panel is used, a voting chair will be designated by the Coordinator.

A. Appeal Grounds

Appeals are limited to the following grounds:

1. A procedural irregularity that would change the outcome.

2. New evidence that would change the outcome and that was not reasonably available at the time the determination regarding responsibility was made.

3. The Coordinator, Investigator(s), or Decision-maker(s) had a conflict of interest or bias for or against complainants or respondents generally or the specific Complainant or Respondent that would change the outcome.

4. The sanction(s) are substantially disproportionate to the severity of the violation and/or cumulative disciplinary record of the appellant.(applicable to sanctions of suspension, expulsion, or termination, only).

B. Request for Appeal

Any party may submit a written request for appeal (“Request for Appeal”) to the Coordinator within five (5) calendar days of the delivery of the Notice of Outcome.

The Request for Appeal will be forwarded to the Appeal Decision-maker for consideration to determine if the request meets the grounds for appeal (a Review for Standing). This is not a review of the merits of the appeal, but solely a determination as to whether the request could reasonably be construed to meet the grounds and is timely filed.

If the Request for Appeal does not provide information that meets the grounds in this Policy, the request will be denied by the Appeal Decision-maker, and the Parties and their Advisors will be simultaneously notified in writing of the denial and the rationale.

If any of the information in the Request for Appeal meets the grounds in this Policy, then the Appeal Decision-maker will notify all Parties and their Advisors, the Coordinator, and, when appropriate, the Investigator(s) and/or the original Decision-maker.

All other Parties and their Advisors, the Coordinator, and, when appropriate, the Investigator(s) and/or the Decision-maker will be provided a copy of the Request for Appeal with the approved grounds and will be given five (5) calendar days to submit a response to the portion of the appeal that was approved and involves them. The Appeal Decision-maker will forward all responses, if any, to all Parties for review and comment.

The non-appealing party (if any) may also choose to appeal at this time. If so, that Request for Appeal will be reviewed by the Appeal Decision-maker to determine if it meets the grounds in this Policy and will either be approved or denied. If approved, it will be forwarded to the party who initially requested an appeal, the Coordinator, and the Investigator(s) and/or original Decision-maker, as necessary, who will submit their responses, if any, within five (5) calendar days. Any such responses will be circulated for review and comment by all Parties. If denied, the Parties and their Advisors will be notified accordingly, in writing.

No party may submit any new Requests for Appeal after this time period. The Appeal Decision-maker will collect any additional information needed and all documentation regarding the approved appeal grounds, and the subsequent responses will be shared with the Appeal Decision-maker, who will promptly render a decision.

C. Appeal Determination Process 

In most cases, appeals are confined to a review of the written documentation or record of the original determination and pertinent documentation regarding the specific appeal grounds. The Appeal Decision-maker will deliberate as soon as is practicable and discuss the merits of the appeal. 

Appeal decisions are to be deferential to the original determination, making changes to the finding only when there is clear error and to the sanction(s)/responsive action(s) only if there is a compelling justification to do so. All decisions are made by majority vote and apply the preponderance of the evidence standard of proof.

An appeal is not an opportunity for the Appeal Decision-makers to substitute their judgment for that of the original Decision-maker merely because they disagree with the finding and/or sanction(s).

The Appeal Decision-maker may consult with the Coordinator and/or legal counsel on questions of procedure or rationale, for clarification, if needed. 

D. Appeal Outcome 

An appeal may be granted or denied. Appeals that are granted should normally be remanded (or partially remanded) to the original Investigator(s) and/or Decision-maker with corrective instructions for reconsideration. In rare circumstances where an error cannot be cured by the original Investigator(s) and/or Decision-maker or the Coordinator (as in cases of bias), the Appeal Decision-maker may order a new investigation and/or a new determination with new Pool members serving in the Investigator and Decision-maker roles.

A Notice of Appeal Outcome letter (“Appeal Outcome”) will be sent to all Parties simultaneously, or without significant time delay between notifications. The Appeal Outcome will specify the finding on each appeal ground, any specific instructions for remand or reconsideration, all sanction(s) that may result which the University is permitted to share according to federal or state law, and the rationale supporting the essential findings to the extent the University is permitted to share under federal or state law.

Written notification may be delivered by one or more of the following methods: in person, mailed to the Parties’ local or permanent address as indicated in official University records, or emailed to the Parties’ University-issued email or otherwise approved account. Once mailed, emailed, and/or received in person, the Appeal Outcome will be presumptively delivered.

Once an appeal is decided, the outcome is final and constitutes the Final Determination; further appeals are not permitted, even if a decision or sanction is changed on remand (except in the case of a new determination). When appeals result in no change to the finding or sanction, that decision is final. When an appeal results in a new finding or sanction, that finding or sanction can be appealed one final time on the grounds listed above and in accordance with these procedures.

If a remand results in a new determination that is different from the appealed determination, that new determination can be appealed, once, on any of the five (4) available appeal grounds.

E.  Sanction Status During the Appeal

Any sanctions imposed as a result of the determination are paused (i.e., not implemented) during the appeal process, and supportive measures may be maintained or reinstated until the appeal determination is made.

If any of the sanctions are to be implemented immediately post-determination, but pre-appeal, then the emergency removal procedures (detailed above) for a meeting on the justification for doing so must be permitted within two (2) calendar days of implementation.

27. Long-Term Remedies/Other Actions

Following the conclusion of the Resolution Process, and in addition to any sanctions implemented or Informal Resolution terms, the Coordinator may implement additional long-term remedies or actions with respect to the Parties and/or the University community that are intended to stop the discrimination, harassment, and/or retaliation, remedy the effects, and prevent recurrence.

These remedies/actions may include, but are not limited to:

• Referral to counseling and health services

• Referral to the Employee Assistance Program

• Course and registration adjustments, such as retroactive withdrawals

• Education to the individual and/or the community

• Permanent alteration of housing assignments

• Permanent alteration of work arrangements for employees

• Provision of campus safety escorts, to the extent available

• Climate surveys

• Policy modification and/or training

• Provision of transportation assistance

• Implementation of long-term contact limitations between the Parties

• Implementation of adjustments to academic deadlines, course schedules, etc. 

At the discretion of the Coordinator, certain long-term supportive measures may also be provided to the Parties even if no Policy violation is found.

When no Policy violation is found, the Coordinator will address any remedies for the Respondent to ensure no effective denial of educational access.

The University will maintain the confidentiality of any long-term remedies/actions/measures, provided confidentiality does not impair the University’s ability to provide these services.

28. Failure to Comply with Sanctions, Responsive Actions, and/or Informal Resolution Terms

All Respondents are expected to comply with the assigned sanctions, responsive actions, corrective actions, and/or Informal Resolution terms within the timeframe specified by the final Decision-maker(s), including the Appeal Panel or Decision-maker or the Informal Resolution agreement.

Failure to abide by the sanction(s)/action(s) imposed by the date specified, whether by refusal, neglect, or for any other reason, may result in additional sanction(s)/action(s), including suspension, expulsion, and/or termination of employment from the University.

Supervisors are expected to enforce the completion of sanctions/responsive actions for their employees.

A suspension imposed for non-compliance with sanctions will only be lifted when the Coordinator deems that sanctions have been satisfactorily completed.

29. Recordkeeping

For a period of at least seven (7) years following the conclusion of the Resolution Process, the University will maintain records of:

1. Each discrimination, harassment, and retaliation resolution process, including any Final Determination regarding responsibility or appeal, and any audio or audiovisual recording or transcript required under federal regulation.

2. Any disciplinary sanctions imposed on the Respondent.

3. Any supportive measures provided to the Parties and any remedies provided to the Complainant or the community designed to restore or preserve equal access to the University’s education program or activity.

4. Any appeal and the result therefrom.

5. Any Informal Resolution and the result therefrom.

6. All materials used to provide training to the Coordinator and designees, Investigators, Decision-makers, Appeal Decision-makers, Informal Resolution Facilitators, and any person who is responsible for implementing the University’s Resolution Process, or who has the authority to modify or terminate supportive measures. The University will make these training materials available for review upon request.

7. All materials used to train all employees consistent with the requirements in the Title IX Regulations.

The University will also maintain any and all records in accordance with federal and state laws and the University’s Records Management and Retention Policy and with Appendix F.^[19] 

30. Accommodations and Support During the Resolution Process

Disability Accommodations

The University is committed to providing reasonable accommodations and support to qualified students, employees, or others with disabilities to ensure equal access to the University’s Resolution Process.

Anyone needing such accommodations or support should contact the Coordinator, who will work with Human Resources (for employees) and the Office of Disability and Accommodations (for students) as appropriate to review the request and, in consultation with the person requesting the accommodation, determine which accommodations are appropriate and necessary for full process participation.

Other Support

The University will also address reasonable requests for support for the Parties and witnesses, including but not limited to:

• Language services/Interpreters

• Access and training regarding use of technology throughout the Resolution Process

• Other support as deemed reasonable and necessary to facilitate participation in the Resolution Process

31. Revision of these Procedures

These procedures succeed any previous procedures addressing discrimination, harassment, and retaliation for incidents occurring on or after August 1, 2024. The Coordinator will review and update these procedures, as appropriate. The University reserves the right to make changes to this Policy as necessary, and once those changes are posted online, they are in effect.

If governing laws or regulations change, or court decisions alter the requirements in a way that impacts this Policy, this Policy will be construed to comply with the most recent governing laws, regulations, or court holdings.

This Policy does not create legally enforceable protections beyond the protections of the federal and state laws that frame such policies and codes, generally.

These procedures are effective August 1,2024.

The following definitions apply to the non-discrimination Policies and Procedures:

• Advisor. Any person chosen by a party, or appointed by the University, who may accompany the party to all meetings related to the Resolution Process and advise the party on that process.

• Amnesty. The University community encourages the reporting of misconduct and crimes by Complainants and witnesses. Sometimes, Complainants or witnesses are hesitant to give Notice to University officials or participate in resolution processes because they fear that they themselves may be in violation of certain policies, such as underage drinking or use of illicit drugs at the time of the incident. Respondents may hesitate to be forthcoming during the process for the same reasons. It is in the best interests of the University community that Complainants choose to give Notice of misconduct to University officials, that witnesses come forward to share what they know, and that all Parties be forthcoming during the process. To encourage reporting and participation in the process, the University offers Parties and witnesses amnesty from minor policy violations, such as underage alcohol consumption or the use of illicit drugs, related to the incident. Granting amnesty is a discretionary decision made by the University, and amnesty does not apply to more serious allegations, such as physical abuse of another or illicit drug distribution.

• Appeal Decision-maker. The person or panel who accepts or rejects a submitted appeal request, determines whether any of the appeal grounds are met, and directs responsive action(s), accordingly.

• Civil Rights Team. The Coordinator, any deputy coordinators, and any member of the Resolution Process Pool.

• Complainant. A student or employee who is alleged to have been subjected to conduct that could constitute discrimination, harassment, retaliation, or Other Prohibited Conduct under the Policy; or a person other than a student or employee who is alleged to have been subjected to conduct that could constitute discrimination or harassment under the Policy and who was participating or attempting to participate in the University’s education program or activity at the time of the alleged discrimination, harassment, retaliation, or Other Prohibited Conduct.

• Complaint. An oral or written request to the University that can objectively be understood as a request for the University to investigate and make a determination about the alleged Policy violation(s).

• Confidential Employee.

  • An employee whose communications are privileged or confidential under federal or state law. The employee’s confidential status, for purposes of this definition, is only with respect to information received while the employee is functioning within the scope of their duties to which privilege or confidentiality applies; or

  • An employee whom the University has designated as confidential under this Policy for the purpose of providing services to persons related to discrimination, harassment, retaliation, or Other Prohibited Conduct. If the employee also has a duty not associated with providing those services, the employee’s confidential status only applies with respect to information received about discrimination, harassment, retaliation, or Other Prohibited Conduct in connection with providing those services; or

  • An employee who is conducting an Institutional Review Board-approved human-subjects research study designed to gather information about discrimination, harassment, retaliation, or Other Prohibited Conduct. The employee’s confidential status only applies with respect to information received while conducting the study.

• Consent. Consent is defined as: knowing, and voluntary, and clear permission by word or action to engage in sexual activity.[8] 

  • Individuals may perceive and experience the same interaction in different ways. Therefore, it is the responsibility of each party to determine that the other has consented before engaging in the activity. 

  • If consent is not clearly provided prior to engaging in the activity, consent may be ratified by word or action at some point during the interaction or thereafter, but clear communication from the outset is strongly encouraged. 

  • For consent to be valid, there must be a clear expression in words or actions that the other individual consented to that specific sexual conduct. Consent is evaluated from the perspective of what a reasonable person would conclude are mutually understandable words or actions. Reasonable reciprocation can establish consent. For example, if someone kisses you, you can kiss them back (if you want to) without the need to explicitly obtain their consent to be kissed back.

  • Consent can also be withdrawn once given, as long as the withdrawal is reasonably and clearly communicated. If consent is withdrawn, sexual activity should cease within a reasonably immediate time.

  • Silence or the absence of resistance alone should not be interpreted as consent. Consent is not demonstrated by the absence of resistance. While resistance is not required or necessary, it is a clear demonstration of non-consent.

  • Consent to some sexual contact (such as kissing or fondling) cannot be assumed to be consent for other sexual activity (such as intercourse). A current or previous intimate relationship is not sufficient to constitute consent. If an individual expresses conditions on their willingness to consent (e.g., use of a condom) or limitations on the scope of their consent, those conditions and limitations must be respected. If a sexual partner shares the clear expectation for the use of a condom, or to avoid internal ejaculation, and those expectations are not honored, the failure to use a condom, removing a condom (e.g. stealthing), or internal ejaculation can be considered acts of sexual assault.

  • Proof of consent or non-consent is not a burden placed on either party involved in a Complaint. Instead, the burden remains on the University to determine whether its Policy has been violated. The existence of consent is based on the totality of the circumstances evaluated from the perspective of a reasonable person in the same or similar circumstances, including the context in which the alleged misconduct occurred and any similar and previous patterns that may be evidenced. 

  • Going beyond the boundaries of consent is prohibited. Thus, unless a sexual partner has consented to slapping, hitting, hair pulling, strangulation, or other physical roughness during otherwise consensual sex, those acts may constitute dating violence or sexual assault.[8] 

• Coordinator. At least one official designated by the University to ensure ultimate oversight of compliance with Title IX and the University’s Title IX program, including primary responsibility for overseeing and enforcing the non-discrimination Policies and Procedures. As used in these policies and procedures, the “Coordinator” also includes their designee(s).

• Day. All references in the Policy to days refer to calendar days unless specifically noted as business days.

• Decision-maker. The person or panel who reviews evidence, determines relevance, and makes the Final Determination of whether this Policy has been violated and/or assigns sanctions.

• Education Program or Activity. Locations, events, or circumstances where the University exercises substantial control over the context in which the discrimination, harassment, retaliation, and/or Other Prohibited Conduct occurs and also includes any building owned or controlled by a student organization that the University officially recognizes.

• Employee. A person employed by the University either full- or part-time, including student employees when acting within the scope of their employment.

• Final Determination. A conclusion by the Decision-maker based on a preponderance of the evidence that the alleged conduct did or did not violate Policy.

• Finding. A conclusion by the Investigator(s) based on a preponderance of the evidence that the conduct did or did not occur as alleged (as in a “finding of fact”).

• Informal Resolution. A resolution agreed to by the Parties and approved by the Coordinator that occurs prior to a Final Determination in the Resolution Process.

• Investigation Report. The Investigator’s summary of all relevant evidence gathered during the investigation. Variations include the Draft Investigation Report and the Final Investigation Report.

• Investigator. The person(s) authorized by the University to gather facts about an alleged violation of this Policy, assess relevance and credibility, synthesize the evidence, and compile this information into an Investigation Report.

• Knowledge. When the University receives Notice of conduct that reasonably may constitute harassment, discrimination, retaliation, or Other Prohibited Conduct in its Education Program or Activity.

• Mandated Reporter. A University employee who is obligated by this Policy to share Knowledge, Notice, and/or reports of discrimination, harassment, retaliation, and/or Other Prohibited Conduct with the Coordinator.^[20],[21]

• Notice. When an employee, student, or third party informs the Coordinator of the alleged occurrence of discriminatory, harassing, retaliatory, or Other Prohibited Conduct.

• Parties. The Complainant(s) and Respondent(s), collectively.

• Pregnancy or Related Conditions. Pregnancy, childbirth, termination of pregnancy, or lactation, medical conditions related thereto, or recovery therefrom.

• Protected Characteristic. Any characteristic for which a person is afforded protection against discrimination and harassment by law or University Policy.

• Relevant Evidence. Evidence that may aid a Decision-maker in determining whether the alleged discrimination, harassment, retaliation, or Other Prohibited Conduct occurred, or in determining the credibility of the Parties or witnesses.

• Remedies. Typically, post-resolution actions directed to the Complainant and/or the community as mechanisms to address safety, prevent recurrence, and restore or preserve equal access to the Education Program or Activity.

• Resolution Process. The investigation and resolution of allegations of prohibited conduct under this Policy, including Informal Resolution, Administrative Resolution, and/or Hearing Resolution.

• Respondent. A person who is alleged to have engaged in conduct that could constitute discrimination based on a protected characteristic, harassment, retaliation, or Other Prohibited Conduct under this Policy.

• Retaliation. Adverse action, including intimidation, threats, coercion, or discrimination, against any person, by the University, a student, employee, or a person authorized by the University to provide aid, benefit, or service under the University’s education program or activity, for the purpose of interfering with any right or privilege secured by law or Policy, or because the person has engaged in protected activity, including reporting information, making a Complaint, testifying, assisting, or participating or refusing to participate in any manner in an investigation or Resolution Process under the Equal Opportunity, Harassment, And Non-Discrimination Procedures, including an Informal Resolution process, or in any other appropriate steps taken by the University to promptly and effectively end any sex discrimination in its education program or activity, prevent its recurrence, and remedy its effects.

  • The exercise of rights protected under the First Amendment does not constitute retaliation. It is also not retaliation for the University to pursue Policy violations against those who make materially false statements in bad faith in the course of a resolution under the Equal Opportunity, Harassment, and Non-Discrimination Policy. However, the determination of responsibility, by itself, is not sufficient to conclude that any party has made a materially false statement in bad faith.

• Sanction. A consequence imposed on a Respondent who is found to have violated this Policy.

• Sex. Sex assigned at birth, sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.

• Student. Any person who has gained admission to the University.  

Under this Policy and procedures, the Parties have the right to:

• An equitable investigation and resolution of all credible allegations of prohibited discrimination, harassment, retaliation, and Other Prohibited Conduct, when reported in good faith to University officials.

• Timely written notice of all alleged violations, including the identity of the Parties involved (if known), the specific misconduct being alleged, the date and location of the alleged misconduct (if known), the implicated Policies and procedures, and possible sanctions.

• Timely written notice of any material adjustments to the allegations (e.g., additional incidents or allegations, additional Complainants) by updating the Notice of Investigation and Allegation(s) (NOIA) as needed to clarify potentially implicated Policy violations.

• Be informed in advance of any University public release of information regarding the allegation(s) or underlying incident(s), whenever possible.

• Have all personally identifiable information protected from the University’s release to the public without consent, except to the extent permitted by law.

• Be treated with respect by University officials.

• Have this Policy and these procedures followed without material deviation.

• Voluntarily agree to resolve allegations under this Policy through Informal Resolution without University pressure, if Informal Resolution is approved by the Coordinator.

• Not be discouraged by University officials from reporting discrimination, harassment, retaliation, and Other Prohibited Conduct to both on-campus and off-campus authorities.

• Be informed of options to notify proper law enforcement authorities, including on-campus and local police, and the option(s) to be assisted by the University in notifying such authorities, if the party chooses. This also includes the right to not be pressured to report.

• Have allegations of violations of this Policy responded to promptly and with sensitivity by University law enforcement, security, and/or other University officials.

• Be informed of available supportive measures, such as counseling, advocacy, health care, student financial aid, visa and immigration assistance, and/or other services, both on-campus and in the community.

• A University-implemented contact limitation or a no-trespass order against a non-affiliated third party when a person has engaged in or threatens to engage in stalking, threatening, harassing, or other improper conduct.

• Be informed of available assistance in changing academic, living, and/or employment situations after an alleged incident of discrimination, harassment, retaliation, and/or Other Prohibited Conduct if such changes are reasonably available. No formal report, or investigation, either institutional or criminal, needs to occur for this option to be available. Such actions may include, but are not limited to:

  • Referral to counseling, medical, and/or other healthcare services

  • Referral to the Employee Assistance Program

  • Referral to community-based service providers

  • Visa and immigration assistance

  • Student financial aid counseling

  • Education to the institutional community or community subgroup(s)

  • Altering campus housing assignment(s)

  • Altering work arrangements for employees or student-employees

  • Safety planning

  • Providing campus safety escorts, to the extent available

  • Providing transportation assistance

  • Implementing contact restrictions (no contact orders) between the parties

  • Academic support, extensions of deadlines, or other course/program-related adjustments

  • Trespass, Persona Non Grata (PNG), or other MUPD orders

  • Timely warnings

  • Class schedule modifications, withdrawals, or leaves of absence

  • Increased security and monitoring of certain areas of the campus

  • Any other actions deemed appropriate by the Administrator

• Have the University maintain supportive measures for as long as necessary, ensuring they remain confidential, provided confidentiality does not impair the University’s ability to provide the supportive measures.

• Receive sufficiently advanced written notice of any University meetings or interviews involving another party, when possible.

• Identify and have the Investigator(s) and/or Decision-maker question relevant available witnesses, including expert witnesses.

• Provide the Investigator(s)/Decision-maker with a list of questions that, if deemed relevant and permissible by the Investigator(s)/Decision-maker, may be asked of any party or witness.

• Have Complainant’s inadmissible sexual interests/prior sexual history or any Party’s irrelevant character evidence excluded by the Decision-maker.

• Access the relevant evidence obtained and respond to that evidence.

• A fair opportunity to provide the Investigator(s) with their account of the alleged misconduct and have that account be on the record.

• Receive a copy of all relevant and permissible evidence obtained during the investigation, subject to privacy limitations imposed by federal and state law and be given ten (10) calendar days to review and comment on the evidence.

• The right to receive a copy of the Final Investigation Report, including all factual, Policy, and/or credibility analyses performed, and to have at least ten (10) calendar days to review the report prior to the determination.

• Be informed of the names of all witnesses whose information will be used to make a finding, in advance of that finding, when relevant.

• Regular status updates on the investigation and/or Resolution Process.

• Have reports of alleged Policy violations addressed by Resolution Process Pool members who have received relevant annual training as required by law.

• Preservation of confidentiality/privacy, to the extent possible and permitted by law.

• Meetings, interviews, and/or hearings that are closed to the public.

• Petition that any University representative in the process be recused on the basis of disqualifying bias and/or conflict of interest.

• Be able to select an Advisor of their choice to accompany and assist the party in all meetings and/or interviews associated with the Resolution Process.

• Apply the appropriate standard of proof, preponderance of the evidence, to make a Finding and Final Determination after an objective evaluation of all relevant and permissible evidence.

• Be present, including presence via remote technology, during all testimony given and evidence presented during any live hearing.

• Have an impact and/or mitigation statement considered by the Decision-maker following a determination of responsibility for any allegation, but prior to sanctioning.

• Be promptly informed of the Resolution Process finding(s) and sanction(s) (if any) and be given a detailed rationale of the decision (including an explanation of how credibility was assessed) in a written outcome letter delivered to the Parties simultaneously (without undue delay).

• Be informed in writing of when a University decision is considered final and any changes to the Final Determination or sanction(s) that occur post outcome letter delivery.

• Be informed of the opportunity to appeal the Resolution Process finding(s) and sanction(s), and the procedures for doing so in accordance with the University’s grounds for appeal.

• A fundamentally fair process and resolution as defined in this Policy.

For complaints involving harassment, discrimination, and/or retaliation based on a protected characteristic, including sex discrimination as defined in the Policy, Parties may mutually agree to forgo the Hearing Resolution Process outlined above and instead utilize the administrative (non-hearing) resolution process outlined below.  Complaints of sex-based harassment are not eligible for this administrative resolution process in lieu of a live hearing, but may be eligible for other forms of informal resolution as outlined in the Policy when the Parties and the University agree.

Administrative Resolution Process

The Administrative Resolution Process consists of a hand-off of the investigation report and all relevant evidence to the Decision-maker to make a finding and determine sanctions (if applicable). With agreement from the Parties, this Process replaces the Hearing Resolution Process outlined in Section 22 above. All other sections of the Hearing Resolution Process outlined above (advisors, sanctions, appeals, etc.) remain applicable to the Administrative Resolution Process outlined below.

At the discretion of the Coordinator, the assigned Decision-maker will be an individual or a panel drawn from the Resolution Process Pool, or other trained individuals either internal or external to the institution. Once the Decision-maker receives and reviews the file, they can recommend dismissal to the Coordinator, if they believe the grounds are met.

The Administrative Resolution Process typically takes approximately thirty (30) calendar days to complete, beginning with the Decision-maker’s receipt of the Draft Investigation Report. The Parties will be regularly updated on the timing and any significant deviation from this typical timeline.

Investigator-led Questioning Meetings

• The Coordinator provides the Draft Investigation Report to the Decision-maker and the Parties simultaneously for review. The Decision-maker can then provide the Investigator with a list of relevant questions to ask the Parties or any witnesses.
  • To the extent credibility is in dispute and relevant to one or more of the allegations, the questions provided by the Decision-maker may also explore credibility.
• The Investigator will also ask each of the Parties to provide a proposed list of questions to ask the other Parties and any witnesses.
  • To the extent credibility is in dispute and relevant to one or more of the allegations, questions proposed by the Parties may also explore credibility.
  • All party questions must be posed during this phase of the process and cannot be posed later unless authorized by the Decision-maker.
  • The Investigator will share all party-proposed questions with the Decision-maker, who will finalize the list with the Investigator to ensure all questions are both relevant and permissible.
• The Investigator will then hold individual meetings with the Parties and witnesses to ask the questions posed by the Decision-maker, as well as the questions proposed by the Parties that have been deemed relevant and not duplicative, including questions intended to assess credibility. These meetings will be recorded and transcribed.
  • For any question deemed not relevant or duplicative, the Investigator will provide a rationale for not asking the question, either during the recorded meeting, or in writing (typically as an appendix to the Final Investigation Report).
• Typically, within three (3) calendar days of the last of these meetings, the recordings or transcripts of them will be provided to the Parties for their review. The Parties will then have five (5) calendar days to review these recordings or transcripts and propose any follow-up questions for the Investigator to ask.
• The Investigator will review the proposed questions with the Decision-maker, to determine relevance and permissibility. If deemed necessary, the Investigator will then meet individually with the Parties or witnesses for whom there are relevant, and not duplicative, follow-up questions. These follow-up meetings will also be recorded, and the Parties will receive the recordings or transcripts of these meetings. This final round of questioning is the last round permitted, unless permission is granted to extend, by the Decision-maker.
• The Investigator will then incorporate any new, relevant evidence and information obtained through the Parties’ review of the Draft Investigation Report, the questioning, and follow-up meetings into a Final Investigation Report.
• The Investigator will also respond in writing (typically within the Final Investigation Report) to the relevant elements of the Parties’ responses to the Draft Investigation Report and incorporate relevant elements of the Parties’ written responses, additional relevant evidence, and any necessary revisions into the Final Investigation Report.
• The Investigator will then share the Final Investigation Report with the Coordinator and/or legal counsel for their review and feedback.
• The Investigator will then provide the Coordinator with the Final Investigation Report and investigation.

The Decision-maker’s Determination

• The Coordinator will provide the Decision-maker, the Parties, and their Advisors with the Final Investigation Report (FIR) and investigation file, including the evidence and information obtained through the Investigator-led questioning meetings.
• The Decision-maker will review the FIR, all appendices, and the investigation file.
• If the record is incomplete, the Decision-maker may direct a re-opening of the investigation, or may direct or conduct any additional inquiry necessary, including informal meetings with the Parties or any witnesses, if needed.
• Upon reviewing the relevant evidence, the Decision-maker may also choose to pose additional questions:
  • To the extent credibility is in dispute and relevant to one or more of the allegations, the Decision-maker may meet individually with the Parties and witnesses to question them in order to assess their credibility. These meetings will be recorded, and the recording or transcript will be shared with the Parties.
  • At their discretion, the Decision-maker may also meet with any party or witness to ask additional relevant questions that will aid the Decision-maker in making their findings. These meetings will be recorded, and the recording or transcript will be shared with the Parties.
• The Decision-maker will then apply the Preponderance of the evidence to make a determination on each of the allegations and, if applicable, any associated sanctions.
• Timeline. The Decision-maker’s determination process typically takes approximately ten (10) calendar days, but this timeframe can vary based on a number of factors and variables. The Parties will be notified of any delays.
• Impact Statements. Prior to a determination, the Coordinator will also provide the Parties with an opportunity to submit a written impact and/or mitigation statement. The Coordinator will review these statements upon receipt to determine whether there are any immediate needs, issues, or concerns, but will otherwise hold them until after the Decision-maker has made determinations on the allegations. If there are any findings of a Policy violation, the Decision-maker will request the Impact Statements from the Coordinator and review them prior to determining sanctions. They will also be exchanged between the Parties at that time.
• If it is later determined that a party or witness intentionally provided false or misleading information, that action could be grounds for reopening a Resolution Process at any time, and/or referring that information to another process for resolution.

Sanctions (see Section 23 above)

Appeal of the Determination (see Section 26 above)

For the purpose of this Policy, the terms privacy, confidentiality, and privilege have distinct meanings.

• Privacy. Means that information related to a complaint will be shared with a limited number of  University employees who “need to know” in order to assist in providing supportive measures or evaluating, investigating, or resolving the Complaint. All employees who are involved in the University’s response to Notice under this Policy receive specific training and guidance about sharing and safeguarding private information in accordance with federal and state law.

• Confidentiality. Exists in the context of laws or professional ethics (including Title IX) that protect certain relationships, including clinical care, mental health providers, and counselors. Confidentiality also applies to those designated by the University as Confidential Employees for purposes of reports under this Policy, regardless of legal or ethical protections. When a Complainant shares information with a Confidential Employee, the Confidential Employee does not need to disclose that information to the Coordinator. The Confidential Resource will, however, provide the Complainant with the Coordinator’s contact information, assist the Complainant in reporting, if desired, and provide them with information on how the Equal Opportunity And Title IX can assist them. With respect to Confidential Employees, information may be disclosed when: (1) the reporting person gives written consent for its disclosure; (2) there is a concern that the person will likely cause serious physical harm to self or others; or (3) the information concerns conduct involving suspected abuse or neglect of a minor under the age of 18, elders, or persons with disabilities. Non-identifiable information may be shared by Confidential Employees for statistical tracking purposes as required by the Clery Act/Violence Against Women Act (VAWA). Other information may be shared as required by law.

• Privilege. Exists in the context of laws that protect certain relationships, including attorneys, spouses, and clergy. Privilege is maintained by a provider unless a court orders release or the holder of the privilege (e.g., a client, spouse, parishioner) waives the protections of the privilege. The University treats employees who have the ability to have privileged communications as Confidential Employees. 

The University reserves the right to determine which University officials have a legitimate educational interest in being informed about student-related incidents that fall under this Policy, pursuant to the Family Educational Rights and Privacy Act (FERPA).

Only a small group of officials who need to know will typically be told about the Complaint. Information will be shared as necessary with Investigators, Decision-makers, Appeal Decision-makers, witnesses, the Parties, and the Parties’ Advisors. The circle of people with this knowledge will be kept limited to the degree possible to preserve the Parties’ rights and privacy, and release is governed by the institution’s unauthorized disclosure policy.

Threat assessment is the process of assessing the actionability of violence by a person against another person or group following the issuance of a direct or conditional threat. A Violence Risk Assessment (VRA) is a broader term used to describe assessment of any potential violence or danger, regardless of the presence of a vague, conditional, or direct threat.

Implementing a VRA requires specific training. It is typically conducted by psychologists, clinical counselors, social workers, case managers, law enforcement officers, student conduct, behavioral intervention, or threat assessment professionals.

A VRA occurs in collaboration with the University’s Threat Assessment Team (TAT) and must be understood as an ongoing process, rather than as a single evaluation or meeting. A VRA is not an evaluation for an involuntary behavioral health hospitalization (e.g., 302 in Pennsylvania), nor is it a psychological or mental health assessment.

A VRA assesses the risk of actionable violence, often with a focus on targeted/predatory escalations. It is supported by research from law enforcement, criminology, human resources, and psychology.

When conducting a VRA, the assessor(s) use(s) an evidence-based process consisting of:

1. An appraisal of risk factors that escalate the potential for violence.

2. A determination of stabilizing influences, or protective factors, that reduce the risk of violence.

3. A contextual analysis of violence risk by considering environmental circumstances, hopelessness, and suicidality; catalyst events; nature and actionability of the threat; fixation and focus on target; grievance collection; and action and time imperative for violence.

4. The application of intervention and management approaches to reduce the risk of violence.

To assess a person’s level of violence risk, the Coordinator will initiate the VRA process through the TAT, all members of which are trained to perform the assessment, according to the specific nature of the complaint. 

The assessor(s) will follow TAT’s process for conducting a VRA and will rely on a consistent, research-based, reliable system that allows for the evaluation of the risk levels. 

Some examples of formalized approaches to the VRA process include The NABITA Risk Rubric,^[22] The Structured Interview for Violence Risk Assessment (SIVRA-35),^[23] Violence Risk Assessment of the Written Word (VRAWW),^[24] Workplace Assessment of Violence Risk (WAVR-21),^[25] Historical Clinical Risk Management (HCR-20),^[26] and MOSAIC.^[27] 

The VRA is conducted independently from the Resolution Process, informed by it, but free from outcome pressure. The person(s) conducting the assessment will be trained to mitigate any bias and provide the analysis and findings in a fair and equitable manner.

The TAT conducts a VRA process and makes a recommendation to the Coordinator as to whether the VRA indicates there is a substantial, compelling, and/or imminent and serious threat to the health and/or safety of a person or the community.

In some circumstances, the Coordinator may determine that a VRA should be conducted by the TAT as part of the initial evaluation of a Complaint under this Policy. A VRA can aid in critical and/or required determinations, including:

1. Whether to remove the Respondent on an emergency basis because of an immediate threat to a person or the community’s health/safety (Emergency Removal)

2. Whether the Coordinator should pursue/initiate a Complaint absent a willing/able Complainant

3. Whether the scope of an investigation should include an incident, and/or pattern of misconduct, and/or climate of discrimination or harassment

4. To help identify potential predatory conduct

5. To help assess/identify grooming behaviors

6. Whether it is reasonable to try to resolve a Complaint through Informal Resolution, and if so, what approach may be most successful

7. Whether to impose transcript notation or communicate with a transfer institution about a Respondent

8. Assessment of appropriate sanctions/remedies (to be applied post-determination)

9. Whether a Clery Act Timely Warning/Trespass order/Persona Non Grata is needed

A compelling risk to health and/or safety may result from evidence of patterns of misconduct, predatory conduct, threats, abuse of minors, use of weapons, and/or violence. Institutions may be compelled to act on alleged employee misconduct irrespective of a Complainant’s wishes.

Scope

This Policy covers records maintained in any medium that are created pursuant to the University’s Equal Opportunity, Harassment, and Non-Discrimination Policy and/or the regular business of the University’s Equal Opportunity and Title IX office. All such records are considered private or confidential by the University, in accordance with FERPA and the directive from the Department of Education to maintain the confidentiality of records related to discrimination, harassment, and retaliation. These records may be shared internally with those who have a legitimate educational interest and will be shared with the Parties to a Complaint under applicable federal and/or state law. The Equal Opportunity and Title IX controls the dissemination and sharing of any records under its control.

Types of Records

Records pertaining to the Equal Opportunity, Harassment, and Non-Discrimination Policy include, but are not limited to:

• The Complaint

• NOIAs

• Documentation of notice to the institution, including incident reports

• Anonymous reports later linked to a specific incident involving known Parties

• Any documentation supporting the initial evaluation

• Investigation-related evidence (e.g., physical and documentary evidence collected and interview transcripts)

• Dismissal-related documentation and appeals

• Documentation related to Emergency Removals, leaves, and interim actions and challenges

• Documentation related to the Resolution Process

• The Final Investigation Report and file

• Remedy-related documentation

• Supportive measures-related documentation

• Appeal-related documentation

• Informal Resolution records

• Outcome Notices

• Any other records typically maintained by the University as part of the Complaint file 

Drafts and Working Files: 

Preliminary drafts and “working files” are not considered records that the University must maintain, and these are typically destroyed at the conclusion of the Resolution Process, as they do not state a final position on the subject. An example of a “working file” would be the Investigator’s notes made during an interview on topics that they want to revisit in subsequent interviews. Sole possession records maintained as such in accordance with FERPA are also included in this category. All drafts of investigation reports shared with the Parties are maintained.

Attorney Work-Product: 

Communications from the Equal Opportunity And Title IX or its designees with the University’s legal counsel may be work product protected by attorney-client privilege. These privileged communications are not considered records to be maintained by the Equal Opportunity And Title IX or accessible under this Policy unless the Coordinator, in consultation with legal counsel as necessary, determines that these communications should be included as accessible records.

Record Storage

Records may be created and maintained in different media formats; this Policy applies to all records, irrespective of format. All records created pursuant to the Policy, as defined above, must be stored in digital format and maintained by Equal Opportunity and Title IX. The complete file must be transferred to the Equal Opportunity and Title IX, typically within fourteen (14) calendar days of the complaint resolution (including any appeal), if the file is not already maintained within the Equal Opportunity and Title IX. Security protocols must be in place to preserve the integrity and privacy of any parts of any record that are maintained in the Equal Opportunity and Title IX during the pendency of an investigation.

The Equal Opportunity and Title IX will store all records created pursuant to the Policy, regardless of the identities of the Parties. Any extra (non-essential) copies of the records (both digital and paper) shall be destroyed.

A copy of records showing compliance with any applicable Clery Act/Violence Against Women Act (VAWA) requirements will be maintained along with the Complaint file by the Equal Opportunity and Title IX. 

Record Retention

All records created and maintained pursuant to the Policy are governed by the University’s Records Management and Retention Policy and will be retained by the Equal Opportunity and Title IX for a minimum of seven (7) years in database, digital, and/or paper form. Except for records pertaining to Title IX and the Clery Act/VAWA, the Coordinator may authorize destruction or expungement acting under their own discretion, or in accordance with a duly executed and binding claim settlement and/or by court or government order.

Record Access

Access to records created pursuant to the Policy or housed in Equal Opportunity and Title IX is strictly limited to the Coordinator and any person they authorize in writing, at their discretion, or via permission levels within the database. Those who are granted broad access to Equal Opportunity and Title IX records are expected to access only those pertinent to their scope, work, or specific assignment. Anyone who accesses such records without proper authorization may be subject to an investigation and possible discipline/sanction. The discipline/sanction for unauthorized access of records covered by this Policy will be at the discretion of the appropriate disciplinary authority, consistent with other relevant University policies and procedures.

Student Parties may request access to their complaint file. The University will provide access or a copy within 45 days of the request. Appropriate redactions of personally identifiable information may be made before inspection, or any copy is shared.

During the investigation, materials may be shared with the Parties using secure file transmission software and record copies maintained at each stage. The University’s secure systems document an audit trail for all case-related documents and case files.

Record Security

The Coordinator is expected to maintain appropriate security practices for all records, including password protection, lock and key, and other barriers to access as appropriate. Record security should include protection from floods, fire, and other potential emergencies. Clothing, forensic, and other physical evidence not already provided to law enforcement, may be securely stored through Equal Opportunity and Title IX in an appropriate secure location that is reasonably protected from flood and fire. A catalog of all physical evidence will be maintained.

Records Release

The University will release records only in accordance with federal and state laws and the University’s Records Section of the Student Code of Conduct (for students) or the Employee Records and Information Section (10.25) of Employee Handbook (for employees).

Resolution Process Pool members receive annual training related to their respective roles. This training may include, but is not limited to:

• The scope of the University’s Equal Opportunity, Harassment, and Non-Discrimination Policy

• The University’s Resolution Process

• How to conduct investigations and hearings that protect the safety of Complainants and Respondents, and promote accountability

• Implicit bias and confirmation bias

• Treating Parties equitably

• Disparate treatment

• Disparate impact

• Reporting, confidentiality, and privacy requirements

• Applicable laws, regulations, and federal regulatory guidance

• How to implement appropriate and situation-specific remedies

• How to investigate in a thorough, reliable, timely, and impartial manner

• Trauma-informed practices pertaining to investigations and resolution processes

• How to uphold fairness, equity, and due process

• How to weigh evidence

• How to conduct questioning

• How to assess credibility

• Impartiality and objectivity

• How to render findings and generate clear, concise, evidence-based rationales

• The definitions of all prohibited conduct

• How to conduct an investigation and grievance process, including administrative resolutions, hearings, appeals, and Informal Resolution Processes

• How to serve impartially by avoiding prejudgment of the facts at issue, conflicts of interest, and bias against Respondents and/or for Complainants, and on the basis of sex, race, religion, and other protected characteristics

• Any technology to be used at a live hearing

• Issues of relevance of questions and evidence

• Issues of relevance and creating an Investigation Report that fairly summarizes relevant and not impermissible evidence

• How to determine appropriate sanctions in reference to all forms of harassment, discrimination, and/or retaliation allegations

• Recordkeeping

Additional Training Elements Specific to Title IX

All investigators, Decision-makers, and other persons who are responsible for implementing the University’s Title IX policies and procedures will receive training related to their duties under Title IX promptly upon hiring or change of position that alters their duties under Title IX or this part, and annually thereafter. Materials will not rely on sex stereotypes. Training topics include, but are not limited to:

• How to conduct a sex discrimination resolution process consistent with the non-discrimination Procedures, including issues of disparate treatment, disparate impact, sex-based harassment, quid pro quo, hostile environment harassment, and retaliation

• The meaning and application of the term “relevant” in relation to questions and evidence, and the types of evidence that are impermissible regardless of relevance under the Title IX Regulations

• Training for Informal Resolution facilitators on the rules and practices associated with the University’s Informal Resolution process

• The role of the Coordinator

• Supportive Measures

• Clery Act/VAWA requirements applicable to Title IX

• The University’s obligations under Title IX

• How to apply definitions used by the University with respect to consent (or the absence or negation of consent) consistently, impartially, and in accordance with this Policy

• Reasonable modifications and specific actions to prevent discrimination and ensure equal access for pregnancy or related conditions

• Any other training deemed necessary to comply with Title IX

Title IX Training Materials

The University will also maintain copies of training materials from all Title IX training for the Resolution Process Pool members, the Civil Rights Team, and employees. Training materials are available for review upon request to the Coordinator.

^[1] At each place a word is capitalized in this Policy, a corresponding definition exists in Appendix A.

^[2] Throughout this Policy, “on the basis of sex” means conduct that is sexual in nature, or that is directed to the Complainant because of his/her/their actual or perceived sex or gender identity.

^[3] This would include having another person touch you sexually, forcibly, and/or without their consent.

^[4] To categorize an incident as Domestic Violence under this Policy, the relationship between the Respondent and the Complainant must be more than just two people living together as roommates. The people cohabitating must be current or former spouses or have an intimate relationship.

^[5]  This offense is not classified under Title IX as “Sex-based harassment,” but it is included here in this Policy as a tool to address a wider range of behaviors.

^[6] For Bullying, Hazing, and Threatening Behavior, these offenses can be applied when the conduct is on the basis of protected characteristics, but is not a form of Sex-based Harassment.

^[7] Nothing in this section restricts the ability of the Parties to: obtain and present evidence, including by speaking to witnesses (as long as it does not constitute retaliation under this Policy), consult with their family members, confidential resources, or Advisors; or otherwise prepare for or participate in the Resolution Process.

^[8] The state definition of consent, which is applicable to criminal prosecution for sex offenses in Pennsylvania (but differs from the definition used to address alleged violations of this Policy) is, 

(a) General rule. The consent of the victim to conduct charged to constitute an offense or to the result thereof is a defense if such consent negates an element of the offense or precludes the infliction of the harm or evil sought to be prevented by the law defining the offense.

(b) Consent to bodily injury. When conduct is charged to constitute an offense because it causes or threatens bodily injury, consent to such conduct or to the infliction of such injury is a defense if: (1) the conduct and the injury are reasonably foreseeable hazards of joint participation in a lawful athletic contest or competitive sport; or (2) the consent establishes a justification for the conduct under Chapter 5 of this title (relating to general principles of justification). 

(c) Ineffective consent. Unless otherwise provided by this title or by the law defining the offense, assent does not constitute consent if: (1) it is given by a person who is legally incapacitated to authorize the conduct charged to constitute the offense; (2) it is given by a person who by reason of youth, mental disease or defect or intoxication is manifestly unable or known by the actor to be unable to make a reasonable judgment as to the nature or harmfulness of the conduct charged to constitute the offense; (3) it is given by a person whose improvident consent is sought to be prevented by the law defining the offense; or (4) it is induced by force, duress or deception of a kind sought to be prevented by the law defining the offense.

18 Pa.C.S. § 311.

^[9] Consent in relationships must also be considered in context. When Parties consent to BDSM (bondage, discipline, sadism, masochism) or other forms of kink, non-consent may be shown by the use of a safe word. Resistance, force, violence, or even saying “no” may be part of the kink and thus consensual.

^[10] 20 U.S.C. 1232g

^[11] 34 C.F.R. § 99

^[12] 42 U.S.C. Sections 13701 through 14040.

^[13] If circumstances require, Leah M. Naso, Dean for Compliance, Training and Development or Coordinator will designate another person to oversee the Resolution Process should an allegation be made about the Coordinator or the Coordinator be otherwise unavailable, unable to fulfill their duties, or have a conflict of interest.

^[14] See detailed information regarding Violence Risk Assessment in Appendix E.

^[15] “Available” means the party cannot insist on an Advisor who simply doesn’t have inclination, time, or availability. The Advisor cannot have institutionally conflicting roles, such as being an administrator who has an active role in the matter, or a supervisor who must monitor and implement sanctions. Additionally, choosing an Advisor who is also a witness in the process creates potential for bias and conflicts of interest. A party who chooses an Advisor who is also a witness can anticipate that issues of potential bias will be explored by the Decision-maker(s).

^[16] In Section 20 below, there is a description of a process to waive the decision-making step of the Resolution Process if a Respondent decides to admit to violating the charged Policies. That section and this one are similar, but there are meaningful differences. In this section, the Parties must agree to the resolution, and the Respondent in essence self-sanctions as part of the Informal Resolution by agreeing to voluntarily comply with whatever the terms are to which the Parties agree. Section 20, in contrast, is unilateral. Neither the Complainant nor the Coordinator determine eligibility. It is simply a waiver of steps in the process by the Respondent, who can admit violations and accept sanctions assigned by the Decision-maker, if they choose to. No Complainant approval is sought or needed. Under Section 20, the outcome involves sanctioning imposed by the University, rather than an agreement to self-sanction, as outlined in this section.

^[17] This does not preclude the University from having all members of the Pool go through an application and/or interview/selection process. Additionally, external, trained third-party neutral professionals may also be used to serve in Resolution Pool roles.

^[18] Hard-copy materials may be provided upon request to the Coordinator. The Final Investigation Report and relevant evidence may be shared using electronic means that preclude downloading, forwarding, or otherwise sharing.

^[19] Additional record maintenance and access protocol specific to Equal Opportunity and Title IX can be found in Appendix F.

^[20] Not to be confused with those mandated by state law to report child abuse, elder abuse, and/or abuse of persons with disabilities to appropriate officials, though these responsibilities may overlap with those who have mandated reporting responsibility under this Policy.

^[21]The Coordinator designated to receive information from Mandated Reporters may vary depending upon the type of alleged discrimination, harassment, or retaliation (e.g., on the basis of sex, on the basis of race, on the basis of disability).

^[22]

^[23]

^[24]

^[25]

^[26]

^[27]

^[28] Or a person who is 18 or older but who is incapable of self-care because of a mental or physical disability.

^[29] “The Department interprets ‘termination of pregnancy’ to mean the end of pregnancy in any manner, including, miscarriage, stillbirth, or abortion.” Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 89 F.R. 33474, April 29, 2024, codified at 34 C.F.R. 106.