Title IX Grievance Policy
Title IX of the Education Amendments of 1972 is a federal civil rights law that prohibits sex-based discrimination in federally funded education programs and activities. The law defines sexual harassment, addresses how to respond to reports of sexual misconduct, and mandates a grievance process to follow before issuing a disciplinary sanction.
Enforcement of Title IX at FLCC
FLCC is committed to fostering a safe academic and working environment free from sex-based discrimination. When the College receives a complaint related to sexual misconduct, including sexual harassment and sexual violence, FLCC responds promptly and effectively to investigate the incident.
What is the purpose of the Title IX Grievance Policy?
Title IX of the Educational Amendments of 1972 prohibits any person in the United States from being discriminated against on the basis of sex in seeking access to any educational program or activity receiving federal financial assistance. The U.S. Department of Education, which enforces Title IX, has long defined the meaning of Title IX's prohibition on sex discrimination broadly to include various forms of sexual harassment and sexual violence that interfere with a student's ability to equally access our educational programs and opportunities.
On May 19, 2020, the U.S. Department of Education issued a Final Rule under Title IX of the Education Amendments of 1972 that:
- Defines the meaning of "sexual harassment" (including forms of sex-based violence)
- Addresses how this institution must respond to reports of misconduct falling within that definition of sexual harassment, and
- Mandates a grievance process that this institution must follow to comply with the law in these specific covered cases before issuing a disciplinary sanction against a person accused of sexual harassment.
See: 85 Fed. Reg. 30026 (May 19, 2020). The full text of the Final Rule and its extensive Preamble are available online.
Based on the Final Rule, FLCC will implement the following Title IX Grievance Policy, effective August 14, 2020.
How does the Title IX Grievance Policy impact other campus disciplinary policies?
In recent years, "Title IX" cases have become a short-hand for any campus disciplinary process involving sex discrimination, including those arising from sexual harassment and sexual assault. But under the Final Rule, FLCC must narrow both the geographic scope of its authority to act under Title IX and the types of "sexual harassment" that it must subject to its Title IX investigation and adjudication process. Only incidents falling within the Final Rule's definition of sexual harassment will be investigated and, if appropriate, brought to a live hearing through the Title IX Grievance Policy defined below.
FLCC remains committed to addressing any violations of its policies, even those not meeting the narrow standards defined under the Title IX Final Rule.
Specifically, our campus has:
- A Student Code of Conduct that defines certain behavior as a violation of campus policy, and a Non-Discrimination and Sexual Harassment Prevention and Response Policy and Procedures that address the types of sex-based offenses constituting a violation of campus policy, and the procedures for investigating and adjudicating those sex-based offenses. Any policy that runs parallel to the Title IX Grievance Policy, such as a policy implementing New York Education Law 129-B or other state laws or policies, can only fully govern how the institution responds to violations falling outside their Title IX jurisdiction.
To the extent that alleged misconduct falls outside the Title IX Grievance Policy, or misconduct falling outside the Title IX Grievance Policy is discovered in the course of investigating covered Title IX misconduct, the institution retains authority to investigate and adjudicate the allegations under the policies and procedures defined within the Code of Conduct/ Non-Discrimination and Sexual Harassment Prevention and Response Policy and Procedures through a separate grievance proceeding.
The elements established in the Title IX Grievance Policy under the Final Rule have no effect and are not transferable to any other policy of the College for any violation of the Code of Conduct, employment policies, or any civil rights violation except as narrowly defined in this Policy. This Policy does not set a precedent for other policies or processes of the College and may not be cited for or against any right or aspect of any other policy or process.
How does the Title IX Grievance Policy impact the handling of complaints?
Our existing Title IX office and reporting structure remains in place. What has changed is the way our Title IX office will handle different types of reports arising from sexual misconduct, as detailed in full throughout Section 2.
General Rules of Application
This Title IX Grievance Policy will become effective on August 14, 2020, and will only apply to formal complaints of sexual harassment brought on or after August 14, 2020. Complaints brought prior to August 14, 2020 will be investigated and adjudicated according to the Title IX Grievance Policy if a case is not complete by that date.
Revocation by Operation of Law
Should any portion of the Title IX Final Rule, 85 Fed. Reg. 30026 (May 19, 2020), be stayed or held invalid by a court of law, or should the Title IX Final Rule be withdrawn or modified to not require the elements of this policy, this policy, or the invalidated elements of this policy, will be deemed revoked as of the publication date of the opinion or order and for all reports after that date, as well as any elements of the process that occur after that date if a case is not complete by that date of opinion or order publication. Should the Title IX Grievance Policy be revoked in this manner, any conduct covered under the Title IX Grievance Policy shall be investigated and adjudicated under the existing Code of Conduct/ Non Discrimination and Sexual Harassment Prevention and Response Policy and Procedures.
Non-Discrimination in Application
The requirements and protections of this policy apply equally regardless of sex, sexual orientation, gender identity, gender expression, or other protected classes covered by federal or state law. All requirements and protections are equitably provided to individuals regardless of such status or status as a Complainant, Respondent, or Witness. Individuals who wish to file a complaint about the institution's policy or process may contact the Department of Education's Office for Civil Rights.
Covered Sexual Harassment
For the purposes of this Title IX Grievance Policy, "covered sexual harassment" includes any conduct on the basis of sex that satisfies one or more of the following:
- An employee conditioning educational benefits on participation in unwelcome sexual conduct (i.e., quid pro quo);
- Unwelcome conduct that a reasonable person would determine is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the educational institution's education program or activity;
- Sexual assault (as defined in the Clery Act), which includes any sexual act directed against another person, without the consent of the victim including instances where the victim is incapable of giving consent;
- Dating violence (as defined in the Violence Against Women Act (VAWA) amendments to the Clery Act), which includes any violence committed by a person: (A) who is or has been in a social relationship of a romantic or intimate nature with the victim; and (B) where the existence of such a relationship shall be determined based on a consideration of the following factors: (i) The length of the relationship; (ii) The type of relationship; (iii) The frequency of interaction between the persons involved in the relationship.
- Domestic violence (as defined in the VAWA amendments to the Clery Act), which includes any felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner, by a person similarly situated to a spouse of the victim under New York domestic or family violence laws or by any other person against an adult or youth victim who is protected from that person's acts under the domestic or family violence laws of NY.
- Stalking (as defined in the VAWA amendments to the Clery Act), meaning engaging in a course of conduct directed at a specific person that would cause a reasonable person to: (A) fear for their safety or the safety of others; or (B) suffer substantial emotional distress.
Note that conduct that does not meet one or more of these criteria may still be prohibited under the Code of Conduct/ Non-Discrimination and Sexual Harassment Prevention and Response Policy.
For the purposes of this Title IX Grievance Policy, "consent," also known as "Affirmative Consent", is defined as is a knowing, voluntary, and mutual decision among all participants to engage in sexual activity. Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity. Silence or lack of resistance, in and of itself, does not demonstrate consent. The definition of consent does not vary based upon a participant's sex, sexual orientation, gender identity, or gender expression.
Education Program or Activity
For the purposes of this Title IX Grievance Policy, FLCC's "education program or activity" includes:
- Any on-campus premises
- Any off-campus premises that FLCC's has substantial control over. This includes buildings or property owned or controlled by a recognized student organization.
- Activity occurring within computer and internet networks, digital platforms, and computer hardware or software owned or operated by, or used in the operations of FLCC's programs and activities over which the FLCC has substantial control.
For the purposes of this Title IX Grievance Policy, "formal complaint" means a document – including an electronic submission - filed by a complainant with a signature or other indication that the complainant is the person filing the formal complaint, or signed by the Title IX Coordinator, alleging sexual harassment against a respondent about conduct within FLCC's education program or activity and requesting initiation of the procedures consistent with the Title IX Grievance Policy to investigate the allegation of sexual harassment.
For the purposes of this Title IX Grievance Policy, Complainant means any individual who has reported being or is alleged to be the victim of conduct that could constitute covered sexual harassment as defined under this policy.
Relevant evidence and questions
"Relevant" evidence and questions refer to any questions and evidence that tends to make an allegation of sexual harassment more or less likely to be true.
"Relevant" evidence and questions do not include the following types of evidence and questions, which are deemed "irrelevant" at all stages of the Title IX Grievance Process:
- Evidence and questions about the complainant's sexual predisposition or prior sexual behavior unless:
- They are offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or
- They concern specific incidents of the complainant's prior sexual behavior with respect to the respondent and are offered to prove consent. 34 C.F.R. 106.45(6)(i).
- Evidence and questions that constitute, or seek disclosure of, information protected under a legally-recognized privilege.
- Any party's medical, psychological, and similar records unless the party has given voluntary, written consent. 85 Fed. Reg. 30026, 30294 (May 19, 2020).
For the purposes of this Title IX Grievance policy, Respondent means any individual who has been reported to be the perpetrator of conduct that could constitute covered sexual harassment as defined under this policy.
Privacy vs. Confidentiality
Consistent with Code of Conduct/ Non Discrimination and Sexual Harassment Prevention and Response Policy and Procedures, references made to confidentiality refer to the ability of identified confidential resources to not report crimes and violations to law enforcement or college officials without permission, except for extreme circumstances, such as a health and/or safety emergency or child abuse. References made to privacy mean FLCC offices and employees who cannot guarantee confidentiality but will maintain privacy to the greatest extent possible, and information disclosed will be relayed only as necessary to investigate and/or seek a resolution and to notify the Title IX Coordinator or designee, who is responsible for tracking patterns and spotting systemic issues. FLCC will limit the disclosure as much as practicable, even if the Title IX Coordinator determines that the request for confidentiality cannot be honored.
This Policy does not alter any institutional obligations under federal disability laws including the Americans with Disabilities Act of 1990, and Section 504 of the Rehabilitation Act of 1973. Parties may request reasonable accommodations for disclosed disabilities to the Title IX Coordinator at any point before or during the Title IX Grievance Process that do not fundamentally alter the Process. The Title IX Coordinator will not affirmatively provide disability accommodations that have not been specifically requested by the Parties, even where the Parties may be receiving accommodations in other institutional programs and activities.
Any person may report sex discrimination, including sexual harassment (whether or not the person reporting is the person alleged to be the victim of conduct that could constitute sex discrimination or sexual harassment), in person, by mail, by telephone, or by electronic mail, using the contact information listed for the Title IX Coordinator, or by any other means that results in the Title IX Coordinator receiving the person's verbal or written report.
Contact Information for the Title IX Coordinator:
Chief Human Resources Officer
Room 1350, 585-785-1451
Contact Information for Deputy Title IX Coordinators
Associate Vice President of Student Affairs
Room 2153, 585-785-1284
Assistant Director of Employee and Labor Relations
Room 1341, 585-785-1466
Such a report may be made at any time (including during non-business hours) by using the telephone number or electronic mail address, or by mail to the office address listed for the Title IX Coordinator.
The following Officials will provide privacy, but not confidentiality, upon receiving a report of conduct prohibited under this policy:
- Title IX Coordinator or designee
The following Officials may provide confidentiality:
Students who wish to report an incident to an on campus confidential source, may speak with Student Health Services.
Janette Aruck R.N.,
Director of Student Health Services
A student or employee wishing to report an incident off campus in complete confidence may contact one of the following external agencies:
- Safe Harbors of the Finger Lakes
- Hotlines: Seneca & Ontario Counties: 800-247-7273
- Yates County: 315-536-2897
- Victim's Resource Center of the Finger Lakes
- Hotline: 866-343-8808
- More resources can also be found at http://nyscasa.org or https://www.suny.edu/violence-response.
- All of the above-listed individuals will maintain confidentiality except in extreme cases of immediacy of threat or danger or abuse of a minor.
Confidential Resources for Employees:
A confidential resource for employees; the Employee Assistance Program (EAP) is available to help free of charge and is available 24/7. Phone: 800-252-4555 or online: HigherEdEAP.com. The EAP is a 3rd party, neutral service for employees seeking counseling and other resources.
Complainants (as defined above), who report allegations that could constitute covered sexual harassment under this policy, have the right to receive supportive measures from FLCC regardless of whether they desire to file a complaint. Supportive measures are non-disciplinary and non-punitive.
Supportive Measures: As appropriate, supportive measures may include, but not be limited to:
- extensions of deadlines or other course-related adjustments
- modifications of work or class schedules
- campus escort services
- restrictions on contact between the parties (no contact orders)
- changes in work or housing locations
- leaves of absence
- increased security and monitoring of certain areas of the campus
See 85 Fed. Reg. 30401.
FLCC retains the authority to remove a respondent from FLCC's program or activity on an emergency basis, where FLC (1) undertakes an individualized safety and risk analysis and (2) determines that an immediate threat to the physical health or safety of any student or other individual arising from the allegations of covered sexual harassment justifies a removal.
If FLCC determines such removal is necessary, the respondent will be provided notice and an opportunity to challenge the decision immediately following the removal. Appeals of the removal can be made with the Title IX Coordinator or designee
FLCC retains the authority to place a non-student employee respondent on administrative leave during the Title IX Grievance Process. Administrative leave will be handled consistent with a collective bargaining agreement, where applicable.
The timeframe for the Title IX Grievance Process begins with the filing of a Formal Complaint. The Grievance Process will be concluded within a reasonably prompt manner, and will make every effort to conclude the process no more than ninety (90) business days after the filing of the Formal Complaint, provided that the Process may be extended for a good reason, including but not limited to the absence of a party, a party's advisor, or a witness; concurrent law enforcement activity; or the need for language assistance or accommodation of disabilities. The procedure for applying for extensions is described below.
To file a Formal Complaint, a complainant must provide the Title IX Coordinator or designee a written, signed complaint describing the facts alleged. Complainants are only able to file a Formal Complaint under this Policy if they are currently participating in, or attempting to participate in, the education programs or activities of FLCC including as an employee. For complainants who do not meet this criteria, the College will utilize existing policy in Code of Conduct/Non Discrimination and Sexual Harassment Prevention and Response Policy and Procedures.
If a complainant does not wish to make a Formal Complaint, the Title IX Coordinator may determine a Formal Complaint is necessary. FLCC will inform the complainant of this decision in writing, and the complainant need not participate in the process further but will receive all notices issued under this Policy and Process.
Nothing in the Title IX Grievance Policy Code of Conduct/Non Discrimination and Sexual Harassment Prevention and Response Policy and Procedures prevents a complainant from seeking the assistance of state or local law enforcement alongside the appropriate on-campus process.
The institution may consolidate Formal Complaints alleging covered sexual harassment against more than one respondent, or by more than one complainant against one or more respondents, or by one party against the other party, where the allegations of covered sexual harassment arise out of the same facts or circumstances.
The Title IX Coordinator or designee will determine if the Title IX Grievance Process should apply to a Formal Complaint. The Process will apply when all of the following elements are met, in the reasonable determination of the Title IX Coordinator:
- The conduct is alleged to have occurred on or after August 14, 2020;
- The conduct is alleged to have occurred in the United States;
- The conduct is alleged to have occurred in FLCC's education program or activity; and
- The alleged conduct, if true, would constitute covered sexual harassment as defined in this policy.
If all of the elements are met, FLCC will investigate the allegations according to the Grievance Process.
Allegations Potentially Falling Under Two Policies
If the alleged conduct includes conduct that would constitute covered sexual harassment and conduct that would not constitute covered sexual harassment, the Title IX Grievance Process will be applied to investigation and adjudication of only the allegations that constitute covered sexual harassment.
If any one of these elements are not met, the Title IX Coordinator or designee will notify the parties that the Formal Complaint is being dismissed for the purposes of the Title IX Grievance Policy. Each party may appeal this dismissal using the procedure outlined in "Appeals," below.
The Title IX Coordinator or designee may dismiss a Formal Complaint brought under the Title IX Grievance Policy, or any specific allegations raised within that Formal Complaint, at any time during the investigation or hearing, if:
- A complainant notifies the Title IX Coordinator in writing that they would like to withdraw the Formal Complaint or any allegations raised in the Formal Complaint;
- The respondent is no longer enrolled or employed by FLCC; or
- If specific circumstances prevent FLCC from gathering evidence sufficient to reach a determination regarding the Formal Complaint or allegations within the Formal Complaint.
Any party may appeal a dismissal determination using the process set forth in "Appeals," below.
Notice of Dismissal
Upon reaching a decision that the Formal Complaint will be dismissed, the institution will promptly send written notice of the dismissal of the Formal Complaint or any specific allegation within the Formal Complaint, and the reason for the dismissal, simultaneously to the parties through their institutional email accounts. It is the responsibility of parties to maintain and regularly check their email accounts.
Notice of Removal
Upon dismissal for the purposes of Title IX, FLCC retains discretion to utilize Code of Conduct/Non Discrimination and Sexual Harassment Prevention and Response Policy and Procedures to determine if a violation of Code of Conduct/ Non Discrimination and Sexual Harassment Prevention and Response Policy and Procedures has occurred. If so, FLCC will promptly send written notice of the dismissal of the Formal Complaint under the Title IX Grievance Process and removal of the allegations to the conduct process.
Notice of Allegations
The Title IX Coordinator will draft and provide the Notice of Allegations to any party to the allegations of sexual harassment. Such notice will occur as soon as practicable, after the institution receives a Formal Complaint of the allegations, if there are no extenuating circumstances.
The parties will be notified by their institutional email accounts if they are a student or employee, and by other reasonable means if they are neither.
The institution will provide sufficient time for the parties to review the Notice of Allegations and prepare a response before any initial interview.
The Title IX Coordinator or designee may determine that the Formal Complaint must be dismissed on the mandatory grounds identified above, and will issue a Notice of Dismissal. If such a determination is made, any party to the allegations of sexual harassment identified in the Formal Complaint will receive the Notice of Dismissal in conjunction with, or in separate correspondence after, the Notice of Allegations.
Contents of Notice
The Notice of Allegations will include the following:
- Notice of the institution's Title IX Grievance and a hyperlink to a copy of the process.
- Notice of the allegations potentially constituting covered sexual harassment, and sufficient details known at the time the Notice is issued, such as the identities of the parties involved in the incident, if known, including the complainant; the conduct allegedly constituting covered sexual harassment; and the date and location of the alleged incident, if known.
- A statement that the respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the grievance process.
- A statement that the parties may have an advisor of their choice, who may be, but is not required to be, an attorney, as required under 34 C.F.R. 106.45(b)(5)(iv);
- A statement that before the conclusion of the investigation, the parties may inspect and review evidence obtained as part of the investigation that is directly related to the allegations raised in the Formal Complaint, including the evidence upon which the institution does not intend to rely in reaching a determination regarding responsibility, and evidence that both tends to prove or disprove the allegations, whether obtained from a party or other source, as required under 34 C.F.R. 106.45(b)(5)(vi);
- A statement that deliberately false and/or malicious accusations under this policy, as opposed to allegations which, even if erroneous, are made in good faith, are a serious offense and will be subject to appropriate disciplinary action.
If, in the course of an investigation, the institution decides to investigate allegations about the complainant or respondent that are not included in the Notice of Allegations and are otherwise covered "sexual harassment" falling within the Title IX Grievance Policy, the institution will notify the parties whose identities are known of the additional allegations by their institutional email accounts or other reasonable means.
The parties will be provided sufficient time to review the additional allegations to prepare a response before any initial interview regarding those additional charges.
Advisor of Choice and Participation of Advisor of Choice
FLCC will provide the parties equal access to advisors and support persons; any restrictions on advisor participation will be applied equally.
FLCC has a long-standing practice of requiring students to participate in the process directly and not through an advocate or representative. Students participating as Complainant or Respondent in this process may be accompanied by an Advisor of Choice to any meeting or hearing to which they are required or are eligible to attend. The Advisor of Choice is not an advocate. Except where explicitly stated by this Policy, as consistent with the Final Rule, Advisors of Choice shall not participate directly in the process as per standard policy and practice of FLCC.
FLCC will not intentionally schedule meetings or hearings on dates where the Advisors of Choice for all parties are not available, provided that the Advisors act reasonably in providing available dates and work collegially to find dates and times that meet all schedules.
FLCC's obligations to investigate and adjudicate in a prompt timeframe under Title IX and other college policies apply to matters governed under this Policy, and FLCC cannot agree to extensive delays solely to accommodate the schedule of an Advisor of Choice. The determination of what is reasonable shall be made by the Title IX Coordinator or designee. FLCC will not be obligated to delay a meeting or hearing under this process more than five (5) days due to the unavailability of an Advisor of Choice, and may offer the party the opportunity to obtain a different Advisor of Choice or utilize one provided by FLCC.
Notice of Meetings and Interviews
FLCC will provide, to a party whose participation is invited or expected, written notice of the date, time, location, participants, and purpose of all hearings, investigative interviews, or other meetings with a party, with sufficient time for the party to prepare to participate.
Each party may request a one-time delay in the Grievance Process of up to five (5) days for good cause (granted or denied in the sole judgment of the Title IX Coordinator, Director of Student Conduct, or designee) provided that the requestor provides reasonable notice and the delay does not overly inconvenience other parties.
For example, a request to take a five day pause made an hour before a hearing for which multiple parties and their advisors have traveled to and prepared for shall generally not be granted, while a request for a five day pause in the middle of investigation interviews to allow a party to obtain certain documentary evidence shall generally be granted.
The Title IX Coordinator or designee shall have sole judgment to grant further pauses in the Process.
General Rules of Investigations
The Title IX investigator designated by the Title IX Coordinator will perform an investigation under a reasonably prompt timeframe of the conduct alleged to constitute covered sexual harassment after issuing the Notice of Allegations.
FLCC and not the parties, has the burden of proof and the burden of gathering evidence, i.e. the responsibility of showing a violation of this Policy has occurred. This burden does not rest with either party, and either party may decide not to share their account of what occurred or may decide not to participate in an investigation or hearing. This does not shift the burden of proof away from FLCC and does not indicate responsibility.
FLCC cannot access, consider, or disclose medical records without a waiver from the party (or parent, if applicable) to whom the records belong or of whom the records include information. FLCC will provide an equal opportunity for the parties to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence, (i.e. evidence that tends to prove and disprove the allegations) as described below.
Inspection and Review of Evidence
Prior to the completion of the investigation, the parties will have an equal opportunity to inspect and review the evidence obtained through the investigation. The purpose of the inspection and review process is to allow each party the equal opportunity to meaningfully respond to the evidence prior to conclusion of the investigation.
Evidence that will be available for inspection and review by the parties will be any evidence that is directly related to the allegations raised in the Formal Complaint. It will include any:
- Evidence that is relevant, even if that evidence does not end up being relied upon by the institution in making a determination regarding responsibility;
- inculpatory or exculpatory evidence (i.e. evidence that tends to prove or disprove the allegations) that is directly related to the allegations, whether obtained from a party or other source.
All parties must submit any evidence they would like the investigator to consider prior to when the parties' time to inspect and review evidence begins.
The institution will send the evidence made available for each party and each party's advisor, if any, to inspect and review through an electronic format or a hard copy. The Institution is not under an obligation to use any specific process or technology to provide the evidence and shall have the sole discretion in terms of determining format and any restrictions or limitations on access.
The parties will have ten (10) business/school days to inspect and review the evidence and submit a written response by email to the investigator. The investigator will consider the parties' written responses before completing the Investigative Report.
The institution will provide copies of the parties' written responses to the investigator to all parties and their advisors, if any.
Any evidence subject to inspection and review will be available at any hearing, including for purposes of cross-examination.
The parties and their advisors must sign an agreement not to disseminate any of the evidence subject to inspection and review or use such evidence for any purpose unrelated to the Title IX grievance process.
The parties and their advisors agree not to photograph or otherwise copy the evidence.
Inclusion of Evidence Not Directly Related to the Allegations
Evidence obtained in the investigation that is determined in the reasoned judgment of the investigator not to be directly related to the allegations in the Formal Complaint will not be disclosed, or may be appropriately redacted before the parties' inspection to avoid disclosure of personally identifiable information of a student. Any evidence obtained in the investigation that is kept from disclosure or appropriately redacted will be documented in a "privilege log" that may be reviewed by the parties and their advisors, if any. See, 85 Fed. Reg. 30026, 30438 (May 19, 2020).
The Title IX investigator designated by the Title IX Coordinator will create an Investigative Report that fairly summarizes relevant evidence.
The Investigative Report is not intended to catalog all evidence obtained by the investigator, but only to provide a fair summary of that evidence.
Only relevant evidence (including both inculpatory and exculpatory – i.e. tending to prove and disprove the allegations - relevant evidence) will be referenced in the Investigative Report.
The investigator may redact irrelevant information from the Investigative Report when that information is contained in documents or evidence that is/are otherwise relevant. See, 85 Fed. Reg. 30026, 30304 (May 19, 2020).
General Rules of Hearings
FLCC will not issue a disciplinary sanction arising from an allegation of covered sexual harassment without holding a live hearing.
The live hearing may be conducted with all parties physically present in the same geographic location, or, at FLCC's discretion, any or all parties, witnesses, and other participants may appear at the live hearing virtually through WebEx. This technology will enable participants simultaneously to see and hear each other. At its discretion, FLCC may delay or adjourn a hearing based on technological errors not within a party's control.
All proceedings will be recorded through audio recording or audiovisual recording. That recording or transcript will be made available to the parties for inspection and review. No unauthorized audio or video recording of any kind is permitted during investigation meetings or other process or proceedings under this policy.
Prior to obtaining access to any evidence, the parties and their advisors must sign an agreement not to disseminate any of the testimony heard or evidence obtained in the hearing or use such testimony or evidence for any purpose unrelated to the Title IX Grievance Process. Once signed, this Agreement may not be withdrawn See, 85 Fed. Reg. 30026, 30435 (May 19, 2020).
Continuances or Granting Extensions
FLCC may determine that multiple sessions or a continuance (i.e. a pause on the continuation of the hearing until a later date or time) is needed to complete a hearing. If so, FLCC will notify all participants and endeavor to accommodate all participants' schedules and complete the hearing as promptly as practicable.
Participants in the Live Hearing
Live hearings are not public, and the only individuals permitted to participate in the hearing are as follows:
Complainant and Respondent (The Parties)
- The parties cannot waive the right to a live hearing.
- The institution may still proceed with the live hearing in the absence of a party, and may reach a determination of responsibility in their absence, including through any evidence gathered that does not constitute a "statement" by that party. 85 Fed. Reg. 30026, 30361 (May 19, 2020).
- For example, A verbal or written statement constituting part or all of the sexual harassment itself is not a "prior statement" that must be excluded if the maker of the statement does not submit to cross-examination about that statement. In other words, a prior statement would not include a document, audio recording, audiovisual reading, and digital media, including but not limited to text messages, emails, and social media postings, that constitute the conduct alleged to have been the act of sexual harassment under the formal complaint. See OCR Blog (May 22, 2020).
- FLCC will not threaten, coerce, intimidate or discriminate against the party in an attempt to secure the party's participation. See 34 C.F.R. 106.71; see also 85 Fed. Reg. 30026, 30216 (May 19, 2020).
- If a party does not submit to cross-examination, the decision-maker cannot rely on any prior statements made by that party in reaching a determination regarding responsibility, but may reach a determination regarding responsibility based on evidence that does not constitute a "statement" by that party.
- The decision-maker cannot draw an inference about the determination regarding responsibility based solely on a party's absence from the live hearing or refusal to answer cross examination or other questions. See 34 C.F.R. 106.45(b)(6)(i).
- The parties shall be subject to the institution's Rules of Decorum
- The hearing body will consist of a single decision-maker.
- No member of the hearing body will also have served as the Title IX Coordinator, Title IX investigator, or advisor to any party in the case, nor may any member of the hearing body serve on the appeals body in the case.
- No member of the hearing body will have a conflict of interest or bias in favor of or against complainants or respondents generally, or in favor or against the parties to the particular case.
- The hearing body will be trained on topics including how to serve impartially, issues of relevance, including how to apply the rape shield protections provided for complainants, and any technology to be used at the hearing.
- The parties will have an opportunity to raise any objections regarding a decision-maker's actual or perceived conflicts of interest or bias at the commencement of the live hearing.
Advisor of choice
- The parties have the right to select an advisor of their choice, who may be, but does not have to be, an attorney.
- The advisor of choice may accompany the parties to any meeting or hearing they are permitted to attend, but may not speak for the party, except for the purpose of cross-examination.
- The parties are not permitted to conduct cross-examination; it must be conducted by the advisor. As a result, if a party does not select an advisor, the institution will select an advisor to serve in this role for the limited purpose of conducting the cross-examination at no fee or charge to the party.
- The advisor is not prohibited from having a conflict of interest or bias in favor of or against complainants or respondents generally, or in favor or against the parties to the particular case.
- The advisor is not prohibited from being a witness in the matter.
- If a party does not attend the live hearing, the party's advisor may appear and conduct cross-examination on their behalf. 85 Fed. Reg. 30026, 30340 (May 19, 2020).
- If neither a party nor their advisor appear at the hearing, FLCC will provide an advisor to appear on behalf of the non-appearing party. See, 85 Fed. Reg. 30026, 30339-40 (May 19, 2020).
- Advisors shall be subject to the institution's Rules of Decorum, and may be removed upon violation of those Rules.
- Witnesses cannot be compelled to participate in the live hearing, and have the right not to participate in the hearing free from retaliation. See, 85 Fed. Reg. 30026, 30360 (May 19, 2020).
- If a witness does not submit to cross-examination, as described below, the decision-maker cannot rely on any statements made by that witness in reaching a determination regarding responsibility, including any statement relayed by the absent witness to a witness or party who testifies at the live hearing. 85 Fed. Reg. 30026, 30347 (May 19, 2020).
- Witnesses shall be subject to the institution's Rules of Decorum.
For all live hearings conducted under this Title IX Grievance Process, the procedure will be as follows:
- The Administrative Hearing Officer, "AHO", will open and establish rules and expectations for the hearing;
- The Parties will each be given the opportunity to provide opening statements;
- The AHO will ask questions of the Parties and Witnesses;
- Parties will be given the opportunity for live cross-examination after the AHO conducts its initial round of questioning; During the Parties' cross-examination, the AHO will have the authority to pause cross-examination at any time for the purposes of asking the AHO's own follow up questions; and any time necessary in order to enforce the established rules of decorum.
- Should a Party or the Party's Advisor choose not to cross-examine a Party or Witness, the Party shall affirmatively waive cross-examination through a written or oral statement to the AHO. A Party's waiver of cross-examination does not eliminate the ability of the AHO to use statements made by the Party.
Live Cross-Examination Procedure
Each party's advisor will conduct live cross-examination of the other party or parties and witnesses. During this live-cross examination the advisor will ask the other party or parties and witnesses relevant questions and follow-up questions, including those challenging credibility directly, orally, and in real time.
Before any cross-examination question is answered, the AHO will determine if the question is relevant. Cross-examination questions that are duplicative of those already asked, including by the AHO may be deemed irrelevant if they have been asked and answered.
Review of Recording
The recording of the hearing will be available for review by the parties within 2 business days, unless there are any extenuating circumstances. The recording of the hearing will not be provided to parties or advisors of choice.
Standard of Proof
FLCC uses the preponderance of the evidence standard for investigations and determinations regarding responsibility of formal complaints covered under this Policy. This means that the investigation and hearing determines whether it is more likely than not that a violation of the Policy occurred to a neutral decision maker.
General Considerations for Evaluating Testimony and Evidence
While the opportunity for cross-examination is required in all Title IX hearings, determinations regarding responsibility may be based in part, or entirely, on documentary, audiovisual, and digital evidence, as warranted in the reasoned judgment of the Decision-maker.
Decision-makers shall not draw inferences regarding a party or witness' credibility based on the party or witness' status as a complainant, respondent, or witness, nor shall it base its judgments in stereotypes about how a party or witness would or should act under the circumstances.
Generally, credibility judgments should rest on the demeanor of the party or witness, the plausibility of their testimony, the consistency of their testimony, and its reliability in light of corroborating or conflicting testimony or evidence.
Still, credibility judgments should not rest on whether a party or witness' testimony is non-linear or incomplete, or if the party or witness is displaying stress or anxiety.
Decision makers will afford the highest weight relative to other testimony to first-hand testimony by parties and witnesses regarding their own memory of specific facts that occurred. Both inculpatory and exculpatory (i.e. tending to prove and disprove the allegations) evidence will be weighed in equal fashion.
Except where specifically barred by the Title IX Final Rule, a witness' testimony regarding third-party knowledge of the facts at issue will be allowed, but will generally be accorded lower weight than testimony regarding direct knowledge of specific facts that occurred.
The Final Rule requires that FLCC allow parties to call "expert witnesses" for direct and cross examination. While the expert witness will be allowed to testify and be crossed as required by the Final Rule, the decision-maker will be instructed to afford lower weight to non-factual testimony of the expert relative to fact witnesses, and any expert testimony that is not directed to the specific facts that occurred in the case will be afforded lower weight relative to fact witnesses, regardless of whether the expert witness testimony is the subject of cross examination and regardless of whether all parties present experts as witnesses.
The Final Rule requires that FLCC allow parties to call character witnesses to testify. While the character witnesses will be allowed to testify and be crossed as required by the Final Rule, the decision-maker will be instructed to afford very low weight to any non-factual character testimony of any witness.
The Final Rule requires that FLCC admit and allow testimony regarding polygraph tests ("lie detector tests") and other procedures that are outside of standard use in academic and non-academic conduct processes. While the processes and testimony about them will be allowed to testify and be crossed as required by the Final Rule, the decision-maker will be instructed to afford lower weight to such processes relative to the testimony of fact witnesses.
Where a party or witness' conduct or statements demonstrate that the party or witness is engaging in retaliatory conduct, including but not limited to witness tampering and intimidation, the FLCC may draw an adverse inference as to that party or witness' credibility.
Components of the Determination Regarding Responsibility
The written Determination Regarding Responsibility will be issued simultaneously to all parties through their institution email account, or other reasonable means as necessary. The Determination will include:
- Identification of the allegations potentially constituting covered sexual harassment;
- A description of the procedural steps taken from the receipt of the formal complaint through the determination, including any notifications to the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, and hearings held;
- Findings of fact supporting the determination;
- Conclusions regarding which section of the Code of Conduct/ Non Discrimination and Sexual Harassment Prevention and Response Policy and Procedures, if any, the respondent has or has not violated.
- For each allegation:
- A statement of, and rationale for, a determination regarding responsibility;
- A statement of, and rationale for, any disciplinary sanctions the recipient imposes on the respondent; and
- A statement of, and rationale for, whether remedies designed to restore or preserve equal access to the recipient's education program or activity will be provided by the recipient to the complainant; and
Timeline of Determination Regarding Responsibility
If there are no extenuating circumstances, the determination regarding responsibility will be issued by FLCC within ten (10) business days of the completion of the hearing.
The determination regarding responsibility becomes final either on the date that the institution provides the parties with the written determination of the result of the appeal, if an appeal is filed consistent with the procedures and timeline outlined in "Appeals" below, or if an appeal is not filed, the date on which the opportunity to appeal expires.
Each party may appeal (1) the dismissal of a formal complaint or any included allegations and/or (2) a determination regarding responsibility. To appeal, a party must submit their written appeal within (15) school/calendar/business days of being notified of the decision, indicating the grounds for the appeal.
The limited grounds for appeal available are as follows:
- Procedural irregularity that affected the outcome of the matter (i.e. a failure to follow the institution's own procedures);
- New evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made, that could affect the outcome of the matter;
- The Title IX Coordinator, investigator(s), or decision-maker(s) had a conflict of interest or bias for or against an individual party, or for or against complainants or respondents in general, that affected the outcome of the matter.
The submission of appeal stays any sanctions for the pendency of an appeal. Supportive measures and remote learning opportunities remain available during the pendency of the appeal.
If a party appeals, the institution will as soon as practicable notify the other party in writing of the appeal, however the time for appeal shall be offered equitably to all parties and shall not be extended for any party solely because the other party filed an appeal.
Appeals may be no longer than 3 pages (including attachments). Appeals should be submitted in electronic form using ARIAL or TIMES NEW ROMAN, 12 point font, and single-spaced. Appeals should use footnotes, not endnotes. Appeals that do not meet these standards may be returned to the party for correction, but the time for appeal will not be extended unless there is evidence that technical malfunction caused the appeal document not to meet these standards.
Appeals will be decided by a hearing panel, who will be free of conflict of interest and bias, and will not serve as investigator, Title IX Coordinator, or hearing decision maker in the same matter.
Outcome of appeal will be provided in writing simultaneously to both parties, and include rationale for the decision.
FLCC will keep the identity of any individual who has made a report or complaint of sex discrimination confidential, including the identity of any individual who has made a report or filed a Formal Complaint of sexual harassment under this Title IX Grievance Policy, any Complainant, any individual who has been reported to be the perpetrator of sex discrimination, any Respondent, and any witness, except as permitted by the FERPA statute, 20 U.S.C. 1232g, or FERPA regulations, 34 CFR part 99, or as required by law, or to carry out the purposes of 34 CFR part 106, including the conduct of any investigation, hearing, or judicial proceeding under this Title IX Grievance Policy.
No person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX of the Education Amendments of 1972 or its implementing regulations.
No person may intimidate, threaten, coerce, or discriminate against any individual because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding or hearing under this Title IX Grievance Policy.
Any intimidation, threats, coercion, or discrimination, for the purpose of interfering with any right or privilege secured by Title IX or its implementing regulations constitutes retaliation. This includes any charges filed against an individual for code of conduct violations that do not involve sex discrimination or sexual harassment, but that arise from the same facts or circumstances as a report or complaint of sex discrimination or a report or Formal Complaint of sexual harassment. The College community encourages the reporting of misconduct and crimes by complainants and witnesses. Sometimes, students who are complainants or witnesses are hesitant to report to College officials or participate in resolution processes because they fear that they themselves may be accused of policy violations, such as underage drinking at the time of the incident. It is in the best interests of this community that complainants choose to report to College officials, and that witnesses come forward to share what they know. To encourage reporting, this policy offers complainants and witnesses amnesty from minor policy violations related to the incident.
Complaints alleging retaliation may be filed according to the Code of Conduct/ Non Discrimination and Sexual Harassment Prevention and Response Policy and Procedures.
Is This a Title IX Grievance Process Case?
Note: This decision tree is intended to capture the most foreseeable routes that a matter may take, but it cannot cover every circumstance that may arise. Please consult with your campus counsel for specific circumstances and questions.
What is the purpose of this Guide?
On May 19, 2020, the U.S. Department of Education issued Final Rules governing the Title IX grievance process, effective August 14, 2020. The Final Rule requires that all colleges and universities hold a live hearing before making any determination regarding responsibility for covered reports of Title IX sexual harassment, including sexual violence. This hearing must provide for live cross-examination by the parties' advisors.
Any question posed by the advisors must be evaluated for "relevance" in real time by the hearing officer. According to Final Rule 106.45(b)(6)(i):
Only relevant cross-examination and other questions may be asked of a party or witness. Before a complainant, respondent, or witness answers a cross-examination or other question, the decision-maker(s) must first determine whether the question is relevant and explain any decision to exclude a question as not relevant.
What is a relevant question?
The Department of Education encourages institutions to apply the "plain and ordinary meaning" of relevance in their determinations. 85 Fed. Reg. 30026, 30304 (May 19, 2020). Basically, a relevant question will ask whether the facts material to the allegations under investigation are more or less likely to be true. Id. at 30294. A question not directly related to the allegations will generally be irrelevant.
Officials should use common sense in this understanding. Things may be interesting or surprising but not be relevant.
Relevance decisions should be made on a question-by-question basis, looking narrowly at whether the question seeks information that will aid the decision-maker in making the underlying determination. The relevance decision should not be based on who asked the question, their possible (or clearly stated) motives, who the question is directed to, or the tone or style used to ask about the fact. Relevance decisions should not be based in whole or in part upon the sex or gender of the party for whom it is asked or to whom it is asked, nor based upon their status as complainant or respondent, past status as complainant or respondent, any organizations of which they are a member, or any other protected class covered by federal or state law (e.g. race, sexual orientation, disability).
If a question is relevant but offered in an abusive or argumentative manner, the decision-maker has the discretion to ask the advisor to rephrase the question in an appropriate manner, consistent with the institution's decorum policy for hearings.
What if the question is "prejudicial" and concerns sensitive or embarrassing issues?
Much of the content within these hearings may be considered sensitive and/or embarrassing by parties or advisors. However, relevant questions need to be considered even if a party or advisor believes the danger of unfair prejudice substantially outweighs their probative value. Only irrelevant questions (detailed below), including about the complainant's prior sexual history, may be excluded.
What is an irrelevant question?
Question about Complainant's Prior Sexual Behavior or Sexual Predisposition
Questions and evidence about the complainant's sexual predisposition or prior sexual behavior are not relevant, unless:
- such questions and evidence about the complainant's prior sexual behavior are offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or
- if the questions and evidence concern specific incidents of the complainant's prior sexual behavior with respect to the respondent and are offered to prove consent. 34 C.F.R. 106.45(6)(i).
Question regarding Privileged Information
Questions that constitute, or seek disclosure of, information protected under a legally-recognized privilege are irrelevant. 34 C.F.R. 106.45(1)(x). Depending on your state, individuals with legal privilege may include medical providers (physician, dentist, podiatrist, chiropractor, nurse), psychologists, clergy, rape crisis counselors, and social workers. (for instance, New York's "laws of privilege" are listed within CPLR Article 45. Each state has its own rules around privilege).
Questions about Undisclosed Medial Records
Questions that call for information about any party's medical, psychological, and similar records are irrelevant unless the party has given voluntary, written consent. 85 Fed. Reg. 30026, 30294 (May 19, 2020).
Questions that repeat, in sum or substance, questions already asked by the decision-maker prior to cross-examination, or by a party's advisor during cross-examination (and if part of your process, during direct examination), may be ruled duplicative, and therefore irrelevant.
How should the decision-maker reach a relevance determination?
If the decision-maker is a single individual, the decision-maker will be solely responsible for determining the relevance of the question before it is asked.
If the decision-maker is a panel, the panel's Chair will make all determinations of relevance.
What should the relevance determination consist of?
The Department of Education explains that the Final Rule "does not require a decision-maker to give a lengthy or complicated explanation" in support of a relevance determination. Rather, "it is sufficient, for example, for a decision maker to explain that a question is irrelevant because the question calls for prior sexual behavior information without meeting one of the two exceptions, or because the question asks about a detail that is not probative of any material fact concerning the allegations." Id. at 30343.
As such, the decision-maker need only provide a brief explanation of the determination, which will ordinarily consist of one of the following statements depending on the situation.
Generally probative questions
- The question is relevant because it asks whether a fact material to the allegations is more or less likely to be true.
- The question is irrelevant because it asks about a detail that does not touch on whether a material fact concerning the allegations is more or less likely to be true. See, 85 Fed. Reg. 30026, 30343 (May 19, 2020).
Question about Complainant's Prior Sexual Behavior or Sexual Predisposition
- The question is relevant because although it calls for prior sexual behavior information about the complainant, it meets one of the two exceptions to the rape shield protections defined in 34 C.F.R. 106.45(b)(6)(i), and it tends to prove that a material fact at issue is more or less likely to be true.
- Exception one: The question is asked to prove that someone other than the respondent committed the conduct alleged by the complainant.
- Exception two: The question concerns specific incidents of the complainant's prior sexual behavior with respect to the respondent and is asked to prove consent
- The question is irrelevant because it calls for prior sexual behavior information about the complainant without meeting one of the two exceptions to the rape shield protections defined in 34 C.F.R. 106.45(b)(6)(i).
Question regarding Privileged Information
- The question is irrelevant because it calls for information shielded by a legally-recognized privilege.
- The question is relevant because, although it calls for information shielded by a legally-recognized privilege, that privilege has been waived in writing, and the question tends to prove that a material fact at issue is more or less likely to be true.
Questions about Undisclosed Medical Records
- The question is irrelevant because it calls for information regarding a party's medical, psychological, or similar record without that party's voluntary, written consent. 85 Fed. Reg. 30026, 30294.
- This question is relevant because although it calls for a party's medical, psychological, or similar records, that party has given their voluntary, written consent to including this material, and it tends to prove that a material fact at issue is more or less likely to be true. 85 Fed. Reg. 30026, 30294 (May 19, 2020).
- The question is irrelevant because it is duplicative of a question that was asked and answered.
The decision-maker may relay a longer explanation if necessary under the circumstances.
The relevance determination will be conveyed orally, except as needed to accommodate a disclosed disability of a hearing participant, and all relevance determinations will be preserved in the record of the proceeding.
May the parties and/or their advisors ask the decision-maker to reconsider their relevance decision?
Any party or their advisor may not request that the decision-maker reconsider their relevance determination.
This determination is final, but may be subject to appeal under the Title IX Grievance Process.
Purpose of the Rules of Decorum
Title IX hearings are not civil or criminal proceedings, and are not designed to mimic formal trial proceedings. They are primarily educational in nature, and the U.S. Department of Education, writing about Title IX in the Final Rule "purposefully designed these final regulations to allow recipients to retain flexibility to adopt rules of decorum that prohibit any party advisor or decision-maker from questioning witnesses in an abusive, intimidating, or disrespectful manner." 85 Fed. Reg. 30026, 30319 (May 19, 2020). The Department has determined that institutions "are in a better position than the Department to craft rules of decorum best suited to their educational environment" and build a hearing process that will reassure the parties that the institution "is not throwing a party to the proverbial wolves." Id.
To achieve this purpose, institutions may provide for reasonable rules of order and decorum, which may be enforced through the removal of an advisor who refuses to comply with the rules. Id., at 30320. As the Department explains, the removal process "incentivizes a party to work with an advisor of choice in a manner that complies with a recipient's rules that govern the conduct of a hearing, and incentivizes colleges and universities to appoint advisors who also will comply with such rules, so that hearings are conducted with respect for all participants." Id.
At base, these Rules of Decorum require that all parties, advisors of choice, and institutional staff treat others who are engaged in the process with respect.
The rules and standards apply equally to all Parties and their Advisors regardless of sex, gender, or other protected class, and regardless of whether they are in the role of Complainant or Respondent.
Rules of Decorum
The following Rules of Decorum are to be observed in the hearing and applied equally to all parties (meaning the complainant and respondent) and advisors:
- Questions must be conveyed in a neutral tone.
- Parties and advisors will refer to other parties, witnesses, advisors, and institutional staff using the name and gender used by the person and shall not intentionally mis-name or mis-gender that person in communication or questioning.
- No party may act abusively or disrespectfully during the hearing toward any other party or to witnesses, advisors, or decision-makers.
- While an advisor may be an attorney, no duty of zealous advocacy should be inferred or enforced within this forum.
- The advisor may not yell, scream, badger, or physically ''lean in'' to a party or witness's personal space. Advisors may not approach the other party or witnesses without obtaining permission from the AHO.
- The advisor may not use profanity or make irrelevant ad hominem attacks upon a party or witness. Questions are meant to be interrogative statements used to test knowledge or understand a fact; they may not include accusations within the text of the question.
- The advisor may not ask repetitive questions. This includes questions that have already been asked by the AHO or the advisor in cross-examination. When the AHO determines a question has been "asked and answered" or is otherwise not relevant, the advisor must move on.
- Parties and advisors may take no action at the hearing that a reasonable person in the shoes of the affected party would see as intended to intimidate that person (whether party, witness, or official) into not participating in the process or meaningfully modifying their participation in the process.
- All proceedings will be recorded through audio recording or audiovisual recording. That recording or transcript will be made available to the parties for inspection and review. No unauthorized audio or video recording of any kind is permitted during investigation meetings or other process or proceedings under this policy.
Warning and Removal Process
The AHO shall have sole discretion to determine if the Rules of Decorum have been violated. The AHO will notify the offending person of any violation of the Rules.
Upon a second or further violation of the Rules, the [decision-maker] shall have discretion to remove the offending person or allow them to continue participating in the hearing or other part of the process.
Where the AHO removes a party's advisor, the party may select a different advisor of their choice, or accept an advisor provided by the institution for the limited purpose of cross-examination at the hearing. Reasonable delays, including the temporary adjournment of the hearing, may be anticipated should an advisor be removed. A party cannot serve as their own advisor in this circumstance.
The AHO shall document any decision to remove an advisor in the written determination regarding responsibility.
For flagrant, multiple, or continual violations of this Rule, in one or more proceedings, advisors may be prohibited from participating in future proceedings at the institution in the advisor role on a temporary or permanent basis. Evidence of violation(s) of this agreement will be gathered by the Title IX Coordinator, Director of Community Standards and Counseling, or a designee of either and presented to the Provost and Vice President of Student Affairs or the CHRO. The Advisor accused may provide an explanation or alternative evidence in writing for consideration by the Provost and Vice President for Student Affairs for cases involving students or the CHRO for cases involving employees/Other Appropriate Staff Member. Such evidence or explanation is due within fifteen (15) calendar days of receipt of a notice of a charge of re-disclosure or improper access to records. There shall be no right to a live hearing, oral testimony, or cross-examination. The Provost and Vice President for Student Affairs for cases involving students/CHRO for cases involving employees/Other Appropriate Staff Member shall consider the evidence under a preponderance of the evidence standard and issue a finding in writing and, if the finding is Responsible, shall include a Sanction. The finding shall be issued in writing to all Parties and Advisors (if there is a current case pending) within thirty (30) days unless extended for good cause. There is no appeal of this finding. Sanctions shall be higher for intentional re-disclosure of records than for negligent re-discourse. In the event that an Advisor is barred permanently or for a term from serving in the role as Advisor in the future, they may request a review of that bar from the Provost and Vice President for Student Affairs for cases involving students/CHRO no earlier than three-hundred and sixty-five (365) days after the date of the findings letter.
Relevant Questions Asked in Violation of the Rules of Decorum
Where an advisor asks a relevant question in a manner that violates the Rules, such as yelling, screaming, badgering, or leaning-in to the witness or party's personal space, the question may not be deemed irrelevant by the decision-maker simply because of the manner it was delivered. Under that circumstance, the decision-maker will notify the advisor of the violation of the Rules, and, if the question is relevant, will allow the question to be re-asked in a respectful, non-abusive manner by the advisor (or a replacement advisor, should the advisor be removed for violation of the Rules). See, 85 Fed. Reg. 30331.
This resource and chart is intended to help institutions identify bias and respond to claims of potential bias by parties to Title IX cases. These standards for bias are particular to the Title IX Final Rule (but may be useful more generally). The Final Rule is fairly specific that an allegation of bias will not stand simply based upon the identity of the official in the process accused of improper bias. The official's gender, current or past work history, and support or opposition to certain causes or issues are not, in and of themselves, indicia of bias. Note that these may still present as factors in a case-by-case analysis of whether the official is biased specifically or in general.
Institutions can use this chart in responding to accusations of bias on the part of officials. It is anticipated that institutions will continue to receive allegations of bias based upon some of the specifically identified fields below. This chart can assist in rapid response to such allegations by pointing out specific parts of the Final Rule responsive to per se bias allegations. Responses to accusations of bias should be in writing, should memorialize the accusation of bias and the facts alleged, and should respond clearly to each bias allegation. The writing should be provided simultaneously to all parties and kept as part of the case record.
More information on court decisions around bias may be found in the SCI Casebook by searching "Bias" and especially in the section Specific programs and responses alleged to demonstrate gender bias.
N.B. Although the Department declines to define certain statuses, affiliations, or other aspects as per se conflicts of interest, this does not mean the enumerated situations are therefore per se free of conflict of interest or bias in all cases. All Title IX personnel must "not have a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent." 34 C.F.R. 106.45. Therefore, all TIX personnel must be assessed for bias and conflict of interest on a case-by-case basis. See 85 Fed. Reg. at 30,252.
It is also notable that the Department declines to narrow the bias standard by specifying a "perceived" or "actual" bias standard. Id. The Department cautions that a perceived bias standard might lead to most people being found biased simply due to their own gender or their past experiences with people of certain genders. Id. Instead, the Department prefers to maintain an uncharacterized bias standard which, when paired with the impartiality expectation, focuses on eliminating those biases that would impede impartial service in a Title IX
Is it Bias / Conflict of Interest (per se and on its own)
|If the Title IX official is an employee of the recipient?||No||"[R]ecipients can comply with the final regulations by using the recipient's own employees" Title IX 85 Fed. Reg. 30,026, 30,252 (May 19, 2020) (to be codified at 34 C.F.R. pt. 106).|
|If the Title IX official is "affiliated" with the recipient?||No||"The Department declines to require recipients to use outside, unaffiliated Title IX personnel because the Department does not conclude that such prescription is necessary to effectuate the purposes of the final
regulations" Id. at 30,252.
|If the Title IX Official has a supervisory relationship with other Title IX personnel?||No||"[T]he Department declines to define certain employment relationships or administrative hierarchy arrangements as per se prohibited conflicts of interest" Id. at 30,252.
"[T]he final regulations do not prescribe any particular administrative 'chain of reporting' restrictions or declare any such administrative arrangements to be per se conflicts of interest prohibited under 106.45(b)(1)(iii)." Id. at 30,252 n.1035.
"[T]he Department will hold a recipient accountable for the end result of using Title IX personnel free from conflicts of interest and bias, regardless of the employment or supervisory relationships among various Title IX personnel" Id. at 30,252.
Please note: Although the Department wishes only to prescribe those measures necessary for compliance, they do recognize that recipients may adopt additional "best practices" to avoid violating the regulations. See id. at 30,252.
The Department specifically names two such practices:
- ensuring that investigators have institutional independence
- deciding that Title IX Coordinators should have no role in the hiring or firing of investigators. Id.
Professional Experiences or Affiliations
|A history of working in the field of sexual violence||No||"[T]he very training required by 106.45(b)(1)(iii) is intended to provide Title IX personnel with the tools needed to serve impartially and without bias such that the prior professional experience of a person whom a recipient would like to have in a Title IX role need not disqualify the person from obtaining the requisite training to serve impartially in a Title IX role." Id. at 30,252.|
|Prior work as a victim advocate||No|
|Prior work as a defense attorney||No|
|Student of the recipient||No||"The Department notes that the final regulations do not preclude a recipient from allowing student leaders to serve in Title IX roles so long as the recipient can meet all requirements in 106.45 and these final regulations, and leaves it to a recipient's judgment to decide under what circumstances, if any, a recipient wants to involve student leaders in Title IX roles." Id. at 30,253.|
|Gender||No||The Department cautions recipients not to apply generalizations when evaluating particular Title IX personnel for bias, warning that this may result in an unreasonable determination. Id. at 30,252.|
|Sexual Assault Survivor||No|
|Prior work as a victim advocate||No|
|Prior work as a defense attorney||No|
|Prior work as a defense attorney||No|
Determining whether bias exists is a fact-specific endeavor. See id. at 30,252. The Department encourages recipients to apply a common-sense and "objective" reasonable person standard when evaluating personnel. Id.
Grievance Process Participation
|Signing a formal complaint as the Title IX Coordinator||No||"Even where the Title IX Coordinator is also the investigator, the Title IX Coordinator must be trained to serve impartially, and the Title IX Coordinator does not lose impartiality solely due to signing a formal complaint on the recipient's behalf." Id. at 30, 135.|
|Participating in an emergency removal decision||No, unless it biases the employee||"Section 106.44(c) does not preclude a recipient from using Title IX personnel trained under 106.45(b)(1)(iii) to make the emergency removal decision or conduct a post-removal challenge proceeding, but if involvement with the emergency removal process results in bias or conflict of interest for or against the complainant or respondent, 106.45(b)(1)(iii) would preclude such personnel from serving in those roles during a grievance process." Id. at 30,235.|
|Serving as a party advisor||Exempt from requirement not to have bias||"The final regulations impose no prohibition of conflict of interest or bias for such advisors, nor any training requirement for such advisors, in order to leave recipients as much flexibility as possible to comply with the requirement to provide those advisors." Id. at 30,254 n.1041.|
Title IX coordinator serving as:
|Investigator||No||"The final regulations would not remove the expertise of Title IX Coordinators from the grievance process. Section 106.45(b)(7)(i) does not prevent the Title IX Coordinator from serving as the investigator; rather, this provision only prohibits the decision-maker from being the same person as either the Title IX Coordinator or the investigator." Id. at 30,370.|
|Informal resolution facilitator||No, but not recommended||"These final regulations do not require a recipient to provide an informal resolution process pursuant to 106.45(b)(9) and do not preclude the Title IX Coordinator from serving as the person designated by a recipient to facilitate an informal resolution process." Id. at 30,558.|
|Decision-maker||Yes||"Separating the functions of a Title IX Coordinator from those of the decision-maker is no reflection on the ability of Title IX Coordinators to serve impartially and with expertise. Rather, requiring different individuals to serve in those roles acknowledges that the different phases of a report and formal complaint of sexual harassment serve distinct purposes." Id. at 30,370.|
|Appeal decision-maker||Yes||"106.45(b)(8)(iii) makes it clear that the appeal decision-maker cannot be the same person as the decision-maker below, or as the Title IX Coordinator or investigator in the case. This ensures that the recipient's appeal decision reviews the underlying case independently." Id. at 30,399.|
Title IX investigator serving as:
|Title IX coordinator||No||See above. The Title IX coordinator may also serve as investigator. Id. at 30,370.|
|Decision-maker||Yes||"Separating the roles of investigation from adjudication therefore protects both parties by making a fact-based determination regarding responsibility based on objective evaluation of relevant evidence more likely." Id. at 30,370.|
Hearing decision-maker serving as:
|Title IX coordinator||Yes||See above. The Title IX coordinator may not serve as hearing decision-maker. Id. at 30,370.|
|Investigator||Yes||"[F]ormally separating the investigative and adjudicative roles in the Title IX grievance process is important to reduce the risk and perception of bias, increase the reliability of fact-finding, and promote sound bases for responsibility determinations" Id. at 30,368.|
|Appeal decision-maker||Yes||"[I]t is important for the decision- maker reviewing appeals to be a different person than the person who made the initial decision, in part, because the decision-maker on appeal is asked to review the determination reached
by the original decision-maker (including based on any claim of bias or conflict of interest on the part of the decision-maker)." Id. at 30,563.
Hearing officer (should one be used) serving as:
|Decision-maker||No||"With respect to the roles of a hearing officer and decision- maker, the final regulations leave recipients discretion to decide whether to have a hearing officer (presumably to oversee or conduct a hearing) separate and apart from a decision-maker, and the final regulations do not prevent the same individual serving in both roles." Id. at 30,372.|
|Appeal decision-maker||Yes||"[T]he appeal decision-maker must be a different person than the Title IX Coordinator or any investigators or decision-makers that reached the initial determination of responsibility, will help to ensure that recipients' appeal processes are adequately independent and effective in curing possible unfairness or error. "Id. at 30,399.|
The Department asserts there is danger in Title IX personnel who serve in multiple roles being improperly influenced by information gleaned from one position when serving in another. See id. at 30,369, 30,370. Setting limitations on which roles may be doubled (primarily separating the investigative and adjudicative functions of a grievance process) protects against the possibility of these improper influences. Id. The Department believes that creating this separation will help to ensure that determinations are based only on the relevant evidence and therefore increase the overall reliability of those determinations. Id.
Grievance Process Outcomes:
|The number of particular outcomes either determining responsibility or non- responsibility||No||"the mere fact that a certain number of outcomes result in determinations of responsibility, or non- responsibility, does not necessarily indicate or imply bias on the part of Title IX personnel" Id. at 30,252.|
The Department cautions against presuming bias based on the outcomes of prior grievance procedures. Id. at 30,252. Because the regulations require each case be determined on its merits, the number of particular outcomes determining responsibility or non-responsibility, alone, do not indicate bias. Id.
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