D. Process A: Grievance Process For Qualifying Allegations Of Sexual Harassment Under Title IX
Process A procedures apply only to qualifying allegations of sexual harassment under Title IX (including sexual assault, dating violence, domestic violence, and stalking, as defined in this Policy) involving students, staff, administrators, or faculty members.
1. Right to an Advisor
The parties may each have an advisor of their choice, at their expense, present with them for all meetings and interviews within the resolution process, if they so choose. A party may elect to change advisors during the process and is not obligated to use the same advisor throughout.
a. Who Can Serve as an Advisor
The parties may select whoever they wish to serve as their Advisor. The advisor may be a friend, mentor, advocate, family member, attorney, or any other individual a party chooses to advise, support, and/or consult with them throughout the resolution process, and at their own expense. The parties may choose advisors from inside or outside of the Central community.
b. Advisors in Hearings/College-Appointed Advisor
Under U.S. Department of Education regulations applicable to Title IX, cross-examination is required during the hearing, but must be conducted by the parties’ advisors. The parties are not permitted to directly cross-examine each other or any witnesses. If a party does not have an advisor for a hearing, the College will appoint an advisor for the limited purpose of conducting any cross-examination. A party may reject this appointment and choose their own advisor, but they may not proceed without an advisor. If a party does not have an advisor, the College will appoint an advisor and the selection will be in the College’s sole discretion. The College 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 College is not obligated to provide an attorney.
c. Advisor’s Role
The parties may be accompanied by their advisor in all meetings and interviews at which the party is entitled to be present, including intake and interviews.
All advisors are subject to the same College policies and procedures, whether they are attorneys or not. Advisors are expected to advise their advisees without disrupting proceedings. The advisor may not make a presentation or represent their advisee during any meeting or proceeding and may not speak on behalf of the advisee to the Investigator(s) or other Decision-maker(s), with the sole exception of conducting cross-examination during a hearing proceeding. In conducting cross-examination, the advisor will not be abusive towards any party or witness, and will act with appropriate decorum.
The parties are expected to ask and respond to questions on their own behalf throughout the investigation phase of 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.
Any advisor who oversteps their role as defined by this policy will be warned only once. If the advisor continues to disrupt or otherwise fails to respect the limits of the advisor role, the meeting will be ended, or other appropriate measures implemented. Subsequently, the Title IX Coordinator will determine how to address the advisor’s non-compliance and future role.
d. Sharing Information with the Advisor
The College expects that the parties may wish to have documentation and evidence related to the allegations shared with their advisors. Parties may share this information directly with their advisor, but the advisor will be under the same expectations of privacy as the party. These records may not be shared with third parties, disclosed publicly, or used for purposes not explicitly authorized by the College. The College may seek to restrict the role of any advisor who does not respect the sensitive nature of the process or who fails to abide by the College’s privacy expectations. The College may require both parties and their advisors to enter into a written agreement prohibiting the use or dissemination of evidence for any purpose other than those directly related to the parties’ participation in resolution process.
2. Informal Resolution
After the filing of a formal complaint, the College may facilitate an informal resolution between the parties, and at any time prior to the Decision-Maker’s determination of responsibility via the issuance of a written decision.
The Title IX Coordinator will assess the severity of the alleged harassment and the potential risk of a hostile environment for others in the community to determine whether informal resolution may be appropriate. Informal Resolution will not be available to resolve allegations involving an employee sexually harassing a student.
The College will not require the parties to participate in the Informal Resolution process as a condition of enrollment, continuing enrollment, or employment or continuing employment, or of any other right conferred by the College.
The Title IX Coordinator, or trained designee, will provide the parties with a written notice of the allegations, the requirements of the informal resolution process set forth in this Policy, the right of any party to withdraw from the informal process and proceed with the formal complaint resolution process above, at any time prior to agreeing to a resolution; and any consequences resulting from the participation in the informal process, including the records that will be maintained or could be shared by the College. Both parties must voluntarily consent in writing to participation in the informal resolution process.
The Title IX Coordinator, or trained designee, will attempt to aid the parties in finding a mutually acceptable resolution to the complaint. This resolution will be reduced to writing and must be signed by the Complainant and the Respondent. Once both parties have voluntarily signed the written resolution, the written resolution becomes final and neither party can initiate the formal complaint resolution process above to resolve the allegations in the formal complaint. The written resolution is not subject to appeal.
3. Formal Resolution Process
a. Notice of Investigation and Allegations
The Title IX Coordinator will provide written notice of the investigation and allegations (the “NOIA”) simultaneously to both parties.
The NOIA will include:
• The identity of the involved parties (if known),
• The misconduct being alleged,
• The date and location of the alleged incident(s) (if known),
• The policies potentially implicated,
• A statement that the College presumes the Respondent is not responsible for the reported misconduct unless and until the evidence supports a different determination,
• The parties’ rights to have an advisor of their choice at the party’s expense, who may be an attorney,
• A statement informing the parties that the College’s Policy prohibits knowingly making false statements, including knowingly submitting false information during the resolution process, and may constitute an independent basis for disciplinary sanctions, up tand including suspension or expulsion of a student or termination of an employee’s employment;
• The name(s) of the Investigator(s), along with a process to identify, in advance of the interview process, to the Title IX Coordinator any conflict of interest that the Investigator(s) may have, and
• The parties’ rights to review and comment on investigative evidence.
The NOIA shall be provided prior to the initial interview of any party, and within a sufficient amount of time to prepare. Parties will also be provided advance notice in writing of the date, time, location, participants, and purpose of any interview, hearing, or meeting in the investigation and resolution process.If, during the course of investigation, the College determines that additional allegations will be investigated as part of the pending complaint, the Title IX Coordinator or designee will provide written notice of the additional allegations to any identified Complainant(s) or Respondent(s).
b. Investigators
Once the decision to commence a formal investigation is made, the Title IX Coordinator appoints an investigator or investigators who have received annual training to investigate campus matters of sexual harassment and on how to conduct an investigation and hearing process that protects the safety of victims and promotes accountability to conduct the investigation, usually within two (2) business days of determining that an investigation should proceed. The investigation team may be composed of internal Pool members, external professionals, or a combination of both.
To ensure impartiality the Title IX Coordinator will vet assigned investigators to ensure there are no actual or apparent conflicts of interest or disqualifying biases. If, prior to the initiation of the investigation, either party alleges that an investigator has a conflict of interest, the Title IX Coordinator will decide whether to excuse the investigator and announce this decision in writing to both parties. If the Title IX Coordinator determines that the investigator should be excused, or if an investigator is unavailable to conduct the investigation, the Title IX Coordinator will appoint a replacement investigator.
c. Investigation Process
All investigations are thorough, reliable, impartial, prompt, and fair. Investigations involve interviews with all relevant parties and witnesses; obtaining available, relevant evidence, both inculpatory and exculpatory.
While in-person interviews for parties and all potential witnesses are ideal, circumstances (e.g., study abroad, summer break) may require individuals to be interviewed remotely. Skype, Zoom, FaceTime, WebEx, or similar technologies may be used for interviews if the Investigator(s) determine that timeliness or efficiency dictate a need for remote interviewing. The College will take appropriate steps to reasonably ensure the security/privacy of remote interviews.
All investigations will be conducted as discreetly as is practicable. All interviews will be audio recorded, and all such recordings shall at all times remain the property of the College. No unauthorized audio or video recording of any kind is permitted during investigation meetings. Investigator(s) are encouraged to confer with the Title IX Coordinator throughout the process in an effort to ensure compliance with the outlined processes.
The burden of proof and the burden of gathering sufficient evidence to reach a determination of responsibility rests with the College and not with the parties. The investigation may include, but is not limited to, interviews with the Complainant, the Respondent, any witnesses identified by the parties or by the investigator as having information relevant to the complaint, and collecting and reviewing any relevant documents, communications, or physical evidence if possible. The Investigation typically includes the following:
• Interview the Complainant and Respondents separately. Each party will be asked to participate in an initial interview and may be asked to participate in a follow-up interview(s) as needed.
• Each party may offer witnesses and other information, documents or other evidence relevant to the complaint, both inculpatory and exculpatory. Information, documents or other evidence provided by the parties and witnesses may be shared with both parties during the investigation.
• The order of the interviews will be determined by the Investigator(s) based on the circumstances of each complaint.
• The investigator(s) will make a good faith effort to contact and interview relevant witnesses.
• In the event Complainant or Respondent request reasonable accommodations during the investigation process due to a disability, the investigator(s) will consult with the Title IX Coordinator.
Neither party will be restricted in their ability to discuss the allegations or to gather and present relevant evidence; provided, however, that such communications shall not constitute harassment of or retaliation against any party.
The Investigator(s) will evaluate all relevant evidence, both inculpatory and exculpatory. The Investigator(s) will only access, consider, disclose, or otherwise use a party’s treatment records made or maintained by a health care provider, or other records protected under a legally recognized privilege, if the party provides the investigator(s) with voluntary, written consent to do so. The Investigator will also deem irrelevant questions and evidence about the Complainant’s sexual predisposition or prior sexual behavior, unless such questions and evidence about the Complainant’s prior sexual behavior are offered to prove that someone other than the Respondent committed the conduct alleged by the Complainant, or 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.
d. Inspection and Review of the Evidence and Investigation Report
Prior to the completion of the investigation report, the Complainant and Respondent and, unless directed otherwise by the respective parties, their advisors, will be provided the opportunity to inspect all evidence directly related to the allegations of the formal complaint, including both inculpatory and exculpatory evidence, and evidence that the College does not intend to rely on in reaching a determination. The College may require both parties and their advisors to enter into a written agreement prohibiting the use or dissemination of evidence for any purpose other than those directly related to the parties’ participation in the resolution process.
Complainant and Respondent will be given at least ten days to inspect and review the evidence collected during the College’s investigation and to submit a written response that the Investigator(s) will consider in preparing a final investigation report. The parties can waive all or part of this inspection period.
The final investigation report will summarize the information and include any documents gathered. The investigative report will not include determination of responsibility for the complaint itself. Complainant and Respondent will be given at least an additional ten days after receiving a copy of the College’s final investigation report to respond to the investigation report, in writing. In their written response to the investigation report, Complainant and Respondent may provide written comments regarding the relevance of the evidence included in or excluded from the investigation report, provide factual or other corrections to the report, and otherwise provide context for the report.
The final investigation report will be distributed, concurrently, to both of the parties and the Title IX Coordinator at least ten (10) calendar days prior to a hearing to determine responsibility.
e. Hearing
After the conclusion of the investigation, the Title IX Coordinator will refer the matter for a hearing.
The Title IX Coordinator will select a three-member panel of appropriate Decision-makers, which may include members of the Pool or external Decision-makers. One Decision-maker will be appointed by the Title IX Coordinator as Chair for the hearing. The Decision-makers will not have had any previous involvement with the investigation.
i. Notice of Hearing
No less than ten (10) calendar days before the hearing, the Title IX Coordinator or designee will prepare and send the parties a written notice of the time and date of the hearing, as well as the identities of the Decision-Maker(s). Within five (5) calendar days, either the Complainant or Respondent may request, in writing to the Title IX Coordinator, that the Decision-Maker(s) be recused because of an identified conflict of interest. Decision-makers will only be removed if the Title IX Coordinator concludes that their bias or conflict of interest precludes an impartial hearing of the allegation(s).
If a party requests, the entire hearing will be conducted with the parties in separate rooms with technology enabling the Decision-Maker(s) and parties to simultaneously see and hear the witness answering questions.
ii. Notice of Witnesses
At least five (5) calendar days before the hearing, the Decision-Maker(s) will notify the parties in advance which witnesses (including Complainant or Respondent) they would like to be present at the hearing. The Decision-Maker(s) or designee will notify these witnesses of the hearing date and time
and that their presence has been requested. Any witness called by the Decision-Maker(s) will also be expected to answer questions from the parties.
• When notifying the parties of these witnesses, the Decision-Maker(s) will also request the parties identify any additional witnesses they wish to have present at the hearing for cross-examination.
• The Decision-Maker(s) or designee will notify relevant witnesses of the hearing date and time and that their presence has been requested by the party for cross-examination.
iii. Pre-Hearing Meetings
The Chair may convene a pre-hearing meeting(s) with the parties to invite them to submit the questions or topics they wish to ask or discuss at the hearing, so that the Chair can consider and discuss their relevance ahead of time. However, this advance review discussion does not preclude a party from introducing evidence or an advisor from asking any cross-examination question at hearing.
The Chair, only with full agreement of the 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 investigation report or during the hearing.
At each pre-hearing meeting with a party, the Chair may consider arguments that evidence identified in the final investigation report as relevant is, in fact, not relevant. Similarly, evidence identified as directly related but not relevant by the Investigator(s) may be argued to be relevant. The Chair may rule on these arguments pre-hearing and will exchange those rulings between the parties prior to the hearing to assist in preparation for the hearing. The Chair may consult with legal counsel and/or the Title IX Coordinator, or ask either or both to attend pre-hearing meetings.
iv. Hearing Procedures
At the hearing, the Decision-maker(s) have the authority to hear and make determinations on all allegations of discrimination, harassment, and/or retaliation.
The hearing is closed to the general public. Participants at the hearing will include the Chair, any additional Decision-Makers, the parties, Advisors to the parties, any called witnesses (which could include the Investigators), and anyone providing authorized accommodations or assistive services. Any additional persons present must be approved by the Chair.
The Chair will answer all questions of procedure and make all evidentiary rulings. There shall be no formal pleadings, legal memorandum, or motions filed in the hearing process.
Hearings (but not post-hearing deliberations) are recorded by the College for purposes of review in the event of an appeal. The parties may not record the proceedings and no other unauthorized recordings are permitted. No person will be given or be allowed to make a copy of the recording without permission of the Title IX Coordinator.
The Chair conducts the hearing, which may include, but is not limited to, the following steps, in the Chair’s discretion:
• The Chair explains procedures and introducing participants;
• The Chair will advise the parties if opening statement or closing statements are permissible;
• If Investigator(s) are called as witnesses, they may be asked to present a summary of the final investigation report, and will be subject to questioning by the Decision-maker(s) and the parties (through their Advisors). Neither the parties nor the Decision-maker(s) should ask the Investigator(s) their opinions on recommended findings, or determinations. If such information is introduced, the Chair will direct that it be disregarded.
• The parties may be asked if they have any additional evidence they wish the Decision-Maker(s) consider, and if the parties wish to comment on the Investigation Report and evidence. Any new evidence presented by a party, if admitted as relevant, will be provided to the other party to review and provide comment
Testimony and questioning: Parties will be allowed, through their advisors, to cross-examine all other parties and any witnesses, including fact and expert witnesses, and to ask all relevant questions and follow-up questions including those challenging party or witness credibility, directly, orally and in-real time. Any party without an advisor will be appointed an advisor by the College, with selection of the advisor being at the sole discretion of the College. The following applies to cross-examination:
o All questions are subject to a relevance determination by the Chair. The advisor, who will remain seated during questioning, will pose the proposed question orally, electronically, or in writing. The Chair will limit or disallow questions on the basis that they are irrelevant, unduly repetitious (and thus irrelevant), or abusive.
The Chair may ask advisors to frame why a question is or is not relevant from their perspective, if the Chair so chooses. The Chair will explain any decision to exclude a question as not relevant. The Chair has final say on all questions and determinations of relevance, subject to any appeal.
If a party’s advisor of choice refuses to comply with the College’s established rules of decorum for the hearing, the College may require the party to use a different advisor. If a College-provided advisor refuses to comply with the rules of decorum, the Title IX Coordinator may provide that party with a different advisor to conduct cross-examination on behalf of that party.
v. Refusal to Submit to Cross-Examination and Inferences
If a party or witness chooses not to submit to cross-examination at the hearing, either because they do not attend the meeting after being called, or they attend but refuse to participate in questioning, then the Decision-maker(s) may not rely on any prior statement made by that party or witness at the hearing (including those contained in the investigation report) in the ultimate determination of responsibility. Evidence provided that is something other than a statement by the party or witness may be considered.
The Decision-maker(s) may not draw any inference solely from a party’s or witness’s absence from the hearing or refusal to answer cross-examination or other questions.
f. Deliberation, Decision-Making, and Standard of Proof
The Decision-maker(s) will deliberate in closed session to determine whether the Respondent is responsible or not responsible for the policy violation(s) in question. If a panel is used, a simple majority vote is required to determine a finding. The preponderance of the evidence standard of proof is used, which generally means “more likely than not.” The Decision-Maker(s) will independently evaluate the evidence, without deference to the investigative report.
A written decision called a Notice of Outcome will be provided simultaneously to the parties and include the following information:
1) allegations of sexual harassment,
2) procedural history (including specifics about notifications of hearings, meetings and interviews, methods used to gather evidence and hearings held),
3) findings of fact supporting the decision,
4) conclusions regarding application of policy to the facts,
5) rationale for the decision/finding of responsibility as it applies to each allegation,
6) disciplinary sanctions imposed on respondent, if any,
7) whether (but not the nature of) remedies designed to restore/preserve equal access to any or all education programs or activities that will be provided to the Complainant, and
8) procedure and permissible bases for appeal.
The Title IX Coordinator will be responsible for coordinating the effective implementation of remedies, as well as any non-punitive or non-disciplinary supportive measures imposed. The possible range of sanctions and remedies are detailed in Section VIII(G) below.The Notice of Outcome, including the imposition of any sanctions, will become final upon written notification to the parties of the outcome of an appeal or, if there is no appeal, the date on which an appeal would no longer be considered timely. The Appeal Rights and Procedures are detailed in Section VIII(F) below.