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Policy 1436 – Process A – Title IX Grievance Process

Overview

Process A and the procedures below apply only to qualifying allegations of sexual harassment (including, sexual assault, dating violence, domestic violence, and stalking, involving students, staff, administrator, or faculty members within the scope of Title IX jurisdiction.

Process B applies to power-based violence (including sexual harassment, sexual assault, dating violence, domestic violence, and stalking, and sexual exploitation) when jurisdiction does not fall within Process A, as determined by the Title IX Coordinator.

Introduction

The Title IX Grievance Process addresses allegations of Title IX Sexual Harassment subject to the Title IX Regulations adopted by the U.S. Department of Education (USDOE), effective August 14, 2020. Conduct that falls outside the scope of the Title IX Regulations (i.e., power-based violence) should be addressed by Process B. The Title IX Grievance Process and its terms supersede any policies pertaining to the investigation or adjudication of “sexual harassment” as defined in this protocol.

I. Scope

The USDOE’s Title IX Regulations apply to both:

  1. Conduct on the basis of sex that constitutions “sexual harassment” (§106.30); and
  2. Conduct that relates to the University’s “education program or activity” against a person in the United States on or after August 14, 2020.

A. Sexual Harassment (§106.30)

Sexual harassment is defined as conduct on the basis of sex that satisfies one or  more of the following criteria:

  1. An employee of the University conditioning the provision of an aid, benefit, or service of the recipient on an individual’s participation in unwelcome sexual conduct;
  2. Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity; and/or
  3. “Sexual assault” as defined in 20 U.S.C. 1092(f)(6)(A)(v), “dating violence” as defined in 34 S.C. 12291(a)(10), “domestic violence” as defined in 34 U.S.C. 12291(a)(8), or “stalking” as defined in 34 U.S.C. 12291(a)(30).

B. Education Program or activity

An education program or activity includes locations, events, or circumstances in which the University exercises substantial control over both the Respondent and the context in which the sexual harassment occurs, and also includes any building owned or controlled by a student organization that is officially recognized by the University. The Title IX Regulations exclude any education program or activity that does not occur in the United States. (§106.44(a).)

Conduct that does not satisfy the USDOE’s jurisdictional requirement, such as off- campus behavior alleged to have an on-campus effect, may be addressed under alternative procedures such as the overarching BOR‘s Policy addressing Power- Based Violence.

II. Equitable Treatment

As required by the Title IX Regulations, the University is to treat Complainants and Respondents equitably by: (1) offering Supportive Measures to a Complainant, and (2) following a grievance process that complies with the procedural requirements of the Title IX Regulations before the imposition of any disciplinary sanctions against a Respondent. (§ 106.44(a); § 106.45(b)(1)(i).) Supportive Measures also may be offered as needed to Respondents and other individuals who belong to the University’s community and who may be affected by sexual harassment.

An individual’s status as a Respondent shall not be considered a negative factor during any process under this Procedure. Respondents are entitled to, and will receive the benefit of, a presumption that they are not responsible for the alleged conduct unless and until the process concludes and a determination regarding responsibility is issued. Similarly, a person’s status as a Complainant, Respondent, or witness will not determine whether that person is deemed credible. (§ 106.45(b)(1)(ii-iv).)

Remedies are to be provided to a Complainant only if the grievance process described in this Procedure results in a determination that the Respondent is responsible for sexual harassment. Remedies are designed to restore or preserve equal access to the University’s education program or activity and may include the same individualized services as Supportive Measures. Remedies may be disciplinary and punitive and may burden a Respondent. (§106.45(b)(1)(i).)

Title IX Coordinators, investigators, decision makers, and any person who facilitates an informal resolution process (collectively, Title IX Administrators) will not have a conflict of interest or bias in favor of or against any party or participant in sexual misconduct (i.e., Complainants, Respondents, or Witnesses).

III. Overview of key terms

For purposes of this Title IX Grievance Process, key terms are defined as follows:

Actual Knowledge: Notice of sexual harassment or allegations of sexual harassment to the University’s Title IX Coordinator or any official of the University who has authority to institute corrective measures on behalf of the University.

Complainant: An individual who is alleged to be the victim of conduct that could constitute sexual harassment.

Formal Complaint: Under the Title IX Grievance Policy, a document filed by a Complainant or signed by the Title IX Coordinator alleging sexual harassment against a Respondent and requesting that the University investigate the allegation. At the time of filing a Formal Complaint, a Complainant must be participating in or attempting to participate in the education program or activity of the University with which the Formal Complaint is filed. A Formal Complaint may be filed with the Title IX Coordinator in person, by mail, by e-mail, or by any additional method designated by the University.  Alternatively, following an initial Report and if the individual wishes to pursue a Formal Complaint, the reporting individual should meet with the Title IX Coordinator to provide a verbal description of the sexual harassment which the Title IX Office will use to draft a written document that the individual will review, verify, and sign to constitute a Formal Complaint.

Respondent: An individual alleged to be the perpetrator of conduct that could constitute sexual harassment under Title IX.

Sexual Harassment: Conduct on the basis of sex that satisfies one or more of the following criteria:

  1. An employee of the University conditioning the provision of an aid, benefit, or service of the recipient on an individual’s participation in unwelcome sexual conduct;
  2. Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity; and/or
  3. “Sexual assault” as defined in 20 S.C. 1092(f)(6)(A)(v), “dating violence” as defined in 34 U.S.C. 12291(a)(10), “domestic violence” as defined in 34 U.S.C. 12291(a)(8), or “stalking” as defined in 34 U.S.C. 12291(a)(30).

Supportive Measures: Non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the parties before or after the filing of a Formal Complaint or where no Formal Complaint has been filed. Such measures are designed to restore or preserve equal access to the education program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties or the University’s educational environment, or deter sexual harassment. Supportive Measures may include counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, campus escort services, mutual restrictions on contact between the parties, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of the campus, and other similar measures.

IV. Time frame to resolve grievance

The University will make a good faith effort to complete the resolution process within sixty-to-ninety (60-90) business days, including appeal, which can be extended as necessary for appropriate cause by the Title IX Coordinator, who will provide notice and rationale for any extensions or delays to the parties as appropriate, as well as an estimate of how much additional time will be needed to complete the process.  Rationale may include considerations such as the absence of a party, a party’s advisor, or a witness; concurrent law enforcement activity; or the need for language assistance or accommodation of disabilities.

V. Formal grievance process

This section outlines the steps taken to initiate a grievance and procedural requirements for investigations and adjudications of Formal Complaints in accordance with federal regulations.

A. Filing a formal complaint

 A Formal Complaint is a document filed by a Complainant or signed by the Title IX Coordinator alleging sexual harassment as defined by the Title IX Regulations against a Respondent and requesting the University investigate the allegation of sexual harassment. The submission of a Formal Complaint and its receipt by the Title IX Coordinator triggers the Formal Grievance Process.

A Formal Complaint must be in writing and may be filed with the Title IX Coordinator in person, by mail, or by e-mail. The Formal Complaint must contain the Complainant’s physical or digital signature, or some other indication that the Complainant is the person filing it. (§106.30.) At the time of filing a Formal Complaint, a Complainant must be participating in or attempting to participate in the education program or activity.

When the University receives an allegation of conduct that falls within the scope of the Title IX Grievance Procedure, whereby it meets both the Title IX Regulations’ definition of “sexual harassment” and their jurisdictional requirements (see Section II), but no Formal Complaint is filed, then the Title IX Regulations prevent the University from administering a formal grievance process (including any informal or early resolution) that permits the imposition of any disciplinary sanctions or other actions against a Respondent. Supportive Measures, however, may still be offered.

B. Title IX coordinator filing complaint

A Title IX Coordinator may sign a Formal Complaint to initiate or continue the Title IX Formal Grievance Procedure, if necessary, to fulfill the University’s duty under Title IX to not be deliberately indifferent to actual knowledge of sexual misconduct.

Signing a Formal Complaint does not make a Title IX Coordinator a Complainant or otherwise a party.

C. Withdrawal

After filing a Formal Complaint, a Complainant may withdraw their Formal Complaint at any time by providing written notice to the Title IX Coordinator. That withdrawal concludes the Title IX Formal Grievance Procedure process unless the Title IX Coordinator takes action under Subsection B of this Section.

D. Consolidation

The University, at its discretion, may consolidate Formal Complaints alleging sexual harassment against more than one Respondent, or by more than one Complainant against one or more Respondents, or by one party against the other party, where the allegations of sexual harassment arise out of the same facts or circumstances.

E. Mandatory dismissal

If the conduct alleged in the Formal Complaint does not satisfy the requirements of sexual harassment as defined by §106.30, the University must dismiss the Formal Complaint under this grievance process. However, the Title IX Coordinator will transfer the Complaint to the University’s process addressing power-based violence (Process B) for review and possible investigation and resolution.

The University will notify the parties simultaneously and in writing that the Formal Complaint is being dismissed for the purposes of the Title IX Grievance Process, and of the transfer if applicable. Each party may appeal this dismissal using the procedures outlined in the University’s policy.

F. Permissive dismissal

The University may dismiss a Formal Complaint or any allegations therein, if at any time during the investigation or hearing:

  1. A Complainant notifies the Title IX Coordinator in writing that the Complainant would like to withdraw the Formal Complaint or any allegations therein;
  2. The Respondent is no longer enrolled in or employed by the University; or
  3. Specific circumstances prevent the University from gathering evidence sufficient to reach a determination as to the Formal Complaint or allegations

Upon dismissal, the University must promptly send written notice of the dismissal and reason(s) simultaneously to the parties.

VI. Initial steps and determination of appropriate procedures

Upon Actual Knowledge of a Report of alleged conduct, the Title IX Office should perform an initial assessment, including making initial contact with the potential Complainant of the Report and offering information as well as Supportive Measures.  The Title IX Office should notify the potential Complainant of the option to have an Advisor accompany them to any meeting or interview related to the Title IX Grievance Process.

In initial contact with a potential Complainant, the Title IX Office should also:

  1. Give the potential Complainant a copy of the relevant policies;
  2. Explain the process for filing a Formal Complaint with the Title IX Office;
  3. Provide the potential Complainant with information regarding the rights/responsibilities as a party in this matter (See Statement of Parties’ Rights);
  4. Explain the process for investigating and resolving a Title IX Formal Complaint (including the available appeal procedures);
  5. Explain the procedural differences based on Title IX vs power-based violence conduct;
  6. Instruct the potential Complainant not to destroy any potentially relevant documentation in any format;
  7. Inform the individual of the availability of Supportive Measures with or without the filing of a Formal Complaint;
  8. Discuss the potential Complainant’s expressed preference for manner of resolution and any barriers to proceeding (e.g., confidentiality concerns);
  9. Explain the prohibition against retaliation; and
  10. Communicate necessary details of the report to the campus police department for entry into the Institution’s daily crime log.

The University should address all Reports of power-based violence or Title IX Sexual Harassment reported to the Title IX Coordinator regardless of whether the Report becomes a Formal Complaint. The investigation and adjudication procedures (if needed) will be prompt, fair, and impartial.

If the initial assessment reveals that the alleged conduct does meet the definition of sexual harassment as contained within the USDOE’s Title IX Regulations, the investigation must proceed pursuant to the Title IX Formal Grievance Process below. If the alleged conduct does not meet the USDOE’s definition of sexual harassment, the investigation will proceed pursuant to Process B addressing Power-Based Violence.

VII. Investigation

A. Notice

Upon receipt of a Formal Complaint, the University must provide written notice of the following to known parties:

  1. The investigation and adjudication process, including any informal processes;
  2. Allegations of sexual harassment, including sufficient details known at the Sufficient details include the identities of the parties involved in the incident, if known, the conduct allegedly constituting sexual harassment, and the date and location of the alleged incident, if known;
  3. 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;
  4. The parties may have an advisor of their choice, who may be, but is not required to be, an attorney;
  5. The parties may inspect and review evidence;
  6. The parties are prohibited from knowingly making false statements or knowingly submitting false information during the investigation and adjudication process; and
  7. If the University decides to investigate additional allegations not included in the original notice, it must provide notice of the additional allegations to   the parties whose identities are

B. Investigation procedure 

The Title IX Coordinator shall appoint an Investigator to investigate the allegations documented in the Formal Complaint. The investigation may include, among other steps, interviewing the Complainant, the Respondent, and any witnesses; reviewing law enforcement investigation documents if applicable; reviewing relevant student or employment files; and gathering and examining other relevant documents, social media posts, and other evidence.

The Investigator will attempt to collect all relevant information and evidence. Following the investigation, the Investigator will draft an investigation report succinctly describing all collected information. The Investigator will not make any determination as to whether a policy violation has occurred or recommend potential sanctions.

While investigating the allegations of any Formal Complaint of sexual harassment, the Investigator will conduct an objective evaluation of all relevant evidence. Relevant evidence is any evidence that may tend to make the allegations at issue more or less likely to be true. (See §106.45(b)(1)(ii).)

In assessing allegations of sexual harassment, the University shall apply the preponderance of the evidence standard for all assessments and all Formal Complaints, regardless of whether the Respondent or Complainant is a Student or Employee. 

When investigating a Formal Complaint and throughout the investigation and adjudication process, the University must:

  1. Ensure that the burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility rest on the University and not on the parties;
  2. Provide an equal opportunity for the parties to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence;
  3. Not restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence;
  4. Provide the parties with the same opportunities to have others present during any investigation or adjudication proceeding, including the opportunity to be accompanied to any related meeting or proceeding by the advisor of their choice, who may be, but is not required to be, an attorney, and not limit the choice or presence of advisor for either the Complainant or Respondent in any meeting or grievance proceeding; however, the University may establish restrictions regarding the extent to which an advisor may participate in the proceedings, as long as the restrictions apply equally to both parties’ advisors;
  5. Provide written notice to each party of the date, time, location, participants, and purposes of each Formal Grievance Process meeting in which they are invited to participate, with sufficient time for the party to prepare to participate;
  6. Provide both parties an equal opportunity to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in a Formal Complaint, including the evidence upon which the University does not intend to rely in reaching a determination regarding responsibility and inculpatory or exculpatory evidence whether obtained from a party or other source, so that each party can meaningfully respond to the evidence prior to the conclusion of the investigation.
    1. Prior to completion of the investigative report, the University must send the report to each party and the party’s advisor, if any, the evidence subject to inspection and review in an electronic format or a hard copy, and the parties must have at least 10 days to submit a written response, which the investigator will consider prior to completion of the investigative report.
    2. The University must make available at any hearing all such evidence subject to the parties’ inspection and review, to give each party equal opportunity to refer to such evidence during the hearing, including for purposes of cross-examination; and
  7. Create an investigative report that fairly summarizes relevant evidence and, at least 10 days prior to the hearing, send to each party and each party’s advisor, if any, the investigative report in an electronic format or a hard copy, for their review and written response.

C. Hearings

The University must provide for a live hearing. A panel of no less than three trained Decision-Makers will consider all of the evidence presented and determine whether a Respondent is responsible for a violation of this protocol. The Decision-Makers will not include the Title IX Coordinator or the investigator. Cases may be adjudicated by a trained third-party Decision-Maker outside of the University as opposed to a panel of internal trained Decision-Makers in the Title IX Coordinator’s discretion.

At the request of either party, the University must provide for the live hearing to occur with the parties located in separate rooms, with technology enabling the Decision-Makers and parties to simultaneously see and hear the party or the witness answering questions. The University will create a transcript or recording (audio or audiovisual) of any adjudicative hearing to be made available to the parties for inspection and review pursuant to FERPA.

At the live hearing, the Decision-Makers must permit each party’s advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility. Cross-examination at the live hearing must be conducted directly, orally, and in real time by the party’s advisor of choice and never by a party personally. (106.45(b)(6)(i).) Only relevant cross-examination and other questions may be asked of a party or witness. Advisors may be present solely to advise or support the party and are prohibited from speaking directly to the Investigator, Decision-Makers, other parties, or witnesses during the hearing, except for conducting cross examination.

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. If a party does not have an advisor present at the live hearing, the University must provide, without fee or charge to that party, an advisor of the University’s choice, who may be, but is not required to be, an attorney, to conduct cross-examination on behalf of that party.

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.

In reaching a determination regarding responsibility, the Decision-Makers may rely, if appropriate, on a statement of a party or a witness even if that party or witness does not submit to cross-examination. However, the decision-maker(s) cannot draw an inference about the determination regarding responsibility based solely on a party’s or witness’s absence from the live hearing or refusal or answer cross-examination or other questions.

Live hearings may be conducted with all parties physically present in the same geographic location or, at the University’s discretion, any or all parties, witnesses, and other participants appearing at the live hearing virtually, with technology enabling participants simultaneously to see and hear each other.

The University must create an audio or audiovisual recording, or transcript, of any live hearing and make it available to the parties for inspection and review.

D. Determination regarding responsibility

The Decision-Makers, must issue, simultaneously to both parties, a written determination regarding responsibility, which must include:

  1. Identification of the allegations potentially constituting sexual harassment;
  2. A description of the procedural steps taken from 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;
  3. Findings of fact supporting the determination;
  4. Conclusions regarding the application of the University’s policy to the facts;
  5. A statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility, any sanctions the University will impose on the Respondent, and whether remedies designed to restore or preserve equal access to the education program or activity will be provided to the Complainant; and
  6. Procedures and permissible bases for parties to appeal.

The determination regarding responsibility becomes final either on the date that the recipient provides the parties with the written determination of the result of the appeal, if an appeal is filed or, if an appeal is not filed, the date on which an appeal would no longer be considered timely.

E. Sanctions

Student Sanctions

The following are the usual sanctions that may be imposed upon students. See the Louisiana Tech Student Handbook for a complete listing of all possible sanctions.

  • Reprimand: A written letter/expression or oral expression statement that the conduct was unacceptable and a warning that further violation of any University policy, procedure, or directive will result in more severe sanctions/responsive actions.
  • Discretionary Censures: Censures that may include but are not limited to parental notification, letter of apology, conflict resolution sessions and university programming.
  • Required Education Counseling: A mandate to meet with and engage in either University-sponsored or external counseling to better comprehend the misconduct and its effects.
  • Suspension: This suspension is for a specified period of time, and the student or the student organization may apply for readmission to the University subsequent to expiration of the specified period. During this period of suspension, the student is banned from the University. A notation will be placed on the student’s transcript “Student is eligible to return (quarter) (year)” when a student is “suspended for disciplinary reasons” for a specified period of time. The transcript indicates which quarter the student will be eligible to return.
  • Permanent Dismissal from the University and Banned from the University. A notation will be placed on a student’s transcript “Student is ineligible to enroll,” when the student is permanently dismissed from the university for disciplinary reasons.

The University will follow Policy 1437 – Transcript Withholding, Notation & Communication in all respects with regard to the Title IX Grievance Process. 

Employee Sanctions

Responsive actions for an employee who has engaged in power-based violence include:

  • Warning – Verbal or Written
  • Performance Improvement/Management Process
  • Required Counseling
  • Required Training or Education
  • Probation
  • Loss of Annual Pay Increase
  • Loss of Oversight or Supervisory Responsibility
  • Demotion
  • Suspension with pay
  • Suspension without pay
  • Termination
  • Other Actions: In addition to or in place of the above sanctions, the University may assign any other sanctions as deemed appropriate.

VIII. Appeals

Both parties may file a written appeal to the Title IX Coordinator within three (3) business days of delivery of a determination regarding responsibility, and of the University’s dismissal of a Formal Complaint or any allegations therein, on the following bases:

  1. A procedural irregularity that affected the outcome of the matter;
  2. New evidence that was not reasonably available at the time that the determination regarding responsibility or dismissal was made, which could affect the outcome of the matter; or
  3. The Title IX Coordinator, investigator(s), or decision maker(s) had a conflict of interest or bias for or against Complainants or Respondents generally or the individual Complainant or Respondent that affected the outcome of the matter.

The Title IX Coordinator will designate an Appeal Decision-Maker(s) to hear the appeal.  The Appeal Decision-Maker(s) can not have served in any prior role with the process. 

The other party and their Advisors, the Title IX Coordinator, and, when appropriate, the Investigators and/or the original Decision-maker(s) will be, emailed, and/or provided a hard copy of the appeal with the approved grounds and then be given three (3) business days to submit a response to the portion of the appeal that was approved and involves them. All responses will be forwarded by the Chair to all parties for review and comment.

The non-appealing party (if any) may also choose to raise a new ground for appeal at this time. If so, that will be reviewed for standing by the Appeal Chair and either denied or approved. If approved, it will be forwarded to the party who initially requested an appeal, the Investigator(s) and/or original Decision-maker(s), as necessary, who will submit their responses in three (3) business days, which will be circulated for review and comment by all parties.

Neither party may submit any new requests for appeal after this time period. The Appeal Decision-Maker(s) will collect any additional information needed and all documentation regarding the approved grounds and the subsequent responses will be shared with the Appeal Decision-Maker(s), and the Appeal Decision-Maker(s) will render a decision in no more than ten (10) business days, barring exigent circumstances. All decisions are by majority vote and apply the preponderance of the evidence standard.

A Notice of Appeal Outcome will be sent to all parties simultaneously including the decision on each approved ground and rationale for each decision.

The Notice of Appeal Outcome will specify the finding on each ground for appeal, any specific instructions for remand or reconsideration, any sanctions that may result which the University is permitted to share according to state or federal law, and the rationale supporting the essential findings to the extent the University is permitted to share under state or federal law.

Notification will be made in writing and will be emailed to the parties’ University-issued email or otherwise approved account. Once emailed and/or received in-person, notice will be presumptively delivered.

Appeal Considerations

  1. Decisions on appeal are to be deferential to the original decision, making changes to the finding only when there is clear error and to the sanction(s)/responsive action(s) only if there is a compelling justification to do so.
  2. Appeals are not intended to provide for a full review (de novo) of the allegation(s). In most cases, appeals are confined to a review of the written documentation and pertinent documentation regarding the specific grounds for appeal.
  3. An appeal is not an opportunity for Appeal Decision-maker(s) to substitute their judgment for that of the original Decision-maker(s) merely because they disagree with the finding and/or sanction(s).
  4. The Appeal Decision-maker(s) may consult with the Title IX Coordinator on questions of procedure or rationale, for clarification, if needed. Documentation of all such consultation will be maintained.
  5. Appeals granted based on new evidence should normally be remanded to the original Investigator(s) and/or Decision-maker(s) for reconsideration. Other appeals may be remanded at the discretion of the Title IX Coordinator or, in limited circumstances, decided on appeal.
  6. Once an appeal is decided, the outcome is final: further appeals are not permitted, even if a decision or sanction is changed on remand (except in the case of a new hearing).
  7. In rare cases where a procedural or substantive error cannot be cured by the original Decision-maker(s) (as in cases of bias), the appeal may order a new determination from a new Decision-maker(s).
  8. The results of a remand to a Decision-maker(s) cannot be appealed. The results of a new determination can be appealed, once, on any of the three available appeal grounds.
  9. In cases in which the appeal results in reinstatement to the University or resumption of privileges, all reasonable attempts will be made to restore the Respondent to their prior status, recognizing that some opportunities lost may be irreparable in the short term.

IX. Informal resolution

At any time prior to reaching a determination regarding responsibility, the University may facilitate an informal resolution process, such as mediation, that does not involve a full investigation and adjudication. The University may not offer an informal resolution process unless a Formal Complaint is filed. The University may not require the parties to participate in an informal resolution process and will not require them to waive their rights to a Title IX Formal Grievance process. (§106.45(b)(9).)  An informal resolution is not available in complaints of a student being sexual harassed by an employee of the University.

The University must:

  1. Provide written notice to the parties disclosing:
    1. The allegations;
    2. The requirements of the informal resolution process, including the circumstances under which it precludes the parties from resuming a Formal Complaint arising from the same allegations;
    3. The fact that at any time prior to agreeing to a resolution, any party has the right to withdraw from the informal resolution process and resume the investigation and adjudication process with respect to the Formal Complaint; and
    4. Any consequences resulting from participation in the informal resolution process, including the records that will be maintained or could be shared; and
  1. Obtain the parties’ voluntary, written consent to the informal resolution process.

X. Recordkeeping

Each University must maintain, for seven (7) years, records of:

  1. Each sexual harassment investigation, including any determination regarding responsibility and any audio or audiovisual recording or transcript required, any disciplinary sanctions imposed on the Respondent, and any remedies provided to the Complainant designed to restore or preserve equal access to the education program or activity;
  2. Any appeal and the result thereof;
  3. Any informal resolution process and the result therefrom; and
  4. All materials used to train Title IX Coordinators, investigators, decision makers, and any person who facilitates an informal resolution process.

Each University must make these training materials publicly available on its website.

The University must create and maintain for seven (7) years records of any actions, including any Supportive Measures, taken in response to a report or Formal Complaint of Sexual Harassment. In each instance, the University must document the basis for its conclusion that its response was not deliberately indifferent, and document that it has taken measures designed to restore or preserve equal access to its education program or activity. If the University does not provide a Complainant with Supportive Measures, then it must document the reasons why such a response was not clearly unreasonable in light of the known circumstances. The documentation of certain bases or measures does not limit the University in the future from providing additional explanations or detailing additional measures taken.

Policy 1436 – Process A – Title IX Grievance Process

Overview

Process A and the procedures below apply only to qualifying allegations of sexual harassment (including, sexual assault, dating violence, domestic violence, and stalking, involving students, staff, administrator, or faculty members within the scope of Title IX jurisdiction.

Process B applies to power-based violence (including sexual harassment, sexual assault, dating violence, domestic violence, and stalking, and sexual exploitation) when jurisdiction does not fall within Process A, as determined by the Title IX Coordinator.

Introduction

The Title IX Grievance Process addresses allegations of Title IX Sexual Harassment subject to the Title IX Regulations adopted by the U.S. Department of Education (USDOE), effective August 14, 2020. Conduct that falls outside the scope of the Title IX Regulations (i.e., power-based violence) should be addressed by Process B. The Title IX Grievance Process and its terms supersede any policies pertaining to the investigation or adjudication of “sexual harassment” as defined in this protocol.

I. Scope

The USDOE’s Title IX Regulations apply to both:

  1. Conduct on the basis of sex that constitutions “sexual harassment” (§106.30); and
  2. Conduct that relates to the University’s “education program or activity” against a person in the United States on or after August 14, 2020.

A. Sexual Harassment (§106.30)

Sexual harassment is defined as conduct on the basis of sex that satisfies one or  more of the following criteria:

  1. An employee of the University conditioning the provision of an aid, benefit, or service of the recipient on an individual’s participation in unwelcome sexual conduct;
  2. Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity; and/or
  3. “Sexual assault” as defined in 20 U.S.C. 1092(f)(6)(A)(v), “dating violence” as defined in 34 S.C. 12291(a)(10), “domestic violence” as defined in 34 U.S.C. 12291(a)(8), or “stalking” as defined in 34 U.S.C. 12291(a)(30).

B. Education Program or activity

An education program or activity includes locations, events, or circumstances in which the University exercises substantial control over both the Respondent and the context in which the sexual harassment occurs, and also includes any building owned or controlled by a student organization that is officially recognized by the University. The Title IX Regulations exclude any education program or activity that does not occur in the United States. (§106.44(a).)

Conduct that does not satisfy the USDOE’s jurisdictional requirement, such as off- campus behavior alleged to have an on-campus effect, may be addressed under alternative procedures such as the overarching BOR‘s Policy addressing Power- Based Violence.

II. Equitable Treatment

As required by the Title IX Regulations, the University is to treat Complainants and Respondents equitably by: (1) offering Supportive Measures to a Complainant, and (2) following a grievance process that complies with the procedural requirements of the Title IX Regulations before the imposition of any disciplinary sanctions against a Respondent. (§ 106.44(a); § 106.45(b)(1)(i).) Supportive Measures also may be offered as needed to Respondents and other individuals who belong to the University’s community and who may be affected by sexual harassment.

An individual’s status as a Respondent shall not be considered a negative factor during any process under this Procedure. Respondents are entitled to, and will receive the benefit of, a presumption that they are not responsible for the alleged conduct unless and until the process concludes and a determination regarding responsibility is issued. Similarly, a person’s status as a Complainant, Respondent, or witness will not determine whether that person is deemed credible. (§ 106.45(b)(1)(ii-iv).)

Remedies are to be provided to a Complainant only if the grievance process described in this Procedure results in a determination that the Respondent is responsible for sexual harassment. Remedies are designed to restore or preserve equal access to the University’s education program or activity and may include the same individualized services as Supportive Measures. Remedies may be disciplinary and punitive and may burden a Respondent. (§106.45(b)(1)(i).)

Title IX Coordinators, investigators, decision makers, and any person who facilitates an informal resolution process (collectively, Title IX Administrators) will not have a conflict of interest or bias in favor of or against any party or participant in sexual misconduct (i.e., Complainants, Respondents, or Witnesses).

III. Overview of key terms

For purposes of this Title IX Grievance Process, key terms are defined as follows:

Actual Knowledge: Notice of sexual harassment or allegations of sexual harassment to the University’s Title IX Coordinator or any official of the University who has authority to institute corrective measures on behalf of the University.

Complainant: An individual who is alleged to be the victim of conduct that could constitute sexual harassment.

Formal Complaint: Under the Title IX Grievance Policy, a document filed by a Complainant or signed by the Title IX Coordinator alleging sexual harassment against a Respondent and requesting that the University investigate the allegation. At the time of filing a Formal Complaint, a Complainant must be participating in or attempting to participate in the education program or activity of the University with which the Formal Complaint is filed. A Formal Complaint may be filed with the Title IX Coordinator in person, by mail, by e-mail, or by any additional method designated by the University.  Alternatively, following an initial Report and if the individual wishes to pursue a Formal Complaint, the reporting individual should meet with the Title IX Coordinator to provide a verbal description of the sexual harassment which the Title IX Office will use to draft a written document that the individual will review, verify, and sign to constitute a Formal Complaint.

Respondent: An individual alleged to be the perpetrator of conduct that could constitute sexual harassment under Title IX.

Sexual Harassment: Conduct on the basis of sex that satisfies one or more of the following criteria:

  1. An employee of the University conditioning the provision of an aid, benefit, or service of the recipient on an individual’s participation in unwelcome sexual conduct;
  2. Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity; and/or
  3. “Sexual assault” as defined in 20 S.C. 1092(f)(6)(A)(v), “dating violence” as defined in 34 U.S.C. 12291(a)(10), “domestic violence” as defined in 34 U.S.C. 12291(a)(8), or “stalking” as defined in 34 U.S.C. 12291(a)(30).

Supportive Measures: Non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the parties before or after the filing of a Formal Complaint or where no Formal Complaint has been filed. Such measures are designed to restore or preserve equal access to the education program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties or the University’s educational environment, or deter sexual harassment. Supportive Measures may include counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, campus escort services, mutual restrictions on contact between the parties, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of the campus, and other similar measures.

IV. Time frame to resolve grievance

The University will make a good faith effort to complete the resolution process within sixty-to-ninety (60-90) business days, including appeal, which can be extended as necessary for appropriate cause by the Title IX Coordinator, who will provide notice and rationale for any extensions or delays to the parties as appropriate, as well as an estimate of how much additional time will be needed to complete the process.  Rationale may include considerations such as the absence of a party, a party’s advisor, or a witness; concurrent law enforcement activity; or the need for language assistance or accommodation of disabilities.

V. Formal grievance process

This section outlines the steps taken to initiate a grievance and procedural requirements for investigations and adjudications of Formal Complaints in accordance with federal regulations.

A. Filing a formal complaint

 A Formal Complaint is a document filed by a Complainant or signed by the Title IX Coordinator alleging sexual harassment as defined by the Title IX Regulations against a Respondent and requesting the University investigate the allegation of sexual harassment. The submission of a Formal Complaint and its receipt by the Title IX Coordinator triggers the Formal Grievance Process.

A Formal Complaint must be in writing and may be filed with the Title IX Coordinator in person, by mail, or by e-mail. The Formal Complaint must contain the Complainant’s physical or digital signature, or some other indication that the Complainant is the person filing it. (§106.30.) At the time of filing a Formal Complaint, a Complainant must be participating in or attempting to participate in the education program or activity.

When the University receives an allegation of conduct that falls within the scope of the Title IX Grievance Procedure, whereby it meets both the Title IX Regulations’ definition of “sexual harassment” and their jurisdictional requirements (see Section II), but no Formal Complaint is filed, then the Title IX Regulations prevent the University from administering a formal grievance process (including any informal or early resolution) that permits the imposition of any disciplinary sanctions or other actions against a Respondent. Supportive Measures, however, may still be offered.

B. Title IX coordinator filing complaint

A Title IX Coordinator may sign a Formal Complaint to initiate or continue the Title IX Formal Grievance Procedure, if necessary, to fulfill the University’s duty under Title IX to not be deliberately indifferent to actual knowledge of sexual misconduct.

Signing a Formal Complaint does not make a Title IX Coordinator a Complainant or otherwise a party.

C. Withdrawal

After filing a Formal Complaint, a Complainant may withdraw their Formal Complaint at any time by providing written notice to the Title IX Coordinator. That withdrawal concludes the Title IX Formal Grievance Procedure process unless the Title IX Coordinator takes action under Subsection B of this Section.

D. Consolidation

The University, at its discretion, may consolidate Formal Complaints alleging sexual harassment against more than one Respondent, or by more than one Complainant against one or more Respondents, or by one party against the other party, where the allegations of sexual harassment arise out of the same facts or circumstances.

E. Mandatory dismissal

If the conduct alleged in the Formal Complaint does not satisfy the requirements of sexual harassment as defined by §106.30, the University must dismiss the Formal Complaint under this grievance process. However, the Title IX Coordinator will transfer the Complaint to the University’s process addressing power-based violence (Process B) for review and possible investigation and resolution.

The University will notify the parties simultaneously and in writing that the Formal Complaint is being dismissed for the purposes of the Title IX Grievance Process, and of the transfer if applicable. Each party may appeal this dismissal using the procedures outlined in the University’s policy.

F. Permissive dismissal

The University may dismiss a Formal Complaint or any allegations therein, if at any time during the investigation or hearing:

  1. A Complainant notifies the Title IX Coordinator in writing that the Complainant would like to withdraw the Formal Complaint or any allegations therein;
  2. The Respondent is no longer enrolled in or employed by the University; or
  3. Specific circumstances prevent the University from gathering evidence sufficient to reach a determination as to the Formal Complaint or allegations

Upon dismissal, the University must promptly send written notice of the dismissal and reason(s) simultaneously to the parties.

VI. Initial steps and determination of appropriate procedures

Upon Actual Knowledge of a Report of alleged conduct, the Title IX Office should perform an initial assessment, including making initial contact with the potential Complainant of the Report and offering information as well as Supportive Measures.  The Title IX Office should notify the potential Complainant of the option to have an Advisor accompany them to any meeting or interview related to the Title IX Grievance Process.

In initial contact with a potential Complainant, the Title IX Office should also:

  1. Give the potential Complainant a copy of the relevant policies;
  2. Explain the process for filing a Formal Complaint with the Title IX Office;
  3. Provide the potential Complainant with information regarding the rights/responsibilities as a party in this matter (See Statement of Parties’ Rights);
  4. Explain the process for investigating and resolving a Title IX Formal Complaint (including the available appeal procedures);
  5. Explain the procedural differences based on Title IX vs power-based violence conduct;
  6. Instruct the potential Complainant not to destroy any potentially relevant documentation in any format;
  7. Inform the individual of the availability of Supportive Measures with or without the filing of a Formal Complaint;
  8. Discuss the potential Complainant’s expressed preference for manner of resolution and any barriers to proceeding (e.g., confidentiality concerns);
  9. Explain the prohibition against retaliation; and
  10. Communicate necessary details of the report to the campus police department for entry into the Institution’s daily crime log.

The University should address all Reports of power-based violence or Title IX Sexual Harassment reported to the Title IX Coordinator regardless of whether the Report becomes a Formal Complaint. The investigation and adjudication procedures (if needed) will be prompt, fair, and impartial.

If the initial assessment reveals that the alleged conduct does meet the definition of sexual harassment as contained within the USDOE’s Title IX Regulations, the investigation must proceed pursuant to the Title IX Formal Grievance Process below. If the alleged conduct does not meet the USDOE’s definition of sexual harassment, the investigation will proceed pursuant to Process B addressing Power-Based Violence.

VII. Investigation

A. Notice

Upon receipt of a Formal Complaint, the University must provide written notice of the following to known parties:

  1. The investigation and adjudication process, including any informal processes;
  2. Allegations of sexual harassment, including sufficient details known at the Sufficient details include the identities of the parties involved in the incident, if known, the conduct allegedly constituting sexual harassment, and the date and location of the alleged incident, if known;
  3. 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;
  4. The parties may have an advisor of their choice, who may be, but is not required to be, an attorney;
  5. The parties may inspect and review evidence;
  6. The parties are prohibited from knowingly making false statements or knowingly submitting false information during the investigation and adjudication process; and
  7. If the University decides to investigate additional allegations not included in the original notice, it must provide notice of the additional allegations to   the parties whose identities are

B. Investigation procedure 

The Title IX Coordinator shall appoint an Investigator to investigate the allegations documented in the Formal Complaint. The investigation may include, among other steps, interviewing the Complainant, the Respondent, and any witnesses; reviewing law enforcement investigation documents if applicable; reviewing relevant student or employment files; and gathering and examining other relevant documents, social media posts, and other evidence.

The Investigator will attempt to collect all relevant information and evidence. Following the investigation, the Investigator will draft an investigation report succinctly describing all collected information. The Investigator will not make any determination as to whether a policy violation has occurred or recommend potential sanctions.

While investigating the allegations of any Formal Complaint of sexual harassment, the Investigator will conduct an objective evaluation of all relevant evidence. Relevant evidence is any evidence that may tend to make the allegations at issue more or less likely to be true. (See §106.45(b)(1)(ii).)

In assessing allegations of sexual harassment, the University shall apply the preponderance of the evidence standard for all assessments and all Formal Complaints, regardless of whether the Respondent or Complainant is a Student or Employee. 

When investigating a Formal Complaint and throughout the investigation and adjudication process, the University must:

  1. Ensure that the burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility rest on the University and not on the parties;
  2. Provide an equal opportunity for the parties to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence;
  3. Not restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence;
  4. Provide the parties with the same opportunities to have others present during any investigation or adjudication proceeding, including the opportunity to be accompanied to any related meeting or proceeding by the advisor of their choice, who may be, but is not required to be, an attorney, and not limit the choice or presence of advisor for either the Complainant or Respondent in any meeting or grievance proceeding; however, the University may establish restrictions regarding the extent to which an advisor may participate in the proceedings, as long as the restrictions apply equally to both parties’ advisors;
  5. Provide written notice to each party of the date, time, location, participants, and purposes of each Formal Grievance Process meeting in which they are invited to participate, with sufficient time for the party to prepare to participate;
  6. Provide both parties an equal opportunity to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in a Formal Complaint, including the evidence upon which the University does not intend to rely in reaching a determination regarding responsibility and inculpatory or exculpatory evidence whether obtained from a party or other source, so that each party can meaningfully respond to the evidence prior to the conclusion of the investigation.
    1. Prior to completion of the investigative report, the University must send the report to each party and the party’s advisor, if any, the evidence subject to inspection and review in an electronic format or a hard copy, and the parties must have at least 10 days to submit a written response, which the investigator will consider prior to completion of the investigative report.
    2. The University must make available at any hearing all such evidence subject to the parties’ inspection and review, to give each party equal opportunity to refer to such evidence during the hearing, including for purposes of cross-examination; and
  7. Create an investigative report that fairly summarizes relevant evidence and, at least 10 days prior to the hearing, send to each party and each party’s advisor, if any, the investigative report in an electronic format or a hard copy, for their review and written response.

C. Hearings

The University must provide for a live hearing. A panel of no less than three trained Decision-Makers will consider all of the evidence presented and determine whether a Respondent is responsible for a violation of this protocol. The Decision-Makers will not include the Title IX Coordinator or the investigator. Cases may be adjudicated by a trained third-party Decision-Maker outside of the University as opposed to a panel of internal trained Decision-Makers in the Title IX Coordinator’s discretion.

At the request of either party, the University must provide for the live hearing to occur with the parties located in separate rooms, with technology enabling the Decision-Makers and parties to simultaneously see and hear the party or the witness answering questions. The University will create a transcript or recording (audio or audiovisual) of any adjudicative hearing to be made available to the parties for inspection and review pursuant to FERPA.

At the live hearing, the Decision-Makers must permit each party’s advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility. Cross-examination at the live hearing must be conducted directly, orally, and in real time by the party’s advisor of choice and never by a party personally. (106.45(b)(6)(i).) Only relevant cross-examination and other questions may be asked of a party or witness. Advisors may be present solely to advise or support the party and are prohibited from speaking directly to the Investigator, Decision-Makers, other parties, or witnesses during the hearing, except for conducting cross examination.

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. If a party does not have an advisor present at the live hearing, the University must provide, without fee or charge to that party, an advisor of the University’s choice, who may be, but is not required to be, an attorney, to conduct cross-examination on behalf of that party.

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.

In reaching a determination regarding responsibility, the Decision-Makers may rely, if appropriate, on a statement of a party or a witness even if that party or witness does not submit to cross-examination. However, the decision-maker(s) cannot draw an inference about the determination regarding responsibility based solely on a party’s or witness’s absence from the live hearing or refusal or answer cross-examination or other questions.

Live hearings may be conducted with all parties physically present in the same geographic location or, at the University’s discretion, any or all parties, witnesses, and other participants appearing at the live hearing virtually, with technology enabling participants simultaneously to see and hear each other.

The University must create an audio or audiovisual recording, or transcript, of any live hearing and make it available to the parties for inspection and review.

D. Determination regarding responsibility

The Decision-Makers, must issue, simultaneously to both parties, a written determination regarding responsibility, which must include:

  1. Identification of the allegations potentially constituting sexual harassment;
  2. A description of the procedural steps taken from 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;
  3. Findings of fact supporting the determination;
  4. Conclusions regarding the application of the University’s policy to the facts;
  5. A statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility, any sanctions the University will impose on the Respondent, and whether remedies designed to restore or preserve equal access to the education program or activity will be provided to the Complainant; and
  6. Procedures and permissible bases for parties to appeal.

The determination regarding responsibility becomes final either on the date that the recipient provides the parties with the written determination of the result of the appeal, if an appeal is filed or, if an appeal is not filed, the date on which an appeal would no longer be considered timely.

E. Sanctions

Student Sanctions

The following are the usual sanctions that may be imposed upon students. See the Louisiana Tech Student Handbook for a complete listing of all possible sanctions.

  • Reprimand: A written letter/expression or oral expression statement that the conduct was unacceptable and a warning that further violation of any University policy, procedure, or directive will result in more severe sanctions/responsive actions.
  • Discretionary Censures: Censures that may include but are not limited to parental notification, letter of apology, conflict resolution sessions and university programming.
  • Required Education Counseling: A mandate to meet with and engage in either University-sponsored or external counseling to better comprehend the misconduct and its effects.
  • Suspension: This suspension is for a specified period of time, and the student or the student organization may apply for readmission to the University subsequent to expiration of the specified period. During this period of suspension, the student is banned from the University. A notation will be placed on the student’s transcript “Student is eligible to return (quarter) (year)” when a student is “suspended for disciplinary reasons” for a specified period of time. The transcript indicates which quarter the student will be eligible to return.
  • Permanent Dismissal from the University and Banned from the University. A notation will be placed on a student’s transcript “Student is ineligible to enroll,” when the student is permanently dismissed from the university for disciplinary reasons.

The University will follow Policy 1437 – Transcript Withholding, Notation & Communication in all respects with regard to the Title IX Grievance Process. 

Employee Sanctions

Responsive actions for an employee who has engaged in power-based violence include:

  • Warning – Verbal or Written
  • Performance Improvement/Management Process
  • Required Counseling
  • Required Training or Education
  • Probation
  • Loss of Annual Pay Increase
  • Loss of Oversight or Supervisory Responsibility
  • Demotion
  • Suspension with pay
  • Suspension without pay
  • Termination
  • Other Actions: In addition to or in place of the above sanctions, the University may assign any other sanctions as deemed appropriate.

VIII. Appeals

Both parties may file a written appeal to the Title IX Coordinator within three (3) business days of delivery of a determination regarding responsibility, and of the University’s dismissal of a Formal Complaint or any allegations therein, on the following bases:

  1. A procedural irregularity that affected the outcome of the matter;
  2. New evidence that was not reasonably available at the time that the determination regarding responsibility or dismissal was made, which could affect the outcome of the matter; or
  3. The Title IX Coordinator, investigator(s), or decision maker(s) had a conflict of interest or bias for or against Complainants or Respondents generally or the individual Complainant or Respondent that affected the outcome of the matter.

The Title IX Coordinator will designate an Appeal Decision-Maker(s) to hear the appeal.  The Appeal Decision-Maker(s) can not have served in any prior role with the process. 

The other party and their Advisors, the Title IX Coordinator, and, when appropriate, the Investigators and/or the original Decision-maker(s) will be, emailed, and/or provided a hard copy of the appeal with the approved grounds and then be given three (3) business days to submit a response to the portion of the appeal that was approved and involves them. All responses will be forwarded by the Chair to all parties for review and comment.

The non-appealing party (if any) may also choose to raise a new ground for appeal at this time. If so, that will be reviewed for standing by the Appeal Chair and either denied or approved. If approved, it will be forwarded to the party who initially requested an appeal, the Investigator(s) and/or original Decision-maker(s), as necessary, who will submit their responses in three (3) business days, which will be circulated for review and comment by all parties.

Neither party may submit any new requests for appeal after this time period. The Appeal Decision-Maker(s) will collect any additional information needed and all documentation regarding the approved grounds and the subsequent responses will be shared with the Appeal Decision-Maker(s), and the Appeal Decision-Maker(s) will render a decision in no more than ten (10) business days, barring exigent circumstances. All decisions are by majority vote and apply the preponderance of the evidence standard.

A Notice of Appeal Outcome will be sent to all parties simultaneously including the decision on each approved ground and rationale for each decision.

The Notice of Appeal Outcome will specify the finding on each ground for appeal, any specific instructions for remand or reconsideration, any sanctions that may result which the University is permitted to share according to state or federal law, and the rationale supporting the essential findings to the extent the University is permitted to share under state or federal law.

Notification will be made in writing and will be emailed to the parties’ University-issued email or otherwise approved account. Once emailed and/or received in-person, notice will be presumptively delivered.

Appeal Considerations

  1. Decisions on appeal are to be deferential to the original decision, making changes to the finding only when there is clear error and to the sanction(s)/responsive action(s) only if there is a compelling justification to do so.
  2. Appeals are not intended to provide for a full review (de novo) of the allegation(s). In most cases, appeals are confined to a review of the written documentation and pertinent documentation regarding the specific grounds for appeal.
  3. An appeal is not an opportunity for Appeal Decision-maker(s) to substitute their judgment for that of the original Decision-maker(s) merely because they disagree with the finding and/or sanction(s).
  4. The Appeal Decision-maker(s) may consult with the Title IX Coordinator on questions of procedure or rationale, for clarification, if needed. Documentation of all such consultation will be maintained.
  5. Appeals granted based on new evidence should normally be remanded to the original Investigator(s) and/or Decision-maker(s) for reconsideration. Other appeals may be remanded at the discretion of the Title IX Coordinator or, in limited circumstances, decided on appeal.
  6. Once an appeal is decided, the outcome is final: further appeals are not permitted, even if a decision or sanction is changed on remand (except in the case of a new hearing).
  7. In rare cases where a procedural or substantive error cannot be cured by the original Decision-maker(s) (as in cases of bias), the appeal may order a new determination from a new Decision-maker(s).
  8. The results of a remand to a Decision-maker(s) cannot be appealed. The results of a new determination can be appealed, once, on any of the three available appeal grounds.
  9. In cases in which the appeal results in reinstatement to the University or resumption of privileges, all reasonable attempts will be made to restore the Respondent to their prior status, recognizing that some opportunities lost may be irreparable in the short term.

IX. Informal resolution

At any time prior to reaching a determination regarding responsibility, the University may facilitate an informal resolution process, such as mediation, that does not involve a full investigation and adjudication. The University may not offer an informal resolution process unless a Formal Complaint is filed. The University may not require the parties to participate in an informal resolution process and will not require them to waive their rights to a Title IX Formal Grievance process. (§106.45(b)(9).)  An informal resolution is not available in complaints of a student being sexual harassed by an employee of the University.

The University must:

  1. Provide written notice to the parties disclosing:
    1. The allegations;
    2. The requirements of the informal resolution process, including the circumstances under which it precludes the parties from resuming a Formal Complaint arising from the same allegations;
    3. The fact that at any time prior to agreeing to a resolution, any party has the right to withdraw from the informal resolution process and resume the investigation and adjudication process with respect to the Formal Complaint; and
    4. Any consequences resulting from participation in the informal resolution process, including the records that will be maintained or could be shared; and
  1. Obtain the parties’ voluntary, written consent to the informal resolution process.

X. Recordkeeping

Each University must maintain, for seven (7) years, records of:

  1. Each sexual harassment investigation, including any determination regarding responsibility and any audio or audiovisual recording or transcript required, any disciplinary sanctions imposed on the Respondent, and any remedies provided to the Complainant designed to restore or preserve equal access to the education program or activity;
  2. Any appeal and the result thereof;
  3. Any informal resolution process and the result therefrom; and
  4. All materials used to train Title IX Coordinators, investigators, decision makers, and any person who facilitates an informal resolution process.

Each University must make these training materials publicly available on its website.

The University must create and maintain for seven (7) years records of any actions, including any Supportive Measures, taken in response to a report or Formal Complaint of Sexual Harassment. In each instance, the University must document the basis for its conclusion that its response was not deliberately indifferent, and document that it has taken measures designed to restore or preserve equal access to its education program or activity. If the University does not provide a Complainant with Supportive Measures, then it must document the reasons why such a response was not clearly unreasonable in light of the known circumstances. The documentation of certain bases or measures does not limit the University in the future from providing additional explanations or detailing additional measures taken.