Policies and Procedures for Title IX Sexual Harassment Claims
SAINT MARY OF THE WOODS COLLEGE
POLICIES AND PROCEDURES FOR TITLE IX SEXUAL HARASSMENT CLAIMS
Effective August 14, 2020
WHEREAS, the United States Government has issued new directives for higher education procedures addressing sexual harassment,
WHEREAS, these procedures may be subject to immediate and constant improvement and amendment to implement a fair process for all participants, and
WHEREAS, Saint Mary of the Woods College (SMWC) wishes to provide a fair process to resolve or adjudicate such allegations:
THEREFORE, SMWC hereby adopts the following policies and procedures, effective August 14, 2020:
I
DEFINITIONS AND APPLICATION
Participants:
Participants must be separate individuals appointed and subject to removal and replacement by the SMWC President at any time, and include:
“Complainant”:
An individual who is alleged to be the victim of conduct that could constitute sexual harassment.
“Respondent”:
An individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment.
“Advisor”:
If during the grievance process a party does not have an advisor present at the live hearing, the school must provide, without fee or charge to that party, an advisor of the school’s choice who may be, but is not required to be, an attorney.
“Title IX Coordinator(s)”:
The employee(s) designated by SMWC to coordinate its efforts to comply with Title IX responsibilities.
“Investigator”:
An individual who compiles evidence regarding the allegations.
“Decision Maker”:
An individual who presides over the grievance process if a formal complaint is filed, and issues a written decision. The decision maker may also provide objective and unbiased advice to staff during the course of a Title IX complaint.
“Sexual harassment”:
Sexual harassment is defined broadly to include any of three types of misconduct on the basis of sex, all of which jeopardize the equal access to education that Title IX is designed to protect. This includes any instance of quid pro quo harassment by a school’s employee, any unwelcome conduct that a reasonable person would find so severe, pervasive, and objectively offensive that it denies a person equal educational access, and any instance of sexual assault (as defined in the Clery Act), dating violence, domestic violence, or stalking as defined in the Violence Against Women Act (VAWA).
“Supportive measures”:
These are individualized services reasonably available that are nonpunitive, non-disciplinary, and not unreasonably burdensome, and which are designed to ensure equal educational access, protect safety, or deter sexual harassment.
Application:
These procedures apply when sexual harassment against any person occurs in SMWC’s education program or activity.
An education program or activity includes locations, events, or circumstances over which SMWC exercises substantial control over both the respondent and the context in which the sexual harassment occurred, and also includes any building owned or controlled by a student organization that is officially recognized by SMWC.
Application includes programs or activities that occur on-campus or off-campus.
These procedures may supplement previous SMWC policies and procedures, but to the extent the procedures herein contradict previous policies and procedures, these procedures control due to the recently promulgated directive from the United States Department of Education.
II
REPORTING AND RESPONSE
Any person may report sex discrimination, including sexual harassment (whether or not the person reporting is the person alleged to be the victim of conduct that could constitute sex discrimination or sexual harassment), in person, by mail, by telephone, or by e-mail, using the contact information listed for the Title IX Coordinator, or by any other means that results in the Title IX Coordinator receiving the person’s verbal or written report. Such a report may be made at any time, including during non-business hours, by using the telephone number or e-mail address, or by mail to the office address, listed for the Title IX Coordinator.
SMWC will respond to all complaints promptly and in a manner that is not deliberately indifferent when viewed in the totality of the circumstances.
The Title IX Coordinator will promptly contact the complainant confidentially to discuss the availability of supportive measures, consider the complainant’s wishes with respect to supportive measures, inform the complainant of the availability of supportive measures with or without the filing of a formal complaint, and explain to the complainant the process for filing a formal complaint.
SMWC will provide supportive measures (see definitions) to the complainant.
SMWC will keep confidential the identity of complainants, respondents, and witnesses, except as may be permitted by FERPA, as required by law, or as necessary to carry out a Title IX proceeding.
III
COMPLAINTS
(Informal Resolution and Formal Complaint)
SMWC may, in its discretion, choose to offer and facilitate informal resolution options, such as mediation or restorative justice, so long as both parties give voluntary, informed, written consent to attempt informal resolution. Any person who facilitates an informal resolution must be well trained.
A “formal complaint” is a document filed by a complainant or signed by the Title IX Coordinator alleging sexual harassment against a respondent and requesting that the school investigate the allegation of sexual harassment. This written document must state the complainant was participating in or attempting to participate in the education program or activity of SMWC.
A formal complaint may be filed with the Title IX Coordinator in person, by mail, or by electronic mail.
The written complaint must include the complainant’s physical or digital signature, which may be inferred from an email address or otherwise, or which otherwise indicates that the complainant is the person filing the formal complaint. The complaint must also include the complainant’s telephone number and physical address, if available, in order for the Title IX Coordinator to respond.
Where the Title IX Coordinator signs a formal complaint, the Title IX Coordinator is not a complainant or a party during a grievance process, and must comply with requirements for Title IX personnel to be free from conflicts and bias.
IV
INVESTIGATION
SMWC will investigate sexual harassment allegations in any formal complaint, which is filed by a complainant, or signed by a Title IX Coordinator.
Written notice to both parties (complainants and respondents) of the allegations upon receipt of a formal complaint shall be made by the Title IX Coordinator.
A complainant’s wishes with respect to whether the school investigates will be respected unless the Title IX Coordinator determines that signing a formal complaint to initiate an investigation over the wishes of the complainant is not clearly unreasonable in light of the known circumstances.
If the allegations in a formal complaint do not meet the definition of sexual harassment in the Final Rule, or did not occur in the school’s education program or activity against a person in the United States, SMWC is required by law to dismiss such allegations for purposes of Title IX, but SMWC may still address the allegations in any manner SMWC deems appropriate under SMWC’s code of conduct and/or policies. This decision will be made by the Title IX Coordinator, Decision Maker, or SMWC President.
During the investigation and grievance process:
– The burden of gathering evidence and burden of proof remains on SMWC, not on the parties.
– SMWC will provide equal opportunity for the parties to present fact and expert witnesses and other inculpatory and exculpatory evidence.
-SMWC will not restrict the ability of the parties to discuss the allegations or gather evidence (e.g., no “gag orders”).
– Parties will have the same opportunity to select an advisor of the party’s choice who may be, but need not be, an attorney.
– SMWC will send to the parties written notice of any investigative interviews, meetings, or hearings.
– SMWC will send the parties, and their advisors, evidence directly related to the allegations, in electronic format or hard copy, with at least 10 days for the parties to inspect, review, and respond to the evidence.
– SMWC will send the parties, and their advisors, an investigative report that fairly summarizes relevant evidence, in electronic format or hard copy, with at least 10 days for the parties to respond.
– SMWC may, in its discretion, consolidate formal complaints where the allegations arise out of the same facts.
– Parties’ medical, psychological, and similar treatment records may not be accessed by SMWC unless SMWC receives written consent to do so.
Dismissal
SMWC may, in its discretion, dismiss a formal complaint or allegations therein if the complainant informs the Title IX Coordinator in writing that the complainant desires to withdraw the formal complaint or allegations therein, if the respondent is no longer enrolled or employed by the school, or if specific circumstances prevent the school from gathering sufficient evidence to reach a determination.
SMWC will give the parties written notice of a dismissal (mandatory or discretionary) and the reasons for the dismissal.
V
GRIEVANCE PROCESS
The grievance process shall be an objective evaluation of all relevant evidence, inculpatory and exculpatory, and avoid credibility determinations based on a person’s status as a complainant, respondent, or witness.
All SMWC personnel participating in the grievance process, including the Title IX Coordinator, investigators, decision-maker, and/or people who facilitate any informal resolution process, will be free from conflicts of interest or bias for or against complainants or respondents.
Following American jurisprudence, there will be a presumption that the respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process.
The standard of proof required to support a finding of sexual harassment must be clear and convincing evidence.
The grievance process will operate in a reasonably prompt time frame towards, including appeals and informal resolutions, with allowance for short-term, good cause delays or extensions of the time frames.
Should the respondent be found to have violated this standard of proof, remedies and penalties shall include, but are not limited to: dismissal from SMWC, a written reprimand placed in the respondent’s file, an oral reprimand, or other penalties imposed by the Decision Maker, all subject to appeal by the respondent to the SMWC President.
Hearings:
SMWC’s grievance process will provide for a live hearing.
Informal and general rules of protocol and evidence may be followed, but only to provide a framework of procedure. At the live hearing, the decision-maker will permit each party’s advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility.
Such cross-examination at the live hearing will be conducted directly, orally, and in real time by the party’s advisor of choice and never by a party personally.
At the request of either party, the recipient must provide for the entire live hearing (including cross-examination) to occur with the parties located in separate rooms with technology enabling the parties to see and hear each other.
Only relevant cross-examination and other questions may be asked of a party or witness. Before a complainant, respondent, or witness answers a cross-examination or other question, the decision-maker must first determine whether the question is relevant and explain to the party’s advisor asking cross-examination questions any decision to exclude a question as not relevant.
If a party does not have an advisor present at the live hearing, the school must provide, without fee or charge to that party, an advisor of the school’s choice who may be, but is not required to be, an attorney to conduct cross-examination on behalf of that party.
Live hearings may be conducted with all parties physically present in the same geographic location or, at the school’s discretion, any or all parties, witnesses, and other participants may appear at the live hearing virtually.
SMWC will create an audio or audiovisual recording, or transcript, of any live hearing.
Furthermore, there shall be rape shield protections for complainants, deeming irrelevant questions and evidence about a complainant’s prior sexual behavior unless offered to prove that someone other than the respondent committed the alleged misconduct or offered to prove consent.
Decision
The Decision Maker will issue a written determination regarding responsibility with findings of fact, conclusions about whether the alleged conduct occurred, rationale for the result as to each allegation, any disciplinary sanctions imposed on the respondent, and whether remedies will be provided to the complainant. – The written determination will be sent simultaneously to the parties along with information about how to file an appeal.
VI
APPEALS
SMWC offers both parties an appeal from a determination regarding responsibility, and from a SMWC’s dismissal of a formal complaint or any allegations therein, on the following bases: procedural irregularity that affected the outcome of the matter, newly discovered evidence that could affect the outcome of the matter, and/or evidence that Title IX personnel had a conflict of interest or bias that affected the outcome of the matter.
An appeal may be made to the President of SMWC, solely in writing, and within 30 days of the Decision Maker’s decision. A party opposing an appeal shall be provided a copy of the other party’s written appeal, and be permitted to file an opposing written document within 15 days. The President may make any finding, and in any manner, deemed to be appropriate under the circumstances. Parties shall not otherwise contact the President on appeal issues.
VII
AMENDMENT OF PROCEDURES
Amendments to these procedures may be made upon approval of SMWC President.