THE TITLE IX COMPLAINT
GENERAL RESOLUTION TIME FRAME:
An investigation and resolution of all reports of Sexual and Gender-Based Misconduct should generally be completed within 60 to 90 days. Extenuating circumstances, including, but not limited to, the complexity and severity of a Complaint may arise that require the complaint process to extend beyond 60 to 90 days. In general, a Complainant and Respondent can expect to receive periodic updates from the Title IX Coordinator and/or Investigator as to the status of the review or investigation.
This time frame may be extended by the Title IX Coordinator for good cause based on factors such as, but not limited to, criminal investigations, schedule and availability of witnesses, holidays or semester breaks, and complexity of the complaint. Moreover, any party may request an extension of any deadline by providing the Title IX Coordinator with a written request for an extension that includes the basis for the request. If an investigation cannot be completed within sixty days, the Title IX Coordinator will notify the Complainant and Respondent(s) of that fact and provide a time frame for completing the investigation
THE INITIATION OF A FORMAL TITLE IX COMPLAINT
A report of Sexual and Gender-Based Misconduct becomes a formal Complaint in one of the following ways:
1. An alleged victim may file a written Complaint with a University or a Third Party may file a written Complaint on his or her behalf. An alleged victim may complete a Complaint form provided by the University or may submit a written statement in his or her own words to the Title IX Coordinator providing sufficient information for the Institution to investigate the allegations contained therein (including but not limited to the name of the alleged victim, the name of the alleged perpetrator, and the date, location, and nature of the alleged Sexual or Gender-Based Misconduct);
2. An alleged victim can meet in person with the Title IX Coordinator, a Deputy Title IX Coordinator or a designated Responsible Employee to report alleged Sexual or Gender-Based Misconduct. Reports made to a Responsible Employee will be referred to the Title IX Coordinator, who will ask the alleged victim to complete a Complaint form provided by the University; or
3. A University can determine, based on the information of which it becomes aware, that it is necessary and/or appropriate for it to investigate and respond to an incident of Sexual and Gender-Based Misconduct. Pursuant to Title IX, a University has an obligation to address all incidents of Sexual and Gender-Based Misconduct of which it becomes aware. If the Title IX Coordinator decides to proceed with a formal Complaint under these circumstances, a University administrator will serve as the “Complainant.” Once a formal Complaint is initiated, an alleged victim will be referred to as a “Complainant” and an alleged perpetrator will be referred to as a “Respondent.”
YOUR INITIAL MEETINGS WITH THE TITLE IX COORDINATOR
-Meeting with the Complainant:
The Title IX Coordinator will first meet with the Complainant and discuss the Title
IX process and procedures.
-Meeting with Respondent:
If the Complainant wishes to pursue resolution through a University or if the University otherwise deems that further investigation is warranted, within a short time, typically five days, or as soon as is reasonably practicable after the Title IX Coordinator’s initial meeting with the Complainant, the Title IX Coordinator will schedule an initial meeting with the Respondent. During the initial meeting with the Respondent, the Title IX Coordinator will, as applicable:
- - Provide the Respondent, in writing, information consistent with state and federal privacy laws and, if applicable, the alleged victim’s request for heightened confidentiality, that is sufficient to allow him or her to respond to the substance of the allegation, including, if possible, the name of the Complainant and the date, location, and nature of the alleged Sexual or Gender-Based Misconduct;
- -Provide the Respondent a copy of the Educational Institutions Title IX Policy, which includes a review of his or her rights under the Policy.
- -Explain the University’s procedures for resolution of the Complaint;
- -Explain the steps involved in a Formal Title IX investigation;
- -Advise the Respondent that he or she may have an advisor of his or her choice present throughout the Title IX investigation and resolution process. The advisor may be an attorney, retained at the Respondent’s own initiative. Any advisor may participate as a silent observer in any meeting or proceeding related to the investigation or resolution process.
- -Discuss confidentiality standards and concerns with the Respondent;
- -Discuss non-Retaliation and Intimidation requirements with the Respondent;
- -Inform the Respondent of any Interim Measures already determined and to be provided to the Complainant that directly affect the Respondent (e.g., changing the Respondent’s class schedule, or moving the Respondent to an alternate residence hall);
- -Discuss the importance of preserving relevant evidence or documentation in the case. (e.g., texts, emails, notes, photographs (etc.);
- -Refer the Respondent to the Counseling Center or other resources, as appropriate; and
- -Discuss with the Respondent, as appropriate, possible Interim measures that can be provided to the Respondent during the pendency of the investigative and resolution processes. A University may implement such measures if requested and/or appropriate, and reasonably available, whether a formal Complaint has been filed (with either campus officials or law enforcement agencies) or whether an investigation has commenced (by either campus officials or law enforcement agencies). Such determination will promptly be communicated to the Respondent (no later than it is communicated to the Complainant) and, to the extent that it affects him or her, the Complainant.
-TITLE IX COORDINATOR THEN MAKES AN INITIAL ASSESSMENT
After meeting with the Complainant and the Respondent, the Title IX Coordinator will make a determination as to whether (a) a Formal Title IX Investigation is warranted to resolve the case; (b) the case can possibly be resolved through Informal Resolution; or ©) there are no reasonable grounds exist for believing that the conduct at issue constitutes Sexual or Gender-Based Misconduct.
In the event that the Title IX Coordinator determines there are no reasonable grounds for believing that the conduct at issue constitutes Sexual or Gender-Based Misconduct, the Title IX Coordinator will determine (in consultation, as necessary, with the Complainant, the Respondent, and other University administrators) and document the appropriate resolution of the Complaint, will promptly notify the parties of such resolution, and will close the Complaint.
-IF TITLE IX COORDINATOR DETERMINES A FORMAL TITLE IX INVESTIGATION IS WARRANTED: PROCEDURES
If the Title IX Coordinator determines that a Formal Resolution is warranted to resolve the Complaint, the Title IX Coordinator will refer the matter for Formal Resolution, which includes a thorough and prompt investigation and provides for a fair and impartial evaluation and resolution. The Formal Resolution process utilized by a University is determined by the role of the Respondent:
-Complaints against Students will be investigated and resolved pursuant to the Formal Resolution Procedures for Complaints of Sexual and Gender-Based Misconduct Against Students as outlined in the School’s Title IX policy.
-Complaints against Faculty, Staff and Third Parties will be investigated and resolved pursuant to the Formal Resolution Procedures for Complaints of Sexual and Gender-Based Misconduct Against Faculty, Staff and Third Parties in the School’s Title IX policy.
-FORMAL RESOLUTION PROCEDURES FOR SEXUAL OR GENDER-BASED MISCONDUCT COMPLAINTS AGAINST STUDENTS:
A University will determine whether a student is responsible for a violation of the University Sexual or Gender Based-Misconduct Policy and what, if any, disciplinary sanctions and/or remedial actions are appropriate, in accordance with the procedures described below:
-ASSIGNMENT OF INVESTIGATOR
If the Title IX Coordinator determines that a Formal Title IX Investigation is warranted to resolve a Complaint of Sexual or Gender-Based Misconduct, the Title IX Coordinator will appoint an investigator or an investigative team (“investigator”) who has specific training and experience investigating allegations of Sexual and Gender-Based Misconduct. The Title IX Coordinator will notify both the Complainant and the Respondent in writing of the Formal Title IX Investigation and the name of the investigator(s). The investigator(s) may be an employee(s) of a University or an external investigator(s) engaged to assist the University in its fact gathering.
The Respondent and the Complainant may protest the appointment of the investigator(s) by identifying a possible conflict of interest in writing to the Title IX Coordinator within twenty four (24) hours after the appointment of the Investigator(s). The Title IX Coordinator will carefully consider such statements and will assign a different investigator(s) if it is determined that a material conflict of interest exists.
-THE INVESTIGATOR’S ACTIVITIES
The formal investigation may include, but is not limited to, conducting interviews of the Complainant, the Respondent(s), and any witnesses (witnesses must have observed the acts in question or have information relevant to the incident and cannot be participating solely to speak about an individual’s character); reviewing law enforcement investigation documents, if applicable; reviewing student and personnel files; and gathering, examining, and preserving other relevant documents and physical, written (including medical records), and electronic evidence (including social media, security camera footage, etc.). The parties will have an equal opportunity to present relevant witnesses and evidence to the investigator(s), as well as identify witnesses who may have relevant information. Moreover, both the Complainant and Respondent(s) may have an advisor accompany (but not actively participate) him or her through the investigation process. In gathering the facts, prior allegations of, or findings of responsibility for, similar conduct by the Respondent may be considered to the extent such information is relevant.
The investigation must be discreet and only disclosed on a “need to know” basis. In cases where the Complainant is a student, the University will take reasonable care to protect the student’s privacy by using student ID numbers in incident report and in publicly available record keeping (without the inclusion of identifying information) as defined in 42 U.S.C. 1395 (a)(20).
-THE INVESTIGATOR’S REPORT
The Investigator(s) should complete, within 30 days after the investigation begins, a written Investigative Report that includes items such as summaries of all interviews conducted, photographs, and descriptions of relevant evidence, summaries of relevant electronic records, and a detailed report of the events and findings of fact in question. The Investigator has to share the Investigative Report with the Title IX Coordinator, the Complainant and the Respondent. All parties to whom the Investigative Report is distributed pursuant to this Policy must maintain it in confidence (even after the resolution of the Complaint); the Investigative Report may only be disclosed as is contemplated by this Policy.
-THE EVALUATION OF THE INVESTIGATOR’S REPORT
The Title IX Coordinator will evaluate the Investigative Report and will determine whether reasonable grounds exist to believe that the conduct at issue constitutes Sexual or Gender-Based Misconduct. If it is clear from the Investigative Report that no reasonable grounds exist for believing that the Respondent engaged in Sexual Misconduct, the Title IX Coordinator will determine (in consultation, as necessary, with the Complainant, Respondent, and other University administrators) and document the appropriate resolution of the Complaint and will promptly notify the parties of that determination. Appropriate resolutions may include, but are not limited to, dismissal of the Complaint, conferences with one or more of the parties, and the introduction of remedial and community-based efforts such as educational initiatives and/or trainings, If, however, the Title IX Coordinator determines that there are reasonable grounds to believe that the Respondent engaged in Sexual or Gender-Based Misconduct, the Complaint will be referred to the Office of Student Conduct for a formal hearing. At any time prior to the date of the hearing, the Respondent may elect to acknowledge his or her actions and take responsibility for the alleged Sexual or Gender-Based Misconduct. In such a situation, the Title IX Coordinator in conjunction with the appropriate Deputy Title IX Coordinator will propose sanction(s) for the Respondent. If the Complainant and the Respondent agree to such proposed sanction(s), then the Complaint will be resolved without a hearing and without any further rights of appeal by any party. If either the Complainant or the Respondent objects to such proposed sanction(s), then a Student Conduct Officer will convene a hearing for the exclusive purpose of determining a sanction.
- PROCESS FOR FORMALLY RESOLVING COMPLAINTS
If the Respondent is a student and the investigator finds that reasonable cause does exist, the Title IX Coordinator will provide the investigator’s written findings to both the Complainant and Respondent and then refer to the matter to the Office of Student Conduct for formal resolution. The Office of Student Conduct will conduct a hearing in which it will interview and question the Complainant and the Respondent (at no time will the Respondent and the Complainant be required to be in the same room at the same time), as well as any witnesses or other third parties whose testimony the Student Conduct Officer deems relevant.
The Respondent and the Complainant will be notified in writing of the need for a Student Conduct Hearing and a date and time will be set for the each party to meet with the Student Conduct Officer for a Pre-Hearing Meeting. At the Pre-Hearing Meeting, the Respondent and the Complainant will be advised of the following:
-The possible Student Conduct Code Violations to be considered at the Hearing.
-Both parties will be treated fairly and equitably.
- Both parties are entitled to an advisor of their choice. The advisor may be an attorney, retained at the student’s own initiative. Any advisor may participate as a silent observer in any meeting or proceeding related to the investigation or adjudication. The name and contact information of the advisor must be submitted to the Student Conduct Officer within twenty four (24) hours of the Hearing.
Both parties are allowed to submit a list of witnesses in writing to the Student Conduct Officer twenty four (24) hours prior to the hearing.
-The Respondent is presumed not responsible until determined responsible for the alleged violation(s) based upon a preponderance of the evidence, or more likely than not, standard. (This has been described as 50% plus a feather).
-Participants will be afforded the opportunity to inspect and review information contained within the case file, which will include the Investigative Report. Requests to inspect and review such materials shall be made in writing to the Student Conduct Officer upon reasonable notice (typically at least two (2) days prior to the Hearing). The University shall make every effort to provide access to the materials, once requested. These materials include documents pertaining to the specific disciplinary matter and is considered an educational record pursuant to FERPA. The personal notes of University faculty and staff and privileged information of other students are not included in the Case File and thus are not accessible.
-Formal rules of evidence shall not be applicable; nor shall deviations from prescribed procedures necessarily invalidate a decision or proceeding, unless significant prejudice to a student respondent of a University may result.
- -The Student Conduct Officer will interview and question the Complainant, the Respondent, and any relevant witnesses or third parties. At no time will the Respondent and the Complainant be required to be in the same room at the same time.
- -Witnesses must have observed the conduct in question or have information relevant to the incident. The Student Conduct Officer will not hear from individuals whose sole purpose is to provide character information.
- -The Student Conduct Officer may call any member of the University community to participate in a proceeding. Admission of any person to the hearing will be at the discretion of the Student Conduct Officer.
- -Pertinent records, video-surveillance images, relevant exhibits, and written statements may be accepted as information for consideration by the Student Conduct Officer. The applicability and weight of such evidence is determined at the sole discretion of the Student Conduct Officer. The Student Conduct Officer may use a recording device during any or all review proceedings. All recordings shall remain the property of the University.
- -Any relevant omission of fact, untruthfulness, falsification, or misrepresentation presented to the Student Conduct Officer may be considered a separate violation of the Student Code of Conduct.
- -Any interference with the orderly process of Hearing proceedings may be considered a separate violation of the Student Code of Conduct. Moreover, the Student Conduct Officer shall exclude that person, including the student charged and/or his/her adviser, and proceed with the proceeding in the individual's absence.
- -Any attempt to discourage another’s participation or truthful account of events in the Hearing proceedings may be considered a separate violation of the Student Code of Conduct
-The Student Conduct Hearing
A Student Conduct Hearing is conducted for the purpose of determining whether it is more likely than not that the Respondent committed an act of Sexual or Gender-Based Misconduct in violation of this Policy. Student Conduct Hearings allow for the resolution of complaints in a manner that not only seeks to hold parties found responsible under the preponderance of the evidence standard accountable for their actions but also allows for a forum in which both Complainants and Respondents can receive the resources necessary to better their experience within the a University community. Generally, the following rules and regulations apply to Student Conduct Hearings for Matters of Sexual or Gender-Based Misconduct:
- -Complainants and Respondents will have equal access to the Student Conduct Hearing Officer but will NOT have equal access to each other. Cross Examination is permitted in the form of the submission of question to the Student Conduct Hearing Officer. The use of the submitted questions is to the Student Conduct Hearing Officer’s discretion.
- -Hearings in Absentia: If the Respondent or the Complainant fails to appear for the scheduled Hearing, the Hearing will be conduct in the student’s absence without the benefit of their explanation. During all conduct review proceedings, reasonable efforts will be undertaken to encourage the involved students to actively participate. If all reasonable attempts to contact an involved student have been exhausted, the Student Conduct Officer may proceed with the review in the involved student’s absence. If the student is subsequently determined to have violated any section of the Student Conduct Code, the corresponding sanction imposed will be effective immediately. All relevant information presented at the review will be considered. The involved student will be sent a written notification of the decision. The absent student will still maintain their right to appeal.
- -After the review, the Student Conduct Officer shall determine whether or not the Respondent was responsible for violating any section(s) of the Student Code of Conduct within three business days, unless the Student Conduct Officers determines additional time is needed to make a decision. The Student Conduct Officer, in conjunction with the Title IX Coordinator, will set forth a list of appropriate sanctions to address and remedy the unique hostile environment created in the individual case.
- -The Complainant and the Respondent will be notified of the findings and any applicable sanctions via an Outcome Letter. If the Respondent is found responsible for violating a specific section(s) of the Student Code of Conduct, the applied sanction will be explained in the outcome letter. The Student Conduct Officer will author all pertinent documents.
- -In addition to any sanctions imposed on the Respondent, promptly following the conclusion of the hearing(s) and the Student Conduct Officer’s issuance of a determination of responsibility, the Title IX Coordinator (or their designee) will determine the final remedial actions to be provided to the Complainant, if any, and the Title IX Coordinator (or their designee) will communicate such decision to the Complainant, and, to the extent that it affects him or her, to the Respondent.
Many students and faculty are unfamiliar with the Title IX process and procedures. An attorney, who can act as an advisor, can assist in these proceedings and increase your chances of prevailing at the Title IX hearing.
The aforementioned procedures may vary slightly from school to school. Most institutions Title IX policies and procedures can be found online at the Universities website.
If a Title IX complaint has been filed against you, or if you are under investigation, it is urgent that you obtain an attorney advisor as soon as possible. Please contact the Law Office of Russell J. Williams, P.A. to discuss your Title IX issues. Russell’s career has focused on aggressively representing clients charged with a multitude of offenses which also includes Title IX investigations.
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