Have you been a victim of discrimination on the basis of sex at any school or university that receives any federal funds. The principal objective of Title IX is to avoid the use of federal money to support sex discrimination in education programs and to provide individual citizens effective protection against those practices.
Our office is specialized in Title IX Law. Contact us now for a free consultation to learn about your rights.
TITLE IX OVERVIEW
Enacted by Congress in 1972, Title IX provides that individuals cannot be subjected to discrimination on the basis of sex at any school or university that receives any federal funds.
Title IX prohibits discrimination on the basis of sex (gender) in educational programs and activities and programs that receive federal assistance. Similarly, Section 304 of the Violence Against Women Reauthorization Act of 2013 requires that universities have procedures in place to respond to matters of Sexual Assault, Domestic Violence, Dating Violence and Stalking. On June 23, 1972, then President Richard Nixon signed Title IX of the Education Amendments of 1972, 20 U.S.C. §1681 et seq., into law. Title IX is a comprehensive federal law that prohibits discrimination on the basis of sex in any federally funded education program or activity. Title IX states in part:
“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
The principal objective of Title IX is to avoid the use of federal money to support sex discrimination in education programs and to provide individual citizens effective protection against those practices. Title IX applies, with a few specific exceptions, to all aspects of federally funded education programs or activities. In addition to traditional educational institutions such as colleges, universities, and elementary and secondary schools, Title IX also applies to any education or training program operated by a recipient of federal financial assistance.
Title IX prohibits all forms of discrimination on the basis of sex (gender), including all forms of sexual violence, sexual assault and sexual harassment. This prohibition applies to all Educational Institutions, staff, students and third parties in both the educational and employment settings. If inappropriate sexual behavior occurred, a University will take prompt and effective steps to end the behavior, prevent its reoccurrence and address the effects.
The Title IX Coordinator is responsible for monitoring the overall Title IX implementation for the University and coordinating compliance with all areas and departments covered under Title IX regulations. If a Complaint is filed, the Title IX Coordinator will meet with the Complainant to explain the available options, the process used to investigate the Complaint, and any available support, resources, and protective measures. Inquiries concerning the application of Title IX and its implementation may be referred to the Title IX Coordinator or to the U.S. Department of Education or the Office for Civil Rights.
Title IX Coordinator Responsibilities:
The Title IX Coordinator is a neutral administrator in any Sexual or Gender-Based Misconduct investigatory and resolution proceedings, including any allegations pertaining to incidents of Retaliation and Intimidation as defined in Section V. The Title IX Coordinator is responsible for:
-Overseeing all Title IX complaints and investigations to provide prompt, fair, and equitable resolutions and working with all parties (the Title IX Coordinator does not, however, determine if a Sexual or Gender-Based Misconduct Policy violation has occurred);
- Identifying and addressing any patterns or systemic problems that may arise;
- Being available to meet with students and employees, provide support and answer questions;
- Working with other University officials;
-Coordinating training, education, and communication pertaining to Title IX, as well as periodic reviews of the University’s climate and culture with regard to Sexual and Gender-Based Misconduct;
-Determining appropriate Interim Measures for a Complainant upon learning of a report or complaint of Sexual or Gender-Based Misconduct;
-Being available to assist with Campus Safety and Security and local law enforcement if necessary;
-Ensuring that appropriate policies and procedures are in place for working with local law enforcement and coordinating services with local victim advocacy organizations and service providers, including rape crisis centers;
-Ensuring that the University carries out its Title IX responsibilities.
-The Title IX Coordinator also assists with:
-Access to medical and mental health treatment;
-Victim support and resources; and
-Serving as someone to talk to.
In addition, the Title IX Coordinator maintains an annual report documenting: (1) the number of reports or Complaints received pursuant to the University’s Sexual and Gender-Based Misconduct Policy; (2) the categories of those involved in the allegations; (3) the number of Policy violations found; and (4) examples of sanctions imposed for each violation.
WHAT TYPE OF CONDUCT IS PROHIBITED
-Prohibition Against Sexual and Gender-Based Misconduct
Generally, most Universities prohibit all forms of Sexual and Gender-Based Misconduct as defined by their title IX policy as well as by applicable state law. Sexual and Gender-Based Misconduct is a broad term that includes Sexual Harassment, Sexual Violence (non-consensual sexual contact and non-consensual sexual intercourse), Sexual Assault, Sexual Exploitation, Domestic Violence, Dating Violence, Stalking, and aiding or facilitating the commission of a violation of this Policy.
Institutions will also prohibits Hostile Environment Harassment, which includes acts of verbal, non-verbal, or physical aggression, intimidation, or hostility based on sex, gender identity, or gender expression, even if those acts do not involve conduct of a sexual nature.
Sexual and Gender-Based Misconduct can occur between people of different sex or gender or of the same sex or gender. All members of a University community are expected to conduct themselves in a manner that does not infringe upon the rights of others.
-Anti-Retaliation and Intimidation
In addition, a University will strictly prohibit Retaliation against anyone who files a complaint, serves as a witness, or otherwise participates in the enforcement of the title IX policy. A University will not allow threats or other forms of Retaliation or Intimidation against any students, employees, or any Third Party who files a complaint or participates in the enforcement of any title IX investigation
SEXUAL AND GENDER-BASED MISCONDUCT DEFINITIONS:
Many Colleges and Universities define, Sexual and Gender-Based Misconduct as follows:
Sexual Harassment, Sexual Harassment is defined as unwelcome sexual advances, requests for sexual favors, other verbal, visual or physical conduct of a sexual nature, such as sexual assault or acts of sexual violence or other offensive behavior directed toward an individual because of or on account of the individual’s sex, whether by a person of the opposite or same gender, when either:
-Submission to, rejection, or toleration of such conduct is made explicitly or implicitly a term or condition of an individual’s employment, education (i.e., grades), living environment, or participation in any program or activity; or
-Submission to, rejection, or toleration of such conduct is used as a basis for or a factor in decisions affecting that individual’s employment, education, living environment or participation in any program or activity; or
-Such conduct creates a Hostile Environment
:, Hostile Environment Harassment is defined as the unlawful harassment against an individual on the basis of his or her sex, or gender-related status when the conduct is either:
-Sufficiently serious (i.e., severe, pervasive, or persistent) and objectively offensive so as to deny or limit the individual’s ability to participate in or benefit from the University’s programs or activities; or
-The conduct has the purpose or effect of unreasonably interfering with an individual’s employment or education.
- The determination of whether an environment is “hostile” must be based on all of the circumstances, giving consideration to whether a reasonable person in a similar situation would have perceived the conduct as objectively offensive. Also, the following factors will be considered:
-The degree to which the conduct affected one or more students’ education or individual’s employment;
-The nature, scope, frequency, duration, severity, and location of incident or incidents; and
-The identity, number, and relationships of persons involved.
Forms of Sexual Harassment or Gender-Based Hostile Environment Harassment: Sexual Harassment or Hostile Environment Harassment based on one’s sex or gender-related status may include acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or gender-related status, even if the acts do not involve conduct of a sexual nature. In either type of harassment, the effect will be evaluated based on the standard of a reasonable person in the position of the Complainant. Sexual Harassment or Hostile Environment Harassment can take many forms:
-It may be blatant and intentional and involve an overt action, a threat or reprisal, or may be subtle and indirect, with a coercive aspect that is unstated.
-It does not have to include intent to harm, be directed at a specific target, or involve repeated incidents.
- It may be committed by anyone, regardless of gender, age, position, or authority. While there is often a power differential between two persons, perhaps due to differences in age, social, educational, or employment relationships (e.g., supervisor to subordinate, faculty member to student, coach to student-athlete, student leader to first year student), harassment can occur in any context and between persons of equal power status (e.g., student to student, staff to staff, faculty member to faculty member, visitor/contracted employee to staff).
- -It may be committed by a stranger, an acquaintance, or someone with whom the complainant has an intimate or sexual relationship.
- -It may be committed by or against an individual or may be a result of the actions of an organization or group.
- -It may occur by or against an individual of any sex, gender identity, gender expression, or sexual orientation.
- -It may occur in the classroom, in the workplace, in residential settings, over electronic media (including the internet, telephone, and text), or in any other setting.
- -It may be a direct proposition of a sexual nature.
- -It may be a one-time event or part of a pattern of behavior.
-It may be committed in the presence of others or when the parties are alone
- -It may affect the complainant and/or third parties who witness or observe harassment.
Some examples of behavior that might be considered Sexual or Hostile Environment Harassment include, but are not limited to:
-Threats, either directly or by implication, of adverse employment or academic action if sexual favors are not granted or punishing, either directly or by implication, for refusing to tolerate harassment, for refusing to submit to sexual activity, or for reporting harassment;
-Promising favorable treatment or continued employment in return for sexual favors;
-Change of academic or employment responsibilities (increase in difficulty or decrease of responsibility) based on sex or gender-related status;
-Unwanted, unnecessary and objectively inappropriate physical contact or suggestive body language, such as touching, patting, pinching, hugging, kissing, or brushing against an individual’s body;
-Physical coercion or pressure of an individual to engage in sexual activity or punishment for a refusal to respond or comply with sexual advances;
-Display or distribution of pornographic material or sexual explicit drawings, pictures, or written materials;
-Sexual rumors or ratings of sexual activity/performance or the circulation, display, or creation of e-mails or websites of a sexual nature;
-Excessively offensive remarks, including unwelcome graphic or suggestive
comments about an individual’s body, appearance or dress,
- -Jokes and humor about sex or gender-specific traits;
- -Inappropriate use of sexually explicit or offensive language or derogatory language directed at another person’s sexuality, gender, gender identity, sexual orientation or gender expression;
- -Insults and threats based on sex, gender, gender identity, sexual orientation or gender expression;
- -The display in the workplace of sexually suggestive objects or pictures which create an intimidating or hostile work environment;
- -The display or circulation of written materials or pictures degrading to an individual(s) or gender group where such display is not directly related to an educational/pedagogical, artistic, or work goal;
- -Acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex-stereotyping. Harassment for exhibiting what is perceived as a stereotypical characteristic for one’s sex, or for failing to conform to stereotypical notions of masculinity and femininity, regardless of actual or perceived gender related status of the harasser or her/his/their target;
- -Abusive, disruptive or harassing behavior, whether verbal or physical, which endangers another's mental or physical health, including but not limited to threats, acts of violence, or assault based on gender related status and/or in the context of intimate partner violence;
- -Other unwelcome and unwanted conduct of a sexual nature, such as leering, name calling, suggestive comments and sexual propositions or innuendos and other oral, written or electronic communications of a sexual nature that an individual communicates is unwanted and unwelcome.
Sexual violence refers to physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent (e.g., due to the student’s age or use of drugs or alcohol, or because of an intellectual or another disability that prevents the student from having the capacity to give consent). A number of different acts fall into the category of sexual violence, including Rape, Sexual Assault, Sexual Battery, Sexual Abuse and Sexual Coercion. All such acts of Sexual Violence are forms of sex discrimination prohibited by Title IX.
Sexual Assault: Sexual Assault is typically defined as:
Non-Consensual Sexual Contact: Any intentional sexual touching, however slight and with any object or body part, that is without consent (which is usually defined in the universities Title IX policy) and/or by threat, intimidation, coercion, duress, violence, or by causing a reasonable fear of harm. This includes intentional contact with breasts, buttocks, groin, mouth, or genitals, as well as any other intentional bodily contact that occurs in a sexual manner.
Non-Consensual Sexual Intercourse (Rape): Any sexual penetration or copulation, however slight and with any object or body part that is without consent and/or by force or coercion. Intercourse includes anal or vaginal penetration by a penis, object, tongue, or finger, and oral copulation (mouth and genital/anal contact), no matter how slight the penetration or contact.
Sexual Battery: [as defined by the State of Florida, other states utilize similar definitions] Sexual Assault is legally referred to as sexual battery and law enforcement will utilize this definition in determining whether to pursue criminal charges. Florida State Statute 794.011 defines sexual battery as: “Any oral, anal, vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object performed without consent and not for a bona fide medical purpose.”
Sexual Coercion: Sexual Coercion is the improper use of unreasonable and persistent pressure to compel another individual to initiate or continue sexual activity against an individual’s will. Coercion can include a wide range of behaviors, including intimidation, manipulation, threats and blackmail. Coercion may be emotional, intellectual, psychological or moral. A person’s words or conduct are sufficient to constitute coercion if they wrongfully impair another individual’s freedom of will and ability to choose whether or not to engage in sexual activity.
Force: Force is the use or threat of physical violence or intimidation to overcome an individual’s freedom of will to choose whether or not to participate in sexual activity.
Domestic Violence: is defined as felony or misdemeanor crimes of violence committed by a current or former spouse of the victim, by a person with whom the victim shares a child in common, by a person who is co-habitating with or has co-habitated with the victim as a spouse, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction receiving grant monies, or by any other person against an adult or youth victim who is protected from that person’s acts under the domestic or family violence laws of the jurisdiction.
Domestic Violence [as defined by the State of Florida, other states utilize similar definitions] is defined as any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnaping, false imprisonment or any criminal offense resulting in physical injury or death of one family or household member by another family or household member. “Family or household member” means spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common, regardless of whether they have been married. With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit. Florida law enforcement agencies will utilize this definition in determining whether to pursue criminal Domestic Violence charges.
Dating Violence: is defined as violence by a person who has been in a romantic or intimate relationship with the victim. Whether there was such relationship will be gauged by its length, type, and frequency of interaction.
Dating Violence [as defined by the State of Florida, other states utilize similar definitions] as violence between individuals who have or have had a continuing and significant relationship of a romantic or intimate nature. The existence of such a relationship shall be determined based on the consideration of the following factors:
1. A dating relationship must have existed within the past six months;
2. The nature of the relationship must have been characterized by the expectation of affection or sexual involvement between the parties; and
3. The frequency and type of interaction between the persons involved in the relationship must have included that the persons have been involved over time and on a continuous
- Stalking: is defined as engaging in a course of conduct (e.g., repeatedly following, harassing, threatening or intimidating another by telephone, mail, electronic communication, social media, or any other action, device or method) directed at a specific person that would cause a reasonable person to (a) fear for his or her safety or the safety of others; or (b) suffer other emotional distress.
Stalking also includes the concept of cyber-stalking, a particular form of stalking in which electronic media such as the internet, social networks, blogs, cell phones, texts, or other similar devices or forms of contact are used to pursue, harass, or to make unwelcome contact with another person in an unsolicited fashion.
Examples of stalking include:
-Unwelcome and repeated visual or physical proximity to a person;
-Repeated oral or written threats;
-Extortion of money or valuables;
-Unwelcome/unsolicited written communication, including letters, cards, emails, instant messages, and messages on on-line bulletin boards;
- -Unwelcome/unsolicited communications about a person, their family, friends, or co- workers;
- -Sending/posting unwelcome and/or unsolicited messages with another username;
- -Implicitly threatening physical conduct or any combination of these behaviors directed toward an individual person.
Stalking [as defined by the State of Florida, other states utilize similar definitions] as the willful, malicious and repeated following or harassing of a specific person that would cause a reasonable person to fear for his or her safety or the safety of others; or suffer substantial emotional distress; or an aggravated stalking, which means the willful, malicious and repeated following or harassing another with credible threats with the intent to place that person in reasonable fear of death or bodily injury; or willfully, maliciously, repeatedly following or harassing a minor under age 16; or after injunction for protection or any court-imposed prohibition of conduct, knowingly, willfully, maliciously and repeatedly follows or harasses another person.
Sexual Exploitation: Sexual exploitation is an act or omission to act that involves a member of a University community taking non-consensual, unjust, humiliating, or abusive sexual advantage of another, either for the individual’s own advantage or to benefit anyone other than the one being exploited. Examples of sexual exploitation include but are not limited to the following:
-Creating pictures, movies, web cam, tape recording, graphic written narrative or other means of memorializing sexual behavior or a state of undress of another person without the other’s knowledge and consent;
-Sharing items described in the paragraph above, beyond the boundaries of consent where consent was given. For example, showing a picture to friends where consent to view it was given for oneself only;
- -Observing or facilitating observation by others of sexual behavior or a state of undress of another person without the knowledge and consent of that person;
- -“Peeping Tom”/Voyeuristic behaviors;
- -Engaging in sexual behavior with knowledge of an illness or disease (HIV or STD) that could be transmitted by the behavior;
- -Engaging in or attempting to engage others in illegal “escort services” or illegal “dating services” which include or encourage in any way sexual behavior in exchange for money;
- -Surreptitiously providing drugs or alcohol to a person for the purpose of sexual exploitation; and
- -Causing another person to be exposed to pornographic material without the person’s advance knowledge or consent.
Retaliation: Retaliation is defined as taking adverse action against an individual making a complaint under Title IX or against any person cooperating or participating in the investigation of a complaint or the enforcement of any interim measures or sanctions under this Policy. Retaliation includes intimidation, threats, harassment, and other adverse action including adverse job action and adverse academic action against any such complainant or third party.
Intimidation: Intimidation is defined as implied threats or acts that cause an unreasonable fear of harm in another.
Aiding or Facilitating Sexual or Gender-Based Misconduct: Promoting, aiding, facilitating or encouraging the commission of any behavior prohibited under Title IX
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.