V520.02 Prohibited Discrimination, Protected Status Harassment, Hostile Environment, and Other Misconduct 


I.    Purpose and Scope 


Valley City State University (VCSU) is committed to providing a safe, inclusive, and respectful, living and working environment for its students, faculty and staff members.  To this end, this policy applies to prohibited discrimination, protected status harassment, hostile environment, and other misconduct not covered by the Title IX Sexual Harassment Policy.  

  

II.    Definitions 

These definitions apply to terms as they are used in this policy. 

 

A.    Advisor: Either an attorney or non-attorney advocate who advises a student during the conduct proceedings. Advisors are permitted in proceedings not involving academic misconduct which could result in the suspension or expulsion of a student.


B.    Aiding prohibited conduct:  A person aids prohibited conduct, if with the intent to promote or facilitate such conduct, that person helps another person commit the prohibited conduct.


C.     Appeals Authority: the individual appointed by VCSU to consider appeals. 


D.    Attempting to commit prohibited conduct: A person attempts to commit prohibited conduct, if with the intent to commit such conduct, that person engages in conduct directly tending toward completion of the prohibited conduct.


E.    Complainant: A person who is the subject of a report or initiates a formal complaint of prohibited conduct under these procedures will be designated as the “complainant.”  Both the complainant and respondent are referred to as “party” or “parties” throughout this policy. 


F.    Confidential resources: Confidential resources do not have an obligation to report prohibited conduct to VCSU and will not do so without the explicit consent of the complaining party.  VCSU’s confidential resources are:  


    VCSU Health and Counseling Services 

Director of Counseling Services; Licensed Clinical Counselor 

McFarland 424 

701-845-7424 

 

    VCSU Health Services 

Director of Health Services 

Mythaler Hall, first floor 

701-845-7305

 

    Abused Persons Outreach Center (APOC) 

Victim Services and Prevention Coordinator 

701-845-0078 

 

    F-M Rape and Abuse Crisis Center 

701-293-7273 (available 24 hours) 

www.raccfm.com 

 

    The Village (For Employees) 

Employee Assistance Program  

1-800-627-8220 

www.VillageEAP.com 

 

G.    Consent: Voluntary, active and clear agreement, communicated by words or actions, to participate in specific sexual activity.  Consensual sexual activity happens when each participant willing chooses to participate.


In cases where a complaint asserts that sexual activity occurred without consent, the standard is whether a sober, reasonable person in the same circumstances as the respondent should have known that the complainant did not or could not consent to the sexual activity in question.


In cases where a complainant asserts that sexual activity occurred without consent, the standard is whether a sober, reasonable person in the same circumstances as the respondent should have known that the complainant did not or could not consent to the sexual activity in question.


In North Dakota, the legal age of consent is 18.  This means that there can be no consent when one participant in the sexual activity is under the legal age of consent and any other participant is at or over the legal age of consent.


Section III explains consent in further detail. 


H.    Domestic partners: Domestic partners are unmarried couples living together in a long-

term relationship. 


I.    Force or threat of force: The use of force or violence, or the threat of force or violence, including, but not limited to: (1) when the respondent threatens to use force or violence on the complainant or on any other person, and the complainant under the circumstances reasonably believes that the respondent has the ability to execute that threat; or (2) when the respondent has overcome the complainant by use of superior strength or size, physical restraint or physical confinement.  


J.    Hostile environment: A hostile environment exists when conduct is sufficiently severe, persistent, or pervasive that it unreasonably interferes with, limits or deprives an individual’s participating in or benefiting from the University’s education or employment programs or activities.  Conduct must be deemed severe, persistent, or pervasive in a way that a reasonable person would find abusive, hostile, or offensive.   


In evaluating whether a hostile environment exists, the University will consider the totality of known circumstances.  Factors in this consideration may include, but are not limited to:

1.    The frequency, nature, and severity of the conduct;

2.    Whether the conduct was physically threatening;

3.    The effect of the conduct on the complainant’s mental or emotional state;

4.    Whether the conduct was directed at more than one person;

5.    Whether the conduct arose in the context of other discriminatory conduct;

6.    Whether there is a power differential between the parties; and 

7.    Whether the conduct implicates concerns related to academic freedom or protected speech.


Because of protections afforded by academic freedom, speech and other expression occurring in the context of instruction or research will not be considered hostile unless this speech or expression also meets one or both of the following criteria:

1.    It is meant to be either abusive or humiliating toward a specific person or persons, and/or

2.    It persists despite the reasonable objection of the person or persons targeted by the speech.


K.    Interim measures: Interim measures are individualized services offered as appropriate to either or both the complainant and respondent involved in an alleged incident of misconduct, prior to an investigation or while and investigation is pending.  Interim measures include counseling, modifications of work or class schedules, restrictions on contact between the parties, increased security and monitoring of certain areas of campus, and other similar accommodations.


As measures needed by each party may change over time, VCSU will communicate with each party throughout the investigation to ensure that any interim measures may be modified, supplemented or withdrawn before, during or after the final outcome of any investigation.

 

L.    Physical abuse: Physical abuse includes sexual abuse and means any of the following: (1) the knowing or reckless use of physical force, confinement, or restraint; (2) knowing, repeated, and unnecessary sleep deprivation; and/or (3) knowing or reckless behavior that creates an immediate risk of physical harm.  


Physical abuse also includes the willful, purposeful denial of medication, medical care, shelter, food, or other assistance to a person who requires such things because of age, health or disability, thereby putting that person at risk of physical, mental, or emotional harm.  

 

M.    Prohibited conduct: Prohibited conduct includes, but is not limited to: aiding prohibited 

conduct, attempting to commit prohibited conduct, discrimination, protected status harassment, hostile environment, physical abuse, sexual exploitation, and violating an interim measure.  


N.    Prohibited Discrimination: Sex, race, color, religion, physical or mental disability, pregnancy, status with regard to marriage or public assistance, sexual orientation, participation in lawful activity, or genetic information are Equal Education and Employment Opportunity (EEEO) protected classes.  Prohibited discrimination occurs when an employment or academic decision that results in negative and/or different treatment of an individual based upon his or her membership in an EEEO-protected class, such denying an opportunity that is open to others, singling a person or group for different treatment because of her, his or their EEEO-protected class status, failure to provide reasonable accommodation for a disability or religious belief or practice; reinforcing the use of stereotypes that unreasonably impacts a person’s environment or opportunities. 

 

O.    Protected Status Harassment: When an individual is targeted with verbal, written, visual, or physical conduct based on that person’s EEEO-protected class status that unreasonably interferes with the individual’s work or academic performance, or creates an intimidating, hostile, or offensive working, learning, living, or social environment.


Protected-status harassment occurs when an individual is targeted with verbal, written, visual, or physical conduct based on that person’s EEEO-protected status that unreasonably interferes with the individual’s work or academic performance, or creates an intimidating, hostile, or offensive working, learning, living, or social environment.  The conduct constitutes harassment under any of the following conditions:

1.    The conduct is direct.

2.    Submission to the conduct is made either explicitly or implicitly a term or condition of an individual’s employment or academic status.

3.    Submission to, or rejection of, such conduct by an individual is used as the basis for an employment or academic decision affecting that person.

4.    The conduct is sufficiently severe or pervasive to alter the conditions of the complainant’s employment or academic pursuits and creates a work or educational environment that a reasonable person would find abusive. 


Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality.  To be unlawful, the conduct must create an environment that would be intimidating, hostile, or offensive to reasonable people.


Offensive conduct may include, but is not limited to: offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance.  Harassment can occur in a variety of circumstances, including, but not limited to, the following: 

1.    The harasser can be the victim’s supervisor, a supervisor in another area, an agent of the employer, a co-worker, or a non-employee.

2.    The victim does not have to be the person harassed but can be anyone affected by the offensive conduct.

3.    Unlawful harassment may occur without economic injury to, or discharge of, the complainant.


P.    Respondent: A person accused of conduct prohibited by this policy and does not imply pre-judgment. 

  

Q.    Retaliation: Adverse action taken against an individual for making a good faith report of prohibited conduct or participating in any investigation or proceeding under the procedures.  Retaliation may include: intimidation, threats, coercion, or adverse employment or educational actions.  Retaliation may be found even when an underlying report made in good faith was not substantiated.  Retaliation may be committed by the respondent, the complainant, or any other individual or group of individuals.  Retaliation does not include good faith actions pursued in response to a report of prohibited conduct. 


Acts of alleged retaliation should be reported immediately to VCSU and will be promptly investigated.


R.    Right to an advisor: In conduct proceedings that may result in suspension or expulsion, a student or student organization has the right to be represented, at the student or student organization’s expense, by an advisor of its choice


S.    Sanctions: Penalties which may be imposed by VCSU upon persons who, in proper hearing processes, have been found to have committed violations of the Code of Student Conduct.  

 

T.    Sexual contact: Any touching, however slight, with any object or body party, whether or not through the clothing or other covering, of the sexual or other intimate parts of the person, or the penile ejaculation or ejaculate or emission or urine or feces upon any part of the person, for the purpose of arousing or satisfying sexual or aggressive desires.  


U.     Sexual exploitation: Sexual exploitation is taking advantage of another person without consent.  Examples include, but are not limited to:

1.    Observing another person when that person is nude or engaged in sexual activity without the knowledge and consent of the person observed or allowing another to observe consensual sexual activity without the knowledge and consent of all parties involved;

2.    Making, sharing, posting, streaming, or otherwise distributing any image, photography, video, or audio recording depicting or otherwise recording another person when that person is nude or engaged in sexual activity without the knowledge and consent of the person depicted or recorded.

3.    Exposing one’s genitals to another person without the consent of that person; 

4.    Prostituting another person;

5.    Exposing another person to sexually transmitted infection without the knowledge and consent of the person exposed; and

6.    Causing another person to become incapacitated with the intent to making that person vulnerable to nonconsensual sexual assault or sexual exploitation.


V.     Staff: An employee at VCSU who is not a faculty member.  The following administrative positions are considered staff for purposes of this policy: President, Vice-Presidents, Chief Information Officer, Director of Marketing, Athletic Director, Director of the Foundation, coaches, and assistant coaches. 

 

W.    Student: The term student will be interpreted to mean any person, whether or not incidentally on VCSU’s payroll, who is currently registered with VCSU as a degree or non-degree-seeking candidate. 


The term student will be interpreted also to mean persons not officially registered, and not faculty members or other University employees, if they are: 

1.    Currently enrolled in or taking classes at the University; or 

2.    Currently using University facilities or property, or the property of a University-related residential organization, in connection with academic activities; or 

3.    Currently on suspension from being a student of the University. 

 

X.    Violating an Interim Measure:  A person violates an interim measure if the measure is an order by a VCSU official and the person to whom the order applies knowingly violates any of the conditions of the order.  One common example of an order by a VCSU official is a “no-contact” order. 

 

III.    Consent 


A.    What is Consent?  

Consent means voluntary, active and clear agreement, communicated by words or actions, to participate in specific sexual activity. Consensual sexual activity happens when each participant willingly chooses to participate. It is the responsibility of the person who wants to engage in a sexual activity to obtain the consent of the other person for that sexual activity. Consent may also be withdrawn or modified at any time by the use of clearly understandable words or actions.   

1.    In cases where a victim asserts that sexual activity occurred without consent, the standard is whether a sober, reasonable person in the same circumstances as the accused should have known that the victim did not or could not consent to the sexual activity in question.  

2.    The definition of consent does not vary based upon a person’s sex, sexual orientation, gender identity, or gender expression. 

3.    Consent is best obtained through direct communication about the decision to engage in specific sexual activity. Consent need not be verbal, but verbal communication is the most reliable and effective way to seek, assess, and obtain consent. Non-verbal communication often is ambiguous. For example, heavy breathing can be a sign of arousal, but it also can be a sign of distress. To be sure, talking with sexual partners about desires, intentions, boundaries and limits can be uncomfortable, but it serves as the best foundation for respectful, healthy, positive and safe intimate relationships. 

4.    When consent is withdrawn or can no longer be given, sexual activity must stop. 

 

B.    What is not Consent?  

Consent cannot be obtained by threat of harm, coercion, intimidation, or by use or threat of force.  


The lack of explicit consent does not imply consent and likewise, the lack of verbal or physical resistance does not constitute consent. Thus, silence, passivity, submission, and/or the lack of resistance (including the absence of the word “no”) do not—in and of themselves—constitute consent.  


The following are factors in determining consent:

1.    The existence of a romantic or sexual relationship does not, in and of itself, constitute consent.

2.    Consent on a prior occasion does not constitute consent on a subsequent occasion.

3.    Consent to one sexual act does not constitute consent on a subsequent occasion.

4.    Consent to sexual activity with one person does not constitute consent to engage in sexual activity with another.  

5.    Consent cannot be inferred from a person’s manner of dress or other contextual factors, such as alcohol consumption, dancing, or agreement to go to a private location like a bedroom.

6.    Accepting a meal, a gift, or an invitation for a date does not imply or constitute consent.

7.    Silence, passivity, or lack of resistance alone or in combination does not constitute consent.

8.    Incapacitation by the person initiating sexual activity does not in any way lessen his or her obligation to obtain consent.

9.    Consent may be withdrawn at any time.


C.    Incapacitation  

Consent cannot be obtained from someone who is unable to understand the nature of the activity or give knowing consent due to circumstances. A person is mentally or physically incapacitated when that person lacks the ability to make or act on considered decisions to engage in sexual activity, i.e., when a person’s perception and/or judgment is so impaired that the person lacks the cognitive capacity to make or act on conscious decisions, including without limitation the following circumstances: 

1.    The person is incapacitated due to the use or influence of alcohol or drugs, or due to a mental disability. Alcohol and drugs can impair judgment and decision-making capacity, including the ability to rationally consider the consequences of one’s actions. The effects of alcohol and drug consumption often occur along a continuum. For example, alcohol intoxication can result in a broad range of effects, from relaxation and lowered inhibition to euphoria and memory impairment, and to disorientation and incapacitation. Incapacitation due to alcohol or drug use is a state beyond “mere” intoxication or even being drunk. Indicators of incapacitation may include inability to communicate, lack of control over physical movements, and/or lack of awareness of circumstances. An incapacitated person can also experience a blackout state during which he or she appears to give consent but does not have conscious awareness or the capacity to consent. Some medical conditions also can cause incapacitation.  

2.    The person is asleep or unconscious.  

3.    The person is under the legal age of consent. In North Dakota, the legal age of consent is 18. This means that there can be no consent when one participant in the sexual activity is under the legal age of consent and any other participant is at or over the legal age of consent.  


In sum, an act will be deemed non-consensual if a person engages in sexual activity with an individual who is incapacitated, and who the person knows or reasonably should know is incapacitated, or with an individual who is asleep, unconscious, or under the legal age of consent.  


D.    Other Important Points regarding Consent 

1.    The existence of a romantic or sexual relationship does not, in and of itself, constitute consent.  

2.    Consent on a prior occasion does not constitute consent on a subsequent occasion.  

3.    Consent to one sexual act does not constitute consent to another sexual act. 

4.    Consent to sexual activity with one person does not constitute consent to engage in sexual activity with another.  

5.    Consent cannot be inferred from a person’s manner of dress or other contextual factors, such as alcohol consumption, dancing, or agreement to go to a private location like a bedroom.  

6.    Accepting a meal, a gift, or an invitation for a date does not imply or constitute consent.  

7.    Silence, passivity, or lack of resistance alone or in combination does not constitute consent.  

8.    Incapacitation by the person initiating sexual activity does not in any way lessen his or her obligation to obtain consent.  

9.    Consent may be withdrawn at any time.

 

E.    Incapacitation 

Consent cannot be obtained from someone who is unable to understand the nature of the activity or give knowing consent due to circumstances.  A person is mentally or physically incapacitated when that person lacks the ability to make or act on considered decisions to engage in sexual activity, i.e., when a person’s perception and/or judgment is so impaired that the person lacks the cognitive capacity to make or act on conscious decisions, including without limitation the following circumstances:

1.    The person is incapacitated due to the use or influence of alcohol or drugs, or due to a mental disability. Alcohol and drugs can impair judgment and decision-making capacity, including the ability to rationally consider the consequences of one’s actions. The effects of alcohol and drug consumption often occur along a continuum. For example, alcohol intoxication can result in a broad range of effects, from relaxation and lowered inhibition to euphoria and memory impairment, and to disorientation and incapacitation. Incapacitation due to alcohol or drug use is a state beyond “mere” intoxication or even being drunk. Indicators of incapacitation may include inability to communicate, lack of control over physical movements, and/or lack of awareness of circumstances. An incapacitated person can also experience a blackout state during which he or she appears to give consent but does not have conscious awareness or the capacity to consent. Some medical conditions also can cause incapacitation. 

2.    The person is asleep or unconscious.

3.    The person is under the legal age of consent.  In North Dakota, the legal age of consent is 18.  This means that there can be no consent when one participant in the sexual activity is under the legal age of consent and any other participant is at or over the legal age of consent. 


In sum, an act will be deemed non-consensual if a person engages in sexual activity with an individual who is incapacitated, and who the person knows or reasonably should know is incapacitated, or with an individual who is asleep, unconscious, or under the legal age of consent. 

 

IV.    Prohibited Discrimination, Protected Status Harassment, Hostile Environment, and Other Misconduct Policy 


A.    VCSU’s Objectives 

VCSU is committed to respondent to complainants of discrimination, harassment, and other misconduct. VCSU is also committed to providing prompt, fair, and impartial processes for all parties when such prohibited conduct is alleged. 

 

B.    Prohibited Conduct 

Prohibited conduct, includes, but is not limited to: aiding prohibited conduct, attempting to commit prohibited conduct, discrimination, protected status harassment, hostile environment, physical abuse, sexual exploitation, and violating an interim measure.  

 

C.    Sexual Misconduct 

Sexual misconduct encompasses a range of conduct.  Sexual Misconduct includes sexual acts.  Sexual acts include, but are not limited to the following actions: 

1.    Sexual intercourse; 

2.    Sodomy (oral and/or anal); 

3.    Sexual penetration with any object; 

4.    Sexual touching of a person’s intimate parts (genitalia, groin, breasts, buttocks, mouth or other bodily orifice or the clothing covering them); or 

5.    Compelling a person to touch his or her own or another person’s intimate parts. 


Sexual misconduct ranges from sexual assault (a criminal act that the U.S. Department of Education defines as a form of sexual harassment) to conduct such as sex-oriented remarks or jokes, pressures or demands for sexual favors, implied or overt promises or threats, unwanted touching or persistent unwelcome comments, e-mails, or pictures of an insulating or degrading sexual nature, which may constitute unlawful harassment depending upon the specific circumstances and context in which the conduct occurs.  For example, sexual advances, requests for sexual favors, or sexually directed remarks or behavior constitute sexual harassment when:

1.    Submission to or rejection of such conduct is made, explicitly or implicitly, a basis for an academic or employment decision, or term or condition or either; or

2.    Such conduct directed against an individual persists despite its rejection. 

 

This policy does not apply to full range of sexual misconduct.  This policy applies to misconduct not covered under Title IX Sexual Harassment Policy. 


D.    Consensual Relationships 

At times, consensual relationships may form and exist.  The relative positions of the individuals involved in the relationship will determine, what if any necessary action must be taken.  In all cases, the person in the position of greater institutional authority must promptly report to his/her department chair, supervisor, supervising vice president, and President the sexual or romantic relationship so that VCSU may, in accord with policy, assist in separating the professional relationship from the intimate relationship. 

1.    Undergraduate Students 

Trust is essential to sound relationships between individuals of inherently unequal power. Those who teach are entrusted with guiding students, evaluating their work, giving grades for papers and courses, and recommending students to colleagues. Students depend on the integrity of their relationships with those instructors and understandably expect instructors to exercise their authority fairly. The teacher-student relationship must not be jeopardized by possible doubt of intent or fairness of professional judgment, conflicts of interest, harassment, or the appearance to others of favoritism or advantage.  


In general, undergraduate students and faculty are vastly different groups of people with regard to age, scope of life experiences, developmental status, and vulnerability.  These differences impart greater obligations to those with more institutional authority. In the interests of prudence and fostering a campus environment free of sexual harassment and discrimination, this policy prohibits sexual and/or romantic relationships between faculty and undergraduates at the University regardless of whether an instructional, mentoring, research, or other University-based relationship exists or may reasonably be expected to exist in the future.  


This policy prohibits sexual and/or romantic relationships between staff or employees and undergraduates at VCSU. 


This policy also prohibits a graduate student with an academic teaching or academic supervisory role (such as teaching assistant, lecturer, or research assistant) from having a sexual and/or romantic relationship with an undergraduate student whom he or she teaches or supervises during the duration of the teaching or supervisory relationship.  For example, a graduate student serving as a teaching assistant may not have a sexual and/or romantic relationship with an undergraduate student during the duration of the course for which the graduate student is serving in that role. 


In addition, this policy prohibits coaches, paid and volunteer, of varsity teams and sport clubs from having sexual and/or romantic relationships with undergraduate students on their teams as well as students not on their teams. 


2.    Graduate Students 

Graduate students generally are older and have had more developmental opportunities and life experiences than undergraduates.  As a result, the parameters of acceptable romantic or sexual relationships between faculty and graduate students are different than those between faculty and undergraduate students.  Although not per se prohibited, relationships between graduate students and faculty must occur within boundaries designed to ensure fairness and minimize the inappropriate exercise of authority. Often third-party witnesses to such a relationship or suspected relationship want the department chair to address the matter but remain silent out of fear of reprisal. Such individuals are encouraged to come forward and are reminded that the policy is to remove the professional connections between the members of the couple. 


Thus, a faculty member is required to promptly report to his/her chair and the Vice President for Academic Affairs for the University a romantic or sexual relationship with a graduate student whom she or he teaches, advises, supervises, mentors, recommends for awards, or employment, etc. or may reasonably expect to teach, advise, etc. in the future. The chair will then work with the Human Resource Director to develop and implement a plan to mitigate actual and perceived favoritism and conflicts of interest by establishing an instructional and supervisory arrangement in which all relevant parties may have confidence. 


Faculty must keep in mind that a graduate student’s initial consent to a romantic relationship does not preclude a charge of sexual misconduct in the future. While there may be no apparent impediment to a sexual and/or romantic relationship between a faculty member and a graduate student outside each one’s disciplinary realm, students’ academic interests and pursuits often shift. Beliefs about what is consensual may also shift over time. What may appear to be consensual at one point may subsequently be interpreted as coercive, especially in hindsight and after the end of the relationship. The inherent power differential between a faculty member and a graduate student heightens the risks inherent in such relationships, prompting VCSU to advise strongly against them altogether even in the absence of a perceived or real conflict of interest. 


In addition, any graduate student with an academic teaching or academic supervisory role is prohibited from having sexual and/or romantic relationship with a student whom he or she teaches or supervises during the duration of the teaching or supervisory relationship (e.g., a graduate student serving as a lecturer may not have a sexual and/or romantic relationship with a student who is enrolled in that course during the duration of the course). 


3.    Other Imbalances of Power within the University 

There are multiple imbalances of power within the University.  Examples of an unequal power dynamic include supervisor-subordinate, senior faculty member-junior faculty member, mentor-mentee, advisor-advisee, and teaching assistant-student.  While not per se prohibited, romantic and sexual relationships must occur within boundaries designed to ensure fairness and minimize the inappropriate exercise of authority.  University’s Nepotism Policies speak to some of these situations, and basic ethics and expectations of professionalism may also apply. (See Section VII. C. Related University Policy.) 


4.    Pre-existing Domestic Partner Relationships Permitted 

Pre-existing domestic partner relationships are permitted.  A pre-existing domestic partner relationship is a long-term committed relationship that existed prior to registering as a student.  For example, a domestic partner of a faculty member may be an undergraduate student at the University without repercussion. 


Those who are involved in a pre-existing domestic partner relationship must report the relationship to the department chair, supervisor, the supervising Vice President, and the President. 


E.    Application 

This policy applies to prohibited conduct on any campus of the University, on any other property or facility used by it for educational purposes, or on the property of a University-related residential organization.


All actions by a student that involve the use of VCSU computing and network resources from a remote location, including, but not limited to accessing email accounts, will be deemed to have occurred on campus.


This policy will apply regardless of the location of the conduct where the President, or other VCSU appointed designee determines that either:

1.    The alleged prohibited conduct has occurred in the context of a VCSU program or activity; or

2.    The conduct poses a substantial threat to VCSU’s educational mission or the health or safety of VCSU community members, including potentially contributing to or creating a hostile environment on any campus of the University.

 

F.    Time to File Formal Complaints 

To promote timely and effective review, VCSU strongly encourages complainants and other persons with knowledge of possible violations of this policy to make reports as soon as possible, ideally within sixty days of the alleged prohibited conduct.  A delay in reporting may affective VCSU’s ability to gather relevant and reliable information, contact witnesses, investigate thoroughly, and respond meaningfully.  It may also affect VCSU’s ability to take disciplinary action against a student who has engaged in prohibited conduct.


While prompt reporting is encouraged, VCSU will consider as timely any formal complaint that is filed under these procedures.  However, VCSU is limited and cannot consider a complaint against a student respondent if the respondent is no longer a student as defined by this policy, (e.g., has graduate or permanently left VCSU).


If the respondent is no longer a student at the time of the formal complaint, and VCSU is, thus, unable to pursue resolution, VCSU will provide interim measures for the complainant.


G.    Retaliation and Bad Faith Complaints

VCSU prohibits retaliation by its faculty, staff, or students against a person who exercises his or her rights or responsibilities under this policy.  Any act of retaliation may be a separate violation of this policy and is subject to sanctions or discipline set forth in the Student Code of Conduct and Employee Code of Conduct.


At the same time, an individual who believes that they are aggrieved because a complaint under this policy is malicious, knowingly false, or fundamentally frivolous, may make a complaint. A party who brings such a bad faith complaint may be found to have violated this policy’s prohibition against retaliation. 

 

H.    Others Who Violate this Policy May be Banned  

Others found to have violated this policy may be banned from campus and/or otherwise restricted from attending or participating in University activities and programs.   

 

I.    Encouragement to Report and Seek Medical Care 

Sexual misconduct can be devastating to the person who experiences it directly and can adversely impact family, friends, and the larger community.  Regardless of the definitions provided above, people who believe they have experienced any sexual misconduct are encouraged to report the incident and to seek medical care and support as soon as possible.

 

J.    Recommendations for Complainant 

A guiding principle in the reporting of misconduct is to avoid possible re-victimizing of the complainant by forcing the individual into any plan of actions.  It is recommended that a person consider each of the following:

1.    Finding a location where re-victimization will not occur;

2.    Avoiding the destruction of evidence by bathing, douching, changing clothes, or cleaning up in any way.  Preserve evidence in a paper bag for possible future action.  Also, keep copies of emails, text messages, and voice messages;

3.    Pursuing medical treatment;  

4.    Pursuing counseling services with appropriate agencies (e.g., University counselor, Employee Assistance Program (EAP), or private providers).  Calling someone that is known and trusted, such as a friend or counselor, and discussing with this person the misconduct can help.


V.    General Reporting Guidelines 


All members of the VCSU community who have been subjected to prohibited conduct have the right to make a report to VCSU, local law enforcement, and/or state police, or choose not to report.


A.    Confidential Resources

There are confidential resources for individuals who are unsure whether to report misconduct or who seek counseling or other emotional support in addition to or without, making a report to VCSU.  For confidential support, one can seek assistance from the following:

    VCSU Health and Counseling Services 

Director of Counseling Services; Licensed Clinical Counselor 

McFarland 424 

701-845-7424 

  

    VCSU Health Services

Director of Health and Wellness Services

Mythaler Hall, first floor 

701-845-7305


    Abused Persons Outreach Center (APOC) 

Victim Services and Prevention Coordinator 

701-845-0078 

 

    F-M Rape and Abuse Crisis Center 

701-293-7273 (available 24 hours) 

www.raccfm.com 

 

    The Village (For Employees) 

Employee Assistance Program  

1-800-627-8220 

www.VillageEAP.com 


Conversations with VCSU Health and Counseling Services are kept strictly confidential and, except in rare circumstances, will not be shared without explicit permission.  While conversations are confidential, these employees are required by federal law to report that an incident occurred.  The employees will not convey any personally identifiable information to the Vice President for Student Affairs or any other VCSU officials; however, they may share with the Vice President for Student Affairs de-identified statistical or other information regarding prohibited conduct under this policy.


Medical and counseling records are privileged and confidential documents that parties will not be required to disclose. 

 

B.    Reports to VCSU

After a report is received by the Vice President for Student Affairs, the Vice President for Student Affairs will determine who will conduct the investigation.  If the Vice President for Student Affairs is the subject of the complaint, the Human Resource Director will assume the Vice President for Student Affair’s role.  The Vice President for Student Affairs is responsible for the overall coordination and oversight of all student misconduct complaints to ensure consistent practices in handling complaints.  The appointed investigator will contact the complainant, if known, or another individual reporting the prohibited conduct to offer support services, including assistance with academic, housing, transportation, employment, and other reasonable and available accommodations.  The individual will also be advised of the option to pursue a formal complaint.


Reporting an incident to the Vice President for Student Affairs is private, and it does not mean the person who experienced misconduct somehow loses control of the process.  To the contrary, the Vice President for Student Affairs is here to advise on options regarding remaining anonymous, confidentiality, and VCSU’s process for investigating complaints of misconduct.  Indeed, in some cases, individuals choose not to move forward with the investigation process, but still request support services

 

C.    Process Privacy  

To encourage parties and witnesses to fully participate, VCSU recognizes the importance of privacy.   It is in the best interests of all participants to maintain privacy during the process.  Parties are encouraged not to reveal information they learn in the course of their participation in the process other than for the purpose of consulting with advisors and seeking support and advice from family, clergy, health professionals, and others playing a similar role. Parties are also encouraged to request that any advisors and support persons they consult keep information related to matters under this policy private.  


Parties may choose whether to disclose or discuss with others the outcome of a complaint under this policy.  


VCSU prohibits students from distributing documents obtained in the course of their participation in matters under this policy and applicable procedure.   However, students may share these documents for the purpose of consulting with an advisor; seeking support and advice from family, clergy, health professionals, and others playing a similar role; or as part of a civil, criminal, or administrative legal proceeding. 


As appropriate, the Vice President for Student Affairs, may issue an order restricting the parties from disclosing specific information.  


VCSU will provide other participants, such as witnesses and hearing and appeal panel members, with instructions about respecting and safeguarding private information. Such persons are obliged to comply with VCSU’s rules regarding privacy. VCSU will take reasonable measures to protect the privacy of proceedings and records; however, VCSU cannot and does not guarantee that privacy will be maintained. Privacy does not mean that VCSU is constrained from divulging facts of proceedings in appropriate circumstances. Additionally, VCSU may publicly divulge details of an outcome if one of the parties discloses selective portions of the proceedings, or if the matter is involved in litigation. 

 

D.    Leniency for Other Policy Violations  

To encourage reports of sexual misconduct, VCSU offers leniency for other policy violations to a student who reports an alleged violation of this Policy in good faith.  For example, if the reporting student was engaged in underaged drinking at the time the sexual assault occurred, VCSU will not sanction the reporting student for underaged drinking.  VCSU will not discipline a reporting student for such conduct violations unless VCSU determines that the violation was egregious.  For example, an action that places the health or safety of any other person at risk. 


VI.    Reporting Procedure 


The Vice President for Student Affairs is responsible for overall coordination and oversight of all student misconduct complaints to ensure consistent practices and standards in handling complaints.  The University’s procedures for responding to allegations depends on the nature of the incident, the relationship to the institution, and to the extent possible, the wishes of the person bringing forward the complaint


At times, individuals may have dual roles.  For example, a staff member might also be a student.  The role in which the individual was acting when the incident occurred will determine which procedure applies.  For example, if the incident occurred when the staff member was acting in his or her role as a staff member, the staff member procedure would apply.  If the staff member was acting in his or her role as a student, the student procedure would apply. 


Anyone who seeks to make a misconduct complaint or report may:

1.    File a complaint or report;

2.    Request interim measures;

3.    Make an anonymous report; and/or

4.    Contact law enforcement to file a criminal complaint and to preserve physical evidence.


An individual may pursue some or all these steps at the same time.  When initiating any of the above, an individual does not need to know whether they wish to request any particular course of action, nor how to label what happened.  Before or during this decision-making process, complainants and other reporting persons are encouraged a confidential resource.


A.    File a Complaint or Report 

Individuals are encouraged to report any alleged discrimination, protected class harassment, hostile environment, or other misconduct directly to the Vice President for Student Affairs. In order to do so, individuals may use the formal complaint or schedule an appointment with the Vice President for Student Affairs.  

 

Reporting Form: Discrimination, Protected Harassment, Hostile Environment, and Misconduct

 

B.    Request Interim Measures from the Vice President for Student Affairs  

A complainant may request interim measures from the Vice President for Student Affairs.  Interim measures are steps taken to ensure the safety of the complainant and/or VCSU community before the final outcomes of any investigation.  Depending on the circumstances, interim measures may be modified, supplemented or withdrawn before, during or after the final outcome of any investigation. 


C.    Anonymous Reporting 

Any individual who believes that they have experienced misconduct or becomes aware of alleged misconduct may make an anonymous report by using the online reporting form:


Reporting Form: https://myweb.vcsu.edu/anonymous-tip/

If a known complainant discloses an incident or incidents of discrimination, harassment, hostile environment, or other misconduct but asks to remain anonymous during the investigation and/or asks that VCSU refrain from investigating, the investigator, in consultation with the Vice President for Student Affairs, will consider how to proceed, taking into account the complainant’s wishes, VCSU’s desire to provide a safe and non-discriminatory environment, and the respondent’s right to have specific notice of the allegations and an opportunity to be heard if VCSU were to take action that affects them.  In such circumstances, the investigator may arrange for limited fact-finding to better understand the context of the complaint and explore viable options for investigation, adjudication, and remediation.


Because misconduct may threaten the community as a whole, in some instances VCSU may be obliged to address alleged misconduct through internal disciplinary procedures without the cooperation of the individual alleging the misconduct.  VCSU will respect the parties’ privacy to the extent possible consistent with its legal obligations and will inform the individual of its obligation to address a community safety issue.  


VCSU’s ability to investigate and resolve anonymous complaints will be limited if the information contained in the anonymous complaint cannot be verified by independent information.


D.     Report to Law Enforcement 

All individuals are urged to report immediately to law enforcement any conduct that may constitute a crime.  An individual who believes they have experienced misconduct may choose to report to VCSU and/or to law enforcement.  An individual may pursue either, both, or neither of these options.  Reports to VCSU and law enforcement may be made simultaneously.  To make a report to law enforcement, contact one of the following:

    911 (for emergencies)

    Valley city Policy Department

701-845-3110

    Barnes County Sheriff Department

701-845-8530

 

E.    Reports Regarding Prohibited Conduct Against Students 

The Procedures for Resolution of Reports Against Student under V520.02 Prohibited Discrimination, Protected Harassment, Hostile Environment, and Other Misconduct will apply where the respondent is a student who is alleged to have engaged in prohibited conduct.


The procedures apply equally to all students regardless of sex, gender, sexual orientation, gender identity, or gender expression.

Reports may be made to:

    Vice President for Student Affairs

    McFarland 209

    701-845-7300


F.    Reports Regarding Prohibited Conduct Against Staff, Administration, Coaches, or Assistant Coaches 

The procedure outlined in Procedures for Resolution Against Staff under V603.01.01 Prohibited Discrimination, Protected Status Harassment, Hostile Environment, Workplace Violence, and Other Misconduct will apply where the respondent is a staff member who is alleged to have committed prohibited discrimination, protected-status harassment, or retaliation. Reports may be made to:

Director for Human Resources 

McFarland 211 

701-845-7401


G.    Reports Regarding Prohibited Conduct Against Faculty 

The procedure outlined in Procedures for Resolution of Reports Against Faculty under V520.02 Prohibited Discrimination, Protected Status Harassment, Hostile Environment, Workplace Violence, and Other Misconduct will apply where the respondent is a faculty member who is alleged to have committed including, but not limited to: prohibited discrimination, protected-status harassment, or retaliation.  Reports may be made to:

Vice President for Academic Affairs

    McFarland 213

    701-845-7200

 

H.    Reports Regarding Discrimination in Intercollegiate Athletics Participation 

For questions, concerns, or reports of discrimination in participation in intercollegiate athletics under Title IX, contact the Athletic Director.  If the Athletic Director is the subject of the complaint, contact the Vice President for Student Affairs.  The procedure outlined in Procedures for Resolution of Reports Against Faculty under V520.02 Prohibited Discrimination, Protected Harassment, Hostile Environment, and Other Misconduct may apply. 

Athletic Director 

W.E. Osmon Fieldhouse 115

701-845-7160

 

I.    Reports Regarding Accessibility to Facilities on Campus: 

For questions, concerns, or reports regarding accessibility to facilities on campus, contact the Learning Center for Students.   

Disability Support Services 

Vangstad 018 

701-845-7207    

 

J.    Requests for Disability Accommodation  

For requests for disability accommodation, contact the Disability Support Services. 

Disability Support Services 

Vangstad 018 

701-845-7207    


K.    Reports Regarding Employee Relations and Workplace Concerns 

For reports regarding employee relations and workplace concerns, where feasible, first contact the supervisor.  If resolution is not reached after discussion with the supervisor, contact the Human Resource Director.  If the Human Resource Director is the subject of the complaint, contact the Vice President for Student Affairs. 

Director for Human Resources 

McFarland 211 

701-845-7401 

 

VII.    References/Related Resources 

 

A.    Federal 

U.S. Department of Labor: Title IX, Education Amendments 1972 

20 U.S. Code §1092 (f): Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act 

34 U.S. Code §12291: Definitions and grant provisions 

485(f) of the Higher Educational Act of 2008 

Titles VI and VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991 Violence Against Women Act 

Violence Against Women Reauthorization Act (VAWA) 

Civil Rights Act of 1991 

Family Education Rights and Privacy Act (FERPA) 

Age Discrimination in Employment Act of 1967 

Rehabilitation Act of 1973 §504 

Americans with Disabilities Act of 1990 

34 CFR Parts 100, 106, 104 Department of Education regulations  


B. State 

North Dakota Human Rights Act 1983 

NDCC §12.1-17-07.1 Stalking 

NDCC §12.1-17-08 Consent as a Defense 

NDCC § 12.1-20-02 Definitions related to Sex Offenses 

NDCC §14-03-03 Void Marriages 

NDCC § 14-07.1-01 Definitions related to Domestic Violence 

NDCC § 15-10-56 Disciplinary proceedings—Right to counsel for students and organizations-- Appeals 


C. Related University Policy 

NDUS 308.1 Officer and Employee Code of Conduct 

NDUS 514 Due Process Requirements for Student Conduct that May Result in Suspension or Expulsion 

NDUS 603.1 Harassment 

NDUS 603.2 Equal Employment Opportunity 

NDUS 603.3 Nepotism 

NDUS 605.3 Non-Renewal, Termination or Dismissal of Faculty 

NDUS 605.4 Hearing and Appeals 

NDUS 605.5 Mediation 

NDUS 608.2 NDUS Employees—Non-Renewals and Dismissals 

NDUS 611.4 Employee Responsibility and Activities: Conflict of Interest  

NDUS 612 Faculty Grievances 

NDUS Human Resource Policy Manual 25:  Job Discipline/Dismissal 

NDUS Human Resource Policy Manual 27:  Appeals Procedures 

V308.01 VCSU Employee Code of Conduct 

V520.01 Code of Student Conduct 

V530.04 University Hearings and Appeals Board 

V603.01.02 Hostile Work Environment 

V603.01.03 Workplace Violence 

V603.02 VCSU Equal Opportunity Employment Plan 

V603.03 Nepotism 

V605.03 Non-Renewal, Termination or Dismissal and Sanction of Faculty Members 

V605.05 Mediation 

V605.09 Faculty Responsibilities 

V612 Faculty Grievance Policies and Procedures 

 




Procedures or Resolution of Reports Against Staff under V520.02 and V603.01.01 

Prohibited Discrimination, Protected Status Harassment, Hostile Environment, 

Workplace Violence, and Other Misconduct 

 

I.    Purpose and Scope

 

This procedure applies to prohibited conduct as defined in V603.01.01 Prohibited Discrimination, Protected Status Harassment, Hostile Environment, Workplace Violence, and Other Misconduct.  Prohibited conduct includes but is not limited to: aiding prohibited conduct, attempting to commit prohibited conduct, prohibited discrimination, protected status harassment, hostile environment, workplace violence, physical abuse, sexual exploitation, and violating an interim measure.  This procedure also applies to misconduct not covered by the Title IX Sexual Harassment Policy and Procedure.

 

II.    Definitions

 

These definitions apply to terms as they are used in this procedure. 


A.    Advisor: Either an attorney or non-attorney advocate who advises a party.

 

B.    Aiding prohibited conduct:  A person aids prohibited conduct, if with the intent to promote or

facilitate such conduct, that person helps another person commit the prohibited conduct.


C.    Attempting to commit prohibited conduct: A person attempts to commit prohibited conduct, if with the intent to commit such conduct, that person engages in conduct directly tending toward completion of the prohibited conduct. 

 

D.    Complainant: A person who is the subject of a report or initiates a formal complaint of 

prohibited conduct will be designated as the “complainant.”  Both the complainant and respondent are referred to as “party” or “parties” throughout this procedure. 

 

E.    Confidential resources: Confidential resources do not have an obligation to report prohibited conduct to VCSU and will not do so without the explicit consent of the complaining party. VCSU’s confidential resources are:  

    VCSU Health and Counseling Services 

Director of Counseling Services; Licensed Clinical Counselor 

McFarland 424 

701-845-7424 

 

    VCSU Health Services 

Director of Health Services 

Mythaler Hall, first floor 

701-845-7305

 

    Abused Persons Outreach Center (APOC) 

Victim Services and Prevention Coordinator 

701-845-0078 

 

    F-M Rape and Abuse Crisis Center 

701-293-7273 (available 24 hours) 

www.raccfm.com

 

F.    Consent: Consent is a knowing, voluntary, and mutual decision among all participants to engage in sexual activity.  Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity.  Silence or lack of resistance does not demonstrate consent.  The definition of consent does not vary based upon a participant’s sex, sexual orientation, gender identity, or gender expression.  The standard in determining consent is whether a sober, reasonable person in the same circumstances as the respondent should have known that the complainant did not or could not consent to the sexual activity. 


The following are principles that apply to the above definition of consent:

1.    Consent to any sexual act of prior consensual sexual activity does not necessarily constitute consent to any other sexual act.

2.    Consent is required regardless of whether the person initiating the act is under the influence of drugs and/or alcohol.

3.    Consent may be withdrawn at any time.

4.    When consent is withdrawn or can no longer be give, sexual activity must stop.

5.    Consent cannot be given when it is the result of any coercion, intimidation, force, or threat of harm.

a.    Examples of coercion and intimidation include using physically or emotionally manipulative conduct against the complainant or expressly or implicitly threatening the complainant or a third party with negative actions that would compel or induce a reasonable person in the complainant’s situation to engage in the sexual activity at issue.  Examples of sexual coercion include statements such as “I will ruin your reputation,” or “I will tell everyone,” or “your career (or education) at VCSU will be over,” or “I will post an image of you naked.” 

b.    Examples of force or threat of harm include using physical force or a threat express or implied that would place a reasonable person in the complainant’s situation in fear of physical harm to, or kidnapping of, themselves or another person.

6.    A person is incapable of consent when they are:

a.    Less than eighteen years of age;

b.    Mentally disabled (a person is mentally disabled when their normal cognitive, emotional, or behavioral functioning renders them incapable of appraising their conduct); or

c.    Incapacitated.

i.    A person is incapacitated when they lack the ability to choose knowingly to participate in sexual activity.

ii.    A person is incapacitated when they are unconscious, asleep, involuntarily restrained, physically helpless, or otherwise unable to provide consent.

iii.    Someone who is under the influence of alcohol, drugs, or other intoxicants may be incapacitated and therefore unable to consent depending on the level of intoxication.

iv.    Consent cannot be gained by taking advantage of the incapacitation of another.  In evaluating responsibility in cases of alleged incapacitation, the fact finder asks two questions:

1.    Did the respondent know that the complainant was incapacitated: If not,

2.    Should a sober, reasonable person in the respondent’s situation have known that the complainant was incapacitated?  If the answer to either of these questions is “yes,” consent was absent.

3.    If the fact finder determines based on a preponderance of the evidence that both parties were incapacitated, the person who initiated the sexual activity alleged to be nonconsensual due to incapacity is at fault.

 

G.    Domestic partners: Domestic partners are unmarried couples living together in a long-term relationship.


H.    Force or threat of force: The use of force or violence, or the threat of force or violence, including, but not limited to: (1) when the respondent threatens to use force or violence on the complainant or on any other person, and the complainant under the circumstances reasonably believes that the respondent has the ability to execute that threat; or (2) when the respondent has overcome the complainant by use of superior strength or size, physical restraint or physical confinement.  


I.    Hostile environment: A hostile environment exists when conduct is sufficiently severe, persistent, or pervasive that it unreasonably interferes with, limits or deprives an individual’s participating in or benefiting from the University’s education or employment programs or activities.  Conduct must be deemed severe, persistent, or pervasive in a way that a reasonable person would find abusive, hostile, or offensive.   


In evaluating whether a hostile environment exists, the University will consider the totality of known circumstances.  Factors in this consideration may include, but are not limited to:

  1. The frequency, nature, and severity of the conduct;
  2.  Whether the conduct was physically threatening;
  3. The effect of the conduct on the complainant’s mental or emotional state;
  4. Whether the conduct was directed at more than one person;
  5. Whether the conduct arose in the context of other discriminatory conduct;
  6. Whether there is a power differential between the parties; and 
  7. Whether the conduct implicates concerns related to academic freedom or protected speech.


Because of protections afforded by academic freedom, speech and other expression occurring in the context of instruction or research will not be considered hostile unless this speech or expression also meets one or both of the following criteria:

  1. It is meant to be either abusive or humiliating toward a specific person or persons, and/or
  2. It persists despite the reasonable objection of the person or persons targeted by the speech.


J.    Interim measures:  Interim measures are individualized services offered as appropriate to either or both the complainant and respondent involved in an alleged incident of misconduct, prior to an investigation or while and investigation is pending.  Interim measures include counseling, modifications of work or class schedules, restrictions on contact between the parties, increased security and monitoring of certain areas of campus, and other similar accommodations.


As measures needed by each party may change over time, VCSU will communicate with each party throughout the investigation to ensure that any interim measures may be modified, supplemented or withdrawn before, during or after the final outcome of any investigation.


K.    Physical abuse: Physical abuse includes sexual abuse and means any of the following: (1) the

knowing or reckless use of physical force, confinement, or restraint; (2) knowing, repeated, and unnecessary sleep deprivation; and/or (3) knowing or reckless behavior that creates an immediate risk of physical harm.  


Physical abuse also includes the willful, purposeful denial of medication, medical care, shelter, food, or other assistance to a person who requires such things because of age, health or disability, thereby putting that person at risk of physical, mental, or emotional harm.  

 

L.    Prohibited conduct: Prohibited conduct includes, but is not limited to: aiding prohibited 

conduct, attempting to commit prohibited conduct, prohibited discrimination, protected status harassment, hostile environment, workplace violence, physical abuse, sexual exploitation, and violating an interim measure.  

 

M.    Prohibited discrimination: Sex, race, color, religion, physical or mental disability, pregnancy, status with regard to marriage or public assistance, sexual orientation, participation in lawful activity, or genetic information are Equal Education and Employment Opportunity (EEEO) protected classes.  Prohibited discrimination occurs when an employment or academic decision that results in negative and/or different treatment of an individual based upon his or her membership in an EEEO-protected class, such denying an opportunity that is open to others, singling a person or group for different treatment because of her, his or their EEEO-protected class status, failure to provide reasonable accommodation for a disability or religious belief or practice; reinforcing the use of stereotypes that unreasonably impacts a person’s environment or opportunities

 

N.    Protected status harassment (harassment): When an individual is targeted with verbal, written, visual, or physical conduct based on that person’s EEEO-protected class status that unreasonably interferes with the individual’s work or academic performance, or creates an intimidating, hostile, or offensive working, learning, living, or social environment.


Protected-status harassment occurs when an individual is targeted with verbal, written, visual, or physical conduct based on that person’s EEEO-protected status that unreasonably interferes with the individual’s work or academic performance, or creates an intimidating, hostile, or offensive working, learning, living, or social environment.  The conduct constitutes harassment under any of the following conditions:

  1. The conduct is direct.
  2. Submission to the conduct is made either explicitly or implicitly a term or condition of an individual’s employment or academic status.
  3. Submission to, or rejection of, such conduct by an individual is used as the basis for an employment or academic decision affecting that person.
  4. The conduct is sufficiently severe or pervasive to alter the conditions of the complainant’s employment or academic pursuits and creates a work or educational environment that a reasonable person would find abusive.


O.    Respondent: A person accused of conduct prohibited by this policy and does not imply pre-judgment. 

  

P.    Retaliation: Adverse action taken against an individual for making a good faith report of prohibited conduct or participating in any investigation or proceeding under the procedures.  Retaliation may include: intimidation, threats, coercion, or adverse employment or educational actions.  Retaliation may be found even when an underlying report made in good faith was not substantiated.  Retaliation may be committed by the respondent, the complainant, or any other individual or group of individuals.  Retaliation does not include good faith actions pursued in response to a report of prohibited conduct. 


Q.    Sanctions: Penalties which may be imposed by the University upon persons who, in proper hearing processes, have been found to have committed violations of the Code of Conduct. 

  

R.    Sexual contact: Any touching, however slight, with any object or body party, whether or not through the clothing or other covering, of the sexual or other intimate parts of the person, or the penile ejaculation or ejaculate or emission or urine or feces upon any part of the person, for the purpose of arousing or satisfying sexual or aggressive desires. 


S.    Sexual exploitation: Sexual exploitation is taking advantage of another person without consent.  Examples include, but are not limited to:

  1. Observing another person when that person is nude or engaged in sexual activity without the knowledge and consent of the person observed or allowing another to observe consensual sexual activity without the knowledge and consent of all parties involved;
  2. Making, sharing, posting, streaming, or otherwise distributing any image, photography, video, or audio recording depicting or otherwise recording another person when that person is nude or engaged in sexual activity without the knowledge and consent of the person depicted or recorded.
  3. Exposing one’s genitals to another person without the consent of that person; 
  4. Prostituting another person;
  5. Exposing another person to sexually transmitted infection without the knowledge and consent of the person exposed; and
  6. Causing another person to become incapacitated with the intent to making that person vulnerable to nonconsensual sexual assault or sexual exploitation. 


T.    Staff: An employee of Valley City State University who is not a faculty member.   

The following administrative positions are considered staff for purposes of this procedure: President, Vice-Presidents, Chief Information Officer, Director of Marketing, Athletic Director, and Director of the Foundation, coaches and assistant coaches. 

 

U.    Staff Personnel Board: The VCSU President will appoint three individuals to a Staff Personnel Board (Board) to hear an appeal. 


V.    Student: The term student will be interpreted to mean any person, whether or not incidentally on VCSU payroll, who is currently registered with the University as a degree or non-degree-seeking candidate. 


The term student will be interpreted also to mean persons not officially registered, and not faculty members or other VCSU employees, if they are: 

1.    Currently enrolled in or taking classes at VCSU; or 

2.    Currently using VCSU facilities or property, or the property of a University-related residential organization, in connection with academic activities; or 

3.    Currently suspended from being a student of VCSU. 


W.    Violating an interim measure: A person violates an interim measure if the measure is an order by a VCSU official and the person to whom the order applies knowingly violates any of the conditions of the order.  One common example of an order by a VCSU official is a “no-contact” order.


X.    Weapons: Firearms, knives, explosives, or other items which are capable of inflicting serious bodily harm.


Y.    Work place violence: Any behavior, action or statement made by an individual or group directed toward another individual, or group, that is threatening or intimidating and causes any reasonable individual who is the recipient of the behavior, action, or statement to fear for his safety and/or prop

erty.  Such violence may be in the form of, but not limited to:

1.    Causing or attempting to cause bodily injury or intimidation to another person; or

2.    Intentionally destroying or damaging any property, public or private; or 

3.    Approaching or threatening another with a weapon; or  

4.    Making any oral, written, or physical gesture as a threat to harm any person or property. 

 

III.    Application, Time Limits, and Computation of Deadlines 


A.    Application 

These procedures apply to prohibited conduct by faculty on any campus of VCSU on any other property or facility used by it for educational purposes, or on the property of a VCSU related residential organization.

 

All actions by staff that involve the use of VCSU computing and network resources from a remote location, including but not limited to accessing email accounts, will be deemed to have occurred on campus.  


These procedures will apply regardless of the location of the conduct where the President or other designated VCSU official determines that either: 

1.    The alleged prohibited conduct has occurred in the context of a VCSU program or activity; or

2.    The conduct poses a substantial threat to VCSU’s educational mission or to the health or safety of VCSU community members, including potentially contributing to or creating a hostile environment on VCSU campus.

 

B.    Time Limit to File Formal Complaints 

To promote timely and effective review, VCSU strongly encourages complainants and other persons with knowledge of possible violations of this policy to make reports as soon as possible, ideally within sixty days of the alleged prohibited conduct.  A delay in reporting may affect VCSU’s ability to gather relevant and reliable information, contact witnesses, investigate thoroughly, and respond meaningfully.  It may also affect VCSU’s ability to take disciplinary action against a student who has engaged in prohibited conduct

 

Students making a complaint against faculty or staff must be file the complaint within one (1) year of the alleged action. 


Faculty or staff making a complaint against faculty or staff must file the complaint within six (6) months of the alleged action, with the following exception: for students bringing a complaint against faculty in the context of a subordinate-supervisory relationship between the faculty member and the student (examples: teacher assistant or research assistant), a student may file a complaint one year after no longer being under the faculty’s supervision or three years from the date of the alleged behavior, even if the student is no longer affiliated with VCSU, whichever is earlier. 


If the respondent is no longer faculty or staff at the time of the formal complaint, and VCSU is, thus, unable to pursue resolution, VCSU will provide interim measures for the complainant.

 

C.    Determination of Deadlines 

In determining any time period specified in these procedures, the day of the event, act, or default that initiates the period will be excluded.  

 

IV.    The University’s Response to a Report of Prohibited Conduct 

 

A.    Initial Assessment  

Upon receipt of a report of alleged prohibited conduct by students, VCSU will make an initial assessment of the reported information and respond to any immediate health or safety concerns raised by the report.


B.    Where the Complainant’s Identity is Known 

Where the identity of the complainant is known, VCSU will ensure that the complainant receives a written explanation of all available resources and options and is offered the opportunity to meet promptly with VCSU to discuss those resources and options.  In the initial assessment and meeting or correspondent with the complainant, VCSU will:

    Assess the complainant’s safety and well-being and offer VCSU’s support and assistance through available resources;

    Informa the complainant that VCSU will maintain the complainant’s privacy to the greatest extent possible and disclose information only as necessary pursuant to these procedures;

    Inform the complainant of their right to seek medical treatment (including a sexual assault forensic examination) and explain the importance of obtaining evidence and preserving forensic and other evidence;

    Inform the complainant of their right to contact law enforcement, be assisted by VCSU in contacting law enforcement, or decline to contact law enforcement, and their right to seek a protective order;

    Inform the complainant about VCSU and community resources, including counseling, health, and mental health services, victim advocacy;

    Inform the complainant of the right to seek appropriate and available interim measures and how to request such measures;

    Inform the complainant of the right to file a formal complaint and seek resolution; provide the complainant with an overview of the these procedures; including the informal process option; and inform the complainant of the right to withdraw a formal complaint at any time and to decline or discontinue resolution at any time, but that declining to participate in an investigation and/or the hearing process may limit VCSU’s ability to investigate meaningfully and respond to a report of prohibited conduct;

    As possible and appropriate, ascertain the complainant’s preference for pursuing formal resolution, informal resolution, or neither and discuss with the complainant any concerns or barriers to participating in any investigation and resolution process; 

    Explain that VCSU prohibits retaliation, that retaliation constitutes prohibited conduct, and that VCSU will take appropriate action in response to any act of retaliation;

    Inform the complainant of their rights afforded under the Code of Conduct.

 

C.    Where the Complainant’s Identity is Unknown  

Where a report is filed but the identity of the complainant is unknown, VCSU will assess the nature and circumstances of the report, including whether it provides information that identifies the potential complainant, the potential respondent, any witnesses, and/or any other third party with knowledge of the reported incident, and take reasonable and appropriate steps to respond to the report of prohibited conduct consistent with applicable federal and state laws and these procedures.

 

D.    VCSU’s Actions Following an Initial Assessment  

Upon completion of the Initial Assessment, VCSU will determine the course of action as follows: 

1.    Where the Complainant Seeks Resolution  

When the complainant reports prohibited conduct and requests resolution, a signed, written formal complaint will be made to the Standing Committee which will promptly initiate an investigation.   


2.    Where the Complainant Requests that No Formal Complaint be Pursued

VCSU supports the complainant’s decision not to pursue a formal complaint and desire for anonymity.


Where the complainant does not wish to pursue a formal complaint, VCSU will honor the complainant’s wishes unless doing so would impact VCSU’s ability to provide a safe environment for all members of the VCSU community, including the complainant.


VCSU may consider the following factors, among others, when determining whether to honor the complainant’s wish that no resolution be pursued: the respondent’s history of misconduct; respondent’s risk of reoffending; respondent’s use of a weapon or force; and whether the complainant is a minor.


Regardless of whether the complainant chooses to file or participate in a formal complaint, VCSU will assist the complainant with reasonable and available accommodations, which may include academic, housing, transportation, employment, and other accommodations. 


Where no formal complaint has been filed and an interim measures impacts the respondent, the respondent will be provided with written notice of the report, which includes, as known, the date, time, and location of the allege prohibited conduct and the underlying factual allegations, including the identity of the complainant.  Therefore, certain interim measures may not be available if the complainant wishes to maintain anonymity.


Where the complainant declines to participate in an investigation, VCSU’s ability to meaningfully investigate and respond to a report may be limited.


3.    University Determination that the Complainant’s Request to Not Pursue a Formal Complaint Can Be Honored  

Where VCSU determines that it can honor the complainant’s request that no formal complaint be pursued, VCSU may nevertheless take other appropriate steps designed to address its effects on the complainant and the VCSU community.


Upon receipt of new or additional information, VCSU may reconsider the complainant’s request that no formal complaint be pursued and initiate the resolution process. 


4.    University Determination that the Complainant’s Request to Not File a Formal Complaint Cannot be Honored  

Where VCSU determines that it cannot honor the complainant’s request that no formal Complaint be pursued, VCSU will promptly initiate the resolution process by making a signed, written formal complaint on behalf of the University. 


VCSU will notify the complainant that it intends to proceed with a formal complaint and will take immediate action as necessary to protect and assist the complainant.  


VCSU will make reasonable efforts to protect the privacy of the complainant. However, typically, the complainant’s identity would have to be disclosed as part of VCSU’s investigation.  


The complainant is not required to participate in any proceedings that follow.  However, if the complainant declines to participate in an investigation and/or hearing process, VCSU’s ability to investigate meaningfully and respond to a report of prohibited conduct may be limited.


5.    Notice to Complainant and Respondent of University Actions  

VCSU will promptly inform the complainant of any actions undertaken by VCSU that will directly impact the complainant, including the filing of a formal complaint.


VCSU will promptly inform the complainant of any actions undertaken by VCSU that will directly impact the complainant, including the filing of a formal complaint.


VCSU will promptly inform the respondent of any actions undertaken by VCSU that will directly impact the respondent, including the filing of a formal complaint or the imposition of interim measures that would directly impact the respondent, and provide an opportunity for the respondent to respond to such action(s).  Interim measures become effective when notice of the interim measures is provided.


6.    VCSU’s Right to Suspend a Staff Member Who Poses an Immediate Threat to the Health or Safety of Persons on Campus 

If a staff member poses an immediate threat to the health or safety of persons on campus, VCSU reserves the right to suspend the staff member immediately and remove the staff member from campus without a hearing.  A formal hearing on the matter will take place as early as possible. 


E.    Preservation of Information and Tangible Material  

Preservation of information and tangible material relating to alleged prohibited conduct is essential for investigations as well as law enforcement investigations. Therefore, all persons involved in these procedures, whether as the complainant, the respondent, or a witness, are encouraged to preserve all information and tangible material relating to the alleged prohibited conduct. Examples of evidence include electronic communications (e.g., email and text messages), photographs, clothing, and medical information. 


In the case of medical information, prompt examinations can be crucial to the collection of forensic or other medical evidence. Individuals who believe they have experienced sexual assault or other forms of prohibited conduct are strongly encouraged to seek immediate medical attention.  


F.    Obligation to Provide Truthful Information  

At all stages of the process, all VCSU community members are expected to provide truthful information. Furnishing false information to VCSU with intent to deceive is prohibited and subject to disciplinary sanctions under VCSU’s Campus Code of Conduct. This provision does not apply to reports made or information provided in good faith, even if the facts alleged are not later substantiated.  

 

G.    Interim Measures  

1.    Overview of Interim Measures  

Following a report of prohibited conduct, the complainant and respondent will be provided information about a range of resources, support services, and measures to protect the safety and well-being of the parties and promote an accessible educational environment.  Some such measures are interim measures, which are utilized pending resolution of a case.


Interim measures might in the form of support or accommodations for or restrictions on one or both parties.


Interim measures will be designed to address a perceived risk but tailored to minimize to the extent possible the impact on the affected party or parties.  


Interim measures will be designed to accomplish a number of goals:

    To support and protect the safety of the complainant, the respondent, the University’s educational environment, and the VCSU community;

    To deter retaliation; and 

    To preserve the integrity of the investigation and resolution process. 


Interim measures may be issued base upon a party’s request or at VCSU’s own initiative.  In all instance, VCSU will, at its discretion, determine whether any given interim measure is reasonable and appropriate. 


Interim measures are available regardless of whether a formal complaint has been filed.  Likewise, interim measures are available regardless of whether the complainant chooses to report the prohibited conduct to law enforcement.


Interim measures become effective when notice of interim measures is provided.  Where a formal complainant has been filed, typically, interim measures will remain in place pending the resolution of the formal complaint.


Violations of Interim Measures that are orders by a University official constitute prohibited conduct. 

 

2.    Examples of Interim Measures  

    Potential interim measures include, but are not limited to:

    Assistance obtaining access to counseling, advocacy, or medical services;

    Assistance obtaining access to academic support and requesting academic accommodations;

    Changes in class schedules;

    Assistance requesting changes to on campus work schedules or job assignments;

    Changes to on campus housing;

    Providing an escort to complainant to promote safety on campus;

    “No-contact” orders (curtailing or prohibiting contact or communications between or among individuals).


3.    Issuance of Interim Measures  

VCSU is responsible for issuing interim measures. 


In issuing interim measures, VCSU will make reasonable efforts to communicate with any impacted party to address safety and emotional and physical well-being concerns.


Where no formal complaint has been filed and an interim measure impacts the respondent, the respondent will be provided with written notice of the report, which includes, as known, the date, time, and location of the alleged prohibited conduct and the underlying factual allegations, including the identity of the complainant.  Therefore, certain interim measures may not be available if the complainant wishes to maintain anonymity.


Interim measures are not, in and of themselves, permanent resolutions. Rather, they are actions taken by VCSU based on information known at the time that the interim measures are issued. Accordingly, VCSU has the discretion to issue, modify, or remove any interim measure at any time additional information is gathered or circumstances change.  

 

4.    Requested Review of VCSU’s Decisions Regarding Interim Measures  

Both parties may at any time request that VCSU issue, modify, or remove interim measures based upon a change in circumstance or new information that would affect the necessity of any interim measures.  

 

H.    Pending Criminal Investigations  

In cases where there is a criminal investigation, the VCSU process will run concurrently with such investigation.  VCSU may grant temporary delays reasonably requested by law enforcement for evidence gathering.  

 

V.    Informal Resolution

 

Informal resolution provides the parties with a forum to discuss the complaint and seek resolution.  Complainants may choose to pursue informal resolution of their complaint.  VCSU shall assign a School Official with the authority to remedy the alleged violation (e.g. Vice President for Student Affairs, etc.) to oversee the informal resolution process.   


Both parties must agree to informal resolution.  Informal resolution is entirely voluntary and either party may end informal resolution at any time. 

 

Informal resolution is a flexible process.  The School Official will consult with both parties and make suggestions for resolution.  Both parties must agree on the suggested course of resolution. 


Unlike the formal hearing process that requires the parties to be separated during the hearing, informal resolution does not require the parties to be separated.  However, either party may choose to be separated during the process.  


In cases where the respondent acknowledges involvement in the sexual misconduct, the School Official shall impose an appropriate sanction for the misconduct.  If the sanction is agreeable to the parties, the informal resolution is complete, and the sanction is imposed.   


In cases where the respondent does not acknowledge responsibility, the formal hearing process will apply. 


VI.    Formal Complaint Process  


A.    Consolidation of Reports, Formal Complaints, and Hearings

VCSU has discretion to consolidate reports and complaints that are factually related into one investigation. Likewise, the hearing officer may conduct one hearing to address the factually related issues.   


B.    Appointment of Hearing Officer

VCSU will assign a hearing officer (e.g. Vice President for Student Affairs, etc.) to oversee and conduct the formal complaint process. 


C.    Presumption of Non-Responsibility

The respondent will be presumed “not responsible” unless and until the hearing officer determines the respondent is responsible.


D.    Notice to Parties upon the Issuance of a Formal Complaint

After a formal complaint is filed, VCSU will notify the complainant and the respondent, in writing, of the commencement of an investigation and provide both parties with a copy of the formal complaint and the related policy and procedures.  Such notice will:

    Identify the complainant and the respondent;

    Specify the alleged prohibited conduct and its date, time, and location, to the extent known;

    Specify the factual allegations pertaining to the prohibited conduct;

    Specify any sanctions that may be imposed;

    Identify the hearing officer;

    Notice of the staff’s status until the final decision is made (i.e. whether the employee is to continue working or be placed on leave of absence with pay);

    Inform the parties about the parties’ respective rights and obligations under V603.01.01 Prohibited Discrimination, Protected Status Harassment, Hostile Environment, Workplace Violence, and Other Misconduct and these procedures;

    Inform the parties of their right to seek the assistance of an advisor and a support  person for emotional support;

    Inform the parties of the range of available resources, including mental health services;

    Explain the prohibition against retaliation; and 

    Instruct the parties to preserve any potentially relevant evidence, whatever its form.


The notice requirement may be waived if the respondent consents to a short notice period or for the initiation of interim measures or emergency actions. 

 

E.    Advisors and Support Persons 

Both the complainant and respondent have the right to be represented, at their own expense, by an advisor of their choice.


Both the complainant and respondent have the right to a support person of their choice to provide emotional support to the party.  


Advisors and support persons may be any person, including an attorney, who is not a party or witness or otherwise involved in the case.  Advisors are advocates who advise a party during the conduct proceedings.  


Advisors and support persons may attend their own advisees’ meetings, such as investigative interviews, and proceedings.  


Advisors and support persons may attend their own advisees’ meetings.  Such representatives may attend their own advisees’ investigative interview but may not respond to questions for their advisees and may not pose questions.  Adversarial hearings (including confrontation, cross-examination by the parties, and active advocacy by advisors) are not permitted during the investigative process.  By accepting the role of advisor or support person, all advisors and support persons agree to comply with all applicable rules, processes, and procedures, including rules regarding process privacy. 

 

VCSU will not interfere with the parties’ rights to have an advisor and support person of their choice and fully expects advisors and support persons to adhere voluntarily to policy and procedure. In extreme cases, where the hearing officer determines that an advisor’s or support person’s conduct undermines the integrity of policy or these procedures, the advisor or support person will be prohibited from continuing to serve as advisor or support person in that case. The affected party will be permitted to obtain a substitute advisor or support person.  


If the hearing officer determines that an advisor or support person has a conflict of interest, the advisor or support person will be prohibited from continuing in their role. The affected party will be permitted to obtain a substitute advisor or support person.  

 

F.    The Parties’ Participation in the Investigation and Hearing  

Both the complainant and the respondent may decline to participate in the investigation and/or hearing. However, VCSU may continue without a party’s participation, reaching findings and issuing sanctions. Additionally, a party’s decision not to participate in the investigation will limit the party’s ability to participate in the hearing and make an appeal.   

 

G.    Overview of Investigations of a Formal Complaint  

The investigation is designed to be timely, thorough, and impartial and to provide for a fair and reliable gathering of the facts.  All individuals involved in the investigation, including the complainant, the respondent, and any third-party witnesses will be treated with sensitivity and respect.


The investigation will generally include individual interviews of the complainant, the respondent and relevant witnesses.  Upon completion of the investigation, the hearing officer will prepare a final investigative record and an investigative report.  The investigative record is a compilation of statements by the parties and witnesses as well as other evidence gathered by the hearing officer.


The complainant and the respondent will have an equal opportunity to participate in the investigation, including an equal opportunity to be heard, submit evidence, and suggest witnesses who may have relevant information.


H.    Time Frame of and Time Limitations During the Investigation  

The investigation will be completed in a timely manner.


Throughout the investigation, both parties will receive reasonable notice of any meetings at which their attendance is requested, and the parties will be updated at regular intervals on the status of the investigation.


The hearing officer will establish reasonable time limits for the various stages of the investigation, including meetings and deadlines for any submissions or responses, and the parties must adhere to these time limits.  The parties may request extensions for good cause. 


If a party declines or fails to participate in a meeting or interview, provide evidence, or suggest witnesses, the party will have waived their right to do so upon the issuance of the final investigative record and report.  

 

I.    Standard of Proof

The hearing officer will determine whether the respondent is responsible by using a preponderance of the evidence standard.  This means, that to find a respondent responsible for any prohibited conduct, the hearing officer must decide, based upon the investigation that it is more likely than not that the respondent committed all the elements of the alleged prohibited conduct.  If the hearing officer does not find the respondent responsible for any prohibited conduct under V520.02 or V603.01.01 or supplemental jurisdiction, it will dismiss the case.  If the hearing officer finds that the respondent is responsible under V502.02 or V603.01.01, it will consider appropriate sanctions and remedies.  


J.    Investigation of a Formal Complaint

The purpose of the investigation is to gather evidence relating to the alleged prohibited conduct and to determine whether the respondent engaged in the prohibited conduct by a preponderance of the evidence.

1.    Overview of Investigative Interview

The hearing officer will separately interview the complainant and respondent. During this interview, the hearing officer will gather information from the complainant, the respondent, and other individuals who have relevant information.  As part of the investigation, the parties will have the opportunity to request in writing witnesses they would like the hearing officer to interview.


The hearing officer has the discretion to determine the relevance of any proffered witnesses, and accordingly, the hearing officer will determine which witnesses to interview.


All persons being interviewed, including the parties, are prohibited from recording interviews.


2.    Evidentiary Materials  

The hearing officer will gather relevant available evidentiary materials, including physical evidence, documents, communications between the parties, and electronic records and media as appropriate.  


The parties will have the opportunity to request in writing the evidentiary materials they would like the hearing officer to seek to obtain.  


The hearing officer has the discretion to determine the relevance of any requested evidentiary materials, and, accordingly the hearing officer will determine what evidentiary materials to seek to obtain. 


The hearing officer has the discretion to determine the relevancy of any requested evidentiary materials, and, accordingly, the hearing officer will determine what evidentiary materials to seek to obtain.


Discovery is informal.   


3.    Newly Discovered Evidence

If after the completion of the investigation, a party seeks to present a witness or introduce evidence not previously introduced, the hearing officer may grant such request upon a showing that the witness or evidence is relevant, material, newly discovered, and could not have been discovered during the investigation with due diligence. 


Where a hearing officer permits a party to introduce a newly discovered witness or evidence, to prevent surprise to the other party the hearing officer will give the parties time to respond to the new information.


K.    The Investigation 

The hearing officer will be guided, but not limited to, the following procedure: 

    Identify the respondent. 

    Identify the facts of the incident by separately interviewing the complainant and respondent. 

    How did the complainant respond to the alleged prohibited conduct?  

    What efforts, if any, were made to resolve the issue informally. (ex. Were requests made for the behavior to stop?  Were requests made to separate the individuals?) 

    Are there any witnesses or evidence the complainant wants to include in the investigation?  Witness and evidence requests must be in writing. 

    Did the complainant inform others or the supervisor of the situation?  If so, what was the response? 

    What was the frequency and type of alleged prohibited conduct?  If known, what were the dates and locations? 

    What was the professional or personal relationship, degree of control, and amount of interaction between the two parties? 

    Does the complainant know or suspects that the respondent has engaged in prohibited conduct with other individuals? 

    During the first interview with the respondent, the investigator will inform the respondent of all the charges being made, along with supporting evidence.  

    What is the respondent’s explanation of the alleged behavior? 

    Are there any witnesses or evidence the respondent wants to include in the investigation? Witness and evidence requests must be in writing. 

    Remind the respondent of VCSU’s policy against retaliation. 

    Thoroughly examine and evaluate the responses made by the respondent. 

    Provide the complainant additional information from the investigation that would be significant to the outcome of the investigation. 

    Interview, as appropriate, witnesses identified by complainant or respondent or those who observed, or were told about, the alleged prohibited conduct. 

    Remind all parties and witnesses of the need for privacy. 

    Review, as appropriate, personnel files maintained by departments; previously concluded mediation agreements; previous records of findings for the allegation of prohibited conduct; and public records.  Some instances might require giving the individual who is the subject of the file or record notice and the opportunity to object.  The Vice President of Academic Affairs or another appointed official will rule upon any objection. 


As each complaint is unique, the hearing officer has discretion to determine what additional information is necessary to make a thorough investigation. 

 

L.    Dismissal of Case by Hearing Officer 

The hearing officer may dismiss a complaint and close the case where the complaint:  

1.    Is not reported or filed in a timely manner.  

2.    Is not supported by sufficient facts, lacks merit based upon the available evidence, or does not fall within the jurisdiction of the investigator. Similarly, the investigator may dismiss a complaint and close the case under any of the following circumstances:  

3.    The complainant fails or refuses to appear or to be available for interviews or conferences as necessary.  

4.    The complainant cannot be located after reasonable efforts have been made and has not responded for at least ten (10) calendar days to a notice sent by the hearing officer to his or her last known residence, office, or email address.  

5.    The complainant fails to provide requested, necessary information.  

6.    The complainant fails or refuses to cooperate with the investigation to the extent that the investigator is unable to reasonably resolve the charge.  

 

The hearing officer determines that a complaint should be dismissed, the complainant will be informed of that decision, and given an opportunity to submit a written response within ten (10) working days. 


When a complaint is dismissed, where appropriate, VCSU will attempt to restore the reputation of the respondent. To the extent permissible by law and VCSU policy, VCSU may take such steps as deleting records and, unless the respondent prefers otherwise, notifying persons who participated in the proceedings of the dismissal and/or making a public announcement of the outcome. 


M.    Resolution by Agreement

At any point in the investigation or the formal complaint process, the hearing officer or any of the parties may suggest a settlement of the matter based on the investigation up to that point.  The hearing officer or his or her designee will serve as an impartial communicator so the parties will not have direct contact.  Any information provided or discussions with the hearing officer or designee in attempts to settle the matter may not be considered part of the investigation.  If the parties do not come to an agreement regarding settlement, the formal process continues.


N.    Disciplinary Action

Disciplinary action for prohibited conduct, may include:

1.    Measures similar to the interim measures specified;

2.    Appropriate educational steps (such as counseling, evaluation, restitution, community service, compensation for theft and damage to personal property, alcohol or drug education, reflection papers, or directed study);

3.    Improvement plan, performance action plan;

4.    Negative comments in a performance review;

5.    Reprimand delivered either verbally or in writing;

6.    Document placed in personnel file (A document may only be placed in a personnel file after the staff member has had an opportunity to read the material and has signed that he or she has read it.  If the staff member refuses to sign the copy, a VCSU representative shall indicate on the copy that the staff member we shown the material, was requested to sign the copy, and that the staff member refused to sign the copy to be filed);

7.    Demotion;

8.    Suspension;

9.    Salary reduction or loss of salary;

10.    Restriction or loss of privileges;

11.    Dismissal.


O.    Hearing Officer’s Report of Investigation Findings

After concluding the investigation, the hearing officer will provide both parties with a written investigation report, which will include the following:

1.    The scope of the investigation; 

2.    Summary of the findings;

3.    A detailed statement of the basis for the action;

4.    Recommendations for any corrective actions and/or sanctions including disciplinary action;

5.    Any non-punitive, preventative remedies for the complainant;

6.    Inform the parties of their right to appeal;

7.    If warranted, recommended action to restore the respondent’s reputation, such as notifying persons who participated in the investigation, and/or public announcement of the outcome.


VII.    Appeals


Both the complainant and respondent may appeal the outcome.  Appeals must be submitted in writing to VCSU within five (5) business days of receiving the decision.


Within the five (5) business days, the appealing party may request an extension of time by submitting a request to VCSU explaining the reason(s) for the request.  VCSU will have discretion to grant such a request upon a finding of good cause for the delay.


Failure to submit an appeal within the five (5) business days or any approved extension constitutes a waiver of the right to appeal.


The appellant shall clearly state the reasons for the appeal and shall provide any relevant information to support the appeal.


The Staff Personnel Board (board) may consider other information directly related to the appeal.


A.    Staff Personnel Board

The VCSU President will appoint three individuals to hear the appeal. 


B.    Overview of the Hearing Process

The board conducts the hearing and provides the findings of fact, conclusions and recommendations to the President.  The President makes and issues the final decision.


The hearing is intended to provide the parties with a fair opportunity to present relevant information to the board who will make informed decisions regarding responsibility, sanctions, and/or remedies.


The parties are entitled to provide opening statements, testimony, cross-examination, and closing statements.


Throughout the hearing the parties will be separated.


The hearing officer conducts all questioning.


C.    Notice of Hearing

The board will provide written notice of the hearing to both parties and the President, or their representatives at least twenty (20) calendar days prior to the hearing.


D.    Right to Advisor and Observers

Both parties are entitled to advisors of their choice and at their own expense.  Either party or the board may invite up to two observers each to attend the proceedings.


E.    Newly Discovered Evidence

If after the completion of the investigation, a party seeks to present a witness or introduce evidence not previously introduced, the board may grant such request upon a showing that the witness or evidence is relevant, material, newly discovered, and could not have been discovered during the investigation with due diligence.


Where the board permits a party to introduce a newly discovered witness or evidence, to prevent surprise to the other party, the board will reschedule or adjourn the hearing to investigate the newly discovered witness or evidence.  The board will also allow the parties time to respond to the new information.


F.    Standard of Proof

The board will determine whether the respondent is responsible by using a preponderance of the evidence standard.  This means that to find the respondent responsible for any prohibited conduct, the board must decide, based upon the record as a whole that it is more likely than not that the respondent committed all the elements of the alleged prohibited conduct.


If the board does not find the respondent responsible for any prohibited conduct under V520.02 or V603.01.01 or any supplemental jurisdiction, it will dismiss the case.  If the board finds that the respondent is responsible under V520.02 or V603.01.01, it will consider appropriate sanctions and remedies.


G.    Stipulation Based on Written Statements

The parties may agree to stipulate to a decision based on the written statements; thereby foregoing the formal hearing.  Based on the stipulations, the board will make its decision on that basis.


H.    Hearing Process and Format

The hearing process will be closed.


The parties and their support person will not have direct contact with each other.


Witnesses may be present for their own testimony.


The board may establish reasonable time limits, rules, and format, providing the parties with equal opportunities to participate.


The hearing officer will coordinate the hearing.


Formal rules of evidence will not apply.


As required by policy, the hearing will be recorded.  At its own expense either party may request a copy of the recording.


Personal recordings are prohibited.


Typically, the formal of the hearing will be as follows:

    Introduction of the board;

    The hearing officer will explain the hearing process, address any necessary procedural issues, and answer any questions;

    Testimony by the complainant;

    Cross-examination by the respondent;

    Testimony by the respondent;

    Cross-examination by the complainant;

    Testimony by any witnesses;

    Cross-examination of the witnesses;

    Closing statements by the complainant followed by the respondent;

    The board will take the matter under advisement to make its determination.

        

1.    Evidence

The board may admit any evidence which is of probative value in determining the issues or if the interests of justice will best be served by admitting the evidence.  Every reasonable effort shall be made to obtain the most reliable evidence available.  The board shall grant adjournments to enable either party to investigate evidence to which a valid claim of surprise is made.


2.    Testimony

Testimony is conducted through a question-and-answer format.


Both parties will have the right to confront and cross-examine all witnesses.


Testimony may be taken by deposition, including deposition by telephone, or witnesses my testify by telephone, facsimile, video or other electronic means upon agreement of the parties or, absent an agreement, upon request of a party and determination by the board or hearing officer that such uses does not substantially prejudice the rights of any party.  Affidavits may be received into evidence upon stipulation of the parties.


The hearing officer will ask persons being questioned to affirm that they will testify truthfully.


Both the complainant and the respondent may testify or decline to testify and may decide whether to testify when their turn to testify arises.


3.    Closing Statements

The parties may make closing statements.


This is the opportunity for the parties to suggest inferences and conclusions.


The parties may not add or address information not contained in the hearing record, as the board will not consider new information.  Nor may the parties address issues that pertain to sanctions and remedies.  The board does not consider these issues when determining responsibility.


The board will establish a time limit for brief oral closing statements, typically around five (5) minutes.


4.    Determination of Sanctions and Remedies

If the board finds the respondent responsible, it will make recommendations for appropriate sanctions and remedies.  


In determining sanctions and remedies, the board may consider:  

a.    The severity of the prohibited conduct;

b.    The circumstances of the prohibited conduct;  

c.    The impact of the prohibited conduct and sanctions and remedies on the complainant;  

d.    The impact of the prohibited conduct and sanctions and remedies on the community;  

e.    The impact of the prohibited conduct and sanctions and remedies on the respondent;  

f.    Prior misconduct by the respondent; and  

g.    Any other mitigating, aggravating, or compelling factors.  

 

The board may recommend one or more of the following sanctions and remedies:  

a.    Measures similar to the interim measures specified;  

b.    Appropriate educational steps (such as counseling, evaluation, restitution, community service, compensation for theft and damage to person or property, alcohol or drug education, reflection papers, or directed study);  

c.    Improvement plan, performance action plan; 

d.    Negative comments in a performance review; 

e.    Reprimand delivered either verbally or in writing; 

f.    Document placed in personnel file (A document may only be placed in a personnel file after the faculty member has had the opportunity to read the material and has signed that he or she has read it.  IF the faculty member refuses to sign the copy, a VCSU representative will indicate that the faculty member was shown the material, was requested to sign the copy, and the faculty member refused to sign the copy to be filed.  The faculty member may file an answer to the material.); 

g.    Demotion;

h.    Suspension;

i.    Salary reduction or loss of salary; 

j.    Restriction or loss of privileges; 

k.    Dismissal. 


5.    Findings of Fact, Conclusions, and Decision

The findings of fact, conclusions, and the decision shall be based solely on the evidence received by the board.


The board’s findings of fact, conclusions, and recommendations, with supporting reasons, shall be reported simultaneously in writing, to the VCSU President, the complainant, and the staff member or their representatives.  The President shall provide written notice of the decision, including findings of fact and reasons or conclusions based on the hearing record, to the board, the complainant, and the staff member within fifteen (15) calendar days of receiving the report.


The decision will include: the specific prohibited conduct for which the respondent was found responsible and not responsible; the findings of fact; and the rationale for SCFR’s determinations regarding both responsibility and sanctions.


The decision of the President is final.


Both the complainant and the respondent will be informed simultaneously of any sanctions and remedies, the date by which the requirements must be satisfied (if applicable), and the consequences of failure to satisfy the requirements.

 

VII.    References/Related Resources


A. Federal 

U.S. Department of Labor: Title IX, Education Amendments 1972 

20 U.S. Code §1092 (f): Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act 

34 U.S. Code §12291: Definitions and grant provisions 

485(f) of the Higher Educational Act of 2008 

Titles VI and VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991 Violence Against Women Act 

Violence Against Women Reauthorization Act (VAWA) 

Civil Rights Act of 1991 

Family Education Rights and Privacy Act (FERPA) 

Age Discrimination in Employment Act of 1967 

Rehabilitation Act of 1973 §504 

Americans with Disabilities Act of 1990 

34 CFR Parts 100, 106, 104 Department of Education regulations 


B. State 

North Dakota Human Rights Act 1983 

NDCC §12.1-17-07.1 Stalking 

NDCC §12.1-17-08 Consent as a Defense 

NDCC § 12.1-20-02 Definitions related to Sex Offenses 

NDCC §14-03-03 Void Marriages 

NDCC § 14-07.1-01 Definitions related to Domestic Violence 

NDCC § 15-10-56 Disciplinary proceedings—Right to counsel for students and organizations—Appeals 

NDCC § 54-06-21 Public employee personnel records—Administration—Access.  

NDUS Human Resource Policy Manual 25: Job Discipline/Dismissal 

NDUS Human Resource Policy Manual 27: Appeals Procedures 


C. Related University Policy 

NDUS 308.1 Officer and Employee Code of Conduct 

NDUS 514 Due Process Requirements for Student Conduct that May Result in Suspension or Expulsion 

NDUS 603.1 Harassment 

NDUS 603.2 Equal Employment Opportunity 

NDUS 603.3 Nepotism 

NDUS 605.1 Academic Freedom and Tenure; Academic Appointments 

NDUS 605.2 Standing Committee on Faculty Rights 

NDUS 605.3 Non-Renewal, Termination or Dismissal of Faculty 

NDUS 605.4 Hearing and Appeals 

NDUS 605.5 Mediation 

NDUS 608.2 NDUS Employees—Non-Renewals and Dismissals 

NDUS 611.4 Employee Responsibility and Activities: Conflict of Interest 

NDUS 612 Faculty Grievances 

NDUS Procedures 607.0.7 Personnel Files 

V308.01 VCSU Employee Code of Conduct 

V520.01 Code of Student Conduct 

V530.04 University Hearings and Appeals Board 

V603.01.02 Hostile Work Environment 

V603.01.03 Workplace Violence 

V603.02 VCSU Equal Opportunity Employment Plan 

V603.03 Nepotism 

V605.02 VCSU Standing Committee on Faculty Rights 

V605.03 Non-Renewal, Termination or Dismissal and Sanction of Faculty Members 

V605.05 Mediation 

V605.09 Faculty Responsibilities 

V612 Faculty Grievance Policies and Procedures 

 

 

 


Procedures or Resolution of Reports Against Faculty under V520.02 and V603.01.01 

Prohibited Discrimination, Protected Status Harassment, Hostile Environment, 

Workplace Violence, and Other Misconduct 

 

II.    Purpose and Scope

 

This procedure applies to prohibited conduct as defined in V603.01.01 Prohibited Discrimination, Protected Status Harassment, Hostile Environment, Workplace Violence, and Other Misconduct.  Prohibited conduct includes but is not limited to: aiding prohibited conduct, attempting to commit prohibited conduct, prohibited discrimination, protected status harassment, hostile environment, workplace violence, physical abuse, sexual exploitation, and violating an interim measure.  This procedure also applies to misconduct not covered by the Title IX Sexual Harassment Policy and Procedure.

 

III.    Definitions 

These definitions apply to terms as they are used in this procedure. 


A.    Advisor: Either an attorney or non-attorney advocate who advises a party.

 

B.    Aiding prohibited conduct:  A person aids prohibited conduct, if with the intent to promote or facilitate such conduct, that person helps another person commit the prohibited conduct.


C.    Attempting to commit prohibited conduct: A person attempts to commit prohibited conduct, if with the intent to commit such conduct, that person engages in conduct directly tending toward completion of the prohibited conduct. 


D.    Complainant: A person who is the subject of a report or initiates a formal complaint of prohibited conduct will be designated as the “complainant.”  Both the complainant and respondent are referred to as “party” or “parties” throughout this procedure. 

 

E.    Confidential resources: Confidential resources do not have an obligation to report prohibited conduct to VCSU and will not do so without the explicit consent of the complaining party. VCSU’s confidential resources are:  

    VCSU Health and Counseling Services 

Director of Counseling Services; Licensed Clinical Counselor 

McFarland 424 

701-845-7424 

 

    VCSU Health Services 

Director of Health Services 

Mythaler Hall, first floor 

701-845-7305

 

    Abused Persons Outreach Center (APOC) 

Victim Services and Prevention Coordinator 

701-845-0078 

 

    F-M Rape and Abuse Crisis Center 

701-293-7273 (available 24 hours) 

www.raccfm.com 

 

    The Village (For Employees) 

Employee Assistance Program  

1-800-627-8220 

www.VillageEAP.com 

 

F.    Consent: Consent is a knowing, voluntary, and mutual decision among all participants to engage in sexual activity.  Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity.  Silence or lack of resistance does not demonstrate consent.  The definition of consent does not vary based upon a participant’s sex, sexual orientation, gender identity, or gender expression.  The standard in determining consent is whether a sober, reasonable person in the same circumstances as the respondent should have known that the complainant did not or could not consent to the sexual activity. 


The following are principles that apply to the above definition of consent:

  1. Consent to any sexual act of prior consensual sexual activity does not necessarily constitute consent to any other sexual act.
  2. Consent is required regardless of whether the person initiating the act is under the influence of drugs and/or alcohol.
  3.  Consent may be withdrawn at any time.
  4. When consent is withdrawn or can no longer be give, sexual activity must stop.
  5. Consent cannot be given when it is the result of any coercion, intimidation, force, or threat of harm.

a.  Examples of coercion and intimidation include using physically or emotionally manipulative conduct against the complainant or expressly or implicitly threatening the complainant or a third party with negative actions that would compel or induce a reasonable person in the complainant’s situation to engage in the sexual activity at issue.  Examples of sexual coercion include statements such as “I will ruin your reputation,” or “I will tell everyone,” or “your career (or education) at VCSU will be over,” or “I will post an image of you naked.” 

b.  Examples of force or threat of harm include using physical force or a threat express or implied that would place a reasonable person in the complainant’s situation in fear of physical harm to, or kidnapping of, themselves or another person.

6.    A person is incapable of consent when they are:

a.    Less than eighteen years of age;

b.    Mentally disabled (a person is mentally disabled when their normal cognitive, emotional, or behavioral functioning renders them incapable of appraising their conduct); or

c.    Incapacitated.

i.    A person is incapacitated when they lack the ability to choose knowingly to participate in sexual activity.

ii.    A person is incapacitated when they are unconscious, asleep, involuntarily restrained, physically helpless, or otherwise unable to provide consent.

iii.    Someone who is under the influence of alcohol, drugs, or other intoxicants may be incapacitated and therefore unable to consent depending on the level of intoxication.

iv.    Consent cannot be gained by taking advantage of the incapacitation of another.  In evaluating responsibility in cases of alleged incapacitation, the fact finder asks two questions:

  1. Did the respondent know that the complainant was incapacitated: If not,
  2. Should a sober, reasonable person in the respondent’s situation have known that the complainant was incapacitated?  If the answer to either of these questions is “yes,” consent was absent.
  3. If the fact finder determines based on a preponderance of the evidence that both parties were incapacitated, the person who initiated the sexual activity alleged to be nonconsensual due to incapacity is at fault.

 

G.    Domestic partners: Domestic partners are unmarried couples living together in a long-term relationship.


H.    Force or threat of force: The use of force or violence, or the threat of force or violence, including, but not limited to: (1) when the respondent threatens to use force or violence on the complainant or on any other person, and the complainant under the circumstances reasonably believes that the respondent has the ability to execute that threat; or (2) when the respondent has overcome the complainant by use of superior strength or size, physical restraint or physical confinement.  

 

I.    Hostile environment: A hostile environment exists when conduct is sufficiently severe, persistent, or pervasive that it unreasonably interferes with, limits or deprives an individual’s participating in or benefiting from the University’s education or employment programs or activities.  Conduct must be deemed severe, persistent, or pervasive in a way that a reasonable person would find abusive, hostile, or offensive.   


In evaluating whether a hostile environment exists, the University will consider the totality of known circumstances.  Factors in this consideration may include, but are not limited to:

  1. The frequency, nature, and severity of the conduct;
  2. Whether the conduct was physically threatening;
  3. The effect of the conduct on the complainant’s mental or emotional state;
  4. Whether the conduct was directed at more than one person;
  5. Whether the conduct arose in the context of other discriminatory conduct;
  6. Whether there is a power differential between the parties; and 
  7. Whether the conduct implicates concerns related to academic freedom or protected speech.


Because of protections afforded by academic freedom, speech and other expression occurring in the context of instruction or research will not be considered hostile unless this speech or expression also meets one or both of the following criteria:

  1. It is meant to be either abusive or humiliating toward a specific person or persons, and/or
  2. It persists despite the reasonable objection of the person or persons targeted by the speech.


J.    Interim measures:  Interim measures are individualized services offered as appropriate to either or both the complainant and respondent involved in an alleged incident of misconduct, prior to an investigation or while and investigation is pending.  Interim measures include counseling, modifications of work or class schedules, restrictions on contact between the parties, increased security and monitoring of certain areas of campus, and other similar accommodations.


As measures needed by each party may change over time, VCSU will communicate with each party throughout the investigation to ensure that any interim measures may be modified, supplemented or withdrawn before, during or after the final outcome of any investigation.


K.    Physical abuse: Physical abuse includes sexual abuse and means any of the following: (1) the knowing or reckless use of physical force, confinement, or restraint; (2) knowing, repeated, and unnecessary sleep deprivation; and/or (3) knowing or reckless behavior that creates an immediate risk of physical harm.  


Physical abuse also includes the willful, purposeful denial of medication, medical care, shelter, food, or other assistance to a person who requires such things because of age, health or disability, thereby putting that person at risk of physical, mental, or emotional harm.  

 

L.    Prohibited conduct: Prohibited conduct includes, but is not limited to: aiding prohibited 

conduct, attempting to commit prohibited conduct, prohibited discrimination, harassment, hostile environment, workplace violence, physical abuse, sexual exploitation, and violating an interim measure.  

 

M.    Prohibited discrimination: Sex, race, color, religion, physical or mental disability, pregnancy, status with regard to marriage or public assistance, sexual orientation, participation in lawful activity, or genetic information are Equal Education and Employment Opportunity (EEEO) protected classes.  Prohibited discrimination occurs when an employment or academic decision that results in negative and/or different treatment of an individual based upon his or her membership in an EEEO-protected class, such denying an opportunity that is open to others, singling a person or group for different treatment because of her, his or their EEEO-protected class status, failure to provide reasonable accommodation for a disability or religious belief or practice; reinforcing the use of stereotypes that unreasonably impacts a person’s environment or opportunities. 

 

N.    Protected status harassment (harassment): When an individual is targeted with verbal, written, visual, or physical conduct based on that person’s EEEO-protected class status that unreasonably interferes with the individual’s work or academic performance, or creates an intimidating, hostile, or offensive working, learning, living, or social environment.


Protected-status harassment occurs when an individual is targeted with verbal, written, visual, or physical conduct based on that person’s EEEO-protected status that unreasonably interferes with the individual’s work or academic performance, or creates an intimidating, hostile, or offensive working, learning, living, or social environment.  The conduct constitutes harassment under any of the following conditions:

  1. The conduct is direct.
  2. Submission to the conduct is made either explicitly or implicitly a term or condition of an individual’s employment or academic status.
  3. Submission to, or rejection of, such conduct by an individual is used as the basis for an employment or academic decision affecting that person.
  4. The conduct is sufficiently severe or pervasive to alter the conditions of the complainant’s employment or academic pursuits and creates a work or educational environment that a reasonable person would find abusive. 

 

O.    Respondent: A person accused of conduct prohibited by this policy and does not imply pre-judgment. 

  

P.    Retaliation: Adverse action taken against an individual for making a good faith report of prohibited conduct or participating in any investigation or proceeding under the procedures.  Retaliation may include: intimidation, threats, coercion, or adverse employment or educational actions.  Retaliation may be found even when an underlying report made in good faith was not substantiated.  Retaliation may be committed by the respondent, the complainant, or any other individual or group of individuals.  Retaliation does not include good faith actions pursued in response to a report of prohibited conduct. 


Q.    Sanctions: Penalties which may be imposed by the University upon persons who, in proper hearing processes, have been found to have committed violations of the Code of Conduct. 


R.    Sexual contact: Any touching, however slight, with any object or body party, whether or not through the clothing or other covering, of the sexual or other intimate parts of the person, or the penile ejaculation or ejaculate or emission or urine or feces upon any part of the person, for the purpose of arousing or satisfying sexual or aggressive desires. 


S.    Sexual exploitation: Sexual exploitation is taking advantage of another person without consent.  Examples include, but are not limited to:

  1. Observing another person when that person is nude or engaged in sexual activity without the knowledge and consent of the person observed or allowing another to observe consensual sexual activity without the knowledge and consent of all parties involved;
  2. Making, sharing, posting, streaming, or otherwise distributing any image, photography, video, or audio recording depicting or otherwise recording another person when that person is nude or engaged in sexual activity without the knowledge and consent of the person depicted or recorded.
  3. Exposing one’s genitals to another person without the consent of that person; 
  4. Prostituting another person;
  5. Exposing another person to sexually transmitted infection without the knowledge and consent of the person exposed; and
  6. Causing another person to become incapacitated with the intent to making that person vulnerable to nonconsensual sexual assault or sexual exploitation.


T.    Standing Committee on Faculty Rights: Standing Committee on Faculty Rights (SCFR) consists of five tenured faculty members who are elected by the faculty for staggered five-year terms. 


U.    Staff: An employee of Valley City State University who is not a faculty member.  The following administrative positions are considered staff for purposes of this procedure: President, Vice-Presidents, Chief Information Officer, Director of Marketing, Athletic Director, and Director of the Foundation.  Likewise, for purposes of this procedure, coaches and assistant coaches are considered staff. 

  

V.    Student: The term student will be interpreted to mean any person, whether or not incidentally on the University payroll, who is currently registered with the University as a degree or non-degree-seeking candidate. 


The term student will be interpreted also to mean persons not officially registered, and not faculty members or other University employees, if they are: 

1.    Currently enrolled in or taking classes at the University; or 

2.    Currently using University facilities or property, or the property of a University-related residential organization, in connection with academic activities; or 

3.    Currently suspended from being a student of the University. 


W.    Violating an interim measure: A person violates an interim measure if the measure is an order by a University official and the person to whom the order applies knowingly violates any of the conditions of the order.  One common example of an order by a University official is a “no-contact” order


X.    Weapons: Firearms, knives, explosives, or other items which are capable of inflicting serious bodily harm.


Y.    Work place violence: Any behavior, action or statement made by an individual or group directed toward another individual, or group, that is threatening or intimidating and causes any reasonable individual who is the recipient of the behavior, action, or statement to fear for his safety and/or property.  Such violence may be in the form of, but not limited to:

  1. Causing or attempting to cause bodily injury or intimidation to another person; or
  2. Intentionally destroying or damaging any property, public or private; or 
  3. Approaching or threatening another with a weapon; or  
  4. Making any oral, written, or physical gesture as a threat to harm any person or property. 

 

IV.    Application, Time Limits, and Computation of Deadlines

 

A.    Application 

These procedures apply to prohibited conduct by faculty on any campus of VCSU on any other property or facility used by it for educational purposes, or on the property of a VCSU related residential organization.

 

All actions by faculty that involve the use of the University computing and network resources from a remote location, including but not limited to accessing email accounts, will be deemed to have occurred on campus.  


These procedures will apply regardless of the location of the conduct where the President or other designated VCSU official determines that either: 

  1. The alleged prohibited conduct has occurred in the context of a VCSU program or activity; or
  2. The conduct poses a substantial threat to VCSU’s educational mission or to the health or safety of VCSU community members, including potentially contributing to or creating a hostile environment on VCSU campus.

 

B.    Time Limit to File Formal Complaints 

To promote timely and effective review, VCSU strongly encourages complainants and other persons with knowledge of possible violations of this policy to make reports as soon as possible, ideally within sixty days of the alleged prohibited conduct.  A delay in reporting may affect VCSU’s ability to gather relevant and reliable information, contact witnesses, investigate thoroughly, and respond meaningfully.  It may also affect VCSU’s ability to take disciplinary action against a student who has engaged in prohibited conduct

 

Students making a complaint against faculty or staff must be file the complaint within one (1) year of the alleged action. 


Faculty or staff making a complaint against faculty or staff must file the complaint within six (6) months of the alleged action, with the following exception: for students bringing a complaint against faculty in the context of a subordinate-supervisory relationship between the faculty member and the student (examples: teacher assistant or research assistant), a student may file a complaint one year after no longer being under the faculty’s supervision or three years from the date of the alleged behavior, even if the student is no longer affiliated with the University, whichever is earlier. 


If the respondent is no longer faculty or staff at the time of the formal complaint, and VCSU is, thus, unable to pursue resolution, VCSU will provide interim measures for the complainant.

 

C.    Determination of Deadlines 

In determining any time period specified in these procedures, the day of the event, act, or default that initiates the period will be excluded.  

 

V.    The University’s Response to a Report of Prohibited Conduct 

 

A.    Initial Assessment  

Upon receipt of a report of alleged prohibited conduct by students, VCSU will make an initial assessment of the reported information and respond to any immediate health or safety concerns raised by the report.

 

B.    Where the Complainant’s Identity is Known 

Where the identity of the complainant is known, VCSU will ensure that the complainant receives a written explanation of all available resources and options and is offered the opportunity to meet promptly with VCSU to discuss those resources and options.  In the initial assessment and meeting or correspondent with the complainant, VCSU will:

    Assess the complainant’s safety and well-being and offer VCSU’s support and assistance through available resources;

    Informa the complainant that VCSU will maintain the complainant’s privacy to the greatest extent possible and disclose information only as necessary pursuant to these procedures;

    Inform the complainant of their right to seek medical treatment (including a sexual assault forensic examination) and explain the importance of obtaining evidence and preserving forensic and other evidence;

    Inform the complainant of their right to contact law enforcement, be assisted by VCSU in contacting law enforcement, or decline to contact law enforcement, and their right to seek a protective order;

    Inform the complainant about VCSU and community resources, including counseling, health, and mental health services, victim advocacy;

    Inform the complainant of the right to seek appropriate and available interim measures and how to request such measures;

    Inform the complainant of the right to file a formal complaint and seek resolution; provide the complainant with an overview of the these procedures; including the informal process option; and inform the complainant of the right to withdraw a formal complaint at any time and to decline or discontinue resolution at any time, but that declining to participate in an investigation and/or the hearing process may limit VCSU’s ability to investigate meaningfully and respond to a report of prohibited conduct;

    As possible and appropriate, ascertain the complainant’s preference for pursuing formal resolution, informal resolution, or neither and discuss with the complainant any concerns or barriers to participating in any investigation and resolution process; 

    Explain that VCSU prohibits retaliation, that retaliation constitutes prohibited conduct, and that VCSU will take appropriate action in response to any act of retaliation;

    Inform the complainant of their rights afforded under the Code of Conduct.

 

C.    Where the Complainant’s Identity is Unknown  

Where a report is filed but the identity of the complainant is unknown, VCSU will assess the nature and circumstances of the report, including whether it provides information that identifies the potential complainant, the potential respondent, any witnesses, and/or any other third party with knowledge of the reported incident, and take reasonable and appropriate steps to respond to the report of prohibited conduct consistent with applicable federal and state laws and these procedures.  

 

D.    VCSU’s Actions Following an Initial Assessment  

Upon completion of the Initial Assessment, VCSU will determine the course of action as follows: 

1.    Where the Complainant Seeks Resolution  

When the complainant reports prohibited conduct and requests resolution, a signed, written formal complaint will be made to the Standing Committee which will promptly initiate an investigation. 


2.    Where the Complainant Requests that No Formal Complaint be Pursued

VCSU supports the complainant’s decision not to pursue a formal complaint and desire for anonymity.


Where the complainant does not wish to pursue a formal complaint, VCSU will honor the complainant’s wishes unless doing so would impact VCSU’s ability to provide a safe environment for all members of the VCSU community, including the complainant.


VCSU may consider the following factors, among others, when determining whether to honor the complainant’s wish that no resolution be pursued: the respondent’s history of misconduct; respondent’s risk of reoffending; respondent’s use of a weapon or force; and whether the complainant is a minor.


Regardless of whether the complainant chooses to file or participate in a formal complaint, VCSU will assist the complainant with reasonable and available accommodations, which may include academic, housing, transportation, employment, and other accommodations. 


Where no formal complaint has been filed and an interim measures impacts the respondent, the respondent will be provided with written notice of the report, which includes, as known, the date, time, and location of the allege prohibited conduct and the underlying factual allegations, including the identity of the complainant.  Therefore, certain interim measures may not be available if the complainant wishes to maintain anonymity.


Where the complainant declines to participate in an investigation, VCSU’s ability to meaningfully investigate and respond to a report may be limited.


3.    University Determination that the Complainant’s Request to Not Pursue a Formal Complaint Can Be Honored 

Where VCSU determines that it can honor the complainant’s request that no formal complaint be pursued, VCSU may nevertheless take other appropriate steps designed to address its effects on the complainant and the VCSU community.


Upon receipt of new or additional information, VCSU may reconsider the complainant’s request that no formal complaint be pursued and initiate the resolution process. 


4.    University Determination that the Complainant’s Request to Not File a Formal Complaint Cannot be Honored 

Where VCSU determines that it cannot honor the complainant’s request that no formal complaint be pursued, VCSU will promptly initiate the resolution process by making a signed, written formal complaint on behalf of the University. 


VCSU will notify the complainant that it intends to proceed with a formal complaint and will take immediate action as necessary to protect and assist the complainant.  


VCSU will make reasonable efforts to protect the privacy of the complainant. However, typically, the complainant’s identity would have to be disclosed as part of VCSU’s investigation.  


The complainant is not required to participate in any proceedings that follow.  However, if the complainant declines to participate in an investigation and/or hearing process, VCSU’s ability to investigate meaningfully and respond to a report of prohibited conduct may be limited.


5.    Notice to Complainant and Respondent of University Actions  

VCSU will promptly inform the complainant of any actions undertaken by VCSU that will directly impact the complainant, including the filing of a formal complaint.


VCSU will promptly inform the complainant of any actions undertaken by VCSU that will directly impact the complainant, including the filing of a formal complaint.


VCSU will promptly inform the respondent of any actions undertaken by VCSU that will directly impact the respondent, including the filing of a formal complaint or the imposition of interim measures that would directly impact the respondent, and provide an opportunity for the respondent to respond to such action(s).  Interim measures become effective when notice of the interim measures is provided.


6.    VCSU’s Right to Suspend a Faculty Member Who Poses an Immediate Threat to the Health or Safety of Persons on Campus 

If a faculty member poses an immediate threat to the health or safety of persons on campus, VCSU reserves the right to suspend the faculty member immediately and remove the faculty member from campus without a hearing.  A formal hearing on the matter will take place as early as possible. 


F.    Preservation of Information and Tangible Material  

Preservation of information and tangible material relating to alleged prohibited conduct is essential for investigations as well as law enforcement investigations. Therefore, all persons involved in these procedures, whether as the complainant, the respondent, or a witness, are encouraged to preserve all information and tangible material relating to the alleged prohibited conduct. Examples of evidence include electronic communications (e.g., email and text messages), photographs, clothing, and medical information. 


In the case of medical information, prompt examinations can be crucial to the collection of forensic or other medical evidence. Individuals who believe they have experienced sexual assault or other forms of prohibited conduct are strongly encouraged to seek immediate medical attention.   

G.    Obligation to Provide Truthful Information  

At all stages of the process, all VCSU community members are expected to provide truthful information. Furnishing false information to VCSU with intent to deceive is prohibited and subject to disciplinary sanctions under VCSU’s Campus Code of Conduct. This provision does not apply to reports made or information provided in good faith, even if the facts alleged are not later substantiated.  

 

H.    Interim Measures  

1.    Overview of Interim Measures  

Following a report of prohibited conduct, the complainant and respondent will be provided information about a range of resources, support services, and measures to protect the safety and well-being of the parties and promote an accessible educational environment.  Some such measures are interim measures, which are utilized pending resolution of a case.


Interim measures might in the form of support or accommodations for or restrictions on one or both parties.


Interim measures will be designed to address a perceived risk but tailored to minimize to the extent possible the impact on the affected party or parties.  


Interim measures will be designed to accomplish a number of goals:

    To support and protect the safety of the complainant, the respondent, the University’s educational environment, and the VCSU community;

    To deter retaliation; and 

    To preserve the integrity of the investigation and resolution process.


Interim measures may be issued base upon a party’s request or at VCSU’s own initiative.  In all instance, VCSU will, at its discretion, determine whether any given interim measure is reasonable and appropriate. 


Interim measures are available regardless of whether a formal complaint has been filed.  Likewise, interim measures are available regardless of whether the complainant chooses to report the prohibited conduct to law enforcement.


Interim measures become effective when notice of interim measures is provided.  Where a formal complainant has been filed, typically, interim measures will remain in place pending the resolution of the formal complaint.


Violations of interim measures that are orders by a VCSU official constitute prohibited conduct. 


2.    Examples of Interim Measures

Potential interim measures include, but are not limited to:

    Assistance obtaining access to counseling, advocacy, or medical services;

    Assistance obtaining access to academic support and requesting academic accommodations;

    Changes in class schedules;

    Assistance requesting changes to on campus work schedules or job assignments;

    Changes to on campus housing;

    Providing an escort to complainant to promote safety on campus;

    “No-contact” orders (curtailing or prohibiting contact or communications between or among individuals).


3.    Issuance of Interim Measures  

VCSU is responsible for issuing interim measures. 


Interim measures will be designed in a fair manner and narrowly tailored to minimize to the extent possible any restrictions on those affected.


In issuing interim measures, VCSU will make reasonable efforts to communicate with any impacted party to address safety and emotional and physical well-being concerns.


Where no formal complaint has been filed and an interim measure impacts the respondent, the respondent will be provided with written notice of the report, which includes, as known, the date, time, and location of the alleged prohibited conduct and the underlying factual allegations, including the identity of the complainant.  Therefore, certain interim measures may not be available if the complainant wishes to maintain anonymity.


Interim measures are not, in and of themselves, permanent resolutions. Rather, they are actions taken by VCSU based on information known at the time that the interim measures are issued. Accordingly, VCSU has the discretion to issue, modify, or remove any interim measure at any time additional information is gathered or circumstances change.  


4.    Requested Review of VCSU’s Decisions Regarding Interim Measures  

Both parties may at any time request that VCSU issue, modify, or remove interim measures based upon a change in circumstance or new information that would affect the necessity of any interim measures.  

 

H.    Pending Criminal Investigations  

In cases where there is a criminal investigation, the VCSU process will run concurrently with such investigation.  VCSU may grant temporary delays reasonably requested by law enforcement for evidence gathering.  


VI.    Informal Resolution 


Complainants may choose to pursue informal resolution of their complaint.  VCSU shall assign a School Official with the authority to remedy the alleged violation (e.g. Vice President for Student Affairs, etc.) to oversee the informal resolution process.   


Both parties must agree to informal resolution.  Informal resolution is entirely voluntary and either party may end informal resolution at any time. 

 

Informal resolution is a flexible process.  The School Official will consult with both parties and make suggestions for resolution.  Both parties must agree on the suggested course of resolution. 

Unlike the formal hearing process that requires the parties to be separated during the hearing, informal resolution does not require the parties to be separated.  However, either party may choose to be separated during the process.  


Informal resolution provides the parties with a forum to discuss the complaint and seek resolution. 

In cases where the respondent acknowledges involvement in the sexual misconduct, the School Official shall impose an appropriate sanction for the misconduct.  If the sanction is agreeable to the parties, the informal resolution is complete, and the sanction is imposed.   

In cases where the respondent does not acknowledge responsibility, the formal hearing process will apply. 


VIII.    Formal Hearing Process

 

The formal hearing process begins when a formal complaint is filed with the Standing Committee on Faculty Rights (SCFR) chair or senior member of the SCFR and the University president.  SCFR shall appoint and delegate authority to a hearing officer to conduct pre-hearing meetings, supervise exchanged or collection of information, advise SCFR or preside over the hearing.

 

A.    Notice to Parties upon the Issuance of a Formal Complaint  

After a formal complaint is filed, the hearing officer on behalf of SCFR will notify the complainant, respondent, SCFR, and the University president in writing, of the commencement of an investigation and provide both parties with a copy of the formal complaint.  Such notice will: 

    Identify the complainant and the respondent;

    Specify the alleged prohibited conduct and its date, time, and location, to the extent known;

    Specify the factual allegations pertaining to the prohibited conduct;

    Specify any sanctions that may be imposed;

    Identify the hearing officer;

    Inform the parties about the parties’ respective rights and obligations under V520.02 Prohibited Discrimination, Protected Status Harassment, and Other Misconduct and these procedures;

    Inform the parties of their right to seek the assistance of an advisor and a support person for emotional support;

    Inform the parties of the range of available resources, including mental health services and academic support resources;

    Explain the prohibition against retaliation; and 

    Instruct the parties to preserve any potentially relevant evidence, whatever its form.


The notice requirement may be waived if the respondent consents to a short notice period or for the initiation of interim measures or emergency actions. 

 

B.    Advisors and Support Persons

Both the complainant and respondent have the right to be represented, at their own expense, by an advisor of their choice.


During the proceedings, the faculty member is entitled to have an administrative or academic advisor and counsel of their own choice and at their own expense.

 

Both the complainant and respondent have the right to a support person of their choice to provide emotional support to the party.  


Advisors and support persons may be any person, including an attorney, who is not a party or witness or otherwise involved in the case.  Advisors are advocates who advise a party during the conduct proceedings.  


Advisors and support persons may attend their own advisees’ meetings, such as investigative interviews, and proceedings.  

 

Advisors may fully participate in the hearing.  Fully participating includes the opportunity to make opening and closing statements, to examine and cross-examine witnesses, and to provide support, guidance, and advice.  Unlike advisors, support persons may not fully participate in the hearing. 


By accepting the role of advisor or support person, all advisors and support persons agree to comply with all applicable rules, processes, and procedures, including rules regarding process privacy.  


VCSU will not interfere with the parties’ rights to have an advisor and support person of their choice and fully expects advisors and support persons to adhere voluntarily to policy and procedure. In extreme cases, where the hearing officer determines that an advisor’s or support person’s conduct undermines the integrity of policy or these procedures, the advisor or support person will be prohibited from continuing to serve as advisor or support person in that case. The affected party will be permitted to obtain a substitute advisor or support person.  

 

C.    The Parties’ Participation in the Investigation and Hearing  

Both the complainant and the respondent may decline to participate in the investigation and/or hearing. However, VCSU may continue without a party’s participation, reaching findings and issuing sanctions. Additionally, a party’s decision not to participate in the investigation will limit the party’s ability to participate in the hearing.   

 

D.    Consolidation of Reports, Formal Complaints, and Hearings   

The hearing officer has discretion to consolidate reports and complaints that are factually related into one investigation.  Likewise, the hearing officer may conduct one hearing to address the factually related issues.   

 

E.    Investigations of a Formal Complaint  

1.    Overview of Investigations of a Formal Complaint  

The investigation is designed to be timely, thorough, and impartial and to provide for a fair and reliable gathering of the facts.  All individuals involved in the investigation, including the complainant, the respondent, and any third-party witnesses will be treated with sensitivity and respect.


The investigation will generally include individual interviews of the complainant, the respondent and relevant witnesses.  Upon completion of the investigation, the hearing officer will prepare a final investigative record and an investigative report.  The investigative record is a compilation of statements by the parties and witnesses as well as other evidence gathered by the hearing officer.


The complainant and the respondent will have an equal opportunity to participate in the investigation, including an equal opportunity to be heard, submit evidence, and suggest witnesses who may have relevant information.


2.    Time Frame of and Time Limitations During the Investigation 

The investigation will be completed in a timely manner.


Throughout the investigation, both parties will receive reasonable notice of any meetings at which their attendance is requested, and the parties will be updated at regular intervals on the status of the investigation.


The hearing officer will establish reasonable time limits for the various stages of the investigation, including meetings and deadlines for any submissions or responses, and the parties must adhere to these time limits.  The parties may request extensions for good cause. 


If a party declines or fails to participate in a meeting or interview, provide evidence, or suggest witnesses, the party will have waived their right to do so upon the issuance of the final investigative record and report.  

 

3.    Investigative Interview Process 

The hearing officer will gather information from the complainant, the respondent, and other individuals who have relevant information.  As part of the investigation, the parties will have the opportunity to request in writing witnesses they would like the hearing officer to interview.

 

The hearing officer has the discretion to determine the relevance of any proffered witnesses, and, accordingly, the hearing officer will determine which witnesses to interview.  


All persons being interviewed, including the parties, are prohibited from recording interviews.  

 

4.    Evidentiary Materials  

The hearing officer will gather relevant available evidentiary materials, including physical evidence, documents, communications between the parties, and electronic records and media as appropriate.  


The parties will have the opportunity to request in writing the evidentiary materials they would like the hearing officer to seek to obtain.  


The hearing officer has the discretion to determine the relevance of any requested evidentiary materials, and, accordingly the hearing officer will determine what evidentiary materials to seek to obtain.  


Discovery is informal.  Formal discovery processes such as depositions and interrogatories are not permitted unless both parties agree.


5.    The Investigation 

The hearing officer will be guided, but not limited to, the following procedure: 

    Identify the respondent. 

    Identify the facts of the incident by separately interviewing the complainant and

respondent. 

    How did the complainant respond to the alleged prohibited conduct?  

    What efforts, if any, were made to resolve the issue informally. (ex. Were requests made for the behavior to stop?  Were requests made to separate the individuals?) 

    Are there any witnesses or evidence the complainant wants to include in the investigation?  Witness and evidence requests must be in writing. 

    Did the complainant inform others or the supervisor of the situation?  If so, what was the response? 

    What was the frequency and type of alleged prohibited conduct?  If known, what were the dates and locations? 

    What was the professional or personal relationship, degree of control, and amount of interaction between the two parties? 

    Does the complainant know or suspects that the respondent has engaged in prohibited conduct with other individuals? 

    During the first interview with the respondent, the investigator will inform the respondent of all the charges being made, along with supporting evidence.  

    What is the respondent’s explanation of the alleged behavior? 

    Are there any witnesses or evidence the respondent wants to include in the investigation? Witness and evidence requests must be in writing. 

    Remind the respondent of VCSU’s policy against retaliation. 

    Thoroughly examine and evaluate the responses made by the respondent. 

    Provide the complainant additional information from the investigation that would be significant to the outcome of the investigation. 

    Interview, as appropriate, witnesses identified by complainant or respondent or those who observed, or were told about, the alleged prohibited conduct. 

    Remind all parties and witnesses of the need for privacy. 

    Review, as appropriate, personnel files maintained by departments; previously concluded mediation agreements; previous records of findings for the allegation of prohibited conduct; and public records.  Some instances might require giving the individual who is the subject of the file or record notice and the opportunity to object.  The hearing officer will rule upon any objection. 


As each complaint is unique, the hearing officer has discretion to determine what additional information is necessary to make a thorough investigation. 

 

6.    Dismissal of Case by Hearing Officer 

The hearing officer may dismiss a complaint and close the case where the complaint:  

  1. Is not reported or filed in a timely manner.  
  2. Is not supported by sufficient facts, lacks merit based upon the available evidence, or does not fall within the jurisdiction of the hearing officer. Similarly, the hearing officer may dismiss a complaint and close the case under any of the following circumstances:  
  3. The complainant fails or refuses to appear or to be available for interviews or conferences as necessary.  
  4. The complainant cannot be located after reasonable efforts have been made and has not responded for at least ten (10) calendar days to a notice sent by the hearing officer to his or her last known residence, office, or email address.  
  5. The complainant fails to provide requested, necessary information.  
  6. The complainant fails or refuses to cooperate with the investigation to the extent that the investigator is unable to reasonably resolve the charge.  


The hearing officer determines that a complaint should be dismissed, the complainant will be informed of that decision, and given an opportunity to submit a written response within ten (10) working days. 


When a complaint is dismissed, where appropriate, VCSU will attempt to restore the reputation of the respondent. To the extent permissible by law and VCSU policy, VCSU may take such steps as deleting records and, unless the respondent prefers otherwise, notifying persons who participated in the proceedings of the dismissal and/or making a public announcement of the outcome. 


F.    Formal Hearings

1.    Overview of Hearing Process 

SCFR conducts the hearing and provides findings of fact, conclusions and recommendations to the President.  The President makes and issues the final decision. 

 

The hearing is intended to provide the parties with a fair opportunity to present relevant information to the hearing officer who will make informed decisions regarding responsibility sanctions, and/or remedies.


The parties are entitled to provide opening statements, testimony, cross-examination, and closing statements.


Throughout the hearing, parties with their advisor(s) and support person, if applicable, will not have direct contact with each other.


The hearing officer conducts all questioning.  


2.    Presumption of Non-Responsibility 

The respondent will be presumed “not responsible” unless and until the President determines the respondent is responsible.


3.    Notice of Hearing  

At the completion of an investigation, a determination will be made if a hearing is required.  If a hearing is required, a written Notice of Hearing will be sent to the parties at least twenty (20) calendar days prior to the hearing.  The notice will include the charges at issue, a brief summary of the alleged prohibited conduct; the date, time, and place of the hearing; the name of the hearing officer.


Written Notice of the Hearing will be provided to both parties at least three (3) days prior to the hearing. 


4.    Newly Discovered Evidence  

If after the completion of the investigation, a party seeks to present a witness or introduce evidence not previously introduced, the hearing officer may grant such request upon a showing that the witness or evidence is relevant, material, newly discovered, and could not have been discovered during the investigation with due diligence.  


Where a hearing officer permits a party to introduce a newly discovered witness or evidence, to prevent surprise to the other party, the hearing officer will reschedule or adjourn the hearing to investigate the newly discovered witness or evidence. The hearing officer will also allow the parties time to respond to the new information.  


5.    Standard of Proof 

SCFR will determine whether the respondent is responsible by using a clear and convincing evidence standard.  This means that to find the respondent responsible for any prohibited conduct, SCFR must decide, based upon the record as a whole, that it is highly and substantially more likely to be true than untrue that the respondent committed the alleged prohibited conduct. 


If SCFR does not find the respondent responsible for any prohibited conduct under V520.02 or any supplemental jurisdiction, it will dismiss the case. If SCFR finds that the respondent is responsible under V520.02 or supplemental jurisdiction, it will consider appropriate sanctions and remedies.   


6.    Stipulation Based on Written Statements

The parties may agree to stipulate to a decision based on the written statements; thereby foregoing the formal hearing.  Based on the stipulation, SCFR will makes its decision on that basis. 


G.    Hearing Process and Format  

As termination is a potential sanction, the hearing will be closed to the public.  (NDUS 605.4(6).  The only persons present will be the parties, their advisor(s) and support person, witnesses (when testifying), the hearing officer, SCFR, and any staff necessary for the hearing. 


Witnesses may be present only for their own testimony.  


SCFR may establish reasonable time limits, rules, and format, providing the parties with equal opportunities to participate.  


The trained, appointed hearing officer will coordinate the hearing.  


Formal rules of evidence will not apply.  


As required by policy, the hearing will be recorded.  Personal recordings are prohibited.  

Typically, the format of the hearing will be as follows:  

    Introduction of SCFR 

    The hearing officer will explain the hearing process, address any necessary procedural issues, and answer questions.  

    Testimony by the complainant.

    Cross examination by the respondent.

    Testimony by the respondent.

    Cross examination by the complainant.

    Testimony by any witnesses.

    Closing statements by the complainant followed by the respondent

    SCFR will take the matter under advisement to make its determination. 

 

1.    Evidence 

SCFR may admit any evidence which is of probative value in determining the issues or if the interests of justice will best be served by admitting evidence.  Every reasonable effort shall be made to obtain the most reliable evidence available.  SCFR shall grant adjournments to enable either party to investigate evidence to which a valid claim of surprise is made. 


2.    Testimony

Testimony is conducted through a question-and-answer format.  


Both parties will have the right to confront and cross-examine all witnesses.


Witnesses may testify by telephone, video, or other electronic means upon agreement of the parties or, absent an agreement, request of a party and determination by SCFR or the hearing officer that such does not substantially prejudice the rights of any party.  Affidavits may be received into evidence upon the stipulation of the parties.   


The hearing officer will ask persons being questioned to affirm that they will testify truthfully.  


Both the complainant and the respondent may testify or decline to testify and may decide whether to testify when their turn to testify arises.  


3.    Closing Statements

The parties may make closing statements.  


This is the opportunity for the parties to suggest inferences and conclusions.  


The parties may not add or address information not contained in the hearing record, as SCFR will not consider new information. Nor may the parties address issues that pertain to sanctions and remedies. SCFR does not consider these issues when determining responsibility.  


SCFR will establish a time limit for brief oral closing statements, typically around five (5) minutes.  

 

4.    Determination on Sanctions and Remedies

If SCFR finds the respondent responsible, it will make recommendations for appropriate sanctions and remedies.  


In determining sanctions and remedies, SCFR may consider:  

a.    The severity of the prohibited conduct;

b.    The circumstances of the prohibited conduct;  

c.    The impact of the prohibited conduct and sanctions and remedies on the complainant;  

d.    The impact of the prohibited conduct and sanctions and remedies on the community;  

e.    The impact of the prohibited conduct and sanctions and remedies on the respondent;  

f.    Prior misconduct by the respondent; and  

g.    Any other mitigating, aggravating, or compelling factors.  

 

SCFR may recommend one or more of the following sanctions and remedies:  

a.    Measures similar to the interim measures;  

b.    Appropriate educational steps (such as counseling, evaluation, restitution, community service, compensation for theft and damage to person or property, alcohol or drug education, reflection papers, or directed study);  

c.    Improvement plan, performance action plan; 

d.    Negative comments in a performance review; 

e.    Reprimand delivered either verbally or in writing; 

f.    Document placed in personnel file (A document may only be placed in a personnel file after the faculty member has had the opportunity to read the material and has signed that he or she has read it.  IF the faculty member refuses to sign the copy, a VCSU representative will indicate that the faculty member was shown the material, was requested to sign the copy, and the faculty member refused to sign the copy to be filed.  The faculty member may file an answer to the material.);

g.    Demotion;

h.    Suspension; 

i.    Salary reduction or loss of salary; 

j.    Restriction or loss of privileges; 

k.    Dismissal. 


5.    Transcript and Record Available 

Upon request, a verbatim transcript of the hearing(s) and copy of the record is available at no cost to both parties.


6.    Findings of Fact, Conclusions, and the Decision

The findings of fact, conclusions, and the decision shall be based solely on the evidence received by SCFR.


SCFR’s findings of fact, conclusions and recommendations, with supporting reasons, shall be reported simultaneously in writing, to the VCSU President, the complainant, and the faculty member or their representatives.


The President shall provide written notice of the decision, including findings of fact and reasons or conclusions based on the hearing record, to SCFR, the complainant, and the faulty member within twenty (20) calendar days of receiving the report.


The decision will include: the specific prohibited conduct for which the respondent was found responsible and not responsible; the findings of fact; and the rationale for SCFR’s determinations regarding both responsibility and sanctions.


The decision will also inform the complainant, faculty member, and SCFR of the option of submitting within ten (10) calendar days of the decision a written response to the decision, to which the President may reply.  The decision of the President is final. 


Both the complainant and respondent will be informed simultaneously of any sanctions and remedies, the date by which the requirements must be satisfied (if applicable), and the consequences of failure to satisfy the requirements.

   

VIII.    References/Related Resources 


A. Federal 

U.S. Department of Labor: Title IX, Education Amendments 1972 

20 U.S. Code §1092 (f): Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act 

34 U.S. Code §12291: Definitions and grant provisions 

485(f) of the Higher Educational Act of 2008 

Titles VI and VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991 Violence Against Women Act 

Violence Against Women Reauthorization Act (VAWA) 

Civil Rights Act of 1991 

Family Education Rights and Privacy Act (FERPA) 

Age Discrimination in Employment Act of 1967 

Rehabilitation Act of 1973 §504 

Americans with Disabilities Act of 1990 

34 CFR Parts 100, 106, 104 Department of Education regulations 


B. State

North Dakota Human Rights Act 1983 

NDCC §12.1-17-07.1 Stalking 

NDCC §12.1-17-08 Consent as a Defense 

NDCC § 12.1-20-02 Definitions related to Sex Offenses 

NDCC §14-03-03 Void Marriages 

NDCC § 14-07.1-01 Definitions related to Domestic Violence 

NDCC § 15-10-56 Disciplinary proceedings—Right to counsel for students and organizations—Appeals 

NDCC § 54-06-21 Public employee personnel records—Administration—Access.  

NDUS Human Resource Policy Manual 25: Job Discipline/Dismissal 

NDUS Human Resource Policy Manual 27: Appeals Procedures 


C. Related University Policy 

NDUS 308.1 Officer and Employee Code of Conduct 

NDUS 514 Due Process Requirements for Student Conduct that May Result in Suspension or Expulsion 

NDUS 603.1 Harassment 

NDUS 603.2 Equal Employment Opportunity 

NDUS 603.3 Nepotism 

NDUS 605.1 Academic Freedom and Tenure; Academic Appointments 

NDUS 605.2 Standing Committee on Faculty Rights 

NDUS 605.3 Non-Renewal, Termination or Dismissal of Faculty 

NDUS 605.4 Hearing and Appeals 

NDUS 605.5 Mediation 

NDUS 608.2 NDUS Employees—Non-Renewals and Dismissals 

NDUS 611.4 Employee Responsibility and Activities: Conflict of Interest 

NDUS 612 Faculty Grievances 

NDUS Procedures 607.0.7 Personnel Files 

V308.01 VCSU Employee Code of Conduct 

V520.01 Code of Student Conduct 

V530.04 University Hearings and Appeals Board 

V603.01.02 Hostile Work Environment 

V603.01.03 Workplace Violence 

V603.02 VCSU Equal Opportunity Employment Plan 

V603.03 Nepotism 

V605.02 VCSU Standing Committee on Faculty Rights 

V605.03 Non-Renewal, Termination or Dismissal and Sanction of Faculty Members 

V605.05 Mediation 

V605.09 Faculty Responsibilities 

V612 Faculty Grievance Policies and Procedures 





Sponsored by: Vice President for Student Affairs 

Reviewed: Winter 1996

Revised: July 2001

Revised Number: February 2010

Revised: January 2012

Revised and consolidating of three policies (V520.02 Sex Offense Policy, V520.03 University Policy on Sexual Harassment, V520.04 Consensual Relationships) into one policy numbered and renamed to V520.02 Prohibited Discrimination, Harassment, and Sexual and Related Misconduct:  October 2018

Revised and Title Change:  August 2020