VCSU One Stop

I.    Purpose and Scope

Title IX prohibits discrimination on the basis of sex in education programs and activities that receive Federal financial assistance. 20 U.S.C. 1681.  This policy aligns with the Department of Education’s final rule: Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance.  

Sexual harassment affects the equal access to education that Title IX is designed to protect. This policy addresses the practical challenges facing students with respect to sexual harassment allegations in education programs and activities.  

A primary aim of this policy is to respect the autonomy of complainants and to recognize the importance of a complainant retaining as much control as possible over their own circumstances following a sexual harassment experience, while also ensuring that complainants have clear information about how to access the supportive measures VCSU has available and how to file a formal complaint initiating a grievance process against a respondent if the complainant chooses to do so.

Additionally, this policy and its accompanying procedure is designed to provide for a fair grievance process that gives clear procedural rights to both parties.

This policy is narrowly tailored to address Title IX sexual harassment reports.  Not all sexual misconduct will fall under these narrow categories and may be addressed in other VCSU policies.

Likewise, reports regarding sex discrimination other than sexual harassment are not addressed under this policy.

II.    Definitions

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

A.    Actual knowledge: Notice of sexual harassment or allegations of sexual harassment to VCSU’s Title IX Coordinator or any official of the school who has authority to institute corrective measures on behalf of the school. Imputation of knowledge based solely on vicarious liability or constructive notice is insufficient to constitute actual knowledge.

B.    Complainant: an individual who is alleged to be the victim of conduct that could constitute sexual harassment. A person may be a complainant even where no formal complaint has been filed and no grievance is pending.

There is a difference between reporting sexual harassment and filing a complaint.  Anyone can file a report of sexual harassment.  There is no requirement that the complainant must be a student, employee, or other designated relationship with VCSU in order to be treated as a “complainant” entitled to a prompt, non-deliberately indifferent response.

However, not everyone can file a formal complaint. At the time of filing a formal complaint, a complainant must be participating in or attempting to participate in the education program or activity of VCSU with which the formal complaint is filed.

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

•    VCSU Health and Counseling Services 

Counseling Services; Licensed Professional Clinical Counselor 

McFarland 424 

701-845-7427 

  

•    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 

D.    Consent: 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.  

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 respondent should have known that the victim did not or could not consent to the sexual activity in question.  

In North Dakota, the legal age of consent is 18, except minors 15 years of age and older are able to consent to sexual contact with a partner who is within three years of age.  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. 

Consent is such a critical factor that Section III is entirely dedicated to discussing it.  

E.    Dating violence: violence committed by the respondent, who is:

1.    Who is or has been in a social relationship of a romantic or intimate nature with the complainant; and

2.    Where the existence of such a relationship shall be determined based on a consideration of the following factors:

i.    The length of the relationship

ii.    The type of the relationship

iii.    The frequency of interaction between the persons involved in the relationship

F.    Deliberate indifference: a response to sexual harassment that is clearly unreasonable in light of the information known to VCSU at the time. 

G.    Domestic violence: violence committed by the respondent, who is: 

1.    A current or former spouse or intimate partner of the complainant; 

2.    A person with whom the complainant shares a child in common;

3.    A person who is cohabitating with or has cohabitated with the complainant as a spouse or intimate partner;

4.    A person similarly situated to a spouse of the complainant

5.    Any person against whose acts the complainant is protected by N.D.C.C. ch. 14-07.1. 

H.    Education program or activity: includes locations, events, or circumstances over which VCSU exercises substantial control over both the respondent and the context in which the sexual harassment occurs, and also includes any building owned or controlled by a student organization that is officially recognized by VCSU. 

Program or activity encompasses all of the VCSU’s operations, including computer and internet networks, digital platforms, and computer hardware or software owned or operated by, or used in the operations of VCSU.

An education program or activity includes circumstances over which VCSU exercised substantial control over both the respondent and the context in which the harassment occurred, such that the factual circumstances of online harassment must be analyzed to determine if it occurred in an education program or activity. For example, a student using a personal device to perpetrate online sexual harassment during class time may constitute a circumstance over which VCSU exercises substantial control.

This policy applies to sexual harassment perpetrated through use of cell phones or the internet.

Since VCSU may dictate the terms under which they recognize student organization that own or control buildings, VCSU does not officially recognize any student organization’s housing arrangements.  For example, if individuals belonging to the same athletic team choose to live in a house together, that does not constitute official recognition.  

 

I.    Effectively denies equal education: This element requires that a person’s “equal” access to education has been denied, not that a person’s total or entire educational access has been denied.  This element identifies severe, pervasive, objectively offensive unwelcome conduct that deprives the complainant of equal access, measured against the access of a person who has not been subjected to the sexual harassment.  This element does not require that a complainant has already suffered loss of education before being able to report sexual harassment.  A complainant does not need to drop out of school, fail a class, have a panic attack, or otherwise reach a “breaking point” in order to report and receive a supportive response to sexual harassment.

J.    Exculpatory evidence: evidence that substantiates non-responsibility.

K.    Final determination: following a hearing, the decision-makers’ written determination containing the required information.  The final determination may be modified by an appeal.

L.    Fondling: The touching of the private body parts of another person for the purpose of sexual gratification, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental incapacity.

M.    Formal complaint:  a document filed by a complainant (which either contains the complainant’s signature or indicates that the complainant is the one filing the complaint) or signed by the Title IX Coordinator alleging sexual harassment against a respondent and requesting that VCSU investigate the allegation of sexual harassment.

N.    Incest: Sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.

O.    Inculpatory evidence: evidence that substantiates responsibility.

P.    May listen: “May listen” individuals may listen to a student’s or employee’s disclosure of sexual harassment without being required to report it to the Title IX Coordinator.  May listen individuals are: administrators, directors, and faculty.

Q.    Must report but only with consent: “Must report but only with consent” employees are employees who must report sexual harassment to the Title IX Coordinator but only with the complainant’s consent.  Must report but only with consent employees are: resident assistants, coaches, assistant coaches, and volunteer coaches.

R.    Notice: Notice results whenever a Title IX Coordinator or any official with authority: witnesses sexual harassment; hears about sexual harassment or sexual harassment allegations from a complainant or a third party (e.g., the complainant’s parent, friend, or peer); receives a written or verbal complaint about sexual harassment or sexual harassment allegations; or by any other means.

S.    Officials with authority: An official of VCSU who has authority to institute corrective measures.  Officials with authority are: Title IX Coordinator, Vice President for Academic Affairs, Vice President for Student Affairs, Director of Human Resources, and the Director for Athletics.

T.    Preponderance of the evidence: Under the preponderance of evidence standard, the burden of proof is met when the party with the burden convinces the fact finder that there is a greater than 50% chance that the claim is true. The preponderance of the evidence standard will be used in the hearing process.

U.    Quid pro quo sexual harassment: A school employee conditioning the provision of an aid, benefit, or service of VCSU on an individual’s participation in unwelcome sexual conduct. 

“An aid, benefit or service” requirement may be communicated expressly or impliedly.   The interpretation of the quid pro quo harassment is broadly defined to encompass situations where the quid pro quo nature of the incident is implied from the circumstances.  

Quid pro quo harassment does not need to be severe and pervasive.  Abuse of authority in the form of even a single instance of quid pro quo harassment (where the conduct is not “pervasive”) is inherently offensive and serious enough to jeopardize equal educational access. 

When a complainant acquiesces to unwelcome conduct in a quid pro quo context to avoid potential negative consequences, such “consent” does not necessarily mean that the sexual conduct was not “unwelcome” or that prohibited quid pro quo harassment did not occur.  Thus, even if a complainant in a quid pro quo situation pretended to welcome the conduct (for instance, due to fear of negative consequences for objecting to the employee’s suggestions or advances in the moment), the complainant’s subjective statement that the complainant found the conduct to be unwelcome suffices to meet the “unwelcome” element.

V.    Rape: Penetration, no matter how light, of the vagina or anus of the complainant with any body part or object by the respondent, or oral penetration of the complainant by a sex organ of the respondent, without the consent of the complainant.

W.    Respondent: an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment.  A person may be a respondent even where no formal complaint has been filed and no grievance process is pending.  A group or organization cannot be a respondent.

X.    Remedies: remedies are designed to restore or preserve equal access to VCSU’s education program or activity.  Such remedies may include the same individualized services as described as supportive measures.  Remedies need not be non-disciplinary and need not avoid burdening the respondent.

Y.    Sexual assault: Either rape, fondling, incest, statutory rape, or any of the sexual offenses listed in N.D.C.C. ch 12.1-20 or by the FBI’s Uniform Crime Reporting system. 

The following are considered sexual offenses under North Dakota law:

1.    Sexual imposition (engaging in a sexual contact or sexual act by threat or coercion) (N.D.C.C. 12.1-20-04);

2.    Corruption or solicitation of minors (N.D.C.C. 12.1-20-05);

3.    Luring minors by computer or other electronic means (N.D.C.C. 12.1-20-05.1);

4.    Sexual exploitation by therapist (N.D.C.C. 12.1-20-05.1); 

5.    Sexual assault (engaging in unwanted sexual contact) (N.D.C.C. 12.1-20-07);

6.    Fornication (engaging in a sexual act in a public place) (N.D.C.C. 12.1-20-08);

7.    Indecent exposure (N.D.C.C. 12.1-20-12.1);

8.    Surreptitious intrusion (invasion of privacy) (N.D.C.C. 12.1-20-12.2); and

9.    Sexual extortion (N.D.C.C. 12.1-20-12.3).

Z.    Sexual harassment:  Conduct on the basis of sex that satisfies one or more of the following:

1.    A school employee conditioning the provision of an aid, benefit, or service of VCSU on an individual’s participation in unwelcome sexual conduct (quid pro quo); or

2.    Unwelcome conduct that a reasonable person would determine is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to VCSU’s education program or activity; or

3.    Sexual assault, dating violence, domestic violence, or stalking.

The means for perpetrating sexual harassment may include use of electronic, digital, and similar methods. The sexual harassment definition does not make sexual harassment dependent on the method by which the harassment is carried out; use of e-mail, the internet, or other technologies may constitute sexual harassment as much as use of in-person, postal mail, handwritten, or other communications.

“On the basis of sex” does not require probing the subjective motive of the respondent (e.g., whether a respondent subjectively targeted a complainant because of the complainant’s or the respondent’s actual or perceived sex, as opposed to because of anger or romantic feelings). Where conduct is sexual in nature, or where conduct references one sex or another, that suffices to constitute conduct “on the basis of sex.”

Sexual harassment includes but is not limited to unwelcome conduct of a sexual nature, and may consist of unwelcome conduct based on sex or sex stereotyping.  VCSU will not tolerate sexual harassment against any student, including LGBTQ students.

AA.    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 policy: President, Vice-Presidents, Chief Information Officer, Director of Marketing, Athletic Director, and Director of the Foundation.  Likewise, for purposes of this policy, coaches and assistant coaches are considered staff.

BB.    Stalking: engaging in a course of conduct directed at a specific person that would cause a reasonable person to:

1.    Fear for his or her safety or the safety of others; or

2.    Suffer substantial emotional distress.

CC.     Statutory rape: Sexual intercourse with a person who is under the statutory age of consent in North Dakota.

DD.    Supportive measures: Non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, without fee or charge to the complainant or respondent.  

Supportive measures are available before or after the filing of a formal complaint or where no formal complaint has been filed. 

 

Supportive measures are designed to restore or preserve equal access to VCSU’s education program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties or VCSU’s educational environment, or deter sexual harassment.

Supportive measures are available to complainants and respondents.

Supportive measures may include: counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, campus escort services, mutual restrictions on contact between the parties, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of the campus, and other similar measures. 

EE.    Title IX Coordinator:

Kaleen Peterson

Director for Student Academic Services

McFarland Hall 322B

101 College Street SW

701-845-7302

kaleen.peterson@vcsu.edu

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.     Because people are not telepathic, 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.  

 

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.  

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.  

III.    Policy Statement

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any education program or activity.  Sexual harassment is a form of sex discrimination pursuant to Title IX.

VCSU will respond promptly and supportively to persons alleged to be victimized by sexual harassment, resolve allegations of sexual harassment promptly and accurately under a predictable, fair grievance process that provides dues process protections to alleged victims and alleged perpetrators of sexual harassment, and effectively implement remedies for victims.

IV.    Notice of Nondiscrimination and Dissemination of Policy

VCSU will provide notice that the requirement not to discriminate in the education program or activity extends to admission and employment, and that inquiries about the application of Title IX may be referred to VCSU’s Title IX Coordinator, the Department of Education’s Assistance Secretary for Civil Rights, or both.

VCSU will notify applicants for admission and employment, students, employees, and all unions or professional organizations holding collective bargaining or professional agreements with VCSU that VCSU does not discriminate on the basis of sex in the education program or activity that it operates, and that it is required by Title IX not to discriminate in such a manner. 

VCSU will prominently display this policy on the VCSU’s website and in the student and employee handbooks.

V.    Publication of Grievance Procedures

VCSU adopted and publishes grievance procedures that provide for the prompt and equitable resolution of student and employee complaints alleging sexual harassment or sex discrimination.  These grievance procedures shall only apply to sex discrimination and sexual harassment occurring within the United States.

VCSU will notify applicants for admission and employment, students, and employees of the VCSU’s grievance procedures and grievance process, including how to report or file a complaint of sex discrimination, how to report or file a formal complaint of sexual harassment, and how VCSU will respond.

VI.    Calculation of Days

Business days will be used in calculating days.

VII.    Application

This policy applies to individuals in the United States who are involved in VCSU education programs or activities.  Involvement extends to individuals applying for admission and employment. 

This policy may apply to reports and formal complaints by employees against students and other employees, and also may apply to third-party complaints against students or employees. This policy may apply to students who are full-time employees and volunteers.

Education program or activity includes locations, events, or circumstances over which VCSU exercises substantial control over both the respondent and the context in which the sexual harassment occurred.  

Location also includes any building owned or controlled by a student organization that is officially recognized by VCSU (such as a fraternity or sorority house). 

This policy applies to all VCSU’s education programs or activities, whether such programs or activities occur on-campus or off-campus.

VIII.    Parental Involvement

If a parent or guardian has a legal right to act on a person’s behalf, the parent or guardian may always be the one who files a formal complaint for a complainant. This parental or guardianship authority to act on behalf of a party applies throughout all aspects of a Title IX matter, from reporting sexual harassment to considering appropriate and beneficial supportive measures, and from choosing to file a formal complaint to participating in the grievance process.

IX.    Designation of Title IX Coordinator and Dissemination of Title IX Coordinator’s Contact Information

VCSU designates Kaleen Peterson as Title IX Coordinator.

VCSU will notify applicants for admission and employment, students, employees, and all unions or professional organizations holding collective bargaining or professional agreements with VCSU, of the name or title, office address, electronic mail address, and telephone number of the employee or employees designated as the Title IX Coordinator.

VCSU will prominently display the contact information required to be listed for the Title IX Coordinator and this policy described on its website and in each handbook or catalog that it makes available to persons entitled to a notification.

                                                                                                                                                                               

X.    Respect for Complainant’s Autonomy

Respecting complainant’s autonomy is significant.  It is important the complainant has control over how VCSU responds to an alleged occurrence.  

VCSU aims to respect the autonomy of complainants and to recognize the importance of a complainant retaining as much control as possible over their own circumstances following a sexual harassment experience, while also ensuring that complainants have clear information about how to access the supportive measures available (and how to file a formal complaint initiating a grievance process against a respondent if the complainant chooses to do so) if and when the complainant desires for VCSU to respond to the complainant’s situation.

XI.    Leniency for Other Policy Violations

To encourage reports of sexual harassment, 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 of 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.

XII.    Method of Reporting Sex Discrimination, Including Sexual Harassment

Any person may report sex discrimination, including sexual harassment (whether or not the person reporting is the person alleged to be the victim of conduct that could constitute sex discrimination or sexual harassment).  A report may be made in person, by mail, by telephone, or by electronic mail, using the contact information listed for the Title IX Coordinator, by anonymous reporting, or by any other means that results in the Title IX Coordinator receiving the person’s verbal or written report, regardless of the time of day.  

Kaleen Peterson: Title IX Coordinator 

Director for Student Academic Services

McFarland Hall 322B

101 College Street SW

701-845-7302

kaleen.peterson@vcsu.edu

XIII.    Actual Knowledge of Sexual Harassment or Allegations of Sexual Harassment

Regardless of whether a formal complaint is filed, VCSU will respond promptly and without deliberate indifference when it has actual knowledge of sexual harassment or allegations of sexual harassment within its educational program or activity in the United States. Notice to the Title IX Coordinator or any official with authority conveys actual knowledge.  

Implying that VCSU “should have known” about the discrimination or harassment is not actual knowledge.  Likewise, VCSU does not have actual knowledge if an official with authority is also the respondent and is the only official who knows of the sexual harassment.

VCSU may have actual knowledge of sexual harassment even where no person has reported or filed a formal complaint about the sexual harassment.  For example, employees may observe sexualized insults scrawled on school hallways, and even where no student has reported the incident, the school employees’ notice of conduct that could constitute sexual harassment charges VCSU with actual knowledge.  VCSU must respond in a manner that is not clearly unreasonable in light of the known circumstances, which could include removing the sexually harassing insults and communicating to the student body that sexual harassment is unacceptable.

Through the actual knowledge condition, VCSU intends to ensure that every complainant knows that if or when the complainant desires for VCSU to respond to a sexual harassment experience (by offering supportive measures, by investigating allegations, or both), the complainant has clear, accessible channels by which to report and/or file a formal complaint.

While a third party  may be less likely to participate in a grievance process than a party who is a student or employee of VCSU, but nothing prevents VCSU from complying with Title IX by promptly responding when VCSU has actual knowledge of sexual harassment or allegations of sexual harassment including by offering supportive measures to a complainant.

A.    Notice

Notice results whenever the Title IX Coordinator or any official with authority: 

(1)    witnesses sexual harassment; 

(2)    hears about sexual harassment or sexual harassment allegations from a complainant (i.e., a person alleged to be the victim) or a third party (e.g., the complainant’s parent, friend, or peer); 

(3)    receives a written or verbal complaint about sexual harassment or sexual harassment allegations; or 

(4)    by any other means.

Any person may report sexual harassment to the Title IX Coordinator using contact information posted on VCSU’s website. The person who reports does not need to be the complainant (i.e., the person alleged to be the victim); a report may be made by any person who believes that sexual harassment may have occurred.  

B.    Employee Reporting 

It is important for complainants to have the opportunity to disclose sexual harassment to an employee without automatically triggering a response from VCSU.  VCSU recognizes that these are difficult situations and that some students may prefer to discuss such issues with an employee without having a complaint filed.  To provide these opportunities, there are different categories of employees.

1.    Officials with authority are employees who must report sexual harassment to the Title IX Coordinator.  Officials with authority are: Title IX Coordinator, Vice President for Academic Affairs, Director of Human Resources, and the Director for Athletics.

2.    “May listen” employees are employees who may listen to a student’s or employee’s disclosure of sexual harassment without being required to report it to the Title IX Coordinator. May listen employees are: administrators, directors, and faculty.

3.    “Must report but only with consent” employees are employees who must report sexual harassment to the Title IX Coordinator but only with the complainant’s consent. Must report but only with consent employees are: resident assistants, coaches, assistant coaches, and volunteer coaches.

C.    Individuals without Authority

The mere ability or obligation to report sexual harassment or to inform a student about how to report sexual harassment, or having been trained to do so, does not qualify an individual (such as a volunteer parent, or alumnus) as an official with authority to institute corrective measures.

A person is not an official with authority solely based on the fact that the person has received training on how to report sexual harassment or has the ability or obligation to report sexual harassment. Similarly, volunteers and independent contractors are not officials with authority, unless VCSU has granted the volunteers or independent contractors authority to institute corrective measures.

XIV.    Pre-Grievance Process

Once VCSU has actual knowledge of sexual harassment, VCSU will respond promptly in a manner that is not deliberately indifferent.  In other words, VCSU will not respond unreasonably in light of the known circumstances.

A.    Complainants and Respondents Treated Equitably

VCSU will treat complainants and respondents equitably by offering supportive measures to a complainant, and by following a grievance process before the imposition of any disciplinary sanctions or other actions that are not supportive measures against respondent.

B.    Title IX Coordinator Will Promptly Contact Complainant

The Title IX Coordinator will promptly contact the complainant to discuss the availability of supportive measures, consider the complainant’s wishes with respect to supportive measures, inform the complainant of the availability of supportive measures without the filing of a formal complaint, and explain to the complainant the process of filing a formal complaint.  A Complainant may bring a supportive friend to the initial meeting with the Title IX Coordinator.

C.    Nuances when an Employee is the Respondent

Complainants may not want to report misconduct by an employee if the complainant cannot remain anonymous. The written notice of allegations identifying the parties to a sexual harassment incident is required only after a formal complaint has been filed by a complainant or signed by a Title IX Coordinator. Complainants, therefore, need not feel dissuaded from reporting sexual harassment by an employee due to a desire for the complainant’s identity to be withheld from the respondent, because unless and until a formal complaint is filed, VCSU is not required to disclose the complainant’s identity to a respondent, including an employee-respondent (unless the respondent must be informed of the complainant’s identity in order for the Title IX Coordinator to effectively implement a particular supportive measure that would necessitate the respondent knowing the complainant’s identity, such as a no contact order). VCSU may choose to question an employee-respondent about misconduct, such as stealing or theft, without disclosing to the employee the identity of the person who reported the theft.  VCSU may question an employee-respondent about sexual harassment allegations without disclosing the complainant’s identity, provided that VCSU does not take disciplinary action against the respondent without first applying the grievance process (or unless emergency removal is warranted), or administrative leave is permitted.

In responding, VCSU will not restrict rights protected under the U.S. Constitution, including the First Amendment, Fifth Amendment, and Fourteenth Amendment.

XV.    Supportive Measures

Supportive measures are non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, without fee or charge to the complainant or respondent, before or after the filing of a formal complaint or where no formal complaint has been filed.  The purpose of supportive measures is equal access to education.

Such measures are designed to restore or preserve equal access to VCSU’s education program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties or VCSU’s educational environment, or deter sexual harassment. 

Supportive measures may include:

1.    Counseling;

2.    Extensions of deadlines or other course-related adjustments;

3.    Modifications of work or class schedules;

4.    Campus escort services; 

5.    Mutual restrictions on contact between the parties;

6.    Changes in work or housing locations;

7.    Leaves of absence; and

8.    Increased security and monitoring of certain areas of the campus.

Supportive measures provide one avenue for VCSU to protect the safety of parties and permissibly may affect and even burden the respondent, so long as the burden is not unreasonable.

A.    Unreasonably Burdening a Party

Determining whether an action “unreasonably burdens” a party is fact-specific. The unreasonableness of a burden on a party must take into account the nature of the educational programs, activities, opportunities, and benefits in which the party is participating, not solely those educational programs that are “academic” in nature.  Removal from sports teams and similar exclusions from school-related activities also require a fact-specific analysis.  Whether the burden is “unreasonable” does not depend on whether the respondent still has access to academic programs but also includes analyzing whether a respondent’s access to the array of educational opportunities and benefits is unreasonably burdened.

For example, changing a respondent’s class schedule or changing a respondent’s housing or dining hall assignment may be a permissible supportive measure depending on the circumstances. By contrast, removing a respondent from the entirety of VCSU’s education programs and activities, or removing a respondent from one or more of VCSU’s education programs or activities (such as removal from a team, club, or extracurricular activity), likely would constitute an unreasonable burden on the respondent or be deemed disciplinary or punitive, and therefore would not likely qualify as a supportive measure.

B.    Equality or Parity in Terms of Supportive Measures to Complainants and Respondents Not Required

There is no requirement for equality or parity in terms of the supportive measures actually available to, or offered to, complainants and respondents generally, or to a complainant or respondent in a particular case.

This provision must be understood in conjunction with the obligation of VCSU to offer supportive measures to complainants (including having the Title IX Coordinator engage in an interactive discussion with the complainant to determine appropriate supportive measures), while no such obligation exists with respect to respondents.  

VCSU does not intend, and Title IX does not require, to impose a requirement of equality or parity with respect to supportive measures provided to complainants and respondents.

C.    Maintaining Confidentiality

VCSU will maintain as confidential any supportive measures provided to the complainant or respondent, to the extent that maintaining such confidentiality would not impair the ability of VCSU to provide the supportive measures. 

D.    Title IX Coordinator Responsible for Implementing Supportive Measures and Responsibility for Support Measures

The Title IX Coordinator is responsible for coordinating the effective implementation of supportive measures.  VCSU retains discretion as to whether to continue supportive measures after a determination of non-responsibility.

VCSU is not accountable for situations where despite VCSU’s reasonably designed and implemented remedies, a victim still suffers loss of access (for example, by dropping out) due to the underlying trauma.

If VCSU’s response to sexual harassment does not include providing supportive measures to a complainant VCSU will specifically document why that response was not clearly unreasonable in light of the known circumstances (for example, because the complainant did not wish to receive supportive measures or refused to discuss supportive measures with the Title IX Coordinator when the Title IX Coordinator contacted the complainant to have such a discussion). Thus, unless a complainant does not desire supportive measures (i.e., refuses the offer of supportive measures), complainants must receive supportive measures designed to restore or preserve the complainant’s equal educational access, regardless of whether a grievance process is ever initiated. There is no corresponding obligation to offer supportive measures to respondents; rather, VCSU may provide supportive measures to respondents.

Supportive measures will not restrict any party’s rights under the United States Constitution.

XVI.    Emergency Removal

VCSU may remove a respondent from an education program or activity on an emergency basis.  Before removal, VCSU will undertake an individualized safety and risk analysis, determining whether an immediate threat to the physical health or safety of any student or other individual arising from the allegations of sexual harassment justifies removal.  

A.    Emergency Removal May Be Appropriate whether or Not a Grievance Process is Underway

Emergency removal may be appropriate whether or not a grievance process is underway.  The purpose of the emergency removal is to protect the physical health or safety of any student or other individual to whom the respondent poses an immediate threat, arising from allegations of sexual harassment, not to impose an interim suspension or expulsion on a respondent, or penalize a respondent by suspending the respondent from, for instance, playing on a sports team or holding a student government position, while a grievance process is pending.

B.    Immediate Threat Arising out of Sexual Harassment Allegations

Emergency removal is not about reaching factual conclusions about whether the respondent is responsible for the underlying sexual harassment allegations.  Emergency removal is about determining whether an immediate threat arising out of the sexual harassment allegations justifies removal of the respondent.

Because all the conduct that could constitute sexual harassment as defined in this policy is serious conduct that jeopardizes a complainant’s equal access to education, emergency removals are not limited only to instances where a complainant has alleged sexual assault or rape, or to prohibit emergency removals where the sexual harassment allegations involve verbal harassment. A threat posed by a respondent is not necessarily measured solely by the allegations made by the complainant.

The threat justifying a removal could consist of facts and circumstances “arising from” the sexual harassment allegations. For example, if a respondent threatens physical violence against the complainant in response to the complainant’s allegations that the respondent verbally sexually harassed the complainant, the immediate threat to the complainant’s physical safety posed by the respondent may “arise from” the sexual harassment allegations. As a further example, if a respondent reacts to being accused of sexual harassment by threatening physical self-harm, an immediate threat to the respondent’s physical safety may “arise from” the allegations of sexual harassment and could justify an emergency removal.

C.    Individualized Safety and Risk Analysis

The individualized safety or risk analysis ensures that VCSU will not remove a respondent from VCSU’s education program or activity unless there is more than a generalized, hypothetical, or speculative belief that the respondent may pose a risk to someone’s physical health or safety.

The safety and risk analysis must be individualized with respect to the particular respondent and must examine the circumstances “arising from the allegations of sexual harassment” giving rise to an immediate threat to a person’s physical health or safety. These circumstances may include, but are not limited to, factors such as whether violence was allegedly involved in the conduct constituting sexual harassment, but could also include circumstances that “arise from” the allegations yet do not constitute the alleged conduct itself; for example, a respondent could pose an immediate threat of physical self-harm in reaction to being accused of sexual harassment. For a respondent to be removed on an emergency basis, VCSU shall determine that an immediate threat exists, and that the threat justifies removal,

D.    Notice and Notification of Emergency Dismissal 

VCSU will provide some kind of notice to the respondent of the emergency dismissal. 

 

VCSU in its discretion (subject to FERPA and other laws restricting nonconsensual disclosure of personally identifiable information from education records) may notify the complainant of removal decisions regarding a respondent.

E.    Discretionary Accommodations for Students Removed on An Emergency Basis

In its discretion, VCSU may accommodate students who have been removed on an emergency basis with alternative means to continue academic coursework during a removal period or provide for a respondent to re-take classes upon a return from an emergency removal, or secure property left on VCSU’s campus when a respondent is removed.

Likewise, as long as VCSU is not deliberately indifferent with respect to whether an emergency removal is an appropriate response to sexual harassment, VCSU has discretion whether to remove the respondent from all VCSU’s education programs and activities, or to narrow the removal to certain classes, teams, clubs, organization, or activities.

F.    Timing and Length of Emergency Removals

Because the risk arising from the sexual harassment allegations that may justify removal may arise at any time, VCSU may undertake an emergency removal at any time.

VCSU has discretion as to the length of an emergency removal.  Likewise, VCSU has discretion to periodically assess whether an immediate threat to physical health or safety is ongoing or has dissipated.

G.    Notice to Respondent and Opportunity to Challenge Removal

VCSU will provide the respondent with notice and an opportunity to challenge the decision immediately following the removal. The term “immediately” will be fact-specific, but is generally understood in the context of a legal process as occurring without delay, as soon as possible, given the circumstances.

H.    Post-Removal Procedure

The post-removal procedure may, but need not, utilize some or all the procedures in the grievance process, such as providing for collection and presentation of evidence. 

The respondent has the burden of proof to show that the removal decision was incorrect. 

VCSU may use Title IX personnel trained to make the emergency removal decision.  The Title IX Coordinator will decide any post-removal challenge.

If involvement with the emergency removal process results in bias or conflict of interest for or against the complainant or respondent, that individual would be precluded from serving in those roles during a grievance process.

Facts and evidence relied on during an emergency removal decision and post-removal challenge procedure may be relevant in a grievance process against the respondent but would need to meet the requirements outlined in the grievance process.  For example, a witness who provided information to VCSU for use in reaching an emergency removal decision would need to appear and be cross-examined at a live hearing under the grievance process in order for the witness’s statement to be relied on by the decision-maker.

This provision may not be construed to modify any rights under the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act of 1973, or the Americans with Disabilities Act.

XVII.    Administrative Leave

VCSU may place a non-student employee respondent on administrative leave during the pendency of the grievance process. This provision may not be construed to modify any rights under Section 504 of the Rehabilitation Act of 1973 or the Americans with Disabilities Act.

A.    Respondents Who Are Employees Receive the Same Due Process Protections as Respondents Who Are Students

Respondents who are employees receive the same due process protections with respect to emergency removals (i.e., post-removal notice and opportunity to challenge the removal) as respondents who are students.

B.    VCSU has Discretion to Place Non Student Respondents on Administrative Leave for Reasons Other than those Specified in the Emergency Removal Provision

VCSU has discretion to place a non student respondent on administrative leave regardless of whether the emergency removal provision applies.  

C.    Administrative Leave Must Not be Punitive

VCSU may place a student-employee respondent on administrative leave if doing so does not violate other regulatory provisions. For example, placing a student-employee respondent on administrative leave with pay may be permissible as a supportive measure for a complainant (for instance, to maintain the complainant’s equal educational access and/or to protect the complainant’s safety or deter sexual harassment) as long as that action meets the conditions that a supportive measure is not punitive, disciplinary, or unreasonably burdensome to the respondent.

Administrative leave without pay is generally considered disciplinary.

Where a student is also employed by VCSU, it is likely that the student depends on that employment in order to pay tuition, or that the employment is important to the student’s academic opportunities. Administrative leave may jeopardize a student-employee’s access to educational benefits and opportunities in a way that a non-student employee’s access to education is not jeopardized. Accordingly, administrative leave is not always appropriate for student-employees. There may be circumstances that justify administrative leave with pay for student-employees, and the specific facts of a particular matter will dictate whether VCSU’s response in placing a student-employee on administrative leave is permissible. For example, if a student-employee respondent works at a school cafeteria where the complainant usually eats, VCSU may determine that placing the student-employee respondent on administrative leave with pay, during the pendency of a grievance process, will not unreasonably burden the student-employee respondent, or VCSU may determine that reassigning the student-employee respondent to a different position during pendency of a grievance process, will not unreasonably burden the student-employee respondent. If VCSU places a party who is a student-employee on administrative leave with pay as a supportive measure, then such administrative leave must be non-disciplinary, non-punitive, not unreasonably burdensome, and otherwise satisfy the definition of supportive measures. 

With respect to a student-employee respondent, VCSU also may choose to take measures other than administrative leave that could constitute supportive measures for a complainant, designed to protect safety or deter sexual harassment without unreasonably burdening the respondent. For example, where an employee is also a VCSU student, it is likely that VCSU has the ability to supervise the student-employee to ensure that any continued contact between the student-employee respondent and other students occurs under monitored or supervised conditions (e.g., where the respondent is a teaching assistant), during the pendency of an investigation. If VCSU removes a respondent under emergency removal after conducting an individualized safety and risk analysis and determining that an immediate threat to the physical health or safety of any students or other individuals justifies removal, then VCSU also may remove a student-employee respondent from any employment opportunity that is part of the VCSU’s education program or activity.

D.  Confidentiality

VCSU will keep confidential the identity of:

1.    Any individual who has made a report or complaint of sex discrimination, including any individual who has made a report or filed a formal complaint of sexual harassment;

2.    Any complainant;

3.    Any individual who has been reported to be the perpetrator of sex discrimination

4.    Any respondent; and 

5.    Any witness.

Confidentiality will not apply when carrying out the purposes of this policy, including conducting any investigation, hearing, appeal or judicial proceeding.

Likewise, exceptions to confidentiality may be permitted by the FERPA statute, 20 U.S.C. 1232g, or FERPA regulations, 34 CFR part 99, or as required by law.  

XVIII.    Waiver of Rights 

VCSU does not require as a condition of enrollment or continuing enrollment, or employment or continuing employment, or enjoyment of any other right, waiver of the right to an investigation and adjudication of formal complaints of sexual harassment.

XIX.    VCSU Will Honor Recognized Legal Privileges 

VCSU will not require, allow, rely upon, or otherwise use questions or evidence that constitute, or seek disclosure of, information protected under a legally recognized privilege, unless the person holding such privilege has waived the privilege.

XX.    Options to Pursue Legal Action through Civil Litigation or by Pressing Criminal Charges

Complainants have options to pursue legal action through civil litigation or by pressing criminal charges. Title IX nor VCSU’s grievance process does not replace civil or criminal justice systems.

XXI.    Grievance Process

Any provisions, rules, or practices VCSU adopts as part of its grievance process for handling formal complaints of sexual harassment apply equally to both parties.

A.    Conflict of Interest or Bias Prohibited

VCSU requires that the Title IX Coordinator, investigator, decision-maker, or any person designated to facilitate an informal resolution process, not have a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent.  Likewise, VCSU will not tolerate discrimination on the basis of race, color, or national origin, which is prohibited under Title VI.

VCSU has objective rules for determining when an adjudicator (or Title IX Coordinator, investigator, or person who facilitates an informal resolution process) is biased.

Whether bias exists requires examination of the particular facts of a situation.  VCSU applies an objective (whether a reasonable person would believe bias exists), common sense approach to evaluating whether a particular person serving in a Title IX role is biased, exercising caution not to apply generalizations that might unreasonably conclude that bias exists (for example, assuming that all self-professed feminists, or self-described survivors, are biased against men, or that a male is incapable of being sensitive to women, or that prior work as a victim advocate, or as a defense attorney, renders the person biased for or against complainants or respondents).  It is important also to recognize that required training is intended to provide Title IX personnel with the tools needed to serve impartially and without bias such that the prior professional experience of a person whom VCSU would like to have in a Title IX role need not disqualify the person from obtaining the requisite training to serve impartially in a Title IX role.

B.    Time Frames and Temporary Delays

The grievance process provides reasonably prompt time frames for filing and resolving appeals and informal resolution processes.  The process also allows for the temporary delay of the grievance process or the limited extension of time frames for good cause with written notice to the complainant and the respondent of the delay or extension and the reasons for the action. Good cause may include, but are not limited to, considerations such as:

1.    The absence of a party, a party’s advisor, or a witness; 

2.    Concurrent law enforcement activity; or 

3.    The need for language assistance or accommodation of disabilities. 

C.    Good Cause

The non-exhaustive list of factors (listed above) that may constitute good cause for short-term delays or extensions of the VCSU’s designated time frames relate to the fundamental fairness of the proceedings. Delays caused solely by administrative needs, for example, would be insufficient to satisfy this standard. With respect to administrative delay, this concept includes delays caused by VCSU inefficiencies or mismanagement of their own resources, but not necessarily circumstances outside of VCSU’s control )e.g., if technology relied on to conduct a live hearing is interrupted due to a power outage).

Furthermore, even where good cause exists, VCSU may only delay the grievance process on a temporary basis for a limited time. A respondent (or other party, advisor, or witness) would not be able to indefinitely delay a Title IX proceeding by refusing to cooperate. While VCSU must attempt to accommodate the schedules of parties and witnesses throughout the grievance process in order to provide parties with a meaningful opportunity to exercise the rights granted to parties, it is VCSU’s obligation to meet its own designated time frames.  A grievance process can proceed to conclusion even in the absence of a party or witness.

D.    Concurrent Law Enforcement Activity

The Department acknowledges that the criminal justice system and the Title IX grievance process serve distinct purposes. However, the two systems sometimes overlap with respect to allegations of conduct that constitutes sex discrimination under Title IX and criminal offenses under State or other laws. By acknowledging that concurrent law enforcement activity may constitute good cause for short-term delays or extensions of VCSU’s designated time frames, this provision helps navigate situations where VCSU is expected to meet its Title IX obligations while intersecting with criminal investigations that involve the same facts and parties. For example, if a concurrent law enforcement investigation uncovers evidence that the police plan to release on a specific time frame and that evidence would likely be material to VCSU’s determination regarding responsibility, then VCSU may have good cause for a temporary delay or limited extension of its grievance process in order to allow that evidence to be included as part of the Title IX investigation. Because only “temporary” delays or “limited” extensions of time frames are permitted even for good cause such as concurrent law enforcement activity, this provision does not result in protracted or open-ended investigations in situations where law enforcement’s evidence collection (e.g., processing rape kits) occurs over a time period that extends more than briefly beyond VCSU’s designated time frames. 

VCSU does not allow short-term delays on the basis of working with a concurrent law enforcement effort only where the law enforcement agency specifically requests that VCSU delay, or only where the school and law enforcement agency have a memorandum of understanding or similar cooperative agreement in place. 

VCSU’s obligations under Title IX are independent of VCSU’s obligations to cooperate or coordinate with law enforcement with respect to investigations or proceedings affecting VCSU’s students or employees.  VCSU has flexibility to address situations that overlap with law enforcement activities so that potential victims of sex offenses are better served by both systems while ensuring that VCSU’s grievance process is not made dependent on a concurrent law enforcement investigation, and thus a Title IX grievance process will still be concluded promptly even if the law enforcement matter is still ongoing.

Regardless of the good cause that exists, any delay or extension must be on a limited and temporary basis.

E.    Formal Complaint

The formal complaint initiates VCSU’s grievance process. 

1.    Purpose of Formal Complaint

The purpose of the formal complaint is to clarify that the complainant or Title IX Coordinator believes that VCSU should investigate allegations of sexual harassment against a respondent. 

2.    Who May File a Formal Complaint

A formal complaint may be filed by a complainant, complainant’s parents or guardians acting on behalf of complainant, or signed by the Title IX Coordinator alleging sexual harassment against a respondent and requesting that the school investigate the allegation of sexual harassment.

At the time of filing a formal complaint, a complainant must be participating in or attempting to participate in the education program or activity of VCSU with which the formal complaint is filed.  

A complainant who has graduated may still be “attempting to participate” in VCSU’s education program or activity.  For example, where the complainant has graduated from one program but intends to apply to a different program, or where the graduated complainant intends to remain involved with a VCSU’s alumni programs and activities. Similarly, a complainant who is on a leave of absence may be “participating or attempting to participate” in VCSU’s education program or activity; for example, such a complainant may still be enrolled as a student even while on leave of absence, or may intend to re-apply after a leave of absence and thus is still “attempting to participate” even while on a leave of absence. By way of further example, a complainant who has left school because of sexual harassment, but expresses a desire to re-enroll if VCSU appropriately responds to the sexual harassment, is “attempting to participate” in VCSU’s education program or activity.

3.    Parents and Guardians Filing on Behalf of Complainant

If a parent has the legal right to act on behalf of their child, the parent may act on the student’s behalf by, for example, signing a formal complaint alleging that their child was sexually harassed and asking VCSU to investigate.  The parent does not, in that circumstance, become the complainant.

The extent to which VCSU must abide by the wishes of a parent, especially in circumstances where the student is expressing a different wish from what the student’s parent wants, depends on the scope of the parent’s legal right to act on the student’s behalf.

4.    The Title IX Coordinator May Assist Complaint or Parent in Filling Out a Formal Complaint

The Title IX Coordinator may assist a complainant (or parent) in filling out a document intended to serve as a formal complaint. 

5.    Title IX Coordinator Filing Formal Complaint

The Title IX Coordinator may consider a variety of factors, including a pattern of alleged misconduct by a particular respondent, in deciding whether to sign a formal complaint. 

A Title IX Coordinator’s decision to sign a formal complaint may occur only after the Title IX Coordinator has promptly contacted the complainant to discuss availability of supportive measures, consider the complainant’s wishes with respect to supportive measures, and explain to the complainant the process for filing a formal complaint. Thus, the Title IX Coordinator’s decision to sign a formal complaint includes taking into account the complainant’s wishes regarding how VCSU should respond to the complainant’s allegations. the Title IX Coordinator may take circumstances into account such as whether a complainant’s allegations involved violence, use of weapons, or similar factors.

The Title IX Coordinator possesses the discretion to sign formal complaints in situations involving threats, serial predation, violence, or weapons. Even in the absence of a formal complaint being filed, VCSU has authority to order emergency removal of a respondent where the situation arising from sexual harassment allegations presents a risk to the physical health or safety of any person. The Title IX Coordinators or complainants may contact law enforcement to address imminent safety concerns.

Likewise, if the Title IX Coordinator were to receive multiple reports of sexual harassment against the same respondent, as part of a non-deliberately indifferent response the Title IX Coordinator may sign a formal complaint to initiate a grievance process against the respondent, even where no person who alleges to be the victim wished to file a formal complaint. 

If a Title IX Coordinator decides to sign a formal complaint against the wishes of a complainant, VCSU should document the reasons why such a decision was not clearly unreasonable and how VCSU believes that it met its responsibility to provide that complainant with a non-deliberately indifferent response. 

6.    Method of Filing Formal Complaint

A formal complaint may be filed with the Title IX Coordinator in person, by mail, or by electronic mail, by using anonymous reporting link https://myweb.vcsu.edu/anonymous-tip/, by using the contact information for the Title IX Coordinator. As used in this paragraph, the phrase “document filed by a complainant” means a document or electronic submission (such as by electronic mail or through an online portal provided for this purpose by VCSU) that contains the complainant’s physical or digital signature, or otherwise indicates that the complainant is the person filing the formal complaint. Where the Title IX Coordinator signs a formal complaint, the Title IX Coordinator is not a complainant or otherwise a party.

When a Title IX Coordinator signs a formal complaint, the Title IX Coordinator does not become a complainant or otherwise a party to the grievance process.

7.    Consolidation of Formal Complaints

VCSU may consolidate formal complaints as to allegations of sexual harassment against more than one respondent, or by more than one complainant against one or more respondents, or by one party against the other party, where the allegations of sexual harassment arise out of the same facts or circumstances.  The requirement for “the same facts and circumstances” means that the multiple complainants’ allegations are so intertwined that their allegations directly relate to all the parties.

The Title IX Coordinator retains discretion, but is not required, to sign formal complaints after receiving multiple reports of potential sexual harassment against the same respondent.

Where a grievance process involves more than one complainant or more than one respondent, references in this section to the singular “party,” “complainant,” or “respondent” include the plural, as applicable.

8.    Imperfections of Formal Complaint

Imperfect paperwork is not grounds for not taking action.  If something is missing on the formal complaint, VCSU will give opportunity for correction to be made.  For example, if the formal complaint is missing a signature, VCSU will inquire of the complainant to sign the formal complaint.  

VCSU will respond promptly in a way that is not clearly unreasonable in light of the known circumstances.  VCSU will document the basis for its conclusion that its response was not deliberately indifferent. 

9.    Respondents Not Entitled to Copy of the Formal Complaint

VCSU is not required to give respondents a copy of the formal complaint.  The written notice of allegations provision already requires VCSU to provide the date, time, alleged conduct, and identity of the complainant, so the information required provides sufficient opportunity for the respondent to participate in the grievance process while protecting the complainant’s privacy rights to the extent that, for example, the complainant alleged facts in the formal complaint that are unrelated to Title IX sexual harassment and thus do not relate to the allegations that VCSU investigates in the grievance process.

F.    Decision to Proceed with Grievance Process without Complainant’s Participation

When the Title IX Coordinator determines that an investigation is necessary even where the complainant does not want such an investigation, the grievance process can proceed without the complainant’s participation; however, the complainant will still be treated as a party in such a grievance process. The grievance process will therefore impact the complainant even if the complainant refuses to participate. 

VCSU desires to respect a complainant’s autonomy as much as possible and thus, if a grievance process is initiated against the wishes of the complainant, that decision will be reached thoughtfully and intentionally by the Title IX Coordinator, not as an automatic result that occurs any time VCSU has notice that a complainant was allegedly victimized by sexual harassment. 

The Title IX Coordinator may file the complaint, initiating an investigation.  VCSU has flexibility to investigate allegations even when the complainant does not wish to file a formal complaint where initiating a grievance process is not clearly unreasonable in light of the known circumstances (including the circumstances under which a complainant does not desire an investigation to take place), so that VCSU may, for example, pursue a grievance process against a potential serial sexual perpetrator. 

The Title IX Coordinator will document its reasons why its response to sexual harassment was not deliberately indifferent, thereby emphasizing the need for a decision to initiate a grievance process over the wishes of a complainant to be intentionally, carefully made taking into account the circumstances of each situation.

G.    When the Identity of the Complainant is Unknown

The grievance process may proceed even when the identity of the complainant is unknown.  For example, where a third party reports that a complainant was victimized by sexual harassment but does not reveal the complainant’s identity, or a complainant reports anonymously.  

If the Title IX Coordinator determines it is necessary to sign a formal complaint, the written notice of allegations will specify that the complainant’s identity is not known. 

The Title IX Coordinator’s decision to sign a formal complaint is made on behalf of VCSU (for instance, as part of VCSU’s obligation not to be deliberately indifferent to known allegations of sexual harassment), not in support of the complainant or in opposition to the respondent or as an indication of whether the allegations are credible, have merit, or whether there is evidence sufficient to determine responsibility. 

The Title IX Coordinator does not become a complainant, or otherwise a party, to a grievance process, and will still serve free from bias or conflict of interest for or against any party.

H.    When the Identity of the Respondent is Unknown

VCSU will investigate a complainant’s formal complaint even if the complainant does not know the respondent’s identity, because an investigation might reveal the respondent’s identity, at which time VCSU would send both parties written notice of the allegations.

I.    Notice of Allegations

Upon receipt of a formal complaint, VCSU will provide the following written notice to the parties who are known:

1.    Notice of VCSU’s grievance process and informal resolution process.

2.    Notice of the allegations of conduct potentially constituting sexual harassment as defined in this policy, including sufficient details known at the time. Sufficient details include the identities of the parties involved in the incident, if known, the conduct allegedly constituting harassment under this policy, and the date and location of the alleged incident, if known.

3.    A statement that the respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the grievance process.

4.    Notice informing the parties that they may have an advisor of their choice, who may be, but is not required to be, an attorney, and may inspect and review evidence. 

5.    Notice informing the parties that if a party does not have an advisor of choice, VCSU will appoint an advisor to assist with cross-examination for the live hearing.

6.    Notice informing the parties of VCSU’s code of conduct that prohibits knowingly making false statements or knowingly submitting false information during the grievance process.

7.    Notice that the parties may have rights to disability accommodations.

8.    Inquiry whether any disability accommodation is needed. 

9.    Provide sufficient time to prepare a response before any initial interview.  

10.    Provide, to a party whose participation is invited or expected, written notice of the date, time, location, participants, and purpose of all hearings, investigative interviews, or other meetings, with sufficient time for the party to prepare to participate.

The written notice of allegations provision does not require listing personally identifiable information of either party beyond the “identity” of the parties; thus, the written notice need not, and should not, for example, contain other personally identifiable information such as dates of birth, social security numbers, or home addresses, and nothing in the Title IX regulations precludes VCSU from directing parties not to disclose such personally identifiable information.

If, in the course of an investigation, VCSU decides to investigate allegations about the complainant or respondent that are not included in the notice provided in this section, VCSU will provide notice of the additional allegations to the parties whose identities are known.

J.    Situations Involving Some Allegations of Conduct that Occurred in an Education Program or Activity and Some Allegations of Conduct that Did Not

In situations involving some allegations of conduct that occurred in an education program or activity, and some allegations of conduct that did not, VCSU will investigate the allegations of conduct that occurred in its education program or activity.  VCSU may also choose to also address allegations of conduct outside VCSU’s education program or activity.  

For example, if a student is sexually assaulted outside of an education program or activity but subsequently suffers Title IX sexual harassment in an education program or activity, then this policy applies to the latter act of sexual harassment.  VCSU may choose to address the prior assault through its own code of conduct and policies such as V520.02.03 Prohibited Discrimination, Protected Status Harassment, Hostile Environment and Other Misconduct.

VCSU is not required to inefficiently extricate conduct occurring outside an education program or activity from conduct occurring in an education program or activity arising from the same facts or circumstances in order to meet its obligations with respect to the latter.

K.    Presumption of Innocence

VCSU presumes that the respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process.

L.    Standard of Evidence

VCSU will use the preponderance of the evidence standard in the grievance process.  The same standard will be used for all formal complaints of sexual harassment, whether the complaint is against students, faculty, or employees.

M.    Advisor

After the filing of a formal complaint, parties to a grievance proceeding will be afforded the opportunity to select the advisor of their choice to assist them during the proceeding, including during the live hearing. 

If a party does not choose an advisor, VCSU will provide the party with an advisor free of charge. At minimum, VCSU will provide an advisor to conduct the party’s cross-examination at the hearing. However, nothing in this should be read to prohibit VCSU from providing an advisor for the full duration of the grievance process, provided that the parties are treated equally as to timing insofar VCSU appoints advisors for both parties. 

VCSU is are not required to provide attorneys to parties to act as advisors, but appointed advisors should be provided with access to appropriate training to ensure an understanding of the process, though the same training provided to Title IX Coordinators, decision-makers, and investigators is not required.

VCSU is not required to attempt to create equality of advisors between the parties, particularly where one party selects an outside advisor, but should endeavor to seek parity of advisors where VCSU provides advisors to both parties.

While an assigned advisor may have a personal or professional belief in, or dedication to, the position of the party on whose behalf the advisor conducts cross-examination, such a belief or dedication is not a requirement to function as the assigned advisor.  Advisors are not required to be impartial nor are they required to be free from conflicts of interest or bias.

There is no requirement that advisors be lawyers providing legal counsel nor does this provision impose an expectation of skill, qualifications, or competence. An advisor’s cross-examination “on behalf of that party” is satisfied where the advisor poses questions on a party’s behalf, which means that an assigned advisor could relay a party’s own questions to the other party or witness, and no particular skill or qualification is needed to perform that role.

VCSU may limit the active participation of advisors, with the one exception that an advisor must conduct cross-examination of a party.

N.    Disability Accommodation

VCSU will comply with any disability laws that require an accommodation.  VCSU may be required under disability laws to permit a person with a disability to be accompanied throughout a grievance process by a support person, in addition to the party’s advisor of choice.

O.    Investigation

VCSU will investigate every filed formal complaint unless the complaint is subject to dismissal as described below.  Determinations about the merits of the allegations must be reached only by following the fair, impartial grievance process designed to reach accurate outcomes.

The investigator is obligated to gather evidence directly related to the allegations whether or not VCSU intends to rely on such evidence (for instance, where evidence is directly related to the allegations but the investigator does not believe the evidence to be credible and thus does not intend to rely on it). 

The parties may then inspect and review the evidence directly related to the allegations.  The investigator must take into consideration the parties’ responses and then determine what evidence is relevant and summarize the relevant evidence in the investigative report. The parties then have equal opportunity to review the investigative report.  If a party disagrees with an investigator’s determination about relevance, the party can make that argument in the party’s written response to the investigative report and to the decision-maker at any hearing held.  Either way the decision-maker is obligated to objectively evaluate all relevant evidence and the parties have the opportunity to argue about what is relevant (and about the persuasiveness of relevant evidence). This policy also provide the parties equal appeal rights including on the ground of procedural irregularity, which could include VCSU’s failure to objectively evaluate all relevant evidence, including inculpatory and exculpatory evidence. the investigator and decision-maker will be well-trained to conduct a grievance process compliant including determining “relevance” within the parameters of the Title IX regulations.

1.    Investigator

Based on availability, the investigator will be chosen from a pool of NDUS trained investigators.  The investigator does not have to be a VCSU employee.

The Title IX Coordinator may also be the investigator.  The investigator cannot also serve as the decision-maker.

2.    Presumption of Non-responsibility

At all times, VCSU will observe a presumption that respondent is not responsible for the alleged conduct until and unless there is a determination of responsibility at the conclusion of the grievance process.

The presumption of non-responsibility is not interpreted to mean that a respondent is considered truthful, or that the respondent’s statements are credible or not credible, based on the respondent’s status as a respondent.

Determinations of credibility, including of the respondent, must be based on objective evaluation of relevant evidence – not on inferences based on party status.

3.    Burden of Proof and Burden of Gathering Evidence

VCSU, not the parties, has the burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility. 

Nothing about having to carry the burden of proof suggests that VCSU must desire or advocate for meeting (or not meeting) the burden of proof.  To the contrary, VCSU remains objective and impartial throughout the grievance process, as emphasized by requiring a VCSU’s Title IX personnel involved in a grievance process to serve free from bias and conflicts of interest and to be trained in how to serve impartially and how to conduct a grievance process.  Whether the evidence gathered and presented by VCSU (i.e., gathered by the investigator and with respect to relevant evidence, summarized in an investigative report) does or does not meet the burden of proof, VCSU’s obligation is the same: to respond to the determination regarding responsibility by complying with the grievance process (including effectively implementing remedies for the complainant if the respondent is determined to be responsible).

It is VCSU’s burden to impartially gather evidence and present it so that the decision maker can determine whether VCSU (not either party) has shown that the weight of the evidence reaches or falls short of the standard of evidence selected by VCSU for making determinations.

VCSU should not obtain as part of an investigation any evidence, directly relating to the allegations in the formal complaint, that cannot legally be shared with the parties.

VCSU may use social media profiles, assuming that these social medial profiles are lawfully obtained, as part of the investigation.

4.    Preservation of Information and Tangible Material

Preservation of information and tangible material relating to alleged prohibited conduct is essential for investigations under these procedures 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.

5.    Determination of Relevance of Evidence

The ordinary meaning of the word relevance should be understood and applied in determining relevance of evidence. 

 

a.    Adopting Rules

VCSU will not adopt evidentiary rules of admissibility that contravene those evidentiary requirements prescribed in the grievance process. For example, VCSU will not adopt a rule excluding relevant evidence whose probative value is substantially outweighed by the danger of unfair prejudice.  

Similarly, VCSU will not adopt rules excluding certain types of relevant evidence (e.g., lie detector test results, or rape kits) where the type of evidence is not either deemed “not relevant” (as is, for instance, evidence concerning a complainant’s prior sexual history) or otherwise barred from use under the grievance process (as is, for instance, information protected by a legally recognized privilege). 

However, the grievance process does not prescribe rules governing how admissible, relevant evidence must be evaluated for weight or credibility by VCSU’s decision-maker.  For example, VCSU may adopt a rule regarding the weight or credibility (but not the admissibility) that a decision-maker should assign to evidence of a party’s prior bad acts, so long as such a rule applied equally to the prior bad acts of complainants and the prior bad acts of respondents. VCSU thus has discretion to adopt and apply rules in that regard, so long as such rules do not conflict with federal law and apply equally to both parties.  The procedures outline these concepts in more detail.

b.    Relevance of Non-treatment Records and Information

Non-treatment records and information, such as a party’s financial or sexual history, must be directly related to the allegations at issue in order to be reviewed by the other party and all evidence summarized in the investigative report must be “relevant” such that evidence about a complainant’s sexual predisposition would never be included in the investigative report and evidence about a complainant’s prior sexual behavior would only be included if it meets one of the two narrow exceptions (deeming all questions and evidence about a complainant’s sexual predisposition “not relevant,” and all questions and evidence about a complainant’s prior sexual behavior “not relevant” with two limited exceptions).

c.    Distinction between “Directly Related” and Relevant

“Directly related” may sometimes encompass a broader universe of evidence than evidence that is “relevant.” 

It is important that at the phase of the investigation where the parties have the opportunity to review and respond to evidence, the universe of that exchanged evidence should include all evidence (inculpatory and exculpatory) that relates to the allegations under investigation, without the investigator having screened out evidence related to the allegations that the investigator does not believe is relevant. The parties should have the opportunity to argue that evidence directly related to the allegations is in fact relevant (and not otherwise barred from use under the exceptions listed in policy), and parties will not have a robust opportunity to do this if evidence related to the allegations is withheld from the parties by the investigator. 

For example, an investigator may discover during the investigation that evidence exists in the form of communications between a party and a third party (such as the party’s friend or roommate) wherein the party characterizes the incident under investigation. If the investigator decides that such evidence is irrelevant (perhaps from a belief that communications before or after an incident do not make the facts of the incident itself more or less likely to be true), the other party should be entitled to know of the existence of that evidence so as to argue about whether it is relevant. The investigator would then consider the parties’ viewpoints about whether such evidence (directly related to the allegations) is also relevant, and on that basis decide whether to summarize that evidence in the investigative report. A party who believes the investigator reached the wrong conclusion about the relevance of the evidence may argue again to the decision-maker (i.e., as part of the party’s response to the investigative report, and/or at a live hearing) about whether the evidence is actually relevant, but the parties would not have that opportunity if the evidence had been screened out by the investigator (that is, deemed irrelevant) without the parties having inspected and reviewed it as part of the exchange of evidence.

6.    Party’s Medical Records

VCSU cannot access, consider, disclose, or otherwise use a party’s records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional’s or paraprofessional’s capacity, or assisting in that capacity, and which are made and maintained in connection with the provision of treatment to the party, unless VCSU obtains that party’s voluntary, written consent to do so for a grievance process associated with this policy.

If a party is not an eligible student, (an eligible student is a student who has reached 18 years of age or is attending an institution of postsecondary education), then VCSU must obtain the voluntary, written consent of a parent. For purposes of this section, parent means a parent of a student and includes a natural parent, a guardian, or an individual acting as a parent in the absence of a parent or a guardian. 

VCSU will not access, consider, disclose, or otherwise use some of the most sensitive documents about a party without the party’s (or the parent of the party’s) voluntary, written consent, regardless of whether VCSU already has possession of such treatment records, even if the records are relevant.

7.    Legally Recognized Privileges

VCSU will not require, allow, rely upon, or otherwise use evidence that constitutes, or questions that seek disclosure of, information protected under a legally-recognized privilege, unless that privilege is waived.

This bar on information protected under a legally recognized privilege applies at all stages of the grievance process, including but not limited to the investigator’s gathering of evidence, inspection and review of evidence, investigative report, and the hearing. 

This protection of privileged information also applies to a privilege held by a VCSU.

8.    Redaction of Information

With regard to the sharing of confidential information, the investigator may redact information that is not directly related to the allegations (or that is otherwise barred from use, such as information protected by a legally recognized privilege, or a party’s treatment records if the party has not given written consent) contained within documents or other evidence that are directly related to the allegations, before sending the evidence to the parties for inspection and review.

Redacting “confidential” information is not the same as redacting information that is not “directly related to the allegations” because information that is confidential, sensitive, or private may still be “directly related to the allegations” and thus subject to review by both parties. Similarly, the investigator may redact from the investigative report information that is not relevant, which is contained in documents or evidence that is relevant, because the policy requires the investigative report to summarize only “relevant evidence.”

9.    Ability to Discuss Allegations and Gather and Present Relevant Evidence

VCSU will not restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence.  This provision applies to discussion of “the allegations under investigation” and not to the evidence subject to the parties’ inspection and review under this grievance policy.

a.    Ability to Discuss Information is Limited to Discussion Regarding the Allegations under Investigation

This provision does not apply to discussion of information that does not consist of “the allegations under investigation” (for example, evidence related to the allegations that has been collected and exchanged between the parties and their advisors during the investigation, or the investigative report summarizing relevant evidence sent to the parties and their advisors under the grievance process).

b.    Right to Discuss Information Regarding the Allegations under Investigation Must Not be Abused

This provision in no way immunizes a party from abusing the right to discuss the allegations under investigation by, for example, discussing those allegations in a manner that exposes the party to liability for defamation or related privacy torts, or in a manner that constitutes unlawful retaliation.

c.    Party’s Communication with a Witness or a Potential Witness is Considered Part of a Party’s Right to Meaningfully Participate 

As to whether a party approaching or speaking to a witness could constitute “tampering,” it is believed that generally, a party’s communication with a witness or potential witness must be considered part of a party’s right to meaningfully participate in furthering the party’s interests in the case, and not an “interference” with the investigation. However, where a party’s conduct toward a witness might constitute “tampering” (for instance, by attempting to alter or prevent a witness’s testimony), such conduct also is prohibited under the grievance process.

10.    Written Notice of All Hearings, Investigative Interviews, or Other Meetings

VCSU will provide, to a party whose participation is invited or expected, written notice of the date, time, location, participants, and purpose of all hearings, investigative interviews, or other meetings, with sufficient time for the party to prepare to participate.

11.    Advisors and Others Present

VCSU will provide the parties with the same opportunities to have others present during any grievance proceeding, including their advisor.  In determining whether others should be present during grievance proceedings, it is important that having others present does not violate federal law.  For more information, see XXII. Live Hearings F. Confidential Advisors or Advocates Other than Assigned Advisor Not Permitted at the Hearing.

VCSU requires advisors to use the evidence received for inspection and review as well as the investigative report only for purposes of the grievance process and requires them not to further disseminate or disclose these materials. Additionally, VCSU may use a non-disclosure agreement that complies with federal regulations and other applicable laws.

VCSU may establish restrictions regarding the extent to which the advisor may participate in the proceedings, as long as the restrictions apply equally to both parties.

12.    Equal Opportunity for Parties to Present Witnesses

VCSU will provide an equal opportunity for the parties to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence.

13.    Opportunity for Parties to Inspect and Review Evidence

VCSU will provide both parties an equal opportunity to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint, including the evidence upon which VCSU does not intend to rely in reaching a determination regarding responsibility and inculpatory or exculpatory evidence whether obtained from a party or other source, so that each party can meaningfully respond to the evidence prior to conclusion of the investigation. 

14.    Evidence Provided to Parties

Prior to completion of the investigative report, VCSU will send to each party and the party’s advisor, if any, the evidence subject to inspection and review in an electronic format or a hard copy.  The parties will have at least 10 days to submit a written response, which the investigator will consider prior to completion of the investigative report. 

VCSU will make all such evidence subject to the parties’ inspection and review available at any hearing to give each party equal opportunity to refer to such evidence during the hearing, including for purposes of cross-examination.

Nothing in this policy precludes a party from requesting that VCSU not send the evidence subject to inspection and review to the party’s advisor.

Parties are not permitted to photograph the evidence or disseminate the evidence to the public.  VCSU has discretion to determine what measures are reasonably appropriate to allow the parties to respond to and use the evidence at a hearing, while preventing the evidence from being used in an impermissible manner as long as such measures apply equally to both parties. Such measures may be used to address sensitive materials such as photographs with nudity.

If VCSU obtains police investigation files as part of its investigation of a formal complaint and some of the evidence in the police investigation files is directly related to the allegations raised in a formal complaint then VCSU must provide that evidence to the parties for their inspection and review.

15.    Reasonable Person Standard Used in Determining Sexual Harassment

VCSU will evaluate the sexual harassment requirements of severity, pervasiveness, objective offensiveness, and effective denial of equal access using the reasonable person standard.  The reasonable person standard looks at the situation from the perspective of a reasonable person in the shoes of the complainant, such that the ages, abilities, and relative positions of authority of the individuals involved in an incident will be taken into account.

Cultural or other personal factors that affect a person’s understanding about what constitutes sexual harassment does not negate responsibility.  Thus, if a perpetrator commits misconduct that meets one or more of the three prongs, any misunderstanding due to cultural or other differences does not negate the commission of a sexual harassment violation. Similarly, a respondent’s lack of comprehension that conduct constituting sexual harassment violates the bodily or emotional autonomy and dignity of a victim does not excuse the misconduct, though genuine lack of understanding may (in VCSU’s discretion) factor into the sanction decision affecting a particular respondent.

16.    A Person’s Disability Is Part of the “Surrounding Circumstances” to be Taken into Consideration when Evaluating whether Conduct Meets the Definition of Sexual Harassment

The definition of Title IX sexual harassment includes an element that the allegations constitute conduct that is “objectively offensive,” and that the Supreme Court has stated that application of the “severe, pervasive, and objectively offensive” portion of the definition “depends on a constellation of surrounding circumstances, expectations, and relationships . . . including, but not limited to, the ages of the harasser and the victim . . . .” Any disability of the person accused (or of the person making the allegation) is also part of the “surrounding circumstances” to be taken into consideration when evaluating whether conduct meets the definition of sexual harassment. When conduct committed by a respondent with a disability constitutes sexual harassment (e.g., because the conduct constitutes sexual assault, or because the conduct is severe, pervasive, and objectively offensive), VCSU has flexibility to carefully consider the kind of consequences that should follow in a situation where a respondent with a disability unintentionally committed conduct that constituted sexual harassment, perhaps not realizing the effect of the conduct on the victim. For example, VCSU could determine that counseling or behavioral intervention is more appropriate than disciplinary sanctions for a particular respondent. (We note that in such a circumstance, the complainant is still entitled to remedies designed to restore or preserve the complainant’s equal educational access.)

17.    Investigative Report

At the conclusion of the investigation, VCSU will create an investigative report that fairly summarizes relevant evidence. The requirement for VCSU to summarize and evaluate relevant evidence, and specification of certain types of evidence that must be deemed not relevant or are otherwise inadmissible in a grievance process appropriately directs VCSU to focus investigations and adjudications on evidence pertinent to proving whether facts material to the allegations under investigation are more or less likely to be true (i.e., on what is relevant). At the same time, certain evidence and information not relevant or otherwise not subject to use in a grievance process: information protected by a legally recognized privilege; evidence about a complainant’s prior sexual history; any party’s medical, psychological, and similar records unless the party has given voluntary, written consent; and party or witness statements that have not been subjected to cross-examination at a live hearing.

The investigator may include recommended findings or conclusions in the investigative report.  However, the decision-maker is under independent obligation to objectively evaluate relevant evidence, and thus cannot simply defer to recommendations made by the investigator in the investigative report.

Since the decision-maker must prepare a written determination regarding responsibility that must contain certain specific elements (for instance, a description of procedural steps taken during the investigation), these procedural steps should be included in the investigative report.

If necessary, the investigative report may be amended or supplemented. 

At least 10 days prior to a hearing, the investigator must send a copy of the investigative report (electronic format or a hard copy) to each party and the party’s advisor, if any, for their review and written response.

Parties must submit any evidence that they would like the investigator to consider prior to the finalization of the investigative report.

18.    Non-disclosure Agreement

VCSU may impose on the parties and party advisors restrictions or require a non-disclosure agreement not to disseminate any of the evidence subject to inspection and review or use such evidence for any purpose unrelated to the Title IX grievance process, as long as doing so does not violate federal or other applicable laws.

P.    Dismissal of Formal Complaint

1.    Mandatory Dismissal

VCSU will dismiss the formal complaint, if at any time during the investigation or hearing it determines: 

a.    The alleged conduct, even if proved, does not constitute sexual harassment as defined in this policy;

b.    The alleged conduct did not occur in VCSU’s education program or activity; or

c.    The alleged conduct did not occur against a person in the United States.

While VCSU will dismiss the formal complaint with regard to that conduct for purposes of sexual harassment under title IX, such a dismissal does not preclude VCSU taking action under another provision of VCSU’s policies.  Taking action under other VCSU’s policies does not constitute retaliation under this policy.

2.    Permissive Dismissal

VCSU may dismiss the formal complaint or any allegations therein, if at any time during the investigation or hearing: 

a.    A complainant notifies the Title IX Coordinator in writing that the complainant would like to withdraw the formal complaint or any allegations contained in the formal complaint;

b.    The respondent is no longer enrolled or employed by VCSU; or

c.    Specific circumstances prevent VCSU from gathering evidence sufficient to reach a determination as to the formal complaint or allegations in the formal complaint.

VCSU has discretion to dismiss in situations where the respondent is no longer a student or employee of VCSU.  In making its determination, VCSU can make a dismissal decision based on reasons that may include whether a respondent poses an ongoing risk to VCSU’s community, whether a determination regarding responsibility provides a benefit to the complainant even where VCSU lacks control over the respondent and would be unable to issue disciplinary sanctions, or other reasons.

Likewise, VCSU has discretion to dismiss in situations where a complainant refuses to participate in the grievance process (but also has not decided to send written notice stating that the complainant wishes to withdraw the formal complaint), or where the respondent is not under the authority of VCSU (for instance because the respondent is a non-student, non-employee individual who came onto campus and allegedly sexually harassed a complaint), and VCSU has no way to gather evidence sufficient to make a determination, this provision permits dismissal. 

This provision is not the equivalent of VCSU deciding that the evidence gathered has not met a probable or reasonable cause threshold or other measure of the quality or weight of the evidence, but rather is intended to apply narrowly to situations where specific circumstances prevent VCSU from meeting its burden to gather sufficient evidence to reach a determination. Accordingly, VCSU will not apply a discretionary dismissal in situations where VCSU does not know whether it can meet the burden of proof. Decisions about whether VCSU’s burden of proof has been carried must be made in accordance with the grievance process – not prematurely made by persons other than the decision-maker, without following those adjudication and written determination requirements.

3.    Dismissal Not Permitted for Frivolous or Meritless Allegations

Where a complainant has filed a formal complaint, VCSU is required to investigate the allegations without dismissing based on a conclusion that the allegations are frivolous, meritless, or otherwise unfounded.  The point of the grievance process is to require VCSU to gather and objectively evaluate relevant evidence before reaching conclusions about the merits of the allegations. 

4.    Notice of Dismissal

Upon a dismissal, VCSU will promptly send written notice of the dismissal and reason(s) therefore to both parties simultaneously.

XXII.    Live Hearings

As required by federal law, VCSU will conduct live hearings. Live hearings are private. Live hearings cannot be waived, except when the matter is resolved through an informal resolution process.

Live hearings will be conducted after the completion of the investigative report.  All evidence obtained by the investigator as part of the investigative process will be made available to the parties and the decision-maker at the live hearing.

Where a court-issued restraining order prohibits contact between the parties, federal law does not require any in-person proximity between the parties, or any direct communication between the parties (even virtually, using technology).

A.    Location of Live Hearings

At the request of either party, VCSU will provide for the live hearing to occur with the parties located in separate rooms with technology enabling the decision-maker(s) and parties to simultaneously see and hear the party or the witness answering questions. Live hearings may be conducted with all parties physically present in the same geographic location or, at the VCSU’s discretion, any or all parties, witnesses, and other participants may appear at the live hearing virtually, with technology enabling participants simultaneously to see and hear each other.

B.    Decision Maker

The decision-maker presides over the live hearing and is a different person than the Title IX Coordinator or the investigator.  The decision-maker may be the same person as the hearing officer.

The decision-maker will determine the weight or credibility to be given to each piece of evidence.

For reports of sexual harassment in which the respondent is a faculty member, the Standing Committee on Faculty Rights will serve as the decision-maker. For reports in which the respondent is a staff member, the Staff Personnel Board will serve as the decision-maker.  The procedure outlines and provides further guidance regarding the Standing Committee on Faculty Rights and the Staff Personnel Board.

Hearing officers may be faculty members as long as these hearing officers are trained, do not have any conflict of interest, do not have bias for or against complainants or respondents generally or for an individual complainant or respondent, and comply with the other requirements in this policy.

C.    If a Party Does Not Have an Advisor, VCSU will Provide One

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

D.    Hearing Decorum

A decision-maker may enforce rules to ensure hearing decorum, such as requiring respectful treatment, specifying any objection process, governing timing of hearing and length of breaks, forbidding participants from disturbing the hearing by loudly conferring with each other, etc.

Where the substance of a question is relevant, but the manner in which an advisor attempts to ask the question is harassing, intimidating, or abusive (for example, the advisor yells, screams, or physically “leans in” to the witness’s personal space), VCSU may appropriately, evenhandedly enforce rules of decorum that require relevant questions to be asked in a respectful, non-abusive manner. 

E.    Advisors at the Live Hearing

At the live hearing, the decision-maker(s) will permit each party’s advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility. Such cross-examination at the live hearing must be conducted directly, orally, and in real time by the party’s advisor of choice and never by a party personally. Otherwise, nothing discourages parties from speaking for themselves during the proceedings.  The advisor’s role is limited to cross-examination.

1.    Parties Required to Inform VCSU of Advisor

Parties are required to inform VCSU in advance of the hearing whether the party intends to bring an advisor of choice to the hearing.  

2.    Assignment of Advisors; No Right of Self-Representation with Respect to Conducting Cross-examination

If a party appears at a hearing without an advisor, VCSU will stop the hearing as necessary to permit VCSU to assign an advisor to that party to conduct cross-examination.

A party cannot “fire” an assigned advisor during the hearing.  If the party correctly asserts that the assigned advisor is refusing to “conduct cross-examination on the party’s behalf,” then VCSU is obligated to provide the party an advisor to perform that function, whether that means counseling the assigned advisor to perform that role, or stopping the hearing to assign a different advisor. 

If a party to whom VCSU assigns an advisor refuses to work with the advisor when the advisor is willing to conduct cross-examination on the party’s behalf, then for reasons described above that party has no right of self-representation with respect to conducting cross-examination, and that party would not be able to pose any cross-examination questions. 

3.    Advisors Are Not Subject to Conflicts of Interest or Bias Restrictions

The prohibition of Title IX personnel having conflicts of interest or bias does not apply to party advisors, and thus, the existence of a possible conflict of interest where an advisor is assisting one party and also expected to give a statement as a witness. The perceived “conflict of interest” created under that situation would be taken into account by the decision-maker in weighing the credibility and persuasiveness of the advisor-witness’s testimony. 

4.    Advisor Not Required to Assume Party’s Version of the Events is Accurate

The assigned advisor is not required to assume the party’s version of events is accurate, but the assigned advisor still must conduct cross-examination on behalf of the party.

5.    Advisors Conducting Cross-Examination

The requirement for a party’s advisor to conduct cross-examination on a party’s behalf need not be more extensive than simply relaying the party’s desired questions to be asked of other parties and witnesses. That function could therefore equate to serving as a party’s proxy, or advocating for a party, or neutrally relaying the party’s desired questions. This provision leaves VCSU and assigned advisors wide latitude in deciding how to fulfill the role of serving as an assigned advisor. For the same reason, it is not necessary to forbid assigned advisors from being persons who exercise any administrative or academic authority over the other party; assigned advisors are not obligated to avoid conflicts of interest and can fulfill the limited role described in  this section regardless of the scope of the advisor’s other duties as VCSU’s employee. 

Advisors must conduct cross-examination questioning in a respectful and non-abusive manner.  Advisors must not badger a witness.  Repetition of questions may be deemed irrelevant.

6.    Advisors Refusal to Comply with Decorum Rules

If a party’s advisor of choice refuses to comply with VCSU’s rules of decorum (for example, by insisting on yelling at the other party), VCSU may require the party to use a different advisor. Similarly, if an advisor that VCSU provides refuses to comply with VCSU’s rules of decorum, VCSU may provide that party with a different advisor to conduct cross-examination on behalf of that party.

7.    Limitations on Advisor Participation 

Advisors are limited to asking cross-examination questions during the hearing

F.    Confidential Advisors or Advocates Other than Assigned Advisor Not Permitted at the Hearing

With respect to allowing parties to be accompanied by a confidential advisor or advocate in addition to a party’s chosen or assigned advisor, federal law requires: “The recipient must keep confidential the identity of any individual who has made a report or complaint of sex discrimination, including any individual who has made a report or filed a formal complaint of sexual harassment, any complainant, any individual who has been reported to be the perpetrator of sex discrimination, any respondent, and any witness, except as may be permitted by the FERPA statute or regulations, 20 U.S.C. 1232g and 34 CFR part 99, or as required by law, or to carry out the purposes of [34 CFR part 106], including the conduct of any investigation, hearing, or judicial proceeding arising thereunder.”  This restriction limits VCSU’s ability to authorize the parties to be accompanied at the hearing by persons other than advisors. For example, a person assisting a party with a disability, or a language interpreter, may accompany a party to the hearing without violating § 106.71(a) because such a person’s presence at the hearing is required by law and/or necessary to conduct the hearing.

G.    Equal Opportunity to Present Witnesses

Parties have equal opportunity to present witnesses including fact and expert witnesses, which may include investigators and advisors.  Likewise, parties have an equal right to cross-examine any witness.

H.    Witnesses

Witnesses are not required to testify and may simply choose not to testify because the determination of responsibility usually does not directly impact, implicate, or affect them. 

With respect to a witness who claims to also have been sexually assaulted by the respondent, VCSU has discretion to permit the witness to testify remotely, or to hold the entire live hearing virtually. 

I.    Cross-Examination

The essential function of cross-examination is not to embarrass, blame, humiliate, or emotionally berate a party, but rather to ask questions that probe a party’s narrative in order to give the decision-maker the fullest view possible of the evidence relevant to the allegations at issue.

VCSU has discretion in developing rules and practices that apply to both parties to oversee cross-examination to ensure that questioning is relevant, respectful, and non-abusive.

1.    Cross-Examination Questions Regarding Consent

Where a sexual offense turns on the existence of consent and that issue is contested, evidence of consent is relevant and each party’s advisor can respectfully ask relevant cross-examination questions about the presence or absence of consent. 

2.    Decision-Maker Evaluates and Weighs Evidence

Where a cross-examination question or piece of evidence is relevant, but concerns a party’s character or prior bad acts, the decision-maker cannot exclude or refuse to consider the relevant evidence, but may proceed to objectively evaluate that relevant evidence by analyzing whether that evidence warrants a high or low level of weight or credibility, so long as the decisionmaker’s evaluation treats both parties equally by not, for instance, automatically assigning higher weight to exculpatory character evidence than to inculpatory character evidence.

J.    Party’s or Witness’ Not Submitting to Cross-examination and/or Absence from a Live Hearing

If a party or witness does not submit to cross-examination at the live hearing, the decision-maker will not rely on any statement of that party or witness in reaching a determination regarding responsibility.  The decision-maker may not draw an inference about the determination regarding responsibility based solely on a party’s or witness’s absence from the live hearing or refusal to answer cross-examination or other questions.  (There are no exceptions to this exclusion as there are in legal proceedings.)

For example, where a complainant refuses to answer cross-examination questions but video evidence exists showing the underlying incident, a decision-maker may still consider the available evidence and make a determination.

If the case does not depend on party’s or witness’s statements but rather on other evidence (e.g., video evidence that does not consist of “statements” or to the extent that the video contains non-statement evidence) the decision-maker can still consider that other evidence and reach a determination, and must do so without drawing any inference about the determination based on lack of party or witness testimony.

Not all Title IX sexual harassment allegations rely on party testimony; for example, in some situations video evidence of the underlying incident is available, and in such circumstances even if both parties fail to appear or submit to cross examination the decision-maker would disregard party statements yet proceed to evaluate remaining evidence, including video evidence that does not constitute statements or to the extent that the video contains non-statement evidence. If a party or witness makes a statement in the video, then the decision-maker may not rely on the statement of that party or witness in reaching a determination regarding responsibility.

Even if no party appears for the live hearing such that no party’s statements can be relied on by the decision-maker, it is still possible to reach a determination regarding responsibility where non-statement evidence has been gathered and presented to the decision-maker.

1.    Ramifications of Refusal to Submit to Cross Examination

It is possible that one party’s refusal to submit to cross-examination could result in the other party’s statements remaining under consideration by the decision-maker even though the refusing party’s statements are excluded (e.g., where one party refuses to submit to cross examination, yet that party’s advisor cross-examines the opposing party, whose statements are then considered by the decision-maker), but the opportunity of the refusing party to conduct cross-examination of the opposing party ensures that the opposing party’s statements are not considered unless they have been tested via cross-examination. Because a decision-maker is precluded from drawing any inferences about the determination regarding responsibility based solely on a party’s refusal to be cross-examined, the adjudication can still yield a fair, reliable outcome even where, for example, the refusing party is a respondent exercising a Fifth Amendment right against self-incrimination.  

2.    Cross-Examination Regardless of Presence of a Party 

Where one party appears at the hearing and the other party does not, federal law still states: “If a party does not have an advisor present at the hearing, the recipient must provide without fee or charge to that party an advisor of the recipient ’s choice, who may be, but is not required to be, an attorney, to conduct cross-examination on behalf of that party.” Thus, a party’s advisor may appear and conduct cross-examination even when the party whom they are advising does not appear. 

Similarly, where one party does not appear and that party’s advisor of choice does not appear, a VCSU-provided advisor must still cross-examine the other, appearing party “on behalf of” the non-appearing party, resulting in consideration of the appearing party’s statements but not the non-appearing party’s statements (without any inference being drawn based on the non-appearance). Because the statements of the appearing party were tested via cross-examination, a fair, reliable outcome can result in such a situation.

In cases where a complainant files a formal complaint, and then does not appear or refuses to be cross-examined at the hearing, this provision excludes the complainant’s statements, including allegations in a formal complaint. 

If the respondent “wrongfully procures” a complainant’s absence, for example, through intimidation or threats of violence, and VCSU has notice of that misconduct by the respondent (which likely constitutes prohibited retaliation), VCSU will remedy the retaliation, perhaps by rescheduling the hearing to occur at a later time when the complainant may appear with safety measures in place.  

K.    Prohibition on Reliance of “Statements” Not Submitted to Cross-examination

The prohibition on reliance on “statements” applies not only to statements made during the hearing, but also to any statement of the party or witness who does not submit to cross-examination. “Statements” has its ordinary meaning, but would not include evidence (such as videos) that do not constitute a person’s intent to make factual assertions, or to the extent that such evidence does not contain a person’s statements. Thus, police reports, SANE reports, medical reports, and other documents and records may not be relied on to the extent that they contain the statements of a party or witness who has not submitted to cross-examination. While documentary evidence such as police reports or hospital records may have been gathered during investigation and, if directly related to the allegations inspected and reviewed by the parties, and to the extent they are relevant, summarized in the investigative report, the hearing is the parties’ first opportunity to argue to the decision-maker about the credibility and implications of such evidence. Probing the credibility and reliability of statements asserted by witnesses contained in such evidence requires the parties to have the opportunity to cross-examine the witnesses making the statements.  

L.    Submit to Cross-Examination

Submit to cross-examination means answering those cross-examination questions that are relevant.  The decision-maker is required to make relevance determinations regarding cross-examination in real time during the hearing in part to ensure that parties and witnesses do not feel compelled to answer irrelevant questions for fear of their statements being excluded. If a party or witness disagrees with a decision-maker’s determination that a question is relevant, during the hearing, the party or witness’s choice is to abide by the decision-maker’s determination and answer, or refuse to answer the question.  Unless the decision-maker reconsiders the relevance determination prior to reaching the determination regarding responsibility, the decision-maker would not rely on the witness’s statements.  

The party or witness’s reason for refusing to answer a relevant question does not matter.

1.    Intertwining Statements of Both Parties

Intertwining statements of both parties occurs where evidence involves intertwined statements of both parties (e.g., a text message exchange or e-mail thread) and one party refuses to submit to cross-examination and the other does submit, so that the statements of one party cannot be relied on but statements of the other party may be relied on. If parties do not testify about their own statement and submit to cross-examination, the decision-maker will not have the appropriate context for the statement, which is why the decision-maker cannot consider that party’s statements.

2.    Party or Witness’ Refusal to Answer Questions Posed by the Decision-maker

The provision requiring a party or witness to “submit to cross-examination” to avoid exclusion of their statements does not apply to a party or witness’s refusal to answer questions posed by the decision-maker. If a party or witness refuses to respond to a decision-maker’s questions, the decision-maker is not precluded from relying on that party or witness’s statements. This is because cross-examination (which differs from questions posed by a neutral fact-finder) constitutes a unique opportunity for parties to present a decision-maker with the party’s own perspectives about evidence. This adversarial testing of credibility renders the person’s statements sufficiently reliable for consideration and fair for consideration by the decision-maker, in the context of a Title IX adjudication often overseen by laypersons rather than judges and lacking comprehensive rules of evidence that otherwise might determine reliability without cross-examination.

M.    Type of Evidence Precluded at a Hearing

Parties are precluded from presenting evidence at the hearing that could have been gathered and presented prior to the hearing.  (For example, a party cannot withhold evidence until the hearing.)  However, newly discovered evidence, evidence that was not available at the time of the investigation or prior to the hearing, will be allowed.  Additional time may be granted to the parties to respond to newly discovered evidence.  

 

N.    Decision-maker Will Determine Relevancy of Questions

Prior to a party or witness answering a question, the decision-maker will rule on the relevance of the question and explain any decision to exclude a question as not relevant.  Only relevant cross-examination and other questions may be asked of a party or witness. 

Decision-makers may request, but may not require, that questions by the parties be submitted in advance, to permit the decision-maker to rule on the relevance of questions.

The decision-maker may determine that duplicative questions are irrelevant.  Likewise, where evidence is duplicative of other evidence, the decision-maker may deem the evidence not relevant.

The determination that a question is not relevant is made by applying logic and common sense, but not against a backdrop of legal expertise. Thus, an explanation of how or why the question was irrelevant to the allegations at issue, or is deemed irrelevant (for example, in the case of sexual predisposition or prior sexual behavior information) provides transparency for the parties to understand a decision-maker’s relevance determinations. 

This provision does not require a decision-maker to give a lengthy or complicated explanation; it is sufficient, for example, for a decision-maker to explain that a question is irrelevant because the question calls for prior sexual behavior information without meeting one of the two exceptions, or because the question asks about a detail that is not probative of any material fact concerning the allegations.

As arguments about a relevancy determination may unnecessarily delay the hearing or may be uncomfortable for the parties, parties and advisors are not allowed to challenge relevancy determinations during the hearing. 

Parties may appeal an erroneous relevance determination if they affect the outcome.

O.    Complainant’s Sexual Predisposition or Prior Sexual Behavior (Rape Shield) Are Not Relevant

Questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant, unless such questions and evidence about the complainant’s prior sexual behavior are offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or if the questions and evidence concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent. 

1.    Counter-claims

Some situations will involve counter-claims made between two parties such that a respondent is also a complainant, and in such situations the decision-maker must take care to apply the rape shield protections to any party where the party is designated as a “complainant” even if the same party is also a “respondent” in a consolidated grievance process.

2.    Who Can Raise the Question or Offer Evidence Regarding Consent

The rape shield language does not limit the “if offered to prove consent” exception to when the question or evidence is offered by the respondent. Rather, such questions or evidence could be offered by either party, or by the investigator, or solicited on the decision-maker’s own initiative.  

3.    Sexual Behavior Cannot be Used to Challenge a Complainant’s Subjective Interpretation 

The “unwelcome” element in the first and second prongs of the definition of sexual harassment is subjective.  That is, if conduct is unwelcome to the complainant, that is sufficient to support that element of an allegation of sexual harassment. 

The rape shield language is not extended to encompass situations where the respondent wishes to prove the conduct was “welcome” as opposed to “unwelcome.” Sexual behavior cannot be used to challenge a complainant’s subjective interpretation of conduct as unwelcome. 

P.    Other Important Considerations

No party, including a complainant, must recall details with certain levels of specificity; rather, a party’s answers to cross-examination questions can and should be evaluated by a decision-maker in context, including taking into account that a party may experience stress while trying to answer questions.  Likewise, this policy protects against a party being unfairly judged due to inability to recount each specific detail of an incident in sequence, whether such inability is due to trauma, the effects of drugs or alcohol, or simple fallibility of human memory.

Q.    The Decision-maker has Discretion in Granting Breaks During Live Hearings

The decision-maker may grant breaks during a live hearing to permit a party to recover from a panic attack or flashback.

R.    Accommodations 

Disability accommodations (e.g., a short-term postponement of a hearing date due to party’s need to seek medical treatment for anxiety or depression) may be good cause for a limited extension of the reasonably prompt time frame for the grievance process.

S.    Recording of Live Hearing Available to Parties for Inspection and Review

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

Technology used to comply with this provision should not result in “live streaming” a party in a manner that exposes the testimony to persons outside those participating in the hearing.

XXIII.    Determination Regarding Responsibility

After the conclusion of the live hearing, the decision-maker will issue a written determination regarding responsibility. To reach this determination, the decision-maker will apply the preponderance of the evidence standard in the hearing process.  Under the preponderance of evidence standard, the burden of proof is met when the decision-maker determines that there is a greater than 50% chance that the claim is true. 

The preponderance of the evidence standard is the same standard for formal complaints against employees, including faculty.  The preponderance of the evidence standard applies to all formal complaints of sexual harassment.

A.    Written Determination

The written determination will include:

1.    Identification of the allegations potentially constituting sexual harassment;

2.    A description of the procedural steps taken from the receipt of the formal complaint through the determination, including any notifications to the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, and hearings held; 

3.    Findings of fact supporting the determination;  

4.    Conclusions regarding the application of VCSU’s code of conduct to the facts; 

5.    A statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility, any disciplinary sanctions VCSU imposes on the respondent, and whether remedies designed to restore or preserve equal access to the VCSU’s education program or activity will be provided by VCSU to the complainant; and 

6.    The procedures and permissible bases for the complainant and respondent to appeal. 

The decision-maker will provide the written determination to the parties simultaneously. The determination regarding responsibility becomes final either on the date that VCSU provides the parties with the written determination of the result of the appeal, if an appeal is filed, or if an appeal is not filed, the date on which an appeal would no longer be considered timely. 

If VCSU consolidates formal complaints, VCSU must issue the same written determination regarding responsibility to all parties because the allegations of sexual harassment must arise out of the same facts or circumstances such that the written determination directly relates to all the parties. If VCSU does not consolidate the formal complaints, then VCSU must issue a separate written determination regarding responsibility for each formal complaint. If the formal complaints are not consolidated, then each complainant would receive the written determination regarding responsibility with respect to that complainant’s formal complaint.

The written determination does not need to address evaluation of contradictory facts, exculpatory evidence, “all evidence” presented at a hearing, or how credibility assessments were reached.  

The written determination does not need to be made at the hearing.  

B.    Implementation of Remedies

The Title IX Coordinator is responsible for effective implementation of any remedies provided by the written determination.

C.    Transcript Notations

Conduct records are kept on file in the Office of the Vice President for Student Affairs.  All conduct records are private and may not be disclosed in whole or in part except as provided by law, or by the written authorization of the student.  Conduct records shall be retained separately from the student’s educational record.  The only disciplinary actions reflected on the official transcript shall be suspension or expulsion.

Conduct records containing violations that resulted in sanctions of less than suspension or expulsion are retained for a period of seven years after a student graduates, withdraws, or transfers and are kept in a conduct file in the Vice President for Student Affairs Office.  In cases where students receive a sanction of suspension or expulsion, records may be retained indefinitely.

If the underlying determination of responsibility is vacated for any reason, the transcript notation will be removed.

XXIV.    Remedies and Disciplinary Sanctions

Remedies offered after the conclusion of the grievance process on a finding of responsibility must be designed to restore or preserve equal access to the education program or activity. Remedies need not be non-disciplinary or non-punitive and need not avoid burdening the respondent.

Disciplinary sanctions imposed after the conclusion of the grievance process shall be assessed pursuant to VCSU’s code of conduct, student handbook, employee handbook, or similar document which sets possible disciplinary sanctions for violations of Title IX or code of conduct and shall be proportional to the determination of responsibility.

After a determination of responsibility, the decision-maker may impose one or more of the following sanctions and remedies:  

For Students:

1.    Measures similar to supportive measures specified under this policy; 

2.    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);  

3.    Reprimand delivered either verbally or in writing (if a written reprimand is issued, a copy shall be retained on file in the Office of the Vice President for Student Affairs); 

4.    Conduct probation indicates that further violation may result in suspension.  Conduct probation may not be imposed for more than one year;

5.    Suspension from participation in university organizations, events, and activities;

6.    University suspension suspends a student from enrolling for classes for a determined length of time.  While on such suspension, the student may not obtain academic credit at VCSU or elsewhere toward the completion of a VCSU degree;

7.    University expulsion expels a student from VCSU permanently.  The student is barred from the University;

For Faculty and staff:

1.    Measures similar to supportive measures specified under this policy; 

2.    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);  

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 faculty or staff member has had an opportunity to read the material and has signed that he or she has read it.  If the faculty or staff member refuses to sign the copy, a VCSU representative shall indicate on the copy that the faculty or staff member was shown the material, was requested to sign the copy, and that the faculty or staff member refused to sign the copy to be filed.  The faculty or staff member may file an answer to the material.”);  

7.    Demotion; 

8.    Suspension; 

9.    Salary reduction or loss of salary; 

10.    Restriction or loss of privileges; 

11.    Dismissal. 

This published range of disciplinary sanctions is purely for the purposes of notice as to the possibility of a range of remedies and disciplinary sanctions and does not reflect the probability that any particular outcome will occur. 

By describing the range, or listing the possible disciplinary sanctions, VCSU is notifying its community of the possible consequences of a determination that a respondent is responsible for Title IX sexual harassment.  This provision is thus intended to increase the transparency and predictability of the grievance process, but it is not intended to unnecessarily restrict VCSU’s ability to tailor disciplinary sanctions to address specific situations.

XXV.    Appeals

VCSU offers both parties an appeal from a determination regarding responsibility, and from the dismissal of a formal complaint (or any allegations within the formal complaint).  The following may form the basis for an appeal: 

1.    Procedural irregularity that affected the outcome of the matter;

2.    New evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made, that could affect the outcome of the matter; 

3.    The Title IX Coordinator, investigator, or decision-maker had a conflict of interest or bias for or against complainants or respondents generally or the individual complainant or respondent that affected the outcome of the matter; or

4.    The severity or proportionality of sanctions.

A.    Procedural Defects on Appeal

Nothing precludes a party from raising the existence of procedural defects that occurred during the grievance process during a live hearing, and the Title IX regulations ensure that whether or not a party has observed or objected to a procedural defect during the hearing, the party may still appeal on the basis of procedural irregularity after the determination regarding responsibility has been made.

B.    Complainant Does Not Need to File an Appeal to Challenge Remedies

A complainant entitled to remedies should not need to file an appeal to challenge VCSU’s election of remedies.  The Title IX Coordinator is responsible for effective implementation of remedies. This permits a complainant to work with the Title IX Coordinator to select and effectively implement remedies designed to restore or preserve the complainant’s equal access to education.

C.    Requirements for Appeals

As to all appeals, VCSU will: 

1.    Notify the non-appealing party in writing when an appeal is filed and implement appeal procedures equally for both parties;  

2.    Ensure that the appeal decision-maker is not the same person as the decision-maker that reached the determination regarding responsibility or dismissal, the investigator, or the Title IX Coordinator; 

3.    Ensure that the decision-maker for the appeal complies with the standards set forth for decision-makers at the hearing level (training, impartiality, relevant questions, etc.);

4.    Give both parties a reasonable, equal opportunity to submit a written statement in support of, or challenging, the outcome; 

5.    Issue a written decision describing the result of the appeal and the rationale for the result; and 

6.    Provide the written decision simultaneously to both parties.

D.    Limitations on Timing for Appeal

In the event that a disciplinary sanction of suspension or expulsion is imposed by the decision-maker, VCSU will provide a method of reviewing an appeal from a determination regarding responsibility or dismissal for a period of at least one year following the original decision.  Appeals from lesser discipline must be submitted within five (5) days of the final determination. 

E.    Limitations on Grounds for Appeal

Although a complainant may appeal on the ground that the remedies are not designed to restore or preserve the complainant’s access to the VCSU’s education program or activity, a complainant is not entitled to a particular sanction against the respondent. 

F.    Status of Remedies and Sanctions When an Appeal is Filed

In order for an appeal, by either party, to be fully effective, VCSU must wait to act on the determination regarding responsibility while maintaining the status quo between the parties through supportive measures designed to ensure equal access to education.

G.    Final Determination

A “final determination means the written determination containing the information required in the written determination, as modified by any appeal by the parties.

XXVI.    Informal Resolution

VCSU does not require the parties to participate in an informal resolution process and does not offer an informal resolution process unless a formal complaint is filed. However, at any time prior to reaching a determination regarding responsibility, VCSU may facilitate an informal resolution process, such as mediation, that does not involve a full investigation and adjudication, provided that VCSU:

A.    Provides to the parties a written notice disclosing: 

1.    The allegations;

2.    The requirements of the informal resolution process including the circumstances under which it precludes the parties from resuming a formal complaint arising from the same allegations, provided, however, that at any time prior to agreeing to a resolution, any party has the right to withdraw from the informal resolution process and resume the grievance process with respect to the formal complaint, and any consequences resulting from participating in the informal resolution process, including the records that will be maintained or could be shared;

B.    Obtains the parties’ voluntary, written consent to the informal resolution process; and 

C.    Does not offer or facilitate an informal resolution process to resolve allegations that an employee or faculty member sexually harassed a student.  

A.    Informal Resolutions May Include Disciplinary Measures

Informal resolutions may reach agreements between the parties, facilitated by VCSU, that include similar measures but that also could include disciplinary measures, while providing finality for both parties in terms of resolving allegations raised in a formal complaint of sexual harassment. 

B.    Written Notice

Written notice given to both parties before entering an informal resolution process must indicate what records would be maintained or could be shared in that process. Importantly, records that could potentially be kept confidential could include the written notice itself, which would not become a public record. VCSU has discretion to make these determinations. 

This requirement effectively puts both parties on notice as to the confidentiality and privacy implications of participating in informal resolution. VCSU remains free to exercise its judgment in determining the confidentiality parameters of the informal resolution process they offer to parties. 

C.    Parties Do Not Need to Confront Each Other

Nothing requires an informal resolution process to involve the parties confronting each other or even being present in the same room; mediations are often conducted with the parties in separate rooms and the mediator conversing with each party separately.

D.    Confidentiality of Informal Resolution

The informal resolution process will be kept confidential.  Records, evidence, and other information maintained or shared during the informal resolution process will be considered confidential.

E.    Method of Delivery for Written Notices and Disclosures

Written notices and disclosures will be provided via email.  Electronic disclosures and signatures are valid.  

F.    Informal Resolution Agreements to Be Treated as Contracts

Informal resolution agreements to be treated as contracts.  The parties remain free to negotiate the terms of the agreement and, once entered into, it may become binding according to its terms.

G.    Informal Resolution Facilitators May Not be Called as Witnesses

Informal resolution facilitators may not be called as witnesses in subsequent formal grievance processes.  

H.    VCSU Has Flexibility and Discretion for Repeat Offenses

With respect to VCSU’s potential legal liability where the respondent acknowledges 

commission of Title IX sexual harassment (or other violation of VCSU’s policy) during an informal resolution process, yet the agreement reached allows the respondent to remain on campus, and the respondent commits Title IX sexual harassment (or violates VCSU’s policy) again, VCSU has the flexibility and discretion to determine under what circumstances respondent should be suspended or expelled from campus as a disciplinary sanction, whether that follows from an informal resolution or after a determination of responsibility under the formal grievance process. 

VCSU may take into account legal obligations unrelated to Title IX, and relevant Title IX case law under which Federal courts have considered a recipient’s duty not to be deliberately indifferent by exposing potential victims to repeat misconduct of a respondent, when considering what sanctions to impose against a particular respondent. 

XXVII.    Training

While there is no mandated frequency of training, VCSU will ensure that Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process, receive training on the following areas:

A.    The definition of sexual harassment;

B.    The scope of VCSU’s education program or activity;

C.    How to conduct an investigation and grievance process including hearings, appeals, and informal resolution processes, as applicable; and 

D.    How to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias. 

Additionally, decision-makers will receive training on the following areas: 

A.    Any technology to be used at a live hearing; and 

B.    Issues of relevance of questions and evidence, including when questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant. 

VCSU will ensure that investigators receive training on issues of relevance to create an investigative report that fairly summarizes relevant evidence.

Any materials used to train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process, must not rely on sex stereotypes and must promote impartial investigations and adjudications of formal complaints of sexual harassment.

To the extent VCSU intends to engage with shared services and personnel, institutions shall work the NDUS Office to ensure that the foregoing training is sufficient and, to the extent practicable, uniform, along with any questions of shared services and costs.

All training materials used to train the foregoing individuals will be made available to the public by posting on VCSU’s website.

XXVIII.    Recordkeeping

VCSU will maintain for a period of seven years records of:

A.    Each sexual harassment investigation including any determination regarding responsibility;

B.    Any audio or audiovisual recording or transcript required in this policy;

C.    Any disciplinary sanctions imposed on the respondent;

D.    Any remedies provided to the complainant designed to restore or preserve equal access to VCSU’s education program or activity; 

E.    Any appeal and the result therefrom; 

F.    Any informal resolution and the result therefrom; and

G.    All materials used to train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process. VCSU will make these training materials publicly available on its website.

It is important to recognize the implications of the requirement of “each sexual harassment investigation” Any record that VCSU creates to investigate an allegation, regardless of later dismissal or other resolution of the allegation, must be maintained for seven years. Therefore, VCSU must preserve all records, even those records from truncated investigations that led to no adjudication because the acts alleged did not constitute sex discrimination under Title IX and the formal complaint (or allegation therein) was dismissed. 

For each response required under this policy, VCSU will create, and maintain for a period of seven years records of any actions (the date of the record’s creation begins the seven year retention period), including any supportive measures, taken in response to a report or formal complaint of sexual harassment. In each instance, VCSU will document the basis for its conclusion that its response was not deliberately indifferent, and document that it has taken measures designed to restore or preserve equal access to VCSU’s education program or activity. If VCSU does not provide a complainant with supportive measures, then VCSU must document the reasons why such a response was not clearly unreasonable in light of the known circumstances. The documentation of certain bases or measures does not limit VCSU in the future from providing additional explanations or detailing additional measures taken.

XXIX.    Retaliation

VCSU nor any other person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by title IX, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this policy. 

A.    Charges against an Individual for Code of Conduct Violations that Do Not Involve Sex Discrimination or Sexual Harassment, but Arise out of the Same Facts or Circumstances as a Report or Complaint of Sex Discrimination

Intimidation, threats, coercion, or discrimination, including charges against an individual for code of conduct violations that do not involve sex discrimination or sexual harassment, but arise out of the same facts or circumstances as a report or complaint of sex discrimination, or a report or formal complaint of sexual harassment, for the purpose of interfering with any right or privilege secured by title IX or this part, constitutes retaliation. 

This section is intended to draw attention to the fact that punishing a complainant with non-sexual harassment conduct code violations (e.g., “consensual” sexual activity when the complainant has reported the activity to be nonconsensual, or underage drinking, or fighting back against physical aggression) is retaliation when done for the purpose of deterring the complainant from pursuing rights under Title IX. This provision applies to respondents as well.

For example, if VCSU punishes a complainant or respondent for underage drinking, arising out of the same facts or circumstances as the report or formal complaint of sexual harassment, then such punishment constitutes retaliation if the punishment is for the purpose of interfering with any right or privilege secured by Title IX or its implementing regulations. If VCSU always takes a zero tolerance approach to underage drinking in its code of conduct and always imposes the same punishment for underage drinking, irrespective of the circumstances, then imposing such a punishment would not be “for the purpose of interfering with any right or privilege secured by” Title IX and thus would not constitute retaliation. 

VCSU has adopted a leniency provision designed to encourage students to report sexual harassment. Under certain circumstances, students who report sexual misconduct (whether as a victim or witness) will not face school disciplinary charges for school code of conduct violations relating to the sexual misconduct incident (e.g., underage drinking at the party where the sexual harassment occurred). 

B.    Exercise of First Amendment Rights Does Not Constitute Retaliation

The exercise of rights protected under the First Amendment does not constitute retaliation prohibited under this policy.

C.    In Bad Faith, Charging an Individual with a Code Violation for Making a Materially False Statement

Charging an individual with a code of conduct violation for making a materially false statement in bad faith in the course of a grievance proceeding under this part does not constitute retaliation prohibited under this policy, provided, however, that a determination regarding responsibility, alone, is not sufficient to conclude that any party made a materially false statement in bad faith.

D.    Grievance Procedure for Sex Discrimination under Title IX May Be Used for Retaliation Complaints

Complaints alleging retaliation may be filed according to the grievance procedures for sex discrimination under Title IX.

VCSU’s ability to respond to retaliation will depend, in part, on the relationship between VCSU and the individual who commits the retaliation. For example, if a respondent’s friend who is not a VCSU student or employee and is not otherwise affiliated with VCSU threatens a complainant, then VCSU should still respond to such a complaint of retaliation to the best of its ability. Even though VCSU may not require the person accused of retaliation to participate in VCSU’s equitable grievance procedures, VCSU will process the complaint alleging retaliation in accordance with its equitable grievance procedures and may decide to take appropriate measures, such as issuing a no-trespass order. 

XXX.    Intersection with Other Laws

A.    Not Restrict First Amendment Rights 

VCSU will not restrict any rights that would otherwise be protected from government action by the First Amendment of the U.S. Constitution.

B.    VCSU Will Not Deprive an Individual of Other Constitutional Rights

VCSU will not deprive a person of any rights that would otherwise be protected from government action under the Due Process Clauses of the Fifth and Fourteenth Amendments of the U.S. Constitution.  Nor will VCSU restrict any other rights guaranteed against government action by the U.S. Constitution.

C.    Intersection of Title VII

VCSU will not deprive a person of any rights under title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. or any regulations promulgated thereunder.

VCSU recognizes that other laws such as Title VII may have a different standard and impose different requirements. There is no inherent conflict between Title VII and Title IX, and VCSU may comply with the requirements under both Title VII and Title IX.

VCSU may not be able to use affirmative defenses to sexual harassment under Title VII for the purposes of Title IX, but this does not in any way derogate an VCSU’s affirmative defenses to sexual harassment under Title VII.

D.    FERPA

1. Disclosure During Grievance Process

Whether FERPA applies to records that are part of a grievance process depends on the circumstances. For example, education records under FERPA may not be implicated at all in a formal complaint of sexual harassment by a non-student complainant against a non-student respondent. 

VCSU is not required to share any information in records obtained as part of an investigation that is not directly related to the allegations in a formal complaint, and FERPA may even require redaction of such information. 

2.    Requirement to Destroy Records with Personally Identifiable Information is Not Applicable to Grievance Process

The requirement to destroy records with personally identifiable information at the conclusion of the grievance process violates the Title IX record-keeping requirements.  Such a requirement also may violate record-keeping requirements under the Clery Act, which provides for a seven-year retention period for sexual assault, dating violence, domestic violence, and stalking.

3.    Disclosure of a Title IX Investigation or Proceeding with Other Institutions

An exception in FERPA and its implementing regulations at 20 U.S.C. 1232g(b)(1)(B) and 34 CFR 99.31(a)(2) and 99.34 permits a school to disclose, without prior, written consent, personally identifiable information contained in a student’s education records to another school in which the student seeks or intends to enroll, or where the student is already enrolled so long as the disclosure is for purposes related to the student’s enrollment or transfer. VCSU may make the disclosure if it has included in its annual notification of FERPA rights a statement that it forwards education records in such circumstances. Otherwise, VCSU will make a reasonable attempt to notify the parent or eligible student in advance of making the disclosure, unless the parent or eligible student has initiated the disclosure. VCSU will also provide a parent or an eligible student with a copy of the records that were released, if requested by the parent or eligible student, and an opportunity to seek to amend the education records. 

4.    Disclosure of Disciplinary Information Regarding Conduct that Posed a Significant Risk to Safety or Well-Being 

FERPA and its implementing regulations also provide that an educational agency or institution may include and disclose, without prior, written consent, appropriate information in a student’s education records concerning disciplinary information taken against such student for conduct that posed a significant risk to the safety or well-being of that student, other students, or other members of the school community to teachers and school officials, within the agency or institution or in other schools, who have legitimate educational interests in the behavior of the student.  

Similarly, the Clery Act, 20 U.S.C. 1092(g)(8)(B)(ii), and its implementing regulations, 34 CFR 668.46(k)(3)(iv), require an institution to provide the result of a proceeding, including any sanctions imposed by the institution, to both parties. In this manner, VCSU has discretion as to whether to share information with another school about a respondent.

XXXI.    Severability

If any provision of this policy or its application to any person, act, or practice is held invalid, the remainder of the policy or the application of its provisions to any person, act, or practice shall not be affected thereby.

XXXII.    Preemption

To the extent of a conflict between State or local law, title IX will prevail.

Any conflicts between this policy and existing policy or procedure, or student or employee handbook will be resolved in favor of this policy.

Title IX Grievance Process Procedure

I.    Purpose and Scope

This procedure corresponds with the Title IX Sexual Harassment policy.  A central purpose of this Grievance Process is to establish procedural due process protections to ensure a fair and reliable factual determination when investigating and adjudicating a formal complaint of sexual harassment. 

II.    Definitions

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

A.    Actual knowledge: Notice of sexual harassment or allegations of sexual harassment to a school’s Title IX Coordinator or any official of the school who has authority to institute corrective measures on behalf of the school. Imputation of knowledge based solely on vicarious liability or constructive notice is insufficient to constitute actual knowledge.

B.    Complainant: an individual who is alleged to be the victim of conduct that could constitute sexual harassment. A person may be a complainant even where no formal complaint has been filed and no grievance is pending.

There is a difference between reporting sexual harassment and filing a complaint.  Anyone can file a report of sexual harassment.  There is no requirement that the complainant must be a student, employee, or other designated relationship with VCSU in order to be treated as a “complainant” entitled to a prompt, non-deliberately indifferent response.

However, not everyone can file a formal complaint. At the time of filing a formal complaint, a complainant must be participating in or attempting to participate in the education program or activity of VCSU.

C.    Confidential resources: Confidential resources do not have an obligation to report prohibited conduct to the Title IX Coordinator 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 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 

D.    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 sexual activity.  Silence or lack of resistance, in and of itself, 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 or 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 given, 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 a 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 or, 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.

E.    Dating violence: violence committed by the respondent:

1.    Who is or has been in a social relationship of a romantic or intimate nature with the complainant; and

2.    Where the existence of such a relationship shall be determined based on a consideration of the following factors:

a.    The length of the relationship

b.    The type of the relationship

c.    The frequency of interaction between the persons involved in the relationship

F.    Deliberate indifference: a response to sexual harassment that is clearly unreasonable in light of the information known to VCSU at the time. 

G.    Domestic violence: includes felony or misdemeanor crimes of violence committed by the respondent, who is: 

1.    A current or former spouse or intimate partner of the complainant; 

2.    A person with whom the complainant shares a child in common;

3.    A person who is cohabitating with or has cohabitated with the complainant as a spouse or intimate partner;

4.    A person similarly situated to a spouse of the complainant

5.    Any person against whose acts the complainant is protected by N.D.C.C. ch. 14-07.1. 

H.    Education program or activity: includes locations, events, or circumstances over which VCSU exercises substantial control over both the respondent and the context in which the sexual harassment occurs, and also includes any building owned or controlled by a student organization that is officially recognized by VCSU. 

Program or activity encompasses all the VCSU’s operations, including computer and internet networks, digital platforms, and computer hardware or software owned or operated by, or used in the operations of VCSU.

An education program or activity includes circumstances over which VCSU exercised substantial control over both the respondent and the context in which the harassment occurred, such that the factual circumstances of online harassment must be analyzed to determine if it occurred in an education program or activity. For example, a student using a personal device to perpetrate online sexual harassment during class time may constitute a circumstance over which VCSU exercises substantial control.

This policy applies to sexual harassment perpetrated through use of cell phones or the internet.

Since VCSU may dictate the terms under which they recognize student organization that own or control buildings, VCSU does not officially recognize any student organization’s housing arrangements.  For example, if individuals belonging to the same athletic team choose to live in a house together, that does not constitute official recognition.  

 

I.    Effectively denies equal education: This element requires that a person’s “equal” access to education has been denied, not that a person’s total or entire educational access has been denied.  This element identifies severe, pervasive, objectively offensive unwelcome conduct that deprives the complainant of equal access, measured against the access of a person who has not been subjected to the sexual harassment.  This element does not require that a complainant has already suffered loss of education before being able to report sexual harassment.  A complainant does not need to drop out of school, fail a class, have a panic attack, or otherwise reach a “breaking point” in order to report and receive a supportive response to sexual harassment.

J.    Exculpatory evidence: evidence that substantiates non-responsibility.

K.    Final determination: following a hearing, the decision-makers’ written determination containing the required information.  The final determination may be modified by an appeal.

L.    Fondling: The touching of the private body parts of another person for the purpose of sexual gratification, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental incapacity.

M.    Formal complaint:  a document filed by a complainant (which either contains the complainant’s signature or indicates that the complainant is the one filing the complaint) or signed by the Title IX Coordinator alleging sexual harassment against a respondent and requesting that VCSU investigate the allegation of sexual harassment.

N.    Incest: Sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.

O.    Inculpatory evidence: evidence that substantiates responsibility.

P.    May listen: “May listen” employees are employees who may listen to a student’s or employee’s disclosure of sexual harassment without being required to report it to the Title IX Coordinator.  May listen employees are: administrators, directors, and faculty.  

Q.    Must report but only with consent: “Must report but only with consent” employees are employees who must report sexual harassment to the Title IX Coordinator but only with the complainant’s consent.  Must report but only with consent employees are: resident assistants, coaches, assistant coaches, and volunteer coaches.

R.    Notice: Notice results whenever a Title IX Coordinator or any official with authority: witnesses sexual harassment; hears about sexual harassment or sexual harassment allegations from a complainant or a third party (e.g., the complainant’s parent, friend, or peer); receives a written or verbal complaint about sexual harassment or sexual harassment allegations; or by any other means.

S.    Officials with authority: An official of VCSU who has authority to institute corrective measures.  Officials with authority are: Title IX Coordinator, Vice President for Academic Affairs, Vice President for Student Affairs, Director of Human Resources, and the Director for Athletics.

T.    Preponderance of the evidence: Under the preponderance of evidence standard, the burden of proof is met when the party with the burden convinces the fact finder that there is a greater than 50% chance that the claim is true. The preponderance of the evidence standard will be used in the hearing process.

U.    Quid pro quo sexual harassment: A school employee conditioning the provision of an aid, benefit, or service of VCSU on an individual’s participation in unwelcome sexual conduct. 

“An aid, benefit or service” requirement may be communicated expressly or impliedly.   The interpretation of the quid pro quo harassment is broadly defined to encompass situations where the quid pro quo nature of the incident is implied from the circumstances.  

Quid pro quo harassment does not need to be severe and pervasive.  Abuse of authority in the form of even a single instance of quid pro quo harassment (where the conduct is not “pervasive”) is inherently offensive and serious enough to jeopardize equal educational access. 

When a complainant acquiesces to unwelcome conduct in a quid pro quo context to avoid potential negative consequences, such “consent” does not necessarily mean that the sexual conduct was not “unwelcome,” or that prohibited quid pro quo harassment did not occur.  Thus, even if a complainant in a quid pro quo situation pretended to welcome the conduct (for instance, due to fear of negative consequences for objecting to the employee’s suggestions or advances in the moment), the complainant’s subjective statement that the complainant found the conduct to be unwelcome suffices to meet the “unwelcome” element.

V.    Rape: Penetration, no matter how light, of the vagina or anus of the complainant with any body part or object by the respondent, or oral penetration of the complainant by a sex organ of the respondent, without the consent of the complainant.

W.    Respondent: an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment.  A person may be a respondent even where no formal complaint has been filed and no grievance process is pending.  A group or organization cannot be a respondent.

X.    Remedies: remedies are designed to restore or preserve equal access to VCSU’s education program or activity.  Such remedies may include the same individualized services as described as supportive measures.  Remedies need not be non-disciplinary and need not avoid burdening the respondent.

Y.    Sexual assault: Either rape, fondling, incest, statutory rape, or any of the sexual offenses listed in N.D.C.C. ch 12.1-20 or by the FBI’s Uniform Crime Reporting system. 

The following are considered sexual offenses under North Dakota law:

1.    Sexual imposition (engaging in a sexual contact or sexual act by threat or coercion) (N.D.C.C. 12.1-20-04);

2.    Corruption or solicitation of minors (N.D.C.C. 12.1-20-05);

3.    Luring minors by computer or other electronic means (N.D.C.C. 12.1-20-05.1);

4.    Sexual exploitation by therapist (N.D.C.C. 12.1-20-05.1); 

5.    Sexual assault (engaging in unwanted sexual contact) (N.D.C.C. 12.1-20-07);

6.    Fornication (engaging in a sexual act in a public place) (N.D.C.C. 12.1-20-08);

7.    Indecent exposure (N.D.C.C. 12.1-20-12.1);

8.    Surreptitious intrusion (invasion of privacy) (N.D.C.C. 12.1-20-12.2); and

9.    Sexual extortion (N.D.C.C. 12.1-20-12.3).

Z.    Sexual harassment:  Conduct on the basis of sex that satisfies one or more of the following:

1.    A school employee conditioning the provision of an aid, benefit, or service of VCSU on an individual’s participation in unwelcome sexual conduct (quid pro quo); or

2.    Unwelcome conduct that a reasonable person would determine is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to VCSU’s education program or activity; or

3.    Sexual assault, dating violence, domestic violence, or stalking as defined in this section.

The means for perpetrating sexual harassment may include use of electronic, digital, and similar methods. The sexual harassment definition does not make sexual harassment dependent on the method by which the harassment is carried out; use of e-mail, the internet, or other technologies may constitute sexual harassment as much as use of in-person, postal mail, handwritten, or other communications.

“On the basis of sex” does not require probing the subjective motive of the respondent (e.g., whether a respondent subjectively targeted a complainant because of the complainant’s or the respondent’s actual or perceived sex, as opposed to because of anger or romantic feelings). Where conduct is sexual in nature, or where conduct references one sex or another, that suffices to constitute conduct “on the basis of sex.”

Sexual harassment includes but is not limited to unwelcome conduct of a sexual nature and may consist of unwelcome conduct based on sex or sex stereotyping.  VCSU will not tolerate sexual harassment against any student, including LGBTQ students.

AA.    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 policy: President, Vice-Presidents, Chief Information Officer, Director of Marketing, Athletic Director, and Director of the Foundation.  Likewise, for purposes of this policy, coaches and assistant coaches are considered staff.

BB.    Staff Personnel Board: The VCSU President will appoint three individuals who are trained in Title IX issues to a Staff Personnel Board (Board).  

CC.    Stalking: engaging in a course of conduct directed at a specific person that would cause a reasonable person to:

1.    Fear for his or her safety or the safety of others; or

2.    Suffer substantial emotional distress.

DD.    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.

EE.    Statutory rape: Sexual intercourse with a person who is under the statutory age of consent in North Dakota.

FF.    Supportive measures: Non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, without fee or charge to the complainant or respondent.  

Supportive measures are available before or after the filing of a formal complaint or where no formal complaint has been filed.  

Supportive measures are designed to restore or preserve equal access to VCSU’s education program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties or VCSU’s educational environment, or deter sexual harassment.

The purpose of supportive measures is equal access to education.

Supportive measures are available to complainants and respondents.

Supportive measures may include: counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, campus escort services, mutual restrictions on contact between the parties, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of the campus, and other similar measures. 

GG.    Title IX Coordinator:

Kaleen Peterson

Director for Student Academic Services

McFarland Hall 322B

101 College Street SW

701-845-7302

kaleen.peterson@vcsu.edu

III.    Application, Time Limits, Calculation of Days, Parental Involvement

A.    Application

This procedure applies to individuals in the United States who are involved in VCSU education programs or activities.  Involvement extends to individuals applying for admission and employment. 

This procedure may apply to reports and formal complaints by employees against students and other employees and may apply to third-party complaints against students or employees. This procedure may apply to students who are full-time employees and volunteers.

Education program or activity includes locations, events, or circumstances over which VCSU exercises substantial control over both the respondent and the context in which the sexual harassment occurred.  

Location also includes any building owned or controlled by a student organization that is officially recognized by VCSU (such as a fraternity or sorority house). 

This procedure applies to all VCSU’s education programs or activities, whether such programs or activities occur on-campus or off-campus. 

B.    Time Limits

There are no time limits in reporting sexual harassment.

C.    Calculation of Days

Unless otherwise stated, business days will be used in calculating days.

D.    Parental Involvement

If a parent or guardian has a legal right to act on a person’s behalf, the parent or guardian may always be the one who files a formal complaint for a complainant. This parental or guardianship authority to act on behalf of a party applies throughout all aspects of a Title IX matter, from reporting sexual harassment to considering appropriate and beneficial supportive measures, and from choosing to file a formal complaint to participating in the grievance process.

Remedies offered after the conclusion of the grievance process on a finding of responsibility must be designed to restore or preserve equal access to the education program or activity. Remedies need not be non-disciplinary or non-punitive and need not avoid burdening the respondent.

IV.  Report of Sexual Harassment

Any person may report sex discrimination, including sexual harassment (whether or not the person reporting is the person alleged to be the victim of conduct that could constitute sex discrimination or sexual harassment).  A report may be made in person, by mail, by telephone, or by electronic mail, using the contact information listed for the Title IX Coordinator, by anonymous reporting, or by any other means that results in the Title IX Coordinator receiving the person’s verbal or written report, regardless of the time of day.  

Kaleen Peterson: Title IX Coordinator

Director for Student Academic Services

McFarland Hall 322B

101 College Street SW

701-845-7302

kaleen.peterson@vcsu.edu

V.    VCSU’s Response to Allegations of Sexual Harassment and Pre-Grievance Process

Regardless of whether a formal complaint is filed, VCSU will respond promptly and without deliberate indifference when it has actual knowledge of sexual harassment or allegations of sexual harassment within its educational program or activity in the United States. Notice to the Title IX Coordinator or any official with authority conveys actual knowledge.  

Once VCSU has actual knowledge of sexual harassment, VCSU will respond promptly in a manner that is not deliberately indifferent.  In other words, VCSU will not respond unreasonably in light of the known circumstances.

A.    Title IX Coordinator Will Promptly Contact Complainant

The Title IX Coordinator will promptly contact the complainant to discuss the availability of supportive measures, consider the complainant’s wishes with respect to supportive measures, inform the complainant of the availability of supportive measures without the filing of a formal complaint, and explain to the complainant the process of filing a formal complaint.  

A Complainant may bring a supportive friend to the initial meeting with the Title IX Coordinator.

At the initial meeting, the Title IX Coordinator may:

•    Assess the complainant’s safety and well-being;

•    Inform the complainant that the Title IX Coordinator 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 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 officials 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; procedural advocacy; legal resources; visa and immigration assistance; student financial aid; and other resources both on campus and in the community, and how to request or contact such resources;

•    Inform the complainant of the right to seek appropriate and supportive measures and how to request such measures;

•    Inform the complainant of the right to file a formal complaint and seek resolution under these procedures; provide the complainant with an overview of these procedures; including the informal process option; and inform the complainant of the right to withdraw the formal complaint at any time and to decline or discontinue resolution under these procedures as any time, but that declining to participate in an investigation and/or the hearing process under these procedures 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 under these procedures, and discuss with the complainant any concerns or barriers to participating in any investigation and resolution process under these procedures;

•    Explain that VCSU prohibits retaliation, that retaliation constitutes prohibited conduct under these procedures, 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 Student Conduct.

B.    Supportive Measures

Supportive measures are non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, without fee or charge to the complainant or respondent, before or after the filing of a formal complaint or where no formal complaint has been filed.  The purpose of supportive measures is equal access to education.

Such measures are designed to restore or preserve equal access to VCSU’s education program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties or VCSU’s educational environment, or deter sexual harassment. 

Supportive measures may include:

1.    Counseling;

2.    Extensions of deadlines or other course-related adjustments;

3.    Modifications of work or class schedules;

4.    Campus escort services; 

5.    Mutual restrictions on contact between the parties;

6.    Changes in work or housing locations;

7.    Leaves of absence; and

8.    Increased security and monitoring of certain areas of the campus.

Supportive measures provide one avenue for VCSU to protect the safety of parties and permissibly may affect and even burden the respondent, so long as the burden is not unreasonable.

VCSU will maintain as confidential any supportive measures provided to the complainant or respondent, to the extent that maintaining such confidentiality would not impair the ability of VCSU to provide the supportive measures. 

In situations where a complainant fears that disclosure to the respondent of the complainant’s identity (or the fact that the complainant has filed a formal complaint) poses a risk of retaliation against the complainant, the Title IX Coordinator must discuss available supportive measures and consider the complainant’s wishes regarding supportive measures designed to protect the complainant’s safety and deter sexual harassment.

C.    Emergency Removal

VCSU may remove a respondent from an education program or activity on an emergency basis.  Before removal, VCSU will undertake an individualized safety and risk analysis, determining whether an immediate threat to the physical health or safety of any student or other individual arising from the allegations of sexual harassment justifies removal.  

VCSU will provide some kind of notice to the respondent of the emergency dismissal.  The respondent will have an opportunity to challenge the decision immediately following the removal. 

VCSU in its discretion (subject to FERPA and other laws restricting nonconsensual disclosure of personally identifiable information from education records) may notify the complainant of removal decisions regarding a respondent.

  

D.    Administrative Leave

VCSU may place a non-student employee respondent on administrative leave during the pendency of the grievance process. This provision may not be construed to modify any rights under Section 504 of the Rehabilitation Act of 1973 or the Americans with Disabilities Act.

E.    Confidentiality

VCSU will keep confidential the identity of:

1.    Any individual who has made a report or complaint of sex discrimination, including any individual who has made a report or filed a formal complaint of sexual harassment;

2.    Any complainant;

3.    Any individual who has been reported to be the perpetrator of sex discrimination

4.    Any respondent; and 

5.    Any witness.

Confidentiality will not apply when carrying out the purposes of this policy, including conducting any investigation, hearing, appeal or judicial proceeding.

Likewise, exceptions to confidentiality may be permitted by the FERPA statute, 20 U.S.C. 1232g, or FERPA regulations, 34 CFR part 99, or as required by law.  

VI.    Grievance Process

The grievance process is designed to provide clear procedural rights to both parties.     

A.    Time Frames

VCSU maintains reasonably prompt time frames.  

1.    Extensions of Time Frames for Good Cause

A temporary delay of the grievance process or a limited extension of time frames may be granted for good cause.  Good cause may include considerations such as the absence of a party, a party’s advisor, or a witness; concurrent law enforcement activity; or the need for language assistance or accommodations of disabilities.

Written notice along with reasons for the delay or extension will be given to the complainant and the respondent.

B.    Formal Complaint

The formal complaint initiates VCSU’s grievance process.

1.    Purpose of Formal Complaint

The purpose of the formal complaint is to clarify that the complainant or Title IX Coordinator believes that VCSU should investigate allegations of sexual harassment against a respondent. 

2.    Who May File a Formal Complaint

A formal complaint may be filed by a complainant, complainant’s parents or guardians acting on behalf of complainant, or signed by the Title IX Coordinator alleging sexual harassment against a respondent and requesting that the school investigate the allegation of sexual harassment.

At the time of filing a formal complaint, a complainant must be participating in or attempting to participate in the education program or activity of VCSU with which the formal complaint is filed.  

A complainant who has graduated may still be “attempting to participate” in VCSU’s education program or activity.  For example, where the complainant has graduated from one program but intends to apply to a different program, or where the graduated complainant intends to remain involved with a VCSU’s alumni programs and activities. Similarly, a complainant who is on a leave of absence may be “participating or attempting to participate” in VCSU’s education program or activity; for example, such a complainant may still be enrolled as a student even while on leave of absence, or may intend to re-apply after a leave of absence and thus is still “attempting to participate” even while on a leave of absence. By way of further example, a complainant who has left school because of sexual harassment, but expresses a desire to re-enroll if VCSU appropriately responds to the sexual harassment, is “attempting to participate” in VCSU’s education program or activity

3.    Parents and Guardians Filing on Behalf of Complainant

If a parent has the legal right to act on behalf of their child, the parent may act on the student’s behalf by, for example, signing a formal complaint alleging that their child was sexually harassed and asking VCSU to investigate.  The parent does not, in that circumstance, become the complainant.

The extent to which VCSU must abide by the wishes of a parent, especially in circumstances where the student is expressing a different wish from what the student’s parent wants, depends on the scope of the parent’s legal right to act on the student’s behalf.

4.    The Title IX Coordinator May Assist Complaint or Parent in Filling Out a Formal Complaint

The Title IX Coordinator may assist a complainant (or parent) in filling out a document intended to serve as a formal complaint. 

5.    Title IX Coordinator Filing Formal Complaint

The Title IX Coordinator may consider a variety of factors, including a pattern of alleged misconduct by a particular respondent, in deciding whether to sign a formal complaint. 

A Title IX Coordinator’s decision to sign a formal complaint may occur only after the Title IX Coordinator has promptly contacted the complainant to discuss availability of supportive measures, consider the complainant’s wishes with respect to supportive measures, and explain to the complainant the process for filing a formal complaint. Thus, the Title IX Coordinator’s decision to sign a formal complaint includes taking into account the complainant’s wishes regarding how VCSU should respond to the complainant’s allegations. the Title IX Coordinator may take circumstances into account such as whether a complainant’s allegations involved violence, use of weapons, or similar factors.

The Title IX Coordinator possesses the discretion to sign formal complaints in situations involving threats, serial predation, violence, or weapons. Even in the absence of a formal complaint being filed, VCSU has authority to order emergency removal of a respondent where the situation arising from sexual harassment allegations presents a risk to the physical health or safety of any person. The Title IX Coordinators or complainants may contact law enforcement to address imminent safety concerns.

If a Title IX Coordinator decides to sign a formal complaint against the wishes of a complainant, VCSU should document the reasons why such a decision was not clearly unreasonable and how VCSU believes that it met its responsibility to provide that complainant with a non-deliberately indifferent response. 

When a Title IX Coordinator signs a formal complaint, the Title IX Coordinator does not become a complainant or otherwise a party to the grievance process.

6.    Method of Filing Formal Complaint

A formal complaint may be filed with the Title IX Coordinator in person, by mail, or by electronic mail, by using anonymous reporting link, by using the contact information for the Title IX Coordinator. As used in this paragraph, the phrase “document filed by a complainant” means a document or electronic submission (such as by electronic mail or through an online portal provided for this purpose by VCSU) that contains the complainant’s physical or digital signature, or otherwise indicates that the complainant is the person filing the formal complaint. Where the Title IX Coordinator signs a formal complaint, the Title IX Coordinator is not a complainant or otherwise a party.

7.    Consolidation of Formal Complaints

VCSU may consolidate formal complaints as to allegations of sexual harassment against more than one respondent, or by more than one complainant against one or more respondents, or by one party against the other party, where the allegations of sexual harassment arise out of the same facts or circumstances.  The requirement for “the same facts and circumstances” means that the multiple complainants’ allegations are so intertwined that their allegations directly relate to all the parties.

The Title IX Coordinator retains discretion, but is not required, to sign formal complaints after receiving multiple reports of potential sexual harassment against the same respondent.

Where a grievance process involves more than one complainant or more than one respondent, references in this section to the singular “party,” “complainant,” or “respondent” include the plural, as applicable.

8.    Imperfections of Formal Complaint

Imperfect paperwork is not grounds for not taking action.  If something is missing on the formal complaint, VCSU will give opportunity for correction to be made.  For example, if the formal complaint is missing a signature, VCSU will inquire of the complainant to sign the formal complaint.  

VCSU will respond promptly in a way that is not clearly unreasonable in light of the known circumstances.  VCSU will document the basis for its conclusion that its response was not deliberately indifferent. 

9.    Respondents Not Entitled to Copy of the Formal Complaint

VCSU is not required to give respondents a copy of the formal complaint.  The written notice of allegations provision already requires VCSU to provide the date, time, alleged conduct, and identity of the complainant, so the information required provides sufficient opportunity for the respondent to participate in the grievance process while protecting the complainant’s privacy rights to the extent that, for example, the complainant alleged facts in the formal complaint that are unrelated to Title IX sexual harassment and thus do not relate to the allegations that VCSU investigates in the grievance process.

C.    Decision to Proceed with Grievance Process without Complainant’s Participation

When the Title IX Coordinator determines that an investigation is necessary even where the complainant does not want such an investigation, the grievance process can proceed without the complainant’s participation; however, the complainant will still be treated as a party in such a grievance process. The grievance process will therefore impact the complainant even if the complainant refuses to participate. 

VCSU desires to respect a complainant’s autonomy as much as possible and thus, if a grievance process is initiated against the wishes of the complainant, that decision will be reached thoughtfully and intentionally by the Title IX Coordinator, not as an automatic result that occurs any time VCSU has notice that a complainant was allegedly victimized by sexual harassment. 

The Title IX Coordinator may file the complaint, initiating an investigation.  VCSU has flexibility to investigate allegations even when the complainant does not wish to file a formal complaint where initiating a grievance process is not clearly unreasonable in light of the known circumstances (including the circumstances under which a complainant does not desire an investigation to take place), so that VCSU may, for example, pursue a grievance process against a potential serial sexual perpetrator. 

The Title IX Coordinator will document its reasons why its response to sexual harassment was not deliberately indifferent, thereby emphasizing the need for a decision to initiate a grievance process over the wishes of a complainant to be intentionally, carefully made taking into account the circumstances of each situation.

D.    When the Identity of the Complainant is Unknown

The grievance process may proceed even when the identity of the complainant is unknown.  For example, where a third party reports that a complainant was victimized by sexual harassment but does not reveal the complainant’s identity, or a complainant reports anonymously.  

If the Title IX Coordinator determines it is necessary to sign a formal complaint, the written notice of allegations will specify that the complainant’s identity is not known. 

The Title IX Coordinator’s decision to sign a formal complaint is made on behalf of VCSU (for instance, as part of VCSU’s obligation not to be deliberately indifferent to known allegations of sexual harassment), not in support of the complainant or in opposition to the respondent or as an indication of whether the allegations are credible, have merit, or whether there is evidence sufficient to determine responsibility. 

The Title IX Coordinator does not become a complainant, or otherwise a party, to a grievance process, and will still serve free from bias or conflict of interest for or against any party.

E.    When the Identity of the Respondent is Unknown

VCSU will investigate a complainant’s formal complaint even if the complainant does not know the respondent’s identity, because an investigation might reveal the respondent’s identity, at which time VCSU would send both parties written notice of the allegations.

F.    Notice of Allegations

Upon receipt of a formal complaint, VCSU will provide the following written notice to the parties who are known:

1.    Notice of VCSU’s grievance process and informal resolution process.

2.    Notice of the allegations of conduct potentially constituting sexual harassment as defined in this policy, including sufficient details known at the time. Sufficient details include the identities of the parties involved in the incident, if known, the conduct allegedly constituting harassment under this policy, and the date and location of the alleged incident, if known.

3.    A statement that the respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the grievance process.

4.    Notice informing the parties that they may have an advisor of their choice, who may be, but is not required to be, an attorney, and may inspect and review evidence. 

5.    Notice informing the parties that if a party does not have an advisor of choice, VCSU will appoint an advisor to assist with cross-examination for the live hearing.

6.    Notice informing the parties of VCSU’s code of conduct that prohibits knowingly making false statements or knowingly submitting false information during the grievance process.

7.    Notice that the parties may have rights to disability accommodations.

8.    Inquiry whether any disability accommodation is needed. 

9.    Provide sufficient time to prepare a response before any initial interview.  

10.    Provide, to a party whose participation is invited or expected, written notice of the date, time, location, participants, and purpose of all hearings, investigative interviews, or other meetings, with sufficient time for the party to prepare to participate.

The written notice of allegations provision does not require listing personally identifiable information of either party beyond the “identity” of the parties; thus, the written notice need not, and should not, for example, contain other personally identifiable information such as dates of birth, social security numbers, or home addresses.

If, in the course of an investigation, VCSU decides to investigate allegations about the complainant or respondent that are not included in the notice provided in this section, VCSU will provide notice of the additional allegations to the parties whose identities are known.

G.    Situations Involving Some Allegations of Conduct that Occurred in an Education Program or Activity and Some Allegations of Conduct that Did Not

In situations involving some allegations of conduct that occurred in an education program or activity, and some allegations of conduct that did not, VCSU will investigate the allegations of conduct that occurred in its education program or activity.  VCSU may also choose to also address allegations of conduct outside VCSU’s education program or activity.  

For example, if a student is sexually assaulted outside of an education program or activity but subsequently suffers Title IX sexual harassment in an education program or activity, then this policy applies to the latter act of sexual harassment.  VCSU may choose to address the prior assault through other policies such as V520.03 Prohibited Discrimination, Protected Status Harassment, Hostile Environment, and Other Misconduct.

VCSU is not required to inefficiently extricate conduct occurring outside an education program or activity from conduct occurring in an education program or activity arising from the same facts or circumstances in order to meet its obligations with respect to the latter. 

H.    Presumption of Innocence

VCSU presumes that the respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process.

I.    Standard of Evidence

VCSU will use the preponderance of the evidence standard in the grievance process.  The same standard will be used for all formal complaints of sexual harassment, whether the complaint is against students, faculty, or employees.

J.    Advisor

After the filing of a formal complaint, parties to a grievance proceeding will be afforded the opportunity to select the advisor of their choice to assist them during the proceeding, including during the live hearing. 

If a party does not choose an advisor, VCSU will provide the party with an advisor free of charge. At minimum, VCSU will provide an advisor to conduct the party’s cross-examination at the hearing. 

VCSU is are not required to provide attorneys to parties to act as advisors, but appointed advisors should be provided with access to the training provided to Title IX Coordinators, decision-makers, and investigators to ensure an understanding of the process.

VCSU is not required to attempt to create equality of advisors between the parties, particularly where one party selects an outside advisor, but should endeavor to seek parity of advisors where VCSU provides advisors to both parties.

While an assigned advisor may have a personal or professional belief in, or dedication to, the position of the party on whose behalf the advisor conducts cross-examination, such a belief or dedication is not a requirement to function as the assigned advisor.  Advisors are not required to be impartial nor are they required to be free from conflicts of interest or bias.

There is no requirement that advisors be lawyers providing legal counsel nor does this provision impose an expectation of skill, qualifications, or competence. An advisor’s cross-examination “on behalf of that party” is satisfied where the advisor poses questions on a party’s behalf, which means that an assigned advisor could relay a party’s own questions to the other party or witness, and no particular skill or qualification is needed to perform that role.

VCSU may limit the active participation of advisors, with the one exception that an advisor must conduct cross-examination of a party.

K.    Disability Accommodation

VCSU will comply with any disability laws that require an accommodation.  VCSU may be required under disability laws to permit a person with a disability to be accompanied throughout a grievance process by a support person, in addition to the party’s advisor of choice.

VII.    Investigation

VCSU will investigate every filed formal complaint unless the complaint is subject to dismissal as described below. 

The investigation is designed to be timely, thorough, and impartial and to provide for a fair and reliable gathering of facts.  All individuals involved in the investigation, including complainant, 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. The complainant and respondent will have equal opportunity to participate in the investigation, including an equal opportunity to be heard, submit evidence, and suggest witnesses who may have relevant information.

Determinations about the merits of the allegations must be reached only by following the fair, impartial grievance process designed to reach accurate outcomes.

The investigator is obligated to gather evidence directly related to the allegations whether or not VCSU intends to rely on such evidence (for instance, where evidence is directly related to the allegations but the investigator does not believe the evidence to be credible and thus does not intend to rely on it). 

The parties may then inspect and review the evidence directly related to the allegations.  The investigator must take into consideration the parties’ responses and then determine what evidence is relevant and summarize the relevant evidence in the investigative report. The parties then have equal opportunity to review the investigative report.  If a party disagrees with an investigator’s determination about relevance, the party can make that argument in the party’s written response to the investigative report and to the decision-maker at any hearing held.  Either way the decision-maker is obligated to objectively evaluate all relevant evidence and the parties have the opportunity to argue about what is relevant (and about the persuasiveness of relevant evidence). The parties have equal appeal rights including on the ground of procedural irregularity, which could include VCSU’s failure to objectively evaluate all relevant evidence, including inculpatory and exculpatory evidence. the investigator and decision-maker will be well-trained to conduct a grievance process compliant including determining “relevance” within the parameters of the Title IX regulations.

A.    Investigator

Based on availability, the investigator will be chosen from a pool of NDUS trained investigators.  The investigator does not have to be a VCSU employee.

The Title IX Coordinator may also be the investigator.  The investigator cannot also serve as the decision-maker.

B.    Time Frames

The investigation will be completed in a timely manner. The investigator 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.

C.    Presumption of Non-responsibility

At all times, VCSU will observe a presumption that respondent is not responsible for the alleged conduct until and unless there is a determination of responsibility at the conclusion of the grievance process.

The presumption of non-responsibility is not interpreted to mean that a respondent is considered truthful, or that the respondent’s statements are credible or not credible, based on the respondent’s status as a respondent.

The presumption of non-responsibility buttresses the requirement that investigators and decisionmakers serve impartially without prejudging the facts at issue.

Determinations of credibility, including of the respondent, must be based on objective evaluation of relevant evidence – not on inferences based on party status.

D.    Burden of Proof and Burden of Gathering Evidence

VCSU, not the parties, has the burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility. 

Nothing about having to carry the burden of proof suggests that VCSU must desire or advocate for meeting (or not meeting) the burden of proof.  To the contrary, VCSU remains objective and impartial throughout the grievance process, as emphasized by requiring a VCSU’s Title IX personnel involved in a grievance process to serve free from bias and conflicts of interest and to be trained in how to serve impartially and how to conduct a grievance process.  Whether the evidence gathered and presented by VCSU (i.e., gathered by the investigator and with respect to relevant evidence, summarized in an investigative report) does or does not meet the burden of proof, VCSU’s obligation is the same: to respond to the determination regarding responsibility by complying with the grievance process (including effectively implementing remedies for the complainant if the respondent is determined to be responsible).

It is VCSU’s burden to impartially gather evidence and present it so that the decision maker can determine whether VCSU (not either party) has shown that the weight of the evidence reaches or falls short of the standard of evidence selected by VCSU for making determinations.

VCSU should not obtain as part of an investigation any evidence, directly relating to the allegations in the formal complaint, that cannot legally be shared with the parties.

VCSU may use social media profiles, assuming that these social medial profiles are lawfully obtained, as part of the investigation.

E.    Preservation of Information and Tangible Material

Preservation of information and tangible material relating to alleged prohibited conduct is essential for investigations under these procedures 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.    Determination of Relevance of Evidence

The ordinary meaning of the word relevance should be understood and applied in determining relevance of evidence.  

a.    Adopting Rules

VCSU will not adopt evidentiary rules of admissibility that contravene those evidentiary requirements prescribed in the grievance process. For example, VCSU will not adopt a rule excluding relevant evidence whose probative value is substantially outweighed by the danger of unfair prejudice. 

Similarly, VCSU will not adopt rules excluding certain types of relevant evidence (e.g., lie detector test results, or rape kits) where the type of evidence is not either deemed “not relevant” (as is, for instance, evidence concerning a complainant’s prior sexual history) or otherwise barred from use under the grievance process (as is, for instance, information protected by a legally recognized privilege). 

However, the grievance process does not prescribe rules governing how admissible, relevant evidence must be evaluated for weight or credibility by VCSU’s decision-maker.  For example, VCSU may adopt a rule regarding the weight or credibility (but not the admissibility) that a decision-maker should assign to evidence of a party’s prior bad acts, so long as such a rule applied equally to the prior bad acts of complainants and the prior bad acts of respondents. VCSU thus has discretion to adopt and apply rules in that regard, so long as such rules do not conflict with federal law and apply equally to both parties.

G.    Relevance of Non-treatment Records and Information

Non-treatment records and information, such as a party’s financial or sexual history, must be directly related to the allegations at issue in order to be reviewed by the other party and all evidence summarized in the investigative report must be “relevant” such that evidence about a complainant’s sexual predisposition would never be included in the investigative report and evidence about a complainant’s prior sexual behavior would only be included if it meets one of the two narrow exceptions (deeming all questions and evidence about a complainant’s sexual predisposition “not relevant,” and all questions and evidence about a complainant’s prior sexual behavior “not relevant” with two limited exceptions).

H.    Distinction between “Directly Related” and Relevant

“Directly related” may sometimes encompass a broader universe of evidence than evidence that is “relevant.” 

It is important that at the phase of the investigation where the parties have the opportunity to review and respond to evidence, the universe of that exchanged evidence should include all evidence (inculpatory and exculpatory) that relates to the allegations under investigation, without the investigator having screened out evidence related to the allegations that the investigator does not believe is relevant. The parties should have the opportunity to argue that evidence directly related to the allegations is in fact relevant (and not otherwise barred from use under the exceptions listed in policy), and parties will not have a robust opportunity to do this if evidence related to the allegations is withheld from the parties by the investigator. 

For example, an investigator may discover during the investigation that evidence exists in the form of communications between a party and a third party (such as the party’s friend or roommate) wherein the party characterizes the incident under investigation. If the investigator decides that such evidence is irrelevant (perhaps from a belief that communications before or after an incident do not make the facts of the incident itself more or less likely to be true), the other party should be entitled to know of the existence of that evidence so as to argue about whether it is relevant. The investigator would then consider the parties’ viewpoints about whether such evidence (directly related to the allegations) is also relevant, and on that basis decide whether to summarize that evidence in the investigative report. A party who believes the investigator reached the wrong conclusion about the relevance of the evidence may argue again to the decision-maker (i.e., as part of the party’s response to the investigative report, and/or at a live hearing) about whether the evidence is actually relevant, but the parties would not have that opportunity if the evidence had been screened out by the investigator (that is, deemed irrelevant) without the parties having inspected and reviewed it as part of the exchange of evidence under § 106.45(b)(5)(vi).

I.    Party’s Medical Records

VCSU cannot access, consider, disclose, or otherwise use a party’s records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional’s or paraprofessional’s capacity, or assisting in that capacity, and which are made and maintained in connection with the provision of treatment to the party, unless VCSU obtains that party’s voluntary, written consent to do so for a grievance process associated with this policy.

If a party is not an eligible student, (an eligible student is a student who has reached 18 years of age or is attending an institution of postsecondary education), then VCSU must obtain the voluntary, written consent of a parent. For purposes of this section, parent means a parent of a student and includes a natural parent, a guardian, or an individual acting as a parent in the absence of a parent or a guardian. 

VCSU will not access, consider, disclose, or otherwise use some of the most sensitive documents about a party without the party’s (or the parent of the party’s) voluntary, written consent, regardless of whether VCSU already has possession of such treatment records, even if the records are relevant.

J.    Legally Recognized Privileges

VCSU will not require, allow, rely upon, or otherwise use evidence that constitutes, or questions that seek disclosure of, information protected under a legally recognized privilege, unless that privilege is waived.

This bar on information protected under a legally recognized privilege applies at all stages of the grievance process, including but not limited to the investigator’s gathering of evidence, inspection and review of evidence, investigative report, and the hearing. 

This protection of privileged information also applies to a privilege held by VCSU.

K.    Redaction of Information

With regard to the sharing of confidential information, the investigator may redact information that is not directly related to the allegations (or that is otherwise barred from use, such as information protected by a legally recognized privilege, or a party’s treatment records if the party has not given written consent) contained within documents or other evidence that are directly related to the allegations, before sending the evidence to the parties for inspection and review.

Redacting “confidential” information is not the same as redacting information that is not “directly related to the allegations” because information that is confidential, sensitive, or private may still be “directly related to the allegations” and thus subject to review by both parties. Similarly, the investigator may redact from the investigative report information that is not relevant, which is contained in documents or evidence that is relevant, because the policy requires the investigative report to summarize only “relevant evidence.”

L.    Ability to Discuss Allegations and Gather and Present Relevant Evidence

VCSU will not restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence.  This provision applies to discussion of “the allegations under investigation” and not to the evidence subject to the parties’ inspection and review under this grievance policy.

a.    Ability to Discuss Information is Limited to Discussion Regarding the Allegations under Investigation

This provision does not apply to discussion of information that does not consist of “the allegations under investigation” (for example, evidence related to the allegations that has been collected and exchanged between the parties and their advisors during the investigation, or the investigative report summarizing relevant evidence sent to the parties and their advisors under the grievance process.

b.    Right to Discuss Information Regarding the Allegations under Investigation Must Not be Abused

This provision in no way immunizes a party from abusing the right to discuss the allegations under investigation” by, for example, discussing those allegations in a manner that exposes the party to liability for defamation or related privacy torts, or in a manner that constitutes unlawful retaliation.

c.    Party’s Communication with a Witness or a Potential Witness is Considered Part of a Party’s Right to Meaningfully Participate 

As to whether a party approaching or speaking to a witness could constitute “tampering,” it is believed that generally, a party’s communication with a witness or potential witness must be considered part of a party’s right to meaningfully participate in furthering the party’s interests in the case, and not an “interference” with the investigation. However, where a party’s conduct toward a witness might constitute “tampering” (for instance, by attempting to alter or prevent a witness’s testimony), such conduct also is prohibited under this grievance process.

M.    Investigation Procedure

The investigator 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 sexual harassment?  

•    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 the University’s policy against retaliation. 

•    Thoroughly examine and evaluate the responses made by the respondent. 

•    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 sexual harassment; 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.   

As each situation is unique, the investigator has discretion to determine what additional information is necessary to make a thorough investigation. 

N.    Written Notice of All Hearings, Investigative Interviews, or Other Meetings

VCSU will provide, to a party whose participation is invited or expected, written notice of the date, time, location, participants, and purpose of all hearings, investigative interviews, or other meetings, with sufficient time for the party to prepare to participate.

O.    Advisors and Others Present

VCSU will provide the parties with the same opportunities to have others present during any grievance proceeding.  Parties have the opportunity to be accompanied to any related meeting or proceeding by the advisor of their choice, who may be, but is not required to be, an attorney.  VCSU does not limit the choice or presence of advisor for either the complainant or respondent in any meeting or grievance proceeding.

VCSU requires advisors to use the evidence received for inspection and review as well as the investigative report only for purposes of the grievance process and requires them not to further disseminate or disclose these materials. Additionally, VCSU may use a non-disclosure agreement that complies with federal regulations and other applicable laws.

VCSU may establish restrictions regarding the extent to which the advisor may participate in the proceedings, as long as the restrictions apply equally to both parties.

P.    Equal Opportunity for Parties to Present Witnesses

VCSU will provide an equal opportunity for the parties to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence.

Q.    Opportunity for Parties to Inspect and Review Evidence

VCSU will provide both parties an equal opportunity to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint, including the evidence upon which VCSU does not intend to rely in reaching a determination regarding responsibility and inculpatory or exculpatory evidence whether obtained from a party or other source, so that each party can meaningfully respond to the evidence prior to conclusion of the investigation. 

R.    Evidence Provided to Parties

Prior to completion of the investigative report, VCSU will send to each party and the party’s advisor, if any, the evidence subject to inspection and review in an electronic format or a hard copy.  The parties will have at least 10 days to submit a written response, which the investigator will consider prior to completion of the investigative report. 

VCSU will make all such evidence subject to the parties’ inspection and review available at any hearing to give each party equal opportunity to refer to such evidence during the hearing, including for purposes of cross-examination.

Nothing in this policy precludes a party from requesting that VCSU not send the evidence subject to inspection and review to the party’s advisor.

Parties are not permitted to photograph the evidence or disseminate the evidence to the public.  VCSU has discretion to determine what measures are reasonably appropriate to allow the parties to respond to and use the evidence at a hearing, while preventing the evidence from being used in an impermissible manner as long as such measures apply equally to both parties. Such measures may be used to address sensitive materials such as photographs with nudity.

If VCSU obtains police investigation files as part of its investigation of formal complaint and some of the evidence in the police investigation files is directly related to the allegations raised in a formal complaint then VCSU must provide that evidence to the parties for their inspection and review.

S.    Reasonable Person Standard Used in Determining Sexual Harassment

VCSU will evaluate the sexual harassment requirements of severity, pervasiveness, objective offensiveness, and effective denial of equal access using the reasonable person standard.  The reasonable person standard looks at the situation from the perspective of a reasonable person in the shoes of the complainant, such that the ages, abilities, and relative positions of authority of the individuals involved in an incident will be taken into account.

Cultural or other personal factors that affect a person’s understanding about what constitutes sexual harassment does not negate responsibility.  Thus, if a perpetrator commits misconduct that meets one or more of the three prongs, any misunderstanding due to cultural or other differences does not negate the commission of a sexual harassment violation. Similarly, a respondent’s lack of comprehension that conduct constituting sexual harassment violates the bodily or emotional autonomy and dignity of a victim does not excuse the misconduct, though genuine lack of understanding may (in VCSU’s discretion) factor into the sanction decision affecting a particular respondent.

T.    A Person’s Disability Is Part of the “Surrounding Circumstances” to be Taken into Consideration when Evaluating whether Conduct Meets the Definition of Sexual Harassment

The definition of Title IX sexual harassment includes an element that the allegations constitute conduct that is “objectively offensive,” and that the Supreme Court has stated that application of the “severe, pervasive, and objectively offensive” portion of the definition “depends on a constellation of surrounding circumstances, expectations, and relationships . . . including, but not limited to, the ages of the harasser and the victim . . . .” Any disability of the person accused (or of the person making the allegation) is also part of the “surrounding circumstances” to be taken into consideration when evaluating whether conduct meets the definition of sexual harassment. When conduct committed by a respondent with a disability constitutes sexual harassment (e.g., because the conduct constitutes sexual assault, or because the conduct is severe, pervasive, and objectively offensive), VCSU has flexibility to carefully consider the kind of consequences that should follow in a situation where a respondent with a disability unintentionally committed conduct that constituted sexual harassment, perhaps not realizing the effect of the conduct on the victim. For example, VCSU could determine that counseling or behavioral intervention is more appropriate than disciplinary sanctions for a particular respondent. (We note that in such a circumstance, the complainant is still entitled to remedies designed to restore or preserve the complainant’s equal educational access.)

U.    Investigative Report

At the conclusion of the investigation, VCSU will create an investigative report that fairly summarizes relevant evidence. The requirement for VCSU to summarize and evaluate relevant evidence, and specification of certain types of evidence that must be deemed not relevant or are otherwise inadmissible in a grievance process appropriately directs VCSU to focus investigations and adjudications on evidence pertinent to proving whether facts material to the allegations under investigation are more or less likely to be true (i.e., on what is relevant). At the same time, certain evidence and information not relevant or otherwise not subject to use in a grievance process: information protected by a legally recognized privilege; evidence about a complainant’s prior sexual history; any party’s medical, psychological, and similar records unless the party has given voluntary, written consent; and (as to adjudications by postsecondary institutions), party or witness statements that have not been subjected to cross-examination at a live hearing.

The investigator may include recommended findings or conclusions in the investigative report.  However, the decision-maker is under independent obligation to objectively evaluate relevant evidence, and thus cannot simply defer to recommendations made by the investigator in the investigative report.

Since the decision-maker must prepare a written determination regarding responsibility that must contain certain specific elements (for instance, a description of procedural steps taken during the investigation), these procedural steps should be included in the investigative report.

If necessary, the investigative report may be amended or supplemented. 

At least 10 days prior to a hearing, the investigator must send a copy of the investigative report (electronic format or a hard copy) to each party and the party’s advisor, if any, for their review and written response.

Parties must submit any evidence that they would like the investigator to consider prior to the finalization of the investigative report.

V.    Non-disclosure Agreement

VCSU may impose on the parties and party advisors restrictions or require a non-disclosure agreement not to disseminate any of the evidence subject to inspection and review or use such evidence for any purpose unrelated to the Title IX grievance process, as long as doing so does not violate federal or other applicable laws.

VIII.    Dismissal of Formal Complaint

A.    Mandatory Dismissal

VCSU will dismiss the formal complaint, if at any time during the investigation or hearing it determines: 

1.    The alleged conduct, even if proved, does not constitute sexual harassment as defined in this policy;

2.    The alleged conduct did not occur in VCSU’s education program or activity; or

3.    The alleged conduct did not occur against a person in the United States.

While VCSU will dismiss the formal complaint with regard to that conduct for purposes of sexual harassment under title IX, such a dismissal does not preclude VCSU taking action under another provision of the VCSU’s code of conduct.  Taking action under VCSU’s code of conduct does not constitute retaliation under this policy.

B.    Permissive Dismissal

VCSU may dismiss the formal complaint or any allegations therein, if at any time during the investigation or hearing: 

1.    A complainant notifies the Title IX Coordinator in writing that the complainant would like to withdraw the formal complaint or any allegations contained in the formal complaint;

2.    The respondent is no longer enrolled or employed by VCSU; or

3.    Specific circumstances prevent VCSU from gathering evidence sufficient to reach a determination as to the formal complaint or allegations in the formal complaint.

VCSU has discretion to dismiss in situations where the respondent is no longer a student or employee of VCSU.  In making its determination, VCSU can make a dismissal decision based on reasons that may include whether a respondent poses an ongoing risk to VCSU’s community, whether a determination regarding responsibility provides a benefit to the complainant even where VCSU lacks control over the respondent and would be unable to issue disciplinary sanctions, or other reasons.

Likewise, VCSU has discretion to dismiss in situations where a complainant refuses to participate in the grievance process (but also has not decided to send written notice stating that the complainant wishes to withdraw the formal complaint), or where the respondent is not under the authority of VCSU (for instance because the respondent is a non-student, non-employee individual who came onto campus and allegedly sexually harassed a complaint), and VCSU has no way to gather evidence sufficient to make a determination, this provision permits dismissal. 

This provision is not the equivalent of VCSU deciding that the evidence gathered has not met a probable or reasonable cause threshold or other measure of the quality or weight of the evidence, but rather is intended to apply narrowly to situations where specific circumstances prevent VCSU from meeting its burden to gather sufficient evidence to reach a determination. Accordingly, VCSU will not apply a discretionary dismissal in situations where VCSU does not know whether it can meet the burden of proof. Decisions about whether VCSU’s burden of proof has been carried must be made in accordance with the grievance process – not prematurely made by persons other than the decision-maker, without following those adjudication and written determination requirements.

C.    Dismissal Not Permitted for Frivolous or Meritless Allegations

Where a complainant has filed a formal complaint, VCSU is required to investigate the allegations without dismissing based on a conclusion that the allegations are frivolous, meritless, or otherwise unfounded.  The point of the grievance process is to require VCSU to gather and objectively evaluate relevant evidence before reaching conclusions about the merits of the allegations. 

D.    Notice of Dismissal

Upon a dismissal, VCSU will promptly send written notice of the dismissal and reason(s) therefore to both parties simultaneously.

IX.    Live Hearings

As required by federal law, VCSU will conduct live hearings. Live hearings may be conducted with all parties physically present in the same geographic location or, at the VCSU’s discretion, any or all parties, witnesses, and other participants may appear at the live hearing virtually, with technology enabling participants simultaneously to see and hear each other.  Live hearings are private.  The only persons present will be the parties, their advisors, witnesses (when testifying), the decision maker(s), and any staff necessary for the hearing.

Live hearings cannot be waived, except when the matter is resolved through an informal resolution process.

Live hearings will be conducted after the completion of the investigative report.  All evidence obtained by the investigator as part of the investigative process will be made available to the parties and the decision-maker at the live hearing.

Where a court-issued restraining order prohibits contact between the parties, federal law does not require any in-person proximity between the parties, or any direct communication between the parties (even virtually, using technology).

A.    Upon Request, Live Hearings May be Conducted in Separate Rooms

At the request of either party, VCSU will provide for the live hearing to occur with the parties located in separate rooms with technology enabling the decision-maker(s) and parties to simultaneously see and hear the party or the witness answering questions. 

B.    Decision Maker

The decision-maker presides over the live hearing and is a different person than the Title IX Coordinator or the investigator.  The decision-maker may be the same person as the hearing officer.

The decision-maker will determine the weight or credibility to be given to each piece of evidence.

1.    Standing Committee for Faculty Rights

When the respondent is a faculty member, the Standing Committee on Faculty Rights (SCFR) will be the decision-maker.  SCFR may appoint and delegate authority to a hearing officer who is trained in Title IX issues to advise SCFR and preside over the hearing.

SCFR conducts the hearing, provides findings of fact and conclusions, and determines the sanction to be imposed.  

2.    Staff Personnel Board

When the respondent is a staff member, the Staff Personnel Board will be the decision-maker.  The Staff Personnel Board may appoint and delegate authority to a hearing officer who is trained in Title IX issues to advise the Staff Personnel Board and preside over the hearing.

The Staff Personnel Board conducts the hearing, provides findings of fact and conclusions, and determines the sanction to be imposed. 

C.    Notice of Hearing

Written notice of the hearing will be provided to both parties at least three (3) days prior to the hearing.  The notice will include the charges at issue; a brief summary of the alleged sexual harassment; the date, time, and place of the hearing; the name of the hearing officer.

D.    Format of Hearing

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

•    Introduction by the decision-maker.  The decision-maker will explain the hearing process, address any necessary procedural issues, and answers questions.

•    Testimony by the complainant.

•    Cross-examination by the respondent’s advisor.

•    Testimony by the respondent.

•    Cross-examination by the complainant’s advisor.

•    Testimony by any witnesses.

•    Cross-examination by the complainant’s and/or respondent’s advisor.

•    Closing statements by the complainant followed by the respondent.

1.    Testimony

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

Questioning will primarily be conducted by the decision-maker.  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.

2.    Closing Statements

The parties may make closing statements.

This is the opportunity for the parties to suggest inferences, conclusions, and weigh in on potential sanctions and remedies. 

The parties may not add or address information not contained in the hearing record, as the decision-maker will not consider new information.  Nor may the parties address issues that pertain to sanctions and remedies

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

E.    Hearing Decorum

A decision-maker may enforce rules to ensure hearing decorum, such as requiring respectful treatment, specifying any objection process, governing timing of hearing and length of breaks, forbidding participants from disturbing the hearing by loudly conferring with each other, etc.

Where the substance of a question is relevant, but the manner in which an advisor attempts to ask the question is harassing, intimidating, or abusive (for example, the advisor yells, screams, or physically “leans in” to the witness’s personal space), VCSU may appropriately, evenhandedly enforce rules of decorum that require relevant questions to be asked in a respectful, non-abusive manner. 

F.    Advisors at the Live Hearing

At the live hearing, the decision-maker(s) will permit each party’s advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility. Such cross-examination at the live hearing must be conducted directly, orally, and in real time by the party’s advisor of choice and never by a party personally. Otherwise, nothing discourages parties from speaking for themselves during the proceedings. The advisor’s role is limited to cross-examination.

1.    Parties Required to Inform VCSU of Advisor

Parties are required to inform VCSU in advance of the hearing whether the party intends to bring an advisor of choice to the hearing.  

2.    Assignment of Advisors; No Right of Self-Representation with Respect to Conducting Cross-examination

If a party appears at a hearing without an advisor, VCSU will stop the hearing as necessary to permit VCSU to assign an advisor to that party to conduct cross-examination.  VCSU will provide without fee or charge to that party, an advisor of VCSU’s choice, who may be, but is not required to be, an attorney, to conduct cross-examination on behalf of that party.

A party cannot “fire” an assigned advisor during the hearing.  If the party correctly asserts that the assigned advisor is refusing to “conduct cross-examination on the party’s behalf,” then VCSU is obligated to provide the party an advisor to perform that function, whether that means counseling the assigned advisor to perform that role, or stopping the hearing to assign a different advisor. 

If a party to whom VCSU assigns an advisor refuses to work with the advisor when the advisor is willing to conduct cross-examination on the party’s behalf, then for reasons described above that party has no right of self-representation with respect to conducting cross-examination, and that party would not be able to pose any cross-examination questions. 

3.    Advisors Are Not Subject to Conflicts of Interest or Bias Restrictions

The prohibition of Title IX personnel having conflicts of interest or bias does not apply to party advisors, and thus, the existence of a possible conflict of interest where an advisor is assisting one party and also expected to give a statement as a witness is permissible. The perceived “conflict of interest” created under that situation would be taken into account by the decision-maker in weighing the credibility and persuasiveness of the advisor-witness’s testimony. 

4.    Advisor Not Required to Assume Party’s Version of the Events is Accurate

The assigned advisor is not required to assume the party’s version of events is accurate, but the assigned advisor still must conduct cross-examination on behalf of the party.

5.    Advisors Conducting Cross-Examination

The requirement for a party’s advisor to conduct cross-examination on a party’s behalf need not be more extensive than simply relaying the party’s desired questions to be asked of other parties and witnesses. That function could therefore equate to serving as a party’s proxy, or advocating for a party, or neutrally relaying the party’s desired questions; this provision leaves VCSU and assigned advisors wide latitude in deciding how to fulfill the role of serving as an assigned advisor. For the same reason, it is not necessary to forbid assigned advisors from being persons who exercise any administrative or academic authority over the other party; assigned advisors are not obligated to avoid conflicts of interest and can fulfill the limited role described in  this section regardless of the scope of the advisor’s other duties as VCSU’s employee. 

Advisors must conduct cross-examination questioning in a respectful and non-abusive manner.  Advisors must not badger a witness.  Repetition of questions may be deemed irrelevant.

6.    Advisors Refusal to Comply with Decorum Rules

If a party’s advisor of choice refuses to comply with VCSU’s rules of decorum (for example, by insisting on yelling at the other party), VCSU may require the party to use a different advisor. Similarly, if an advisor that VCSU provides refuses to comply with VCSU’s rules of decorum, VCSU may provide that party with a different advisor to conduct cross-examination on behalf of that party.

7.    Limitations on Advisor Participation 

Advisors are limited to asking cross-examination questions during the hearing.

G.    Confidential Advisors or Advocates Other than Assigned Advisor Not Permitted at the Hearing

With respect to allowing parties to be accompanied by a confidential advisor or advocate in addition to a party’s chosen or assigned advisor, federal law requires: “The recipient must keep confidential the identity of any individual who has made a report or complaint of sex discrimination, including any individual who has made a report or filed a formal complaint of sexual harassment, any complainant, any individual who has been reported to be the perpetrator of sex discrimination, any respondent, and any witness, except as may be permitted by the FERPA statute or regulations, 20 U.S.C. 1232g and 34 CFR part 99, or as required by law, or to carry out the purposes of [34 CFR part 106], including the conduct of any investigation, hearing, or judicial proceeding arising thereunder.”  This restriction limits VCSU’s ability to authorize the parties to be accompanied at the hearing by persons other than advisors. For example, a person assisting a party with a disability, or a language interpreter, may accompany a party to the hearing without violating § 106.71(a) because such a person’s presence at the hearing is required by law and/or necessary to conduct the hearing.

H.    Equal Opportunity to Present Witnesses

Parties have equal opportunity to present witnesses including fact and expert witnesses, which may include investigators and advisors.  Likewise, parties have an equal right to cross-examine any witness.

I.    Witnesses

Witnesses are not required to testify and may simply choose not to testify because the determination of responsibility usually does not directly impact, implicate, or affect them. 

With respect to a witness who claims to also have been sexually assaulted by the respondent, VCSU has discretion to permit the witness to testify remotely, or to hold the entire live hearing virtually. 

J.    Cross-Examination

The essential function of cross-examination is not to embarrass, blame, humiliate, or emotionally berate a party, but rather to ask questions that probe a party’s narrative in order to give the decision-maker the fullest view possible of the evidence relevant to the allegations at issue.

VCSU has discretion in developing rules and practices that apply to both parties to oversee cross-examination to ensure that questioning is relevant, respectful, and non-abusive.

1.    Cross-Examination Questions Regarding Consent

Where a sexual offense turns on the existence of consent and that issue is contested, evidence of consent is relevant, and each party’s advisor can respectfully ask relevant cross-examination questions about the presence or absence of consent. 

2.    Decision-Maker Evaluates and Weighs Evidence

Where a cross-examination question or piece of evidence is relevant, but concerns a party’s character or prior bad acts, the decision-maker cannot exclude or refuse to consider the relevant evidence, but may proceed to objectively evaluate that relevant evidence by analyzing whether  that evidence warrants a high or low level of weight or credibility, so long as the decision maker’s evaluation treats both parties equally by not, for instance, automatically assigning higher weight to exculpatory character evidence than to inculpatory character evidence.

K.    Party’s or Witness’ Not Submitting to Cross-examination and/or Absence from a Live Hearing

If a party or witness does not submit to cross-examination at the live hearing, the decision-maker will not rely on any statement of that party or witness in reaching a determination regarding responsibility.  The decision-maker may not draw an inference about the determination regarding responsibility based solely on a party’s or witness’s absence from the live hearing or refusal to answer cross-examination or other questions.  (There are no exceptions to this exclusion as there are in legal proceedings.)

For example, where a complainant refuses to answer cross-examination questions but video evidence exists showing the underlying incident, a decision-maker may still consider the available evidence and make a determination.

If the case does not depend on party’s or witness’s statements but rather on other evidence (e.g., video evidence that does not consist of “statements” or to the extent that the video contains non-statement evidence) the decision-maker can still consider that other evidence and reach a determination, and must do so without drawing any inference about the determination based on lack of party or witness testimony.

Not all Title IX sexual harassment allegations rely on party testimony; for example, in some situations video evidence of the underlying incident is available, and in such circumstances even if both parties fail to appear or submit to cross examination the decision-maker would disregard party statements yet proceed to evaluate remaining evidence, including video evidence that does not constitute statements or to the extent that the video contains non-statement evidence. If a party or witness makes a statement in the video, then the decision-maker may not rely on the statement of that party or witness in reaching a determination regarding responsibility.

Even if no party appears for the live hearing such that no party’s statements can be relied on by the decision-maker, it is still possible to reach a determination regarding responsibility where non-statement evidence has been gathered and presented to the decision-maker.

1.    Ramifications of Refusal to Submit to Cross Examination

It is possible that one party’s refusal to submit to cross-examination could result in the other party’s statements remaining under consideration by the decision-maker even though the refusing party’s statements are excluded (e.g., where one party refuses to submit to cross examination, yet that party’s advisor cross-examines the opposing party, whose statements are then considered by the decision-maker), but the opportunity of the refusing party to conduct cross-examination of the opposing party ensures that the opposing party’s statements are not considered unless they have been tested via cross-examination. Because a decision-maker is precluded from drawing any inferences about the determination regarding responsibility based solely on a party’s refusal to be cross-examined, the adjudication can still yield a fair, reliable outcome even where, for example, the refusing party is a respondent exercising a Fifth Amendment right against self-incrimination.  

2.    Cross-Examination Regardless of Presence of a Party 

Where one party appears at the hearing and the other party does not, federal law still states: “If a party does not have an advisor present at the hearing, the recipient must provide without fee or charge to that party an advisor of the recipient ’s choice, who may be, but is not required to be, an attorney, to conduct cross-examination on behalf of that party.” Thus, a party’s advisor may appear and conduct cross-examination even when the party whom they are advising does not appear. 

Similarly, where one party does not appear and that party’s advisor of choice does not appear, a VCSU-provided advisor must still cross-examine the other, appearing party “on behalf of” the non-appearing party, resulting in consideration of the appearing party’s statements but not the non-appearing party’s statements (without any inference being drawn based on the non-appearance). Because the statements of the appearing party were tested via cross-examination, a fair, reliable outcome can result in such a situation.

In cases where a complainant files a formal complaint, and then does not appear or refuses to be cross-examined at the hearing, this provision excludes the complainant’s statements, including allegations in a formal complaint. 

If the respondent “wrongfully procures” a complainant’s absence, for example, through intimidation or threats of violence, and VCSU has notice of that misconduct by the respondent (which likely constitutes prohibited retaliation), VCSU will remedy the retaliation, perhaps by rescheduling the hearing to occur at a later time when the complainant may appear with safety measures in place.  

L.    Prohibition on Reliance of “Statements” Not Submitted to Cross-examination

The prohibition on reliance on “statements” applies not only to statements made during the hearing, but also to any statement of the party or witness who does not submit to cross-examination. “Statements” has its ordinary meaning, but would not include evidence (such as videos) that do not constitute a person’s intent to make factual assertions, or to the extent that such evidence does not contain a person’s statements. Thus, police reports, SANE reports, medical reports, and other documents and records may not be relied on to the extent that they contain the statements of a party or witness who has not submitted to cross-examination. While documentary evidence such as police reports or hospital records may have been gathered during investigation and, if directly related to the allegations inspected and reviewed by the parties, and to the extent they are relevant, summarized in the investigative report, the hearing is the parties’ first opportunity to argue to the decision-maker about the credibility and implications of such evidence. Probing the credibility and reliability of statements asserted by witnesses contained in such evidence requires the parties to have the opportunity to cross-examine the witnesses making the statements.  

M.    Submit to Cross-Examination

Submit to cross-examination means answering those cross-examination questions that are relevant.  The decision-maker is required to make relevance determinations regarding cross-examination in real time during the hearing in part to ensure that parties and witnesses do not feel compelled to answer irrelevant questions for fear of their statements being excluded. If a party or witness disagrees with a decision-maker’s determination that a question is relevant, during the hearing, the party or witness’s choice is to abide by the decision-maker’s determination and answer or refuse to answer the question.  Unless the decision-maker reconsiders the relevance determination prior to reaching the determination regarding responsibility, the decision-maker would not rely on the witness’s statements.  

The party or witness’s reason for refusing to answer a relevant question does not matter.

1.    Intertwining Statements of Both Parties

Intertwining statements of both parties occurs where evidence involves intertwined statements of both parties (e.g., a text message exchange or e-mail thread) and one party refuses to submit to cross-examination and the other does submit, so that the statements of one party cannot be relied on but statements of the other party may be relied on. If parties do not testify about their own statement and submit to cross-examination, the decision-maker will not have the appropriate context for the statement, which is why the decision-maker cannot consider that party’s statements.

2.    Party or Witness’ Refusal to Answer Questions Posed by the Decision-maker

The provision requiring a party or witness to “submit to cross-examination” to avoid exclusion of their statements does not apply to a party or witness’s refusal to answer questions posed by the decision-maker. If a party or witness refuses to respond to a decision-maker’s questions, the decision-maker is not precluded from relying on that party or witness’s statements. This is because cross-examination (which differs from questions posed by a neutral factfinder) constitutes a unique opportunity for parties to present a decision-maker with the party’s own perspectives about evidence. This adversarial testing of credibility renders the person’s statements sufficiently reliable for consideration and fair for consideration by the decision-maker, in the context of a Title IX adjudication often overseen by laypersons rather than judges and lacking comprehensive rules of evidence that otherwise might determine reliability without cross-examination.

N.    Type of Evidence Precluded at a Hearing

Parties are precluded from presenting evidence at the hearing that could have been gathered and presented prior to the hearing.  (For example, a party cannot withhold evidence until the hearing.)  However, newly discovered evidence, evidence that was not available at the time of the investigation or prior to the hearing, will be allowed.  To prevent surprise, additional time may be granted to the parties to respond to newly discovered evidence.

 

O.    Decision-maker Will Determine Relevancy of Questions

Prior to a party or witness answering a question, the decision-maker will rule on the relevance of the question and explain any decision to exclude a question as not relevant.  Only relevant cross-examination and other questions may be asked of a party or witness. 

Decision-makers may request, but may not require, that questions by the parties be submitted in advance, to permit the decision-maker to rule on the relevance of questions.

The decision-maker may determine that duplicative questions are irrelevant.  Likewise, where evidence is duplicative of other evidence, the decision-maker may deem the evidence not relevant.

The determination that a question is not relevant is made by applying logic and common sense, but not against a backdrop of legal expertise. Thus, an explanation of how or why the question was irrelevant to the allegations at issue, or is deemed irrelevant (for example, in the case of sexual predisposition or prior sexual behavior information) provides transparency for the parties to understand a decision-maker’s relevance determinations. 

This provision does not require a decision-maker to give a lengthy or complicated explanation; it is sufficient, for example, for a decision-maker to explain that a question is irrelevant because the question calls for prior sexual behavior information without meeting one of the two exceptions, or because the question asks about a detail that is not probative of any material fact concerning the allegations.

As arguments about a relevancy determination may unnecessarily delay the hearing or may be uncomfortable for the parties, parties and advisors are not allowed to challenge relevancy determinations during the hearing. 

Parties may appeal an erroneous relevance determination if they affect the outcome.

P.    Complainant’s Sexual Predisposition or Prior Sexual Behavior Are Not Relevant

Questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant, unless such questions and evidence about the complainant’s prior sexual behavior are offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or if the questions and evidence concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent. 

1.    Counterclaims

Some situations will involve counter-claims made between two parties such that a respondent is also a complainant, and in such situations the decision-maker must take care to apply the rape shield protections to any party where the party is designated as a “complainant” even if the same party is also a “respondent” in a consolidated grievance process.

2.    Who Can Raise the Question or Offer Evidence Regarding Consent

The rape shield language does not limit the “if offered to prove consent” exception to when the question or evidence is offered by the respondent. Rather, such questions or evidence could be offered by either party, or by the investigator, or solicited on the decision-maker’s own initiative.  

3.    Sexual Behavior Cannot be Used to Challenge a Complainant’s Subjective Interpretation 

The “unwelcome” element in the first and second prongs of the definition of sexual harassment is subjective.  That is, if conduct is unwelcome to the complainant, that is sufficient to support that element of an allegation of sexual harassment. 

The rape shield language is not extended to encompass situations where the respondent wishes to prove the conduct was “welcome” as opposed to “unwelcome.” Sexual behavior cannot be used to challenge a complainant’s subjective interpretation of conduct as unwelcome. 

Q.    Other Important Hearing Considerations

No party, including a complainant, must recall details with certain levels of specificity; rather, a party’s answers to cross-examination questions can and should be evaluated by a decision-maker in context, including taking into account that a party may experience stress while trying to answer questions.  Likewise, this policy protects against a party being unfairly judged due to inability to recount each specific detail of an incident in sequence, whether such inability is due to trauma, the effects of drugs or alcohol, or simple fallibility of human memory.

R.    Decision-maker has Discretion in Granting Breaks During Live Hearings

VCSU may grant breaks during a live hearing to permit a party to recover from a panic attack or flashback.

S.    Accommodations 

Disability accommodations (e.g., a short-term postponement of a hearing date due to party’s need to seek medical treatment for anxiety or depression) may be good cause for a limited extension of the reasonably prompt time frame for the grievance process.

T.    Recording of Live Hearing Available to Parties for Inspection and Review

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

Technology used to comply with this provision should not result in “live streaming” a party in a manner that exposes the testimony to persons outside those participating in the hearing.

X.    Determination Regarding Responsibility

After the conclusion of the live hearing, the decision-maker will issue a written determination regarding responsibility. To reach this determination, the decision-maker will apply the preponderance of the evidence standard in the hearing process.  Under the preponderance of evidence standard, the burden of proof is met when the party with the decision-maker determines that there is a greater than 50% chance that the claim is true. 

The preponderance of the evidence standard is the same standard for formal complaints against employees, including faculty.  The preponderance of the evidence standard applies to all formal complaints of sexual harassment.

A.    Written Determination

Within ten (10) business days, VCSU will provide the written determination to the parties simultaneously. In cases where the respondent is a faculty member, the VCSU President will also receive a copy of the written determination.

The written determination will include:

1.    Identification of the allegations potentially constituting sexual harassment;

2.    A description of the procedural steps taken from the receipt of the formal complaint through the determination, including any notifications to the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, and hearings held; 

3.    Findings of fact supporting the determination;  

4.    Conclusions regarding the application of VCSU’s code of conduct to the facts; 

5.    A statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility, any disciplinary sanctions VCSU imposes on the respondent, and whether remedies designed to restore or preserve equal access to the VCSU’s education program or activity will be provided by VCSU to the complainant; and 

6.    The procedures and permissible bases for the complainant and respondent to appeal. 

The decision-maker will provide the written determination to the parties simultaneously.  The determination regarding responsibility becomes final either on the date that VCSU provides the parties with the written determination of the result of the appeal, if an appeal is filed, or if an appeal is not filed, the date on which an appeal would no longer be considered timely. 

If VCSU consolidates formal complaints, VCSU must issue the same written determination regarding responsibility to all parties because the allegations of sexual harassment must arise out of the same facts or circumstances such that the written determination directly relates to all the parties. If VCSU does not consolidate the formal complaints, then VCSU must issue a separate written determination regarding responsibility for each formal complaint. If the formal complaints are not consolidated, then each complainant would receive the written determination regarding responsibility with respect to that complainant’s formal complaint.

The written determination does not need to address evaluation of contradictory facts, exculpatory evidence, “all evidence” presented at a hearing, or how credibility assessments were reached.  

The written determination does not need to be made at the hearing.  

B.    Implementation of Remedies

The Title IX Coordinator is responsible for effective implementation of any remedies provided by the written determination.

C.    Transcript Notations

Conduct records are kept on file in the Office of the Vice President for Student Affairs.  All conduct records are private and may not be disclosed in whole or in part except as provided by law, or by the written authorization of the student.  Conduct records shall be retained separately from the student’s educational record.  The only disciplinary actions reflected on the official transcript shall be suspension or expulsion.

Conduct records containing violations that resulted in sanctions of less than suspension or expulsion are retained for a period of seven years after a student graduates, withdraws, or transfers and are kept in a conduct file in the Vice President for Student Affairs Office.  In cases where students receive a sanction of suspension or expulsion, records may be retained indefinitely.

If the underlying determination of responsibility is vacated for any reason, the transcript notation will be removed.

XI.    Remedies and Disciplinary Sanctions

Remedies offered after the conclusion of the grievance process on a finding of responsibility must be designed to restore or preserve equal access to the education program or activity. Remedies need not be non-disciplinary or non-punitive and need not avoid burdening the respondent.

Disciplinary sanctions imposed after the conclusion of the grievance process shall be assessed pursuant to the VCSU’s code of conduct, student handbook, employee handbook, or similar document which sets possible disciplinary sanctions for violations of Title IX or code of conduct and shall be proportional to the determination of responsibility.

In determining sanctions and remedies, the decision-maker may consider:  

1.    The severity of the prohibited conduct;  

2.    The circumstances of the prohibited conduct;  

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

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

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

6.     Prior misconduct by the respondent, including the respondent’s previous school disciplinary record;

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

 

The decision-maker may impose one or more of the following sanctions and remedies:  

For Students:

1.    Measures similar to supportive measures specified under these procedures; 

2.    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);  

3.    Reprimand delivered either verbally or in writing (if a written reprimand is issued, a copy shall be retained on file in the Office of the Vice President for Student Affairs); 

4.    Conduct probation indicates that further violation may result in suspension.  Conduct probation may not be imposed for more than one year;

5.    Suspension from participation in university organizations, events, and activities;

6.    University suspension suspends a student from enrolling for classes for a determined length of time.  While on such suspension, the student may not obtain academic credit at VCSU or elsewhere toward the completion of a VCSU degree;

7.    University expulsion expels a student from VCSU permanently.  The student is barred from the University;

For Faculty and staff:

1.    Measures similar to supportive measures specified under these procedures; 

2.    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);  

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 faculty or staff member has had an opportunity to read the material and has signed that he or she has read it.  If the faculty or staff member refuses to sign the copy, a VCSU representative shall indicate on the copy that the faculty or staff member was shown the material, was requested to sign the copy, and that the faculty or staff member refused to sign the copy to be filed.  The faculty or staff member may file an answer to the material.”); 

7.    Demotion;

8.    Suspension; 

9.    Salary reduction or loss of salary; 

10.    Restriction or loss of privileges; 

11.    Dismissal. 

This published range of disciplinary sanctions is purely for the purposes of notice as to the possibility of a range of remedies and disciplinary sanctions and does not reflect the probability that any particular outcome will occur.

By describing the range, or listing the possible disciplinary sanctions, VCSU is notifying its community of the possible consequences of a determination that a respondent is responsible for Title IX sexual harassment.  This provision is thus intended to increase the transparency and predictability of the grievance process, but it is not intended to unnecessarily restrict VCSU’s ability to tailor disciplinary sanctions to address specific situations.

XII.    Appeals

VCSU offers both parties an appeal from a determination regarding responsibility, and from the dismissal of a formal complaint (or any allegations within the formal complaint).  

The appellant shall clearly state the reasons for the appeal and shall provide any relevant information to support the appeal. The following may form the basis for an appeal: 

1.    Procedural irregularity that affected the outcome of the matter;

2.    New evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made, that could affect the outcome of the matter; 

3.    The Title IX Coordinator, investigator, or decision-maker had a conflict of interest or bias for or against complainants or respondents generally or the individual complainant or respondent that affected the outcome of the matter; or 

4.    The severity or proportionality of sanctions.

A.    Procedural Defects on Appeal

Nothing precludes a party from raising the existence of procedural defects that occurred during the grievance process during a live hearing, and Title IX regulations ensure that whether or not a party has observed or objected to a procedural defect during the hearing, the party may still appeal on the basis of procedural irregularity after the determination regarding responsibility has been made.

B.    Complainant Does Not Need to File an Appeal to Challenge Remedies

A complainant entitled to remedies should not need to file an appeal to challenge VCSU’s election of remedies.  The Title IX Coordinator is responsible for effective implementation of remedies. This permits a complainant to work with the Title IX Coordinator to select and effectively implement remedies designed to restore or preserve the complainant’s equal access to education.

C.    Limitations on Timing for Appeal

Appeals must be submitted in writing to the Title IX Coordinator within five (5) business days of receiving the written determination.

Within the five (5) business days, the appealing party may request an extension of time by submitting a request to the Title IX Coordinator explaining the reason(s) for the request.  The Title IX Coordinator 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.

In cases that result in suspension or expulsion, notwithstanding any previous appeals, a decision may be reviewed up to one year following the original decision. 

In cases that result in suspension or expulsion, the student or student organization has a right to be represented by an advisor who may fully participate in the appeals process.

D.    Appeals Process

As to all appeals, VCSU will: 

1.    Within five (5) business days, notify the non-appealing party in writing when an appeal is filed;

2.    Implement appeal procedures equally for both parties;  

3.    Ensure that the appeal decision-maker is not the same person as the decision-maker that reached the determination regarding responsibility or dismissal, the investigator, or the Title IX Coordinator; 

4.    Ensure that the decision-maker for the appeal complies with the standards set forth for decision-makers at the hearing level (training, impartiality, relevant questions, etc.);

5.    Give both parties a reasonable, equal opportunity to submit a written statement in support of, or challenging, the outcome; 

6.    In situations where new information or contradictory information is submitted on appeal, the other party may, within five (5) business days, submit a written response to the decision-maker for the appeal;

7.    Not set aside findings of fact unless clearly erroneous;

8.    Ignore harmless error;

9.    The decision-maker for the appeal may grant the appeal, deny the appeal, order a new hearing, reduce or modify the suspension or expulsion, change a sanction or remedy, and/or make other modifications.

10.    The decision-maker for the appeal will make a decision within ten (10) business days of the non-appealing party’s submission or the time submission has expired;

11.    The decision-maker will issue simultaneously to both parties a written decision describing the result of the appeal and the rationale for the result.

E.    Limitations on Grounds for Appeal

Although a complainant may appeal on the ground that the remedies are not designed to restore or preserve the complainant’s access to the VCSU’s education program or activity, a complainant is not entitled to a particular sanction against the respondent. 

F.    Status of Remedies and Sanctions When an Appeal is Filed

In order for an appeal, by either party, to be fully effective, VCSU must wait to act on the determination regarding responsibility while maintaining the status quo between the parties through supportive measures designed to ensure equal access to education.

G.    Final Determination

A final determination means the written determination containing the information required in the written determination, as modified by any appeal by the parties.

XIII.    Informal Resolution

VCSU does not require the parties to participate in an informal resolution process and does not offer an informal resolution process unless a formal complaint is filed. However, at any time prior to reaching a determination regarding responsibility, VCSU may facilitate an informal resolution process, such as mediation, that does not involve a full investigation and adjudication, provided that VCSU:

A.    Provides to the parties a written notice disclosing: 

1.    The allegations;

2.    The requirements of the informal resolution process including the circumstances under which it precludes the parties from resuming a formal complaint arising from the same allegations, provided, however, that at any time prior to agreeing to a resolution, any party has the right to withdraw from the informal resolution process and resume the grievance process with respect to the formal complaint, and any consequences resulting from participating in the informal resolution process, including the records that will be maintained or could be shared;

B.    Obtains the parties’ voluntary, written consent to the informal resolution process; and 

C.    Does not offer or facilitate an informal resolution process to resolve allegations that an employee or faculty member sexually harassed a student.  

A.    Informal Resolutions May Include Disciplinary Measures

Informal resolutions may reach agreements between the parties, facilitated by VCSU, that include similar measures but that also could include disciplinary measures, while providing finality for both parties in terms of resolving allegations raised in a formal complaint of sexual harassment. 

B.    Written Notice

Written notice given to both parties before entering an informal resolution process must indicate what records would be maintained or could be shared in that process. Importantly, records that could potentially be kept confidential could include the written notice itself, which would not become a public record. VCSU has discretion to make these determinations. 

This requirement effectively puts both parties on notice as to the confidentiality and privacy implications of participating in informal resolution. VCSU remains free to exercise its judgment in determining the confidentiality parameters of the informal resolution process they offer to parties. 

C.    Parties Do Not Need to Confront Each Other

Nothing requires an informal resolution process to involve the parties confronting each other or even being present in the same room; mediations are often conducted with the parties in separate rooms and the mediator conversing with each party separately.

D.    Confidentiality of Informal Resolution

The informal resolution process will be kept confidential.  Records, evidence, and other information maintained or shared during the informal resolution process will be considered confidential.

E.    Method of Delivery for Written Notices and Disclosures

Written notices and disclosures will be provided via email.  Electronic disclosures and signatures are valid.  

F.    Informal Resolution Agreements to Be Treated as Contracts

Informal resolution agreements to be treated as contracts.  The parties remain free to negotiate the terms of the agreement and, once entered into, it may become binding according to its terms.

G.    Informal Resolution Facilitators May Not be Called as Witnesses

Informal resolution facilitators may not be called as witnesses in subsequent formal grievance processes.  

H.    VCSU Has Flexibility and Discretion for Repeat Offenses

With respect to VCSU’s potential legal liability where the respondent acknowledges 

commission of Title IX sexual harassment (or other violation of VCSU’s policy) during an informal resolution process, yet the agreement reached allows the respondent to remain on campus, and the respondent commits Title IX sexual harassment (or violates VCSU’s policy) again, VCSU has the flexibility and discretion to determine under what circumstances respondent should be suspended or expelled from campus as a disciplinary sanction, whether that follows from an informal resolution or after a determination of responsibility under the formal grievance process. 

VCSU may take into account legal obligations unrelated to Title IX, and relevant Title IX case law under which Federal courts have considered VCSU’s duty not to be deliberately indifferent by exposing potential victims to repeat misconduct of a respondent, when considering what sanctions to impose against a particular respondent. 

Sponsored by: Vice President for Student Affairs 

Effective:  August 2020