The University's procedures for institutional disciplinary action in cases of sexual misconduct are intended to include a prompt, fair, equitable, and impartial process from the initial investigation to the final result. The purpose of this Title IX Sexual Harassment Grievance Process (“TSHGP”) is to provide a grievance process for formal complaints of sexual harassment, as defined below, that are in violation of Title IX. This TSHGP is intended to satisfy the requirements imposed by Title IX and 34 CFR 106.45 with respect to formal complaints of sexual harassment, as defined in 34 CFR 106.
For purposes of this TSHGP, the following terms have the following meanings:
- “Sexual Harassment” means conduct on the basis of sex that satisfies one or more of the following:
- An employee of SPU conditioning the provision of an aid, benefit, or service of SPU on an individual's participation in unwelcome sexual conduct;
- Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to SPU’s education program or activity; or
- A VAWA Offense.
- “VAWA Offense” means “sexual assault“ as defined in 20 U.S.C. 1092(f)(6)(A)(v), “dating violence“ as defined in 34 U.S.C. 12291(a)(10), “domestic violence“ as defined in 34 U.S.C. 12291(a)(8), or “stalking“ as defined in 34 U.S.C. 12291(a)(30).
- “Complainant” means an individual who is alleged to be the victim of conduct that could constitute sexual harassment.
- “Formal Complaint” means a document filed by a Complainant or signed by the Title IX Coordinator alleging Sexual Harassment against a Respondent and requesting that the University investigate the allegation of Sexual Harassment. 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 the University) that contains the Complainant’s physical or digital signature, or otherwise indicates that the Complainant is the person filing the Formal Complaint.
- “Respondent” means an individual who has been reported to be the perpetrator of conduct that could constitute Sexual Harassment.
- “Informal Process Facilitator” means an individual designated to facilitate an informal resolution process.
- “Area Vice President” means a vice president of the University with supervisory authority for a particular area. For purposes of this policy: (i) a vice provost will be considered an Area Vice President; and (ii) the Provost will be considered an Area Vice President for faculty members and other employees not supervised by any other Area Vice President.
- “Business Day“ means any day other than a Saturday, Sunday, or University holiday. For this purpose, “University holiday“ means those holidays scheduled on the University's master calendar when the University's administrative offices are closed for business.
- “Decision Maker” means:
- If the Respondent is a residential undergraduate student, the Director of Residence Life (or designee);
- If the Respondent is a non-residential undergraduate student, the Dean of Students for Community Life (or designee);
- If the Respondent is a graduate student, the Vice Provost for Academic Affairs (or designee);
- If the Respondent is an employee (other than a student employee), the employee’s Area Vice President (or designee); and
- If the Respondent does not fit into any of the preceding categories, an individual designated by the Title IX Coordinator.
- “Appeal Reviewer” means:
- In an appeal of a determination of responsibility:
- If the Respondent is a residential undergraduate student, the Dean of Students for Community Life (or designee);
- If the Respondent is a non-residential undergraduate student, the Vice Provost for Student Formation and Community Engagement (or designee);
- If the Respondent is a graduate student, the Provost (or designee);
- If the Respondent is an employee (other than a student employee), the President (or designee); and
- If the Respondent does not fit into any of the preceding categories, an individual designated by the Title IX Coordinator.
- In an appeal of a dismissal of a Formal Complaint or any allegation therein, the direct supervisor of the Title IX Coordinator (or designee). However, if the Title IX Coordinator has delegated to the Deputy Title IX Coordinator the responsibility for making a dismissal decision, then the Appeal Reviewer will be the Title IX Coordinator.
III. Scope of TSHGP
- A Formal Complaint may only be filed under this TSHGP if it meets all of the following criteria:
- The conduct that is alleged would meet the definition of Sexual Harassment if true;
- The conduct is alleged to have occurred within the United States;
- The conduct is alleged to have occurred in an SPU education program or activity that the Complainant is participating in or attempting to participate in;
- The Respondent is an SPU student or employee at the time the Formal Complaint is made; and
- The individual making the Formal Complaint is the Complainant, the Title IX Coordinator, or the Deputy Title IX Coordinator.
- The Title IX Coordinator or Deputy Title IX Coordinator may file a Formal Complaint (even if not a victim) if he or she believes in good faith that an incident of Sexual Harassment may have occurred, and the TSHGP will be interpreted and applied accordingly. Where the Title IX Coordinator or Deputy Title IX Coordinator signs a Formal Complaint, the Title IX Coordinator is not a Complainant or otherwise a party.
- If alleged conduct does not meet the criteria for Formal Complaints under this TSHGP, then the Title IX Coordinator will dismiss the complaint from this process. The Title IX Coordinator may refer the complaint to a different procedure if the other procedure may be appropriate for the complaint. Individuals may also file formal complaints pursuant to other grievance procedures directly, if applicable.
- If an incident involves both alleged Sexual Harassment and other alleged violations of other policies, then the Title IX Coordinator will consult with the administrators of the other policies to determine whether multiple procedures should be initiated and how they should be coordinated.
- This TSHGP does not apply to formal complaints of incidents that allegedly occurred prior to August 14, 2020, unless a formal complaint alleges that one or more incidents occurred on or after August 14, 2020, that would constitute Sexual Harassment if true and that other incidents prior to August 14, 2020, are related to such allegations.
XII. Formal Complaint Process: Appeal
- Each Complainant and Respondent may appeal:
- A determination regarding responsibility; and
- A dismissal of a Formal Complaint or any allegations therein.
- An appeal may only be made on the following bases:
- Procedural irregularity that affected the outcome of the matter;
- 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;
- The Title IX Coordinator, an Investigator, or the 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; and
- Solely with respect to an appeal of a dismissal of a Formal Complaint or any allegations therein, the rationale given for the dismissal of the Formal Complaint is not consistent with the standard for dismissal in this TSHGP.
- In any appeal:
- The University will notify the other party in writing when a Notice of Intent to Appeal is filed and when a written appeal is filed, and will implement appeal procedures equally for both parties;
- The Appeal Reviewer will not be the Decision Maker that reached the determination regarding responsibility or dismissal, one of the Investigators, or the Title IX Coordinator;
- The Appeal Reviewer will not have a conflict of interest or bias for or against Complainants or Respondents generally or an individual Complainant or Respondent;
- The Appeal Reviewer will have received training as prescribed by University policy for Appeal Reviewers before making a determination;
- The Complainant and Respondent will each have a reasonable, equal opportunity to submit a written statement in support of, or challenging, the outcome;
- The Appeal Reviewer will issue a written decision describing the result of the appeal and the rationale for the result; and
- The Appeal Reviewer will provide the written decision simultaneously to both the Complainant and Respondent.
- To file an appeal, the Complainant or Respondent must submit a written Notice of Intent to Appeal to the Title IX Coordinator. The Notice of Intent to Appeal must be received by the Title IX Coordinator within two calendar days after the date when the party is sent the decision being appealed. The Notice of Intent to Appeal does not need to include any information except that the party intends to file an appeal.
- If a party submits a Notice of Intent to Appeal, then the party may submit a written appeal to the Title IX Coordinator. The written appeal must be received by the Title IX Coordinator within five Business Days after the date when the party is sent the decision being appealed. The written appeal must identify the basis or bases for the appeal that is permitted by this TSHGP, must explain why the party the decision was incorrect, and must state what the party believes would be the correct decision.
- If a party timely files a Notice of Intent to Appeal, the Title IX Coordinator will notify the other party. If a party timely files a written appeal, the Title IX Coordinator will notify the other party and provide the other party with a copy of the written appeal. The other party will have five Business Days to submit a written response to the Title IX Coordinator.
- The Appeal Reviewer will make a decision within ten Business Days of receiving the written appeal (or, if later, within five Business Days of receiving the other party’s written response to the appeal).
- The Appeal Reviewer may:
- Affirm the decision completely;
- Affirm part but not all of the decision;
- Reverse the decision completely;
- Remand the case for additional investigation and reconsideration by the Decision Maker; or
- Require a new investigation and/or determination with a new Investigator and/or Decision Maker.
- The Appeal Reviewer may also add, remove, or modify sanctions and remedies in any decision regarding an appeal of responsibility.
- If no timely Notice of Intent to Appeal is received by the Title IX Coordinator, then the determination becomes final the day after the deadline for submitting a timely Notice of Intent to Appeal. If a Notice of Intent to Appeal is timely submitted but no written appeal is timely submitted, the determination becomes final the day after the deadline for submitting a timely written appeal. If a Notice of Intent to Appeal and a written appeal are both timely submitted, then the Appeal Reviewer’s decision is final on the date that the Appeal Reviewer provides the parties with the written determination of the result of the appeal. Both the Complainant and the Respondent will be simultaneously informed, in writing, by the Title IX Coordinator of (a) any change to the results that occurs prior to the time that such results become final; and (b) when such results become final.
XIII. Record Keeping
- The University will maintain for a period of at least seven years records of:
- Each Sexual Harassment investigation including any determination regarding responsibility and any audio or audiovisual recording or transcript required under this TSHGP, any disciplinary sanctions imposed on the Respondent, and any remedies provided to the Complainant designed to restore or preserve equal access to the University’s education program or activity;
- Any appeal and the result therefrom;
- Any informal resolution and the result therefrom; and
- All materials used to train the Title IX Coordinator, any Deputy Title IX Coordinator, Investigators, Decision Makers, Appeal Reviewers, and Informal Process Facilitators.
- The University will make the training materials used to train the Title IX Coordinator, any Deputy Title IX Coordinator, Investigators, Decision Makers, Appeal Reviewers, and Informal Process Facilitators publicly available on its website.
- Regardless of whether a Formal Complaint is filed, in each case that the University is required to respond to a report of Sexual Harassment under Title IX and 34 CFR 106.44, the University will create, and maintain for a period of seven years, records of any actions, including any supportive measures, taken in response to a report or Formal Complaint of Sexual Harassment. In each instance, the University 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 the University’s education program or activity. If the University does not provide a Complainant with supportive measures, then the University will 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 the University in the future from providing additional explanations or detailing additional measures taken.
- The University may also include information in an employee's personnel file or other employment records regarding any allegations of sexual misconduct and any findings of any grievance procedure.
- The University has no obligation to provide access to records or copies of records to any person, unless the law or a University policy gives a person such right. Requirements in this TSHGP to provide access to evidence to the parties or their advisors will only apply while a Formal Complaint proceeding is in process, unless otherwise required by law.
- The University strictly prohibits any retaliation against any person who files a complaint or otherwise participates in an investigation or proceeding under this TSHGP. This includes retaliation against anyone who makes a report or files a Formal Complaint, who expresses an intent to make such a report or complaint, or who testifies as a witness or otherwise provides information as part of an investigation or proceeding (whether formal or informal).
- Retaliation can be any type of adverse or negative action taken toward a person who filed a complaint or otherwise participated in an investigation or proceeding (however, an adverse action would not be retaliatory if it was taken for some other justifiable reason). Examples of retaliation can include intimidation, coercion, harassment, threats, acts of violence, acts intended to embarrass another person, unjustified negative grades or performance reviews, or taking any other action that is likely to dissuade a person from making a complaint in the future.
- No 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 34 CFR 106, 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 relating to sex discrimination or other sexual misconduct. 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 34 CFR 106, constitutes retaliation. 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 does not constitute retaliation, provided, however, that a determination regarding responsibility, alone, is not sufficient to conclude that any party made a materially false statement in bad faith.
- Any person who commits retaliation may be subject to disciplinary action, up to and including dismissal from the University (for students) or termination of employment (for employees).
- Any person who believes he or she has experienced retaliation in connection with a Formal Complaint proceeding should notify the Title IX Coordinator. Reports of retaliation may also be made to any of the individuals listed on the University’s Notice of Nondiscrimination Policy, who should also notify the Title IX Coordinator. The Title IX Coordinator will coordinate with other University officials to determine an appropriate level of investigation into the alleged retaliation and respond as follows:
- Alleged retaliation by a student will either be addressed through the Student Accountability Process or in connection with an existing complaint proceeding, as determined by the Title IX Coordinator and the Dean of Students for Community Life (or designee); and
- Alleged retaliation by an employee will be addressed in connection with an existing complaint proceeding, through a separate proceeding under the Discrimination and Harassment Grievance Procedure, or directly by the accused employee’s direct supervisor, as determined by the Title IX Coordinator and the accused employee’s Area Vice President.
- Unless otherwise stated in an applicable grievance procedure, complaints of retaliation will be evaluated using a preponderance of the evidence standard.
XV. Informal Resolution
- At any time after a Formal Compliant is filed and prior to reaching a determination regarding responsibility, the University may offer to facilitate an informal resolution process that does not involve a full investigation and adjudication. Under Title IX and 34 CFR 106, the University is not permitted to offer an informal resolution process to address Sexual Harassment until a Formal Complaint has been filed. Participation in an informal resolution process is voluntary for the Complainant and Respondent, and the University will not require the two parties to participate in an informal resolution process. Also, the University will not offer or facilitate an informal resolution process to resolve allegations that an employee engaged in Sexual Harassment against a student.
- If the University offers to facilitate an informal resolution process, the University will:
- Provide the Complainant and Respondent with a written notice disclosing: the allegations, the requirements of the informal resolution process including the circumstances under which the University 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; and
- Obtain the Complainant’s and Respondent’s voluntary, written consent to the informal resolution process before initiating the informal resolution process.
- One option for an informal resolution process may be mediation. Mediation can provide a context within which the parties can discuss the alleged offending conduct and its impact and can create an agreement about the nature of their academic, social, and/or working relationship in the future.
- If the parties agree to engage in an informal resolution process, the University will attempt to complete the informal resolution process within thirty Business Days. An informal resolution process will be considered completed after the parties agree to resolution terms in writing. Once the final terms of an informal resolution have been agreed upon by both parties in writing, neither party can resume a Formal Complaint proceeding for the alleged Sexual Harassment. However, an informal resolution agreement does not prevent either party from bringing a Formal Complaint regarding Sexual Harassment that occurs after the informal resolution process is completed, which may take into account conduct that occurred prior to the completion of the informal resolution process.
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