What is the purpose of this Policy?

On May 19, 2020, the U.S. Department of Education (the “Department”) issued a Final Rule governing the Title IX Grievance Process, effective August 14, 2020. The Final Rule requires that all colleges and universities hold a live hearing before making any determination regarding responsibility for covered reports of Title IX sexual harassment,1 including sexual violence. This hearing must provide for live cross-examination by the parties’ Advisors.

However, under § 106.45(b)(9) of the Final Rule, colleges and universities may offer and facilitate informal resolution processes, as long as each party voluntarily agrees to the process through an informed, written consent. This option is a change from long-standing Departmental guidance discouraging the use of informal procedures to address sexual harassment and prohibiting the use of mediation to address sexual assault. In the Preamble to the Final Rule, the Department states that it views informal resolutions as a way to resolve sexual harassment allegations in a less adversarial manner than the investigation and adjudication procedures that comprise the § 106.45 Grievance Process.

No college or university is required to adopt an informal procedure for addressing Title IX-covered sexual assault, nor is there any obligation to create or put in place such a policy by the August 14, 2020 implementation date.

For the purposes of this policy defined terms are set forth in the Title IX Grievance Policy.

Elements of an Informal Resolution Process

Procedures for Entering and Exiting Informal Resolution Process

Parties who do not wish to proceed with an investigation and live hearing and instead seek Rockland Community College (the “College”) assistance to resolve allegations of Title IX-covered misconduct may elect to enter the informal resolution process. Generally speaking, these resolution options are less time intensive than an investigation and live hearing, while still affording students an opportunity to actively participate in a process led by the College for resolution of their complaints.

Determination to Approve Entry into Informal Resolution Process

Even where the Parties agree to submit a matter to informal resolution, the Title IX Coordinator may not approve the decision to move the matter to the informal resolution process and may determine that informal resolution is not appropriate under the circumstances.

Factors that the Title IX Coordinator may weigh in considering the appropriateness of the informal resolution process include, but are not limited to, the gravity of the allegations, whether there is an ongoing threat of harm or safety to the campus, whether the Respondent is a repeat offender, and whether the parties are participating in good faith. This determination is not subject to appeal.

Informal resolution processes may never be applied where the allegations include Sexual Assault: penetration 2 or the equivalent.

Informal resolution is only permitted to address allegations of student-on-student sexual harassment and is never allowed as an option to resolve allegations that an employee sexually harassed a student. See 85 Fed. Reg. 30026, 30054 (May 19, 2020).

At any time after the commencement of the informal resolution process, the Title IX Coordinator or other designated official may determine that the informal resolution process is not an appropriate method for resolving the matter and may require that the matter be resolved through the formal process. This determination is not subject to appeal.

Role of the Facilitator

Informal resolution processes are managed by facilitators, who may not have a conflict of interest or bias in favor of or against Complainants or Respondents generally or regarding the specific parties in the matter. The Title IX Coordinator may never serve as the facilitator, subject to these restrictions.

All facilitators must have training in the definition of sexual harassment under 34 C.F.R. § 106.30(a), the scope of the College’s education program or activity, how to conduct informal resolution processes, and how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, or bias.

Confidentiality

In entering the informal resolution process, the parties agree that any testimony and evidence (including admissions of responsibility) they share or receive during the informal resolution process concerning the allegations of the Formal Complaint is confidential while the parties are participating in the informal resolution process. No evidence concerning the allegations obtained within the informal resolution process may be disseminated to any person, provided that any party to the informal resolution process may generally discuss the allegations under investigation with a parent, friend, advisor, or other source of emotional support, or with an advocacy organization. Should the parties withdraw from the informal resolution process, information disclosed or obtained for purposes of the informal resolution process may be incorporated into the formal investigation and live hearing, provided that this information is disclosed and reviewed by the parties under the investigatory and hearing procedures described in the Title IX Grievance Process.

Informal Resolution Options

The College offers the following informal resolution procedures for addressing Formal Complaints of sexual harassment covered under this Policy:

Administrative Resolution

Should the parties mutually determine to enter the informal resolution process and the Respondent elects to accept responsibility for the allegations of the Formal Complaint at any point during the informal resolution process, the College may administratively resolve the Formal Complaint.

Where the Respondent admits responsibility, the parties will receive simultaneous written notification of the acceptance of responsibility, and a Decision-maker will convene to determine the Respondent’s sanction and other remedies as appropriate and consistent with institutional policy. The parties will be given an opportunity to be heard at the sanctions hearing, including but not limited to the submission of impact statements, and the parties may be accompanied by their Advisor, but questioning of parties or witnesses will not be permitted. The parties will receive simultaneous written notification of the decision regarding sanctions and remedies, which may be appealed according to the process described below.

Mediation

The purpose of mediation is for the parties who are in conflict to identify the implications of a student’s actions and, with the assistance of a trained facilitator, identify points of agreement and appropriate remedies to address them. Either party can request mediation to seek resolution; mediation will be used only with the consent of both parties, who will be asked not to contact one another during the process. The Office of Dean of Student Development or another appropriate office without a conflict of interest or bias will also review any request for mediation and may decline to mediate based on the facts and circumstances of the particular case. Either party has the right to terminate the mediation process and choose or resume another option for resolution at any time.

The mediation process will typically commence within ten (10) days after the Office of Student Engagement & College Life or their designee receives consent to mediate from both parties and will continue until concluded or terminated by either party or the Office of Dean of Student Development or another appropriate office without a conflict of interest or bias. During mediation, any potential investigation will halt, and calculations for time frames will be stayed. If the mediation results in a resolution, the disciplinary process will be concluded, and the matter will be closed. If a resolution cannot be reached, the matter will be referred to the Dean of Student Development/Coordinator of Judicial Affairs to re-evaluate other options for resolution, including investigation.

During mediation, a facilitator will guide a discussion between the parties. In circumstances where the parties do not wish to meet face to face, either party can request “caucus” mediation, and the facilitator will conduct separate meetings. Whether or not the parties agree to meet face to face, each party will be permitted to bring an Advisor of their choice to any meetings who may be, but is not required to be, an attorney.

At the conclusion of the mediation, the facilitator will memorialize the agreement that was reached between the parties. The Coordinator of Judicial Affairs will monitor adherence to the proposed solution and close the matter when compliance is satisfactory.

[1] Defined in the Title IX Grievance Policy, as any conduct on the basis of sex that satisfies one or more of the following:

  1. An employee conditioning educational benefits on participation in unwelcome sexual conduct (i.e., quid pro quo);
  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 the College’s education program or activity;
  3. Sexual assault (as defined in the Clery Act), which includes any sexual act directed against another person without the consent of the victim, including instances where the victim is incapable of giving consent;
  4. Dating violence (as defined in the Violence Against Women Act (“VAWA”) amendments to the Clery Act), which includes any violence committed by a person: (A) who is or has been in a social relationship of a romantic or intimate nature with the victim; and (B) 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 relationship; and (iii) the frequency of interaction between the persons involved in the relationship;
  5. Domestic violence (as defined in the VAWA amendments to the Clery Act), which includes any felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner, by a person similarly situated to a spouse of the victim under New York State domestic or family violence laws, or by any other person against an adult or youth victim who is protected from that person’s acts under the domestic or family violence laws of New York State; and
  6. Stalking (as defined in the VAWA amendments to the Clery Act), meaning engaging in a course of conduct directed at a specific person that would cause a reasonable person to (A) fear for their safety or the safety of others or (B) suffer substantial emotional distress.

Note that conduct that does not meet one or more of these criteria may also be prohibited under the Student Code of Conduct, the Sexual Harassment Policy, the Equity & Compliance Policy, or applicable state or local law.

[2] Penetration is defined as vaginal or anal penetration by a penis, object, tongue or finger, and oral copulation (mouth to genital contact), no matter how slight the penetration or contact. Association of Title IX Administrators, 2015.