- The Title IX Grievance Policy
- The Title IX Grievance Process
What is the purpose of the Title IX Grievance Policy?
Title IX of the Educational Amendments of 1972 prohibits any person in the United States from being discriminated against on the basis of sex in seeking access to any educational program or activity receiving federal financial assistance. The U.S. Department of Education, which enforces Title IX, has long defined the meaning of Title IX’s prohibition on sex discrimination broadly to include various forms of sexual harassment and sexual violence that interfere with a student’s ability to equally access our educational programs and opportunities.
On May 19, 2020, the U.S. Department of Education issued a Final Rule under Title IX of the Education Amendments of 1972 that:
- Defines the meaning of “sexual harassment” (including forms of sex-based violence),
- Addresses how this college must respond to reports of misconduct falling within that definition of sexual harassment, and
- Mandates a grievance process that this college must follow to comply with the law in these specific covered cases before issuing a disciplinary sanction against a person accused of sexual harassment.
The full text of the Final Rule and its extensive Preamble are available here: http://bit.ly/TitleIXReg (85 Fed. Reg. 30026 (May 19, 2020)).
Based on the Final Rule, Rockland Community College (the “College”) will implement the following Title IX Grievance Policy, effective August 14, 2020.
How does the Title IX Grievance Policy impact other campus disciplinary policies?
In recent years, “Title IX” cases have become a shorthand for any campus disciplinary process involving sex discrimination, including those arising from sexual harassment and sexual assault. But under the Final Rule, the College must narrow both the geographic scope of its authority to act under Title IX and the types of “sexual harassment” that it must subject to its Title IX investigation and adjudication process. Only incidents falling within the Final Rule’s definition of sexual harassment will be investigated and, if appropriate, brought to a live hearing through the Title IX Grievance Policy defined below.
The College remains committed to addressing any violations of its policies, even those not meeting the narrow standards defined under the Title IX Final Rule.
Specifically, our campus has a Student Code of Conduct that defines certain behavior as a violation of campus policy, including sections addressing Sexual Harassment, Sexual Assault, Domestic Violence, Dating Violence, Stalking, and related sex-based offenses.
To the extent that alleged misconduct falls outside the Title IX Grievance Policy, or misconduct falling outside the Title IX Grievance Policy is discovered in the course of investigating covered Title IX misconduct, the College retains authority to investigate and adjudicate the allegations under the policies and procedures defined within the Student Code of Conduct, including the Sexual Violence Policy, the Sexual Harassment Policy, and the Equity & Compliance Policy, through a separate grievance proceeding.
The elements established in the Title IX Grievance Policy under the Final Rule have no effect and are not transferable to any other policy of the College for any violation of the Student Code of Conduct, employment policies or any civil rights violation, except as narrowly defined in this Policy. This Policy does not set a precedent for other policies or processes of the College and may not be cited for or against any right or aspect of any other policy or process.
How does the Title IX Grievance Policy impact the handling of complaints?
Our existing Title IX office and reporting structure remains in place. What has changed is the way our Title IX office will handle different types of reports arising from sexual misconduct, as detailed in full throughout Section 2.
The Title IX Grievance Policy will become effective on August 14, 2020, and will only apply to sexual harassment alleged to have occurred on or after August 14, 2020. Incidents of sexual harassment alleged to have occurred before August 14, 2020, will be investigated and adjudicated according to the process in place at the time the incident allegedly occurred.
Revocation by Operation of Law
Should any portion of the Title IX Final Rule, 85 Fed. Reg. 30026 (May 19, 2020), be stayed or held invalid by a court of law, or should the Title IX Final Rule be withdrawn or modified to not require the elements of this policy, this policy, or the invalidated elements of this policy, will be deemed revoked as of the publication date of the opinion or order and for all reports after that date, as well as any elements of the Process that occur after that date if a case is not complete by the date of opinion or order publication. Should the Title IX Grievance Policy be revoked in this manner, any conduct covered under the Title IX Grievance Policy shall be investigated and adjudicated under the existing Student Code of Conduct, the Sexual Harassment Policy, or the Equity & Compliance Policy.
Non-Discrimination in Application
The requirements and protections of this policy apply equally regardless of sex, sexual orientation, gender identity, gender expression, or other protected classes covered by federal or state law. All requirements and protections are equitably provided to individuals regardless of such status or status as a Complainant, Respondent, or Witness. Individuals who wish to file a complaint about the College’s policy or process may contact the Department of Education’s Office for Civil Rights using contact information available at https://ocrcas.ed.gov/contact-ocr.
Covered Sexual Harassment
For the purposes of this Title IX Grievance Policy, “covered sexual harassment” includes any conduct on the basis of sex1 that satisfies one or more of the following:
- An employee conditioning educational benefits on participation in unwelcome sexual conduct (i.e., quid pro quo);
- 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;
- 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;
- 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;
- 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
- 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.
1 Title IX applies to employee on employee, employee on student, student on student, or student on employee qualified complaints of sex or gender discrimination.
For the purposes of this Title IX Grievance Policy, “consent” means a knowing, voluntary, and mutual decision among all participants to engage in sexual activity. Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity. Silence or lack of resistance, in and of itself, does not demonstrate consent.
- Consent to any sexual act or prior consensual sexual activity between or with any party does not necessarily constitute consent to any other sexual act.
- Consent is required regardless of whether the person initiating the act is under the influence of drugs and/or alcohol.
- Consent may be initially given but withdrawn at any time.
- Consent cannot be given when a person is incapacitated, which occurs when an individual lacks the ability to knowingly choose to participate in sexual activity. Incapacitation may be caused by the lack of consciousness or being asleep, being involuntarily restrained, or if an individual otherwise cannot consent. Depending on the degree of intoxication, someone who is under the influence of alcohol, drugs, or other intoxicants may be incapacitated and therefore unable to consent.
- Consent cannot be given when it is the result of any coercion, intimidation, force, or threat of harm.
- When consent is withdrawn or can no longer be given, sexual activity must stop.
The definition of consent does not vary based upon a participant’s sex, sexual orientation, gender identity, or gender expression.
Education Program or Activity
For the purposes of this Title IX Grievance Policy, the College’s “education program or activity” includes:
- Any on-campus premises.
- Any off-campus premises that the College has substantial control over. This includes buildings or property owned or controlled by a recognized student organization.
- Activity occurring within computer and internet networks, digital platforms, and computer hardware or software owned or operated by, or used in the operations of, the College’s programs and activities over which the College has substantial control.
For the purposes of this Title IX Grievance Policy, “formal complaint” means a document—including an electronic submission—filed by a Complainant with a signature or other indication that the Complainant is the person filing the formal complaint or signed by the Title IX Coordinator, alleging sexual harassment against a respondent about conduct within the College’s education program or activity and requesting initiation of the procedures consistent with the Title IX Grievance Policy to investigate the allegation of sexual harassment.
For the purposes of this Title IX Grievance Policy, “Complainant” means any individual who has reported being or is alleged to be the victim of conduct that could constitute covered sexual harassment as defined under this policy.
Relevant evidence and questions
“Relevant” evidence and questions refer to any questions and evidence that tends to make an allegation of sexual harassment more or less likely to be true.
“Relevant” evidence and questions do not include the following types of evidence and questions, which are deemed “irrelevant” at all stages of the Title IX Grievance Process:
- Evidence and questions about the Complainant’s sexual predisposition or prior sexual behavior unless:
- They are offered to prove that someone other than the Respondent committed the conduct alleged by the Complainant, or
- They concern specific incidents of the Complainant’s prior sexual behavior with respect to the Respondent and are offered to prove consent. 34 C.F.R. § 106.45(6)(i).
- Evidence and questions that constitute, or seek disclosure of, information protected under a legally recognized privilege.
- Legally recognized privileges include but are not limited to Rape crisis counselor-client privilege (NY CPLR § 4510); Physician-, Dentist-, Podiatrist-, Chiropractor-, Nurse-patient privilege (NY CPLR § 4504), Clergy privilege (NY CPLR § 4505), Psychologist-client privilege (NY CPLR § 4507), and Social Worker-client privilege (NY CPLR § 4508).
- Any party’s medical, psychological, and similar records unless the party has given voluntary, written consent. 85 Fed. Reg. 30026, 30294 (May 19, 2020).
For the purposes of this Title IX Grievance policy, “Respondent” means any individual who has been reported to be the perpetrator of conduct that could constitute covered sexual harassment as defined under this policy.
Privacy vs. Confidentiality
Consistent with the Student Code of Conduct references made to confidentiality refer to the ability of identified confidential resources to not report crimes and violations to law enforcement or College officials without permission, except for extreme circumstances, such as a health and/or safety emergency or child abuse. References made to privacy mean the College offices and employees who cannot guarantee confidentiality but will maintain privacy to the greatest extent possible, and information disclosed will be relayed only as necessary to investigate and/or seek a resolution and to notify the Title IX Coordinator or designee, who is responsible for tracking patterns and spotting systemic issues. The College will limit the disclosure as much as practicable, even if the Title IX Coordinator determines that the request for confidentiality cannot be honored.
This Policy does not alter any College obligations under federal disability laws, including the Americans with Disabilities Act of 1990 and Section 504 of the Rehabilitation Act of 1973. Parties may request reasonable accommodations for disclosed disabilities to the Title IX Coordinator at any point before or during the Title IX Grievance Process that do not fundamentally alter the Process. The Title IX Coordinator will not affirmatively provide disability accommodations that have not been specifically requested by the parties, even where the parties may be receiving accommodations in other College programs and activities.
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), in person, by mail, by telephone, or by electronic mail, using the contact information listed for the Title IX Coordinator, or by any other means that results in the Title IX Coordinator receiving the person’s verbal or written report.
Contact Information for the Title IX Coordinator:
Dr. Latoya Blount
Executive Director for Student Engagement and College Life & Title IX Coordinator
Rockland Community College
145 College Road – Technology Center, Room 8135
Suffern, New York 10901-3699
Email: [email protected]
Such a report may be made at any time (including during non-business hours) by using the telephone number or electronic mail address, or by mail to the office address listed for the Title IX Coordinator.
The following Officials will provide privacy, but not confidentiality, upon receiving a report of conduct prohibited under this policy:
- All College officials and employees, unless otherwise identified below.
The following Officials may provide confidentiality:
- Licensed counselors in the College Counseling Center
- Clergy in the Religious Life offices
- Ombudsman in Student Success
See the Options to Confidentially Disclose Sexual Violence Policy at http://www.sunyrockland.edu/about/title- ix/options-for-confidentially-disclosing-sexual-violence.
Complainants (as defined above), who report allegations that could constitute covered sexual harassment under this policy, have the right to receive supportive measures from the College regardless of whether or not they desire to file a complaint, which may include but are not limited to counseling, extensions of deadlines or other course- related adjustments, modifications of work or class schedules, campus escort services, restrictions on contact between the parties (no contact orders), changes in work or housing locations, leaves of absences, increase security and monitoring of certain areas of the campus, and transfer to another SUNY Community College as appropriate. Supportive measures are non-disciplinary and non-punitive.
The College retains the authority to remove a Respondent from the College’s program or activity on an emergency basis, where the College (1) undertakes an individualized safety and risk analysis and (2) determines that an immediate threat to the physical health or safety of any student or other individual arising from the allegations of covered sexual harassment justifies a removal.
Behavior Assessment Committee (“BAC”) Guidelines
When the College determines such removal is necessary, the Respondent will be provided notice and an opportunity to challenge the decision immediately following the removal.
The College retains the authority to place a non-student employee respondent on administrative leave during the Title IX Grievance Process, consistent with the Student Code of Code and applicable Collective bargaining agreements.
The timeframe for the Title IX Grievance Process begins with the filing of a Formal Complaint. The Grievance Process will be concluded within a reasonably prompt manner, and no longer than ninety (90) business days after the filing of the Formal Complaint, provided that the Process may be extended for a good reason, including but not limited to the absence of a party, a party’s Advisor, or a Witness; concurrent law enforcement activity; or the need for language assistance or accommodation of disabilities. The procedure for applying for extensions is described below.
To file a Formal Complaint, a Complainant must provide the Title IX Coordinator a written, signed complaint describing the facts alleged. Complainants are only able to file a Formal Complaint under this Policy if they are currently participating in, or attempting to participate in, the education programs or activities of the College, including as an employee. For Complainants who do not meet this criterion, the College will utilize existing policy in the Student Code of Conduct, including the Sexual Violence Policy, the Sexual Harassment Policy, and the Equity & Compliance Policy:
If a Complainant does not wish to make a Formal Complaint, the Title IX Coordinator may determine a Formal Complaint is necessary. The College will inform the Complainant of this decision in writing, and the Complainant need not participate in the Process further but will receive all notices issued under this Policy and Process.
Nothing in the Title IX Grievance Policy or Student Code of Conduct, including the Sexual Violence Policy, the Sexual Harassment and the Equity & Compliance Policy prevents a Complainant from seeking the assistance of state or local law enforcement alongside the appropriate on-campus process.
A Complainant who files a Formal Complaint may elect, at any time, to address the matter through the College’s Informal Resolution Process. All parties to a Formal Complaint must agree to enter the Informal Resolution Process through an informed written consent. Information about this Process is available here: https://www.sunyrockland.edu/about/title-ix/title-ix-grievance-process/title-ix-informal-resolution-policy
The College may consolidate Formal Complaints alleging covered 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 covered sexual harassment arise out of the same facts or circumstances.
The Title IX Coordinator or another appropriate official without a conflict of interest or bias will determine if the instant Title IX Grievance Process should apply to a Formal Complaint. The Process will apply when all of the following elements are met, in the reasonable determination of the Title IX Coordinator:
- The conduct is alleged to have occurred on or after August 14, 2020; and
- The conduct is alleged to have occurred in the United States;
- The conduct is alleged to have occurred in the College’s education program or activity; and
- The alleged conduct, if true, would constitute covered sexual harassment as defined in this policy.
If all of the elements are met, the College will investigate the allegations according to the Title IX Grievance Process.
Allegations Potentially Falling Under Two Policies
If the alleged conduct, if true, includes conduct that would constitute covered sexual harassment and conduct that would not constitute covered sexual harassment, the Title IX Grievance Process will be applied to the investigation and adjudication of only the allegations that constitute covered sexual harassment.
If any one of these elements are not met, the Title IX Coordinator or another appropriate official without a conflict of interest or bias will notify the parties that the Formal Complaint is being dismissed for the purposes of the Title IX Grievance Policy. Each party may appeal this dismissal using the procedure outlined in “Appeals” below.
The Title IX Coordinator or another appropriate official without a conflict of interest or bias may dismiss a Formal Complaint brought under the Title IX Grievance Policy or any specific allegations raised within that Formal Complaint at any time during the investigation or hearing, if:
- A Complainant notifies the Title IX Coordinator in writing that they would like to withdraw the Formal Complaint, or any allegations raised in the Formal Complaint;
- The Respondent is no longer enrolled or employed by the College; or
- If specific circumstances prevent the College from gathering evidence sufficient to reach a determination regarding the Formal Complaint or allegations within the Formal Complaint.
Any party may appeal a dismissal determination using the Process set forth in “Appeals” below.
Notice of Dismissal
Upon reaching a decision that the Formal Complaint will be dismissed, the College will promptly send written notice of the dismissal of the Formal Complaint or any specific allegation within the Formal Complaint and the reason for the dismissal, simultaneously to the parties through their College email accounts. It is the responsibility of parties to maintain and regularly check their email accounts.
Notice of Removal
Upon dismissal for the purposes of Title IX, the College retains discretion to utilize the Student Code of Conduct, including the Sexual Violence Policy, the Sexual Harassment Policy and the Equity & Compliance Policy to determine if a violation of those policies has occurred.
If so, the College will promptly send written notice of the dismissal of the Formal Complaint under the Title IX Grievance Process and removal of the allegations to the applicable grievance process.
The Title IX Coordinator will draft and provide the Notice of Allegations to any party to the allegations of sexual harassment. Such notice will occur as soon as practicable after the College receives a Formal Complaint of the allegations if there are no extenuating circumstances.
The parties will be notified by their College email accounts if they are a student or employee, and by other reasonable means if they are neither.
The College will provide sufficient time for the parties to review the Notice of Allegations and prepare a response before any initial interview.
The Title IX Coordinator or other appropriate official may determine that the Formal Complaint must be dismissed on the mandatory grounds identified above and will issue a Notice of Dismissal. If such a determination is made, any party to the allegations of sexual harassment identified in the Formal Complaint will receive the Notice of Dismissal in conjunction with, or in separate correspondence after, the Notice of Allegations.
Contents of Notice
The Notice of Allegations will include the following:
- Notice of the College’s Title IX Grievance Process, including any Informal Resolution Process, and a hyperlink to a copy of the Process.
- Notice of the allegations potentially constituting covered sexual harassment and sufficient details known at the time the Notice is issued, such as the identities of the parties involved in the incident, if known, including the Complainant; the conduct allegedly constituting covered sexual harassment; and the date and location of the alleged incident, if known.
- 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.
- A statement that the parties may have an Advisor of their choice, who may be, but is not required to be, an attorney, as required under 34 C.F.R. § 106.45(b)(5)(iv);
- A statement that before the conclusion of the investigation, the parties may inspect and review evidence obtained as part of the investigation that is directly related to the allegations raised in the Formal Complaint, including the evidence upon which the College does not intend to rely in reaching a determination regarding responsibility and evidence that both tends to prove or disprove the allegations, whether obtained from a party or other source, as required under 34 C.F.R. § 106.45(b)(5)(vi); and
- The College prohibits knowingly making false statements or knowingly submitting false information during the Grievance Process and recognizes that the question of whether a particular conduct constitutes a violation of the Student Code of Conduct, the Sexual Harassment Policy or the Equity & Compliance Policy requires a case by case factual determination. The College recognizes that false accusations have serious effects on innocent persons. If it becomes clear that a person who has accused another of a violation has maliciously or recklessly made a false accusation, the accuser will be considered in violation of the Student Code of Conduct, the Sexual Harassment Policy or the Equity & Compliance Policy. It is important to note, however, that the fact that a complaint is not substantiated or is determined not to constitute a violation does not mean that the complaint was maliciously or recklessly made.
If, in the course of an investigation, the College decides to investigate allegations about the Complainant or Respondent that are not included in the Notice of Allegations and are otherwise “covered sexual harassment” falling within the Title IX Grievance Policy, the College will notify the parties whose identities are known of the additional allegations by their College email accounts or other reasonable means.
The parties will be provided sufficient time to review the additional allegations to prepare a response before any initial interview regarding those additional charges.
The College will provide the parties equal access to Advisors and support persons; any restrictions on Advisor participation will be applied equally.
The College has a long-standing practice of requiring students to participate in the Process directly and not through an advocate or representative. Students participating as Complainant or Respondent in this process may be accompanied by an advocate. Except where explicitly stated by this Policy, as consistent with the Final Rule, Advisors of Choice shall not participate directly in the Process as per standard policy and practice of the College.
The College will not intentionally schedule meetings or hearings on dates when the Advisors of Choice for all parties are not available, provided that the Advisors act reasonably in providing available dates and work collegially to find dates and times that meet all schedules.
The College’s obligations to investigate and adjudicate in a prompt timeframe under Title IX and other College policies apply to matters governed under this Policy, and the College cannot agree to extensive delays solely to accommodate the schedule of an Advisor of Choice. The determination of what is reasonable shall be made by the Title IX Coordinator or designee. The College will not be obligated to delay a meeting or hearing under this process more than five (5) days due to the unavailability of an Advisor of Choice and may offer the party the opportunity to obtain a different Advisor of Choice or utilize one provided by the College.
Notice of Meetings and Interviews
The College 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 a party, with sufficient time for the party to prepare to participate.
Each party may request a one-time delay in the Grievance Process of up to five (5) days for good cause (granted or denied in the sole judgment of the Title IX Coordinator, the Dean of Student Development, or designee), provided that the requestor provides reasonable notice and the delay does not overly inconvenience other parties.
For example, a request to take a five-day pause made an hour before a hearing for which multiple parties and their Advisors have traveled to and prepared for shall generally not be granted, while a request for a five-day pause in the middle of investigation interviews to allow a party to obtain certain documentary evidence shall generally be granted.
The Title IX Coordinator, the Dean of Student Development, or designee shall have sole judgment to grant further pauses in the Process.
General Rules of Investigations
An Investigator designated by the Title IX Coordinator will perform an investigation, under a reasonably prompt timeframe, of the conduct alleged to constitute covered sexual harassment after issuing the Notice of Allegations.
The College, and not the parties, has the burden of proof and the burden of gathering evidence, i.e., the responsibility of showing a violation of this Policy has occurred. This burden does not rest with either party, and either party may decide not to share their account of what occurred or may decide not to participate in an investigation or hearing. This does not shift the burden of proof away from the College and does not indicate responsibility.
The College cannot access, consider, or disclose medical records without a waiver from the party (or parent, if applicable) to whom the records belong or of whom the records include information. The College will provide an equal opportunity for the parties to present Witnesses, including fact and expert Witnesses and other inculpatory and exculpatory evidence (i.e., evidence that tends to prove and disprove the allegations), as described below.
Inspection and Review of Evidence
Prior to the completion of the investigation, the parties will have an equal opportunity to inspect and review the evidence obtained through the investigation. The purpose of the inspection and review process is to allow each party the equal opportunity to meaningfully respond to the evidence prior to conclusion of the investigation.
Evidence that will be available for inspection and review by the parties will be any evidence that is directly related to the allegations raised in the Formal Complaint. It will include any:
- Evidence that is relevant, even if that evidence does not end up being relied upon by the College in making a determination regarding responsibility; or
- Inculpatory or exculpatory evidence (i.e., evidence that tends to prove or disprove the allegations) that is directly related to the allegations, whether obtained from a party or other source.
All parties must submit any evidence they would like the Investigator to consider prior to when the parties’ time to inspect and review evidence begins. See 85 Fed. Reg. 30026, 30307 (May 19, 2020).
The College will send the evidence made available for each party and each party’s Advisor, if any, to inspect and review through an electronic format or a hard copy. The College is not under an obligation to use any specific process or technology to provide the evidence and shall have the sole discretion in terms of determining format and any restrictions or limitations on access.
The parties will have ten (10) business days to inspect and review the evidence and submit a written response by email to the Investigator. The Investigator will consider the parties’ written responses before completing the Investigative Report.
The College will provide copies of the parties’ written responses to the Investigator to all parties and their Advisors, if any. See 85 Fed. Reg. 30026, 30307 (May 19, 2020).
Requests to Extend Inspection and Review Process
The College may provide the parties five (5) business days after the initial inspection and review of evidence, and before the Investigator completes their Investigative Report, to provide additional evidence in response to their inspection and review of the evidence and then provide the parties five (5) business days to inspect, review, and respond to the party’s additional evidence through a written response to the Investigator. Those written responses may be disclosed to the parties. See 85 Fed. Reg. 30026, 30307 (May 19, 2020).
Any evidence subject to inspection and review will be available at any hearing, including for purposes of cross- examination.
Inclusion of Evidence Not Directly Related to the Allegations
Evidence obtained in the investigation that is determined in the reasoned judgment of the Investigator not to be directly related to the allegations in the Formal Complaint will not be disclosed, or may be appropriately redacted before the parties’ inspection to avoid disclosure of personally identifiable information of a student or employee. Any evidence obtained in the investigation that is kept from disclosure or appropriately redacted will be documented in a “privilege log” that may be reviewed by the parties and their Advisors, if any. See 85 Fed. Reg. 30026, 30438 (May 19, 2020).
The Title IX Coordinator will create an Investigative Report that fairly summarizes relevant evidence and will provide that Report to the parties at least ten (10) business days prior the hearing in an electronic format or a hard copy for each party’s review and written response.
The Investigative Report is not intended to catalog all evidence obtained by the Investigator, but only to provide a fair summary of that evidence.
Only relevant evidence (including both inculpatory and exculpatory—i.e., tending to prove and disprove the allegations—relevant evidence) will be referenced in the Investigative Report.
The Investigator may redact irrelevant information from the Investigative Report when that information is contained in documents or evidence that is/are otherwise relevant. See 85 Fed. Reg. 30026, 30304 (May 19, 2020).
General Rules of Hearings
The College will not issue a disciplinary sanction arising from an allegation of covered sexual harassment without holding a live hearing unless otherwise resolved through an informal resolution process.
The live hearing may be conducted with all parties physically present in the same geographic location, or at the College’s discretion, any or all parties, Witnesses, and other participants may appear at the live hearing virtually through any method of video conferencing selected by the College, in its sole discretion. This technology will enable participants simultaneously to see and hear each other. At its discretion, the College may delay or adjourn a hearing based on technological errors not within a party’s control.
All proceedings will be recorded through audiovisual recording. That recording will be made available to the parties for inspection and review.
Prior to obtaining access to any evidence, the parties and their Advisors must sign an agreement not to disseminate any of the testimony heard or evidence obtained in the hearing or use such testimony or evidence for any purpose unrelated to the Title IX Grievance Process. Once signed, this agreement may not be withdrawn. See 85 Fed. Reg. 30026, 30435 (May 19, 2020).
Continuances or Granting Extensions
The College may determine that multiple sessions or a continuance (i.e., a pause on the continuation of the hearing until a later date or time) is needed to complete a hearing. If so, the College will notify all participants and endeavor to accommodate all participants’ schedules and complete the hearing as promptly as practicable.
Newly Discovered Evidence
As a general rule, no new evidence or Witnesses may be submitted during the live hearing.
Participants in the Live Hearing
Live hearings are not public, and the only individuals permitted to participate in the hearing are as follows:
Complainant and Respondent (The Parties)
- The parties cannot waive the right to a live hearing.
- The College may still proceed with the live hearing in the absence of a party and may reach a determination of responsibility in their absence, including through any evidence gathered that does not constitute a “statement” by that party. See 85 Fed. Reg. 30026, 30361 (May 19, 2020).
- For example, a verbal or written statement constituting part or all of the sexual harassment itself is not a “prior statement” that must be excluded if the maker of the statement does not submit to cross- examination about that statement. In other words, a prior statement would not include a document, audio recording, audiovisual reading, and digital media, including but not limited to text messages, emails, and social media postings, that constitute the conduct alleged to have been the act of sexual harassment under the Formal Complaint. See OCR Blog (May 22, 2020), available at https://www2.ed.gov/about/offices/list/ocr/blog/20200522.html.
- The College will not threaten, coerce, intimidate, or discriminate against the party in an attempt to secure the party’s participation. See 34 C.F.R. § 106.71; see also 85 Fed. Reg. 30026, 30216 (May 19, 2020).
- If a party does not submit to cross-examination, the Decision-maker cannot rely on any prior statements made by that party in reaching a determination regarding responsibility but may reach a determination regarding responsibility based on evidence that does not constitute a “statement” by that party.
- The Decision-maker cannot draw an inference about the determination regarding responsibility based solely on a party’s absence from the live hearing or refusal to answer cross-examination or other questions. See 34 C.F.R. §106.45(b)(6)(i).
- The parties shall be subject to the College’s Rules of Decorum. See: http://www.sunyrockland.edu/about/title-ix/title-ix-grievance-process/decorum-policy-for-title-ix-grievance-process-hearings
- The hearing body will consist of a single Decision-maker.
- The Decision-maker will not also have served as the Title IX Coordinator, the Title IX Investigator, or an Advisor to any party in the case, nor may any member of the hearing body serve on the Appeals body in the case.
- The Decision-maker will not have a conflict of interest or bias in favor of or against Complainants or Respondents generally, or in favor or against the parties to the particular case.
- The Decision-maker will be trained on topics, including how to serve impartially, issues of relevance, including how to apply the rape shield protections provided for Complainants, and any technology to be used at the hearing.
- The parties will have an opportunity to raise any objections regarding a Decision-maker’s actual or perceived conflicts of interest or bias at the commencement of the live hearing.
Advisor of Choice
- The parties have the right to select an Advisor of their choice, who may be, but does not have to be, an attorney.
- The Advisor of choice may accompany the parties to any meeting or hearing they are permitted to attend but may not speak for the party, except for the purpose of cross-examination.
- The parties are not permitted to conduct cross-examination; it must be conducted by the Advisor. As a result, if a party does not select an Advisor, the College will select an Advisor to serve in this role for the limited purpose of conducting the cross-examination, at no fee or charge to the party.
- The Advisor is not prohibited from having a conflict of interest or bias in favor of or against Complainants or respondents generally, or in favor or against the parties to the particular case.
- The Advisor is not prohibited from being a Witness in the matter.
- If a party does not attend the live hearing, the party’s advisor may appear and conduct cross-examination on their behalf. See Fed. Reg. 30026, 30340 (May 19, 2020).
- If neither a party nor their Advisor appear at the hearing, the College will provide an Advisor to appear on behalf of the non-appearing party. See Fed. Reg. 30026, 30339-40 (May 19, 2020).
- Advisors shall be subject to the College’s Rules of Decorum and may be removed upon violation of those Rules. See: http://www.sunyrockland.edu/about/title-ix/title-ix-grievance-process/decorum-policy-for-title-ix-grievance-process-hearings
- Witnesses cannot be compelled to participate in the live hearing and have the right not to participate in the hearing free from retaliation. See Fed. Reg. 30026, 30360 (May 19, 2020).
- If a Witness does not submit to cross-examination, as described below, the Decision-maker cannot rely on any statements made by that Witness in reaching a determination regarding responsibility, including any statement relayed by the absent Witness to a Witness or party who testifies at the live hearing. See Fed. Reg. 30026, 30347 (May 19, 2020).
- Witnesses shall be subject to the College’s Rules of Decorum. See: http://www.sunyrockland.edu/about/title-ix/title-ix-grievance-process/decorum-policy-for-title-ix-grievance-process-hearings. See Fed. Reg. 30026, 30347 (May 19, 2020).
For all live hearings conducted under this Title IX Grievance Process, the procedure will be as follows:
- The Decision-maker will open and establish rules and expectations for the hearing;
- The parties will each be given the opportunity to provide opening statements;
- The Decision-maker will ask questions of the parties and Witnesses;
- The parties will be given the opportunity for live cross-examination after the Decision-maker conducts his/her/their initial round of questioning; During the parties’ cross-examination, the Decision-maker will have the authority to pause cross-examination at any time for the purposes of asking the Decision-maker’s own follow-up questions; and any time necessary in order to enforce the established Rules of Decorum.
- Should a party or the party’s Advisor choose not to cross-examine a party or Witness, the party shall affirmatively waive cross-examination through a written or oral statement to the Decision-maker. A party’s waiver of cross-examination does not eliminate the ability of the Decision-maker to use statements made by the party.
Live Cross-Examination Procedure
Each party’s Advisor will conduct live cross-examination of the other party or parties and Witnesses. During this live cross-examination, the Advisor will ask the other party or parties and Witnesses relevant questions and follow-up questions, including those challenging the Witness’ credibility directly, orally, and in real time.
Before any cross-examination question is answered, the Decision-maker will determine if the question is relevant. Cross-examination questions that are duplicative of those already asked, including by the Decision-maker, may be deemed irrelevant if they have been asked and answered.
Review of Recording
The recording of the hearing will be available for review by the parties within five (5) business days unless there are any extenuating circumstances. The recording of the hearing will not be provided to parties or Advisors of choice.
Standard of Proof
The College uses the preponderance of the evidence standard for investigations and determinations regarding responsibility of Formal Complaints covered under this Policy. This means that the investigation and hearing determine whether it is more likely than not that a violation of the Policy occurred.
General Considerations for Evaluating Testimony and Evidence
While the opportunity for cross-examination is required in all Title IX hearings, determinations regarding responsibility may be based in part, or entirely, on documentary, audiovisual, and digital evidence, as warranted in the reasoned judgment of the Decision-maker.
Decision-makers shall not draw inferences regarding a party or Witness’ credibility based on the party or Witness’ status as a Complainant, Respondent, or Witness, nor shall it base its judgments in stereotypes about how a party or Witness would or should act under the circumstances.
Generally, credibility judgments should rest on the demeanor of the party or Witness, the plausibility of their testimony, the consistency of their testimony, and its reliability in light of corroborating or conflicting testimony or evidence.
Still, credibility judgments should not rest on whether a party or Witness’ testimony is non-linear or incomplete, or if the party or Witness is displaying stress or anxiety.
Decision-makers will afford the highest weight relative to other testimony to first-hand testimony by parties and Witnesses regarding their own memory of specific facts that occurred. Both inculpatory and exculpatory (i.e., tending to prove and disprove the allegations) evidence will be weighed in equal fashion.
Except where specifically barred by the Title IX Final Rule, a Witness’ testimony regarding third-party knowledge of the facts at issue will be allowed but will generally be accorded lower weight than testimony regarding direct knowledge of specific facts that occurred.
The Final Rule requires that the College allow parties to call “expert Witnesses” for direct and cross-examination. While the expert Witness will be allowed to testify and be crossed as required by the Final Rule, the Decision- maker will be instructed to afford lower weight to non-factual testimony of the expert relative to fact Witnesses, and any expert testimony that is not directed to the specific facts that occurred in the case will be afforded lower weight relative to fact Witnesses, regardless of whether the expert Witness testimony is the subject of cross- examination and regardless of whether all parties present experts as Witnesses.
The Final Rule requires that the College allow parties to call character Witnesses to testify. While the character Witnesses will be allowed to testify and be crossed as required by the Final Rule, the Decision-maker will be instructed to afford very low weight to any non-factual character testimony of any Witness.
The Final Rule requires that the College admit and allow testimony regarding polygraph tests (“lie detector tests”) and other procedures that are outside of standard use in academic and non-academic conduct processes. While the expert Witness will be permitted to testify about the processes and be cross-examined as required by the Final Rule, the Decision-maker will be instructed to afford lower weight to such processes relative to the testimony of fact Witnesses.
Where a party or Witness’ conduct or statements demonstrate that the party or Witness is engaging in retaliatory conduct, including but not limited to Witness tampering and intimidation, the Decision-maker may draw an adverse inference as to that party or Witness’ credibility.
Components of the Determination Regarding Responsibility
The written Determination Regarding Responsibility will be issued simultaneously to all parties through their College email account or other reasonable means, as necessary. The Determination will include:
- Identification of the allegations potentially constituting covered sexual harassment;
- 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;
- Findings of fact supporting the Determination;
- Conclusions regarding which section of the Student Code of Conduct, or applicable College policy, the Respondent has or has not violated.
- For each allegation:
- A statement of, and rationale for, a determination regarding responsibility;
- A statement of, and rationale for, any disciplinary sanctions the recipient imposes on the Respondent; and
- A statement of, and rationale for, whether remedies designed to restore or preserve equal access to the College’s education program or activity will be provided by the College to the Complainant; and
- The College’s procedures and the permitted reasons for the Complainant and Respondent to appeal (described below in “Appeal”).
Timeline of Determination Regarding Responsibility
If there are no extenuating circumstances, the Determination Regarding Responsibility will be issued by the College within ten (10) business days of the completion of the hearing.
The Determination Regarding Responsibility becomes final either on the date that the College provides the parties with the written determination of the result of the appeal, if an appeal is filed consistent with the procedures and timeline outlined in “Appeals” below, or if an appeal is not filed, the date on which the opportunity to appeal expires.
Each party may appeal (1) the dismissal of a Formal Complaint or any included allegations and/or (2) a Determination Regarding Responsibility. To appeal, a party must submit their written appeal within five (5) business days of being notified of the decision, indicating the grounds for the appeal.
The limited grounds for appeal available are as follows:
- Procedural irregularity that affected the outcome of the matter (i.e., a failure to follow the College’s own procedures);
- 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, Investigator(s), or Decision-maker had a conflict of interest or bias for or against an individual party, or for or against Complainants or Respondents in general, that affected the outcome of the matter; and
- Severity of sanctions.
The submission of appeal stays any sanctions for the pendency of an appeal. Supportive measures and remote learning opportunities remain available during the pendency of the appeal.
If a party appeals, the College will as soon as practicable notify the other party in writing of the appeal, however the time for appeal shall be offered equitably to all parties and shall not be extended for any party solely because the other party filed an appeal.
Appeals may be no longer than five thousand (5,000) words or ten (10) pages (including attachments). Appeals should be submitted in electronic form using ARIAL or TIMES NEW ROMAN, 12-point font, and single-spaced. Appeals should use footnotes, not endnotes. Appeals that do not meet these standards may be returned to the party for correction, but the time for appeal will not be extended unless there is evidence that technical malfunction caused the appeal document not to meet these standards.
Appeals will be decided by a panel, who will be free of conflict of interest and bias and will not serve as Investigator, Title IX Coordinator, or hearing Decision-maker in the same matter.
Outcome of appeal will be provided in writing simultaneously to both parties and include rationale for the decision.
The College will keep the identity of any individual who has made a report or complaint of sex discrimination confidential to the extent permitted by law, including the identity of any individual who has made a report or filed a Formal Complaint of sexual harassment under this Title IX Grievance Policy, any Complainant, any individual who has been reported to be the perpetrator of sex discrimination, any Respondent, and any Witness, except as permitted by the FERPA statute, 20 U.S.C. 1232g, or FERPA regulations, 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 under this Title IX Grievance Policy.
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 of the Education Amendments of 1972 or its implementing regulations.
No person may intimidate, threaten, coerce, or discriminate against any individual 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 Title IX Grievance Policy.
Any intimidation, threats, coercion, or discrimination, for the purpose of interfering with any right or privilege secured by Title IX or its implementing regulations constitutes retaliation. This includes any charges filed against an individual for code of conduct violations that do not involve sex discrimination or sexual harassment but that arise from the same facts or circumstances as a report or complaint of sex discrimination or a report or Formal Complaint of sexual harassment. See Section II, paragraph J of the Student Code of Conduct.
Complaints alleging retaliation may be filed according to the College’s Student Code of Conduct, Sexual Harassment Policy and Equity & Compliance Policy grievance procedures for sex discrimination required to be adopted under § 106.8(c).