Investigation and Hearing Procedures for Formal Complaints of Sexual Harassment (FOR STUDENTS)
INVESTIGATION AND SANCTION
To initiate the investigation and hearing process for sexual harassment claims, a complainant must file a formal complaint with the Title IX Coordinator. A formal complaint requires the complainant’s physical or digital signature or other indicia that the complainant is the person filing the formal complaint. A formal complaint may be filed in person, by mail, by electronic email, or by electronic submission. A complainant may receive supportive measures without filing a formal complaint. Formal complaints may not be filed anonymously.
The Title IX Coordinator may sign a formal complaint when concerns exist for conduct threatening the safety of the Rio Grande campus community. The Title IX Coordinator is not a complainant or a party in the investigation and hearing process. At the time of filing a formal complaint, a complainant must be participating in or attempting to participate in a Rio Grande education program or activity.
Nothing in this policy detracts from any legal right of a parent or guardian to act on behalf of a complainant, respondent, or other individual, subject to Family Educational Rights and Privacy Act (FERPA), including but not limited to filing a formal complaint.
When a formal complaint is submitted, a Title IX Coordinator will determine whether the conduct satisfies the following three criteria: (1) the conduct alleged would, if proved, constitute Title IX sexual harassment; (ii) it occurred in Rio Grande’s education program or activity; (iii) it occurred in the United States.
If some but not all of the conduct alleged in the complaint satisfies all three of these elements, Rio Grande may choose to address the entire matter through this Title IX procedure. If it appears based upon initial review or upon information gathered during an investigation that the matter does not satisfy and/or no longer satisfies all three of these elements, Rio Grande will, as required by Title IX regulations, dismiss the matter from this procedure and transfer it for handling under any other applicable policies and/or procedures, so long as that transfer would not violate the Title IX regulations.
If the respondent is a student and an employee, the Title IX Coordinator will determine which procedures apply based upon the facts and circumstances, such as whether the respondent’s status as a student or an employee predominates in the context of the prohibited conduct. The student-employee may be subject to sanctions both in connection with their employment and in connection with their student status, as appropriate under these and other applicable procedures.
PRESUMPTION OF NOT RESPONSIBLE
Throughout the process, there is a presumption that the respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the investigation and hearing process. Disciplinary sanctions or other actions that are not supportive measures will be imposed against a respondent only after completion of an investigation and hearing process that complies with this program.
Complainants and respondents shall be treated equitably throughout the investigation and hearing process.
STANDARD OF EVIDENCE
The standard of evidence to be used to determine responsibility for sexual harassment is the preponderance of the evidence. Rio Grande will look at the totality of the circumstances, including the nature of the alleged offense as well as the location of and the context in which the alleged incident(s) occurred. The determination as to whether a particular action constitutes a violation will be a factual determination made on a case-by-case basis based on relevant evidence. In the investigation and hearing process, an objective evaluation of all relevant evidence is required, including both inculpatory and exculpatory evidence.
Credibility determinations will not be based on a person’s status as a complainant, respondent, or witness.
REASONABLY PROMPT TIMEFRAMES
Rio Grande shall make appropriate efforts to ensure that, from the date of its receipt of a formal complaint, the investigation, hearing, and issuance of the adjudicating body’s report shall be concluded within ninety (90) business days. Appeals are expected to be resolved within twenty (20) business days after the parties’ submission of their statements.
Rio Grande shall make appropriate efforts to ensure, except where otherwise agreed to by the parties, that from the date of its receipt of a formal complaint, informal resolution processes shall be concluded within ninety (90) business days.
Temporary delay of the investigation and hearing process or the limited extension of timeframes for good cause, with written notice to the complainant and the respondent of the delay or extension and the reasons for the action, are permissible. Good cause may include, but is not limited to, 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 accommodation of disabilities.
EMERGENCY REMOVAL/ADMINISTRATIVE LEAVE
Rio Grande may remove a respondent from Rio Grande’s program, activity, property, or place the respondent on administrative leave on an emergency basis after conducting an individualized safety and risk analysis and determining that an immediate threat to the physical health or safety of any student or other individual arising from the allegations of sexual harassment justifies removal. Emergency removal/administrative leave determinations and appeals shall be conducted in accordance with established Rio Grande policies, procedures, and agreements. For more information, see the Community Code and Residence Life Code, Human Resource policies and procedures, and/or applicable collective bargaining agreements. Rio Grande will provide the respondent with notice and an opportunity to challenge the decision immediately following the removal or administrative leave.
Upon receipt of a formal complaint of sexual harassment, the Title IX Coordinator or designee will provide written notice to the known parties with the following information:
A description of Rio Grande’s resolution, hearing, and investigation process, including any applicable informal resolution process.
Notice of the allegations of sexual harassment. The notice will provide sufficient details known at the time, which include the identities of the parties involved in the incident, if known, the conduct allegedly constituting sexual harassment, and the date and location of the alleged incident, if known. The parties will be provided sufficient time to prepare a response before any initial interview.
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 investigation and hearing process.
Notice that the parties may have an advisor of their choice, who may be, but is not required to be, an attorney, and may inspect and review evidence.
Notice that Rio Grande prohibits knowingly making false statements or knowingly submitting false information during the investigation and hearing process.
Information regarding resources available to provide academic and personal support on and off campus, including counseling services, academic advising, and resources for pursuing complaint resolution.
If, in the course of an investigation, Rio Grande decides to investigate allegations about the complainant or respondent that are not included in the initial written notice of a formal complaint, or additional allegations which are outside the scope of the Title IX Committee’s jurisdiction, the appropriate Rio Grande office shall provide notice of the additional allegations to the parties whose identities are known.
INFORMAL RESOLUTION PROCESS
Informal resolution is a voluntary process through which parties consensually work toward resolution of a matter. The informal resolution process provides a remedies-based approach specific to the circumstances of the incident, without making a determination as to whether a policy has been violated. This approach allows the parties and Rio Grande to tailor responses to the unique facts and circumstances of an incident, particularly in cases where there is not a broader threat to individual or campus safety.
Rio Grande will not offer or facilitate an informal resolution process to resolve allegations that an employee sexually harassed a student.
Prior to initiating an informal resolution process, Rio Grande will:
Provide the parties with a written notice:
Disclosing the allegations and 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 and the consequences of beginning and then abandoning the informal resolution process.
Explaining 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 investigation and hearing process with respect to the formal complaint
Obtain the parties’ voluntary, written consent acknowledging their desire to participate in the informal resolution process.
Informal resolution processes shall be conducted confidentially to the extent permitted by law. Informal resolution processes may result in the creation of records and/or other materials subject to institutional record retention policies, as permitted by the Family Education Rights and Privacy Act, or as required by law.
Following the conclusion of an informal resolution process, written notice of the outcome and closure of the formal complaint will be provided to the parties within thirty (30) business days.
FORMAL COMPLAINT RESOLUTION
The formal complaint resolution process consists of an investigation and a hearing before the University Hearing Board. As used in this program, the term “investigation” refers to the process that Rio Grande uses to review allegations and gather relevant evidence. Unless a respondent accepts responsibility, at the conclusion of the investigation, a hearing will be held to determine: (1) whether or not conduct in violation of this Policy occurred; and (2) if the conduct occurred, what actions Rio Grande will take to respond, remediate, eliminate, and prevent recurrence of the prohibited conduct within the Rio Grande campus community, which may include imposing disciplinary or corrective action and/or the provision of remedies to affected parties and/or the Rio Grande campus community.
B. Burden of Proof
Rio Grande has the burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility.
i. Gathering of Evidence
The investigating official shall interview individuals involved, witnesses, and any other persons determined to have relevant knowledge of the circumstances and/or deemed necessary for the completion of a thorough and accurate investigation. Each party shall have an equal opportunity to present witnesses, including fact and expert witnesses, as well as other inculpatory or exculpatory evidence. Rio Grande shall not restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence.
ii. Consent to Use Certain Records
Rio Grande will not 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 Rio Grande obtains that party’s voluntary, written consent to do so.
iii. Inspection of Evidence
Both parties shall have an equal opportunity to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in the formal complaint, including the evidence upon which Rio Grande 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. Rio Grande shall make all evidence subject to the parties’ inspection and review available at any hearing to give each party equal opportunity to refer to that evidence during the hearing, including for purposes of cross-examination.
Prior to the completion of the investigative report, Rio Grande 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, and the parties will have at least ten (10) business days to submit a written response, which the investigating official will consider prior to completion of the investigative report. For Rio Grande to contact the party’s advisor, the party is responsible for providing the name of the advisor(s) to Rio Grande prior to this deadline.
Rio Grande campus community members are expected to comply with reasonable investigating official requests for records, documentation, and/or other materials and to cooperate in the investigatory process, including the timely arrangement of meetings, evidence production, and following of investigating official directives. A factual finding and/or appropriate corrective or disciplinary action may be taken against Rio Grande campus community members who disrupt, obstruct, and/or otherwise fail to cooperate in Rio Grande investigatory processes.
Rio Grande 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.
vi. Investigative Report
The investigative report will be simultaneously distributed to all parties and their advisors, if any, at least ten (10) business days prior to a hearing in an electronic format or hard copy for their review and written response. The report will not contain any findings or conclusions, but will instead fairly summarize the relevant evidence and will contain:
A summary of alleged conduct in violation of this Policy, including a description of the impact or effect alleged to have been caused;
A summary of the response to the allegations;
A summary of facts found during the investigation; and
Analysis of the application of this Policy to facts found in the investigation.
vii. Extensions of Time
Where parties, witnesses, and/or evidence needed by the investigating official are delayed, temporarily unavailable, and/or otherwise withheld, good cause exists for the investigating official to extend the timeframe of the investigatory process as necessary to complete a thorough and appropriate review of the matter. When an extension is inevitable, the investigating official shall notify the parties simultaneously with written notice of the delay or extension and the reasons for the action.
Any hearing involving potential sexual harassment will proceed as follows:
APPEARANCE OF PARTIES: In the absence of an informal resolution or a respondent accepting responsibility, a live hearing shall be conducted to determine responsibility. Hearings may be conducted with all parties physically present in the same geographic location, or at Rio Grande’s discretion, any or all parties, witnesses, or other participants may appear at the hearing virtually, with technology enabling participants simultaneously to see and hear each other. The Chairperson of the University Hearing Board reserves the right to make appropriate accommodations to secure the safety and comfort of all parties and witnesses during a sexual harassment proceeding or reasonable accommodations required under law. This may include periodic breaks so parties may speak with their advisors.
SUBPOENA OF WITNESSES: The University Hearing Board will have the authority to subpoena any appropriate faculty member, staff member, or currently enrolled student to appear and testify at a hearing. Any of the parties or the investigating official may request such a subpoena. The request for subpoena must be submitted to the University Hearing Board 3 business days prior to the scheduled hearing. In addition, the parties and the investigating official may call witnesses who are not faculty, staff, or students and who are willing to appear at the hearing.
ADVISOR: Parties may elect to have up to two advisors of their choice. An advisor may consult with a party verbally or in writing in a quiet, non-disruptive manner, and an advisor may not participate as a spokesperson or vocal advocate in meetings, interviews, or hearings, other than as described below, and must comply with all rules of decorum established for the particular proceeding. Should the matter proceed to a hearing, one advisor will be responsible for conducting cross-examination of witnesses. If a party does not have an advisor for a hearing, Rio Grande will provide one free of charge to the party for the purpose of conducting cross-examination of witnesses on behalf of the party. Parties are not permitted to conduct cross-examination of witnesses directly. Cross-examination may be conducted only through an advisor.
The name of any party’s advisor must be submitted in writing to the University Hearing Board at least 5 business days before the hearing.
RECORDING: Rio Grande will create an audio or audiovisual recording of the live hearing. Panel deliberations will not be recorded. Any record of the hearing will remain the property of Rio Grande and be subject to the Family Educational Rights and Privacy Act. The parties will be permitted access to inspect and review the recording.
HEARING: Hearings will generally be closed to observers. Any party may request to open the hearing to named observers. Requests may be submitted to the University Hearing Board up to 24 hours prior to the scheduled hearing. All parties should remember that Rio Grande does not tolerate retaliatory conduct – including intimidation tactics – resulting from a report of a potential Policy Against Sex-Based Discrimination violation. Retaliatory conduct will be subject to further disciplinary proceedings.
The investigating official will be present to answer questions. If either party or a witness does not submit to cross-examination at the hearing, the panel must not rely on any statement of that party or witness in reaching a determination regarding responsibility; provided, however, that the panel cannot draw an inference about the party’s or witness’ testimony or credibility based solely on a party’s or witness’ absence from the live hearing or refusal to answer cross-examination or other questions. The parties shall be afforded the same opportunities to have witnesses present for hearings.
ORDER OF HEARING:
Call to order by Chairperson.
Summary of the formal complaint and investigation report.
Statement by the complainant.
Statement by the respondent.
Evidence, including witness testimony, may be presented by the parties. Following the presentation of each witness called, the witness will be available for questions from the other party’s advisor and the University Hearing Board.
Evidence presented by the complainant.
Evidence presented by the respondent.
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.
Statement by the complainant.
Statement by the respondent.
Deliberation. The University Hearing Board will deliberate outside the presence of others to determine whether the evidence shows it is more likely than not that the respondent(s) did or did not engage in conduct that constitutes sexual harassment.
Decision. The University Hearing Board will issue a written decision within 5 business days following the last day of the hearing. The written decision will include:
Identification of the allegations potentially constituting sexual harassment as defined in this Policy.
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 the application of the Policy to the facts;
A statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility, any disciplinary sanctions Rio Grande imposes on the respondent, and whether remedies designed to restore or preserve equal access to Rio Grande’s education program or activity will be provided by Rio Grande to the complainant; and
Rio Grande’s procedures and permissible bases for the complainant and respondent to appeal.
Rio Grande will provide the written determination to the parties simultaneously. Records related to the hearing and the determination will be retained by the Title IX Committee for a minimum of seven years.
APPEAL: Any party may appeal the University Hearing Board’s decision to the Rio Grande President,or designee. If the allegation is against the President, the appeal goes to the Provost. The party wishing to appeal must file a notice of appeal with the Dean of Student Success within 3 business days following the delivery of the written disposition. Within 10 business days following the delivery of the written disposition, the party initiating the appeal must file a written appeal with the Office of the Dean of Student Success. The written appeal may not exceed 15 pages in length and must be addressed to the President of the University. Parties may appeal on the following bases: (A) procedural irregularity that affected the outcome of the matter; (B) 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; (C) the Title IX Coordinator, investigating official(s), or decision-maker(s) 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 (D) the University Hearing Board’s written determination is not supported by the evidence.
Rio Grande will notify the other party in writing when an appeal is filed. That party will then have 10 business days to submit a written statement in support of, or challenging, the outcome. That statement shall not exceed 15 pages in length.
REVIEW ON APPEAL: The President, Provost, or designee, as the case may be, will review the written appeal and statements, a recording of the hearing, and the hearing minutes. The President, Provost, or designee will come to one of the following conclusions:
The evidence (including any new evidence) supports the University Hearing Board’s written determination, and the sanction imposed is appropriate.
The evidence (including any new evidence) supports the University Hearing Board’s written determination, but the sanction imposed is inappropriate and another sanction the President believes is appropriate will be levied.
There was a procedural irregularity creating an unfair result, and the matter must be re-investigated and re-heard under the supervision of the President or Provost.
There was a conflict of interest or bias affecting the outcome of the matter, requiring re-investigation and another hearing under the supervision of the President or Provost.
The President or Provost will issue a written decision describing the result of the appeal and the rationale for the result to both parties at the same time.
All sanctions that are appealed will remain in effect during the appellate process, except when the Dean of Student Success, in consultation with the Title IX Coordinator, has determined otherwise.