Formal Investigation and Hearing Process

When a formal complaint is made, and an Informal Resolution process is not chosen, the Formal Investigation and Hearing Process is initiated. This includes an investigation and hearing.

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.

A. Notice of Investigation and Allegations

The Title IX Coordinator will draft and provide the Notice of Investigation and Allegations (NOIA) to both parties. Such notice will occur as soon as practicable, after the institution receives a formal complaint of the allegations, if there are no extenuating circumstances.

The parties will be notified by their institutional email accounts if they are a student or employee, and by other reasonable means if they are neither. Notice will be presumptively delivered once emailed.

The institution will provide sufficient time for the parties to review the Notice of Allegations and prepare a response before any initial interview.

1. Contents of NOIA

The NOIA will include the following:

• Notice of the institution’s Title IX and Gender-Based Misconduct Policy and a hyperlink to a copy of the applicable process.
• Notice of the allegations potentially constituting gender-based misconduct, 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 gender-based misconduct; and the date and location of the alleged incident, if known.
• Notice of the name of the investigator(s) assigned to conduct the investigation and how to raise a conflict of interest or bias, or that an investigator will be assigned;
• 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 Formal Investigation and Hearing Process.
• A statement that the parties may have an adviser of their choice, who may be, but is not required to be, an attorney;
• 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 institution 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;
• A list of possible sanctions for each alleged conduct;
• A statement that knowingly submitting false statements and/or manipulated, altered, or falsified evidence is prohibited;
• A statement that retaliation is prohibited.

2. Ongoing Notice

The Title IX Coordinator may update an NOIA as the investigation progresses and more information becomes available regarding the addition or dismissal of various alleged policy violations.

The parties will be provided with sufficient time to review the additional alleged policy violations to prepare a response before any initial interview regarding those additional alleged violations.

B. Investigation

When a Formal Investigation and Hearing is initiated, the Title IX Coordinator will appoint an investigator or investigators to conduct a thorough, impartial, reliable, and prompt investigation of the alleged misconduct. The College may appoint any qualified investigator, either internal or external to the College. To the extent possible, the investigator will interview each party and all relevant witnesses, conduct follow-up interviews as necessary, and gather all available relevant evidence. Employees are required to participate in an investigation. Students may decide to not participate in the investigation or the hearing. The investigator will determine the order and method of investigation, including which questions are asked of parties and witnesses and whether to conduct any follow-up interviews.

The investigator will provide the parties and witnesses with an opportunity to review summary notes or a written transcript from their interview. The party or witness has three days to review the summary notes or transcript of their own interview and to raise any concerns regarding accuracy of the notes or transcript in writing. If the party or witness does not respond to the notes or transcript, the notes or transcript will be presumed to be accurate. The investigator will only ask relevant questions; questions are relevant when they seek evidence that may aid in showing whether or not the alleged misconduct occurred.

All parties will be given an equal opportunity to present information. This includes the opportunity to present witnesses and other evidence that the party believes tends to prove or disprove the allegations. However, the burden of gathering evidence to determine whether or not a policy violation has occurred always remains with the College. The investigator may decline to interview any witness or to gather information they do not believe is relevant.

As is required by federal Title IX regulations, parties are allowed to submit character and expert witnesses and submit polygraph tests (“lie detector tests”). While these witnesses and this information is allowed to be submitted, it is at the discretion of the hearing chair and/or hearing panelists to determine how much weight to give such testimony and information.

Evidence about the complainant’s sexual predisposition or prior sexual behavior is not allowed, unless it is being offered to prove that someone other than the respondent committed the alleged conduct, or it concerns specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent.

Evidence about a party’s mental health diagnosis and/or treatment (including medical, psychological, and similar records) may not be introduced unless that party has provided their voluntary and written consent for such material to be made part of the investigation.

No unauthorized audio or video recording of any kind is permitted during investigation meetings. If the investigator elects to audio and/or video record interviews, all involved parties will be made aware of such recording. Parties, advisers, and witnesses are not permitted to record any part of the investigation meetings.

An investigation may be extended for good cause, such as witness unavailability or breaks in the academic schedule, or other similar circumstances. The College will work to complete each investigation following the filing of a formal complaint within 90 days.

C. Opportunity for Inspection and Review of Evidence

The complainant and respondent will be provided an equal opportunity to inspect and review any evidence obtained in the investigation directly related to the allegations, regardless of whether the information will be relied on in reaching a determination. 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, unless such additional submissions are in response to the inspection and review of previously submitted evidence. Prior to obtaining access to the directly related evidence, parties must sign an agreement regarding the privacy of evidence in a Formal Investigation and Hearing Process. Prior to the completion of the investigative report, the complainant and respondent, and each party’s adviser, if any, will be provided a copy (which may be sent in hard copy or electronic format or made available through an electronic file sharing platform) of the evidence, subject to redaction permitted and/or required by law. The complainant and respondent will be provided with 10 days to submit a written response, which the investigator will consider prior to completion of the investigative report. The investigator will determine if additional investigation is necessary and, if so, will complete any additional investigative steps.

D. Investigative Report

At the conclusion of the investigation, the investigator will complete a written investigative report that fairly summarizes all relevant evidence. The investigator need not include information in the investigative report that the investigator determines not relevant or otherwise excludable. The investigator will submit the investigative report to the Title IX Coordinator. The Title IX Coordinator will determine if the investigative report is thorough and complete and will refer it back to the investigator if additional investigation is necessary or required. The Title IX Coordinator, or the investigator at the direction of the Title IX Coordinator, will share a copy of the investigative report with the complainant, respondent, and any advisers at least 10 days prior to a hearing. Parties will be given an opportunity to access the evidence file upon request and respond to the investigative report and evidence in writing prior to the hearing.

E. Referral for a Hearing

Provided that parties do not wish for the complaint to be resolved through an Informal Resolution Process, the Title IX Coordinator will refer the matter for a hearing. Hearings will be held using virtual conferencing technology, and the Title IX Coordinator will provide an access link prior to the hearing.

The Title IX Coordinator will designate a hearing chair, who may be either internal or external to the College. The hearing chair will be responsible for conducting a hearing and serving as decision-maker. The Title IX Coordinator has discretion to appoint additional hearing panel members. If there are additional hearing panel members, there shall be an odd number of hearing panel members (i.e., three or five panel members including the hearing chair). The Title IX Coordinator may act as a hearing facilitator. The hearing facilitator will not serve as a decision-maker and will be present only to assist with logistics and to help address any procedural concerns that arise during the hearing.

F. Notice of Hearing

The Title IX Coordinator will send a notice of hearing to the parties at least 10 days prior to the hearing. The notice will contain:

• The time and date of the hearing;
• The policy violation(s) that the respondent is charged with violating and the range of sanctions, should they be found responsible;
• An overview of the format of the hearing;
• A list of all those who will attend the hearing, including the name of the hearing chair. The notice will inform the parties that they may challenge the selected hearing chair on the basis of conflict or bias, provided such challenge is submitted to the Title IX Coordinator in writing, detailing the rationale for the objection, at least 2 days prior to the hearing. Bias or conflict of interest will be judged by an objective standard (whether a reasonable person would conclude the hearing chair is biased).
• A statement that if any party or witness does not appear at the scheduled hearing, the hearing may be held in their absence.
• Notification that the parties may have the assistance of an adviser at the hearing. If the party has not had an adviser during the investigation, the party must notify the Title IX Coordinator at least 2 days prior to the hearing of the name of their adviser or if they do not have an adviser that will attend the hearing and they will need an adviser appointed to them, free of charge, by the College for the purpose of cross-examination at a hearing.
• An invitation to each party to submit to the Title IX Coordinator an impact statement prior to the hearing that will be submitted to the hearing chair for review during any sanction determination. The hearing chair will only review the impact statements after a determination of responsibility has been made and only if there is a finding of responsibility on at least one allegation.
• An invitation to contact the Title IX Coordinator to arrange any disability accommodations that have been approved through the standard process with the Office of Access and Disability Services, language assistance, and/or interpretation services that may be needed at the hearing. The party must notify the Title IX Coordinator at least 2 days prior to the hearing if they have a need for accommodations.

The Title IX Coordinator may postpone a hearing for good cause, as determined by the Title IX Coordinator. Good cause may include, without limitation, unavailability of one or more participants due to unanticipated events or circumstances, the timing of academic breaks or holidays, or other extenuating circumstances.

Hearings that are unable to be resolved prior to the end of an academic term will typically be held immediately after the end of the term, as needed, to meet the resolution timeline followed by the College. In these cases, if the respondent is a graduating student, a hold may be placed on graduation and/or official transcripts until the matter is fully resolved (including any appeal).

G. Pre-Hearing Preparation

Prior to the hearing, parties may submit questions they would like to ask of the other party and any witnesses during the hearing. Identifying witnesses that a party wishes to call and submitting questions in advance will allow the hearing chair to evaluate the relevance of proposed questions in advance, and therefore help the hearing run more efficiently. This does not preclude parties from conducting cross examination through their advisers directly, orally, and in real time at the hearing, including asking questions in addition to those submitted in advance. The hearing chair will share any rulings on the relevance of proposed questions at the hearing. The hearing chair may consult with legal counsel and/or the Title IX Coordinator regarding these decisions.

If all parties agree, the hearing chair may decide prior to the hearing that certain witnesses do not need to be present at the hearing.

H. Hearing Participants

Hearing participants will typically include the hearing chair and any hearing panel members, if applicable, the complainant and the respondent, their respective advisers, and witnesses (solely during their own testimony). The investigator may also participate in the hearing as a witness, and solely during their own testimony. Hearings are private. Observers or additional support personnel, other than the parties’ advisers, are not allowed unless deemed necessary by the Title IX Coordinator for purposes such as accommodation of a disability.

I. Advisers

The complainant and the respondent must each have an adviser present with them during the hearing. If a party has not identified an adviser prior to the hearing, the College will provide, without fee or charge to that party, an adviser of the College’s choice. Advisers must sign an agreement provided by the Title IX Office prior to participating in any resolution process.

Except with respect to questioning as described below, an adviser’s role in a hearing is limited to supporting and consulting with their advisee. An adviser may not present evidence, address the hearing chair during the hearing, object to any aspect of the proceeding, or disrupt the hearing in any way. Any consultation with the advisee while the hearing is in progress must be done in a quiet, nondisruptive manner or in writing.

If a party’s adviser refuses to comply with the College’s established rules of decorum during the hearing, the College may require the adviser to leave the hearing. If an adviser refuses to comply with the rules of decorum, the College may provide that party with a different adviser to complete the hearing.

J. Evidentiary Consideration & Procedural Issues During Hearings

Only relevant and not otherwise impermissible questions will be asked of a party or a witness. The hearing chair will determine whether each individual question is relevant. Impermissible questions and evidence include questions and evidence about the complainant’s sexual predisposition or prior sexual behavior (unless such questions and evidence 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) and questions and evidence about a party’s mental health diagnosis and/or treatment, including medical, psychological, and similar records, (unless that party has provided their voluntary and written consent for such material to be made part of the investigation).

The hearing chair may consult with the hearing facilitator to address any procedural issues that arise during the hearing. The parties are offered the opportunity to raise issues of bias or conflict of interest of an investigator or hearing chair at the time the parties are provided their names, and all such issues of bias or conflict of interest shall be made at that time. However, if new or previously unknown issues of bias or conflict of interest of an investigator or hearing chair are raised at the hearing, the hearing chair may elect to address those issues, consult with legal counsel and/or the Title IX Coordinator, and/or preserve the issues for appeal.

K. Hearings

Hearings will begin with an opportunity for an opening statement by the complainant, followed by an opportunity for an opening statement by the respondent. The complainant, respondent, and witnesses may then be questioned by the hearing chair and, if desired, by advisers on behalf of the parties. The hearing chair may also ask their own follow-up questions. An adviser’s questioning of the other party and any witnesses must be conducted in a respectful, non-intimidating, and non-abusive manner.

The hearing chair will permit each party’s adviser to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility. Questioning must be conducted by the party’s adviser in a respectful, non-intimidating and non-abusive manner, and never by a party directly. Advisers must submit each proposed question in writing to the chair for review before posing that question to a party or witness. Only relevant questions may be asked by a party’s adviser to a party or witness. The chair will first determine whether the question is relevant and explain any decision to exclude a question as not relevant. The chair will limit or disallow questions on the basis that they are irrelevant, unduly repetitious (and thus irrelevant), or abusive. If a question is not permitted, the chair will acknowledge that decision on the record, and the adviser will not ask the question. The chair has final say on all questions and determinations of relevance, and these decisions are not subject to objection or reconsideration during the hearing. The chair may consult with legal counsel on any questions of relevance or admissibility.

If a party or witness chooses to not answer questions at the hearing or to not attend the hearing, the hearing chair may still rely on prior statements made by that party or witness. The chair may not draw any inference as to responsibility based solely on a party’s or witness’s absence from the hearing or refusal to answer cross-examination questions, but may choose to place less or no weight upon statements by a party or witness who refuses to respond to questions deemed relevant and not impermissible.

After questioning is completed, each party will have an opportunity to make a closing statement, beginning with the respondent. The chair will then close the hearing and proceed to deliberation.

Hearings (but not deliberations) will be recorded by the College. The parties may not record the proceedings, and no unauthorized recordings are permitted. Parties and their advisers may not use cell phones or recording devices during the hearing. The hearing recording will be made available to the parties, upon request, for inspection and review. Prior to obtaining access to the recording, parties must sign an agreement regarding the hearing recording. No person will be given or be allowed to make a copy of the recording without permission of the Title IX Coordinator.

L. Hearing Determinations

The hearing chair will determine if the respondent is “not responsible” or “responsible” as to each individual allegation and use the “preponderance of the evidence” standard of proof, which requires a determination as to whether it is more likely than not that a policy violation occurred. If there are additional hearing panel members, the determination as to responsibility shall be a majority decision by all hearing panel members, but need not be unanimous. The hearing facilitator will remain available to answer any procedural questions by the hearing chair and any hearing panel members.

When there is a finding of responsibility on one or more of the allegations, the hearing chair will also determine sanctions. Where a hearing was conducted with additional hearing panel members, sanctions will be determined by the hearing panel based on a majority decision, but need not be unanimous. The hearing chair and/or hearing panel members will consider previously submitted impact statements in determining appropriate sanctions. The hearing chair will ensure that each of the parties has an opportunity to review any impact statement submitted by the other party. In addition to any impact statements, factors considered when determining sanctions may include:

• The nature and severity of, and circumstances surrounding, the violation(s);
• The respondent’s state of mind at the time of the violation(s) (intentional, knowing, bias-motivated, reckless, negligent, etc.);
• The respondent’s previous disciplinary history;
• The need to remedy the effects of the conduct on the complainant and/or the community;
• The impact of potential sanctions on the respondent;
• Sanction guidelines contained within this Policy;
• Sanctions imposed by the College in other matters involving comparable conduct; and
• Any other lawful factors deemed relevant by the hearing chair and/or hearing panel members.

M. Notice of Outcome

The hearing chair will issue a written Notice of Outcome sent simultaneously to the parties within 10 days of the hearing. This notice will include:

• A description of the allegations that were adjudicated;
• Information about the policies and procedures that the College used to evaluate the allegations;
• A description of the procedural steps taken from the submission of the complaint through the determination, including notifications to the parties, interviews with parties and witnesses, 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 to be imposed on the respondent, and whether remedies designed to restore or preserve equal access to the College’s educational programs or activities will be provided to the complainant;
• When there is a determination that prohibited conduct occurred, a statement that remedies other than the imposition of disciplinary sanctions will be provided by the College to the complainant, and, to the extent appropriate, other students identified by the College to be experiencing the effects of the sex-based harassment; and
• The procedures and permissible bases for the complainant and respondent to appeal.