As of August 2020, the Depatment of Education has issued new Title IX regulations that address how a university is required to respond to a complaint of sexual harassment or misconduct.
The new regulations identify and define the offenses that would violate the Sexual Misconduct Policy and provide options for the student to proceed through the process.
Title IX has limited jurisdiction, and the university is required to dismiss complaints that are not covered under the university's Sexual Misconduct Policy.
The university is required to conduct a sexual misconduct resolution process prior to the issuance of any disciplinary sanctions.
All determinations are subject to appeal, and any retaliation for participating in the process violates the Sexual Misconduct Policy.
- When you hear “Title IX” case it has become shorthand for any campus disciplinary process involving sex discrimination, including those arising from sexual harassment and sexual assault.
- However, under the Final Rule, we must narrow the geographic scope of its authority to act under Title IX and the types of “sexual harassment” that it must subject its Title IX investigation and adjudication process.
- Only incidents falling under 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.
- The Student Conduct Process and Regulations section of ESU's Student Handbook defines certain behavior as a violation of campus policy. In addition, ESU's Sexual Misconduct Policy addresses the type of sex-based offenses constituting violations of Title IX regulations and the procedures for investigating and adjudicating those sex-based offenses.
- To the extent that the alleged misconduct falls outside of the Title IX Grievance policy, or misconduct falling outside the Title IX Grievance policy is discovered during the course of investigating covered Title IX misconduct, ESU retains the right to investigate and adjudicate the allegations under the policies and procedures defined in the Student Handbook through a separate grievance proceeding.
- Please also reference the University Non-Discrimination Statement in the application of the protections of the policy.
For the purposes of the Title IX grievance policy, covered sexual harassment includes any conduct on the basis of sex 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 so severe, pervasive, AND objectively offensive that it effectively denies a person equal access to the University’s educational program or activity;
- Sexual assault (as defined by 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:
- Who is or has been in a social relationship of a romantic or intimate nature with the victim; and
- Where the existence of such a relationship shall be determined based on the consideration
of the following factors:
- The length of the relationship;
- The type of relationship; and
- The frequency of the 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 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 Pennsylvania’s 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 Pennsylvania.
- 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 own safety or the safety others; or (b) suffer substantial emotional distress.
- Request that nothing be done. This will generally end the Title IX grievance process.
- Request that nothing be done, but seek out supportive measures which will be provided to you by the Equal Opportunity and Equal Opportunity and Title IX Coordinator.
- File a formal complaint, and seek out supportive measures that will be provided to you by the Equal Opportunity and Equal Opportunity and Title IX Coordinator.
- File a formal complaint and do not seek out supportive measures.
- Request that the process used by the University to address the report or complaint be the Title IX informal resolution process. Both parties need to agree to attempt this process for it to be used.
Remember that supportive measures are always available, whether or not a formal complaint is filed.
Based on the information provided, the Title IX Coordinator may file a complaint on behalf of the university to address and remedy a situation that poses a threat to the campus community.
The Equal Opportunity and Title IX Coordinator will determine if the Title IX Grievance Process should apply to the Formal Complaint. The process will apply when all of the following elements are met, in the reasonable determination of the Equal Opportunity and Title IX Coordinator:
- The conduct is alleged to have occurred on or after August 14, 2020;
- The conduct is alleged to have occurred in the United States
- The conduct is alleged to have occurred in ESU’s education program or activity; and
- The alleged conduct, if true, would constitute covered sexual harassment as defined in the Title IX Sexual Harassment/Assault Policy.
If all of these elements are met, ESU will investigate the allegations according to the Grievance process.
If one of the Title IX Jurisdiction elements above is not met, the Equal Opportunity and Title IX Coordinator 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 Appeals procedures.
The Equal Opportunity and Title IX Coordinator may dismiss a Formal Complaint brought under the Title IX Grievance Policy, or any specific allegations raised within the Formal Complaint, at any time during the investigation or hearing, if:
- A Complainant notifies the Equal Opportunity and 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 University; or
- The specific circumstances prevent ESU from gathering evidence sufficient to reach a determination regarding the Formal Complaint or allegations within the Formal Complaint.
- Filing a formal complaint starts the timeframe. The Grievance process will be concluded within a reasonably prompt manner, no longer than 90 calendar days following the filing of the formal complaint. The process may be extended for good reason, including but not limited to the absence of a party, the party’s advisor, or a witness; concurrent law enforcement activity; or the need for language assistance or accommodation of disabilities.
- To file a formal complaint, the Complainant must provide the Equal Opportunity and Title IX Coordinator a written, signed complaint describing the facts alleged. Complainant’s 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 ESU, including as an employee. For Complainants who do not meet this criteria, the University will utilize the Student Handbook policy.
- If the Complainant does not wish to make a Formal Complaint, the Equal Opportunity and Title IX Coordinator may determine a Formal Complaint is necessary. ESU 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 prevents a Complainant from seeking the assistance of state or local law enforcement alongside the appropriate on-campus process.
- Further, a Complainant who files a Formal Complaint may elect, at any time, to address the matter through the University’s Title IX Informal Resolution process. Should the Complainant elect this option, they should contact the Equal Opportunity and Title IX Coordinator for discussion.
- The Equal Opportunity and 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, but no more than ten (10) days after the University receives a Formal Complaint of the allegations, if there are no extenuating circumstances.
- The University will provide sufficient time for the parties to review the Notice of Allegations and prepare a response before any initial interview.
- The Equal Opportunity and Title IX Coordinator 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
Notice of Allegations will include the following:
- Notice of the University’s Title IX Grievance Process, and Informal resolution process, with hyperlinks.
- Notice of the allegations potentially constituting 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 Complainant’s identity; 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 to be 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, and attorney, as required under 34 C.F.R. Section 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 University 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. Section 106.45 (b) (5) (vi);
- The Equal Opportunity and Title IX Coordinator and/or the investigator designated by the Equal Opportunity and Title IX Coordinator will create an Investigative Report that fairly summarizes relevant evidence.
- The Investigative Report is not intended to catalogue 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 provide and disprove the allegations – relevant evidence) will be referenced in the Investigative Report.
- The investigator may redact relevant information from the Investigative Report when the information is contained in documents or evidence that is/are otherwise relevant.
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 be included in the appendices of the investigative report.
Inspection and Review of Evidence
- Prior to the completion of an investigation, the parties will have an equal opportunity to inspect and review the evidence obtained through the investigation. The purpose of this inspection and review process is to allow each party the equal opportunity to meaningfully respond to the evidence prior to the 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 the evidence does not end up being relied upon by the University in making a determination regarding responsibility;
- Inculpatory or exculpatory evidence (i.e. evidence that tends to prove of disprove the allegations) that is directly related to the allegations, whether obtained from a party or other source.
- The University will send the evidence made available for each party to each party’s advisor, if any, to inspect and review. The University 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) calendar days to inspect and review the evidence and submit a written response to the Equal Opportunity and Title IX Coordinator and/or the investigator. The Equal Opportunity and Title IX Coordinator/investigator will consider the parties’ written responses before completing the Investigative Report. Further, the University will provide copies of the parties’ written responses to the investigator to all parties and their advisors, if any.
- Any evidence subject to inspection and review will be available at any hearing, including for the purposes of cross-examination. The parties and their advisors must sign an agreement not to disseminate any of the evidence subject for inspection and review or use such evidence for any purpose unrelated to the Title IX Grievance Process.
ESU retains the authority to remove a Respondent from a program or activity on an emergency basis, where the University:
- Undertakes individualized safety or risk analysis; and
- 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.
If the University determines that such a removal is necessary, the Respondent will be provided notice and the opportunity to challenge the decision immediately following the removal.
General Rules of Title IX Hearings
- ESU will not issue a disciplinary sanction arising from an allegation of covered sexual harassment without holding a live hearing. Note: The only exception to this may be if the matter is resolved through the Informal Resolution process.
- The live hearing may be conducted with all parties physically present in the same geographic location, or, at ESU’s discretion, any or all parties, witnesses, and other participants may appear that the live hearing virtually through a Zoom conference option. The technology will enable participants simultaneously to see and hear each other. At its discretion, ESU may delay or adjourn a hearing based on technological problems not within the parties’ control.
- All proceedings will be recorded through an audio recording or audiovisual recording and a transcript of the proceeding will be generated. That recording or transcript 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 an hearing or use such testimony or evidence for any purpose unrelated to the Title IX Grievance process. Once signed, this agreement cannot be withdrawn.
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, witness, nor shall it based its judgments in stereotypes about how a party or witness 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 the corroborating or conflicting testimony or evidence.
- 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 ten (10) calendar days following being notified of the decision, indicating grounds for 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 institution’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 Equal Opportunity and Title IX Coordinator, investigator(s), or decision maker(s) 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.
- The University may add other grounds for appeal, which could include the severity of the sanctions.
The appeal will be heard by a neutral, unbiased University representative who has not participated in the Title IX Grievance process, including the investigation and hearing.
- ESU will keep the identity of any individual who has made a report or complaint of sex discrimination confidential, 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 a 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 the 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 it 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 and 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.
- Complaint alleging retaliation may be filed according to the University’s Title IX Grievance Policy.