Title IX Grievance Procedure

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. The full text of the Final Rule and its extensive Preamble are available here: http://bit.ly/TitleIXReg.

Seton Hall University (the “University”) is committed to providing a working, learning and living environment that is free from unlawful discrimination, harassment and retaliation, and strives to afford fair and equitable treatment to all members of the University community, regardless of their membership in any legally protected class. Based on the Final Rule, the University will implement the following Title IX Grievance Procedure (the “Procedure”), effective August 14, 2020.

Only incidents falling within the scope of the Final Rule’s definition of “covered sexual harassment” will be handled in accordance with this Procedure detailed below.

1. The Procedure

General Rules of Application

Effective Date

This Procedure will become effective on August 14, 2020 and will only apply to covered 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 handled according to the University 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 Reg. 30026 (May 19, 2020), be stayed or held invalid by a court of law, or should the Title IX Final Rule be withdrawn or modified, this Procedure, or the invalidated elements of this Procedure, will be deemed revoked as of the publication date of the opinion or order and for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 that date of opinion or order publication. Should the Procedure be revoked in this manner, any conduct covered under the Procedure shall be investigated and adjudicated under the University’s Policy Against Sexual Misconduct, Sexual Harassment and Retaliation.

Non-Discrimination in Application

The requirements and protections of this Procedure apply equally regardless of sex, sexual orientation, gender identity, gender expression, or any other protected classification 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 Procedure may contact the Department of Education’s Office for Civil Rights using contact information available at https://ocrcas.ed.gov/contact-ocr.

Definitions

Covered Sexual Harassment: For the purposes of this Procedure, “covered sexual harassment” includes any conduct on the basis of sex that alleges one or more of the following:

Quid Pro Quo Sexual Harassment meaning that an employee including, but not limited to, a faculty member, administrator, or staff member, conditions educational benefits on participation in unwelcome sexual conduct;
Unwelcome conduct which a reasonable person would determine is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the University’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, as well as instances where the victim is incapable of giving consent;
Dating violence (as defined in the Violence Against Women Act 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; (iii) The frequency of interaction between the persons involved in the relationship.
Domestic violence (as defined in the Violence Against Women Act 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 the laws of the State of New Jersey 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 the State of New Jersey.
Stalking (as defined in the Violence Against Women Act amendments to the Clery Act), meaning the engagement 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 still be prohibited under the University’s Policy Against Sexual Misconduct, Sexual Harassment and Retaliation.

Consent: For the purposes of this Procedure, “consent” means:

The unambiguous, knowing, and voluntary agreement between the participants to engage in specific sexual activity. Consent must be demonstrated through mutually understandable words or actions clearly indicating a willingness to engage in that activity.

Past consent between the participants does not imply future consent.
Silence or the absence of resistance does not imply consent.
Consent to engage in sexual activity with one person does not imply consent to engage in sexual activity with another.
Consent can be initially given but may be withdrawn at any time.
Consent cannot be given under coercion, force, restraint, or threat.
Children and minors cannot consent in accordance with New Jersey law. N.J.S.A 2C: 14-2.
Consent cannot be given when asleep, unconscious, or incapacitated.

See Section III. D Definition of Consent in Policy Against Sexual Misconduct, Sexual Harassment and Retaliation

Education Program or Activity: For the purposes of this Procedure, the University’s “education program or activity” includes:

Any on-campus premises.
Any off-campus premises that the University 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 University’s programs and activities over which the University has substantial control. This includes, but is not limited to, University sponsored digital platforms and remote learning.

Formal Complaint: For the purposes of this Procedure, “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 University’s education program or activity, and requesting initiation of the procedures consistent with the Procedure to investigate the allegation of sexual harassment.

Complainant: For the purposes of this Procedure, 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 Procedure.

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 Procedure:

Evidence and questions about the complainant’s sexual predisposition or prior sexual behavior unless:

o They are offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or
o They concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent.

Evidence and questions that constitute, or seek disclosure of, information protected under a legally-recognized privilege.

o Legally-recognized privileges include, but are not limited to, attorney-client privilege, priest-penitent, therapist-patient, and physician/healthcare provider-patient privilege. These are communications made in confidence to a person with a legal privilege in the course of their professional work.
o Any party’s medical, psychological, and similar records unless the party has given voluntary, written consent.

Respondent: For the purposes of this Procedure, Respondent means any individual who has been reported to be the perpetrator of conduct that could constitute covered sexual harassment as defined under this Procedure.

Privacy vs. Confidentiality
Consistent with the Policy Against Sexual Misconduct, Sexual Harassment and Retaliation, 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, an emergency or child abuse. References made to privacy mean the University’s 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 University will limit the disclosure as much as practicable, even if the Title IX Coordinator determines that the request for confidentiality cannot be honored.

Disability Accommodations
This Procedure does not alter any institutional 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 Procedure 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 University programs and activities.

Making a Report Regarding Covered Sexual Harassment to the University

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:

Toni Hindsman, M.A.
Director of EEO Compliance, Title IX Coordinator
Bayley Hall, Rm. 108C
Seton Hall University, 400 South Orange Ave., South Orange, NJ 07079
Phone: (973) 275-2513
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.

Reporting: Private and Confidential
See Section V. Reporting, Confidentiality and Privacy in the Policy Against Sexual Misconduct, Sexual Harassment and Retaliation

Private Reporting
The following Officials will provide privacy, but not confidentiality, upon receiving a report of conduct prohibited under this policy:

a. If the report involves actions by a student at the South Orange Campus, please contact:

Karen Van Norman
Associate Vice President and Dean of Students
Deputy Title IX Coordinator
University Center, Rm. 237
Seton Hall University, 400 South Orange Ave., South Orange, NJ 07079
Phone: (973) 761-9076
Email: [email protected]

Anthony I. Turon, M.Ed., MBA
Assistant Dean of Students
Deputy Title IX Coordinator
University Center, Rm. 212
Seton Hall University, 400 South Orange Ave., South Orange, NJ 07079
Phone: (973) 761-9076
Email: [email protected]

Tatum Colitz
Senior Associate Director of Athletics/Senior Woman Administrator
Deputy Title IX Coordinator
Recreation Center, Room 4001B
Seton Hall University, 400 South Orange Ave., South Orange, NJ 07079
Phone: (973) 761-9494
Email: [email protected]

b. If the report involves actions by a student in the Nursing Program at Georgian Court, please contact:

Karen Van Norman
Associate Vice President and Dean of Students
Deputy Title IX Coordinator
University Center, Rm. 237
Seton Hall University, 400 South Orange Ave., South Orange, NJ 07079
Phone: (973) 761-9076
Email: [email protected]

c. If the report involves actions by a student at the Law School, please contact:

Toni Hindsman, M.A.
Director of EEO Compliance, Title IX Coordinator and
Acting Deputy Title IX Coordinator for the IHS Campus and
Interim Deputy Title IX Coordinator, Law School
Bayley Hall - First Floor, Room 108C
South Orange, NJ 07079
(973) 275-2513
[email protected]

d. If the report involves actions by a student at the Interprofessional Health Sciences Campus, please contact:

e. If the report involves actions by a student in the Immaculate Conception Seminary and School of Theology and Saint Andrew’s College Seminary, please contact:

Delica M. Reduque, M.S. Ed, SHRM-CP
Manager, Employee & Labor Relations
Deputy Title IX Coordinator
Seton Hall University 366 South Orange Avenue-Martin House
South Orange, New Jersey 07079
Phone: 973-761-9284
Email: [email protected]

f. If the report involves actions by a Trustee, Regent, non-Trustee or non-Regent member of any committee of the Board of Regents or the Board of Trustees, officer, priest, faculty member, administrator, staff member, employee, any non-student residing in University housing, visitor, vendor or guest, on or off campus, please contact:

Non-Investigatory Measures Available Under the Procedure

Supportive Measures
Complainants (as defined above), who report allegations that could constitute covered sexual harassment under this Procedure, have the right to receive supportive measures from the University regardless of whether they desire to file a complaint. Supportive Measures may include, but not be limited to:

Counseling
Extensions of deadlines or other course-related adjustments
Modifications of work or class schedules
Campus escort services
Mutual restrictions on contact between the parties (no contact orders)
Changes in work or housing location
Leaves of absence
Increased security and monitoring of certain areas of the campus

Supportive measures are non-disciplinary and non-punitive. The University must maintain confidentiality of any supportive measures provided to the complainant or respondent, to the extent that maintaining such confidentiality will not impair the ability of the University to provide the supportive measures. The Title IX Coordinator is responsible for coordinating the effective implementation of supportive measures.

Emergency Removal
The University retains the authority to remove a respondent from the University’s program or activity on an emergency basis, where the University (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. If the University determines such removal is necessary, the respondent will be provided notice and an opportunity to challenge the decision immediately following the removal.

Administrative Leave
The University retains the authority to place a non-student employee respondent on administrative leave throughout the duration of the Procedure.

The Title IX Grievance Process

Filing a Formal Complaint
The timeframe for the Title IX Grievance Process (the “Process”) under this Procedure begins with the filing of a Formal Complaint. The 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 Procedure if they are currently participating in, or attempting to participate in, the education programs or activities of the University, including as an employee. For complainants who do not meet this criteria, the University will utilize the existing Policy Against Sexual Misconduct, Sexual Harassment and Retaliation.

If a complainant does not wish to make a Formal Complaint, the Title IX Coordinator may determine if a Formal Complaint is necessary. The University 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 Procedure and Process.

Nothing in the Procedure or the Policy Against Sexual Misconduct, Sexual Harassment and Retaliation prevents a complainant from seeking the assistance of state or local law enforcement alongside the appropriate on-campus process.

Multi-Party Situations
The University 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.

Determining Jurisdiction
The Title IX Coordinator or designee will determine if this Procedure should apply to a Formal Complaint. The Procedure 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;
The conduct is alleged to have occurred in the United States;
The conduct is alleged to have occurred in the University’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 University will investigate the allegations according to this Procedure.

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, but will fall within the purview of the University’s Sexual Misconduct Policy, Sexual Harassment and Retaliation Policy, this Procedure will be applied in the investigation and adjudication of all of the allegations.

Mandatory Dismissal
If any one of the elements above are not met, the Title IX Coordinator or designee will notify the parties that the Formal Complaint is being dismissed for the purposes of the Procedure. Each party may appeal this dismissal using the procedure outlined in “Appeals,” below.

Discretionary Dismissal
The Title IX Coordinator or designee may dismiss a Formal Complaint brought under the Procedure, 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 University; or,
If specific circumstances prevent the University 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 University 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 institutional 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 University retains discretion to utilize the Policy Against Sexual Misconduct, Sexual Harassment and Retaliation to determine if a violation of the Policy Against Sexual Misconduct, Sexual Harassment and Retaliation has occurred. If so, the University will promptly send written notice of the dismissal of the Formal Complaint under the Title IX Grievance Process and removal of the allegations to be handled in accordance with the appropriate conduct process.

Notice of Allegations
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, not including holidays or school after the University receives a Formal Complaint of the allegations if there are no extenuating circumstances.

The parties will be notified through their University email accounts if they are a student or employee, and by other reasonable means if they are neither.

The University 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 designee 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 of Allegations
The Notice of Allegations will include the following:

Notice of the institution’s Procedure 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 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. § 106.45(b)(5)(vi);
Anyone who knowingly makes a false accusation will be subject to appropriate action, which may include discipline up to and including, termination of employment or expulsion from the University, as applicable.

Ongoing Notice
If, in the course of an investigation, the University 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 Procedure, the University will notify the parties whose identities are known of the additional allegations through their University 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.

Advisor of Choice and Participation of Advisor of Choice

The University will provide the parties equal access to advisors and support persons; any restrictions on advisor participation will be applied equally.

The University 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 Advisor of Choice to any meeting or hearing to which they are required or are eligible to attend. The Advisor of Choice is not an advocate. Except where explicitly stated by this Procedure, as consistent with the Final Rule, Advisors of Choice in this Procedure shall not participate directly in the process as per standard policy and practice of the University.

The University will not intentionally schedule meetings or hearings on dates where 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 University’s obligations to investigate and adjudicate in a prompt timeframe under Title IX and other University policies apply to matters governed under this Procedure, and the University 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 University 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 University.

Notice of Meetings and Interviews
The University 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.

Delays
Each party may request a one-time delay in the Process of up to five (5) days for good cause (granted or denied in the sole judgment of the Title IX Coordinator, Director of Student Conduct, 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, Dean of Students/Deputy Title IX Coordinator or designee shall have sole judgment to grant further pauses in the Process.

Investigation

General Rules of Investigations

The Title IX Coordinator and/or 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 University, 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 Procedure 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 University and does not indicate responsibility.

The University 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 University 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 institution in making a determination regarding responsibility;
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 University will send the evidence made available for each party and each party’s advisor, if any, to inspect and review through an electronic format. 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) 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. Parties may request a one-time reasonable extension as their designated extension request

The University 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).

The institution will 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 will 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.

The parties and their advisors must sign an agreement not to disseminate any of the evidence subject to inspection and review or use such evidence for any purpose unrelated to the Process. See, 85 Fed. Reg. 30026, 30435 (May 19, 2020).

The parties and their advisors agree not to photograph or otherwise copy the evidence. See, 85 Fed. Reg. 30026, 30435 (May 19, 2020).

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 to the investigative report.

Investigative Report
The Title IX Coordinator and/or an investigator designated by the Title IX Coordinator will create an Investigative Report that fairly summarizes relevant evidence, and provide that Report to the parties at least ten (10) business days prior the hearing in an electronic format 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.

Hearing

General Rules of Hearings

The University will not issue a disciplinary sanction arising from an allegation of covered sexual harassment without holding a live hearing

The live hearing may be conducted with all parties physically present in the same geographic location, or, at the University’s discretion, any or all parties, witnesses, and other participants may appear at the live hearing virtually through Microsoft Teams Video Conferencing Platform. This technology will enable participants simultaneously to see and hear each other. At its discretion, the University may delay or adjourn a hearing based on technological errors not within a party’s control.

All proceedings will be recorded through Microsoft Teams Video Conference Platform. 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 the hearing or use such testimony or evidence for any purpose unrelated to the Process. Once signed, this Agreement may not be withdrawn See, 85 Fed. Reg. 30026, 30435 (May 19, 2020).

Continuances or Granting Extensions
The University 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 University 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.

If a party identifies new evidence or witnesses that were not reasonably available prior to the live hearing and could affect the outcome of the matter, the party may request that such evidence or witnesses be considered at the live hearing.

The decision-maker will consider this request and make a determination regarding (1) whether such evidence or witness testimony was actually unavailable by reasonable effort prior to the hearing, and (2) whether such evidence or witness testimony could affect the outcome of the matter. The party offering the newly discovered evidence or witness has the burden of establishing these questions by the preponderance of the evidence.

If the decision-maker answers in the affirmative to both questions, then the parties will be granted a reasonable pause in the hearing to review the evidence or prepare for questioning of the witness.

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 University 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 such as a “statement” by that party. See, Office for Civil Rights, “Update on Court Ruling about the Department of Education’s Title IX Regulations: The Ruling Vacated a Provision Restricting Postsecondary Schools’ Use of Statements by Parties and Witnesses,” Aug. 24, 2021, https://www2.ed.gov/about/offices/list/ocr/blog/20210824.html.
The University 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 may consider statements made by parties that are otherwise permitted under the Title IX regulations, even if those parties do not participate in cross-examination at the live hearing, in reaching a determination regarding responsibility in a Title IX grievance process. For example, a decision-maker may consider statements made by the parties during the investigation, emails or text exchanges between the parties leading up to the alleged sexual harassment, and statements about the alleged sexual harassment that satisfy Title IX’s relevance rules, regardless of whether the parties submit to cross-examination at the live hearing. A decision-maker may also consider police reports, Sexual Assault Nurse Examiner documents, medical reports, and other documents even if those documents contain statements of a party who is not cross-examined at the live hearing.
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 University’s Rules of Decorum.

Decision-maker

The hearing body will consist of a single decision-maker.
No member of the hearing body will also have served as the Title IX Coordinator, Title IX investigator, or advisor to any party in the case, nor may any member of the hearing body serve on the appeals body in the case.
No member of the hearing body will 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 hearing body 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.
In addition to selecting an Advisor to conduct cross-examination, the parties may select an Advisor who may accompany the parties to any meeting or hearing they are permitted to attend, but may not speak for the party.
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 institution 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.
If neither a party nor their Advisor appear at the hearing, the University will provide an Advisor to appear on behalf of the non-appearing party.
Advisors shall be subject to the University’s Rules of Decorum and may be removed upon violation of those Rules.

Witnesses

Witnesses cannot be compelled to participate in the live hearing and have the right not to participate in the hearing free from retaliation. See, 85 Fed. Reg. 30026, 30360 (May 19, 2020).
If a witness does not submit to cross-examination, as described below, the decision-maker may rely on any statements made by that witness that are otherwise permitted under the Title IX regulations 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. For example, a decision-maker may consider statements made by witnesses during the investigation, and statements about the alleged sexual harassment that satisfy the Title IX regulation’s relevance rules, regardless of whether the witnesses submit to cross-examination at the live hearing. A decision-maker may also consider police reports, Sexual Assault Nurse Examiner documents, medical reports, and other documents even if those documents contain statements of a witness who is not cross-examined at the live hearing.
Witnesses shall be subject to the University’s Rules of Decorum.

Hearing Procedures

For all live hearings conducted under this 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;
Parties will be given the opportunity for live cross-examination after decision-maker conducts its 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 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 Transcript/Recording
The recording/transcript of the hearing will be available for review by the parties within (10) business day unless there are any extenuating circumstances. The recording/transcript of the hearing will not be provided to parties or Advisors of choice.

Determination Regarding Responsibility

Standard of Proof: The University uses the preponderance of the evidence standard for investigations and determinations regarding responsibility of formal complaints covered under this Procedure. This means that the investigation and hearing determine whether it is more likely than not that a violation of the Procedure 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 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 University 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 University 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 University 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 processes and testimony will be permitted and subject to cross-examination by advisors under 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 (“Determination”) will be issued simultaneously to all parties through their institution email account, or other reasonable means, as necessary. The Determination will include:

1. Identification of the allegations potentially constituting covered sexual harassment;

2. 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;

3. Findings of fact supporting the Determination;

4. Conclusions regarding which section of the Student Code of Conduct, or other applicable Codes of Conduct for the individual colleges of the University, if any, the respondent has or has not violated.

5. For each allegation:

a. A statement of, and rationale for, a determination regarding responsibility;
b. A statement of, and rationale for, any disciplinary sanctions the University imposes on the respondent; and
c. A statement of, and rationale for, whether remedies designed to restore or preserve equal access to the University’s education program or activity will be provided by the University to the complainant; and

6. The University’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 will be issued by the University within ten (10) business days of the completion of the hearing.

Finality
The Determination becomes final either on the date that the University 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.

Appeals
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 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 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 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 University 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 (5) 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 University appeal decision-making body, 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.

The outcome of the appeal will be provided in writing simultaneously to both parties and include a rationale for the decision.

Retaliation
The University 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 Procedure, 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 Procedure.

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. No person may intimidate, threaten, coerce, or discriminate against any individual because the individual has made a report or complaint, testified, assisted, participated or refused to participate in any manner in an investigation, proceeding or hearing under this Procedure. Any intimidation, threats, coercion, or discrimination for the purpose of interfering with any right or privilege secured by Title IX constitutes retaliation. This includes any charges filed against an individual for 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.

Complaints alleging retaliation may be filed according to the Policy Against Sexual Misconduct, Sexual Harassment and Retaliation and/or the Policy Against Discrimination, Harassment and Retaliation.

Responsible Office

Office of EEO and Title IX Compliance

Related Policies

Policy Against Sexual Harassment, Sexual Misconduct & Retaliation
Policy Against Discrimination, Harassment and Retaliation
Annual Security Report at: https://www.shu.edu/public-safety/students-right-to-know.cfm
Campus Sexual Assault Victim’s Bill of Rights
Employee Code of Conduct
Policy Against Intimate Relationships with Subordinates
Guidelines for Responding to Complaints of Sexual Misconduct, Discrimination, Harassment and Retaliation
Law School Honor Code
Policy for Minors on Campus
Non-Discrimination/Title IX Statement
Student Code of Conduct
Violence Prevention Policy
Volunteer Policy

Approval

Approved

Initially adopted and approved by Dr. Joseph Nyre, President, on the recommendation of the Executive Cabinet, on August 13, 2020. Amended and approved by Joseph Nyre, Ph.D., President, on the recommendation of the Executive Cabinet, on October 12, 2022.

Effective Date

August 14th, 2020

First Amended: October 12, 2022.