Title IX

Title IX & Sexual Harassment Response

Please report any Title IX incidents on the Concordia campus to Beth Whisler, Rob Zima, or  Julia Galm.  Please report any Title IX incidents on the Geary County campus and Concordia campus to Beth Whisler. Reports can also be submitted via the form at the bottom of the page. The Title IX Team checks these submissions twice daily. The Title IX response team reports to the Vice-President for Administrative Services.

CCCC Title IX Team

Beth Whisler
Title IX Coordinator
2221 Campus Drive
Concordia, KS 66901
785.243.1435, ext. 262
Office 249
bwhisler@cloud.edu

Rob Zima
Title IX Deputy Investigator
2221 Campus Drive
Concordia, KS. 66901
785.243.1435, ext. 218
robert.zima@cloud.edu

Julia Galm
Title IX Deputy Investigator
2221 Campus Drive
Concordia, KS. 66901
785.243.1435, ext. 241
julia.galm@cloud.edu

Brent Cox
Title IX Advocate
2221 Campus Drive
Concordia, KS. 66901
785.243.1435, ext. 207
bcox2@cloud.edu

Brenda Hanson
Title IX Advocate
2221 Campus Drive
Concordia, KS. 66901
785.243.1435, ext. 323
bhanson@cloud.edu

JD Koons, Dean of Student Affairs, will be assisting in the process for live hearings and appeals that could result from any Title IX issues.


Caesar Wood, Vice President for Administrative Services, will administer and handle all determinations and decisions.


Title IX Scope & Jurisdiction

What is Title IX?

“No person in the United States shall on the basis of sex be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal assistance.” 

Code of Federal Regulations Section 106.31

 

Who does Title IX apply to?

Entities that receive federal financial assistance, including colleges and universities that participate in Title IV funding

Not individual persons but institutions are required to adopt policies and procedures to implement Title IX that do apply to individual persons.

 

What sexual harassment does Title IX apply to?

Title IX applies to sexual harassment in the “education program or activity” to include the “operations” of educational institutions.  Title IX does not apply to private conduct occurring in a private location that is not part of education program/activity.

 

What are examples of education programs and activities?

Admissions     Hiring     Workplace     Academic instruction    

Residence life     Amenities on campus     Sports teams     Work study

Games, concerts, and speeches on-campus     Off campus trips or

experiences organized by the institution     Sponsored organization activities

 

Does Title IX apply to off-campus sexual harassment?

Yes, if the conduct at issue occurs in the context of an education program or activity

Yes, if the conduct at issue occurs in a house owned or controlled by an officially recognized

Greek organization or other student organization

No, if it occurs in a private location and is not part of an institution’s education program or

activity

 

Does Title IX apply to sexual harassment in other countries?

No – the Department of Education interprets Title IX to apply only within the geographic boundaries of the United States.

Other countries may have laws that govern sexual harassment.

 

Does our institution have other policies that might apply?

Institutions are free to use student code of conduct, faculty/employee handbooks, and other policies to address sexual harassment that does not occur in an education program or activity. 

 

What is sexual harassment?

          Conduct on the basis of sex that is:

 

>Quid pro quo harassment     >Hostile environment harassment    > Sexual assault                                                                                       

>Dating violence                       > Domestic violence                              > Stalking   

 

 

What is quid pro quo?

An employee of the institution conditions the provision of some aid, benefit, or service on another person’s participation in unwelcome sexual conduct.

Quid pro quo often arises in the employment context or where an employee holds a position of authority over a student.

 

What is hostile environment?

Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.

 

How do we determine if a hostile environment exists?

Consider all the facts and circumstances, such as:  the type of misconduct, the frequency of the misconduct, where the misconduct occurs, whether a power differential exists, etc. 

This is from the perspective of a reasonable person. 

 

Does the First Amendment matter?

While sexual harassment can be verbal or written in nature, sexual harassment under Title IX does not include conduct that is protected by the First Amendment. 

The subjective offensiveness of speech, alone, is not sufficient to create a hostile environment. 

 

What is sexual assault?

Title IX regulations define “sexual assault” as incorporating the following classes of conduct:

Rape         Sodomy         Sexual assault with an object         Fondling         Incest

 

 

What is rape?    

Having carnal knowledge of a person, without the consent of the victim, including instances where the victim is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity.  There is “carnal knowledge” if there is the slightest penetration of the vagina or penis by the sex organ of the other person.  Attempted rape is included. 

 

What is consent?

Institutional definitions may vary. 

Words or actions that a reasonable person in the respondent’s perspective would understand as agreement to engage in the sexual conduct at issue

A person who is incapacitated is not capable of giving consent.

Consent cannot be procured by coercion. 

Be aware of minimum age of consent.

 

What is incapacity?

Incapacity refers to a state where a person does not appreciate the nature or fact of sexual activity due to the effect of drugs or alcohol consumption, medical condition or disability, or due to a state of unconsciousness or sleep. 

 

What is sodomy?

Sodomy is oral or anal sexual intercourse with another person without the consent of the victim, including instances where the victim is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity

 

What is sexual assault with an object?

It is using an object or instrument to unlawfully penetrate, however, slightly, the genital or anal opening of the body of another person, without the consent of the victim, including

instances where the victim is capable of giving consent or because of giving consent because of age or because of temporary or permanent mental or physical incapacity.  An “object” or “instrument” is anything used by the perpetrator other than the perpetrator’s genitalia.

 

What is fondling?

Fondling is touching of the private body parts of another person for the purpose of sexual gratification, without the consent of the victim, including instances where the victim is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity. 

 

What is incest?

It is sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law. 

 

What is statutory rape?

Sexual intercourse with a person who is under the statutory age of consent as defined by law. 

 

What is domestic violence?

Domestic violence is 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 domestic or family violence laws of the state, 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. 

 

What is dating violence?

“Dating Violence” is 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 will be determined based on consideration of the following factors:

The length of the relationship;

The type of relationship; and

The frequency of interaction between the persons involved in the relationship.

 

Does Title IX also prohibit retaliation?

Yes – Title IX prohibits intimidation, threats, coercion, or discrimination against any individual for the purpose of interfering with any right or privilege secured by Title IX and its implementing regulations or because an individual has made a report or complaint, testified, assisted, participated in or refused to participate in any manner in an investigation, proceeding, or hearing under the institution’s policy. 

 

What about state laws governing sexual harassment on campus?

Institutions must still comply with state laws unless they conflict with some element of the new Title IX regulation in which case state law is preempted. 

 

                                      Title IX & Other Policies

 

Examples of Policies with Related Concepts:

    Discrimination - Sexual harassment

                                  Other non-discrimination statements & policies 

    Relationships – Workplace

                                 Employee – student

    Conduct –          Student

                                Faculty/Employee

    Discipline -        Student

                                Faculty

                                Employee

 

How do Title IX and Title VII standards compare?

“Neither Federal non-sex discrimination civil rights law represents a ‘zero-tolerance’ policy banning all sexual harassment.”

Preamble to 2020 Title IX Regulation                                               

 

Title VII Sexual Harassment:                                            

Quid pro quo 

Sufficiently severe or pervasive

 

Title IX Sexual Harassment:

Any quid pro quo by employee

Unwelcome and sufficiently severe and pervasive and objectively offensive

Any sexual assault/domestic violence/stalking

 

How should we treat alleged conduct that may violate Title IX and Title VII policies?

“The Department recognizes that employers must fulfill their obligations under Title VII and also under Title IX.  There is no inherent conflict between Title VII and Title IX, and the Department will construe Title IX and its implementing regulations in a manner to avoid an actual conflict between an employer’s obligations under Title VII and Title IX.”

Preamble to 2020 Title IX Regulations (also 34 Code of Federal Regulations and Sections 106.6 (f))


Example of Typical “Title VII” Process:

Complaint to manager, HR Ethics Line, etc. >>>>>  HR/manager collaborate to provide information to parties investigate, and resolve >>>>>> HR/manager takes any appropriate and preventive action, and protect against retaliation

 

What triggers an employer’s liability for sexual harassment under Title VII?

> An employer, its agent, or its supervisor

> Knew or should have known

> About severe or pervasive sexual harassment

> That a reasonable person would consider intimidating, hostile, or abusive

> By an employee or non-employee over which it has control and

> Failed to take appropriate corrective action

U.S. Equal Employment Opportunity Commission Harassment (https://www.eeoc.gov/harassment)

Institutional Response to Sexual Harassment
> Respond to known acts of sexual harassment in a manner that is not clearly unreasonable.

> Treat complainants and respondents equitably.

> Institute procedure in response to formal complaints and before imposing discipline.

> Offer supportive measures.

 

Who are the key institutional actors in a formal grievance process?

Title IX Coordinator  >>>> Investigator >>>>  Hearing Officer >>>> Appeals officer

>>>> Informal Resolution Coordinator

 

How does an institution get notice of sexual harassment?

The sexual harassment response is triggered when institution has “actual knowledge” of potential sexual harassment. 

 

What is “actual knowledge”?

“Actual knowledge” occurs when an institutional official, with authority to take corrective action observes or receives a report of sexual harassment occurring in the institution’s education programs and activities. 

An “institutional officer” is the person with authority to take corrective action. 

 

When do we reach out to the alleged victim?

After the institution has actual knowledge of alleged sexual harassment, Title IX Coordinator must contact alleged victim.  The Title IX Coordinator provides information about supportive measures, explains the grievance process and how to file a formal complaint, and discusses the alleged victim’s wishes. 


At this time, the Title IX Coordinator discusses the option of the respondent having the right to choose to file charges with the local police department.  Another option which the respondent has would be to request this case to be handled with an informal Title IX resolution procedure.  If this option is chosen, there would be a separate procedure which is different from a formal procedure. 


Informal Resolution

What is informal resolution?

A voluntary process to resolve formal complaints of sexual harassment through a mechanism other than the default investigation and hearing. 

 

What are the key concepts of informal resolution?

A formal complaint must first have been filed and written notice given to the parties.

The parties must voluntarily agree to participate in writing.

The parties must be apprised in writing of how the informal resolution process will work and the consequences of participating in it. 

The parties must be allowed to withdraw from informal resolution up until the point it is final. 

 

What are the limitations?

Informal resolution cannot be used where an employee is accused of sexually

harassing a student.  A formal resolution grievance process is required. 

Informal resolution cannot be used in the absence of a formal complaint.

The institution cannot require persons to consent to informal resolution as a condition of employment or enrollment.

 

Who facilitates an informal resolution?

Any suitably qualified and trained person may facilitate informal resolution, including the Title IX Coordinator.

Facilitator can be a third-party mediator or alternative dispute resolution specialist.

Default rules on conflicts of interest and bias apply.

 

What are some examples of informal resolution?

Facilitated exchange of resolution offers

Mediation

Arbitration

Restorative justice

Settlement with the involvement of attorneys

 

Does every case with disputed facts have to proceed to hearing?

No – As long as the procedural requirements to enter informal resolution are met, Title IX regulations permit a wide range of alternative models, including a decision by a single individual (i.e., “arbitration”).

It is especially important to advise the parties of the nature of this type of resolution and how it differs from the default investigation and hearing.

 

How long can an informal resolution take?

Informal resolution should be reasonably prompt. 

 

Is an informal resolution final?

Generally, yes- Most informal resolutions will result in an agreement that comes from the administration with sanctions identified.  This resolves the allegations in a definitive and final way.

 

How is an informal resolution documented?

Agreements should be well-documented by the informal resolution facilitator.

Ideally, parties will sign the agreement or provide some other form of written confirmation. 

Formal settlement agreements are typically not required unless they are resolving legal claims that have been asserted.

 

Who facilitates an informal resolution?

Any suitably qualified and trained person may facilitate informal resolution, including the Title IX Coordinator.

The facilitator can be a Third-party Mediator or Alternative Dispute Resolution Specialist well versed in current Title IX requirements. 

Default rules on conflicts of interest and bias apply. 

 

What if we can’t identify the alleged victim from a report?

The Title IX Coordinator should oversee preliminary investigation to determine identity of alleged victim. 

If identity of alleged victim cannot be discerned after reasonable inquiry, matter should be documented and consideration given as to whether other policies (such as student code of conduct) are utilized. 

 

What are supportive measures?

They are non-disciplinary, non-punitive supports and accommodations designed to preserve access to education programs and activities.

Reasonably available without fee or charge

Without unreasonably burdening the other party

 

Examples of supportive measures

Counseling

Academic accommodations

Housing accommodations

Security escorts

Leave of absence

Increased security or monitoring

Modified work schedules

Mutual no-contact order where implicated by facts

 

Can we place employees on administrative leave?

Yes – Employee respondents may be placed on administrative leave without requisite showing of threat to physical health or safety.

Whether there is an opportunity to challenge administrative leave, it must depend on employee status and other policies (i.e., Faculty Handbook).

 

Can we utilize interim removals or suspensions for students?

Students may be removed on a temporary basis only if: 

  • Individualized safety and risk analysis determines that an immediate threat to physical health or safety of any student or other individual arising from the alleged sexual harassment justifies removal

      •  Student is given immediate notice and opportunity to contest the removal

 

What is a formal complaint? 

What

Document

Alleging sexual harassment

Requesting an investigation/resolution under grievance procedures

Who

It is signed by the alleged victim or the Title IX Coordinator.  If filed by alleged victim, the alleged victim must be current or attempted participant in education programs and activities.

Third-parties may not file formal complaints on behalf of an alleged victim. 

How

Either physical or electronic submission

When may the Title IX Coordinator file a formal complaint?

Typically when there is an important institutional interest in adjudicating a report irrespective of the alleged victim’s wishes

Typically involves serious misconduct, repeated misconduct, or misconduct by employees

If the alleged victim does not wish to file a formal complaint, Title IX Coordinator’s decision to do so must not be clearly unreasonable.

 

When must we dismiss a formal complaint?

  • If filed by the alleged victim, and the alleged victim is not a current or attempted participant in education programs and activities

      >   Complainant does not allege sexual harassment in the institution’s education programs

           or activities.

  • Complainant alleges sexual harassment abroad

 

  • Conduct alleged would not amount to sexual harassment even if it occurred as reported.

 

Can we consolidate the complaints?

Yes – Complaints can be consolidated if they arise out of the same facts and circumstances. 

Examples: 

Multiple respondents

Multiple complainants

Multiple allegations against a single respondent

Multiple allegations from a single complainant

 

What is the grievance process?

Investigation to collect relevant inculpatory     >>>>       

Live hearing before a decision-maker who and exculpatory evidence a finds facts under an evidentiary standard and determines the existence (or not) of a policy violation and any resulting sanctions/remediation

>>>> Appeal

 

What general principles govern the grievance process?

Equitable treatment of complainants and respondents

No stereotypes based on a party’s status as complainant or respondent

Presumption respondent did not violate policy unless and until a determination is made after hearing

Conflict and bias-free institutional participants

 

 

What is a conflict of interest?

When an individual has a material connection to a dispute, or the parties involved, such that a reasonable person would question the individual’s ability to be impartial

May be based on prior or existing relationships, professional interest, financial interest, prior involvement, and/or nature of position

 

How long does a grievance process take?

There is no firm deadline, and the length of the grievance process varies depending on a variety of factors.

Institution must be reasonably prompt, advise parties of the process, and notify parties of extensions of timelines and the reasons for the same.

 

What do we do if we find sexual harassment occurred?

 

If grievance process results in a finding of sexual harassment:

      Discipline for the respondent as determined by those with authority over the respondent.

      For complainant, grant remedies reasonably necessary to restore or preserve access to  

      education programs and activities.

                                              

                                                        Investigations

What is the purpose of an investigation?

      For the institution

       to collect relevant inculpatory and exculpatory evidence

       sufficient to permit an impartial decision-maker to determine

       whether or not the reported sexual harassment occurred

 

What is inculpatory evidence?

       Evidence tending to support that the respondent did not commit sexual harassment

       as alleged

       Example:  A text message sent the day after an incident from the complainant stating:

                         “I know that I said ‘yes’ at the time.  And I knew what I was doing.  But now I

                          feel like you just used me as a one-night-stand.”

 

What are the general principles of an investigation?

     Parties must have sufficient notice to prepare and meaningfully participate.

     Investigator has an independent duty to collect relevant inculpatory and exculpatory  

     evidence.

     Parties must have an equal opportunity to present their statements, evidence, and to        

     identify witnesses.

     Parties must have equal opportunity to review and comment on evidence developed.

     Investigation must be evidence-gathering; not fact-finding.

How do we tell the parties about an investigation?

     Institution must provide the parties written notice of a formal complaint that includes

     sufficient details about the “who, what, when, and how.”

What else does the notice need to say?

     Written notice must also include: 

             Statement of presumption respondent is not responsible unless and until a

             determination is made at the end of the process

             That parties have the right to an advisor of their choice

             That parties have the right to inspect and review evidence

             Any prohibition on providing knowingly false statements or information

 

How do we collect evidence in an investigation?

Interviews of parties and witnesses                      Collection of non-testimonial Evidence

 

What are some general principles about interviewing?

           Timing       Conduct interviews as soon as reasonably possible to maximize the most

                              accurate memories.

           Setting     Choose a private and quiet setting.

           Role          Maintain role as fact-gatherer; not a prosecutor, not a defense attorney.

           Prepare     Anticipate questions that you will be asked and have responses ready.

 

 How do we make a record of the interview?

Note-taking and audio recording are both appropriate methods of making a record of the   interview.

If the investigator takes note, they should be used to create a coherent interview while

the interview is fresh in the investigator’s mind.

If the investigator records the interview, the investigator must be sure to clearly state

on the record the time, place, date, and persons involved in the interview.

 

Do parties/witnesses have a right to record the interview themselves?

           No – Parties do not have the right to insist on recording an interview.

             If the interview is recorded, the institution should make the recording and give the

             parties access as required at the appropriate time.

May an investigation collect evidence on sexual history?

           Only if a party waives the privilege

             An institution may not access information under a legally recognized privilege unless

             the holder of the privilege waives it.

             Institution cannot unilaterally access its own counseling and health files for

             investigation purposes.     

Do the parties have access to the evidence?

             At a minimum, parties must be given access to all inculpatory and exculpatory

             evidence directly related to the allegations (regardless of whether the institution

             intends to rely on it) at least ten days before the investigation report is finalized.

             Evidence must be provided to a party and their advisor in physical copy or

             electronically.

             Any earlier access to the evidence must be provided equally.

Do the parties get to respond to the evidence?

 

          Yes – After they review the evidence provided at least ten days prior to issuance of

           the investigation report, parties can provide written responses.

           Depending on written responses, additional investigation may be needed.

           Investigator should consider the written responses in drafting final language of

           investigation report.

How is the investigation concluded?

           Issuance of a written investigation report must fairly summarize the evidence

             collected, including both inculpatory and exculpatory evidence.

            It must be provided to each party and their advisor at least ten days prior to any

            hearing.

           

Does the investigation report make findings?

            No – The investigation report fairly summarizes the relevant inculpatory and

              exculpatory evidence collected during the investigation.

              Under the new Title IX regulation, factual findings and determinations of policy

              violations are made by a decision-maker at a subsequent hearing. 

 

May parties have an advisor during the investigation?

             Yes – parties may be accompanied to any investigative interviews and meetings

               by an advisor of their choice.

               The advisor may be an attorney, but does not have to be. 

               Institution may confine advisor to a passive role during the investigation phase.

               Institution is not required to provide an advisor during the investigation phase.

 

What if the advisor breaks the rules?

 

              Institution may impose limits on the advisor’s role and certain behavior standards.

                            

                Must be applied equally for both parties

                Institution may exclude advisor who violates rules, but must pause the relevant

                Interview, meeting, or interaction until the party has a new advisor.

 

Are parties subject to a “gag” order during the investigation?

              No – The institution may not restrict the ability of parties to discuss the allegations or                  

                to gather and present relevant evidence, which includes talking to witnesses.

                The institution can still enforce prohibitions on witness intimidation, witness

                witness manipulation, false statements, retaliation, harassment, etc. 

 

                                                           Hearings

 

What is the purpose of the hearing?

                To hear testimony and receive non-testimonial evidence so that

                the decision-maker can determine facts under a standard of evidence,

                apply those facts to the policy, and issue a written determination resolving the formal 

                complaint and imposing discipline/remedial measures as necessary.

 

What standard of evidence can be used?

              Either

                          >  Preponderance of the evidence or

                          >  Clear and convincing evidence

                 Institution must select a standard and apply it uniformly in all cases, regardless

                 of the identity of the respondent

 

Who runs the hearings?

                Regulation requires hearing to be administered by “decision-maker(s)”

                  Means institution can use a single hearing officer or a hearing panel (presumably      

                  with a chair person        

 

What are the logistics of a hearing?

                 Hearing must be recorded (audio or video) or transcribed.

                 Hearing must have “live” – i.e., contemporaneous participation by parties and

                  their advisors.

                 Hearing can be held in a single room or with the parties separated in different

                  rooms.

                 Hearing can be held virtually using suitable software.  

 

Who attends a hearing?

               The decision-maker(s)

                 Other necessary institutional personnel or institutional advisors (i.e. attorneys)

                 The parties

                 Each party’s advisor

                 Other support persons for parties, if permitted by the institution

 

Do we provide a party’s advisor?

               Default rule is that a party selects and brings an advisor of their choice to the

                 hearing.

                 Advisor can be, but does not have to be, an attorney.

                 If a party does not have an advisor, the institution must supply one for the purpose

                 of questioning the other party and witnesses on behalf of the student in question.  

                      

How does the hearing actually work?

Title IX regulation is largely silent on specific elements.

Required elements include:  Decision-makers must independently evaluate questions for

relevance and resolve relevancy objections.

Party’s advisors must be allowed to conduct live questioning of other party and witnesses.

Questioning of sexual history is generally not permitted. 

Party or witness who refuses to submit to live questioning from other party’s advisor must

have their testimony excluded.

 

What is a potential sequence?

Testimony of investigator >>>> Statement and questioning of complainant>>>>

Statement and questioning of respondent >>>> Questioning of witnesses >>>>

Closing statement by complainant >>>> Closing statement by respondent

 

How might questioning of parties take place?

Party should be allowed to give a narrative first.  This is followed by questioning from decision-

maker(s).  It is immediately followed by questioning, including cross-examination, by the

advisor for other party.

How might questioning of witnesses take place?

Witness is first questioned by the decision maker(s) followed by questioning, including cross-

 examination, from advisor for complainant.  This is followed by questioning, including

 cross-examination, by advisor for other party.

 

Who determines relevance?

Decision-maker(s) must screen questions for relevance and resolve relevance objections.

Decision-maker(s) must explain any decision to exclude a question as not-relevant. 

 

What is relevance?

Evidence is relevant If:  it has a tendency to make a fact more or less probable than it would be

without the evidence; and the fact is of consequence in determining the action. 

 

Is sexual history considered?

Generally, no – Evidence of a complainant’s prior sexual behavior is relevant only if:  offered to

prove that someone other than the respondent committed the conduct, or if evidence of

specific incidents of the complainant’s prior sexual behavior with the respondent are offered

to prove consent. 

 

Does any testimony get excluded?

Yes – Decision maker(s) must exclude the statements of any party or witness who refuses to

submit to cross-examination from the other party’s advisor. 

 

Can we set standards of behavior for hearings?

Yes, provided they are applied equally and do not violate explicit guarantees from the Title IX

regulation. 

 

How long does a hearing last?

Decision-maker(s) have the ability to set reasonable time limits on the hearing and its

 constituent parts.

Parties must have a reasonable opportunity to conduct questioning/cross-examination, but do

not have the right to question/cross-examine witnesses as long as they want.

Decision-maker(s) should set an overall length to the hearing in advance and keep parties on

schedule. 

 

How do(es) the decision-maker(s) decide a case?

After hearing, decision-maker(s) must deliberate and consider all the admissible testimony and

admissible non-testimonial evidence. 

Evaluate evidence for weight and credibility.

Resolve disputed issues of fact under the standard of evidence adopted by the institution.

Using the facts as found, apply the policy’s definitions to those facts to determine whether

sexual harassment occurred. 

 

What does it mean to weigh evidence?

Not all evidence has equal value.

Some evidence may be more reliable and probative than other evidence.

Weight may vary depending on a range of factors, such as credibility; corroboration;

consistency; level of detail; expertise of the witness; whether a witness is disinterested, etc. 

Parties must have a reasonable opportunity to conduct questioning/cross-examination, but do

not have the right to question/cross-examine witnesses as long as they want.

Decision-maker(s) should set an overall length to the hearing in advance and keep parties on

schedule. 

How do(es) the decision-maker(s) issue a decision?

 

In a written document, provided contemporaneously to the parties that:

Identifies the allegations of sexual harassment

Describes the various procedural steps taken from the time formal complaint was made

States findings of facts supporting the determination

Reaches conclusions regarding application of relevant policy definitions to the facts

Includes a rationale for each finding for each allegation

States the disciplinary sanctions and remedies, if implicated by the determination made, and

Explains the procedures and grounds for appeal

 

Who determines discipline and remediation?

This is a question of institutional choice.

Some institutions will have the decision-maker(s) also impose discipline.

Others may refer a disciplinary authority with jurisdiction over the respondent (i.e., Dean

 of Students, Provost, Director of Human Resources, etc.).

If referred to someone else, that must occur before the written determination is issued. 

 

What principles do we use to determine discipline?

Discipline should vary depending on the nature of the violation found considering aggravating             

 mitigating factors.   

All things being equal, like violations should have like punishments.

Discipline has educational, punitive, and protective elements.

 

What principles do we use to determine remediation?

If a violation is found, the institution must take steps to restore or preserve the complainant’s

access to education.

 

Various types of supportive measures may be utilized after the determination to restore or

or preserve access.

Institution is not required to provide the exact remedy requested, but must provide a remedy

that is not clearly unreasonable. 

 

                                                                   Appeals

 

What is the purpose of the appeal?

The appeal permits challenge of a dismissal or determination on certain limited grounds.

Appeals are not an opportunity to re-argue an outcome or seek “de novo” review.

 

Who can appeal?

Title IX regulation requires that either party be allowed to appeal.

Third-party persons cannot file appeals on behalf of a party. 

 

Can an institution set a time limit to appeal?

Yes – An institution can and should require an appeal to be filed within a reasonable number

 of days after a dismissal or determination.

The institution may set a secondary deadline for the non-appealing party to elect to file a

 cross-appeal after the first party has appealed. 

 

What are the grounds for appeal?

Title IX regulation requires the following permitted grounds:

Procedural irregularity that affected the outcome of the matter

New evidence that was not reasonably available at the time of the determination regarding

responsibility or dismissal was made, that could affect the outcome of the matter; or

Title IX Coordinator, investigator, or decision-maker (hearing official) had a conflict of interest   

 or bias against complainants or respondents generally or the individual complainant or

 respondent that affected the outcome of the matter. 

 

Are all procedural errors appealable?

No – The procedural irregularity must be one that “affected the outcome of the matter.”

Errors that affect the outcome may be referred to as “prejudicial” errors.

Errors that do not affect the outcome may be called “non-prejudicial” or “harmless” errors.

 

What is the appeal process?

Deadline        A party must file appeal by the institutional deadline.

Notice            Non-appealing party must be notified in writing of the appeal.         

Statements   Both parties must be given a reasonable, equal opportunity to submit a written

                        statement in support of or in opposition to the appeal, as the case may be.

Written Decisions    Appeal officer must issue a written decision describing outcome and

                                     rationale.

Provided to Parties  Written decision must be provided simultaneously to parties. 

 

Should we ever dismiss an appeal?

Yes – Dismissal is appropriate if:  the appeal is filed after the reasonable deadline set in

the policy and/or if the appealing party does not articulate one of the three grounds for

appeal.   

 

May the institution appeal if the parties don’t?

 

No – The institution does not take appeals of its own determinations.

In the event a formal complaint is filed by the Title IX Coordinator, the Title IX Coordinator

should not have the right to appeal. 

 

Can we require an appealing party to explain their appeal?

Yes – An institution can require that the appealing party to state the grounds for appeal and

 also explain, with some level of specificity, why the appeal should be granted. 

 

How does the appeal officer make their decision?

  • Appeal officer’s review is limited in scope to the grounds stated for appeal.

>    Appeal officer does not hold a new hearing.    

>    Appeal officer must review the appeal, response, and hearing record (to the extent

      necessary, depending on the grounds for appeal).

  • Appeal officer must then draft a written decision that states the outcome of the

 appeal and rationale.          

 

What are the potential outcomes of an appeal?

One outcome can be that the appeal is denied and determination is made final.

One outcome can be that the appeal is granted and determination is changed by the appeal officer.

One outcome can be that an appeal is granted, determination is “vacated”, and appeal officer

sends matter back for a new investigation and/or hearing as appropriate, depending on the

nature of the error the appeals officer found. 

Is there further review after appeal?

Unless policy expressly provides for second level appeals (not recommended), President and

Board should not entertain pleas for additional review.   

 

                                                    Confidentiality

 

Are sexual harassment cases confidential?

Sexual harassment cases should be treated as confidential by the institution, with information

only shared as necessary to effectuate the policy.              

Records containing identifying information on students are subject to RERPA analysis.

The Title IX regulation contains an express preemption, permitting FERPA-protected material

to be used as required by Title IX itself. 

 

Are parties allowed to talk about a case?

Title IX regulation prohibits an institution from restricting the ability of a party to discuss the

allegations under investigation or to gather or present evidence.

First Amendment additionally limits public institutions’ ability to restrict speech about a case.

Witness manipulation and intimidation can still be addressed by institution. 

 

Are interviews and hearings confidential?

Institution should restrict access to investigations and hearings to those persons whose

parties may be accompanied by advisors of choice and potentially others if justified by the

need for reasonable accommodation.

Media should not be granted access to interviews and hearings. 

 

Are parties allowed to talk about a case?

Title IX regulation prohibits an institution from restricting the ability of a party to discuss the

allegations under investigation or to gather or present evidence.

First Amendment additionally limits public institutions’ ability to restrict speech about a case.

Witness manipulation and intimidation can still be addressed by institution. 

 All content from Husch Blackwell LLP. All Rights Reserved (Permission granted for CCCC website and educational presentations at CCCC). 


Reporting a Complaint

Any person who believes he or she has been the victim of harassment or violence by a student, faculty member, staff member, administrator, or other College employee because of sex, sexual orientation, and/or gender identity, should report the conduct to any member of the College’s Title IX Team (listed above).

Students are also encouraged to speak to any member of the College full-time faculty or professional staff as these individuals are mandatory reporters of student complaints. The College considers notice of a student complaint to a full-time faculty member and/or professional staff member to be official notice to the College. The faculty member or professional staff member receiving the complaint us required to notify any member of the Title IX Team in writing immediately.

Any person with knowledge or belief of conduct which may constitute harassment or violence toward a student, faculty member, staff member administrator, or other College employee because of that person’s sex, sexual orientation, and/or gender identity should report the alleged conduct immediately to his or her supervisor or to the College Title IX Team.

TITLE IX COMPLAINT FORM

Cloud County Community College (CCCC) is committed to providing a safe learning and working environment. In compliance with federal law, specifically Title IX, the Jeanne Clery Act (Celery Act) and the Campus Sexual Violence Elimination Act (SaVE Act), CCCC has adopted procedures to prevent and respond to incidents of sexual assault, domestic violence, cyberbullying, dating violence, stalking, and retaliation. Please provide as much information as possible in support of your claim. This form will be sent to the Title IX Coordinator and will help to ensure that your complaint is handled appropriately until it is resolved. You are welcome to attach documents with additional information.

Complainant (person filing the complaint)

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Respondent (person complaint is against)

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Witness Information

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Statement of Events

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Remedies Sought by Complainant

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Complaint Acknowledgement

 

I certify that, to the best of my knowledge, the information I have provided is accurate. I understand and acknowledge that a copy of the complaint (with attachments) will be provided to the respondent. I also understand and consent to the disclosure of this complaint to the appropriate administrators in order to investigate and resolve this complaint. I understand that this complaint and all discussions conducted throughout the course of the investigation are confidential to the extent permitted by law. I also understand that any unauthorized disclosures of this information could result in disciplinary action. I agree to abide by these guidelines.

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Title IX Coordinator
Beth Whisler
800-729-5105 ext. 262
bwhisler@cloud.edu