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If the conduct alleged in the formal complaint would not constitute Title IX Sexual Harassment as defined in subsection 2 of Subsection D of the Policy even if proved, did not occur in the University’s education program or activity, or did not occur against a person in the United States, then the University will dismiss the formal complaint with regard to that conduct for purposes of sexual harassment under Title IX. Such conduct will then be considered under Subsection C of the Policy.

The University may dismiss the formal complaint or any allegations therein, if at any time during the investigation or hearing:

• A complainant notifies the Title IX Coordinator in writing that the complainant would like to withdraw the formal complaint or any allegations therein;
  • The respondent is no longer enrolled or employed by the University; or
  • Specific circumstances prevent the University from gathering evidence sufficient to reach a determination as to the formal complaint or allegations therein.

Written notice of the dismissal and reason(s) therefor will be provided simultaneously to the parties.

When investigating a formal complaint, the University will ensure that the burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility rests on the University and not on the parties. The University will also:

• Provide an equal opportunity for the parties to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence;
• Avoid restricting the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence;
• Provide the parties with the same opportunities to have others present during any complaint proceeding, including the opportunity to be accompanied to any related meeting or proceeding by the advisor of their choice, who may be, but is not required to be, an attorney, and not limit the choice or presence of advisor for either the complainant or respondent in any meeting or complaint proceeding. However, the advisor will not be permitted to advocate for you or to answer any questions on your behalf, their role is to advise and assist you;
• Provide, to a party whose participation is invited or expected, written notice of the date, time, location, participants, and purpose of all hearings, investigative interviews, or other meetings, with sufficient time for the party to prepare to participate;
• Prior to completion of the investigative report, send in an electronic format or hard copy, to each party and the party’s advisor, if any, all evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint, and afford the parties ten (10) days so that each party can inspect, review, and meaningfully respond to the evidence through submission of a written response, which the investigator will consider prior to completion of the investigative report. The investigator may complete the report if no submission is received after ten (10) days.  The University will make all such evidence available at any hearing to give each party equal opportunity to refer to such evidence during the hearing, including for purposes of cross-examination; and
• Create an investigative report that fairly summarizes relevant evidence and, at least ten (10) days prior to a hearing (if a hearing is required under the Policy) or other time of determination regarding responsibility, send to each party and the party’s advisor, if any, the investigative report in an electronic format or a hard copy, for their review and written response. Each party’s written response, if any, shall be submitted to the investigator at least three (3) days prior to the live hearing.

• The University will hold a live hearing over which a hearing officer(s)/decision maker(s) preside. The hearing officer(s)/decision maker(s) will not be the same person as the Title IX Coordinator or the investigator(s).
• At the live hearing, the hearing officer(s)/decision maker(s) must permit each party’s advisor during cross-examination to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility. Such cross-examination at the live hearing must be conducted directly, orally, and in real time by the party’s advisor of choice and never by a party personally. The advisor will have no other role in the hearing but may advise and assist the party they are advising. If a party does not have an advisor present at the live hearing, the University will provide, without fee or charge to that party, an advisor of the University’s choice, who shall not be an attorney, to conduct cross-examination on behalf of that party.
• 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, with technology enabling participants simultaneously to see and hear each other. At the request of either party, the University will provide for the live hearing to occur with the parties located in separate rooms with technology enabling the hearing officer(s)/decision maker(s) and parties to simultaneously see and hear the party or the witness answering questions.
• Only relevant cross-examination and other questions may be asked of a party or witness. Before a complainant, respondent, or witness answers a cross-examination or other question, the hearing officer(s)/decision maker(s) must first determine whether the question is relevant and explain any decision to exclude a question as not relevant. For the purposes of this section, “relevant” means a question or evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the question or evidence. Questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant, unless such questions and evidence about the complainant’s prior sexual behavior are offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or if the questions and evidence concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent.
• If a party or witness does not submit to cross-examination at the live hearing, the hearing officer(s)/decision maker(s) will not rely on any statement of that party or witness in reaching a determination regarding responsibility. The hearing officer(s)/decision maker(s) will not draw an inference about the determination regarding responsibility based solely on a party’s or witness’s absence from the live hearing or refusal to answer cross-examination or other questions.
• The hearing officer(s)/decision-maker(s), will issue a written determination regarding responsibility under the preponderance of the evidence standard within 14 calendar days of the live hearing. The written determination will be issued to the parties simultaneously.
• An audio or audiovisual recording, or transcript, will be made of any live hearing and it will be made available to the parties for inspection and review.
• The written 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, or if an appeal is not filed, the date on which an appeal would no longer be considered timely.

Appeals are not intended to be a full rehearing of the Complaint Process. In any request for an appeal, the burden of proof lies with the party requesting the appeal, as the original determination and sanctions are presumed to have been decided reasonably and appropriately.  Appeals are limited to a review of relevant appeal materials based upon the grounds stated below. A party wishing to seek an appeal must submit their written appeal with the Center for Civil Rights & Equal Access within five (5) calendar days of the written determination. The deadline by which an appeal must be filed will be communicated in the written determination. Failure to file an appeal by the deadline means the determination of the hearing officer(s)/decision maker(s) become(s) final.

The review on appeal is limited to the record, except in appeals based on newly discovered evidence that could affect the outcome of the matter and that was not reasonably available at the time the determination regarding responsibility or dismissal was made. In such appeals, newly discovered evidence may be considered on appeal notwithstanding its absence from the record.

Within five (5) calendar days, any party may appeal from a determination regarding responsibility, and from the University’s dismissal of a formal complaint or any allegations therein, on the following bases:

1. Procedural irregularity that affected the outcome of the matter;
2. 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;
3. The Title IX Coordinator, investigator(s), or hearing officer(s)/decision maker(s) had a conflict of interest or bias for or against complainants or respondents generally or the individual complainant or respondent that affected the outcome of the matter;

Within three calendar days of receiving a timely filed, written appeal, grounded on one of the three bases stated above, the University will notify the other party in writing that an appeal has been filed. This notice will inform the other party of their right to respond to the appeal. The other party will receive access to a copy of the Appealing party’s written appeal in order to prepare a response. The other party will have five (5) calendar days to submit a written response to the appeal. The response is limited to addressing the appeal within the bases stated above.

The Appellate Officer (decision maker for tan Appeal) will review all relevant documents related to the matter, including but not limited to, the record from the hearing, the written appeal, and appeal response. A written decision describing the result of the appeal and the rationale for the result, will be issued to the parties, simultaneously, within five (5) calendar days of receiving a timely filed written response to the appeal, or, if a timely filed written response is not received, within five (5) calendar days of the due date of such response.

The decision of the Appellate Officer is final.