37 Determination Hearing

Following the conclusion and distribution of the investigative report, a hearing will be conducted to determine the outcome and resolution of the complaint. The parties and their advisors, if any, will be notified by the Hearing Officer, Hearing Panel chairperson, or Title IX Coordinator of the date, time, and location of the hearing, as set forth in the notice provisions below.

Hearing Panel:

Within 3 days of the release of the investigative report the parties, the Title IX Coordinator (or designee) will appoint a three-member hearing Panel, which shall be composed of at least 2 faculty and/or staff members and may include (but is not required to include)one outside person who is not permanently employed by the college. If a Hearing Panel will be used, the Title IX Coordinator will select one member of the Hearing Panel to act as the chair. The Title IX Coordinator will provide a copy of the formal complaint and the investigative report, along with the parties’ written responses to the investigative report, to each member of the hearing panel. Promptly after the appointment of the members of the Hearing Panel, the Title IX Coordinator will provide concurrent written notice to the complainant and the respondent, setting forth the names of the individuals selected to serve as members of the Hearing Panel. The parties may challenge the participation of any decision-maker based on bias or a conflict of interest by submitting a written objection to the Title IX Coordinator within 3 calendar days of receipt of the notice. Any objection must state the specific reason(s) for the objection. the Title IX Coordinator will evaluate the objection and determine whether to alter the composition of the Hearing Panel.

Failure to submit a timely and proper objection will constitute a waiver of the objection. Any changes to the members of the Hearing Panel will be provided in writing to both parties prior to the date of the hearing. Submission of Witnesses Lists: Within 5 calendar days of receipt of the notice of the Hearing Panel, both parties may provide to the Chair of the Hearing Panel a list of witnesses, if any, that they propose to be called to testify and a brief description of each proposed witness’s-connection to and/or knowledge of the issues in dispute. Absent good cause, a party cannot include a witness on the party’s pre-hearing witness list unless the witness was identified during the investigation. The Hearing Panel reserves the right to call relevant witnesses who may not have been included on a party’s witness list.

Notice of the Hearing:

Not less than 5 days but not more than 10 days after delivery of the notice of the initial composition of the Hearing Panel, the Chair of the Hearing Panel will provide a separate notice to the complainant, respondent, and any other witnesses whose testimony the Hearing Panel deems relevant, requesting such individuals to appear at the hearing to determine responsibility. The notice should set forth the date, time, and location for the individual’s requested presence. The Hearing Panel shall provide, in its notice to the parties, the names of the witnesses that the Hearing Panel plans to call. The hearing shall be conducted promptly but no sooner than 10 calendar days after the release of the investigative report.

Failure to Appear:

If any party fails to appear at the hearing if requested to do so, and such party was provided notice of the hearing as set forth above, then absent extenuating circumstances, the hearing Panel will proceed to determine the resolution of the complaint. As explained below, a party’s failure to appear may impact the Hearing Officer or Hearing Panel’s consideration and weight given to the non-appearing party’s version of events based on another source, such as the formal complaint or a prior statement. Option for Virtual or Separate Presence: Live hearings may be conducted with either all parties present in the same geographic location or, at the College’s discretion, any or all parties and witnesses may appear at the live hearing virtually, with technology enabling participants simultaneously to see and hear each other. Either party may request not to be in the same room as the other party. If any party makes such a request, then both parties will be required to attend the hearing from a location or room different from where The hearing Panel is sitting. If the hearing is virtual, or there is a request for separate rooms at a physical location, the College will ensure that all participants are able to simultaneously see and hear the party or witness answering questions. Instructions will be provided for accessibility prior to the hearing date. Recordings: An audio or audio-visual recording will be created of the live hearing and will be made available for inspection and review at any party’s request.

Advisor’s Role at Hearing:

The complainant and respondent may be accompanied by an advisor during the hearing to determine responsibility. A party must identify their advisor (if any) at least 5 days prior to the hearing. The advisor’s role at the hearing shall consist of (1) providing private advice to the party he/she is supporting and (2) questioning the opposing party and other witnesses. The advisor can be anyone, including an attorney. A party may arrange for the party’s advisor of choice to attend the hearing at the party’s own expense. Alternatively, the College will select and provide an advisor to assist a party at the hearing to determine responsibility, without fee or charge, upon request. In either scenario, the advisor may only participate in the hearing to the extent allowed under this policy. A party who wants an advisor to be provided by the College should notify the Title IX Coordinator at least 15 days after the filing or receipt of the formal complaint.

Evidentiary Matters and Procedure:

The parties, through their advisors, shall have an equal opportunity to question the opposing party and other witnesses, including fact and expert witnesses, and present other inculpatory or exculpatory evidence. Formal rules of evidence will not be observed during the hearing. The Hearing Panel will conduct the initial questioning of witnesses prior to the questioning by an advisor. The Chair of the Hearing Panel (acting alone or in consultation with other panelists) will make all determinations regarding the order of witnesses, the relevancy of questions, and the evidence to be considered or excluded during the hearing and decision-making process. The Hearing Panel may, at its discretion, choose to call the Investigator for the purpose of providing an overview of the investigation and findings.

Witness Examinations by the Parties:

Each party’s advisor is permitted to question the opposing party and the other witnesses, so long as the questions are relevant and not duplicative of the questions posed by the Hearing Panel. The questions may include challenges to credibility. No other questioning or speaking participation by an advisor will be allowed. A party may not examine a party or witness directly; rather, a party must utilize the services of an advisor for the purpose of posing questions to another party or witness. A party not represented by an advisor may, however, submit a list of proposed questions to the Chair of the Hearing Panel and ask that the questions be posed to the opposing party or witness. The decision-maker(s) cannot draw an inference about responsibility based solely on a party’s or witness’s absence from the live hearing or refusal to answer cross-examination or other questions. In a circumstance where a party or witness does not participate in a hearing, the panel should weigh the facts and circumstances in determining whether to consider and what weight to assign, any statements furnished outside the hearing process. The Chair of the Hearing Panel will make determinations regarding the relevancy of questions before a party or witness answers. If a determination is made to exclude the question based on relevancy, the Chair of the Hearing Panel will provide an explanation of why the question was deemed irrelevant and excluded.

The Chair of the Hearing Panel may disallow the attendance of any advisor if, at the discretion of the Panel Chair, such person’s presence becomes disruptive or obstructive to the hearing or otherwise warrants removal. Advisors will not be permitted to badger or question the opposing party or any witness in an abusive or threatening manner. Absent accommodation for a disability, the parties may not be accompanied by any other individual during the hearing process except as set forth in this policy. College officials may seek advice from the College’s Office of General Counsel on questions of law, policy, and procedure at any time during the process.

Prior Sexual Conduct:

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.

Confidentiality and Disclosure.

To comply with FERPA and Title IX and to provide an orderly process for the presentation and consideration of relevant information without undue intimidation or pressure, the grievance process is not open to the general public. Accordingly, documents prepared in anticipation of the hearing (including the formal complaint, investigative report, evidentiary materials, notices, and prehearing submissions), recordings of the hearing, and documents, testimony, or other information used at the hearing may not be disclosed outside of the hearing proceedings, except as may be required or authorized by law.

Decision of the Hearing Panel and Standard of Evidence:

Following the conclusion of the hearing, the Hearing Panel will confer and determine whether the evidence establishes that it is more likely than not that the respondent committed a violation of this policy. In other words, the standard of proof will be the preponderance of the evidence. This standard applies to complaints against both students and employees. In reaching the determination, the Hearing Panel will objectively and thoroughly evaluate all relevant evidence, both inculpatory and exculpatory, and reach an independent decision, without deference to the investigative report. The determination of responsibility shall be made by majority vote.

Written Determination of Responsibility:

As soon as practicable following the hearing (and ordinarily within 10 days thereafter), the Chair of the Hearing Panel shall complete a report of the decisionmaker’s findings. The Chair of the Hearing Panel will send simultaneous notification of the decision to both parties and their advisors, where applicable, with the following information:

• Identification of the allegations potentially constituting sexual harassment under the policy

• 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 the hearing held

• Findings of fact that support the determination
• Conclusions regarding the application of the College’s conduct standards to the facts

• A statement and rationale for the result of each allegation, including a determination as to responsibility using the preponderance of the evidence standard

• Any disciplinary sanctions imposed on the respondent
• Whether any remedies designed to restore or preserve equal

access to the College’s education program or activity will be provided to the complainant (description of remedies is not included)

• Procedures and permissible bases for the parties to appeal
• Sanctions: If the Hearing Panel determines that more likely than not

the respondent committed a violation of this policy, then the Hearing Panel will determine sanctions and consider whether a given sanction will (a) bring an end to the violation in question, (b) reasonably prevent a recurrence of a similar violation, and (c) remedy the effects of the violation. Sanctions for a finding of responsibility will depend upon the nature and gravity of the misconduct, any record of prior discipline for a violation of this policy, or both. The range of potential sanctions is set forth in the definitions section of this policy. Ordinarily, sanctions will not be imposed until the resolution of any timely appeal under this policy. However, if it is deemed necessary to protect the welfare of the victim or the College community, the

The Hearing Panel may recommend to the decision-maker on appeal that any sanctions be imposed immediately and continue in effect until such time as the appeal process is exhausted. Remedies: Where a determination is made that the respondent was responsible for sexual harassment, the Hearing Panel will determine any final remedies to be provided to the complainant, if any, and the Title IX Coordinator will communicate such decision to the complainant and the respondent to the extent that it affects him/her. Remedies must be provided in all instances in which a determination of responsibility for sexual harassment has been made against the respondent. Remedies must be designed to restore or preserve equal access to the College’s education program or activity. Such remedies may include the same individualized services described above as “supportive measures”; however, remedies need not be nondisciplinary or non-punitive and need not avoid burdening the respondent.

No Retaliation:
The Title IX Coordinator will take steps to prevent any harassment of or retaliation against the complainant, the respondent, or third parties, such as informing them about how to report subsequent problems, following up with them to ensure that there are no subsequent problems, and providing training for the campus community.