General Rules of Hearings
Hampshire College 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 Hampshire College discretion, any or all parties, witnesses, and other participants may appear at the live hearing virtually through video conferencing. This technology will enable participants simultaneously to see and hear each other. At its discretion, Hampshire College may delay or adjourn a hearing based on technological errors not within a party’s control.
All proceedings will be recorded through audio recording. 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 Title IX Grievance Process. Once signed, this Agreement may not be withdrawn.
Continuances or Granting Extensions
Hampshire College 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, Hampshire College will notify all participants and endeavor to accommodate all participants’ schedules and complete the hearing as promptly as practicable.
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 Community Review Board 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 Community Review Board 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 institution 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 that does not constitute a “statement” by that party.
- For example, A verbal or written statement constituting part or all of the sexual harassment itself is not a “prior statement” that must be excluded if the maker of the statement does not submit to cross-examination about that statement. In other words, a prior statement would not include a document, audio recording, audiovisual reading, and digital media, including but not limited to text messages, emails, and social media postings, that constitute the conduct alleged to have been the act of sexual harassment under the formal complaint. See, OCR Blog (May 22, 2020), available at https://www2.ed.gov/about/offices/list/ocr/blog/20200522.html
- Hampshire College 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 cannot rely on any prior statements made by that party in reaching a determination regarding responsibility, but may reach a determination regarding responsibility based on evidence that does not constitute a “statement” by that party.
- 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 Decision-maker (Community Review Board)
- The hearing body will consist of a panel of 3 members, the Community Review Board (CRB).
- 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.
- 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. 85 Fed. Reg. 30026, 30340 (May 19, 2020).
- If neither a party nor their advisor appear at the hearing, Hampshire College will provide an advisor to appear on behalf of the non-appearing party. See, 85 Fed. Reg. 30026, 30339-40 (May 19, 2020).
- 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 cannot rely on any statements made by that witness 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. 85 Fed. Reg. 30026, 30347 (May 19, 2020).
For all live hearings conducted under this Title IX Grievance Process, the procedure will be as follows:
- The Community Review Board will open and establish rules and expectations for the hearing;
- The Parties will each be given the opportunity to provide opening statements;
- The Community Review Board will ask questions of the Parties and Witnesses;
- Parties will be given the opportunity for live cross-examination after the Community Review Board conducts its initial round of questioning; During the Parties’ cross-examination, the Community Review Board will have the authority to pause cross-examination at any time for the purposes of asking the Community Review Board'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 the Community Review Board. A Party’s waiver of cross-examination does not eliminate the ability of the the Community Review Board 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 Community Review Board will determine if the question is relevant. (Determining Relevance.) Cross-examination questions that are duplicative of those already asked, including by the Community Review Board may be deemed irrelevant if they have been asked and answered.
Review of Transcript or Recording
The Transcript or Recording of the hearing will be available for review by the parties within ten (10) business days, unless there are any extenuating circumstances. The Transcript or Recording of the hearing will not be provided to parties or advisors of choice.