Questions or comments? Contact the dean of students office at deanofstudents@hampshire.edu.
Effective Date
The Title IX Grievance Policy will become effective on August 14, 2020, and will only apply to 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 investigated and adjudicated according to the 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 Reg. 30026 (May 19, 2020), be stayed or held invalid by a court of law, or should the Title IX Final Rule be withdrawn or modified to not require the elements of this policy, this policy, or the invalidated elements of this policy, will be deemed revoked as of the publication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 Title IX Grievance Policy be revoked in this manner, any conduct covered under the Title IX Grievance Policy shall be investigated and adjudicated under the existing Norms for Community Living, Sexual Misconduct, Relationship Violence, and Stalking Policy. [2]
Non-Discrimination in Application
The requirements and protections of this policy apply equally regardless of sex, sexual orientation, gender identity, gender expression, or other protected classes 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 institution’s policy or process may contact the Department of Education’s Office for Civil Rights using contact information available at https://ocrcas.ed.gov/contact-ocr [4].
Zauyah Waite
Title IX coordinator and VP of student affairs/ dean of students
Merrill Student Life Center, 2nd floor
Hampshire College, 893 West Street, SA, Amherst, MA 01002
zwSA@hampshire.edu [7]
o: 413.559.5412
online report form [8]
[9]
Responsible Employee
It is important to understand the different responsibilities of Hampshire College Employees. Every Hampshire College Employee is designated as a “Responsible Employee”, a “Confidential Employee” or a “Private Employee.”
A “Responsible Employee” is any Employee who is not a Confidential or Private Employee. A Responsible Employee is required to immediately report to the College’s Title IX Coordinator all relevant details (obtained directly or indirectly) about Sexual Misconduct Violations that involve a College Student or Employee as a Complainant or Respondent, including dates, times, locations, and names of parties and witnesses. Responsible Employees include Resident Advisors, Community Facilitators, Teaching Assistants, EMTs, and all other student-employees when disclosures are made to any of them in their capacities as employees.
Responsible Employees are not required to report information disclosed (1) at public awareness events (e.g., “survivor speak-outs”, candlelight vigils, protests, or other public forums in which students may disclose Sexual Harassment; collectively “Public Awareness Events”; or (2) during an individual’s participation as a subject in an Institutional Review Board- approved human subjects research protocol (“IRB Research”). The College may provide information about Title IX rights and about available College and community resources and support at Public Awareness Events, however, and Institutional Review Boards may, in appropriate cases, require researchers to provide such information to all subjects of IRB research.
Supportive Measures
Complainants (as defined in prior section), who report allegations that could constitute covered sexual harassment under this policy, have the right to receive supportive measures from Hampshire College regardless of whether they desire to file a complaint, which may include, listed below, as appropriate. Supportive measures are non-disciplinary and non-punitive.
Emergency Removal
Hampshire College retains the authority to remove a respondent from Hampshire College's program or activity on an emergency basis, where Hampshire College (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 Hampshire College determines such removal is necessary, the respondent will be provided notice and an opportunity to challenge the decision immediately following the removal. The Dean of Students or designee will hear the removal challenge to make a final determination of the removal.
Filing a Formal Complaint
The institution 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.
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.
What is the purpose of this Guide?
On May 19, 2020, the U.S. Department of Education issued Final Rules governing the Title IX grievance process, effective August 14, 2020. The Final Rule requires that all colleges and universities hold a live hearing before making any determination regarding responsibility for covered reports of Title IX sexual harassment, including sexual violence. This hearing must provide for live cross-examination by the parties’ advisors.
Any question posed by the advisors must be evaluated for “relevance” in real time by the hearing officer. According to Final Rule §106.45(b)(6)(i):
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 decision-maker(s) must first determine whether the question is relevant and explain any decision to exclude a question as not relevant.
What is a relevant question?
The Department of Education encourages institutions to apply the “plain and ordinary meaning” of relevance in their determinations. 85 Fed. Reg. 30026, 30304 (May 19, 2020). Basically, a relevant question will ask whether the facts material to the allegations under investigation are more or less likely to be true. Id. at 30294. A question not directly related to the allegations will generally be irrelevant.
Officials should use common sense in this understanding. Things may be interesting or surprising but not be relevant.
Relevance decisions should be made on a question-by-question basis, looking narrowly at whether the question seeks information that will aid the decision-maker in making the underlying determination. The relevance decision should not be based on who asked the question, their possible (or clearly stated) motives, who the question is directed to, or the tone or style used to ask about the fact. Relevance decisions should not be based in whole or in part upon the sex or gender of the party for whom it is asked or to whom it is asked, nor based upon their status as complainant or respondent, past status as complainant or respondent, any organizations of which they are a member, or any other protected class covered by federal or state law (e.g. race, sexual orientation, disability).
If a question is relevant but offered in an abusive or argumentative manner, the decision-maker has the discretion to ask the advisor to rephrase the question in an appropriate manner, consistent with the institution’s decorum policy for hearings.
What if the question is “prejudicial” and concerns sensitive or embarrassing issues?
Much of the content within these hearings may be considered sensitive and/or embarrassing by parties or advisors. However, relevant questions need to be considered even if a party or advisor believes the danger of unfair prejudice substantially outweighs their probative value. Only irrelevant questions (detailed below), including about the complainant’s prior sexual history, may be excluded.
What is an irrelevant question?
Question about Complainant’s Prior Sexual Behavior or Sexual Predisposition
Questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant, unless:
Question regarding Privileged Information
Questions that constitute, or seek disclosure of, information protected under a legally-recognized privilege are irrelevant. 34 C.F.R. § 106.45(1)(x). Depending on your state, individuals with legal privilege may include medical providers (physician, dentist, podiatrist, chiropractor, nurse), psychologists, clergy, rape crisis counselors, and social workers. (for instance, New York's "laws of privilege" are listed within CPLR Article 45 [20]; Each state has its own rules around privilege).
Questions about Undisclosed Medical Records
Questions that call for information about any party’s medical, psychological, and similar records are irrelevant unless the party has given voluntary, written consent. 85 Fed. Reg. 30026, 30294 (May 19, 2020).
Duplicative Questions
Questions that repeat, in sum or substance, questions already asked by a party’s advisor during cross-examination (and if part of your process, during direct examination), may be ruled duplicative, and therefore irrelevant.
How should the decision-maker reach a relevance determination?
If the decision-maker is a single individual, the decision-maker will be solely responsible for determining the relevance of the question before it is asked.
If the decision-maker is a panel, the panel’s Chair will make all determinations of relevance.
What should the relevance determination consist of?
The Department of Education explains that the Final Rule “does not require a decision-maker to give a lengthy or complicated explanation” in support of a relevance determination. Rather, “it is sufficient, for example, for a decisionmaker to explain that a question is irrelevant because the question calls for prior sexual behavior information without meeting one of the two exceptions, or because the question asks about a detail that is not probative of any material fact concerning the allegations.” Id. at 30343.
As such, the decision-maker need only provide a brief explanation of the determination, which will ordinarily consist of one of the following statements depending on the situation.
Generally probative questions
Question about Complainant’s Prior Sexual Behavior or Sexual Predisposition
Question regarding Privileged Information
Questions about Undisclosed Medical Records
Duplicative Questions
The decision-maker may relay a longer explanation if necessary under the circumstances.
The relevance determination will be conveyed orally, except as needed to accommodate a disclosed disability of a hearing participant, and all relevance determinations will be preserved in the record of the proceeding.
May the parties and/or their advisors ask the decision-maker to reconsider their relevance decision?
[Any party or their advisor; depends on role of advisor] [may/may not] request that the decision-maker reconsider their relevance determination.
The decision-maker may deny or grant the request to reconsider. This determination is final, but may be subject to appeal under the Title IX Grievance Process.
Section 106.45(b) of the 2020 Final Title IX Rules require the sharing of “All materials used to train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process. A recipient must make these training materials publicly available on its website, or if the recipient does not maintain a website the recipient must make these materials available upon request for inspection by members of the public.”
For the purposes of compliance with section 106.45 of the Title IX Final Rules, Hampshire College is a member of the State University of New York, Student Conduct Institute. This website [22] includes all training materials created by the Student Conduct Institute for its member institutions to train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process in Title IX compliance and practices.
Links
[1] http://bit.ly/TitleIXReg
[2] https://handbook.hampshire.edu/node/40
[3] https://handbook.hampshire.edu/node/249
[4] https://ocrcas.ed.gov/contact-ocr
[5] https://handbook.hampshire.edu/node/39
[6] https://hampshire.guardianconduct.com/
[7] mailto:zwsa@hampshire.edu
[8] https://hampshire.guardianconduct.com/incident-reporting/new?incident_type=4%20Title%20IX-%20Student
[9] https://yoururl.guardianconduct.com/incident-reporting/new?incident_type=4%20Title%20IX-%20Student
[10] mailto:aksOP@hampshire.edu
[11] mailto:plrSA@hampshire.edu
[12] mailto:cstrycharz@hampshire.edu
[13] mailto:jtHR@hampshire.edu
[14] mailto:healthservices@hampshire.edu
[15] mailto:jkurtz@hampshire.edu
[16] mailto:rmgSA@hampshire.edu
[17] https://handbook.hampshire.edu/node/43
[18] https://www2.ed.gov/about/offices/list/ocr/blog/20200522.html
[19] https://handbook.hampshire.edu/node/304
[20] https://www.nysenate.gov/legislation/laws/CVP/A45
[21] https://handbook.hampshire.edu/node/121
[22] https://system.suny.edu/sci/postedtraining/