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Interim Title IX Grievance Policy

INTRODUCTION
 
What is the purpose of the Title IX Grievance Policy?
 
Title IX of the Educational Amendments of 1972 prohibits any person in the United States from being discriminated against on the basis of sex in seeking access to any educational program or activity receiving federal financial assistance. The U.S. Department of Education, which enforces Title IX, has long defined the meaning of Title IX’s prohibition on sex discrimination broadly to include various forms of sexual harassment and sexual violence that interfere with a student’s ability to equally access our educational programs and opportunities.
 
On May 19, 2020, the U.S. Department of Education issued a Final Rule under Title IX of the Education Amendments of 1972 that:
  • Defines the meaning of “sexual harassment” (including forms of sex-based violence)
  • Addresses how this institution must respond to reports of misconduct falling within that definition of sexual harassment, and
  • Mandates a grievance process that this institution must follow to comply with the law in these specific covered cases before issuing a disciplinary sanction against a person accused of sexual harassment.
 
See, 85 Fed. Reg. 30026 (May 19, 2020). The full text of the Final Rule and its extensive Preamble are available here: http://bit.ly/TitleIXReg [1]
 
Based on the Final Rule, Hampshire College will implement the following Title IX Grievance Policy, effective August 14, 2020.
 
How does the Title IX Grievance Policy impact other campus disciplinary policies?
 
In recent years, “Title IX” cases have become a short-hand for any campus disciplinary process involving sex discrimination, including those arising from sexual harassment and sexual assault. But under the Final Rule, Hampshire College must narrow both the geographic scope of its authority to act under Title IX and the types of “sexual harassment” that it must subject to its Title IX investigation and adjudication process. Only incidents falling within the Final Rule’s definition of sexual harassment will be investigated and, if appropriate, brought to a live hearing through the Title IX Grievance Policy defined below.
 
Hampshire College remains committed to addressing any violations of its policies, even those not meeting the narrow standards defined under the Title IX Final Rule. 
 
Specifically, our campus has:
The Norms for Community Living that defines certain behavior as a violation of campus policy, including Sexual Misconduct, Relationship Violence, and Stalking Policy. [2]
 
To the extent that alleged misconduct falls outside the Title IX Grievance Policy, or misconduct falling outside the Title IX Grievance Policy is discovered in the course of investigating covered Title IX misconduct, the institution retains authority to investigate and adjudicate the allegations under the policies and procedures defined within the Norms for Community Living, Sexual Misconduct, Relationship Violence, and Stalking Policy [2] through a separate grievance proceeding. (https://handbook.hampshire.edu/node/249 [3]).
 
The elements established in the Title IX Grievance Policy under the Final Rule have no effect and are not transferable to any other policy of the College for any violation of the Norms for Community Living, employment policies, or any civil rights violation except as narrowly defined in this Policy. This Policy does not set a precedent for other policies or processes of the College and may not be cited for or against any right or aspect of any other policy or process. 
 
How does the Title IX Grievance Policy impact the handling of complaints?
 
Our existing Title IX office and reporting structure remains in place. What has changed is the way our Title IX office will handle different types of reports arising from sexual misconduct, as detailed in full throughout Section 2.

General Rules of Application

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]. 

Hampshire College Notice of Non-discrimination. [5]

Definitions

Covered Sexual Harassment
 
For the purposes of this Title IX Grievance Policy, “covered sexual harassment” includes any conduct on the basis of sex that satisfies one or more of the following: 
  1. An employee conditioning educational benefits on participation in unwelcome sexual conduct (i.e., quid pro quo);
  2. Unwelcome conduct that a reasonable person would determine is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the educational institution’s education program or activity;
  3. Sexual assault (as defined in the Clery Act), which includes any sexual act directed against another person, without the consent of the victim including instances where the victim is incapable of giving consent;
  4. Dating violence (as defined in the Violence Against Women Act (VAWA) amendments to the Clery Act), which includes any violence committed by a person: (A) who is or has been in a social relationship of a romantic or intimate nature with the victim; and (B) where the existence of such a relationship shall be determined based on a consideration of the following factors: (i) The length of the relationship; (ii) The type of relationship; (iii) The frequency of interaction between the persons involved in the relationship.
  5. Domestic violence (as defined in the VAWA amendments to the Clery Act), which includes any 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 Massachusetts domestic or family violence laws 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 Massachusetts.
  6. Stalking (as defined in the VAWA amendments to the Clery Act), meaning engaging in a course of conduct directed at a specific person that would cause a reasonable person to-- (A) fear for their safety or the safety of others; or (B) suffer substantial emotional distress.
Note that conduct that does not meet one or more of these criteria may still be prohibited under the Norms for Community Living. 
 
Consent
 
For the purposes of this Title IX Grievance Policy, “consent” means:
  • Informed (knowing)
  • Voluntary (freely given)
  • Active (not passive), meaning that, through the demonstration of clear words or actions, a person has indicated permission to engage in mutually agreed-upon sexual activity 
Consent cannot be obtained by Force. Force includes 1. the use of physical violence, 2. threats, 3. intimidation, and/or 4. coercion.
 
  • Physical violence means that a person is exerting control over another person through the use of physical force. Examples of physical violence include hitting, punching, slapping, kicking, pushing, restraining, choking, and brandishing or using any weapon.
  • Threats are words or actions that would compel a reasonable person to engage in unwanted sexual activity. Examples include threats to harm a person physically, to reveal private information to harm a person’s reputation or cause a person academic or economic harm.
  • Intimidation is an implied threat that menaces or causes reasonable fear in another person. A person’s size, alone, does not constitute intimidation; however, a person’s size may be used in a way that constitutes intimidation (e.g., blocking access to an exit).
  • Coercion is the use of an unreasonable amount of pressure to gain sexual access. Coercion is more than an effort to persuade, entice, or attract another person to have sex. When a person makes clear a decision not to participate in a particular form of Sexual Contact or Sexual Intercourse, a decision to stop, or a decision not to go beyond a certain sexual interaction, continued pressure can be coercive. In evaluating whether coercion was used, the College will consider: (i) the nature of the pressure, (ii) the intensity of the pressure, (iii) the degree of isolation of the person being pressured, and (iv) the frequency and duration of the pressure.  To constitute coercion, conduct must result in wrongfully impairing another individual’s freedom of will to participate in sexual activity.
Consent cannot be gained by taking advantage of the incapacitation of another, where the person initiating sexual activity knew or reasonably should have known that the other was incapacitated. Incapacitation means that a person lacks the ability to make informed, rational judgments about whether or not to engage in sexual activity.
 
A person who is incapacitated is unable, temporarily or permanently, to give Consent because of mental or physical helplessness, sleep, unconsciousness, or lack of awareness that sexual activity is taking place. Mentally helpless means a person is incapable of appraising or controlling one’s own conduct. Physically helpless means a person is physically unable to communicate willingness or unwillingness to an act. A person may be incapacitated as a result of the consumption of alcohol or other drugs, even where voluntary, or due to a temporary or permanent physical or mental health condition.
 
The College offers the following guidance on Consent and assessing Incapacitation:
 
A person who wants to engage in a specific sexual activity is responsible for obtaining Consent for that activity. Lack of protest, lack of resistance, and silence and/or passivity do not constitute Consent.  Relying solely on non-verbal communication before or during sexual activity can lead to misunderstanding and may result in a violation of this policy.  It is important to not make assumptions about whether a potential partner is consenting.  In order to avoid confusion or ambiguity, participants are encouraged to talk with one another before engaging in sexual activity.  If confusion or ambiguity arises during sexual activity, participants should stop and clarify a mutual willingness to continue that activity.
 
Consent to one form of sexual activity does not, by itself, constitute Consent to another form of sexual activity. In addition, Consent to sexual activity on a prior occasion does not, by itself, constitute Consent to future sexual activity.  In cases of prior or ongoing relationships, the manner and nature of prior communications between the parties and the context of the relationship may have a bearing on evaluating the presence of Consent, but any sexual activity must still be mutually agreed-upon.   
 
Consent may be withdrawn at any time. An individual who seeks to withdraw Consent should communicate, through clear words or actions, a decision to cease the sexual activity. Once Consent is withdrawn, the sexual activity must cease immediately.
 
In evaluating Consent in cases of alleged incapacitation, the Colleges asks two questions:
 
  • Did the person initiating sexual activity know that the other party was incapacitated? and if not,
  • Should a sober, reasonable person under the same circumstances have known that the other party was incapacitated?
If the answer to either of these questions is “YES,” Consent was absent and the conduct is likely a violation of this policy.
 
Incapacitation is an extreme form of intoxication. Incapacitation can also be caused by certain medical conditions. A person is not necessarily incapacitated merely as a result of ingesting alcohol or other drugs. The impact of alcohol and other drugs varies from person to person; each individual may have a different level of tolerance or metabolism. One is not expected to be a medical expert in assessing incapacitation. Instead, one must look for the common and obvious warning signs that show that a person may be incapacitated or approaching incapacitation. A person’s level of intoxication can change rapidly, and a person can reach incapacitation within a short time span.  Although every individual may manifest signs of incapacitation differently, typical signs include slurred or incomprehensible speech, unsteady gait, combativeness, emotional volatility, vomiting, or incontinence. A person who is incapacitated may not be able to understand some or all of the following questions: “Do you know where you are?” “Do you know how you got here?” “Do you know what is happening?” “Do you know whom you are with?” 
 
The introduction of alcohol or other drugs may create ambiguity for all involved as to whether Consent has been sought or given. If one has doubt about either party’s level of intoxication, the safe thing to do is to forego all sexual activity.
 
Being impaired by alcohol or other drugs is not a defense to any violation of this policy.
 
Education Program or Activity
 
For the purposes of this Title IX Grievance Policy, Hampshire College's “education program or activity” includes:
  • Any on-campus premises
  • Any off-campus premises that Hampshire College has substantial control over. This includes buildings or property owned or controlled by a recognized student organization.
  • Activity occurring within computer and internet networks, digital platforms, and computer hardware or software owned or operated by, or used in the operations of Hampshire College’s programs and activities over which the Hampshire College has substantial control.
The Five-College Consortium
 
Hampshire College has joined with Smith College, Mount Holyoke College, Amherst College, and the University of Massachusetts Amherst to form the Five Colleges. Any College community member, including Five-College students and Hampshire College students, who wishes to report concerning behavior that occurs at an institution other than their home campus may do so by contacting the Title IX Office at either: 1) their home institution; or 2) the institution where either: a) the behavior occurred or b) where the alleged perpetrator of the concerning conduct is enrolled.  As appropriate, the Hampshire Title IX Office will coordinate with another institution in support of any persons affected by reported Title IX Prohibited Conduct.
 
Formal Complaint
 
For the purposes of this Title IX Grievance Policy, “formal complaint” means a document – including an electronic submission [6] - filed by a complainant with a signature or other indication that the complainant is the person filing the formal complaint, or signed by the Title IX Coordinator, alleging sexual harassment against a respondent about conduct within Hampshire College education program or activity and requesting initiation of the procedures consistent with the Title IX Grievance Policy to investigate the allegation of sexual harassment. 
 
Complainant  
 
For the purposes of this Title IX Grievance Policy, Complainant means any individual who has reported being or is alleged to be the victim of conduct that could constitute covered sexual harassment as defined under this policy.
 
Relevant evidence and questions
 
“Relevant” evidence and questions refer to any questions and evidence that tends to make an allegation of sexual harassment more or less likely to be true.
 
“Relevant” evidence and questions do not include the following types of evidence and questions, which are deemed “irrelevant” at all stages of the Title IX Grievance Process:
 
  • Evidence and questions about the complainant’s sexual predisposition or prior sexual behavior unless:
    • They are offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or
    • They concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent. 34 C.F.R. § 106.45(6)(i).
  • Evidence and questions that constitute, or seek disclosure of, information protected under a legally-recognized privilege.
  • Any party’s medical, psychological, and similar records unless the party has given voluntary, written consent. 85 Fed. Reg. 30026, 30294 (May 19, 2020).
Respondent
 
For the purposes of this Title IX Grievance policy, Respondent means any individual who has been reported to be the perpetrator of conduct that could constitute covered sexual harassment as defined under this policy.
 
Privacy vs. Confidentiality 
 
Consistent with the Norms for Community Living, references made to confidentiality refer to the ability of identified confidential resources to not report crimes and violations to law enforcement or college officials without permission, except for extreme circumstances, such as a health and/or safety emergency or child abuse. References made to privacy mean Hampshire College offices and employees who cannot guarantee confidentiality but will maintain privacy to the greatest extent possible, and information disclosed will be relayed only as necessary to investigate and/or seek a resolution and to notify the Title IX Coordinator or designee, who is responsible for tracking patterns and spotting systemic issues. Hampshire College will limit the disclosure as much as practicable, even if the Title IX Coordinator determines that the request for confidentiality cannot be honored.
 
Disability Accommodations
 
This Policy does not alter any institutional obligations under federal disability laws including the Americans with Disabilities Act of 1990, and Section 504 of the Rehabilitation Act of 1973. Parties may request reasonable accommodations for disclosed disabilities to the Title IX Coordinator at any point before or during the Title IX Grievance Process that do not fundamentally alter the Process. The Title IX Coordinator will not affirmatively provide disability accommodations that have not been specifically requested by the Parties, even where the Parties may be receiving accommodations in other institutional programs and activities.

Reporting Sexual Harassment

Any person may report sex discrimination, including sexual harassment (whether or not the person reporting is the person alleged to be the victim of conduct that could constitute sex discrimination or sexual harassment), in person, by mail, by telephone, or by electronic mail, using the contact information listed for the Title IX coordinator, or by any other means that results in the Title IX coordinator receiving the person’s verbal or written report.
 
Contact Information for the Title IX coordinator:

Greg Narleski
Title IX coordinator and director of student rights and responsibilities
Cole Science Center, room 104
Hampshire College, 893 West Street, PR, Amherst, MA 01002
ganSA@hampshire.edu [7]
o: 413.559.6205, m: 617.719.1974
online report form [6]

Such a report may be made at any time (including during non-business hours) by using the telephone number, online report form, or electronic mail address, or by mail to the office address listed for the Title IX coordinator.
 
Confidential Reporting
 
The following Officials will provide privacy, but not confidentiality, upon receiving a report of conduct prohibited under this policy:
 
The following Officials will provide confidentiality:

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.

 

Non-Investigatory Measures Available Under the Title IX Grievance Policy

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.

  • Counseling
  • extensions of deadlines or other course-related adjustments
  • modifications of work or class schedules
  • campus escort services
  • restrictions on contact between the parties (no contact directive)
  • changes in work or housing locations
  • leaves of absence
  • increased security and monitoring of certain areas of the campus

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.

  • Hampshire College's Protocol Team is responsible for making the Risk Assessment and analysis to determine if a removal is justified.

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.

Administrative Leave
 
Hampshire College retains the authority to place a non-student employee respondent on administrative leave during the Title IX Grievance Process, consistent with the Hampshire College Employee Handbook.
 

The Title IX Grievance Process

Filing a Formal Complaint

The timeframe for the Title IX Grievance Process begins with the filing of a Formal Complaint. The Grievance Process will be concluded within a reasonably prompt manner, and no longer than ninety (90) business days after the filing of the Formal Complaint, provided that the Process may be extended for a good reason, including but not limited to the absence of a party, a party’s advisor, or a witness; concurrent law enforcement activity; or the need for language assistance or accommodation of disabilities. The procedure for applying for extensions is described below.
 
To file a Formal Complaint, a complainant must provide the Title IX Coordinator a written, signed complaint describing the facts alleged. Complainants are only able to file a Formal Complaint under this Policy if they are currently participating in, or attempting to participate in, the education programs or activities of Hampshire College, including as an employee. For complainants who do not meet this criteria, the College will utilize existing policy in Norms for Community Living, Sexual Misconduct, Relationship Violence, and Stalking Policy. [2]
 
If a complainant does not wish to make a Formal Complaint, the Title IX Coordinator may determine a Formal Complaint is necessary. Hampshire College will inform the complainant of this decision in writing, and the complainant need not participate in the process further but will receive all notices issued under this Policy and Process.
 
Nothing in the Title IX Grievance Policy or the Norms for Community Living prevents a complainant from seeking the assistance of state or local law enforcement alongside the appropriate on-campus process.
 
 

Multi-Party Situations

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.

Determining Jurisdiction

The Title IX Coordinator, Dean of Students or designee, will determine if the instant Title IX Grievance Process should apply to a Formal Complaint. The Process will apply when all of the following elements are met, in the reasonable determination of the Title IX Coordinator:
  1. The conduct is alleged to have occurred on or after August 14, 2020;
  2. The conduct is alleged to have occurred in the United States;
  3. The conduct is alleged to have occurred in Hampshire College's education program or activity; and
  4. The alleged conduct, if true, would constitute covered sexual harassment as defined in this policy.
If all of the elements are met, Hampshire College will investigate the allegations according to the Grievance Process. 
 
Allegations Potentially Falling Under Two Policies:
 
If the alleged conduct, if true, includes conduct that would constitute covered sexual harassment and conduct that would not constitute covered sexual harassment, the Title IX Grievance Process will be applied in the investigation and adjudication of all of the allegations. 
 
Mandatory Dismissal
 
If any one of these elements are not met, the Title IX Coordinator or designee, will notify the parties that the Formal Complaint is being dismissed for the purposes of the Title IX Grievance Policy. Each party may appeal this dismissal using the procedure outlined in “Appeals,” below.  
 
Discretionary Dismissal
 
The Title IX Coordinator or designee, may dismiss a Formal Complaint brought under the Title IX Grievance Policy, or any specific allegations raised within that Formal Complaint, at any time during the investigation or hearing, if:
  • A complainant notifies the Title IX Coordinator in writing that they would like to withdraw the Formal Complaint or any allegations raised in the Formal Complaint;
  • The respondent is no longer enrolled or employed by Hampshire College; or,
  • If specific circumstances prevent Hampshire College from gathering evidence sufficient to reach a determination regarding the Formal Complaint or allegations within the Formal Complaint.
Any party may appeal a dismissal determination using the process set forth in “Appeals,” below.
 
Notice of Dismissal
 
Upon reaching a decision that the Formal Complaint will be dismissed, the institution will promptly send written notice of the dismissal of the Formal Complaint or any specific allegation within the Formal Complaint, and the reason for the dismissal, simultaneously to the parties through their institutional email accounts. It is the responsibility of parties to maintain and regularly check their email accounts.
 
Notice of Removal
 
Upon dismissal for the purposes of Title IX, Hampshire College retains discretion to utilize the Norms for Community Living and/or the Sexual Misconduct, Relationship Violence, and Stalking Policy [2] to determine if a violation of Norms for Community Living and/or the Sexual Misconduct, Relationship Violence, and Stalking Policy [2] has occurred. If so, Hampshire College will promptly send written notice of the dismissal of the Formal Complaint under the Title IX Grievance Process and removal of the allegations to the conduct process.
 

Notice of Allegations

The Title IX Coordinator will draft and provide the Notice of Allegations to any party to the allegations of sexual harassment. Such notice will occur as soon as practicable, but no more than five (5) business days after the institution receives a Formal Complaint of the allegations, if there are no extenuating circumstances.
 
The parties will be notified by their institutional email accounts if they are a student or employee, and by other reasonable means if they are neither.
 
The institution will provide sufficient time for the parties to review the Notice of Allegations and prepare a response before any initial interview.
 
The Title IX Coordinator or designee, may determine that the Formal Complaint must be dismissed on the mandatory grounds identified above, and will issue a Notice of Dismissal. If such a determination is made, any party to the allegations of sexual harassment identified in the Formal Complaint will receive the Notice of Dismissal in conjunction with, or in separate correspondence after, the Notice of Allegations.
 
Contents of Notice
 
The Notice of Allegations will include the following:
  • Notice of the institution’s Title IX Grievance Process and a hyperlink to a copy of the process.
  • Notice of the allegations potentially constituting covered sexual harassment, and sufficient details known at the time the Notice is issued, such as the identities of the parties involved in the incident, if known, including the complainant; the conduct allegedly constituting covered sexual harassment; and the date and location of the alleged incident, if known.
  • A statement that the respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the grievance process.
  • A statement that the parties may have an advisor of their choice, who may be, but is not required to be, an attorney, as required under 34 C.F.R. § 106.45(b)(5)(iv);
  • A statement that before the conclusion of the investigation, the parties may inspect and review evidence obtained as part of the investigation that is directly related to the allegations raised in the Formal Complaint, including the evidence upon which the institution does not intend to rely in reaching a determination regarding responsibility, and evidence that both tends to prove or disprove the allegations, whether obtained from a party or other source, as required under 34 C.F.R. § 106.45(b)(5)(vi);
  • The Norms for Community Living Policy, Right of Freedom of Communication of Ideas [13] prohibits knowingly making erroneous statements, false statements or knowingly submitting false information during the grievance process.
 
Ongoing Notice 
 
If, in the course of an investigation, the institution decides to investigate allegations about the complainant or respondent that are not included in the Notice of Allegations and are otherwise covered "sexual harassment” falling within the Title IX Grievance Policy, the institution will notify the parties whose identities are known of the additional allegations by their institutional email accounts or other reasonable means.
 
The parties will be provided sufficient time to review the additional allegations to prepare a response before any initial interview regarding those additional charges.
 

Advisor of Choice and Participation of Advisor of Choice

Hampshire College will provide the parties equal access to advisors and support persons; any restrictions on advisor participation will be applied equally.
 
The College has a long-standing practice of requiring students to participate in the process directly and not through an advocate or representative. Students participating as Complainant or Respondent in this process may be accompanied by an Advisor of Choice and/or a Support Person to any meeting or hearing to which they are required or are eligible to attend. The Advisor of Choice and/or Support Person is not an advocate. Except where explicitly stated by this Policy, as consistent with the Final Rule, Advisors of Choice and/or Support Person shall not participate directly in the process as per standard policy and practice of Hampshire College. 
 
Hampshire College will not intentionally schedule meetings or hearings on dates where the Advisors of Choice for all parties are not available, provided that the Advisors act reasonably in providing available dates and work collegially to find dates and times that meet all schedules. 
 
Hampshire College’s obligations to investigate and adjudicate in a prompt timeframe under Title IX and other college policies apply to matters governed under this Policy, and Hampshire College cannot agree to extensive delays solely to accommodate the schedule of an Advisor of Choice. The determination of what is reasonable shall be made by the Title IX Coordinator or designee. Hampshire College will not be obligated to delay a meeting or hearing under this process more than five (5) business days due to the unavailability of an Advisor of Choice, and may offer the party the opportunity to obtain a different Advisor of Choice or utilize one provided by Hampshire College.
 
Notice of Meetings and Interviews
 
Hampshire College will 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 a party, with sufficient time for the party to prepare to participate.
 
Delays
 
Each party may request a one-time delay in the Grievance Process of up to five (5) business days for good cause (granted or denied in the sole judgment of the Title IX Coordinator, Director of Student Rights and Responsibilities, Dean of Students, or designee) provided that the requestor provides reasonable notice and the delay does not overly inconvenience other parties.
 
For example, a request to take a five day pause made an hour before a hearing for which multiple parties and their advisors have traveled to and prepared for shall generally not be granted, while a request for a five day pause in the middle of investigation interviews to allow a party to obtain certain documentary evidence shall generally be granted. 
 
Title IX Coordinator, Director of Student Rights and Responsibilities, Dean of Students, or designee shall have sole judgment to grant further pauses in the Process. 
 

Investigation

General Rules of Investigations
 
An investigator designated by the Title IX Coordinator will perform an investigation under a reasonably prompt timeframe of the conduct alleged to constitute covered sexual harassment after issuing the Notice of Allegations. 
 
Hampshire College and not the parties, has the burden of proof and the burden of gathering evidence, i.e. the responsibility of showing a violation of this Policy has occurred. This burden does not rest with either party, and either party may decide not to share their account of what occurred or may decide not to participate in an investigation or hearing. This does not shift the burden of proof away from Hampshire College and does not indicate responsibility. 
 
Hampshire College cannot access, consider, or disclose medical records without a waiver from the party (or parent, if applicable) to whom the records belong or of whom the records include information. Hampshire College will provide an equal opportunity for the parties to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence, (i.e. evidence that tends to prove and disprove the allegations) as described below.
 
Inspection and Review of Evidence
 
Prior to the completion of the investigation, the parties will have an equal opportunity to inspect and review the evidence obtained through the investigation. The purpose of the inspection and review process is to allow each party the equal opportunity to meaningfully respond to the evidence prior to conclusion of the investigation.
 
Evidence that will be available for inspection and review by the parties will be any evidence that is directly related to the allegations raised in the Formal Complaint. It will include any:
  1. Evidence that is relevant, even if that evidence does not end up being relied upon by the institution in making a determination regarding responsibility;
  2. inculpatory or exculpatory evidence (i.e. evidence that tends to prove or disprove the allegations) that is directly related to the allegations, whether obtained from a party or other source.

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.

The institution will send the evidence made available for each party and each party’s advisor, if any, to inspect and review through an electronic format or a hard copy. The Institution is not under an obligation to use any specific process or technology to provide the evidence and shall have the sole discretion in terms of determining format and any restrictions or limitations on access.
 
The parties will have ten (10) business days to inspect and review the evidence and submit a written response by email to the investigator. The investigator will consider the parties’ written responses before completing the Investigative Report.
  • The institution will provide copies of the parties’ written responses to the investigator to all parties and their advisors, if any.
  • The institution will provide the parties five (5) business days after the initial inspection and review of evidence, and before the investigator completes their Investigative Report, to provide additional evidence in response to their inspection and review of the evidence, and then provide the parties five (5) business days to inspect, review, and respond to the party’s additional evidence through a written response to the investigator. Those written responses will be disclosed to the parties.
Any evidence subject to inspection and review will be available at any hearing, including for purposes of cross-examination.
 
The parties and their advisors agree not to photograph or otherwise copy the evidence.
 
Inclusion of Evidence Not Directly Related to the Allegations
 
Evidence obtained in the investigation that is determined in the reasoned judgment of the investigator not to be directly related to the allegations in the Formal Complaint will be included in the appendices to the investigative report.
 

Investigative Report

An investigator designated by the Title IX Coordinator will create an Investigative Report that fairly summarizes relevant evidence, and will provide that Report to the parties at least ten (10) business days prior the hearing in an electronic format or a hard copy for each party’s review and written response.
 
The Investigative Report is not intended to catalog all evidence obtained by the investigator, but only to provide a fair summary of that evidence.
 
Only relevant evidence (including both inculpatory and exculpatory – i.e. tending to prove and disprove the allegations - relevant evidence) will be referenced in the Investigative Report. 
 
The investigator may redact irrelevant information from the Investigative Report when that information is contained in documents or evidence that is/are otherwise relevant.

Hearing

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.
 
Newly-discovered Evidence
 
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 [14]
  • 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
  • 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).
 
Hearing Procedures
 
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. [15]) 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. 

Determining Relevance

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:

  1. 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
  2. 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. 34 C.F.R. § 106.45(6)(i).

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 [16]; 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 

  • The question is relevant because it asks whether a fact material to the allegations is more or less likely to be true.
  • The question is irrelevant because it asks about a detail that does not touch on whether a material fact concerning the allegations is more or less likely to be true. See, 85 Fed. Reg. 30026, 30343 (May 19, 2020).

Question about Complainant’s Prior Sexual Behavior or Sexual Predisposition

  • The question is relevant because although it calls for prior sexual behavior information about the complainant, it meets one of the two exceptions to the rape shield protections defined in 34 C.F.R. § 106.45(b)(6)(i), and it tends to prove that a material fact at issue is more or less likely to be true [denote which exception].
    • Exception one: The question is asked to prove that someone other than the respondent committed the conduct alleged by the complainant.
    • Exception two: The question concerns specific incidents of the complainant’s prior sexual behavior with respect to the respondent and is asked to prove consent
  • The question is irrelevant because it calls for prior sexual behavior information about the complainant without meeting one of the two exceptions to the rape shield protections defined in 34 C.F.R. § 106.45(b)(6)(i).

Question regarding Privileged Information

  • The question is irrelevant because it calls for information shielded by a legally-recognized privilege [identify the privilege].
  • The question is relevant because, although it calls for information shielded by a legally-recognized privilege [identify the privilege], that privilege has been waived in writing, and the question tends to prove that a material fact at issue is more or less likely to be true.

Questions about Undisclosed Medical Records

  • The question is irrelevant because it calls for information regarding a party’s medical, psychological, or similar record without that party’s voluntary, written consent. 85 Fed. Reg. 30026, 30294.
  • This question is relevant because although it calls for a party’s medical, psychological, or similar records, that party has given their voluntary, written consent to including this material, and it tends to prove that a material fact at issue is more or less likely to be true. 85 Fed. Reg. 30026, 30294 (May 19, 2020). 

Duplicative Questions

  • The question is irrelevant because it is duplicative of a question that was asked and answered.

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.

Determination Regarding Responsibility

Standard of Proof
 
Hampshire College uses the preponderance of the evidence standard for investigations and determinations regarding responsibility of formal complaints covered under this Policy. This means that the investigation and hearing determines whether it is more likely than not that a violation of the Policy occurred.
 
General Considerations for Evaluating Testimony and Evidence
 
While the opportunity for cross-examination is required in all Title IX hearings, determinations regarding responsibility may be based in part, or entirely, on documentary, audiovisual, and digital evidence, as warranted in the reasoned judgment of the Decision-maker.
 
Decision-makers shall not draw inferences regarding a party or witness’ credibility based on the party or witness’ status as a complainant, respondent, or witness, nor shall it base its judgments in stereotypes about how a party or witness would or should act under the circumstances.
 
Generally, credibility judgments should rest on the demeanor of the party or witness, the plausibility of their testimony, the consistency of their testimony, and its reliability in light of corroborating or conflicting testimony or evidence.
 
Still, credibility judgments should not rest on whether a party or witness’ testimony is non-linear or incomplete, or if the party or witness is displaying stress or anxiety. 
 
Decision makers will afford the highest weight relative to other testimony to first-hand testimony by parties and witnesses regarding their own memory of specific facts that occurred. Both inculpatory and exculpatory (i.e. tending to prove and disprove the allegations) evidence will be weighed in equal fashion.
 
Except where specifically barred by the Title IX Final Rule, a witness’ testimony regarding third-party knowledge of the facts at issue will be allowed, but will generally be accorded lower weight than testimony regarding direct knowledge of specific facts that occurred.
 
The Final Rule requires that Hampshire College allow parties to call “expert witnesses” for direct and cross examination.  Hampshire College does not provide for expert witnesses in other proceedings. While the expert witness will be allowed to testify and be crossed as required by the Final Rule, the decision-maker will be instructed to afford lower weight to non-factual testimony of the expert relative to fact witnesses, and any expert testimony that is not directed to the specific facts that occurred in the case will be afforded lower weight relative to fact witnesses, regardless of whether the expert witness testimony is the subject of cross examination and regardless of whether all parties present experts as witnesses.
 
The Final Rule requires that Hampshire College allow parties to call character witnesses to testify. While the character witnesses will be allowed to testify and be crossed as required by the Final Rule, the decision-maker will be instructed to afford very low weight to any non-factual character testimony of any witness.
 
The Final Rule requires that Hampshire College admit and allow testimony regarding polygraph tests (“lie detector tests”) and other procedures that are outside of standard use in academic and non-academic conduct processes. While the processes and testimony about them will be allowed to testify and be crossed as required by the Final Rule, the decision-maker will be instructed to afford lower weight to such processes relative to the testimony of fact witnesses.
 
Where a party or witness’ conduct or statements demonstrate that the party or witness is engaging in retaliatory conduct, including but not limited to witness tampering and intimidation, the Community Review Board may draw an adverse inference as to that party or witness’ credibility.
 
Components of the Determination Regarding Responsibility
 
The written Determination Regarding Responsibility will be issued simultaneously to all parties through their institution email account, or other reasonable means as necessary. The Determination will include:
  1. Identification of the allegations potentially constituting covered sexual harassment;
  2. 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 hearings held;
  3. Findings of fact supporting the determination;
  4. Conclusions regarding which section of the Norms for Community Living, if any, the respondent has or has not violated.
  5. For each allegation:
    1. A statement of, and rationale for, a determination regarding responsibility;
    2. A statement of, and rationale for, any disciplinary sanctions the recipient imposes on the respondent; and
    3. A statement of, and rationale for, whether remedies designed to restore or preserve equal access to the recipient’s education program or activity will be provided by the recipient to the complainant; and
  6. The recipient’s procedures and the permitted reasons for the complainant and respondent to appeal (described below in “Appeal”). 
Timeline of Determination Regarding Responsibility
 
If there are no extenuating circumstances, the determination regarding responsibility will be issued by Hampshire College within ten (10) business days of the completion of the hearing. 
 
Finality
 
The determination regarding responsibility becomes final either on the date that the institution provides the parties with the written determination of the result of the appeal, if an appeal is filed consistent with the procedures and timeline outlined in “Appeals” below, or if an appeal is not filed, the date on which the opportunity to appeal expires.
 

Appeals

Each party may appeal (1) the dismissal of a formal complaint or any included allegations and/or (2) a determination regarding responsibility. To appeal, a party must submit their written appeal within five (5) business days of being notified of the decision, indicating the grounds for the appeal.
 
The limited grounds for appeal available are as follows:
  • Procedural irregularity that affected the outcome of the matter (i.e. a failure to follow the institution’s own procedures);
  • 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;
  • The Title IX Coordinator, investigator(s), or decision-maker(s) had a conflict of interest or bias for or against an individual party, or for or against complainants or respondents in general, that affected the outcome of the matter.
 
The submission of appeal stays any sanctions for the pendency of an appeal. Supportive measures and remote learning opportunities remain available during the pendency of the appeal.
 
If a party appeals, the institution will as soon as practicable notify the other party in writing of the appeal, however the time for appeal shall be offered equitably to all parties and shall not be extended for any party solely because the other party filed an appeal.
 
Appeals may be no longer than three (3) pages (including attachments). Appeals should be submitted in electronic form using ARIAL or TIMES NEW ROMAN, 12 point font, and single-spaced. Appeals should use footnotes, not endnotes. Appeals that do not meet these standards may be returned to the party for correction, but the time for appeal will not be extended unless there is evidence that technical malfunction caused the appeal document not to meet these standards.
 
Appeals will be decided by the Dean of Students or designee, who will be free of conflict of interest and bias, and will not serve as investigator, Title IX Coordinator, or hearing decisionmaker in the same matter.
 
Outcome of appeal will be provided in writing simultaneously to both parties, and include rationale for the decision.
 

Retaliation

Hampshire College will keep the identity of any individual who has made a report or complaint of sex discrimination confidential, including the identity of any individual who has made a report or filed a Formal Complaint of sexual harassment under this Title IX Grievance Policy, any Complainant, any individual who has been reported to be the perpetrator of sex discrimination, any Respondent, and any witness, except as permitted by the FERPA statute, 20 U.S.C. 1232g, or FERPA regulations, 34 CFR part 99, or as required by law, or to carry out the purposes of 34 CFR part 106, including the conduct of any investigation, hearing, or judicial proceeding under this Title IX Grievance Policy. 
 
No person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX of the Education Amendments of 1972 or its implementing regulations.
 
No person may intimidate, threaten, coerce, or discriminate against any individual because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding or hearing under this Title IX Grievance Policy. 
 
Any intimidation, threats, coercion, or discrimination, for the purpose of interfering with any right or privilege secured by Title IX or its implementing regulations constitutes retaliation. This includes any charges filed against an individual for code of conduct violations that do not involve sex discrimination or sexual harassment, but that arise from the same facts or circumstances as a report or complaint of sex discrimination or a report or Formal Complaint of sexual harassment. Norms for Community Living, Bystander Amnesty Policy [17].
 
Complaints alleging retaliation may be filed according to the Discrimination, Harassment, and Retaliation Policy. [5]
 

Title IX Training Materials

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 [18] 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.

student conduct institute badge [18]

Questions or comments? Contact the director of the office of student rights and responsibilities, Greg Narleski.

Source URL: https://handbook.hampshire.edu/node/288

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:ganSA@hampshire.edu
[8] mailto:aksOP@hampshire.edu
[9] mailto:jtHR@hampshire.edu
[10] mailto:erSA@hampshire.edu
[11] mailto:healthservices@hampshire.edu
[12] mailto:dkSA@hampshire.edu
[13] https://handbook.hampshire.edu/node/43
[14] https://www2.ed.gov/about/offices/list/ocr/blog/20200522.html
[15] https://handbook.hampshire.edu/node/304
[16] https://www.nysenate.gov/legislation/laws/CVP/A45
[17] https://handbook.hampshire.edu/node/121
[18] https://system.suny.edu/sci/postedtraining/