Number: 207
Subject: TITLE IX POLICY
Students, staff, faculty, and all employees have the right to pursue education and work in an environment free from Sexual Harassment. Consistent with Amberton University’s Non-Discrimination Policy[1] and the U.S. Department of Education’s implementing regulations for Title IX of the Education Amendments of 1972 (“Title IX”) (see 34 C.F.R. § 106 et seq.), the University prohibits Sexual Harassment that occurs within its education programs and activities.
As further defined below, Sexual Harassment includes Quid Pro Quo Sexual Harassment, Hostile Environment Sexual Harassment, Sexual Assault, Domestic Violence, Dating Violence, and Stalking. The University will provide persons who have experienced Sexual Harassment ongoing remedies as reasonably necessary to restore or preserve access to the University’s education programs and activities.
I. Scope
This policy applies to Sexual Harassment that occurs within the University’s Education Programs and Activities that is committed by a student, employee (including administrators, faculty, staff, and part-time employees), trustee, visitor, volunteer, and others affecting the University community.
This policy does not apply to Sexual Harassment that occurs off-campus, in a private setting, and outside the scope of the University’s Education Programs and Activities; such sexual misconduct may be prohibited by other University policies, including the Non-Discrimination Policy.[2]Consistent with the U.S. Department of Education’s implementing regulations for Title IX, this policy does not apply to Sexual Harassment that occurs outside the geographic boundaries of the United States, even if the Sexual Harassment occurs in the University’s Education Programs and Activities. Sexual Harassment that occurs outside the geographic boundaries of the United States is governed by the Non-Discrimination Policy.
II. Definitions
A. “Sexual Harassment” for purposes of this policy is conduct on the basis of sex that constitutes Quid Pro Quo Sexual Harassment, Hostile Environment Sexual Harassment, Sexual Assault, Domestic Violence, Dating Violence, or Stalking.
B. “Quid Pro Quo Sexual Harassment” occurs when an employee of the University conditions the provision of aid, benefit, or service of the University on an individual’s participation in unwelcome sexual contact.
C. “Hostile Environment Sexual Harassment” is unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person access to the University’s education programs and activities.
In determining whether a Hostile Environment exists, the University will consider the totality of circumstances, including factors such as the actual impact the conduct has had on the Complainant; the nature and severity of the conduct at issue; the frequency and duration of the conduct; the relationship between the parties (including accounting for whether one individual has power or authority over the other); the respective ages of the parties; the context in which the conduct occurred; and the number of persons affected. The University will evaluate the totality of circumstances from the perspective of a reasonable person in the Complainant’s position. A person’s adverse subjective reaction to conduct is not sufficient, in and of itself, to establish the existence of a hostile environment.
Sexual Harassment also includes gender-based harassment, which may include acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on gender or gender stereotyping, even if those acts do not involve conduct of a sexual nature. Further, making employment or educational decisions based on sexual favoritism or on the basis of gender is strictly prohibited.
Some specific examples of conduct that may constitute Sexual Harassment if unwelcome include, but are not limited to:
● Unreasonable pressure for a dating, romantic, or intimate relationship or sexual contact;
● Unwelcome kissing, hugging, or massaging;
● Sexual innuendos, jokes, or humor;
● Displaying sexual graffiti, pictures, videos, or posters;
● Using sexually explicit profanity;
● Asking about, or telling about, sexual fantasies, sexual preferences, or sexual activities;
● E-mail and Internet use that violates this policy;
● Leering or staring at someone in a sexual way, such as staring at a person’s breasts or groin;
● Sending sexually explicit emails, text messages, or social media posts;
● Commenting on a person’s dress in a sexual manner;
● Giving unwelcome personal gifts such as lingerie that suggest the desire for a romantic relationship; or
● Insulting, demeaning, or degrading another person based on gender or gender stereotypes.
D. “Sexual Assault” includes the sex offenses and attempted offenses of Rape, Sodomy, Sexual Assault with an Object, Fondling, Incest, and Statutory Rape.[3]
1. “Rape” is the carnal knowledge of a person, without the Consent of the victim, including instances where the victim is incapable of giving Consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity. There is “carnal knowledge” if there is the slightest penetration of the sexual organ of the female (vagina) by the sexual organ of the male (penis).
2. “Sodomy”is oral or anal sexual intercourse with another person, without the Consent of the victim, including instances where the victim is incapable of giving Consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity.
3. “Sexual Assault with an Object” is using an object or instrument to unlawfully penetrate, however slightly, the genital or anal opening of the body of another person, without the Consent of the victim, including instances where the victim is incapable of giving Consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity. An “object” or “instrument” is anything used by the actor other than the actor’s genitalia.
4. “Fondling” is the touching of the private body parts of another person for the purpose of sexual gratification, without the Consent of the victim, including instances where the victim is incapable of giving Consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity.
5. “Incest” is sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by Texas law.
6. “Statutory Rape” is sexual intercourse with a person who is under the statutory age of consent as defined by Texas law.
E. “Domestic (Family) Violence”is 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 the domestic or family violence laws of Texas,[4] 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 Texas.
F. “Dating Violence”is violence committed by a person:
1. Who is or has been in a social relationship of a romantic or intimate nature with the victim; and
2. Where the existence of such a relationship will be determined based on a consideration of the following factors:
· The length of the relationship;
· The type of relationship; and
· The frequency of interaction between the persons involved in the relationship.
G. “Stalking” is engaging in a course of conduct directed at a specific person that would cause a reasonable person to:
· Fear for their safety or the safety of others; or
· Suffer substantial emotional distress.
For the purposes of this definition—
1. “Course of Conduct”means two or more acts, including, but not limited to, acts in which the stalker directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveils, or communicates to or about a person threats, that a reasonable person would regard as threatening bodily injury or death of that person, their family members including someone with whom the person is dating or interferes with that person’s property.
2. “Reasonable Person” means a person under similar circumstances and with similar identities to the person subjected to the stalking behavior would fear for their safety or the safety of others, or suffer substantial emotional distress.
3. “Substantial Emotional Distress” meanssignificant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.
H. “Consent” is a voluntary, ongoing, mutual understanding among all participants that clearly indicates a willingness, through words or clear unambiguous actions, and demonstrates a knowing, intentional agreement to engage in each instance and stage of sexual activity. Knowledge of Consent is the responsibility of each person involved in every instance of sexual activity and Consent can be withdrawn at any time.
A current or previous dating or sexual relationship or manner of dress does not, by itself, constitute Consent. Even in the context of a relationship, there must be a voluntary, mutually understandable agreement that clearly demonstrates a willingness to engage in each instance of sexual activity. Consent to one act does not imply Consent to another, and past consent does not imply future Consent. Consent to engage in sexual activity with one person does not imply consent to engage in sexual activity with another. Any expression of an unwillingness to engage in any instance of sexual activity establishes a presumptive lack of Consent.
Consent is not effective if:
1. The Respondent compels the Complainant to submit or participate by the use of physical force or violence;
2. The Respondent compels the Complainant to submit or participate by threatening to use force or violence against the Complainant or any other person, and the Complainant believes that the Respondent has the present ability to execute the threat;
3. The Respondent knew or reasonably should have known that another person involved was Incapacitated or otherwise unaware that the sexual assault is occurring;
4. The Respondent knows that the other person has a mental disorder or developmental or physical disability that renders the Complainant incapable of either of appraising the nature of the act or of resisting it;
5. The Respondent has intentionally impaired the Complainant’s power to appraise or control the other person’s conduct by administering any substance without the other person’s knowledge;
6. The Respondent is a mental health services provider or a health care services provider who causes the Complainant, who is a patient or former patient of the Respondent, to submit or participate by exploiting the Complainant’s emotional dependency on the Respondent;
7. The Respondent is a clergyman who causes the Complainant to submit or participate by exploiting the Complainant’s emotional dependency on the clergyman in the clergyman’s professional character as spiritual adviser;
8. The Complainant is under age 17 and (1) is not a spouse of the Respondent or (2) is more than three years younger than the victim at the time of the offense;
9. The Respondent obtains consent through Coercion; or
10. Any other factor that would eliminate an individual’s ability to exercise their own free will to choose whether or not to have sexual activity.
I. “Coercion” is the use of pressure and/or other oppressive behavior, including expressed or implied threats of physical harm, or severe and/or pervasive emotional intimidation which places an individual in fear of immediate or future harm or physical injury or causes a person to engage in unwelcome sexual activity. A person’s words or conduct amounts to coercion if they wrongfully limit the other’s ability to freely choose whether or not to engage in sexual activity. Coercion also includes administering a drug, intoxicant, or other substance that impairs the person’s ability to give Consent.
J. “Incapacitated” refers to a state of being that prevents an individual from having the mental ability, emotional stability, or maturity to provide consent at the time the alleged behavior occurs. Incapacitation could result from the use of drugs or alcohol, a person being asleep or unconscious, or because of an intellectual or other disability or medical condition.
Incapacitation is a state where an individual cannot make an informed and rational decision to Consent to engage in sexual contact because the individual lacks conscious knowledge of the nature of the act (e.g., to understand the “who, what, where, when, why or how” of the sexual interaction), is physically or mentally helpless, or is otherwise unaware that the sexual act is occurring.
Incapacitation can only be found when the Respondent knew or should have known that the Complainant was Incapacitated when viewed from the position of a sober, reasonable person. One’s own intoxication is not an excuse for failure to recognize another person’s Incapacitation.
Incapacitation is beyond mere drunkenness or intoxication, and consumption of alcohol of other drugs, inebriation, or intoxication alone are insufficient to establish Incapacitation. The impact of alcohol or drugs varies from person to person, and evaluating Incapacitation requires an assessment of how consumption of alcohol and/or drugs impacts an individual’s:
· Decision-making ability
· Awareness of consequences
· Ability to make informed judgments
· Capacity to appreciate the nature of circumstances of the act.
No single factor is determinative of Incapacitation. Some common signs that someone may be incapacitated include slurred speech, confusion, shaky balance, stumbling or falling down, vomiting, and unconsciousness.
K. “Retaliation” is intimidation, threats, coercion, or discrimination against any individual for the purpose of interfering with any right or privilege secured by Title IX and its implementing regulations or because an 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 policy. Retaliation is prohibited and is considered a stand-alone policy violation without regard to any finding of responsibility for violation of this policy.
L. “Complainant” means the individual(s) who is alleged to have been impacted by a violation of this policy.[5]
M. “Respondent” means the individual(s) who is alleged to have violated this policy.
N. “Formal Complaint” means a document filed by a Complainant or signed by the Title IX Coordinator alleging Sexual Harassment against a Respondent and requesting that the University investigate the allegation of Sexual Harassment in accordance with this policy. At the time of filing a Formal Complaint, a Complainant must be participating in or attempting to participate in the University’s education programs and activities. A “document filed by a Complainant” means a document or electronic submission (such as an email) that contains the Complainant’s physical or electronic signature or otherwise indicates that the Complainant is the person filing the Complaint.
O. “Supportive Measures” are non-disciplinary, non-punitive individualized services offered, as appropriate, and reasonably available, and without fee or charge, that are designed to restore or preserve equal access to the University’s Education Programs and Activities without unreasonably burdening another Party, including measures designed to protect the safety of all parties implicated by a report or the University’s education environment, or to deter Sexual Harassment. Supportive measures may include: counseling, extensions of academic or other deadlines, course-related adjustments, modifications to work or class schedules, campus escort services, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of campus, and other similar measures. Supportive Measures may also include mutual restrictions on contact between the parties implicated by a report.
P. “Education Programs and Activities” refers to all the operations of the University, including, but not limited to, in-person and online educational instruction, employment, research activities, extracurricular activities, athletics, residence life, dining services, performances, and community engagement and outreach programs. The term applies to all activity that occurs on campus or on other property owned or occupied by the University. It also includes off-campus locations, events, or circumstances over which the University exercises substantial control over the Respondent and the context in which the Sexual Harassment occurs, including Sexual Harassment occurring in any building owned or controlled by a student organization that is officially recognized by the University.
Q. “Preponderance of the Evidence” is the standard for determining allegations of prohibited conduct under this policy. Preponderance of the evidence means the greater weight of the credible evidence. This standard is satisfied if the evidence and information gathered in the matter indicate that the action is more likely to have occurred than not.
R. “Employee” means an individual who receives compensation for work or services for which the University has the right (whether or not it exercises the right) to supervise and control the manner of performance as well as the result of the work or service. Volunteers and independent contractors are not considered “employees” for the purposes of this policy.
V. Reporting Sexual Harassment
The University recognizes the right of a victim of Sexual Harassment to report the incident to appropriate authorities and to receive a prompt and equitable resolution of the report. Any student, staff, or faculty member who believes he or she has experienced Sexual Harassment is urged to report the matter as soon as possible using the reporting protocol below. The University encourages members of the University Community to report any and all instances of Sexual Harassment, even if they are unsure whether the conduct rises to the level of a policy violation.
A. Report to Title IX Coordinators
The Title IX Coordinator and the Deputy Title IX Coordinators will be responsible for the oversight and implementation of this policy. Reports may be made in person, by regular mail, telephone, electronic mail, online at https://www.amberton.edu/help-and-advice/title-ix.html, or by any other means that results in the Title IX Coordinator receiving the person’s verbal or written report. In-person reports must be made during normal business hours, but reports can be made by regular mail, telephone, or electronic mail at any time, including outside normal business hours, to the following individuals:
Amberton University Title IX Coordinator
Dr. Jo Lynn Loyd
Vice President for Strategic Services
1700 Eastgate Drive
Garland, TX 75041
972/279-6511 ext. 126
Amberton University Deputy Title IX Coordinator
Dr. Brent Bradshaw
Vice President for Administrative Services
1700 Eastgate Drive
Garland, TX 75041
BBradshaw@Amberton.edu
972/279-6511 ext. 141
B. Medical Treatment and Preservation of Evidence
In cases of sexual assault, and for one’s safety and well-being, immediate medical attention is encouraged to evaluate for physical injury, sexually transmitted diseases, and pregnancy. Being examined as soon as possible, ideally within 72 hours, is important for evidence collection, which may be used to support prosecution should the Complainant decide to pursue criminal charges. A University Official will be glad to assist a victim in contacting the proper law enforcement agency, if the victim so chooses. The victim may also decline to notify a law enforcement agency, if desired.
After contacting the necessary law enforcement authorities as soon as possible, it is important that a victim of a sex offense, domestic violence, dating violence, sexual assault, or stalking does not shower, wash, brush their teeth, or use the restroom, and that they do not wash their clothes or any bedding on which the incident may have occurred. If they do so, important evidence can be lost and/or destroyed that could aid in prosecution of an accused individual or aid the victim in obtaining a protection order.
C. Orders of Protection, No Contact Orders, and Restraining Orders
If the victim of a sex offense, domestic violence, dating violence, sexual assault, or stalking obtains an order of protection, no contact order, restraining order, or other similar lawful order, the victim shall notify the Vice President for Strategic Services of the order and shall supply a copy of the order to the University. When Amberton University receives an order, it will utilize all reasonable measures it has at its disposal to help monitor the provisions of that order.
D. Filing an Anonymous/Confidential Complaint
Any student, employee, third party, or bystander may request that a report of Sexual Harassment remain confidential and/or anonymous as defined by this policy. Additionally, any student and/or employee may obtain assistance with filing a Title IX Complaint, Police Report, and/or information regarding available counseling resources in the surrounding community.
All students and employees who themselves are victims of Sexual Harassment may submit an anonymous complaint through the Amberton University Anonymous Reporting Tool located on the University’s website, under “Help and Advice – Title IX.”[6] The form may also be used to report any financial improprieties, illegal practices, or policy violations committed by university employees or agents and to protect from retaliation those who make such good-faith reports.
When confidentiality of the Complainant is maintained or the Complainant’s identity is unknown, the University’s ability to respond and to take appropriate disciplinary action may be impeded. Nevertheless, the University will attempt to provide resources as provided in this policy and to take steps addressed to remedy the effects of the alleged Sexual Harassment and to prevent its recurrence.
Once a report has been shared with the Title IX Coordinator, the individual impacted may request that their identity remain private, that no investigation occur, or that no disciplinary action be taken. However, the University must determine whether or not they are required to investigate an alleged incident, even against such a request, in order to protect the health and safety of the University community. Factors the University may consider in evaluating whether to move forward with a Formal Complaint in these circumstances include:
· the seriousness of the alleged incident;
· whether the institution has received other reports of sexual harassment, sexual assault, dating violence, or stalking committed by the alleged perpetrator;
· whether the alleged incident poses a risk of harm to others; and
· any other factors the University determines relevant.
If the Title IX Coordinator elects to file a Formal Complaint, the University will inform the alleged victim of the incident of that decision. Even if the University determines not to investigate the alleged incident, the University may take additional steps the University deems necessary to protect the health and safety of the University’s community in relation to the alleged incident.
E. Amnesty for Students Reporting Certain Incidents
Amberton University may not take any disciplinary action against a student enrolled at the institution who in good faith reports to the institution being the victim of, or a witness to, an incident of Sexual Harassment for a violation by the student of the institution’s code of conduct occurring at or near the time of the incident, regardless of the location at which the incident occurred or the outcome of the institution’s disciplinary process regarding the incident, if any.
Amberton University may investigate to determine whether a report of an incident of Sexual Harassment was made in good faith. If an investigation results in a finding that such an accusation was made in bad faith or maliciously, the accuser may be disciplined appropriately. However, filing a complaint or providing information which a party or witness genuinely believes is accurate, but which is ultimately dismissed due to insufficient evidence or found to be untrue, does not constitute false reporting.
A determination that a student is entitled to amnesty is final and may not be revoked.
F. Mandatory Reporting Requirement for Employees
Under Texas law, all University employees, with the exception of Confidential Employees, who:
1. in the course and scope of their employment[7]
2. witnesses or receives information regarding an incident that the employee reasonably believes constitutes Sexual Harassment,[8] Sexual Assault, Dating Violence, or Stalking, which
3. is alleged to have been committed by or against a person who was a student enrolled at or an employee of the University at the time of the incident
must promptly report the incident to the University’s Title IX Coordinator or a Deputy Title IX Coordinator.
Writing required. The University’s online reporting form may be used to submit a report to the Title IX Coordinator and Deputy Title IX Coordinator. An email or written memo is also acceptable if it can be delivered to a Title IX Coordinator promptly after the employee’s duty to report arises.
Report Contents. The employee’s report must include all information concerning the incident known to the employee, which is relevant to an investigation under this policy, including whether the subject of the report has expressed a desire for an institutional response to the incident or made a request for confidentiality in reporting the incident.
Confidentiality. Unless waived in writing by the affected individual, the identity of an alleged victim of an incident reported pursuant to this mandatory reporting requirement may be disclosed only to (a) employees of the University who are necessary to conduct an investigation of the report or any related hearings and (b) a law enforcement officer.
Exceptions. The mandatory reporting requirement does not apply to:
1. Employees who are themselves the victims of the Sexual Harassment, Sexual Assault, Dating Violence, or Stalking;
2. Students enrolled at the institution;[9]
3. Instances when an employee receives information about Sexual Harassment, Sexual Assault, Dating Violence, or Stalking at a public awareness event sponsored by the University; or
Consequences of Non-Compliance. An employee who fails to make a required report will be terminated following an investigation and any required process under the applicable personnel policy.[10]
Immunity. An employee who, in good faith reports or assists in the investigation of a report under this policy, or who testifies or otherwise participates in a disciplinary process or judicial proceeding arising from a report of such an incident, will not be subject to disciplinary action for violations of the administrative policies of Amberton University that are reasonably related to the incident. This immunity does not apply to a person who perpetrates or assists in the perpetration of the incident reported under this policy or who commits a criminal offense pursuant to Texas Education Code § 51.255(a).
F. Confidential Employees
The University believes it is critical to provide community members who may be experiencing Sexual Harassment information about available institutional resources to empower those individuals to make informed decisions about their rights and options. Members of the University community may speak to officially designated Confidential Employees[11] about Sexual Harassment, Sexual Assault, Dating Violence, or Stalking without the conversation triggering a mandatory report of incident details.
The University has designated the following Confidential Employee(s):
Dr. Pamela Johnson
(972)279-6511 ext. 147
A Confidential Employee is not required to report any information that would violate an individual’s expectation of privacy, such as the name or other identifying information of an individual who has experienced or allegedly engaged in Sexual Harassment.
This provision does not affect any employee’s duty to report incidents of sexual misconduct as required by other law.
E. Reports to Law Enforcement
The University recognizes and supports the right of a victim of a crime to choose whether to report the crime to law enforcement, to be assisted by the institution in reporting the crime to law enforcement, or to decline to report the crime to law enforcement. In addition, it is important for a victim of sexual harassment, sexual assault, dating violence, or stalking to go to a hospital for treatment and preservation of evidence, if applicable, as soon as practicable after an incident. The University encourages anyone who believes they experienced or witnessed a crime to make a report to local law enforcement:
The Garland Police Department:
https://www.garlandpolice.com/331/Police
The Frisco Police Department:
http://www.ci.frisco.tx.us/288/Programs-Services
H. Prohibition on False Complaints
Reports of a violation of this policy must be made in good faith. The University will not tolerate intentional false reporting of incidents. It is also a violation of this policy for any person to knowingly make a materially false statement during the course of an investigation, adjudication, or appeal under this policy. However, filing a complaint or providing information which a party or witness genuinely believes is accurate (i.e., in “good faith”), but which is ultimately dismissed due to insufficient evidence or found to be untrue, does not constitute intentional false reporting. Members of the University community are encouraged to seek assistance even if they are unsure that what they are experiencing is Sexual or Other Unlawful Harassment. Any person who knowingly files a false complaint is subject to disciplinary action, up to and including termination or dismissal from the University.
I. Retaliation
No member of the University community may retaliate against another member for filing a complaint pursuant to this policy or for cooperating in an investigation of a violation of this policy. Complaints of retaliation should be reported immediately to the University’s Title IX Coordinator. Any person who knowingly and intentionally retaliates against an individual is subject to disciplinary action, up to and including termination or dismissal from the University.
VI. Preliminary Assessment of Report
Upon receipt of a report, the Title IX Coordinator will conduct a preliminary assessment to determine whether the conduct, as reported, constitutes or could constitute Sexual Harassment.
If the Title IX Coordinator determines that the conduct reported could not fall within the scope of this policy, and/or could not constitute Sexual Harassment, even if investigated, the Title IX Coordinator will close the matter and may notify the reporting party if doing so is consistent with the Family Educational Rights and Privacy Act (“FERPA”). The Title IX Coordinator may refer the report to other University offices, as appropriate.
If the Title IX Coordinator determines that the conduct reported could fall within the scope of this policy, and/or could constitute Sexual Harassment, if investigated, the Title IX Coordinator will proceed to contact the Complainant.
As part of the preliminary assessment, the Title IX Coordinator may take investigative steps to determine the identity of the Complainant, if such identity is not apparent from the report.
A. Contacting the Complainant
If a report is not closed as a result of the preliminary assessment and the Complainant’s identity is known, the Title IX Coordinator or their designee will promptly contact the Complainant to discuss the following:
· the availability of Supportive Measures with or without filing a Formal Complaint;
· the Complainant’s wishes with respect to such Supportive Measures;
· the process for filing and pursuing a Formal Complaint;
· the importance of going to a hospital for treatment and preservation of evidence as soon as practicable after the incident, if applicable;
· the right to report the incident to the institution and to receive a prompt and equitable resolution of the report;
· the right of a victim of a crime to choose whether to report the crime to law enforcement, to be assisted by the institution in reporting the crime to law enforcement, or to decline to report the crime to law enforcement; and
· information about resources that are available on campus and in the community.
B. Supportive Measures
The Title IX Coordinator or his/her designee will coordinate all services for individuals impacted by Sexual Harassment. These services include but are not limited to issuing a no-contact order, confidential counseling, academic and residence hall accommodations for students when possible, as well as referrals within the University and in the local community. In addition, the University will allow the Complainant and the Respondent to drop a course in which both parties are enrolled without any academic penalty.
Any individual affected by or accused of Sexual Harassment will have equal access to support and counseling services offered through the University. The University encourages any individual who has questions or concerns to seek support of University-identified resources. The Title IX Coordinator is available to provide information about the University’s policy and procedure and to provide assistance. A list of University identified resources is located at https://www.amberton.edu/help-and-advice/title-ix.html.
Complainant: The Title IX Coordinator or their designee will offer and make available Supportive Measures to the Complainant upon receipt of a report of Sexual Harassment regardless of whether the Complainant elects to file a Formal Complaint.
Respondent: The Title IX Coordinator will notify the Respondent of the availability of Supportive Measures contemporaneously with the Respondent being notified of a Formal Complaint. Once a Formal Complaint has been initiated, the University will offer and make available Supportive Measures to the Respondent in the same manner in which it offers and makes them available to the Complainant. The University will also offer and make available Supportive Measures to the Respondent prior to the Respondent being notified of a Formal Complaint, if the Respondent requests such measures.
All Parties: The University will, to the greatest extent practicable, ensure that each Party or other person who reports an incident of Sexual Harassment is offered counseling provided by a counselor who does not provide counseling to any other person involved in the incident. In addition, all Parties are allowed to drop a course in which both Parties are enrolled without any academic penalty.
Confidentiality: The University will maintain the confidentiality of Supportive Measures provided to either a Complainant or Respondent, to the extent that maintaining such confidentiality does not impair the University’s ability to provide the Supportive Measures in question.
VII. Formal Complaint
A. Filing a Formal Complaint
A Complainant may file a Formal Complaint with the Title IX Coordinator requesting that the University investigate and adjudicate a report of Sexual Harassment in accordance with this policy. Provided, however, that at the time the Complainant submits a Formal Complaint, the Complainant must be participating in, or attempting to participate in, one or more of the University’s Education Programs or Activities.
A Complainant may file a Formal Complaint with the Title IX Coordinator in person, by regular mail, or by email using the contact information specified in Section VI above. No person may submit a Formal Complaint on the Complainant’s behalf.
In any case, including a case where a Complainant elects not to file a Formal Complaint, the Title IX Coordinator may file a Formal Complaint on behalf of the University if doing so is not clearly unreasonable. Such action will normally be taken in limited circumstances involving serious or repeated conduct or where the alleged perpetrator may pose a continuing threat to the University Community. Factors the Title IX Coordinator may consider include (but are not limited to):
· the seriousness of the alleged incident, including (a) whether a weapon was involved in the incident, (b) whether multiple assailants were involved in the incident, and (c) whether the incident is poses a risk of recurrence;
· whether the institution has received other reports of Sexual Harassment committed by the Respondent;
· whether the alleged incident poses a risk of harm to others; and
· any other factors the University determines relevant.
If the Complainant or the Title IX Coordinator files a Formal Complaint, then the University will commence an investigation and proceed to adjudicate the matter. If the University elects to proceed as a Complainant, the University will inform the alleged victim of the incident of that decision. In all cases where a Formal Complaint is filed, the Complainant will be treated as a Party, irrespective of the Party’s level of participation.
B. Consolidation of Formal Complaints
The University may consolidate Formal Complaints as to allegations of 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 Sexual Harassment arise out of the same facts or circumstances. Where the investigation and adjudication process involve more than one Complainant or more than one Respondent, references in this policy to the singular “Party,” “Complainant,” or “Respondent” include the plural, as applicable.
C. Dismissal Prior to Commencement of Investigation
In a case where the Complainant files a Formal Complaint, the Title IX Coordinator will evaluate the Formal Complaint and must dismiss it if the Title IX Coordinator determines:
1. The conduct alleged in the Formal Complaint would not constitute Sexual Harassment, even if proved; or
2. The conduct alleged in the Formal Complaint falls outside the scope of this policy (i.e., because the alleged conduct did not occur in the University’s Education Programs and Activities).
In the event the Title IX Coordinator determines the Formal Complaint should be dismissed pursuant to this Section, the Title IX Coordinator will provide written notice of dismissal to the parties and advise them of their right to appeal. The Title IX Coordinator may refer the subject matter of the Formal Complaint to other University offices, as appropriate. A dismissal pursuant to this Section is presumptively a final determination for purposes of this policy, unless otherwise specified in writing by the Title IX Coordinator in the written notice of dismissal.
D. Notice of Formal Complaint
Within five days of the Title IX Coordinator receiving a Formal Complaint, the Title IX Coordinator will transmit a written notice to the Complainant and Respondent that includes:
· A physical copy of or hyperlink to this policy;
· Sufficient details known at the time so that the Parties may prepare for an initial interview with the investigator, to include the identities of the parties involved in the incident (if known), the conduct allegedly constituting 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 Sexual Harassment and that a determination of responsibility will not be made until the conclusion of the adjudication and any appeal;
· Notifying the Complainant and Respondent of their right to be accompanied by an advisor of their choice;
· Notifying the Complainant and Respondent of their right to inspect and review evidence;
· Notifying the Complainant and Respondent of the University’s prohibitions on retaliation and false statements; and
· Information about resources that are available on campus and in the community.
Should the University elect, at any point, to investigate allegations that are materially beyond the scope of the initial written notice, the University will provide a supplemental written notice describing the additional allegations to be investigated.
E. Presumption of Non-Responsibility
From the time a report or Formal Complaint is made, a Respondent is presumed not responsible for the alleged misconduct until a determination regarding responsibility is made final.
F. Interim Removal
At any time after receiving a report of Sexual Harassment, the Title IX Coordinator may remove a student Respondent from the University’s education programs and activities on a temporary basis if an individualized safety and risk analysis determines that an immediate threat to the physical health or safety of any student or other individual arising from the allegations of Sexual Harassment justifies removal. In the event the Title IX Coordinator imposes an interim removal, the Title IX Coordinator must offer to promptly meet with the Respondent provide the Respondent an opportunity to challenge the interim removal.
In the case of a Respondent who is a non-student employee (administrator, faculty, or staff), and in its discretion, the University may place the Respondent on administrative leave at any time after receiving a report of Sexual Harassment, including during the pendency of the investigation and adjudication process.
For all other Respondents, including independent contractors and guests, the University retains broad discretion to prohibit such persons from entering onto its campus and other properties at any time, and for any reason, whether after receiving a report of Sexual Harassment or otherwise.
VII. Investigation
A. Commencement and Timing
After the written notice of Formal Complaint is transmitted to the Parties, an investigator selected by the Title IX Coordinator will undertake an investigation to gather evidence relevant to the alleged misconduct, including inculpatory and exculpatory evidence. The burden of gathering evidence sufficient to reach a determination in the adjudication lies with the University and not with the Parties. The investigation will culminate in a written investigation report that will be submitted to the adjudicator during the selected adjudication process. Although the length of each investigation may vary depending on the totality of the circumstances, the University strives to complete each investigation within 45 days of the transmittal of the written notice of Formal Complaint.
B. Equal Opportunity
During the investigation, the investigator will provide an equal opportunity for the Parties to be interviewed, to present witnesses (including fact and expert witnesses), and to present other inculpatory and exculpatory evidence. Notwithstanding the foregoing, the investigator retains discretion to limit the number of witness interviews the investigator conducts if the investigator finds that testimony would be unreasonably cumulative, if the witnesses are offered solely as character references and do not have information relevant to the allegations at issue, or if the witnesses are offered to render testimony that is categorically inadmissible, such as testimony concerning sexual history of the Complainant. The investigator will not restrict the ability of the parties to gather and present relevant evidence on their own.
The investigation is a Party’s opportunity to present testimonial and other evidence that the Party believes is relevant to resolution of the allegations in the Formal Complaint. A Party that is aware of and has a reasonable opportunity to present particular evidence and/or identify particular witnesses during the investigation, and elects not to, will be prohibited from introducing any such evidence during the adjudication absent a showing of mistake, inadvertence, surprise, or excusable neglect.
C. Witnesses and Evidence
The Investigator will make reasonable attempts to contact and interview individuals who are identified as witnesses with information relevant to the allegations of misconduct. The Investigator may elect not to interview witnesses whose sole purpose is to provide character information or who are otherwise unlikely to have relevant information as determined in the sole discretion of the Investigator. The Investigator will make reasonable attempts to obtain other relevant evidence available from the parties, witnesses, or other University departments.
D. Documentation of Investigation
The investigator will take reasonable steps to ensure the investigation is documented. Interviews of the parties and witnesses may be documented by the investigator’s notes, audio recorded, video recorded, or transcribed. The particular method utilized to record the interviews of parties and witnesses will determined by the investigator in the investigator’s sole discretion, although whatever method is chosen shall be used consistently throughout a particular investigation.
E. Access to Evidence
At the conclusion of the evidence-gathering phase of the investigation, but prior to the completion of the investigation report, the investigator will transmit to each Party and their advisor, in either electronic or hard copy form, all evidence obtained as part of the investigation that is directly related to the allegations raised in the Formal Complaint, including evidence the University may choose not to rely on at any hearing and inculpatory or exculpatory evidence whether obtained from a Party or some other source. The parties will have ten days in which to submit to the investigator a written response, which the investigator will consider prior to completing the investigation report.
The parties and their advisors are permitted to review the evidence solely for the purposes of this grievance process and may not duplicate or disseminate the evidence to the public.
F. Investigation Report
After the period for the parties to provide any written response has expired, the investigator will complete a written investigation report that fairly summarizes the various steps taken during the investigation, summarizes the relevant evidence collected, lists material facts on which the parties agree, and lists material facts on which the parties do not agree. When the investigation report is complete, the investigator will transmit a copy to the Title IX Coordinator. The investigator will also transmit the investigation report to each Party and their advisor, in either electronic or hard copy form.
VIII. Adjudication
After the investigator has sent the investigation report to the parties, the Title IX Coordinator will transmit to each Party a notice advising the Party of the Hearing and Administrative Adjudication processes specified below. The hearing process will be used to adjudicate all Formal Complaints unless both parties timely consent to administrative adjudication or informal resolution.
B. Hearing Process
The University will utilize the following procedures to administer a hearing under this section.
1. Hearing Officer
After selection of the hearing process as the form of administrative adjudication, the Title IX Coordinator will promptly appoint a hearing officer who will oversee the hearing process and render a determination of responsibility for the allegations in the Formal Complaint, at the conclusion of the hearing process. The Title IX Coordinator will see that the hearing officer is provided a copy of the investigation report and a copy of all evidence transmitted to the parties by the investigator.
2. Hearing Notice and Response to the Investigation Report
After the hearing officer is appointed by the Title IX Coordinator, the hearing officer will promptly transmit written notice to the parties notifying the parties of the hearing officer’s appointment; setting a deadline for the parties to submit any written response to the investigation report; setting a date for the pre-hearing conference; setting a date and time for the hearing; and providing a copy of the University’s Hearing Procedures. Neither the pre-hearing conference, nor the hearing itself, may be held any earlier than ten days from the date of transmittal of the written notice.
A Party’s written response to the investigation report must include:
· To the extent the Party disagrees with the investigation report, any argument or commentary regarding such disagreement;
· Any argument that evidence should be categorically excluded from consideration at the hearing based on privilege, relevancy, the prohibition on the use of sexual history, or for any other reason;
· A list of any witnesses that the Party contends should be requested to attend the hearing pursuant to an attendance notice issued by the hearing officer;
· A list of any witnesses that the Party intends to bring to the hearing without an attendance notice issued by the hearing officer;
· Any objection that the Party has to the University’s Hearing Procedures;
· Any request that the parties be separated physically during the pre-hearing conference and/or hearing;
· Any other accommodations that the Party seeks with respect to the pre-hearing conference and/or hearing;
· The name and contact information of the advisor who will accompany the Party at the pre-hearing conference and hearing;
· If the Party does not have an advisor who will accompany the Party at the hearing, a request that the University provide an advisor for purposes of conducting questioning.
A Party’s written response to the investigation report may also include:
· Argument regarding whether any of the allegations in the Formal Complaint are supported by a preponderance of the evidence; and
· Argument regarding whether any of the allegations in the Formal Complaint constitute Sexual Harassment.
3. Pre-Hearing Conference
Prior to the hearing, the hearing officer will conduct a pre-hearing conference with the parties and their advisors. The pre-hearing conference will be conducted live, with simultaneous and contemporaneous participation by the parties and their advisors. By default, the pre-hearing conference will be conducted with the hearing officer, the parties, the advisors, and other necessary University personnel together in the same physical location. However, upon request of either Party, the parties will be separated into different rooms with technology enabling the parties to participate simultaneously and contemporaneously by video and audio.
In the hearing officer’s discretion, the pre-hearing conference may be conducted virtually, by use of video and audio technology, where all participants participate simultaneously and contemporaneously by use of such technology.
During the pre-hearing conference, the hearing officer will discuss the hearing procedures with the parties; address matters raised in the parties’ written responses to the investigation report, as the hearing officer deems appropriate; discuss whether any stipulations may be made to expedite the hearing; discuss the witnesses the parties have requested be served with notices of attendance and/or witnesses the parties plan to bring to the hearing without a notice of attendance; and resolve any other matters that the hearing officer determines, in the hearing officer’s discretion, should be resolved before the hearing.
4. Issuance of Notices of Attendance
After the pre-hearing conference, the hearing officer will transmit notices of attendance to any University employee (including administrator, faculty, or staff) or student whose attendance is requested at the hearing as a witness. The notice will advise the subject of the specified date and time of the hearing and advise the subject to contact the hearing officer immediately if there is a material and unavoidable conflict.
The subject of an attendance notice should notify any manager, faculty member, coach, or other supervisor, as necessary, if attendance at the hearing will conflict with job duties, classes, or other obligations. All such managers, faculty members, coaches, and other supervisors are required to excuse the subject of the obligation, or provide some other accommodation, so that the subject may attend the hearing as specified in the notice.
The University will not issue a notice of attendance to any witness who is not an employee or a student.
5. Hearing
After the pre-hearing conference, the hearing officer will convene and conduct a hearing pursuant to the University’s Hearing Procedures. The hearing will be audio recorded. The audio recording will be made available to the parties for inspection and review on reasonable notice, including for use in preparing any subsequent appeal.
The hearing will be conducted live, with simultaneous and contemporaneous participation by the parties and their advisors. By default, the hearing will be conducted with the hearing officer, the parties, the advisors, witnesses, and other necessary University personnel together in the same physical location. However, upon request of either Party, the parties will be separated into different rooms with technology enabling the parties to participate simultaneously and contemporaneously by video and audio. The hearing may, in the hearing officer’s discretion, be conducted virtually, by use of video and audio technology, where all participants participate simultaneously and contemporaneously by use of such technology.
While the Hearing Procedures and rulings from the hearing officer will govern the particulars of the hearing, each hearing will include, at a minimum:
· Opportunity for each Party to address the hearing officer directly and to respond to questions posed by the hearing officer;
· Opportunity for each Party’s advisor to ask directly, orally, and in real time, relevant questions, and follow up questions, of the other Party and any witnesses, including questions that support or challenge credibility;
· Opportunity for each Party to raise contemporaneous objections to testimonial or non-testimonial evidence and to have such objections ruled on by the hearing officer and a reason for the ruling provided;
· Opportunity for each Party to submit evidence that the Party did not present during the investigation due to mistake, inadvertence, surprise, or excusable neglect;
· Opportunity for each Party to make a brief closing argument.
Except as otherwise permitted by the hearing officer, the hearing will be closed to all persons except the parties, their advisors, the investigator, the hearing officer, the Title IX Coordinator, and other necessary University personnel. With the exception of the investigator and the parties, witnesses will be sequestered until such time as their testimony is complete.
During the hearing, the parties and their advisors will have access to the investigation report and evidence that was transmitted to them.
While a Party has the right to attend and participate in the hearing with an advisor, a Party and/or advisor who materially and repeatedly violates the rules of the hearing in such a way as to be materially disruptive, may be barred from further participation and/or have their participation limited, as the case may be, in the discretion of the hearing officer.
Subject to the minimum requirements specified in this Section, the hearing officer will have sole discretion to determine the manner and particulars of any given hearing, including with respect to the length of the hearing, the order of the hearing, and questions of admissibility. The hearing officer will independently and contemporaneously screen questions for relevance in addition to resolving any contemporaneous objections raised by the parties and will explain the rational for any evidentiary rulings.
The hearing is not a formal judicial proceeding and strict rules of evidence do not apply. The hearing officer will have discretion to modify the Hearing Procedures, when good cause exists to do so, and provided the minimal requirements specified above are met.
6. Subjection to Questioning
In the event that any Party or witness refuses to attend the hearing, or attends but refuses to submit to questioning by the Parties’ advisors, the statements of that Party or witness, as the case may be, whether given during the investigation or during the hearing, will not be considered by the hearing officer in reaching a determination of responsibility.
Notwithstanding the foregoing, the hearing officer may consider the testimony of any Party or witness, whether given during the investigation or during the hearing, if the parties jointly stipulate that the testimony may be considered or in the case where neither Party requested attendance of the witness at the hearing.
In applying this Section, the hearing officer will not draw an inference about the determination regarding responsibility based solely on a Party or a witness’s absence from the live hearing and/or refusal to submit to questioning by the parties’ advisors.
C. Deliberation and Determination
After the hearing is complete, the hearing officer will objectively evaluate all relevant evidence collected during the investigation, including both inculpatory and exculpatory evidence, together with testimony and non-testimony evidence received at the hearing, and ensure that any credibility determinations made are not based on a person’s status as a Complainant, Respondent, or witness. The hearing officer will take care to exclude from consideration any evidence that was ruled inadmissible at the pre-hearing conference, during the hearing, or otherwise. The hearing officer will resolve disputed facts using a preponderance of the evidence (i.e., “more likely than not”) standard and reach a determination regarding whether the facts that are supported by a preponderance of the evidence constitute one or more violations of the policy as alleged in the Formal Complaint.
D. Written Decision
After reaching a determination and consulting with the appropriate University official and Title IX Coordinator as required above, the hearing officer will prepare a written decision that will include:
· Identification of the allegations potentially constituting Sexual Harassment made in the Formal Complaint;
· A description of the procedural steps taken by the University upon receipt of the Formal Complaint, through issuance of the written decision, including notification to the parties, interviews with the parties and witnesses, site visits, methods used to gather non-testimonial evidence, and the date, location, and people who were present at or presented testimony at the hearing.
· Articulate findings of fact, made under a preponderance of the evidence standard, that support the determination;
· A statement of, and rationale for, each allegation that constitutes a separate potential incident of Sexual Harassment, including a determination regarding responsibility for each separate potential incident;
· The discipline determined by the appropriate University official;
· Whether the Complainant will receive any ongoing support measures or other remedies as determined by the Title IX Coordinator; and
· A description of the University’s process and grounds for appeal.
The hearing officer’s written determination will be transmitted to the parties. Transmittal of the written determination to the parties concludes the hearing process, subject to any right of appeal.
Although the length of each adjudication by hearing will vary depending on the totality of the circumstances, the University strives to issue the hearing officer’s written determination within 15 days of the conclusion of the hearing.
E. Administrative Adjudication
In lieu of the hearing process, the Parties may consent to have a Formal Complaint resolved by administrative adjudication. Administrative adjudication is voluntary and must be consented to in writing by both parties and approved by the Title IX Coordinator. At any time prior to the issuance of the administrative officer’s determination, a Party has the right to withdraw from administrative adjudication and request a live hearing.
If administrative adjudication is selected, the Title IX Coordinator will appoint an administrative officer. The Title IX Coordinator will ensure that the administrative adjudicator is provided a copy of the investigation report and a copy of all the evidence transmitted to the parties by the investigator.
The administrative officer will promptly send written notice to the Parties notifying the parties of the administrative officer’s appointment; setting a deadline for the parties to submit any written response to the investigation report; and setting a date and time for each party to meet with the administrative officer separately. The administrative officer’s meetings with the parties will not be held any earlier than ten days from the date of transmittal of the written notice specified in this paragraph.
A Party’s written response to the investigation report must include:
· To the extent the party disagrees with the investigation report, any argument or commentary regarding such disagreement;
· Any argument that a particular piece or class of evidence should be categorically excluded from consideration at the hearing based on privilege, relevancy, the prohibition on the use of sexual history, or for any other reason;
· Argument regarding whether any of the allegations in the Formal Complaint are supported by a preponderance of the evidence;
· Argument regarding whether any of the allegations in the Formal Complaint constitute Sexual Harassment.
After reviewing the Parties’ written responses, the administrative officer will meet separately with each party to provide the Party with an opportunity make any oral argument or commentary the Party wishes to make and for the administrative officer to ask questions concerning the Party’s written response, the investigative report, and/or the evidence collected during the investigation.
After meeting with each Party, the administrative officer will objectively revaluate all relevant evidence, including both inculpatory and exculpatory evidence and ensure that any credibility determinations made are not based on a person’s status as a Complainant, Respondent, or witness. The administrative officer will take care to exclude from consideration any evidence that the administrative officer determines should be ruled inadmissible based on the objections and arguments raised by the Parties in their respective written responses to the investigation report. The administrative officer will resolve disputed facts using a preponderance of the evidence (i.e., “more likely than not”) standard and reach a determination regarding whether the facts that are supported by a preponderance of the evidence constitute one or more violations of the policy as alleged in the Formal Complaint.
Thereafter, the administrative officer will consult with any University official and the Title IX Coordinator and will prepare and transmit a written decision which shall serve as a resolution for purposes administrative adjudication.
Transmittal of the administrative officer’s written determination concludes the administrative adjudication, subject to any right of appeal.
Although the length of each administrative adjudication will vary depending on the totality of the circumstances, the University strives to issue the administrative officer’s written determination within thirty days of the transmittal of the initiating written notice.
G. Discipline and Remedies
In the event the hearing panel determines that the Respondent is responsible for violating this policy, the hearing chair will, prior to issuing a written decision, consult with an appropriate University official with disciplinary authority over the Respondent and such official will determine any discipline to be imposed. The hearing chair will also, prior to issuing a written decision, consult with the Title IX Coordinator who will determine whether and to what extent ongoing support measures or other remedies will be provided to the Complainant. Sanctions that can be imposed upon a final determination of responsibility may range from a written warning or reprimand up to and including expulsion of a student or dismissal of an employee for cause.
If a student is found responsible for Sexual Harassment and the sanction imposed makes the student ineligible to reenroll in the University (i.e., suspension or expulsion), the University will include a notation on the student’s transcript. The student may request the removal of a transcript notation imposed under this policy if:
1. the student becomes eligible to reenroll at the University; or
2. the University determines that good cause exists to remove the notation.
If the University receives an appropriate request by another postsecondary educational institution, the University will provide to the requesting institution information relating to the University’s determination that the student violated this policy.
IX. Dismissal During Investigation or Adjudication
The University may dismiss a Formal Complaint at any point during the investigation or adjudication process if the Title IX Coordinator determines that any one or more of the following is true:
· The Complainant provides the Title IX Coordinator written notice that the Complainant wishes to withdraw the Formal Complaint or any discrete allegations therein (in which case those discrete allegations may be dismissed);
· The Respondent is no longer employed by the University; or
· Specific circumstances prevent the University from gathering evidence sufficient to reach a determination as to the Formal Complaint, or any discrete allegations therein (in which case those discrete allegations may be dismissed).
In the event the Title IX Coordinator determines that a Formal Complaint should be dismissed pursuant to this Section, the Title IX Coordinator will provide written notice of dismissal to the parties and advise them of their right to appeal. The Title IX Coordinator may refer the subject matter of the Formal Complaint to other University offices, as appropriate. A dismissal pursuant to this Section is presumptively a final determination as it pertains to this policy, unless otherwise specified in writing by the Title IX Coordinator in the written notice of dismissal.
X. Appeal
A. Grounds for Appeal
Either Party may appeal the determination of an adjudication, or a dismissal of a Formal Complaint, on one or more of the following grounds:
1. A procedural irregularity affected the outcome;
2. There is new evidence that was not reasonably available at the time the determination or dismissal was made, that could have affected the outcome;
3. The Title IX Coordinator, investigator, hearing officer, or administrative officer had a conflict of interest or bias for or against complainants or respondents generally, or against the individual Complainant or Respondent, that affected the outcome.
4. The sanctions imposed are substantially disproportionate to the severity of the violation.
Appeals are not intended to be full re-hearings of the complaint. In most cases, appeals are confined to a review of the written documentation and evidence available at the time of the Investigation, and pertinent documentation regarding the grounds for appeal.
B. Deadline to File Appeal
A Party must file an appeal within seven days of the date they receive notice of dismissal or determination appealed from or, if the other Party appeals, within three days of the other Party appealing, whichever is later. The appeal must be submitted in writing to the University President, who serves as the appeal officer. The appeal must specifically identify the determination and/or dismissal appealed from, articulate which one or more of the three grounds for appeal are being asserted, explain in detail why the appealing Party believes the appeal should be granted, and articulate what specific relief the appealing Party seeks.
C. Resolution of Appeal
Promptly upon receipt of an appeal, the appeal officer will conduct an initial evaluation to confirm that the appeal is timely filed and that it invokes at least one of the permitted grounds for appeal. If the appeal officer determines that the appeal is not timely, or that it fails to invoke a permitted ground for appeal, the appeal officer will dismiss the appeal and provide written notice of the same to the parties.
If the appeal officer confirms that the appeal is timely and invokes at least one permitted ground for appeal, the appeal officer will provide written notice to the other Party that an appeal has been filed and that the other Party may submit a written opposition to the appeal within seven days. The appeal officer shall also promptly obtain from the Title IX Coordinator any records from the investigation and adjudication necessary to resolve the grounds raised in the appeal.
Upon receipt of any opposition, or after the time period for submission of an opposition has passed without one being filed, the appeal officer will promptly decide the appeal and transmit a written decision to the parties that explains the outcome of the appeal and the rationale. The determination of a Formal Complaint, including any discipline, becomes final when the time for appeal has passed with no Party filing an appeal or, if any appeal is filed, at the point when the appeal officer has resolved all appeals, either by dismissal or by transmittal of a written decision. No further review beyond the appeal is permitted.
Although the length of each appeal will vary depending on the totality of the circumstances, the University strives to issue the appeal officer’s written decision within 21 days of an appeal being filed.
XI. Informal Resolution
The University may, in the Title IX Coordinator’s discretion, facilitate an Informal Resolution in accordance with the protocol outlined below.
A. Guiding Principles
Generally, informal resolution involves a structured, supervised interaction between the Parties and/or other affected community members that seeks to identify and meet the needs of the Complainant while providing an opportunity for the Respondent and/or other affected community members to accept responsibility and repair harm (to the extent possible). Informal resolution may not include an investigation, hearing, or disciplinary action against a Respondent (including transcript notations), but may include imposing appropriate and reasonable remedies as agreed to by the Parties. All informal resolutions are facilitated by a trained administrator or outside expert.
B. Availability of Informal Resolution
Informal resolution is available in matters in which the Title IX Coordinator, in the Title IX Coordinator’s discretion, determines it is appropriate. Factors the University will consider when determining whether a report of Prohibited Conduct is suitable for Alternative Resolution include, but are not limited to:
· the nature and severity of the conduct, including whether the use of force or a weapon was involved;
· the Respondent’s prior known disciplinary or criminal conduct, including whether the University has received other reports of Prohibited Conduct committed by the Respondent;
· whether the alleged incident poses a risk of harm to other individuals or the community;
· the dynamics of power or control commonly associated with the alleged conduct or the nature of the parties’ relationship;
· whether multiple parties are affected or involved;
· any admissions of responsibility by the Respondent; and
· any other factor deemed relevant by the Title IX Coordinator or their designee in the interest of overall campus safety or safety of the parties involved.
Informal resolution will not be permitted if the Respondent is a non-student employee accused of committing Sexual Harassment against a student.
C. Informal Resolution Process
At any time after the parties are provided written notice of the Formal Complaint, and before the completion of any appeal, the parties may voluntarily consent, with the Title IX Coordinator’s approval, to engage in mediation, facilitated resolution, or other form of dispute resolution the goal of which is to enter into a final resolution resolving the allegations raised in the Formal Complaint by agreement of the parties. Administrative Adjudication is a form of informal resolution.
The specific manner of any informal resolution process will be determined by the Parties and the Title IX Coordinator, in consultation together. Prior to commencing the informal resolution process agreed upon, the Title IX Coordinator will transmit a written notice to the Parties that:
· Describes the parameters and requirements of the informal resolution process to be utilized;
· Identifies the individual responsible for facilitating the informal resolution (who may be the Title IX Coordinator, another University official, or a suitable third-Party);
· Explains the effect of participating in informal resolution and/or reaching a final resolution will have on a Party’s ability to resume the investigation and adjudication of the allegations at issue in the Formal Complaint; and
· Explains any other consequence resulting from participation in the informal resolution process, including a description of records that will be generated, maintained, and/or shared.
After receiving the written notice specified in this paragraph, each Party must voluntarily provide written consent to the Title IX Coordinator, before the informal resolution may commence. The University will not pressure or compel any individual to engage in mediation, to directly confront the other, or to participate in any particular form of informal resolution. Individuals may be accompanied by an adviser or support person at any meetings related to the informal resolution process.
If the Parties reach a resolution through the informal resolution process, and the Title IX Coordinator agrees that the resolution is not clearly unreasonable, the Title IX Coordinator will reduce the terms of the agreed resolution to writing and present the resolution to the parties for their written signature. Once both parties and the Title IX Coordinator sign the resolution, the resolution is final, and the allegations addressed by the resolution are considered resolved and will not be subject to further investigation, adjudication, remediation, or discipline by the University, except as otherwise provided in the resolution itself, absent a showing that a Party induced the resolution by fraud, misrepresentation, or other misconduct or where required to avoid a manifest injustice to either Party or to the University. Notwithstanding the forgoing if the form of informal resolution is Administrative Adjudication, there shall not be an agreed resolution requiring the parties’ signatures; instead, the determination issued by the administrative officer shall serve as the resolution and conclude the informal resolution process, subject only to any right of appeal. With the exception of a resolution resulting from the Administrative Adjudication process, all other forms of informal resolution pursuant to this Section are not subject to appeal.
D. Termination of Informal Resolution
A Party may withdraw their consent to participate in informal resolution at any time before a resolution has been finalized.
E. Deadlines for Informal Resolution
Absent extension by the Title IX Coordinator, any informal resolution process must be completed within 21 days. If an informal resolution process does not result in a resolution within 21 days, and absent an extension, abeyance, or other contrary ruling by the Title IX Coordinator, the informal resolution process will be deemed terminated, and the Formal Complaint will be resolved pursuant to the investigation and adjudication procedures. The Title IX Coordinator may adjust any time periods or deadlines in the investigation and/or adjudication process that were suspended due to the informal resolution.
During the pendency of the informal resolution process, the investigation and adjudication processes that would otherwise occur are stayed and all related deadlines are suspended.
XII. Other Investigation and Adjudication Considerations
A. Advisor of Choice
From the point a Formal Complaint is made, and until an investigation, adjudication, and appeal are complete, the Complainant and Respondent will have the right to be accompanied by an advisor of their choice to all meetings, interviews, and hearings that are part of the investigation, adjudication, and appeal process. The advisor may be, but is not required to be, an attorney.
Except for the questioning of witnesses during the hearing specified in Section XVIII.A.5, the advisor will play a passive role and is not permitted to communicate on behalf of a Party, insist that communication flow through the advisor, or communicate with the University about the matter without the Party being included in the communication. In the event a Party’s advisor of choice engages in material violation of the parameters specified in this Section XXI and Section XVIII.A.5, the University may preclude the advisor from further participation, in which case the Party may select a new advisor of their choice.
In the event a Party is not able to secure an advisor to attend the hearing specified in Section XVIII.A.5, and requests the University to provide an advisor, the University will provide the Party an advisor, without fee or charge, who will conduct questioning on behalf of the Party at the hearing. The University will have sole discretion to select the advisor it provides. The advisor the University provides may be, but is not required to be, an attorney.
The University will provide an advisor to any Party upon receipt of a request to the Title IX Coordinator or their designee. The University will provide an advisor for any Party at a hearing specified in Section XVIII.A.5 for the purpose of cross-examining a Party or witness.
B. Conflicts of Interest, Bias, and Procedural Complaints
The Title IX Coordinator, investigator, hearing officer, administrative officer, appeals officer, and informal resolution facilitator will be free of any material conflicts of interest or material bias. Any Party who believes one or more of these University officials has a material conflict of interest or material bias must raise the concern promptly so that the University may evaluate the concern and find a substitute, if appropriate. The failure of a Party to timely raise a concern of a conflict of interest or bias may result in a waiver of the issue for purposes of any appeal.
Parties are generally expected to raise any objections, concerns, or complaints about the investigation, adjudication, and appeals process in a prompt and timely manner so that the University may evaluate the matter and address it, if appropriate.
C. Treatment of Medical Records and Other Privileged Information
During the investigation and adjudication processes, the investigator and adjudicator are not permitted to access, consider, disclose, permit questioning concerning, or otherwise use:
· a Party’s records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional or paraprofessional’s capacity, or assisting in that capacity, and which are made and maintained in connection with the provision of treatment to the Party; or
· information or records protected from disclosure by any other legally-recognized privilege, such as the attorney client privilege
unless the University has obtained the Party’s voluntary, written consent to do so for the purposes of the investigation and adjudication process.
Notwithstanding the foregoing, the investigator and/or adjudicator, may consider any such records or information otherwise covered by this Section XIX if the Party holding the privilege affirmatively discloses the records or information to support their allegation or defense.
D. Sexual History
During the investigation and adjudication processes, questioning regarding a Complainant’s sexual predisposition or prior sexual behavior are not relevant, unless such questions and evidence about the Complainant’s prior sexual behavior are offered to prove that someone other than the Respondent committed the conduct alleged, or if the questions and evidence concern specific incidents of the Complainant’s prior sexual behavior with respect to the Respondent and are offered to prove consent. Notwithstanding the foregoing, a Complainant who affirmatively uses information otherwise considered irrelevant by this Section for the purpose of supporting the Complainant’s allegations, may be deemed to have waived the protections of this Section.
E. Student Withdrawal or Graduation Pending Disciplinary Charges
If a student withdraws or graduates from the University pending an investigation of a complaint of Sexual Misconduct under this policy, the University will expedite the disciplinary process as necessary to accommodate both the Complainant and the Respondent’s interest in a speedy resolution and continue the investigation with or without the participation of the Respondent.
F. Relationship With Criminal Process
This policy sets forth the University’s processes for responding to reports and Formal Complaints of Sexual Harassment. The University’s processes are separate, distinct, and independent of any criminal processes. While the University may temporarily delay its processes under this policy to avoid interfering with law enforcement efforts if requested by law enforcement, the University will otherwise apply this policy and its processes without regard to the status or outcome of any criminal process.
G. Recordings
Wherever this policy specifies that an audio or video recording will be made, the recording will be made only by the University and is considered property of the University, subject to any right of access that a Party may have under this policy, FERPA, and other applicable federal, state, or local laws. Only the University is permitted to make audio or video recordings under this policy. The surreptitious recording of any meeting, interview, hearing, or other interaction contemplated under this policy is strictly prohibited. Any Party who wishes to transcribe a hearing by use of a transcriptionist must seek pre-approval from the hearing officer.
XIII. Discretion in Application
A. Interpretation
The University retains discretion to interpret and apply this Policy in a manner that is not clearly unreasonable, even if the University’s interpretation or application differs from the interpretation of the Parties.
The provisions of this policy and the Hearing Procedures are not contractual in nature, whether in their own right, or as part of any other express or implied contract. Accordingly, the University retains discretion to revise this policy and the Hearing Procedures at any time, and for any reason. The University may apply policy revisions to an active case provided that doing so is not clearly unreasonable.
B. Other Sex-Based Misconduct
This policy only applies to Sexual Harassment as defined in this policy. The University may refer and resolve complains of other forms of sex discrimination consistent with other institutional policies, including the University’s Non-Discrimination Policy.
C. Outside Appointments, Dual Appointments, and Delegations
The University retains discretion to retain and appoint suitably qualified persons who are not University employees to fulfill any function of the University under this policy, including, but not limited to, the investigator, hearing officer, administrative officer, informal resolution officer, and/or appeals officer. The University also retains discretion to appoint two or more persons to jointly fulfill the role of investigator, hearing officer, administrative officer, informal resolution officer, and/or appeals officer.
The functions assigned to a given University official under this policy, including but not limited to the functions assigned to the Title IX Coordinator, investigator, hearing officer, administrative officer, informal resolution officer, and appeals officer, may, in the University’s discretion, be delegated by such University official to any suitably qualified individual and such delegation may be recalled by the University at any time.
D. Vendors, Contractors and Third Parties
The University does business with various vendors, contractors, and other third-parties who are not students or employees of the University. Notwithstanding any rights that a given vendor, contractor, or third-party Respondent may have under this policy, the University retains its right to limit any vendor, contractor, or third-party’s access to campus for any reason. And the University retains all rights it enjoys by contract or law to terminate its relationship with any vendor, contractor, or third-party irrespective of any process or outcome under this policy.
Programs to Prevent Domestic Violence, Dating Violence, Sexual Assault, and Stalking
Amberton University does not have on-campus housing and as a commuter campus with online options, students spend a limited time on campus. Amberton University does provide preventive programs in the form of making this policy and procedures available to all students and employees. There are also programs and resources available to students and employees on the topics of sexual harassment, rape, acquaintance rape, domestic violence, dating violence, sexual assault, and stalking.
Community resources in the Dallas and Collin County areas include, but are not limited to:
Medical Treatment:
Baylor Scott and White Medical Center – Dallas
3500 Gaston Avenue
Dallas, TX 75246
972-820-0111
Baylor Scott& White Medical Center – Plano
4700 Alliance Blvd.
Plano, TX 75093
469-814-2000
Medical City – Dallas
7777 Forest Lane
Dallas, TX 75230
972-566-7000
Methodist Richardson Medical Center
2831 President George Bush Hwy
Richardson, TX 75082
469-204-1000
972-498-8500
Parkland Health & Hospital System
5200 Harry Hines
Dallas, TX 75235
214-590-4900
Texas Health Presbyterian Hospital Dallas
8200 Walnut Hill Lane
Dallas, TX 75231
214-345-6789
Texas Health Presbyterian Hospital Plano
6200 West Parker Road
Plano, TX 75093
972-981-8000
Hotlines:
· Dallas Area Rape Crisis Center 24-hour hotline: (972) 641-RAPE (7273)
· Texas Association Against Sexual Assault: (TAASA) (512) 474-7190
· National Domestic Violence Hotline: 1-800-799-SAFE (7233)
· Texas Council on Family Violence:1.800.525.1978;http://tcfv.org/
Counseling and Shelters:
Genesis Women’s Shelter & Counseling Office
4411 Lemmon Avenue, Suite 201
Dallas, TX 75219
Cost: Free
24-hour emergency shelter only for abused women and children fleeing domestic violence
24-hour hotline: 214-946-4357
Counseling: 214-389-7700
The Family Place
24-hour Crisis Hotline: 214-941-1991
Provides these amenities:
Emergency Shelter: provides family violence victims with safety, food, clothing, transportation, legal services, counseling, and case management services at 100-bed Safe Campus.
Transitional Housing, Child Development Center, Safe Campus Learning Center, Community-based Counseling, Children’s Counseling, Incest Recovery Program, Supervised Child Visitation, Battering Intervention and Prevention Program, Legal Services, Resale Shop
Hopes Door
Crisis Line: 972-422-SAFE (7233)
Counseling and intervention services: 972-422-2911
Hope's Door is an organization in Collin County specializing in comprehensive intervention and prevention services for all members of a family affected by domestic violence - from victim to abuser. Hope's Door was established in 1986 as a crisis hotline. Clients were housed in local hotels until the opening of a 21-bed emergency shelter in 1989. Since then, services have expanded to include transitional housing, counseling for adults and children, legal advocacy and services for abusers.
New Beginning Center
Crisis Line: 972- 276-0057
Office and Administration: 972-276-0423
New Beginning Center is a 501(c)(3) non-profit organization that provides counseling and outreach services to victims of domestic violence. We are the only designated domestic violence agency in the northeast sector of Dallas County, offering a full complement of programs, including a shelter, intervention services, educational programs, Battering and Intervention Prevention Program, transitional housing, a 24-hour hotline and community outreach programs.
Emily’s Place
972- 424-7775
Emily’s Place seeks to break the cycle of domestic violence for women and their children by providing “transformational” living with emphasis on emotional healing and life-skills training to ensure a successful, self-sustaining future. Emily’s Place is not a shelter, which typically allows women to stay for 30-90 days. Rather, it is a “transformational” housing ministry based on a 24-month stay commitment, which promotes stability and wise choices. The transformational program includes counseling, addictions recovery, vocational assistance, life skills development and spiritual nurturing---all within a structured environment of 24/7 live-in staff who are dedicated to offering the support and accountability needed to transition from a difficult past into a bright future. Emily’s Place currently operates two homes located in Plano and Allen.
[3] The University’s definition of “Sexual Assault” is mandated by federal regulations implementing Title IX of the Education Amendments of 1972. Those regulations require the University to adopt a definition of “Sexual Assault” that incorporates various forcible and non-forcible sex crimes as defined by the FBI’s Uniform Crime Reporting System. See 34 C.F.R. § 106.30(a).
[4] Family Violence is defined by the Texas Family Code Section 71.004 as:
(1) an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or Sexual Assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or Sexual Assault, but does not include defensive measures to protect oneself;
(2) abuse, as that term is defined by Sections 261.001(1)(C), (E), and (G), by a member of a family or household toward a child of the family or household; or
(3) Dating violence, as that term is defined by Section 71.0021.
[5] A Complainant and Respondent are each individually a “Party” and collectively the “Parties” with respect to a Formal Complaint filed under this policy.
[7] “Course and Scope of Employment” means an employee performing duties in the furtherance of the institution’s interests.
[8] For the purposes of Texas’s mandatory reporting requirement only, “Sexual Harassment” means: unwelcome, sex-based verbal or physical conduct that (a) in the employment context, unreasonably interferes with a person’s work performance or creates an intimidating, hostile, or offensive work environment; or (b) in the education context, is sufficiently severe, persistent, or pervasive that the conduct interferes with a student’s ability to participate in or benefit from the University’s educational programs or activities.
[9] This exception applies to traditional “students-workers” working part-time at the University, and not full-time employees taking courses at the institution.
[10] Employees who fail to make a mandatory report under this provision may also be subject to criminal prosecution pursuant to Texas Education Code section 51.255(a).
[11] Under Texas law, a “Confidential Employee” is an employee (1) designated by the University as a person with whom students may speak confidentially concerning Sexual Harassment, Sexual Assault, Dating Violence, or Stalking or (2) receives information regarding such an incident under circumstances that render the employee’s communications confidential or privileged under other law.