APPLICABILITY, COMPLAINT INTAKE, AND OVERARCHING PROVISIONS
Applicability of Grievance Procedures
As mentioned above, these Grievance Procedures apply to allegations of Sexual Harassment in Southeastern’s Education Program or Activity (and to related Retaliation, at the discretion of the Title IX Coordinator/Deputy/Deputy). Southeastern treats Complainants and Respondents equitably by providing remedies to a Complainant where Southeastern makes a determination of responsibility for Sexual Harassment against a Respondent under these Grievance Procedures and also by following these Grievance Procedures before imposing any disciplinary sanctions against a Respondent for Sexual Harassment.
Obligation to Respond and Initial Outreach to Complainant
When Southeastern has Actual Knowledge of Sexual Harassment (or allegations thereof) in its Education Program or Activity and against a person in the United States, Southeastern is obligated to respond and to follow Title IX’s specific requirements, which are addressed and incorporated in these Grievance Procedures.
Promptly upon receiving allegations of Sexual Harassment in Southeastern’s Education Program or Activity and against a person in the United States, the Title IX Coordinator/Deputy/Deputy will contact the Complainant to discuss the availability of Supportive Measures with or without the filing of a Formal Complaint and to explain to the Complainant the process for filing a Formal Complaint.
Filing of a Formal Complaint
As mentioned in the Definitions section above, a Formal Complaint means a document filed by a Complainant or signed by the Title IX Coordinator/Deputy/Deputy alleging Sexual Harassment against a Respondent and requesting that Southeastern investigate the allegation(s) of Sexual Harassment. At the time of filing a Formal Complaint a Complainant must be participating in or attempting to participate in Southeastern’s Education Program or Activity. A Formal Complaint may be filed with the Title IX Coordinator/Deputy/Deputy in person, by mail, or by electronic mail, by using the contact information listed in Exhibit A. As used in this paragraph, the phrase “document filed by a Complainant” means a document or electronic submission that contains the Complainant’s physical or digital signature or otherwise indicates that the Complainant is the person filing the Formal Complaint.
When the Title IX Coordinator/Deputy/Deputy believes that, with or without the Complainant’s desire to participate in a grievance process, a non-deliberately indifferent response to the allegations requires an investigation, the Title IX Coordinator/Deputy/Deputy has the discretion to initiate the grievance process by signing a Formal Complaint. Where the Title IX Coordinator/Deputy/Deputy signs a Formal Complaint, the Title IX Coordinator/Deputy/Deputy is not a Complainant or otherwise a party under these Grievance Procedures. Furthermore, initiation of a Formal Complaint by the Title IX Coordinator/Deputy/Deputy is not sufficient alone to imply bias or that the Title IX Coordinator/Deputy/Deputy is taking a position adverse to the Respondent.
Once a Formal Complaint is initiated, an alleged victim will be referred to as a “Complainant,” and an alleged perpetrator will be referred to as a “Respondent.”
Notice of Allegations
Upon receipt of a Formal Complaint, the Title IX Coordinator/Deputy/Deputy will provide the parties who are known written notice of these Grievance Procedures and of the allegations of conduct potentially constituting Sexual Harassment, including sufficient details known at the time and with sufficient time to prepare a response before any initial interview. Sufficient details 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.
The written notice will include a statement that the Respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the grievance process. The written notice also will inform the parties that they may have an advisor of their choice, who may be, but is not required to be, an attorney and that the advisor may review and inspect evidence collected during the investigation. Additionally, the written notice will inform the parties of Southeastern’s prohibition on knowingly making false statements or knowingly submitting false information during the grievance process.
If, in the course of an investigation, Southeastern decides to investigate allegations of Sexual Harassment involving the Complainant or Respondent that are not included in the original written notice of allegations, Southeastern will provide notice of the additional allegations to the parties whose identities are known.
Southeastern will investigate the allegations in a Formal Complaint; however, Southeastern will dismiss a Formal Complaint or a portion of the allegations therein if (1) the conduct alleged in the Formal Complaint, even if substantiated, would not constitute Sexual Harassment; (2) at the time of filing the Formal Complaint the Complainant was not participating in or attempting to participate in Southeastern’s Education Program or Activity; (3) the conduct alleged in the Formal Complaint did not occur in Southeastern ’s Education Program or Activity; or (4) the conduct alleged in the Formal Complaint did not occur against an individual in the United States.
Additionally, Southeastern may dismiss a Formal Complaint or a portion of the allegations therein if (1) the Complainant notifies the Title IX Coordinator/Deputy/Deputy in writing that the Complainant would like to withdraw the Formal Complaint or any allegations therein; (2) the Respondent is no longer enrolled or employed at Southeastern; or (3) despite efforts to do so, Southeastern is unable to gather evidence sufficient to reach a determination as to the Formal Complaint or allegations therein.
In the event the Title IX Coordinator/Deputy/Deputy determines that dismissal of a Formal Complaint or a portion of the allegations is appropriate, the Title IX Coordinator/Deputy/Deputy will promptly notify both parties in writing of the dismissal and the reasons for it. Dismissal does not impair Southeastern’s ability to proceed with any appropriate investigatory or disciplinary actions under the Sex and Gender Discrimination and Harassment Policy or another Southeastern policy or procedure and/or to provide Supportive Measures to the parties.
Either party may appeal a decision to dismiss a Formal Complaint or a portion of the allegations on the following grounds by submitting a written appeal to the Title IX Coordinator/Deputy/Deputy within seven calendar days of the issuance of the written notice of the dismissal: (1) procedural irregularity that affected the decision to dismiss; (2) new evidence that was not reasonably available at the time of dismissal and that could affect the outcome of the matter; or (3) the Title IX Coordinator/Deputy/Deputy or another participant in the dismissal having a conflict of interest or bias for or against Complainants or Respondents generally or the individual Complainant or Respondent that affected the decision to dismiss.
The Title IX Coordinator/Deputy will promptly notify the other party of the appeal, and the non-appealing party may submit a response to the appeal within five calendar days of notification of the appeal.
The Title IX Coordinator/Deputy/Deputy will forward any documents upon which the dismissal decision was based, the appeal, and any response to the appeal to the Chief Academic Officer (when the Respondent is a student), Chief Academic Officer (when the Respondent is a faculty member) or the appropriate Vice President and Human Resources Representative (when the Respondent is a staff member). The appointed administrator will determine whether any of the grounds for appeal warrant overturning or modifying the dismissal. The decision by the appointed administrator is final.
The Complainant and the Respondent may be accompanied to any meeting or proceeding under these Grievance Procedures by the advisor of their choice, who may be, but is not required to be, an attorney. Southeastern will not limit the choice or presence of the advisor for either the Complainant or the Respondent in any meeting or grievance proceeding. Advisors, however, are not allowed to disrupt any such meeting or proceeding or to speak on behalf of the Complainant or the Respondent, with the exception of cross-examination during any hearing conducted under these Grievance Procedures, which must be conducted by an advisor and never personally by the Complainant or the Respondent.
If a party does not have an advisor present at the hearing, Southeastern will provide, without any charge to that party, an advisor of Southeastern’s choice who may be, but is not required to be, an attorney, to conduct cross-examination on behalf of that party.
Absent accommodation for a disability, the Complainant and the Respondent may not be accompanied by more than one advisor or by other individuals during meetings or proceedings under these Grievance Procedures.
Southeastern considers the reporting and adjudication of Sexual Harassment to be of paramount importance. Southeastern does not condone underage drinking or the use of illegal drugs; however, Southeastern may extend amnesty to Complainants, Respondents, witnesses, and others involved in a grievance process from punitive sanctioning for illegal use of drugs and/or alcohol when evidence of such use is discovered or submitted in the course of a grievance process. Similarly, Southeastern may, in its discretion, provide amnesty for other conduct code violations that are discovered in the course of a grievance process.
Southeastern will make every reasonable effort to ensure that the investigation and resolution of a Formal Complaint occurs in as timely and efficient a manner as possible. The timelines set forth in these Grievance Procedures are guidelines and may be altered for good cause with written notice to the Complainant and the Respondent of any delay or extension and the reasons for the action. Good cause may include considerations such as the absence of a party, a party’s advisor, or a witness; concurrent law enforcement activity; natural disasters and similar occurrences; or the need for language assistance or an accommodation of disabilities.
Southeastern will strive to complete its investigation and resolution of a Formal Complaint (not including an appeal, if applicable) within 90 calendar days of the receipt of the Formal Complaint, absent extenuating circumstances. Hearings generally will take place within 30 calendar days of the conclusion of the investigation. Within ten calendar days of the conclusion of the hearing, both the Complainant and the Respondent will receive a final outcome letter.
Either party may request an extension of any deadline by providing the Title IX Coordinator/Deputy/Deputy with a written request for an extension that includes reference to the duration of the proposed extension and the basis for the request. The Title IX Coordinator/Deputy/Deputy will review the request and will make a determination with regard to the request within three calendar days.
Written Notice of Meetings
Southeastern will provide, to a party whose participation is invited or expected, written notice of the date, time, location, participants, and purpose of all hearings, investigative interviews, or other meetings with sufficient time for the party to prepare to participate.
Effect of Corollary Criminal Investigation
Southeastern’s investigation may be delayed temporarily while criminal investigators are gathering evidence. In the event of such a delay, Southeastern will implement any appropriate Supportive Measures and will evaluate the need for other actions necessary to assist or protect the Complainant, the Respondent, and/or the Southeastern community.
Neither the results of a criminal investigation nor the decision of law enforcement to investigate or decline to investigate a matter is determinative of whether Sexual Harassment has occurred.
Emergency Removal and Administrative Leave
Southeastern may remove a Respondent from Southeastern’s Education Program or Activity on an emergency basis, provided that Southeastern first undertakes 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, provides the Respondent with notice and an opportunity to challenge the decision immediately following the removal, and does so in accordance with the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act, as applicable.
Additionally, Southeastern may place a non-student employee Respondent on administrative leave during the pendency of Southeastern’s response to allegations of Sexual Harassment provided that it does so in accordance with Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act.
Effect of Respondent Withdrawal During the Grievance Process
At the discretion of Southeastern, a Respondent who withdraws from Southeastern during the pendency of a grievance process under these Grievance Procedures may be barred from Southeastern property and Southeastern activities and events and may be ineligible for re-enrollment or to be re-hired.
Confidentiality and Disclosure
Southeastern will keep confidential the identity of any individual who has made a report or complaint of sex or gender discrimination or harassment, including any individual who has made a report or filed a Formal Complaint of Sexual Harassment, any Complainant, any Respondent, and any witness, except as may be permitted by FERPA or as required by law or to carry out any investigation or resolution of sex or gender discrimination or harassment allegations.
Southeastern may report alleged Sexual Harassment to local law enforcement if warranted by the nature of the allegations at issue, and Southeastern administrators will share information regarding alleged Sexual Harassment, as appropriate and necessary, in order to address and resolve the allegation(s) at issue, prevent the recurrence of similar Sexual Harassment, and address the effects of the Sexual Harassment. Additionally, information regarding alleged Sexual Harassment may be used as a statistical, anonymous report for data collection purposes under the Clery Act.
To comply with FERPA, Title IX, and other applicable laws and to provide an orderly process for the presentation and consideration of relevant information without undue intimidation or pressure, grievance processes carried out under these Grievance Procedures are not open to the general public. Accordingly, documents prepared in connection with such processes; documents, statements, or other information introduced in interviews, meetings, and proceedings; and the final outcome letter may not be disclosed outside of those processes except as may be required or authorized by law.
Southeastern reserves the right to notify parent(s) or guardian(s) of a student Respondent of the outcome of any investigation involving that Respondent, redacting names of any other students who do not consent to the disclosure of their information. At the written request of a party, Southeastern may include a party’s advisor on communications and share access to documents, including the investigation report. This access is subject to the advisor’s acknowledgment and agreement to maintain the confidentiality of the documents.
For the avoidance of doubt, while Southeastern strongly encourages parties to maintain privacy in connection with a grievance process, Southeastern does not prohibit parties from discussing the allegations under investigation or in any way inhibit the parties from gathering or presenting relevant evidence. In addition, Southeastern’s policy does not prohibit disclosure of the final outcome letter by either the Complainant or the Respondent.
Conflicts of Interest, Bias, and Training
Southeastern will ensure that any individual designated by Southeastern as a Title IX Coordinator/Deputy/Deputy, investigator, decision-maker, advisor, or informal resolution facilitator under these Grievance Procedures does not have a conflict of interest or bias for or against Complainants or Respondents generally or an individual Complainant or Respondent.
If any employee designated to participate in the investigation or resolution of a Formal Complaint is the Respondent, then the Title IX Coordinator/Deputy/Deputy will appoint another employee to perform their duties. (If the Title IX Coordinator/Deputy is the Respondent, then the President will appoint another employee to perform their duties.)
Southeastern also ensures that Title IX Coordinator/Deputys, investigators, decision-makers, advisors, and informal resolution facilitators receive training on the definition of Sexual Harassment; the scope of Southeastern’s Education Program or Activity; how to conduct an investigation and grievance process, including hearings, appeals, and informal resolution processes, as applicable; and how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias.
Southeastern further ensures that decision-makers receive training on issues of relevance of questions and evidence, including when questions and evidence about the Complainant’s sexual predisposition or prior sexual behavior are not relevant, and that investigators receive training on issues of relevance to create an investigative report that fairly summarizes relevant evidence. Additionally, Southeastern ensures that decision-makers receive training on any technology to be used at live hearings.
Materials used to train Title IX Coordinator/Deputys, investigators, decision-makers, advisors, and informal resolution facilitators do not rely on sex stereotypes and promote impartial investigations and adjudications of Formal Complaints of Sexual Harassment.
Burden of Proof
At all times, the burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility rest on Southeastern, not on either of the parties.
Presumption of No Responsibility until Determination
Respondents are presumed to be not responsible for alleged Sexual Harassment until Southeastern makes a determination regarding responsibility pursuant to these Grievance Procedures.
Objective Evaluation of All Relevant Evidence; Credibility Determinations
The investigators and decision-makers under these Grievance Procedures will objectively evaluate all relevant evidence, including both inculpatory and exculpatory evidence, and will not make any credibility determinations based on a person’s status as a Complainant, Respondent, or witness.
Southeastern affirms its commitment to academic freedom but notes that academic freedom does not allow any form of Sexual Harassment. Southeastern recognizes that an essential function of education is a probing of opinions and an exploration of ideas, some of which, because they are controversial, may cause students and others discomfort. This discomfort, as a product of free academic inquiry within a faculty member’s area(s) of expertise, shall in no way be considered or construed to constitutes Sexual Harassment. Academic inquiry may involve teaching, research, and extramural speech. Furthermore, nothing in this document shall be interpreted to prohibit bona fide academic requirements for a specific Southeastern program or activity. When investigating complaints that a party or the Title IX Coordinator/Deputy believes may involve issues of academic freedom, the Title IX Coordinator/Deputy will consult with the Chief Academic Officer with respect to contemporary academic practices and standards.
Southeastern will retain documentation (including but not limited to any Formal Complaint, notifications, transcripts of interviews, investigative report, written findings of fact, petitions for appeal, notifications of decisions (including the final outcome letter), audio recordings of hearings, and written communication between the parties), for no less than seven years.
Consolidation of Formal Complaints
Southeastern may consolidate Formal Complaints as to allegations of Sexual Harassment against more than one Respondent, 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 a grievance process involves more than one Complainant or more than one Respondent, references in these Grievance Procedures to the singular “party,” “Complainant,” or “Respondent” include the plural, as applicable.
Violations Involving Groups of Individuals
Members of a student group, an organization, or a team, or individuals collusively acting in concert to commit Sexual Harassment may be investigated as a group and/or as individuals as appropriate given the circumstances and available information.
A student group, an organization, or a team’s officers and membership may be held collectively and individually responsible when Sexual Harassment by the organization or its members: (1) occurred at organization‐sponsored events; (2) received the consent or encouragement of the organization or of the organization’s leaders or officers; or (3) were known or reasonably should have been known to the membership or its officers.
In any such action, individual determinations as to responsibility will be made and sanctions may be assigned collectively and/or individually in proportion to the involvement of each individual.
Individuals with Disabilities
Southeastern will make arrangements to ensure that individuals with disabilities are provided appropriate accommodations, to the extent necessary and available, to participate in these Grievance Procedures. Student requests for accommodation must be made to Student Services ADA Coordinator. All other requests for accommodation must be made to Human Resources Department.
Appointment of Investigators and Challenging of the Same
Unless a Formal Complaint is dismissed or the parties elect to participate in informal resolution, the Title IX Coordinator/Deputy will promptly appoint two investigators. These investigators may be Southeastern employees, non-employees, or a combination of the two. The Title IX Coordinator/Deputy will contemporaneously share their names and contact information with the Complainant and the Respondent and also will forward a copy of the Formal Complaint to the investigators.
Within two business days of such appointment, the investigators, the Complainant, or the Respondent may identify to the Title IX Coordinator/Deputy in writing alleged conflicts of interest posed by the assigned investigators. The Title IX Coordinator/Deputy will carefully consider such statements and will promptly assign different investigators if the Title IX Coordinator/Deputy determines that a material conflict of interest exists.
The Investigators’ Activities
Upon receipt of the Formal Complaint, the investigators will promptly begin their investigation, taking such steps as interviewing the Complainant, the Respondent, and witnesses (including expert witnesses, where applicable); summarizing such interviews in writing; collecting and reviewing relevant documents; visiting, inspecting, and taking or reviewing photographs of relevant sites; and collecting and reviewing other relevant evidence.
The Investigative Report and Evidence Review
The investigators will prepare a written investigative report that fairly summarizes relevant evidence and includes items such as the Formal Complaint, written statements of position, summaries or transcripts of all interviews conducted, photographs, descriptions of relevant evidence, and summaries or copies of relevant electronic records.
Prior to the finalization of the investigative report, the investigators will provide each party and each party’s advisor the opportunity to inspect and review any evidence obtained during the investigation that is directly related to the allegations raised in the Formal Complaint, including (1) any evidence upon which Southeastern does not intend to rely in reaching a determination regarding responsibility; and (2) both inculpatory and exculpatory evidence.
The parties have ten calendar days from the time that the investigators provide them access to such evidence to submit to the investigators a written response to the evidence. In the response, the parties may address the relevancy of any evidence that the parties believe should be included in or excluded from the investigative report and may also address any further investigation activities or questions that they believe are necessary. If a party wishes to submit additional evidence at this stage, they should explain how the evidence is relevant and why it was not previously provided.
The investigators will review and consider the parties’ written submissions and will conduct additional investigative activities as appropriate prior to finalizing the investigative report. The need for additional investigative activities may result in a delay or extension to the timelines set forth in these Grievance Procedures.
At least ten days prior to the hearing, the investigators will make the finalized investigative report available to both parties and their advisors.
Due to the sensitive nature of the investigative report, neither the parties nor their advisors may copy, remove, photograph, print, image, record or in any other manner duplicate the report. Parties who violate these restrictions may be disciplined, and advisors who violate these restrictions may be disciplined and/or be barred from further participation in the grievance process.
Nothing in this document restricts the ability of either party to discuss the allegations under investigation or to gather, preserve, and/or present relevant evidence.
Submission of Evidence; Expert Witnesses
Any evidence that the parties wish for the hearing officer to consider should be presented to the investigators as early as possible during the investigation process. Evidence that is not submitted in a timely manner and prior to finalization of the investigative report may be excluded from the hearing at the discretion of the hearing officer.
Similarly, all relevant witnesses should be identified to the investigators as early as possible during the investigation. The hearing officer generally will not call or consider written statements from witnesses who were not identified to investigators and interviewed during the investigation. However, in their discretion and for good cause, the hearing officer may choose to consider information from witnesses who were not interviewed during the investigation.
Any party who wishes to present testimony from an expert witness should identify that witness by providing the witness’s name, contact information and a summary of (1) the witness’s qualifications to offer expert testimony; and (2) any opinions the witness expects to offer related to the allegations or evidence. Any evidence upon which the witness relies must be provided to the investigators and will be made available to the other party and their advisor, as well as to any expert witness the other party has identified. This information must be provided as early as possible in the investigation and in no event later than finalization of the investigative report. Upon the request of Southeastern, the parties must make any expert witnesses available to be interviewed by investigators and to testify at the hearing. If an expert witness is not available to provide live testimony at the hearing, the hearing officer must disregard any information submitted by that expert.
Southeastern will not access, consider, disclose, or otherwise use in a grievance process any of a party’s treatment records that are maintained by a physician, psychiatrist, psychologist or other recognized professional or paraprofessional acting in their professional/paraprofessional capacity unless the party provides voluntary, written consent.
HEARING AND APPEALS
Respondent’s Acknowledgement of Responsibility
If, at any time prior to a responsibility determination by the hearing officer, a Respondent accepts responsibility for the allegations, and if the Title IX Coordinator/Deputy determines that the matter is appropriate for informal resolution, the Title IX Coordinator/Deputy will ask both parties if they wish to suspend the formal resolution process and engage in an informal resolution process to resolve the allegations without a hearing.
If both parties wish to engage in the informal resolution process, the Title IX Coordinator/Deputy will propose sanction(s) for the Respondent. If the Complainant and the Respondent agree in writing to such proposed sanctions(s), then the Formal Complaint will be resolved without a hearing and without any further rights of appeal by any party.
If either the Complainant or the Respondent objects to such proposed sanction(s), then the hearing officer will determine sanctions, which are subject to appeal as set forth below.
The Formal Resolution Process
Unless a Formal Complaint is dismissed or the parties elect to participate in informal resolution pursuant to section 2.D.01 below, following the investigation the appointed hearing officer will conduct a hearing in which they may question the Complainant, the Respondent, and any witnesses whose testimony the hearing officer deems relevant. During the hearing, the hearing officer and the parties may also question the investigators as necessary to clarify information provided in the investigative report.
Appointment of the Hearing Officer and Challenging of the Same
The Title IX Coordinator/Deputy will appoint a hearing officer, who will administer the hearing, serve as the decision-maker regarding responsibility, and (as applicable) recommend sanctions. The hearing officer may be a Southeastern employee or non-employee. The Title IX Coordinator/Deputy will contemporaneously share the hearing officer’s name and contact information with the Complainant and the Respondent and also will forward the Formal Complaint, investigative report, and other relevant materials to the hearing officer.
Within two business days of such appointment, the hearing officer, the Complainant, or the Respondent may identify to the Title IX Coordinator/Deputy in writing alleged conflicts of interest posed by assigning that particular hearing officer. The Title IX Coordinator/Deputy will carefully consider such statements and will promptly assign a different hearing officer if the Title IX Coordinator/Deputy determines that a material conflict of interest exists.
Notice of the Hearing
Promptly after the appointment of the hearing officer and no less than ten calendar days prior to the hearing, the hearing officer will provide concurrent written notice to the Complainant and the Respondent setting forth the date, time, and location of the hearing. Any modifications to the hearing date, time, or location will be provided in writing to both parties prior to the date of the hearing.
Each party may submit a written statement to the hearing officer at least five business days prior to the hearing. This statement may address any evidence in the investigative report that the party believes the hearing officer should exclude as irrelevant and/or any evidence not in the investigative report that the party believes the hearing officer should consider relevant. The hearing officer will share the statement with the other party, who may submit a response within two business days.
The hearing officer will review the parties’ submissions and will determine whether particular evidence should be excluded or included at the hearing. Parties should not attempt to introduce at the hearing any evidence that the hearing officer determined is not relevant, and the hearing officer will not consider any such evidence in making their responsibility determination and/or sanctions recommendation.
Failure to Appear
If the Complainant and/or the Respondent fails to appear at the hearing and was provided proper notice of the hearing as set forth above, then absent extenuating circumstances the hearing officer will proceed with the hearing and issuance of their responsibility determination and, as applicable, sanction recommendation.
No Contact Outside of the Hearing
The Complainant and the Respondent may not contact each other outside of the hearing, even to discuss the hearing, and neither party may communicate with the hearing officer regarding matters germane to the hearing outside of the hearing, except as expressly provided herein.
Formal rules of evidence will not be observed during the hearing.
Evidence of and questions about the Complainant’s sexual predisposition or prior sexual behavior are not relevant and will not be permitted at the hearing, with the following exceptions: (1) if the questions and evidence about the Complainant’s prior sexual behavior are offered to prove that someone other than the Respondent committed the conduct alleged by the Complainant; or (2) if the questions and evidence concern specific incidents of the Complainant’s prior sexual behavior with respect to the Respondent and are offered to prove Consent.
Evidence regarding the past sexual activity of the Respondent (regardless of whether the Respondent was formally investigated or found responsible for such conduct) may be permitted to show that the Respondent has engaged in a pattern of behavior similar to the alleged Sexual Harassment at issue before the hearing officer, provided that (1) the Respondent has not been found “not responsible” by Southeastern in a proceeding related to such conduct; and (2) the hearing officer has found both that the evidence is reliable and trustworthy and that the conduct is sufficiently and substantially similar to the conduct at issue before the hearing officer to suggest a pattern of behavior.
Character evidence is generally not relevant or admissible.
Questions and/or evidence that constitute or seek disclosure of information protected under a legally recognized privilege are not permitted, unless the person holding the privilege has waived the privilege in writing.
Southeastern will make the evidence that the investigators provided to the parties for their review and inspection prior to finalization of the investigative report available at the hearing to give each party equal opportunity to refer to such evidence during the hearing, including for purposes of cross-examination.
Conduct of the Hearing and Questioning of Witnesses and Parties
The hearing will be conducted with parties in separate rooms, using technology to ensure that each party can see and hear any party or witness answering questions. At the discretion of the hearing officer, the hearing may be conducted partially or entirely remotely, with any or all participants participating virtually.
The Complainant and the Respondent will have equal opportunity to address the hearing officer, if desired, and both the hearing officer and the parties’ advisors will have the opportunity to question the other party and any witnesses, including investigators and expert witnesses. The hearing officer will first ask any questions of each party and each witness through direct examination. After the hearing officer has completed direct examination, the advisor for each party will have an opportunity to conduct a cross-examination of the other party and/or the witnesses. Any questions that a party has for a witness or the other party must be posed by the party’s advisor. A party’s advisor will not have the opportunity to question the party for whom they serve as advisor.
Before a party or witness answers a cross-examination question, the hearing officer will determine whether the question is relevant and allowed under these Grievance Procedures. For example, the hearing officer may exclude as not relevant duplicative questions or questions posed solely to harass a witness or the other party. The hearing officer will explain any decision to exclude a question.
If a party does not have an advisor present at the hearing, Southeastern will provide an advisor, at no cost to the party, to conduct cross-examination on behalf of that party.
Leading up to and during the hearing, the hearing officer will be responsible for resolving any procedural questions and questions regarding the admission of evidence or testimony.
Members of the Southeastern community are expected to provide truthful testimony, and any member of the Southeastern community providing false information during this process is subject to discipline.
Refusal to Testify or Submit to Cross-Examination
The Respondent and/or the Complainant may choose not to testify at the hearing; however, the exercise of that option will not preclude the hearing officer from making their responsibility determination and, as applicable, sanction recommendation regarding the Formal Complaint. Also, if a party or witness does not submit to cross-examination at the hearing, the hearing officer will not rely on any statement of that party or witness in reaching a determination regarding responsibility or, as applicable, recommendation regarding sanctions. The hearing officer will not draw an inference regarding responsibility or sanctions based solely on a party’s or witness’ absence from the hearing or refusal to testify or submit to cross-examination.
Southeastern will record the hearing. This recording will be the only recording permitted of the proceedings and will be the property of Southeastern. The parties and the appellate officer may use the recording as part of the appeal process. Reasonable care will be taken to ensure a quality recording; however, technological problems that result in no recording or in an inaudible one will not affect the validity of the outcome of a hearing.
The Decision of the Hearing Officer Regarding Responsibility
Following the hearing, the hearing officer will determine whether the evidence establishes that it is more likely than not that the Respondent committed Sexual Harassment. The hearing officer will render a finding of “Responsible” or “Not Responsible” and will provide the rationale for the decision. If the Respondent is found “Responsible,” the hearing officer will specify the specific type(s) of Sexual Harassment for which the Respondent is found “Responsible” (for example, Sexual Assault, Stalking, etc.). When feasible, the hearing officer will orally communicate the finding of “Responsible” or “Not Responsible” to the parties on the day of or day following the hearing. Additional information regarding the decision, including the rationale and sanctions (if applicable) will be communicated in the final outcome letter (as described below).
The Recommendation of the Hearing Officer Regarding Sanctions
If the hearing officer determines that the Respondent is “Responsible,” they will recommend appropriate sanctions to be imposed on the Respondent.
Sanctions following a finding of responsibility depend upon the nature and gravity of the misconduct, any record of prior discipline, or both. Sanctions may include, but are not limited to, withholding a promotion or pay increase, reassigning employment, terminating employment, temporary suspension without pay, compensation adjustments, expulsion or suspension from Southeastern, disciplinary probation, social restrictions, expulsion or suspension from campus housing, suspension or revocation of admission, suspension or revocation of degree, written warning, mandated counseling, completion of an intervention program, completion of violence risk assessment, parental notification, and/or education sanctions (such as community service, reflection paper(s), and/or fines) as deemed appropriate by the hearing officer.
In recommending sanctions, the hearing officer will consider whether a sanction will (a) bring an end to, prevent a recurrence of, and remedy the effects of the Sexual Harassment. The hearing officer also will consider the impact of separating a student from their education. The hearing officer may consider any prior disciplinary history of a Respondent in determining appropriate sanctions. In addition, the hearing officer may consider aggravating or mitigating factors. The appropriate sanctions for Sexual Assault generally will include at a minimum a period of separation from Southeastern.
Review of Sanctions
The hearing officer will forward their sanctions recommendation to the Title IX Deputy (in cases involving student Respondents), Title IX Coordinator (in cases involving faculty and staff Respondents). These individuals will either adopt the sanctions as recommended or make any changes deemed necessary to ensure that the sanctions are appropriate and consistent with those issued in similar cases.
Implementation of Sanctions
Sanctions generally are effective immediately upon issuance of the final outcome letter described below. However, if necessary to protect the welfare of the Complainant, Respondent, or Southeastern community, the hearing officer may recommend and/or the Title IX Coordinator/Deputy may determine that any sanctions are effective at any time after the conclusion of the hearing and continue in effect until the issuance of the final outcome letter.
Final Outcome Letter
Within seven business days after the hearing, the Title IX Coordinator/Deputy will issue a final outcome letter concurrently to the Respondent and Complainant.
The final outcome letter will (1) name the Respondent; (2) identify the allegations potentially constituting Sexual Harassment; (3) describe procedural steps taken from the filing of the Formal Complainant through the determination; (4) provide findings of fact in support of the hearing officer’s determination; and (5) provide a statement of rationale for the result as to each allegation, including the responsibility determination and any sanctions.
The Complainant or the Respondent may appeal the decision of the hearing officer and/or the sanction(s) imposed on the Respondent.
The following are the only permissible grounds for an appeal of the hearing officer’s responsibility determination: (1) procedural irregularity that affected the outcome; (2) new evidence that was not reasonably available at the time of the determination and that could affect the outcome; and (3) the Title IX Coordinator/Deputy, an investigator, or the hearing officer had a conflict of interest or bias that affected the outcome.
Sanctions may only be appealed on the ground that the severity is incommensurate to the gravity of the Sexual Harassment for which the Respondent was found responsible.
Appeals must be submitted in writing to the Title IX Coordinator/Deputy within seven calendar days from the date of the final outcome letter. A party wishing to appeal may request and receive access to the recording of the hearing. The Title IX Coordinator/Deputy will promptly inform the other party of the filing of the appeal. The other party will have three business days from such notification to submit a written response to the appeal.
Appointment of the Appellate Officer and Challenging of the Same
The Title IX Coordinator/Deputy will review the appeal to determine whether it meets the permissible grounds for appeal. If it does, the Title IX Coordinator/Deputy, in consultation with the Chief Academic Officer (if the Formal Complaint involves students), and/or the appropriate Vice President (if the Formal Complaint involves faculty or staff) will appoint an appellate officer.
Within two business days of such appointment, the appellate officer, the Complainant, or the Respondent may identify to the Title IX Coordinator/Deputy in writing alleged conflicts of interest posed by assigning that appellate officer. The Title IX Coordinator/Deputy will carefully consider such statements and will promptly assign a different appellate officer if the Title IX Coordinator/Deputy determines that a material conflict of interest exists.
The Title IX Coordinator/Deputy will share the Formal Complaint, the investigative report, the hearing recording, all statements introduced at the hearing, any other evidence considered by the hearing officer, the hearing officer’s written findings, and the written appeal submissions with the appellate officer. In addition, if an appeal raises procedural issues, the Title IX Coordinator/Deputy may provide the appellate officer additional information relevant to those issues.
Within ten business days of the receipt of the appeal (or as soon as is reasonably practicable), the appellate officer will determine (a) that the decision of the hearing officer should stand; or (b) that the decision of the hearing officer should be overturned.
In the event that the appellate officer determines that the decision of the hearing officer should be overturned, the appellate officer will specify, after consultation with the Title IX Coordinator/Deputy and other Southeastern administrators as necessary, the appropriate steps to be taken to come to a final resolution of the Formal Complaint (which may include another hearing before the same hearing officer or a different one). The Title IX Coordinator/Deputy will notify the Complainant and the Respondent of the appellate officer’s decision concurrently and in writing.
Determination of Formal Versus Informal Resolution
At any time before the issuance of the hearing officer’s responsibility determination, the Complainant may elect to resolve their Formal Complaint through the informal resolution process, provided that (1) the parties both voluntarily consent in writing to such resolution; (2) both parties are students or employees of Southeastern; and (3) the Title IX Coordinator/Deputy determines that informal resolution is an appropriate mechanism for resolving that specific Formal Complaint. Otherwise, a Formal Complaint that is not dismissed will proceed to a hearing.
Informal resolution may not be selected for less than all of the misconduct alleged in the Formal Complaint. If the parties agree to informal resolution (and informal resolution is appropriate for all of the allegations at issue), then all of the allegations must be resolved according to the informal resolution process.
Either party has the right to terminate the informal resolution process at any time and proceed with formal resolution (i.e., a full investigation and hearing). Furthermore, the Title IX Coordinator/Deputy may, where appropriate, terminate informal resolution and proceed with the formal resolution process instead.
Notice of Allegations and Notice of Informal Resolution and Facilitator
The Title IX Coordinator/Deputy will provide the parties a written notice disclosing the Formal Complaint’s allegations and the requirements of the facilitated resolution process, including any circumstances under which Southeastern would preclude the parties from resuming a Formal Complaint arising from the same allegations.
When the Formal Complaint is to be resolved according to the informal resolution process, the Title IX Coordinator/Deputy will designate a trained individual to serve as the informal resolution facilitator. The Title IX Coordinator/Deputy will contemporaneously share the name of the informal resolution facilitator with the Complainant and the Respondent.
Within two business days of such notification, the Complainant or Respondent may identify to the Title IX Coordinator/Deputy in writing alleged conflicts of interest posed by assigning that facilitator. The Title IX Coordinator/Deputy will carefully consider such statements and will promptly assign a different facilitator if the Title IX Coordinator/Deputy determines that a material conflict of interest exists.
The informal resolution facilitator will meet separately with each party to review the informal resolution process and the allegations in the Formal Complaint and to identify the outcome that each party seeks from the informal resolution process. The resolution facilitator will then provide written notice to the Complainant and the Respondent setting forth the date, time, and location of the facilitated resolution meeting. At the request of either party or at the discretion of the informal resolution facilitator, the meeting may occur with the parties in different locations or meetings with parties may take place on different dates.
Both the Complainant and the Respondent are expected to participate in the facilitated resolution meeting. If either party fails to participate, the Title IX Coordinator/Deputy may direct that the Formal Complaint be resolved using to the formal resolution process or may reschedule the meeting.
The Facilitated Resolution Meeting
During the facilitated resolution meeting, the parties may: (1) engage one another in the presence of, and/or facilitated by, the informal resolution facilitator; (2) communicate their feelings and perceptions regarding the incident and the impact of the incident (either by communicating directly with one another or by communicating indirectly through the informal resolution facilitator); (3) relay their wishes and expectations regarding the future; and/or (4) come to an agreed-upon resolution of the allegations in the Formal Complaint.
Participation in the informal resolution process is completely voluntary, and either party, the informal resolution facilitator, or the Title IX Coordinator/Deputy may terminate the process at any time.
The informal resolution facilitator will attempt to facilitate the parties’ resolution of the Formal Complaint. If this process results in a resolution between the parties and the Title IX Coordinator/Deputy finds the resolution to be appropriate under the circumstances (giving consideration to factors including the extent to which the resolution will protect the safety of the Complainant and the entire Southeastern community), the resolution will be reduced to writing, which will conclude the process and close the Formal Complaint.
Written Resolution Agreement
To be effective, any agreement reached during the informal resolution process must be memorialized in writing and signed by the parties, the informal resolution facilitator, and the Title IX Coordinator/Deputy. If a Respondent completes all measures agreed to in the written resolution agreement, no further process is available with regard to the allegations in the Formal Complaint.
Measures that parties agree to in the informal resolution process may include (but are not limited to):
Termination of Informal Resolution Process
At any time prior to completing a written resolution agreement, any party has the right to withdraw from the informal resolution process and resume the grievance process with respect to the Formal Complaint. If either party terminates the informal resolution process or Southeastern determines that the informal resolution process is no longer appropriate, the formal resolution process outlined above will promptly commence.
Confidentiality of Information Shared
Any information that the parties share during the informal resolution process may not be used in any other investigation or proceeding at Southeastern.
The informal resolution process generally will be completed within thirty calendar days of the parties’ agreement to the informal resolution process.
A resolution reached pursuant to the informal resolution process is final and not subject to appeal.
For the avoidance of doubt, a resolution reached through the informal resolution process will not be included in a student Respondent’s student conduct record or in an employee Respondent’s personnel record, unless the inclusion of such information is agreed to as part of the informal resolution of the matter. The Title IX Coordinator/Deputy will retain a record of the written resolution agreement for no less than seven years.
Reviewed and Updated on August 24, 2020
Suggested Actions for People Who Have Experienced Sexual Harassment
If you have experienced Sexual Harassment, Southeastern’s first priority is to help you take steps to address your safety, medical needs and emotional well‐being. You are encouraged to take the following actions, as applicable, regardless of whether you have made a decision about whether to pursue a criminal or Southeastern complaint.
Adopted: August 24, 2020