Title IX and Sexual Harassment Policy
Title IX Coordinators
Title IX Coordinator
Title IX Deputy Coordinator
Title IX Coordinator
Title IX Deputy Coordinator
Consistent with its Non-Discrimination and Equal Employment Opportunity Notice 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.), Whitworth University (the "university") prohibits Sexual Harassment that occurs within its education programs and activities.
As further defined herein, Sexual Harassment includes Quid Pro Quo Sexual Harassment, Hostile Environment Sexual Harassment, Sexual Assault, Domestic Violence, Dating Violence and Stalking.
Administrators, faculty members, staff, students, contractors, guests and other members of the university community who commit Sexual Harassment are subject to the full range of university discipline including verbal reprimand; written reprimand; mandatory training, coaching or counseling; mandatory monitoring; partial or full probation; partial or full suspension; fines; permanent separation from the institution (i.e., termination or dismissal); physical restriction from university property; cancellation of contracts; and any combination of the same.
The university will provide persons who have experienced Sexual Harassment ongoing supportive measures as reasonably necessary to restore or preserve access to the university's education programs and activities.
This policy applies to Sexual Harassment that occurs within the university's Education Programs and Activities and that is committed by an administrator, faculty member, staff, student, contractor, guest or other member of the university's 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 the Student Code of Conduct, the Faculty Handbook, Employee Handbook, and other university policies and standards, as applicable, including the Non-Discrimination and Equal Opportunity Policy and Complaint Resolution Procedure.
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, such as a study abroad program. Sexual Harassment that occurs outside the geographic boundaries of the United States is governed by the Student Code of Conduct, the Faculty Handbook, Employee Handbook, and other university policies and standards, as applicable, including the Non-Discrimination and Equal Opportunity Policy and Complaint Resolution Procedure.
A. "Sexual Harassment" 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" is an employee of the university conditioning the provision of an 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 Hostile Environment Sexual Harassment 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. A person's adverse subjective reaction to conduct is not sufficient, in and of itself, to establish the existence of a hostile environment.
Hostile Environment Sexual Harassment may include, but is not limited to:
D. "Sexual Assault" includes the sex offenses of Rape, Fondling, Incest and Statutory Rape.
E. "Dating Violence" is violence committed by a person –
F. "Stalking" is engaging in a course of conduct directed at a specific person that would cause a reasonable person to:
G. "Consent" is a verbal "YES" and refers to words or actions that a reasonable person in the perspective of the Respondent would understand as unambiguous permission to engage in the sexual conduct at issue. A person who is Incapacitated is not capable of giving Consent. A person who is below the statutory age of consent is not capable of giving Consent. Consent must be given voluntarily. It cannot be procured through physical violence, threats, blackmail or other unreasonable pressure for sexual activity. Consent to some form of sexual activity cannot be automatically taken as consent to any other form of sexual activity. Previous relationships or prior consent do not imply consent to future sexual acts. In order to give effective consent, a person must be of legal age.
H. "Incapacitated" refers to the state where a person does not appreciate the nature or fact of sexual activity due to the effect of drugs or alcohol consumption, medical condition or disability, or due to a state of unconsciousness or sleep. In other words, the person is unable to understand the "who, what, when, where, why and how" of their sexual interaction and, as a result, cannot give effective consent. Incapacitation is something beyond mere drunkenness or intoxication. No single factor is determinative of incapacitation. 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.
I. "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.
J. "Complainant" means an individual who is alleged to be the victim of conduct that could constitute Sexual Harassment.
K. "Respondent" means an individual who has been reported to be the perpetrator of conduct that could constitute Sexual Harassment.
L. "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. If a Formal Complaint is filed by the Complainant, at the time of filing the Formal Complaint, the 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.
M. "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.
N. "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.
O. "Restorative Practice" means a practice relating to a specific harm that
P. Violence Against Women Act (VAWA)
"Domestic Violence" includes felony or misdemeanor crimes committed by a current or former spouse or intimate partner of the victim under the family or domestic violence laws of the jurisdiction receiving grant funding and, in the case of victim services, includes the use or attempted use of physical abuse or sexual abuse, or a pattern of any other coercive behavior committed, enabled, or solicited to gain or maintain power and control over a victim, including verbal, psychological, economic, or technological abuse that may or may not constitute criminal behavior, by a person who:
"Economic Abuse" in the context of domestic violence [and] dating violence means behavior that is coercive, deceptive, or unreasonably controls or restrains a person’s ability to acquire, use, or maintain economic resources to which they are entitled, including using coercion, fraud, or manipulation to
A. Title IX Coordinator
Any person may report Sexual Harassment to the Title IX coordinator. Reports may be made in person, by regular mail, telephone, electronic mail, 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.
The name and contact information for the Title IX coordinator is:
B. University Reporting Officials
In addition to reporting to the Title IX coordinator, any person may report Sexual Harassment to any university employee with managerial authority over the university as a whole, or an academic or operational unit of the university (collectively "Mandatory Reporters") who must promptly forward such a report of Sexual Harassment directly to the Title IX coordinator.
C. Online Reporting System (Including Anonymous Reporting)
Persons may also use the university's online reporting system to report Sexual Harassment, which will generate a report that is sent directly to the Title IX coordinator. A person wishing to report anonymously can do so through the online reporting system. While the university will accept anonymous reports, they are not preferred because it is often difficult to gather sufficient information without the identity of the reporting party.
D. U.S. Department of Education
Persons may also file a complaint of Sexual Harassment with the United States Department of Education’s Office for Civil Rights regarding an alleged violation of Title IX by visiting www2.ed.gov/about/offices/list/ocr/complaintintro.html or by calling 1-800-421-3481.
E. Confidential Options
A student who wishes to have a confidential conversation about Sexual Harassment should contact the counseling center at 509.777.3259, the health center at 509.777.3259 or spiritual life at 509.777.4568. An employee who wishes to have a confidential conversation about Sexual Harassment should contact the Employee Assistance Program by calling 1.800.523.5668.
F. Community-Based Support and Advocacy Groups
Contact information for various community-based support and advocacy groups is available from the Title IX coordinator upon request. These outside groups are not required to report Sexual Harassment to the Title IX coordinator.
If you believe you are the victim of Sexual Assault, Domestic Violence or Dating Violence, do everything possible to preserve evidence by making certain that the crime scene is not disturbed. Preservation of evidence may be necessary for proof of the crime or in obtaining a protection order. For those who believe that they are victims of Sexual Assault, Domestic Violence or Dating Violence, the university recommends the following:
It is also important to take steps to preserve evidence in cases of Stalking, to the extent such evidence exists. Such evidence is more likely to be in the form of letters, emails, text messages, etc., rather than evidence of physical contact and violence. This type of non-physical evidence will also be useful in all types of Sexual Harassment investigations.
Once a report of Sexual Assault, Domestic Violence, Dating Violence or Stalking is made, the victim has several options such as, but not limited to:
Upon receipt of a report, the Title IX coordinator will conduct a preliminary assessment to determine:
If the Title IX coordinator determines that the conduct reported could not fall within the scope of the 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, for resolution under other applicable policies and standards.
If the Title IX coordinator determines that the conduct reported could fall within the scope of the policy, and/or could constitute Sexual Harassment, if investigated, the Title IX coordinator will proceed to contact the Complainant as specified in Section VII.
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.
If a report is not closed as a result of the preliminary assessment specified in Section VI and the Complainant's identity is known, the Title IX coordinator will promptly contact the Complainant to discuss the availability of Supportive Measures specified in Section VIII; to discuss and consider the Complainant's wishes with respect to such Supportive Measures; to inform the Complainant of the availability of such Supportive Measures with or without filing a Formal Complaint; and to explain the process for filing and pursuing a Formal Complaint.
If a report is not closed as a result of the preliminary assessment specified in Section VI, the university will offer and make available Supportive Measures to the Complainant regardless of whether the Complainant elects to file a Formal Complaint.
Contemporaneously with the Respondent being notified of a Formal Complaint specified in Section XIII, the Title IX coordinator will notify the Respondent of the availability of Supportive Measures for the Respondent, and 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.
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.
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 meet with the Respondent within twenty-four hours and 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 specified in Sections XIV and XVI.
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.
Where the conduct referenced in a report of Sexual Harassment could constitute a violation of some other applicable policy or standard, irrespective of whether it constitutes Sexual Harassment, this Section IX shall in no way constrain the university's ability to take interim measures under the Student Code of Conduct, the Faculty Handbook, Employee Handbook, and other university policies and standards, as applicable, including the Non-Discrimination and Equal Opportunity Policy and Complaint Resolution Procedure.
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 the provisions of Sections XIV and XVI. 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 IV above.
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.
If the Complainant or the Title IX coordinator files a Formal Complaint, then the university will commence an investigation as specified in Section XIV and proceed to adjudicate the matter as specified in Section XVI.
In a case where the Title IX coordinator files a Formal Complaint, the Title IX coordinator will not act as a Complainant or otherwise as a party for purposes of the investigation and adjudication processes specified in Sections XIV and XVI.
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. A Formal Complaint of Retaliation may be consolidated with a Formal Complaint of Sexual Harassment as specified in Section XXX.
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:
In the event the Title IX coordinator determines the Formal Complaint should be dismissed pursuant to this Section XII, the Title IX coordinator will provide written notice of dismissal to the parties and advise them of their right to appeal as specified in Section XVIII. The Title IX coordinator may refer the subject matter of the Formal Complaint to other university offices, as appropriate.
Within five (5) 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:
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.
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, specified in Section XIV.E, that will be submitted to the adjudicator during the selected adjudication process.
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, or if the witnesses are offered to render testimony that is categorically inadmissible, such as testimony concerning sexual history of the Complainant, as specified in Section XXI. 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. 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 be determined by the investigator in the investigator's sole discretion, although whatever method is chosen shall be used consistently throughout a particular investigation.
D. Access to the 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, evidence obtained up to that point 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. Thereafter, the parties will have ten (10) days in which to submit to the investigator a written response, which the investigator will consider prior to completing the investigation report.
E. Investigation Report
After the period for the parties to provide any written response as specified in Section XIV.D 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.
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 two different adjudication processes specified in Section XVI. The notice will explain that the hearing process specified in Section XVI.A is the default process for adjudicating all Formal Complaints and will be utilized unless both parties voluntarily consent to administrative adjudication as specified in Section XVI.B as a form of informal resolution. The notice will be accompanied by a written consent to administrative adjudication and will advise each party that, if both parties execute the written consent to administrative adjudication, then the administrative adjudication process will be used in in lieu of the hearing process. Parties are urged to carefully review this policy (including the entirety of Section XVI), consult with their advisor, and consult with other persons as they deem appropriate (including an attorney) prior to consenting to administrative adjudication.
Each party will have three (3) days from transmittal of the notice specified in this Section XV to return the signed written consent form to the Title IX coordinator. If either party does not timely return the signed written consent, that party will be deemed not to have consented to administrative adjudication and the Formal Complaint will be adjudicated pursuant to the hearing process.
A. Hearing Process
The default process for adjudicating Formal Complaints is the hearing process specified in this Section XVI.A. The hearing process will be used to adjudicate all Formal Complaints unless both parties' timely consent to administrative adjudication as specified in Section XV above.
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 as specified in Section XIV.D.
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 (10) days from the date of transmittal of the written notice specified in this Section XVI.A.2.
A party's written response to the investigation report must include:
A party's written response to the investigation report may also include:
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, provided, however, that a party may request, and the hearing officer may determine in their own discretion, to conduct the pre-hearing conference by way of proximate, separate meetings with each respective party and the party's advisor. By default, the pre-hearing conference will 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 request the subject to appear at the hearing at the specified date and time 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 has no authority to compel the attendance of any witness who is not an employee or a student, and a notice of attendance will not be issued to any such individual.
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 or video recorded. The 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.
In the hearing officer's discretion, the hearing may 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:
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 pursuant to Section XIV.D.
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 XVI.A.5, 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 rationale for any evidentiary rulings.
The hearing officer will have discretion to modify the Hearing Procedures, when good cause exists to do so, and provided the minimal requirements specified in this Section XVI.A.5 are met.
The hearing is not a formal judicial proceeding and strict rules of evidence do not apply.
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.
In applying this Section XVI.A.6, 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.
7. 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 by operation of Section XVI.A.6. 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.
8. Discipline and Remedies
In the event the hearing officer determines that the Respondent is responsible for violating this policy, the hearing officer 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 officer 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.
9. Potential Consequences and Sanctions
Student members of the Whitworth community who are found responsible for violating a Whitworth policy are subject to disciplinary sanctions. Actual consequences may vary, depending upon the severity of the behavior and the previous conduct of the student. A range of sanctions is listed below.
10. Written Decision
After reaching a determination and consulting with the Title IX coordinator as required by Section XVI.A.8, the hearing officer will prepare a written decision that will include:
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 as specified in Section XVIII.
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 fourteen (14) days of the conclusion of the hearing.
B. Administrative Adjudication (Optional)
In lieu of the hearing process, the parties may consent to have a Formal Complaint resolved by administrative adjudication as a form of informal resolution. Administrative adjudication is voluntary and must be consented to in writing by both parties and approved by the Title IX coordinator as specified in Section XV.
If administrative adjudication is selected, the Title IX coordinator will appoint an administrative officer. The Title IX coordinator will see that the administrative officer is provided a copy of the investigation report and a copy of all the evidence transmitted to the parties by the investigator as specified in Section XIV.D.
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 (10) 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:
After reviewing the parties' written responses, the administrative officer will meet separately with each party to provide the party with an opportunity to 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 reevaluate 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, in the manner specified in Section XVI.A.8 and will prepare and transmit a written decision in the manner as specified in Section XVI.A.9 which shall serve as a resolution for purposes of informal resolution.
Transmittal of the administrative officer's written determination concludes the administrative adjudication, subject to any right of appeal as specified in Section XVIII.
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 twenty-one (21) days of the transmittal of the initiating written notice specified in this Section XVI.B.
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 university shall 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:
In the event the Title IX coordinator determines that a Formal Complaint should be dismissed pursuant to this Section XVII the Title IX coordinator will provide written notice of dismissal to the parties and advise them of their right to appeal as specified in Section XVIII. The Title IX coordinator may refer the subject matter of the Formal Complaint to other university offices, as appropriate.
Either party may appeal the determination of an adjudication, or a dismissal of a Formal Complaint, on one or more of the following grounds:
No other grounds for appeal are permitted.
A party must file an appeal within seven (7) days of the date they receive notice of dismissal or determination appealed from or, if the other party appeals, within thee (3) days of the other party appealing, whichever is later.
The appeal must be submitted in writing to the Title IX coordinator who will refer it to 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.
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 (7) 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.
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.
Except for the questioning of witnesses during the hearing specified in Section XVI.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 XIX and Section XVI.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 XVI.A.5, 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 university is not required to provide a party with an advisor in any circumstance except where the party does not have an advisor present at the hearing specified in Section XVI.A.5.
During the investigation and adjudication processes, the investigator and adjudicator, as the case may be, are not permitted to access, consider, disclose, permit questioning concerning or otherwise use:
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, as the case may be, may consider any such records or information otherwise covered by this Section XX if the party holding the privilege affirmatively discloses the records or information to support their allegation or defense, as the case may be.
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 XXI for the purpose of supporting the Complainant's allegations, may be deemed to have waived the protections of this Section XXI.
At any time after the parties are provided written notice of the Formal Complaint as specified in Section XIII, and before the completion of any appeal specified in Section XVIII, 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 as specified in Section XVI.B 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:
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.
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.
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 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 as specified in Section XVI.B, 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 specified in Section XVI.B, all other forms of informal resolution pursuant to this Section XXII are not subject to appeal.
A party may withdraw their consent to participate in informal resolution at any time before a resolution has been finalized.
Absent extension by the Title IX coordinator, any informal resolution process must be completed within twenty-one (21) days. If an informal resolution process does not result in a resolution within twenty-one (21), 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.
Other language in this Section XXII notwithstanding, informal resolution will not be permitted in any form if the Respondent is a non-student employee accused of committing Sexual Harassment against a student.
As required by U.S. Department of Education's regulations implementing Title IX, from the time a report or Formal Complaint is made, as the case may be, the university will adopt a presumption that the Respondent is not responsible for the alleged misconduct until a determination regarding responsibility is made final.
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.
Parties are 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. The failure of a party to timely raise an objection, concern or complaint may result in a waiver of the issue for purposes of any appeal specified in Section XVIII or otherwise.
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.
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.
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.
It is a violation of this policy for any person to submit a report or Formal Complaint that the person knows, at the time the report or Formal Complaint is submitted, to be false or frivolous. 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. Violations of this Section XXIX are not subject to the investigation and adjudication processes in this policy; instead, they will be addressed under the Student Code of Conduct, the Faculty Handbook, and other university policies and standards, as applicable.
It is a violation of this policy to engage in Retaliation. Reports and Formal Complaints of retaliation may be made in the manner specified in Sections IV and X. Any report or Formal Complaint of Retaliation will be processed under this policy in the same manner as a report or Formal Complaint of Sexual Harassment, as the case may be. The university retains discretion to consolidate a Formal Complaint of Retaliation with a Formal Complaint of Sexual Harassment for investigation and/or adjudication purposes if the two Formal Complaints share a common nexus.
The university will keep confidential the identity of any individual who has made a report or Formal Complaint of Sexual Harassment or Retaliation including any Complainant, the identity of any individual who has been reported to be a perpetrator of Sexual Harassment or Retaliation including any Respondent, and the identity of any witness. The university will also maintain the confidentiality of its various records generated in response to reports and Formal Complaints, including, but not limited to, information concerning Supportive Measures, notices, investigation materials, adjudication records, and appeal records. Notwithstanding the foregoing, the university may reveal the identity of any person or the contents of any record if permitted by FERPA; if necessary to carry out the university's obligations under Title IX and its implementing regulations including the conduct of any investigation, adjudication, or appeal under this policy or any subsequent judicial proceeding; or as otherwise required by law. Further, notwithstanding the university's general obligation to maintain confidentiality as specified herein, the parties to a report or Formal Complaint will be given access to investigation and adjudication materials in the circumstances specified in this policy.
While the university will maintain confidentiality specified in this Section XXXI, the university will not limit the ability of the parties to discuss the allegations at issue in a particular case. Parties are advised, however, that the manner in which they communicate about, or discuss a particular case, may constitute Sexual Harassment or Retaliation in certain circumstances and be subject to discipline pursuant to the processes specified in this policy.
Alleged violations of university policy, other than violations of the prohibitions on Sexual Harassment and Retaliation, will be subject to review under the Student Code of Conduct, the Faculty Handbook, Employee Handbook and other university policies and standards, as applicable.
For purposes of this policy, either a physical signature or digital signature will be sufficient to satisfy any obligation that a document be signed. Where this policy provides that written consent must be provided, consent in either physical or electronic form, containing a physical or digital signature, as the case may be, will suffice.
Where this policy specifies a period of days by which some act must be performed, the following method of calculation applies:
All deadlines and other time periods specified in this policy are subject to modification by the university where, in the university's sole discretion, good cause exists. Good cause may include, but is not limited to, the unavailability of parties or witnesses; the complexities of a given case; extended holidays or closures; sickness of the investigator, adjudicator, or the parties; the need to consult with the university's legal counsel; unforeseen weather events; and the like.
Any party who wishes to seek an extension of any deadline or other time period may do so by filing a request with the investigator, hearing officer, administrative officer, appeal officer, or Title IX coordinator, as the case may be, depending on the phase of the process. Such request must state the extension sought and explain what good cause exists for the requested extension. The university officer resolving the request for extension may, but is not required to, give the other party an opportunity to object. Whether to grant such a requested extension will be in the sole discretion of the university.
The parties will be provided written notice of the modification of any deadline or time period specified in this policy, along with the reasons for the modification.
Where this policy refers to notice being given to parties "simultaneously," notice will be deemed simultaneous if it is provided in relative proximity on the same day. It is not necessary that notice be provided at exactly the same hour and minute.
Unless otherwise specified in this policy, the default method of transmission for all notices, reports, responses and other forms of communication specified in this policy will be email using university email addresses.
A party is deemed to have received notice upon transmittal of an email to their University email address. In the event notice is provided by mail, a party will be deemed to have received notice three (3) days after the notice in question is postmarked.
Any notice inviting or requiring a party or witness to attend a meeting, interview or hearing will be provided with sufficient time for the party to prepare for the meeting, interview or hearing as the case may be, and will include relevant details such as the date, time, location, purpose and participants. Unless a specific number of days is specified elsewhere in this policy, the sufficient time to be provided will be determined in the sole discretion of the university, considering all the facts and circumstances, including, but not limited to, the nature of the meeting, interview or hearing; the nature and complexity of the allegations at issue; the schedules of relevant university officials; approaching holidays or closures; and the number and length of extensions already granted.
This policy applies only to Sexual Harassment. Complaints of other forms of sex discrimination, and other forms of protected-status discrimination and/or harassment, are governed by the university's Discrimination and Harassment (related to protected class Policy.
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, Title IX coordinator, investigator, hearing officer, administrative officer, informal resolution officer and 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.
The university will ensure that university officials acting under this policy, including but not limited to the Title IX coordinator, investigators, hearing officers, administrative officers, informal resolution facilitators, university provided advisors, and appeals officers receive training in compliance with 34 C.F.R. § 106.45(b)(1)(iii) and any other applicable federal or state law. In accordance with the U.S. Department of Education's regulation requiring materials used to train Title IX personnel to be accessible to the public, the university will make training materials available on the university website.
The university will retain those records specified in 34 C.F.R. § 106.45(b)(10) for a period of seven (7) years after which point in time they may be destroyed, or continue to be retained, in the university's sole discretion. The records specified in 34 C.F.R. § 106.45(b)(10) will be made available for inspection, and/or published, to the extent required by 34 C.F.R. § 106.45(b)(10) and consistent with any other applicable federal or state law, including FERPA.
Words used in this policy will have those meanings defined herein and if not defined herein will be construed according to their plain and ordinary meaning.
The university recognizes that an individual who has been drinking alcohol or using drugs may be hesitant to report Sexual Harassment arising from the same setting where the alcohol or drugs were consumed. To encourage reporting, the university will not take disciplinary action under the Student Code of Conduct for drug or alcohol use against an individual person who makes a good faith report or Formal Complaint of Sexual Harassment. The university may, however, require such individuals to participate in non-punitive measures intended to prevent the recurrence of such conduct in the future, such as counseling, training, or a behavior plan. The university's commitment to amnesty in these situations does not prevent action by local police or other legal authorities against an individual who has illegally consumed alcohol or drugs.
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.
Despite the university's reasonable efforts to anticipate all eventualities in drafting this policy, it is possible unanticipated or extraordinary circumstances may not be specifically or reasonably addressed by the express policy language, in which case the university retains discretion to respond to the unanticipated or extraordinary circumstance in a way that is not clearly unreasonable.
The provisions of this policy and the Hearing Procedures referenced in Section XVI.A.5 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.