Sexual Harassment, Sexual Misconduct, Dating Violence, Domestic Violence, and Stalking (Policy 1065)
University Policy 1065
Last Revision Date
August 13, 2020
Office of Institutional Compliance and Ethics, (208) 426-1258
Scope and Audience
This policy applies to all Members of the University Community, including employees, students, affiliates, affiliate faculty, volunteers, contractors, vendors, customers, visitors to the university, and participants in a University-sponsored program or activity.
Discrimination on basis of race, color, religion, age, national origin, physical or mental disability, veteran status, genetic information, or any other status protected under applicable federal, state, or local law is addressed in University Policy 1060 (Non-Discrimination and Anti-Harassment).
- Title VII of the Civil Rights Act of 1964
- The Pregnancy Discrimination Act
- Title IX of the Education Amendments of 1972
- The Age Discrimination in Employment Act of 1976
- The Equal Pay Act of 1963
- The Americans with Disabilities Act of 1990 as amended
- The Violence Against Women Act of 1994, as reauthorized in 2000, 2005, and 2013
- The Genetic Information Nondiscrimination Act of 2008
- The Vietnam Era Veterans’ Readjustment Assistance Act
- The Family Educational Rights and Privacy Act of 1974 (FERPA)
- Executive Order 11246
- The Idaho Human Rights Act
- The Higher Education Act of 1965 as amended by the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act
- Idaho Code Sections 18-918, 18-1506, 18-1508, 18-1601, 18-6101, 18-6108, 18-6608, 18-7905, 18-7906, 39-6303
- Idaho Executive Order 2007-18
- University Policy 1060 (Non-discrimination and Anti-harassment)
- University Policy 2020 (Student Code of Conduct)
1. Policy Purpose
To detail the University’s commitment to providing an employment, learning, and campus-living environment free from sex and gender-based Discrimination, Sexual Harassment, and violence.
2. Policy Statement
Boise State University is committed to maintaining a working and learning environment in which all Members of the University Community are treated with dignity and respect. The University strives to create an environment that supports, encourages and rewards career and educational advancement on the basis of ability and performance. Accordingly, Boise State prohibits Discrimination on the basis of sex, sexual orientation, gender, gender identity and pregnancy. The University also prohibits Sexual Harassment, including but not limited to, Sexual Misconduct, Domestic/Dating Violence, and Stalking.
The University will promptly and fairly investigate allegations of Discrimination, Sexual Harassment, and Retaliation in accordance with this policy. Boise State values the equal dignity of all members of its community and strives to balance the rights of the parties.
A person who is chosen by a party or appointed by the university to accompany and advise the party throughout the resolution process. During the live hearing, each party must have an Advisor present to ask the questions. If a party does not have an Advisor during the live questioning, the university will appoint one.
To force one to act based on fear of harm to self or others. Means of Coercion may include, but are not limited to, pressure, threats, emotional intimidation, or the use of physical force.
An individual who is reported to have experienced conduct prohibited by this policy, regardless of whether the individual makes a report or seeks disciplinary action.
3.4 Confidential Resources
Gender Equity Center and University Health Services medical and counseling staff who learn of a potential violation of this policy while performing services in scope of their employment as licensed clinicians, and graduate students in Counselor Education who are acting as counselors in a practicum course. Confidential Resources are not Mandatory Reporters as defined by this policy though they must still aggregate anonymized data to provide to the Title IX Coordinator at the end of each semester.
Voluntary, informed and freely-given agreement, which may be withdrawn at any time, to engage in a course of conduct. Consent is demonstrated through words or actions creating clear permission of willingness to engage in mutually agreed-upon sexual activity. Neither silence, the absence of resistance, nor the existence of a prior consensual sexual relationship are sufficient to indicate Consent. A person who is incapacitated by alcohol or illegal or prescription drugs, unconscious, or asleep cannot give Consent. Agreement to engage in a course of conduct shall not be considered as freely given, and shall not constitute Consent, when it is obtained through harassment, Coercion, threats, or other forcible conduct. A person under 16 years of age cannot give Consent for sexual activity; those who are 16 or 17 may only Consent to sexual encounters with partners who are less than 3 years older.
Treating an individual or group differently or less favorably on the basis of their sex, gender, sexual orientation, gender identity, gender expression, or pregnancy. Discrimination on basis of race, color, religion, age, national origin, physical or mental disability, veteran status, genetic information, or any other status protected under applicable federal, state, or local law is addressed in University Policy 1060.
3.7 Education Program or Activities
Education Program or Activity means locations, events, or circumstances where the university exercises substantial control over both the Respondent and the context in which the Sexual Harassment or Discrimination occurs and also includes any building owned or controlled by a student organization that is officially recognized by the university.
Force is the use of physical violence and/or physical imposition to gain sexual access. Force also includes threats, intimidation (implied threats), and coercion that is intended to overcome resistance or produce consent (e.g., “Have sex with me or I’ll hit you,” “Okay, don’t hit me, I’ll do what you want.”). Force is a type of Coercion.
3.9 Formal Complaint
A document filed by a Complainant or signed by the Title IX Coordinator alleging Sexual Harassment against a Respondent and requesting that the University conduct an investigation. When filed by a Complainant the Formal Complaint must have a physical or digital signature, or otherwise indicate that the Complainant is filing a Formal Complaint. A Formal Complaint must be filed before a formal or informal resolution may be sought.
3.10 Final Determination
A conclusion by a preponderance of the evidence of whether alleged conduct occurred and, if so, whether it constituted a violation of this policy.
A conclusion by a preponderance of the evidence that the conduct did or did not occur as alleged.
3.12 Formal Grievance Process
A method of formal resolution designated by the university to address conduct that falls under Policy 1065 and which complies with the requirements of 34 CFR Part 106.45.
3.13 Good Faith
Intention to be open and honest with no deliberate intention to deceive or defraud.
3.14 Hearing Decision-maker (and/or Panel)
Those who have decision-making and sanctioning authority within the university’s formal grievance process. The university reserves the right to hire outside, neutral experts to serve this function when necessary.
The physiological and/or cognitive inability, temporarily or permanently, to make informed, rational judgments and decisions including giving Consent. States of Incapacitation may include unconsciousness, sleep and blackouts. An individual is incapacitated if it is demonstrated that the individual was unaware at the time of the incident where they were, how they got there, or why or how they became engaged in a sexual interaction. Where alcohol or other drugs are involved, Incapacitation is determined by how a Complainant’s decision-making capacity, awareness of consequences, and ability to make informed judgments are impacted.
A determination of Incapacitation does not turn on technical or medical definitions, but instead focuses on whether a Complainant has the ability to make informed, rational judgments and decisions including giving Consent. Common and obvious warning signs which indicate that a person may be incapacitated or approaching Incapacitation may include: slurred or incomprehensible speech, unsteady gait, combativeness, emotional volatility, vomiting, or incontinence. A person who is incapacitated may be unable to accurately respond to one or more of the following questions: “Do you know where you are?”, “Do you know how you got here?”, “Do you know what is happening?”, “Do you know who you are with?”
For purposes of this policy, when alcohol is involved, Incapacitation is a state beyond drunkenness or intoxication, and when drug use is involved, Incapacitation is a state of beyond being under the influence or impaired by use of the drug. A person is not incapacitated merely because they have been drinking or using drugs. Alcohol and drug use impact each individual differently, and determining whether an individual is incapacitated requires an individual determination. In evaluating whether a person was incapacitated for purposes of determining whether Consent was present, the university considers: (1) Did the person initiating sexual activity know that the other individual was incapacitated? If not, (2) Would a sober, reasonable person in the same situation have known that the other individual was incapacitated? If the answer to either of these questions is “yes,” then the person was incapacitated, and Consent was absent.
A Respondent’s intoxication is never an excuse for or a defense to conduct prohibited by this policy and does not diminish their responsibility to determine whether Consent is present.
The person or persons charged to gather facts about an alleged violation of this Policy, assess relevance and credibility, synthesize evidence, and compile information into an investigation report and file of related evidence.
The Title IX Coordinator may retain an Investigator from outside the university to investigate any Formal Complaint under this policy. Any outside Investigator must follow the same process as an internal Investigator, pursuant to this policy.
3.17 Mandatory Reporter
All university employees except those defined as Confidential Resources are Mandatory Reporters for purposes of this policy.
Mandatory Reporters are not required to report information disclosed (1) at public awareness events (e.g., Take Back the Night, candlelight vigils, protests, survivor speak-outs, or other public forums in which individuals may disclose conduct prohibited by this policy), or (2) during an individual’s participation as a subject in an Institutional Review Board-approved human subjects research project. The university may provide information about Title IX rights and available resources at public awareness events, however, and Institutional Review Boards may, as they deem appropriate, require researchers to provide such information to all subjects of approved projects.
With the exception of student employees, students are not Mandatory Reporters, but are encouraged to report suspected violations of this policy.
3.18 Members of the University Community
University employees, students, affiliates, affiliate faculty, volunteers, contractors, vendors, customers, visitors, and participants in a university-sponsored program or activity.
3.19 Officials With Authority
An employee of the university explicitly vested with the responsibility to implement corrective measures for harassment, discrimination, and/or retaliation on the basis of sex on behalf of the university. A list of Officials With Authority can be found in Appendix F.
When an employee, student, or third-party informs the Title IX Coordinator or other Official with Authority of the alleged occurrence of harassing, discriminatory, and/or retaliatory conduct.
Refers to the Complainant(s) and Respondent(s), collectively.
Post-finding actions directed to the Complainant and/or the community as mechanisms to address safety, prevent recurrence, and restore access to the university’s Educational Program or Activity.
An individual who reports alleged prohibited conduct but who is not the individual who is alleged to have experienced the prohibited conduct.
The individual, individuals or group alleged to have engaged in conduct prohibited by this policy.
The result of an informal or Formal Grievance Process.
Protected activity under this policy includes reporting an incident that may implicate this policy, participating in the grievance process, supporting a Complainant or Respondent, assisting in providing information relevant to an investigation, and/or acting in good faith to oppose conduct that constitutes a violation of this Policy.
A consequence imposed by the university on a Respondent who is found to have violated this policy.
3.28 Sexual Harassment
Conduct on the basis of sex that satisfies one or more of the following:
1) An employee of the university, conditions the provision of an aid, benefit, or service of the university, on an individual’s participation in unwelcome sexual conduct this is commonly referred to as a quid pro quo);
2) Unwelcome conduct determined by a reasonable person, to be so severe, and pervasive, and objectively offensive, that it effectively denies a person equal access to the university’s education program or activity. A non-inclusive list of examples can be found in Appendix B.
3) Sexual Assault, which includes:
a. Sex Offenses, Forcible: any sexual act directed against another person, without the Consent of the Complainant(s), including instances in which the Complainant is not able to give Consent.
1. Forcible Rape: penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the Consent of the Complainant.
2. Forcible Sodomy: oral or anal sexual intercourse with another person, forcibly, and/or against that person’s will (non-consensually), or not forcibly against the person’s will in instances in which the Complainant is incapable of giving consent because of age or because of temporary or permanent mental or physical Incapacitation.
3. Sexual Assault with an Object: the use of an object or instrument to penetrate, however slightly, the genital or anal opening of the body of another person, forcibly, and/or against that person’s will (non-consensually), or not forcibly against the person’s will in instances in which the Complainant is incapable of giving consent because of age or because of temporary or permanent mental or physical Incapacitation.
4. Forcible Fondling: the touching of the private body parts of another person (buttocks, groin, breasts), for the purpose of sexual gratification, forcibly, and/or against that person’s will (non-consensually), or not forcibly against the person’s will in instances in which the Complainant is incapable of giving consent because of age or because of temporary or permanent mental or physical Incapacitation.
b. Sex Offenses, Non-forcible:
1. Incest: non-forcible sexual intercourse, between two persons who are related to each other, within the degrees wherein marriage is prohibited by Idaho state law.
b. Statutory Rape: non-forcible sexual intercourse, with a person who is under the statutory age of Consent in the state of Idaho.
4) Dating Violence: violence, on the basis of sex, committed by a person, who is in or has been in a social relationship of a romantic or intimate nature with the Complainant.
5) Domestic Violence: violence, on the basis of sex, committed by a current or former spouse or intimate partner of the Complainant, by a person with whom the Complainant shares a child in common, or by a person who is cohabitating with, or has cohabitated with, the Complainant as a spouse or intimate partner, or by a person similarly situated to a spouse of the Complainant under the domestic or family violence laws of Idaho, or by any other person against an adult or youth Complainant who is protected from that person’s acts under the domestic or family violence laws of Idaho.
6) Stalking: engaging in a course of conduct, on the basis of sex, directed at a specific person, that would cause a reasonable person to fear for the person’s safety, or the safety of others; or suffer substantial emotional distress. For purposes of this definition, course of conduct means two or more acts. A list of examples of Stalking are included in Appendix B.
3.29 Support Measures
Non-disciplinary, non-punitive individualized services offered free to Complainants or
Respondents regardless of whether a Formal Complaint has been filed. These measures are designed to restore or preserve equal access to an Education Program or Activity without unreasonably burdening the other party. These measures include counseling, extensions of deadlines or other course-related adjustments, modification of work or class schedules, campus escort services, mutual no contact orders between parties, change in work or housing locations, leaves of absence, increased security and monitoring in certain areas of campus and other similar measures.
An individual who may have information relevant to a report of prohibited conduct. A Witness may be a student, an employee, or a Third Party.
4. Responsibilities and Procedures
4.1 General Responsibilities
All Members of the University Community are responsible for following this policy to create a campus environment free from prohibited sex and gender-based Discrimination, harassment, and violence. The university expects all Members of the University Community to avoid any behavior or conduct that could reasonably be interpreted as sex or gender-based Discrimination or harassment.
4.2 Specific Responsibilities
4.2.1 Title IX Coordinator
The Title IX Coordinator is responsible for overseeing Boise State’s Title IX compliance efforts, including but not limited to the intake, investigation, resolution, and implementation of supportive measures to stop, remediate, and prevent discrimination, harassment, and retaliation prohibited by this policy by or against Members of the University Community, and (2) identifying and addressing patterns or systemic problems that are identified during the review of these complaints. The Title IX Coordinator is also responsible for the periodic review and assessment of this policy and related policies and procedures.
4.2.1A Independence and Conflict of Interest
The Title IX Coordinator and any person involved in the Formal Grievance Process act with independence and authority free from bias and conflicts of interest.
To raise any concern involving bias, conflict of interest, misconduct, or discrimination by the Title IX Coordinator, contact Alicia Estey, Vice President for Compliance, Legal, and Audit at 208-426-1254. Concerns of bias, or a potential conflict of interest, misconduct, or discrimination by any other person involved in the Formal Grievance Process should be raised with the Title IX Coordinator.
4.2.3 Mandatory Reporters
All employees, except those identified as Confidential Resources, are Mandatory Reporters under this policy. When a Mandatory Reporter observes or otherwise becomes aware of sex or gender-based Discrimination, harassment or other sexual misconduct that may violate this policy, the reporter must notify the Title IX Coordinator of the conduct in accordance with this policy as soon as practical after learning of the potential violation. All other Members of the University Community are encouraged to promptly report possible or actual violations of this policy.
4.2.4 Confidential Resources
Confidential Resources will collect general aggregate data about potential violations of this policy including the nature and general location of the incidents. Aggregate data must be reported to the Title IX Coordinator at the end of each semester.
4.2.5 Campus Security Authorities (CSAs) Required Reporting
Faculty and staff designated as Campus Security Authorities for the purpose of Clery Act compliance must also report alleged Clery crimes to the Clery Compliance Officer. For more information, please see http://security.boisestate.edu/csa/.
4.2.6 Members of the University Community
Members of the University Community must cooperate with the university in any investigation of allegations under this policy.
4.3 Resources for Complainants
In an emergency, call Public Safety at (208) 426-6911, activate a blue emergency phone on campus, or call 911.
4.3.1 Confidential Resources
Victims of Sexual Misconduct, Domestic Violence, Dating Violence or Stalking seeking confidential university support may contact one of the following:
- Gender Equity Center – (208) 426-4259
- University Health Services – (208) 426-1259
- University Counseling Services – (208) 426-1601
Additional options for community based Confidential Resources in Boise and for other campus locations are listed in Appendix A.
4.3.2 Preserving Evidence
It is important to preserve evidence of any offense as it may be helpful when seeking a protection order or to prosecute the offender. For additional information regarding what to do if you are a victim of sexual assault, please visit the FACES of Hope Victim Center.
4.4 Complaint Procedures
Title IX mandates that Boise State must investigate alleged violations of this policy when a Formal Complaint has been filed and:
1. Complainant is participating or attempting to participate in the Education Program or Activities of the university;
2. The activity in question took place in the United States;
3. The activity in question took place on the campus or on property owned or controlled by the university;
4. The activity in question took place at a university-sponsored event, or in buildings owned or controlled by the university’s recognized student organizations; or
5. Where the Respondent is a student, member of the faculty, staff, or an administrator of Boise State University.
The university will investigate allegations of Sexual Harassment and Discrimination that occur outside the jurisdiction of Title IX, under its own authority, including conduct that occurs in-person (including outside of the United States) or online.
If a Complainant’s allegations, arising from the same course of conduct, could constitute violations of both Policy 1065 and Policy 1060, all allegations will be subject to Policy 1065’s Formal Grievance Process.
If the Respondent is unknown or is not a member of the University Community, the Title IX Coordinator will assist the Complainant in identifying appropriate campus and local resources and support options and/or, when criminal conduct is alleged, in contacting local or campus law enforcement if the individual would like to file a police report.
This policy may be applied to incidents, to patterns, and/or to the campus climate, all of which may be addressed and investigated in accordance with this policy.
4.4.2 Rights of the Parties
The rights of the parties are detailed in Appendix A.
4.4.3 Reporting Options
Complaints of conduct that may violate this policy should be filed through one of the following:
- Title IX Coordinator at (208) 426-1258; or
- By email to: firstname.lastname@example.org; or
- EthicsPoint Hotline toll-free at 1-855-863-1299, or https://secure.ethicspoint.com/domain/media/en/gui/37887/index.html
4.4.4 Reports to Law Enforcement
Any individual who believes they have been a victim of a crime is encouraged to report the crime to law enforcement. Individuals can reach the Boise Police Department on campus by calling (208) 426-6911 or may report anonymously by calling (208) 343-COPS or online at https://secureforms.boisestate.edu/security.
4.4.5 Timing of Reporting
There is no time limitation on providing notice/Formal Complaints to the Title IX Coordinator. However, if the Respondent is no longer subject to the university’s jurisdiction and/or significant time has passed, the ability to investigate, respond, and provide remedies may be more limited or impossible.
Acting on notice/Formal Complaints significantly impacted by the passage of time (including, but not limited to, the rescission or revision of policy) is at the discretion of the Title IX Coordinator, who may document allegations for future reference, offer supportive measures and/or remedies, and/or engage in informal or formal action, as appropriate.
When a notice/Formal Complaint is affected by significant time delay, university will apply the policy in place at the time of the alleged.
When a Formal Complaint alleging a violation of this policy is investigated, all parties to the investigation, including Witnesses, will be notified of the university’s expectation of confidentiality. The university will only release information obtained in the course of an investigation on a “need to know” basis to the extent permitted by this policy and applicable law and consistent with the university’s thorough investigation of the Formal Complaint.
Investigation records are maintained in accordance with Idaho law and the Family Educational Rights and Privacy Act of 1974 (“FERPA”), as well as other applicable laws or regulations (collectively “privacy laws”). Any public release of information, including that to comply with the timely warning provisions of the Clery Act, will not include the name of a Complainant or information that could easily lead to a Complainant’s identification.
Breaches of confidentiality will be reviewed and may be considered a violation of this policy subject to disciplinary action.
4.4.7 Alcohol and Drug Amnesty
Because the university seeks to encourage individuals to report potential violations of this policy and fully participate in the investigation of potential violations of this policy, individuals will not, on the basis of evidence they provide in the course of an investigation, be charged with drug or alcohol violations under applicable university policies for offenses that occurred contemporaneously with the incident(s) under investigation.
The university will act promptly on all allegations once it has received notice or a Formal Complaint.
4.4.9 Protection against Retaliation
1. Title IX and Boise State University prohibit Members of the University Community from retaliating against anyone who has, in Good Faith, filed a Formal Complaint under, or conducted or cooperated in an investigation an alleged violation of, this policy. The university will take all reasonable steps to prevent Retaliation or to remedy the effects if it does occur.
2. Members of the University Community who retaliate against any party to an investigation, including the Investigator, conducted pursuant to this policy will be subject to appropriate disciplinary action, up to and including termination from employment and/or sanctions pursuant to the Student Code of Conduct.
3. Complaints of Retaliation should be promptly reported to the Title IX Coordinator.
4. The exercise of rights protected under the First Amendment does not constitute Retaliation.
4.5 Investigative Process
4.5.1 Notice and/or Formal Complaint
Upon receipt of a Formal Complaint or notice to the Title IX Coordinator of an alleged violation of the Policy, the university initiates a prompt initial assessment to determine the next steps, which may include:
1) Offering supportive measures because the Complainant does not want to proceed formally; and/or
2) Seeking an informal resolution, where both Complainant and Respondent agree to do so; and/or
3) Investigating fully and going through the Formal Grievance Process including an investigation and a hearing.
The investigation and grievance process will determine whether or not the Policy has been violated. If so, the university will promptly implement effective remedies designed to ensure that it is not deliberately indifferent to harassment or discrimination, their potential recurrence, or their effects.
4.5.2 Initial Assessment
Following receipt of notice or a Formal Complaint of an alleged violation of this Policy, the Title IX Coordinator (or designee) engages in an initial assessment, which is typically one to five business days in duration. The steps in an initial assessment can include:
1. If notice is given, the Title IX Coordinator seeks to determine if the person impacted wishes to make a Formal Complaint, and will assist them to do so, if desired.
- If they do not wish to do so, the Title IX Coordinator determines whether to initiate a Formal Complaint because a violence risk assessment indicates a compelling threat to health and/or safety.
2. If a Formal Complaint is received, the Title IX Coordinator assesses its sufficiency and works with the Complainant to make sure it is correctly completed.
3. The Title IX Coordinator reaches out to the Complainant to offer Support Measures.
4. The Title IX Coordinator works with the Complainant to ensure they are aware of their right to have an Advisor.
5. The Title IX Coordinator works with the Complainant to determine whether the Complainant prefers a supportive and remedial response, an informal resolution option, or the Formal Grievance Process.
- If a supportive and remedial response is preferred, the Title IX Coordinator works with the Complainant to gain an understanding of what they hope to get out of the process and then seeks to facilitate implementation. No Formal Grievance Process is initiated, though the Complainant can elect to initiate one later, if desired.
- If an informal resolution option is preferred, the Title IX Coordinator assesses whether the Formal Complaint is suitable for informal resolution, which informal mechanism may serve the situation best, and may seek to determine if the Respondent is also willing to engage in informal resolution. A Respondent always has the right to decline any information resolution and request a Formal Grievance Process.
- If a Formal Grievance Process is preferred, the Title IX Coordinator determines if the misconduct alleged falls within the scope of Title IX and/or Policy 1065:
- If it does, the Title IX Coordinator will initiate the formal investigation and grievance process, directing the investigation to address:
- an incident, and/or
- a pattern of alleged misconduct, and/or
- a culture/climate issue, based on the nature of the complaint.
- If it does not, the Title IX Coordinator determines that Title IX does not apply (and will “dismiss” that aspect of the Formal Complaint, if any), assesses which policies may apply, and will refer the matter accordingly. Please note that a determination that a Formal Complaint does not fall under the jurisdiction of Title IX does not limit the university’s authority to address the Formal Complaint under this policy or any other applicable policy.
- If it does, the Title IX Coordinator will initiate the formal investigation and grievance process, directing the investigation to address:
a. Violence Risk Assessment
In some cases, the Title IX Coordinator may determine that a Violence Risk Assessment (VRA) should be conducted by the university either internally or externally. A VRA can consider but is not limited to:
- Emergency removal of a Respondent on the basis of immediate threat to physical health/safety;
- Whether the Title IX Coordinator should pursue/sign a Formal Complaint absent a willing/able Complainant;
- Whether to put the investigation on the footing of incident and/or pattern and/or climate;
- To help identify potential predatory conduct;
- To help assess/identify grooming behaviors;
- Whether it is reasonable to try to resolve a Formal Complaint through informal resolution, and what modality may be most successful;
- Whether to permit a voluntary withdrawal by the Respondent;
- Whether to impose transcript notation or communicate with a transfer university about a Respondent;
- Assessment of appropriate sanctions/remedies (to be applied post-hearing); and/or
- Whether a Clery Act Timely Warning/Trespass order/Persona-non-grata is needed
Threat assessment is the process of evaluating the actionability of violence by an individual against another person or group following the issuance of a direct or conditional threat. A VRA is a broader term used to assess any potential violence or danger, regardless of the presence of a vague, conditional, or direct threat. The results of a VRA are reported to the Title IX Coordinator.
Where a VRA is required by the Title IX Coordinator, a Respondent refusing to cooperate may result in a charge of failure to comply within the appropriate student or employee conduct process.
b. Emergency Removal or Administrative Leave
The university can act to remove a Respondent entirely or partially from its Education Program or Activities on an emergency basis when an individualized safety and risk analysis has determined that an immediate threat to the physical health or safety of any student or other individual justifies removal. The emergency situation must arise from the alleged conduct that could constitute sexual harassment under this Policy. This risk analysis is performed through a university VRA. Once the VRA is complete, the VRA recommendation is presented to the Title IX Coordinator. If Respondent’s actions pose an immediate and identified threat, but do not arise from the alleged sexual harassment, the university is free to respond under any other applicable university policies and in accordance with applicable laws. A non-student employee Respondent may be placed on administrative leave pending the resolution of the grievance process.
In all cases in which an emergency removal is imposed, the Respondent will be given notice of the action and the option to request to meet with the Title IX Coordinator as soon as reasonably possible, to show cause why the action/removal should not be implemented or should be modified. Any objections to the emergency removal must be raised within three (3) business days, or it will be deemed waived. Subsequent to the show cause meeting with the Title IX Coordinator, there is no appeal process for emergency removal decisions pending the outcome of the Formal Grievance Process.
The university will implement the least restrictive emergency actions possible in light of the circumstances and safety concerns.
This section also applies to any restrictions that a coach or athletic administrator may place on a student-athlete arising from allegations related to Title IX.
4.5.3 Dismissal of Formal Complaint
4.5.3A Mandatory Dismissal under Title IX
If the Investigator determines that the allegations, if true, would not constitute a Title IX policy violation, or otherwise are outside of the authority of Title IX, the university must dismiss the Formal Complaint for purposes of Sexual Harassment under Title IX. If the allegations must be dismissed under Title IX, the university will simultaneously issue both parties an amended Notice of Investigation in writing that explains that the university is dismissing the allegation under Title IX, and whether its pursuing an investigation of the alleged conduct under Policy 1065.
4.5.3B Permissive Dismissal
The university may dismiss a Formal Complaint or any allegations therein if: (1) at any time during the investigation or hearing, a Complainant notifies the Title IX Coordinator in writing that they would like to withdraw the Formal Complaint or any allegations therein; (2) the Respondent is no longer enrolled at, or employed by, the university; or (3) specific circumstances prevent the university from gathering evidence sufficient to reach a determination as to the Formal Complaint and the allegations therein.
If a Formal Complaint or any allegations therein are dismissed the university will promptly send written notice of the dismissal and reasons therefore to all parties simultaneously. This dismissal decision is appealable by any party under the procedures for appeal below.
The University is obligated to ensure that the grievance process is not abused for retaliatory purposes. The University permits the filing of counterclaims but uses an initial assessment, described above, to assess whether the allegations in the counterclaim are made in good faith. Counterclaims made with retaliatory intent will not be permitted.
At the discretion of the Title IX Coordinator or designee, Counterclaims determined to have been reported in good faith will be processed using the grievance procedures below. Investigation of such claims may take place after resolution of the underlying initial allegation, in which case a delay may occur, or they may also be resolved through the same investigation as the underlying allegation. When counterclaims are not made in good faith, they will be considered retaliatory and may constitute a violation of this policy.
4.5.5 When a Complainant Does Not Wish to Proceed
If a Complainant does not wish for their name to be shared, and does not wish to engage in either an informal resolution or the Formal Grievance Process, they may make such a request to the Title IX Coordinator, who will evaluate that request in light of the duty to ensure the safety of the campus and to comply with state or federal law.
The Title IX Coordinator has ultimate discretion over whether the University proceeds when the Complainant does not wish to do so.
As a part of this decision the Title IX Coordinator’s will consider:
- The results of the violence risk assessment that show a compelling risk to health and/or safety that requires the University to pursue formal action to protect the community. A compelling risk to health and/or safety may result from evidence of patterns of misconduct, predatory conduct, threats, abuse of minors, use of weapons, and/or violence.
- Whether the allegation has been made against an employee that would impact their fitness for duty.
- The effect that non-participation by the Complainant may have on the availability of evidence and the University’s ability to pursue a Formal Grievance Process fairly and effectively.
When moving forward with a Formal Complaint in such circumstances the Title IX Coordinator will sign the Formal Complaint themselves; this does not make the Title IX Coordinator the Complainant in the Formal Grievance Process
If a Complainant elects to take no action, they can change that decision if they decide to pursue a Formal Complaint at a later date. Upon making a Formal Complaint, a Complainant has the right, and can expect, to have allegations taken seriously by the University, and to have the incidents investigated and properly resolved through these procedures.
4.5.6 Notice of Investigation
The Title IX Coordinator will notify Respondent of the nature of the allegations by issuing a formal notice of allegations, typically sent by email, upon commencement of the Formal Grievance Process. A copy of the Notice of the Investigation will also be simultaneously sent to the Complainant.
The notice will include the allegations of Sexual Harassment including, if known at the time of the notice:
(a) a summary of the allegations of conduct prohibited under this policy including the date, location and a description of the conduct alleged to violate this policy;
(b) the name of the Reporter and/or the Complainant;
(c) a clear statement of the whether a mutual no-contact order is being implemented at that time;
(d) the University’s policy prohibiting Retaliation against individuals who file Discrimination complaints or cooperate in the University’s investigation of Discrimination complaints;
(e) information regarding the investigation and grievance process;
(f) information regarding investigation timelines;
(g) notice of Respondent’s rights under this policy, including the right to an Advisor of Respondent’s choice at all stages of the process;
(h) notice that Respondent is presumed not responsible and that the determination of responsibility will be reached at the end of the grievance process;
(i) that the University Student Code of Conduct, Section E (Act of Dishonesty) and this policy prohibits knowingly making false statements or knowingly submitting false information during the grievance process;
(j) the right to inspect and review evidence gathered in the course of the investigation;
(k) information regarding Support Measures;
(l) information about the potential sanctions and/or responsive actions that could result;
(m) information about the privacy of the process;
(n) information on how a party may request disability accommodations during the process;
(o) the name of the Investigator;
(p) information on the process to identify, in advance of the interview process, to the Title IX Coordinator any conflict of interest that the Investigator(s) may have; and
(q) instructions to preserve any evidence that is related to the allegations.
The notice will be made in writing. In order to help ensure that investigations are completed within the stated timeframes, Respondent has five (5) University business days from receipt of the notice to contact the Office of Institutional Compliance and Ethics to schedule a meeting to discuss the allegations set forth in the notice. While scheduling the meeting, the Respondent will be provided enough time before being interviewed to secure an Advisor and prepare for the interview. If the notice is sent via email, the notice will be considered received on the date that it is sent. If a notice is sent via certified mail, it is considered received three (3) University business days after the date it is mailed. If a student Respondent does not respond within seven (7) University business days of receiving the notice, the Investigator may proceed with the investigation without input from the Respondent. If an employee Respondent does not respond within seven (7) University business days of receiving the notice, the University may initiate disciplinary action.
If, in the course of an investigation, it is determined that there are additional allegations that should be investigated which were not included in the initial notice of investigation, the University shall provide an amended notice of investigation.
4.5.7 Advisors of Choice
Both Complainant and Respondent have the right to be accompanied by an Advisor of their choice when attending any meeting, interview or proceeding that takes place pursuant to this policy. During the investigation, an Advisor may take notes and quietly confer with the party being advised, but may not speak on behalf of the party or in any way disrupt any meeting or proceeding. Each Advisor is required to adhere to these requirements or they will be asked to leave the meeting or proceeding. Choosing an Advisor who is also a witness or other party involved in the investigation or adjudication process creates the potential for bias and conflicts of interests. A party who chooses an Advisor who is also a Witness can anticipate that issues of potential bias will be explored by the hearing Decision-maker(s).
Complainant or Respondent may choose to retain an attorney or other paid professional to act as an Advisor in this process. However, each party shall be solely responsible for paying any fees charged by the Advisor. All Advisors are required to adhere to the requirements above regardless of their professional qualifications. The University cannot guarantee equal Advisory rights, meaning that if one party selects an Advisor who is an attorney, and the other party requests that the University appoint an Advisor, there is no obligation to appoint an Advisor who is an attorney.
The Title IX Coordinator will appoint a trained Advisor for any party who requests one during the investigation stage, and for any party that does not have an Advisor at the hearing stage. All Advisors appointed by the Title IX Coordinator will be trained by the University and be familiar with the resolution process.
4.5.7A Advisors in Hearings/University-Appointed Advisor
Under U.S. Department of Education regulations applicable to Title IX, live questioning of both parties is required during the hearing, but must be conducted by the parties’ Advisors. A party cannot serve as their own Advisor. If a party does not have an Advisor for a hearing, the University will appoint a trained Advisor for the limited purpose of conducting questioning on that party’s behalf.
If the party’s Advisor will not conduct live questioning, the University will appoint an Advisor who will do so, regardless of the participation or non-participation of the party in the hearing itself.
4.5.7B Sharing Information, Privacy, and Expectations
The University expects that the parties may wish to have the University share documentation and evidence related to the allegations with their Advisors. Parties may share this information directly with their Advisor.
Advisors are expected to maintain the privacy of the records shared with them. These records may not be shared with third parties, disclosed publicly, or used for purposes not explicitly authorized by the university. The university may seek to restrict the role of any Advisor who does not respect the sensitive nature of the process or who fails to abide by the University’s privacy expectations. These restrictions could include but are not limited to removing an Advisor from the investigative process or hearing. If an Advisor is removed, in the university will appoint a new Advisor or the Party may choose a new one.
The parties are expected to provide timely notice to the Title IX Coordinator if they change Advisors at any time. If either party elects to change Advisors, the party must notify the Title IX Coordinator at least two business days prior to the next meeting, hearing, etc.
4.5.8 Support Measures
Both Complainant and Respondent will promptly be offered appropriate and reasonable Support Measures upon notice of the alleged sexual harassment, discrimination, and/or retaliation, including confidential counseling for students and/or employees. The Title IX Coordinator will assist both parties to ensure that they have access to all available resources. These Support Measures are non-disciplinary, non-punitive individualized services offered without charge to the parties to restore or preserve access to the University’s Education Program or Activity.
The University will maintain a party’s privacy while providing Support Measures, provided it does not impair the University’s ability to provide the measures. The University will act to ensure that Support Measures have the least academic impact possible and do not unreasonably burden either party.
Support Measures may include interim measures, including mutual University-based no contact orders between the parties which may be applied at the time the notice is issued or at any time thereafter during the course of the investigation.
A violation of a no contact order is a separate violation of this policy and should be immediately reported to the Investigator to determine whether it will result in an additional charge of Retaliation under this policy. In that event, the Retaliation charge may, at the discretion of the Title IX Coordinator or the Executive Director of Institutional Compliance and Ethics, be added to an ongoing investigation, or it may result in a new complaint under this policy being initiated.
The violation of a no contact order may be considered when determining sanctions or disciplinary action.
Support Measures also may necessitate an Emergency Removal.
For additional information about support services and a list of examples, see Appendix C.
4.5.9 Resolution Timeline
The University will make a good faith effort to complete the resolution process within a sixty-to-ninety (60-90) business day time period, including appeal, which can be extended as necessary for appropriate cause by the Title IX Coordinator, who will provide notice and rationale for any extensions or delays to the parties as appropriate, as well as an estimate of how much additional time will be needed to complete the process.
The University may undertake a short delay in its investigation (several days to a few weeks) if circumstances require. Such circumstances include, but are not limited to: a request from law enforcement to temporarily delay the investigation, the need for language assistance, the absence of parties and/or witnesses, and/or accommodations for disabilities or health conditions.
The University will communicate in writing the anticipated duration of the delay and reason to the parties and provide the parties with status updates if necessary. The University will promptly resume its investigation and resolution process as soon as feasible. If an investigation is delayed the University will implement Support Measures in the meantime.
4.5.10 Ensuring Impartiality
Any individual materially involved in the administration of the resolution process – including the Title IX Coordinator, Investigator(s), and Decision-maker(s) – must be free from conflicts of interest and biases, both in general and regarding specific parties.
The parties may, at any time during the resolution process, raise a concern regarding bias or conflict of interest, and the Title IX Coordinator will determine whether the concern is reasonable and supportable. If so, another Pool member will be assigned and the impact of the bias or conflict, if any, will be remedied.
The University operates with the presumption that the Respondent is not responsible for the reported misconduct unless and until the Respondent is determined to be responsible for a policy violation under the Formal Grievance Process.
Witnesses (as distinguished from the parties) who are employees of the University are expected to cooperate with and participate in the University’s investigation and resolution process. Failure of such witnesses to cooperate with and/or participate in the investigation or resolution process constitutes a violation of policy and may warrant discipline.
Witnesses may also provide written statements in lieu of interviews or choose to respond to written questions, if deemed appropriate by the Investigator(s), though not preferred. If a witness does not present themselves for cross examination at the live hearing, their interview statements or written statements may not be used as evidence by the Decision-maker(s).
4.5.12 Recording of Interviews
During the grievance process, Investigators will record interviews with parties and witnesses in order to ensure accuracy. Upon request, parties may be provided the opportunity to listen to recorded interviews. Parties and witnesses are not permitted to make their own audio or video recordings of interviews.
4.6 Resolution Processes
Resolution proceedings are considered confidential. All persons present at any time during the resolution process are expected to maintain the confidentiality of the proceedings to the extent possible. If the parties choose to share their own knowledge and evidence with others, the University encourages parties to discuss this with their Advisors before doing so.
4.6.1 Informal Resolution
If both Parties wish to resolve the matter through an Informal Resolution after the Formal Complaint is filed, the following options below represent some of the ways this can be accomplished. The University will obtain voluntary, written confirmation that all parties wish to resolve the matter through Informal Resolution before proceeding and will not pressure the parties to participate in Informal Resolution.
Any party participating in Informal Resolution can stop the process at any time and begin or resume the Formal Grievance Process.
4.6.1A Alternate Resolution
This can include but is not limited to facilitated dialogue, mediation, negotiated resolutions, and restorative justice. The ultimate determination of whether an Alternate Resolution option is available in a given case is to be made by the Title IX Coordinator. The Title IX Coordinator maintains records of any resolution that is reached, and failure to abide by the resolution agreement freely entered into may result in appropriate responsive/disciplinary actions. Results of Informal Resolution or Alternate Resolution are not appealable. Informal or alternative resolutions will be consistent with the University’s obligations under federal and state law, the Student Code of Conduct and other applicable University policies.
4.6.1B Respondent Accepts Responsibility for Alleged Violations
The Respondent may accept responsibility for all or part of the alleged policy violations at any point during the resolution process. If the Respondent indicates an intent to accept responsibility for all of the alleged misconduct, the Formal Grievance Process will be paused, and if an Informal Resolution is appropriate, the Title IX Coordinator will determine whether all parties and the University are able to agree on responsibility, sanctions, and/or remedies. If so, the Title IX Coordinator implements the accepted finding that the Respondent is in violation of University policy and implements agreed-upon sanctions and/or remedies, in coordination with other appropriate administrator(s), as necessary.
This result is not subject to appeal once all parties indicate their written assent to all agreed upon terms of resolution. When the parties cannot agree on all terms of resolution, the Formal Grievance Process will resume at the same point where it was paused.
4.6.2 Grievance Process Pool
The Formal Grievance Process relies on a pool of administrators to carry out the process. These administrators are listed in on the Office of Institutional Compliance’s website. Additionally, the University reserves the right to hire outside consultants to perform these functions.
Pool members are trained annually and can serve in any of the following roles at the discretion of the Title IX Coordinator.
- To serve in a facilitation role in informal resolution or Alternate Resolution if appropriately trained in appropriate resolution modalities (e.g., mediation, restorative practices)
- To serve as hearing facilitator
- To serve as a Decision-maker
- To serve as an Appeal Decision-maker
All pool members receive training annually. This training is detailed in Appendix G.
4.6.3 Formal Grievance Process – Investigation
After both parties have received copies of the Notice of Allegations, the Title IX Coordinator (or designee) will appoint at least one Investigator. The Investigator will then set up interviews with both the Complainant and Respondent after providing both parties enough time to prepare for the investigation process.
Investigations normally completed within thirty (30) business days, though some investigations may longer, depending on the nature, extent, and complexity of the allegations, availability of witnesses, police involvement, etc.
The University will make a good faith effort to complete investigations in a timely fashion and will communicate regularly with the parties to update them on the progress and timing of the investigation.
The Investigator serves in a non-advocacy role as a neutral finder of fact. In the course of the investigation, each party will have the opportunity to provide information, including Witnesses and evidence (including but not limited to emails, written documents, photographs, social media posts), relevant to the allegations set forth in the notice. The Investigator may need to meet with Complainant and Respondent more than once in order for each party to have an adequate opportunity to respond to new information obtained in the course of the investigation. The Investigator shall not require, allow, rely upon, or otherwise use questions or evidence that constitute, or seek disclosure of, information protected under a legally recognized privilege, unless the person holding such privilege has waived it.
The investigation does not consider: 1) incidents not directly related to the possible violation, unless they demonstrate a pattern; 2) the character of the parties; or 3) questions and evidence about the Complainant’s sexual predisposition or prior sexual behavior, 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 by the Complainant, 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.
4.6.4 Investigation Summary
The Investigator will prepare an investigation summary which will include relevant information from each interview conducted by the Investigator and any other evidence gathered in the course of the investigation. Information regarding the parties’ medical/mental health issues that are not relevant to the complaint will not be included in the summary. As nearly as possible, both Complainant and Respondent will be sent a written copy of the investigation summary simultaneously and will be given an opportunity to review all evidence collected. Each party will be given 10 University business days to submit a written response to the investigation summary to the Investigator.
After receiving the response from both parties, the Investigator may elect to respond in writing in the investigation report to the parties’ submitted responses and/or to share the responses between the parties for additional responses. The Investigator(s) will incorporate relevant elements of the parties’ written responses into the final investigation report, include any additional relevant evidence, make any necessary revisions, and finalize the report. The Investigator(s) should document all rationales for any changes made after the review and comment period.
The final report is then shared with all parties and their Advisors through secure electronic transmission or hard copy at least ten (10) business days prior to the live hearing. The parties shall be provided with a file of any directly related evidence that was not included in the report.
Any effort, by either party, to distribute, reproduce, alter, post, or otherwise circulate the investigative summary may result in a charge of a violation of this policy and may result in a policy violation determination and sanctions pursuant to the processes outlined in this policy.
4.6.5 Live Hearing
The hearing will take place at least ten (10) business days after the conclusion of the investigation –when the final investigation report is transmitted to the parties and the Decision-maker–unless all parties and the Decision-maker agree to an expedited timeline.
Any evidence that the Decision-maker(s) determine(s) is relevant and credible may be considered. The hearing does not consider: 1) incidents not directly related to the possible violation, unless they demonstrate a pattern; 2) the character of the parties; or 3) questions and evidence about the Complainant’s sexual predisposition or prior sexual behavior, 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 by the Complainant, 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.
Previous disciplinary action of any kind involving the Respondent may be considered in determining an appropriate sanction upon a determination of responsibility. This information is only considered at the sanction stage of the process.
Live hearings shall utilize the preponderance of the evidence standard for determining whether a policy has been violated.
4.6.5A Hearing Decision-maker
The University will designate a single Decision-maker to chair the hearing. The University may choose to use a three-member panel from the Pool or a single Decision-maker for the hearing, at the discretion of the Title IX Coordinator. When a panel is used, one of the three members will be appointed to chair the hearing and act as the Decision-maker by the Title IX Coordinator. The Decision-maker will rule on the relevance of questions raised during the live hearing by the Parties.
The Decision-maker(s) will not have had any previous involvement with the investigation. The Title IX Coordinator may elect to have an alternate from the Pool sit in throughout the resolution process in the event that a substitute is needed for any reason.
Those who have served as Investigators may not serve as Decision-makers. Those who are serving as Advisors for any party may not serve as Decision-makers in that matter.
The Title IX Coordinator may not serve as a Decision-maker in the matter but may serve as an administrative facilitator of the hearing if their previous role(s) in the matter do not create a conflict of interest. Otherwise, a designee may fulfill this role. The hearing will convene at a time determined by the Decision-maker.
4.6.5B Notice of Hearing
No less than ten (10) business days prior to the hearing, the Title IX Coordinator or the Decision-maker will send notice of the hearing to the parties. Once mailed, emailed, and/or received in-person, notice will be presumptively delivered.
The notice will contain:
- A description of the alleged violation(s), a list of all policies allegedly violated, a description of the applicable procedures, and a statement of the potential sanctions/responsive actions that could result.
- The time, date, and location of the hearing and a reminder that attendance is mandatory, superseding all other campus activities.
- Any technology that will be used to facilitate the hearing.
- Information about the option for the live hearing to occur with the parties located in separate rooms using technology that enables the Decision-maker(s) and parties to see and hear a party or witness answering questions. Such a request must be raised with the Title IX Coordinator at least five (5) business days prior to the hearing.
- A list of all those who will attend the hearing, along with an invitation to object to any Decision-maker on the basis of demonstrated bias. This must be raised with the Title IX Coordinator at least two (2) business days prior to the hearing.
- Information on how the hearing will be recorded and how parties can access the recording after the hearing.
- A statement that if any party or witness does not appear at the scheduled hearing, the hearing may be held in their absence, and the party’s or witness’s testimony and any statements given prior to the hearing will not be considered by the Decision-maker(s) in reaching a finding.
- Notice that for compelling reasons, the Decision-maker may reschedule the hearing.
- Notification that the parties may have the assistance of an Advisor of their choosing at the hearing and will be required to have one present to ask any questions on their behalf. The party must notify the Title IX Coordinator if they do not have an Advisor, and the University will appoint one. Each party must have an Advisor present. There are no exceptions.
- A copy of all the materials provided to the Decision-maker(s) about the matter, unless they have been provided already.
- An invitation to each party to submit an impact statement to the Decision-maker, prior to the hearing, that the Decision-maker will review during any sanction determination.
- An invitation to contact the Title IX Coordinator to arrange any disability accommodations, language assistance, and/or interpretation services that may be needed at the hearing, at least seven (7) business days prior to the hearing.
- That the Parties cannot bring mobile phones/devices into the hearing.
Hearings for possible violations that occur near or after the end of an academic term (assuming the Respondent is still subject to this Policy) and are unable to be resolved prior to the end of term will typically be held immediately after the end of the term or during the summer, as needed, to meet the resolution timeline followed by the University and remain within the goal of a speedy resolution. If a student is found in violation of policy and an appeal is pending, the university reserves the right to put a temporary hold into place.
4.6.5C Pre-hearing Preparation
Any person scheduled to participate in the hearing must have first been interviewed by the Investigator(s) [or have proffered a written statement or answered written questions], unless all parties and the Decision-maker assent to the witness’s participation in the hearing. The same holds for any evidence that is first offered at the hearing. If the parties and Decision-maker do not assent to the admission of evidence newly offered at the hearing, the Decision-maker will delay the hearing and instruct that the investigation needs to be re-opened to consider that evidence.
The parties will be given a list of the names of the Decision-maker(s) at least five (5) business days in advance of the hearing. All objections to any Decision-maker must be raised in writing, detailing the rationale for the objection, and must be submitted to the Title IX Coordinator as soon as possible and no later than three days prior to the hearing. Decision-makers will only be removed if the Title IX Coordinator concludes that their bias or conflict of interest precludes an impartial hearing of the allegation(s).
The Title IX Coordinator will give the Decision-maker(s) a list of the names of all parties, witnesses, and Advisors at least five (5) business days in advance of the hearing. Any Decision-maker who cannot make an objective determination must recuse themselves from the proceedings when notified of the identity of the parties, witnesses, and Advisors in advance of the hearing. If a Decision-maker is unsure of whether a bias or conflict of interest exists, they must raise the concern to the Title IX Coordinator as soon as possible.
During the ten (10) business day period preceding the hearing, the parties have the opportunity for continued review and comment on the final investigation report and available evidence. That review and comment can be shared with the Decision-maker at the pre-hearing meeting or at the hearing and will be exchanged between each party by the Decision-maker.
4.6.5D Pre-Hearing Meetings
The Decision-maker may choose to convene pre-hearing meeting(s) with the Parties and their Advisors to invite them to submit the questions or topics the Parties wish to ask or discuss at the hearing, so that the Decision-maker can rule on their relevance ahead of time to avoid any improper evidentiary introduction in the hearing or provide recommendations for more appropriate phrasing. However, this advance review opportunity does not preclude the Advisors at the hearing from asking for a reconsideration based on any new information or testimony offered at the hearing. The Decision-maker must document and share their rationale for any exclusion or inclusion at this pre-hearing meeting.
At each pre-hearing meeting with a party and their Advisor, the Decision-maker will consider arguments that evidence identified in the final investigation report as relevant is, in fact, not relevant. Similarly, evidence identified as directly related but not relevant by the Investigator(s) may be argued to be relevant. The Decision-maker may rule on these arguments pre-hearing and will exchange those rulings between the parties prior to the hearing to assist in preparation for the hearing.
The pre-hearing meeting(s) will be recorded.
4.6.5E Hearing Procedures
At the hearing, the Decision-maker(s) has the authority to hear and make determinations on all allegations of discrimination, harassment, and/or retaliation and may also hear and make determinations on any additional alleged policy violations that have occurred in concert with the discrimination, harassment, and/or retaliation, even though those collateral allegations may not specifically fall within the Policy 1065. If allegations implicate additional university policies, the Title IX Coordinator will provide education to the Decision-maker(s) on those policies.
Participants at the hearing will include the Decision-maker, any additional panelists, the hearing facilitator, the Investigator(s) who conducted the investigation, the parties, Advisors to the Parties, any called witnesses, and anyone providing authorized accommodations or assistive services.
The Decision-maker will answer all questions of procedure. Anyone appearing at the hearing to provide information will respond to questions on their own behalf.
The Decision-maker will allow witnesses who have relevant information to appear at a portion of the hearing in order to respond to specific questions from the Decision-maker(s) and the parties and will then be excused.
4.6.5F Joint Hearings
In hearings involving more than one Respondent or in which two (2) or more Complainants have accused the same individual of substantially similar conduct, the default procedure will be to hear the allegations jointly.
However, the Title IX Coordinator may permit the investigation and/or hearings pertinent to each Respondent to be conducted separately if there is a compelling reason to do so. In joint hearings, separate determinations of responsibility will be made for each Respondent with respect to each alleged policy violation.
4.6.5G The Order of the Hearing – Introductions and Explanation of Procedure
The Decision-maker explains the procedures and introduces the participants.
At the hearing, recording, witness logistics, party logistics, curation of documents, separation of the parties, and other administrative elements of the hearing process are managed by a non-voting hearing facilitator appointed by the Title IX Coordinator. The hearing facilitator may attend to: logistics of rooms for various parties/witnesses as they wait; flow of parties/witnesses in and out of the hearing space; ensuring recording and/or virtual conferencing technology is working as intended; copying and distributing materials to participants, as appropriate, etc.
4.6.5H Investigator Presents the Final Investigation Report
The Investigator(s) will then present a summary of the final investigation report, including items that are contested and those that are not, and will be subject to questioning by the Decision-maker(s) and the parties (through their Advisors). The Investigator(s) will be present during the entire hearing process, but not during deliberations.
Neither the parties nor the Decision-maker(s) should ask the Investigator(s) their opinions on credibility, recommended findings, or determinations, and the Investigators, Advisors, and parties will refrain from discussion of or questions about these assessments. If such information is introduced, the Decision-maker will direct that it be disregarded.
4.6.5I Testimony and Questioning
Once the Investigator(s) present their report and are questioned, the parties and witnesses may provide relevant information in turn, beginning with the Complainant, and then in the order determined by the Decision-maker. The parties/witnesses will submit to questioning by the Decision-maker(s) and then by the parties’ Advisors (“cross-examination”).
All questions are subject to a relevance determination by the Decision-maker. The Advisor, who will remain seated during questioning, will pose the proposed question orally, electronically, or in writing (orally is the default, but other means of submission may be permitted by the Decision-maker upon request or agreed to by the parties and the Decision-maker), the proceeding will pause to allow the Decision-maker to consider it, and the Decision-maker will determine whether the question will be permitted, disallowed, or rephrased.
The Decision-maker will then state their decision on the question for the record and advise the party/witness to whom the question was directed, accordingly. The Decision-maker will explain any decision to exclude a question as not relevant, or to reframe it for relevance.
The Decision-maker will limit or disallow questions on the basis that they are irrelevant, unduly repetitious (and thus irrelevant), or abusive. The Decision-maker has final say on all questions and determinations of relevance, subject to any appeal. The Decision-maker may ask Advisors to frame why a question is or is not relevant from their perspective but will not entertain argument from the Advisors on relevance once the Decision-maker has ruled on a question.
If the parties raise an issue of bias or conflict of interest of an Investigator or Decision-maker at the hearing, the Decision-maker may elect to address those issues, consult with legal counsel, and/or refer them to the Title IX Coordinator, and/or preserve them for appeal. If bias is not in issue at the hearing, the Decision-maker should not permit irrelevant questions that probe for bias.
4.6.5J Refusal to Submit to Cross-Examination and Inferences
If a party or witness chooses not to submit to cross-examination at the hearing, either because they do not attend the meeting, or they attend but refuse to participate in questioning, then the Decision-maker(s) may not rely on any prior statement made by that party or witness at the hearing (including those contained in the investigation report) in the ultimate determination of responsibility. The Decision-maker(s) must disregard that statement. Evidence provided that is something other than a statement by the party or witness may be considered.
If the party or witness attends the hearing and answers some cross-examination questions, only statements related to the cross-examination questions they refuse to answer cannot be relied upon. However, if the statements of the party who is refusing to submit to cross-examination or refuses to attend the hearing are the subject of the allegation itself (e.g., the case is about verbal harassment or a quid pro quo offer), then those statements are not precluded from admission. Similarly, statements can be relied upon when questions are posed by the Decision-maker(s), as distinguished from questions posed by Advisors through cross-examination.
The Decision-maker(s) may not draw any inference solely from a party’s or witness’s absence from the hearing or refusal to answer cross-examination or other questions.
If charges of policy violations other than sexual harassment are considered at the same hearing, the Decision-maker(s) may consider all evidence it deems relevant, may rely on any relevant statement as long as the opportunity for cross-examination is afforded to all parties through their Advisors.
If a party’s Advisor of choice refuses to comply with the University’s established rules of decorum for the hearing, the University may require the party to use a different Advisor. If a recipient-provided Advisor refuses to comply with the rules of decorum, the University may provide that party with a different Advisor to conduct cross-examination on behalf of that party.
4.6.5K Recording Hearings
Hearings (but not deliberations) are recorded by the university for purposes of review in the event of an appeal. The parties may not record the proceedings and no other unauthorized recordings are permitted.
The Decision-maker(s), the parties, their Advisors, and appropriate administrators of the university will be permitted to listen to the recording in a controlled environment determined by the Title IX Coordinator. No person will be given or be allowed to make a copy of the recording without permission of the Title IX Coordinator.
4.6.5L Deliberation, Decision-making, and Standard of Proof
The Decision-maker(s) will deliberate in closed session to determine whether the Respondent is responsible or not responsible for the policy violation(s) in question. If a panel is used, a simple majority vote is required to determine the finding. The preponderance of the evidence standard of proof is used. The hearing facilitator may be invited to attend the deliberation by the Decision-maker, but is there only to facilitate procedurally, not to address the substance of the allegations.
If the Decision-maker(s) find that a policy violation has occurred, they will then review the statements and any pertinent conduct history provided by the Dean of Students and will determine the appropriate sanction(s) in consultation with the Dean.
The Decision-maker will then prepare a written deliberation statement and deliver it to the Title IX Coordinator, detailing the determination, rationale, the evidence used in support of its determination, the evidence disregarded, credibility assessments, and any sanctions.
This report typically should not exceed three (3) to five (5) pages in length and must be submitted to the Title IX Coordinator within two (2) business days of the end of deliberations, unless the Title IX Coordinator grants an extension. If an extension is granted, the Title IX Coordinator will notify the parties.
4.6.6 Notice of Outcome
Using the deliberation statement, the Title IX Coordinator will work with the Decision-maker to prepare a Notice of Outcome. The Title IX Coordinator will then share the letter, including the final determination, rationale, and any applicable sanction(s) with the parties and their Advisors within 7 (seven) business days of receiving the Decision-maker(s)’ deliberation statement.
The Notice of Outcome will then be shared with the parties simultaneously. Notification will be made in writing and may be delivered by one or more of the following methods: in person, mailed to the local or permanent address of the parties as indicated in official university records, or emailed to the parties’ university-issued email or otherwise approved account. Once mailed, emailed, and/or received in-person, notice will be presumptively delivered.
The Notice of Outcome will identify the specific policy(ies) reported to have been violated, including the relevant policy section(s), and will contain a description of the procedural steps taken by the university from the receipt of the misconduct report to the determination, including any and all notifications to the parties, interviews with parties and witnesses, site visits, methods used to obtain evidence, and hearings held.
The Notice of Outcome will specify the finding on each alleged policy violation; the findings of fact that support the determination; conclusions regarding the application of the relevant policy to the facts at issue; a statement of, and rationale for, the result of each allegation to the extent the university is permitted to share such information under state or federal law; any sanctions issued which the university is permitted to share according to state or federal law; and any remedies provided to the Complainant designed to ensure access to the university’s Education Program or Activities, to the extent the university is permitted to share such information under state or federal law (this detail is not typically shared with the Respondent unless the remedy directly relates to the Respondent).
The Notice of Outcome will also include information on the available appeals and the timelines thereof.
If an appeal is not filed by the deadline, the results of the formal grievance process are considered final.
Factors considered when determining a sanction/responsive action may include, but are not limited to:
- The nature, severity of, and circumstances surrounding the violation(s)
- The Respondent’s disciplinary history
- Previous allegations or allegations involving similar conduct
- The need for sanctions/responsive actions to bring an end to the discrimination, harassment, and/or retaliation
- The need for sanctions/responsive actions to prevent the future recurrence of discrimination, harassment, and/or retaliation
- The need to remedy the effects of the discrimination, harassment, and/or retaliation on the Complainant and the community
- The impact on the parties
- Any other information deemed relevant by the Decision-maker(s)
The sanctions will be implemented as soon as is feasible, either upon the outcome of any appeal or the expiration of the window to appeal without an appeal being requested.
The sanctions described in this policy are not exclusive of, and may be in addition to, other actions taken or sanctions imposed by external authorities.
Please see Appendix E for a list of possible student and employee sanctions.
Any party may file a request for appeal (“Request for Appeal”), but it must be submitted in writing to the Title IX Coordinator within 5 (five) business days of the delivery of the Notice of Outcome.
A single Appeal Decision-maker will Chair the appeal. The Appeal Decision-maker will not have been involved in the process previously, including any dismissal appeal that may have been heard earlier in the process.
The Request for Appeal will be forwarded to the Appeal Decision-maker for consideration to determine if the request meets the grounds for appeal (a Review for Standing).
This review is not a review of the merits of the appeal, but solely a determination as to whether the request meets the requirements for an appeal to be considered, including timeliness.
4.6.8A Grounds for Appeal
Appeals are limited to the following grounds:
- Procedural irregularity that affected the outcome of the matter;
- New evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made, that could affect the outcome of the matter; and
- The Title IX Coordinator, Investigator(s), or Decision-maker(s) had a conflict of interest or bias for or against Complainants or Respondents generally or the specific Complainant or Respondent that affected the outcome of the matter.
If any of the grounds in the Request for Appeal do not meet the grounds in this Policy, that request will be denied by the Decision-maker and the parties and their Advisors will be notified in writing of the denial and the rationale.
If any of the grounds in the Request for Appeal meet the grounds in this Policy, then the Appeal Decision-maker will notify the other party(ies) and their Advisors, the Title IX Coordinator, and, when appropriate, the Investigators and/or the original Decision-maker(s).
The other party(ies) and their Advisors, the Title IX Coordinator, and, when appropriate, the Investigators and/or the original Decision-maker(s) will be mailed, emailed, and/or provided a hard copy of the request with the approved grounds and then be given 5 business days to submit a response to the portion of the appeal that was approved and involves them. All responses will be forwarded by the Decision-maker to all parties for review and comment.
The non-appealing party (if any) may also choose to raise a new ground for appeal at this time. If so, that will be reviewed for standing by the Appeal Decision-maker and either denied or approved. If approved, it will be forwarded to the party who initially requested an appeal, the Investigator(s) and/or original Decision-maker(s), as necessary, who will submit their responses in 5 (five) business days, which will be circulated for review and comment by all parties.
Neither party may submit any new requests for appeal after this time period. The Appeal Decision-maker will collect any additional information needed and all documentation regarding the approved grounds and the subsequent responses and the Decision-maker will render a decision in no more than 5 (five) business days, barring exigent circumstances. All decisions apply the preponderance of the evidence standard.
A Notice of Appeal Outcome will be sent to all parties simultaneously, including the decision on each approved ground and rationale for each decision. The Notice of Appeal Outcome will specify the finding on each ground for appeal, any specific instructions for remand or reconsideration, and the rationale supporting the essential findings to the extent the University is permitted to share under state or federal law.
Notification will be made in writing and may be delivered by one or more of the following methods: in person, mailed to the local or permanent address of the parties as indicated in official institutional records, or emailed to the parties’ University-issued email or otherwise approved account. Once mailed, emailed and/or received in-person, notice will be presumptively delivered.
4.6.8B Sanctions Status During the Appeal
Any sanctions imposed as a result of the hearing are stayed during the appeal process. Support Measures may be reinstated, subject to the Support Measures procedures established earlier in this policy.
If any of the sanctions are to be implemented immediately post-hearing, such as a removal or partial removal from the university, then there must be an opportunity for a show cause meeting with the Title IX Coordinator (see Emergency Removal procedure above).
The university may place holds on official transcripts, diplomas/degrees, commencement activities, and course registration pending the outcome of an appeal when the original sanctions included separation.
4.6.8C Appeal Considerations
- Appeal Decision-makers should show deference to the judgment of the hearing Decision-makers, making changes to the finding only when there is clear error and to the sanction(s)/responsive action(s) only if there is a compelling justification to do so.
- Appeals are not intended to provide for a full (de novo) re-hearing of the allegation(s). In most cases, appeals are confined to a review of the written documentation or record of the original hearing and pertinent documentation regarding the specific grounds for appeal.
- The Appeal Decision-makers may consult with the Title IX Coordinator on questions of procedure, rationale, or clarification, if needed.
- Once an appeal is decided, the outcome is final: further appeals of that decision are not permitted. Any issues that arise on remand before the hearing panel are subject to the same appeals rights as the initial proceeding.
- In rare cases where a procedural or substantive error cannot be cured by the original Decision-maker(s) (as in cases of bias), the appeal Decision-maker may order a new hearing with a new Decision-maker(s).
- The results of a decision reached upon remand by Decision-maker(s) cannot be appealed. The results of a new hearing can be appealed, once, on any of the three available appeal grounds.
- In cases in which the appeal results in Respondent’s reinstatement to the University or resumption of privileges, all reasonable attempts will be made to restore the Respondent to their prior status, recognizing that some lost opportunities may be irreparable in the short term.
4.6.9 Long-Term Remedies/Other Actions
Following the conclusion of the resolution process, and in addition to any sanctions implemented, the Title IX Coordinator may implement additional long-term remedies or Support Measures with respect to the parties and/or the campus community that are intended to stop the harassment, discrimination, and/or retaliation, remedy the effects, and prevent reoccurrence.
These remedies/actions may include, but are not limited to:
- Referral to counseling and health services
- Referral to the Employee Assistance Program
- Education to the individual and/or the community
- Permanent alteration of housing assignments
- Permanent alteration of work arrangements for employees
- Provision of campus safety escorts
- Climate surveys
- Policy modification and/or training
- Provision of transportation accommodations
- Implementation of long-term contact limitations between the parties
- Implementation of adjustments to academic deadlines, course schedules, etc.
At the discretion of the Title IX Coordinator, certain long-term support or measures may also be provided to the parties even if no policy violation is found.
When no policy violation is found, the Title IX Coordinator will address any remedies owed by the University to the Respondent to ensure no effective denial of educational access.
4.6.10 Failure to Comply with Sanctions and/or Interim and Long-term Remedies and/or Responsive Actions
All Respondents are expected to comply with the assigned sanctions, responsive actions, and/or corrective actions within the timeframe specified by the final Decision-maker(s) (including the Appeal Decision-maker/Panel).
Failure to abide by the sanction(s)/action(s) imposed by the date specified, whether by refusal, neglect, or any other reason, may result in additional sanction(s)/action(s), including suspension, expulsion, and/or termination from the University and may be noted on a student’s official transcript.
A suspension will only be lifted when compliance is achieved to the satisfaction of the Title IX Coordinator.
Records of the following shall be maintained by the university for at least period of seven years:
1. Each sexual harassment investigation including any determination regarding responsibility and any audio or audiovisual recording or transcript required under federal regulation;
2. Any disciplinary sanctions imposed on the Respondent;
3. Any remedies provided to the Complainant designed to restore or preserve equal access to the University’s education program or activity;
4. Any appeal and the result therefrom;
5. Any Informal Resolution and the result therefrom;
6. All materials used to train Title IX Coordinators, Investigators, Decision-makers, and any person who facilitates an Informal Resolution process. The university will make these training materials publicly available on the university’s website.; and
7. Any actions, including any Support Measures, taken in response to a report or Formal Complaint of sexual harassment, including:
- The basis for all conclusions that the response was not deliberately indifferent;
- Any measures designed to restore or preserve equal access to the university’s education program or activity; and
The University will also maintain any and all records in accordance with state and federal laws.
4.8 Student Complainant or Respondent Right to File Complaint
If a student Complainant or Respondent believes the university has failed to investigate the alleged policy violation in accordance with law or policy, a complaint may be filed with:
U.S. Department of Education
Office of Civil Rights, Region 10
810 3rd Avenue #750
Seattle, WA 98104
4.9 Employee Complainant or Respondent Right to File Complaint
An employee Complainant or Respondent may file a complaint with either of the following:
Idaho Human Rights Commission
317 West Main Street
Boise, ID 83702
Equal Employment Opportunity Commission
4.10 Training and Educational Programming and Notification of Services
The university will provide primary prevention and awareness programming to all incoming students and new employees and will provide ongoing prevention and awareness campaigns throughout the year. Specific elements of the programming are described more fully in the Annual Security Report available at https://security.boisestate.edu/annual-security-reports/. Programming will, at a minimum, include the following:
1. Information on all aspects of this policy and its application at Boise State University.
2. A statement of the university’s prohibition of domestic violence, dating violence, sexual assault and Stalking, Consent, and definitions of each, as they are defined under Idaho law and also how they are defined in University policy (set forth in full in the Definitions section at the beginning of this policy).
3. Bystander intervention training, covering safe and positive options for intervention that may be carried out by a bystander to prevent harm when there is a risk of domestic violence, dating violence, sexual assault, or Stalking occurring. Programs will also offer information on risk reduction including how to recognize warning signs of abusive behavior and how to avoid potential attacks.
4. Information for victims of sex offenses, domestic violence, dating violence, and/or Stalking including services and assistance available to victims, how to report an offense, the importance of preserving evidence, and the rights of victims.
5. Related Information
5.1 Contact Offices and Contact Information
Title IX Coordinator
Office of Institutional Compliance and Ethics
1987 Cesar Chavez Lane – Riverfront Hall, Room 306
1910 University Drive
Boise, ID 83725
Phone: (208) 426-1258
Office of the Dean of Students
Student Conduct Administrator
2100 University Drive – Campus School, Suite 120
1910 University Drive
Boise, ID 83725
Phone: (208) 426-1527
Department of Public Safety
2245 University Drive
Boise, ID 83725
Phone: (208) 426-6911
5.2 Revision of this Policy and Procedures
This Policy and procedures supersede any previous policy(ies) addressing harassment, sexual misconduct, discrimination, and/or retaliation and will be reviewed and updated annually by the Title IX Coordinator. The university reserves the right to make changes to this document as necessary, and once those changes are posted online, they are in effect.
During the resolution process, the Title IX Coordinator may make minor modifications to procedures that do not materially jeopardize the fairness owed to any party, such as to accommodate summer schedules. The Title IX Coordinator may also vary procedures materially with notice (on the institutional website, with the appropriate effective date identified) upon determining that changes to law or regulation require policy or procedural alterations not reflected in this Policy and procedures.
If government laws or regulations change – or court decisions alter – the requirements in a way that impacts this document, this document will be construed to comply with the most recent government regulations or holdings.
This document does not create legally enforceable protections beyond the protection of the background state and federal laws which frame such policies and codes, generally.
This Policy and procedures are effective August 14, 2020.
ATIXA 2020 ONE POLICY, TWO PROCEDURES MODEL
USE AND ADAPTATION OF THIS MODEL WITH CITATION TO ATIXA IS PERMITTED
THROUGH A LIMITED LICENSE
TO BOISE STATE UNIVERSITY
ALL OTHER RIGHTS RESERVED.
6. Appendix A – Statement of the Rights of the Parties
The parties each have the right to:
- Be treated in accordance with the University’s Shared Values.
- An equitable investigation and resolution of all credible allegations of prohibited sexual harassment or discrimination made in good faith to University
- Timely written notice of all alleged violations, including the identity of the parties involved (if known), the precise misconduct being alleged, the date and location of the alleged misconduct (if known), the implicated policies and procedures, and possible sanctions.
- Timely written notice of any material adjustments to the allegations (e.g., additional incidents or allegations, additional Complainants, unsubstantiated allegations) and any attendant adjustments needed to clarify potentially implicated policy violations.
- Be informed in advance of any public release of information regarding the allegation(s) or underlying incident(s), whenever possible.
- Not to have any personally identifiable information released to the public without their consent, except to the extent permitted by law.
- Have the University policies and procedures followed without material deviation.
- Be free from pressure to mediate or otherwise informally resolve any reported misconduct involving violence, including sexual violence.
- To report sexual misconduct or discrimination to both on-campus and off-campus authorities.
- Be informed by University officials of options to notify proper law enforcement authorities, including on-campus and local police, and the option(s) to be assisted by University authorities in notifying such authorities, if the party so chooses. This includes the right not to be pressured to report.
- Have allegations of violations of this Policy responded to promptly.
- Be informed of available interim actions and Support Measures, such as counseling; advocacy; health care; legal, student financial aid, visa, and immigration assistance; or other services, both on campus and in the community.
- To request a no-contact order when a person has engaged in or threatens to engage in stalking, threatening, harassing, or other improper conduct that presents a danger to the welfare of the party or others.
- Be informed of available assistance in changing academic, living, and/or working situations after an alleged incident of discrimination, harassment, and/or retaliation, if such changes are reasonably available. No Formal Complaint or investigation needs to occur before this option is available.
- Have the University maintain such actions for as long as necessary and for Support Measures to remain private so long as this does not impair the University’s ability to provide the Support Measures.
- Ask the Investigator(s) and Decision-maker(s) to identify and question relevant witnesses.
- Provide the Investigator(s)/Decision-maker(s) with a list of questions that, if deemed relevant by the Investigator(s)/Decision-maker, may be asked of any party or witness.
- Access relevant and directly related evidence obtained and to respond to that evidence.
- Provide the Investigator(s) with their account of the alleged misconduct and have that account be conveyed to the hearing Decision-maker(s).
- Receive a copy of the investigation report, including all facts, policy, and all relevant and directly related evidence available and used to produce the investigation report, subject to the privacy limitations imposed by state and federal law, prior to the hearing, and the right to have at least ten (10) business days to review the report prior to the hearing.
- Respond to the investigation report, including comments providing any additional relevant evidence after the opportunity to review the investigation report, and to have that response on the record.
- Be informed of the names of all witnesses whose information will be used to make a finding, in advance of that finding, when relevant.
- Regular updates on the status of the investigation and/or resolution.
- Have reports of alleged Policy violations addressed by Investigators, Title IX Coordinators, and Decision-maker(s) who have received relevant annual training.
- Preservation of privacy, to the extent possible and permitted by law.
- Meetings, interviews, and/or hearings that are closed to the public.
- Petition that any University representative in the process be recused on the basis of disqualifying bias and/or conflict of interest.
- Have an Advisor of their choice to accompany and assist the party in all meetings and/or interviews associated with the resolution process.
- Have the University compel the participation of faculty and staff witnesses in the investigation.
- Be present, including via remote technology, during all testimony given and evidence presented during any formal grievance hearing.
- Have an impact statement be considered by the Decision-maker(s) following a determination of responsibility for any allegation, but prior to sanctioning.
- Be promptly informed in a written Notice of Outcome letter of the finding(s) and sanction(s) of the resolution process and a detailed rationale therefor (including an explanation of how credibility was assessed), delivered simultaneously (without undue delay) to the parties.
- Be informed in writing of when a decision by the University is considered final and any changes to the sanction(s) that occur before the decision is finalized.
- Be informed of the opportunity to appeal the finding(s) and sanction(s) of the resolution process, and the procedures for doing so in accordance with the standards for appeal established by the University.
- A fundamentally fair resolution as defined in these procedures.
7. Appendix B – Examples of Unwelcome Conduct
Unwelcome conduct, as referenced in section 3.28 (2) above, may include, but is not limited to:
- Attempting to coerce an unwilling person into a sexual relationship;
- Repeatedly subject a person to unwelcome sexual attention, unwanted comments, or communications or jokes of a sexual nature or about their sexual experiences or orientation;
- Punishing a refusal to comply with a sexual request;
- Conditioning a benefit on submitting to sexual advances;
- Threatening sexual violence;
- Bullying someone on the basis of sex or gender. This includes bullying someone for exhibiting what is perceived as a stereotypical characteristic for their sex, or for failing to conform to stereotypical notions of masculinity and femininity. This may include repeated use of degrading words, gestures, or sounds to describe a person; or
- Sexual Exploitation on the basis of sex and/or gender. Examples of sexual exploitation include, but are not limited to:
- Invasion of sexual privacy;
- Prostituting a member of the university community;
- Nonconsensual recording of any form of a sexual activity;
- Duplication, distribution, or publication of a consensually made recording of a sexual activity without the Consent of all parties involved in the recorded sexual act;
- Going beyond the boundaries of Consent, including letting someone else watch a consensual sex act while hiding;
- Knowingly viewing, photographing, or filming another person without that person’s knowledge and Consent, while the person being viewed, photographed, or filmed person is in a place where there is a reasonable expectation of privacy;
- Knowingly transmitting a sexually transmitted infection to a Member of the University Community; or
- Exposing one’s genitals or inducing another to expose their genitals in nonconsensual circumstances.
Stalking behaviors may include, but are not limited to:
- Nonconsensual communication including, in-person communication, telephone calls, voice messages, text messages, email messages, social networking site postings, instant messages, postings of images or information on websites, written letters or notes, gifts, or any other communications that are undesired and/or place another person in fear;
- Following, pursuing, waiting, or showing up uninvited at a workplace, place of residence, classroom, or other locations frequented by the person being targeted;
- Surveillance and other types of observation, whether by physical proximity or electronic means;
- Nonconsensual touching;
- Direct physical and/or verbal threats against a person being targeted or that person’s friends, family members, or animals;
- Gathering of information about a person from that person’s family, friends, co-workers, or classmates;
- Manipulating and controlling behaviors such as threats to harm oneself or threats to harm someone close to the target of the behaviors; or Defamation or slander of the person being targeted.
8. Appendix C – Support Measures
Support Measures may include, but are not limited to:
- Referral to counseling, medical, and/or other healthcare services
- Referral to the Employee Assistance Program
- Referral to community-based service providers
- Visa and immigration assistance
- Student financial aid counseling
- Education to the community or community subgroup(s)
- Altering campus housing assignment(s)
- Altering work arrangements for employees or student-employees
- Safety planning
- Providing campus safety escorts
- Providing transportation accommodations
- Implementing contact limitations (no contact orders) between the parties
- Academic support, extensions of deadlines, or other course/program-related
- Timely warnings
- Class schedule modifications, withdrawals, or leaves of absence
- Increased security and monitoring of certain areas of the campus
- Any other actions deemed appropriate by the Title IX Coordinator
Violations of no contact orders will be referred to appropriate student or employee conduct processes for enforcement.
8.1 Support Services
Ada County Community Services
FACES, located at 417 S. 6th Street, Boise, (208) 577-4400, is a specialized facility close to campus with experienced nurses and physicians trained to conduct sexual assault forensic exams. The emergency rooms at St. Alphonsus or St. Luke’s (Boise and Meridian) hospitals; both have response teams specially trained to assist victims of sexual assault, domestic violence, and dating violence.
In addition to the Gender Equity Center and the Title IX Coordinator, there are many services available on campus and in the community to support students and employees in crises, including counseling, health, mental health, victim advocacy, legal assistance, and other services. Students and employees may call Boise State Counseling Services at (208) 426-1601, Boise State Health Services at (208) 426-1459 (confidential services) during weekday business hours, and the Faculty Ombuds at (208) 426-6283. In the Boise area, there is also a confidential 24-hour rape crisis line (208) 345-7273 and a confidential 24-hour domestic violence crisis hotline (208) 343-7025 operated by the Women’s and Children’s Alliance (WCA) and is available to respond to concerns and provide referral information.
Mountain Home Community Services
• St. Luke’s Elmore County, located at 895 N. 6th E Street, Mountain Home, (208) 587-8401, providing emergency medical services, forensic and physical exams and preventative care.
• Mountain Home Air Force Base Urgent Care and Women’s Health Clinic 90 Hope Drive Bldg. 6000, Mountain Home AFB, ID 83648, (208) 828-7900
The Elmore County Domestic Violence Council at (208) 587-9091 for support services and referral to local counseling options.
Twin Falls Community Services
St. Luke’s Magic Valley Medical Center, 212 3rd Ave. S, Twin Falls, Idaho (208) 732-3000, providing emergency medical services, forensic and physical exams and preventative care.
The Crisis Center of Magic Valley, 244 2nd Ave. E, Twin Falls, (208) 733-0100, or the Mini-Cassia Shelter for Women & Children, 123 S. C Street, Rupert, (208) 436-0987 for support services and referral to local counseling options.
Coeur d’Alene Community Services
Kootenai Health, located at 2003 Kootenai Health Way, Coeur d’Alene, Idaho (208) 625-4000, providing emergency medical services, forensic and physical exams and preventative care.
The North Idaho Violence Prevention Center, 850 N. 4th Street, Coeur d’Alene, (208) 664-9303 or the Post Falls Police Department OASIS Program, 1717 E. Polston Ave, Post Falls (208) 773-3517 for support services and referral to local counseling options.
Lewiston Community Services
St. Joseph Regional Medical Center 1250 Idaho St., Lewiston (208) 799-5533, providing emergency medical services, forensic and physical exams and preventative care.
Please contact the YMCA of Lewiston-Clarkston, 300 Main Street, Lewiston, (208) 734-1535 for support services and referral to local counseling options.
9. Appendix D – Pool Member Training
The Pool Members used in the Formal Grievance Process receive annual training. This training includes, but is not limited to:
- The scope of the University’s Discrimination and Harassment Policy and Procedures
- How to conduct investigations and hearings that protect the safety of Complainants and Respondents, and promote accountability
- Implicit bias
- Disparate treatment and impact
- Reporting, confidentiality, and privacy requirements
- Applicable laws, regulations, and federal regulatory guidance
- How to implement appropriate and situation-specific remedies
- How to investigate in a thorough, reliable, and impartial manner
- How to uphold fairness, equity, and due process
- How to weigh evidence
- How to conduct questioning
- How to assess credibility
- Impartiality and objectivity
- How to render findings and generate clear, concise, evidence-based rationales
- The definitions of all offenses
- How to apply definitions used by the University with respect to consent (or the absence or negation of consent) consistently, impartially, and in accordance with policy
- How to conduct an investigation and grievance process including hearings, appeals, and informal resolution processes
- How to serve impartially by avoiding prejudgment of the facts at issue, conflicts of interest, and bias
- Any technology to be used at a live hearing
- Issues of relevance of questions and evidence
- Issues of relevance to create an investigation report that fairly summarizes relevant evidence
- How to determine appropriate sanctions in reference to all forms of harassment, discrimination, and/or retaliation allegations
- Specific training is also provided for Appeal Decision-makers, intake personnel, Advisors (who are University employees), and Decision-makers. All Pool members are required to attend these trainings annually. The materials used to train all members of the Pool will be posted on the Office of Institutional Compliance’s website.
10. Appendix E – Sanctions
10.1 Student Sanctions
Sanctions that may be imposed upon students or student organizations singly or in combination could include but are not limited to:
A formal statement that the conduct was unacceptable and a warning that further violation of any university policy, procedure, or directive will result in more severe sanctions/responsive actions.
10.1.2 Required Mentorship
A mandate to meet with a mentor and complete a subsequent reflective essay.
10.1.3 Required Counseling
A mandate to meet with and engage in either University -sponsored or external counseling to better comprehend the misconduct and its effects.
A written reprimand for violation of institutional policy, providing for more severe disciplinary sanctions in the event that the student or organization is found in violation of any institutional policy, procedure, or directive within a specified period of time. Terms of the probation will be articulated and may include denial of specified social privileges, exclusion from co-curricular activities, exclusion from designated areas of campus, no-contact orders, and/or other measures deemed appropriate.
Termination of student status for a definite period of time not to exceed two years and/or until specific criteria are met. Students who return from suspension are automatically placed on probation through the remainder of their tenure as a student at University.
10.1.6 Removal from Housing
Permanent termination of student status and revocation of rights to be on campus for any reason or to attend University -sponsored events.
10.1.8 Withholding Degree
The University may withhold a student’s degree/diploma for a specified period of time and/or deny a student participation in commencement activities if the student is found responsible for an alleged violation.
10.1.9 Organizational Sanctions
Deactivation, loss of recognition, loss of some or all privileges (including University registration) for a specified period of time.
10.1.10 Other Actions
In addition to or in place of the above sanctions, the University may assign any other sanctions as deemed appropriate such as Community Service and other educational projects meant to address the harm to the University community.
10.2 Employee Sanctions
Responsive actions for an employee who has engaged in harassment, discrimination, and/or retaliation could include, but are not limited to:
- In addition to, or in place of the above sanctions, the University may assign any other sanctions as deemed appropriate.
- Warning – Verbal or Written
- Performance Improvement/Management Process
- Required Counseling
- Required Training or Education
- Loss of Annual Pay Increase
- Loss of Oversight or Supervisory Responsibility
- Suspension with pay
- Suspension without pay
- Other Actions: In addition to, or in place of the above sanctions, the University may assign any other sanctions as deemed appropriate.
In cases where the Respondent is a University employee and the Investigator determines a policy violation occurred, a summary of findings will be provided to the AVP for Human Resources (or designee) and the Respondent’s hiring authority, who will together, in consultation with the Decision-maker, determine whether disciplinary action is warranted.
If disciplinary action is proposed, Human Resources will assist the hiring authority in initiating the applicable disciplinary process. Disciplinary and appeal processes for University employees are addressed in the following policies:
- Classified employees – University Policy 7430 (Classified Employee Disciplinary Action)
10.3 Notification to Grant Funding Agencies – Employees
If an employee serves as the Principal Investigator (PI) or co-PI on a grant sponsored by a governmental entity that requires the University to report any finding/determination that a PI or co-PI has been found to have violated this policy, the University must report such finding(s) to the funding agency in accordance with grant requirements.
11. Appendix F – Official with Authority
- Title IX Coordinator
- Executive Director of Institutional Compliance and Ethics
- Dean of Students
- All Vice Presidents
- Athletic Director, Deputy Athletic Director, Senior Associate Athletic Directors, Associate Athletic Directors, and all Athletic Department Head Coaches
- Associate Vice President for Human Resources
- Director of Housing
- Director of Public Safety
 Unwelcomeness is subjective and determined by the Complainant (except when the Complainant is below the age of consent). Severity, pervasiveness, and objective offensiveness are evaluated based on the totality of the circumstances from the perspective of a reasonable person in the same or similar circumstances (“in the shoes of the Complainant”), including the context in which the alleged incident occurred and any similar, previous patterns that may be evidenced.
 The existence of such a relationship shall be determined based on the available evidence with consideration of the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship. For the purposes of this definition, Dating Violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse. Dating violence does not include acts covered under the definition of domestic violence.
 See Section 4.1 above for the limits on the jurisdiction of Title IX. When allegations of Sexual Harassment and Discrimination occur outside the jurisdiction of Title IX, the university will investigate those complaints under this policy. By way of example, if Complainant originally alleged that the sexual assault occurred on-campus but then later remembered during the investigation that it happened off-campus, the parties would receive an amended Notice of Investigation in which the charge would be dropped under Title IX but pursued under Policy 1065. This is procedural mandate of the Title IX regulations.
 The final investigation report may be shared using electronic means that preclude downloading, forwarding, or otherwise sharing.
March 2015; February 2017; October 2017; July 2019; September 2019; December 2019; August 13, 2020