Formal Grievance Policy

As Required by the U.S. Department of Education, 34 C.F.R. § 106.45,
Effective August 14, 2020

Section I: Introduction

Section II: Scope of Policy

Section III: USDOE Statements of Equitable Treatment

Section IV: Formal Grievance Process

Section V: Retaliation

 

Section I: Introduction

As required by the U.S. Department of Education under new Title IX Regulations, effective August 14, 2020, this Policy addresses certain types of sexual misconduct via a defined process.  The scope of this Policy is set forth in Section II, below.  This Policy contains citations to the applicable Title IX Regulations throughout.  See 34 C.F.R. Part 106.

The complete Rhodes Sexual Misconduct Policy addresses sexual misconduct beyond the scope of the Title IX Regulations.

The complete Rhodes Anti-Discrimination and Harassment Policy addresses sexual harassment involving employees that does not meet the definitional requirements of “sexual harassment” under this Formal Grievance Policy.

This Formal Grievance Policy proceeds in four additional sections.

 

Section II defines the scope of this Formal Grievance Policy. Under the new Title IX Regulations, sexual harassment (a subset of sexual misconduct) must be investigated and adjudicated according to the procedures set forth in this policy. Although the new Title IX Regulations narrowly define sexual harassment, Rhodes remains committed to providing a higher education environment that is free from sexual discrimination, sexual misconduct, and gendered violence. To that end, sexual misconduct that does not rise to the level of sexual harassment as defined by the U.S. Department of Education, or that does not meet Title IX’s jurisdictional requirements, will still be investigated and addressed under the Rhodes Sexual Misconduct Policy or, in the case of Faculty or Staff, under the Anti-Discrimination and Harassment Policy.

Section III contains the U.S. Department of Education’s statements regarding equitable treatment under the Title IX Regulations. The concepts of equitable treatment include the provision of supportive measures and waiting until the grievance process concludes to make conclusions.  

Section IV contains Rhodes’ Formal Grievance Process, as required by the Regulations. This section contains information on filing a Formal Complaint of sexual harassment, the investigation process, the role of the Title IX Coordinator, Title IX’s live hearing requirements, the appeals process, and other topics. Students, faculty, and staff should consult this section to learn about the process Rhodes will use to investigate and adjudicate allegations of sexual harassment.

Section V explains that Rhodes will not retaliate against any person for that person’s involvement in the Title IX process.

This Formal Grievance Policy, as dictated by the U.S. Department of Education (USDOE), along with the comprehensive Rhodes Sexual Misconduct Policy and the Anti-Discrimination and Harassment Policy, are intended to define, address and remedy sexual misconduct for Rhodes students and employees.

Rhodes prohibits sexual misconduct by faculty, staff, students and those who use Rhodes facilities. The prohibition applies regardless of the gender of the individuals involved and includes sexual relationships involving a status differential and those between peers, colleagues, and co-workers.

This Policy applies to all members of the Rhodes community, including students, faculty and staff, and its terms supersede any contrary school policies pertaining to the investigation or adjudication of “sexual harassment” as defined in Section II.A. below.

Rhodes College is committed to ensuring a safe learning environment that supports the dignity of all members of the Rhodes community. As required by Title IX of the Education Amendments of 1972, Rhodes prohibits all unlawful discrimination, harassment and retaliation on the basis of sex, gender, gender identity, gender expression, or sexual orientation in any employment decision, admissions determination, education program or educational activity. This policy applies to all members of the Rhodes Community.

Rhodes, through the Title IX Coordinator, has jurisdiction over and the authority to receive, investigate, hear and resolve Reports and/or Complaints brought by or against any member of the Rhodes Community that invoke Title IX. The Title IX Coordinator is ultimately authorized to enact procedures that include specific instructions for reporting, investigating and resolving Title IX Complaints and Reports. Any questions about this policy, Rhodes’ processes under Title IX, or reports of alleged sexual misconduct should be directed to the Interim Title IX Coordinator:

Inez Warner
Rhodes College
Southwestern Hall, Ste. 200
2000 North Parkway
Memphis, TN 38112
901-843-3550
warneri@rhodes.edu

The Title IX Coordinator, in conjunction with the Director of Human Resources (for faculty and staff matters), will oversee all matters relating to sex discrimination (including sexual harassment) on campus, including distribution of policies, educational programs, investigations, policy enforcement, and follow-up with complainants and respondents in investigations. Any questions regarding this Formal Grievance Policy or Title IX generally may be directed to the Title IX Coordinator.

Section II: Scope of Policy

This Formal Grievance Policy will apply to “sexual harassment” in a Rhodes “education program or activity” against a person in the United States, per USDOE Regulations, effective August 14, 2020.  34 C.F.R. § 106.44(a).

A. Definitional Requirement
“Sexual harassment” is defined in the Regulations (§ 106.30) to be conduct on the basis of sex that satisfies one or more of the following:

  1. A Rhodes employee conditioning the provision of an aid, benefit, or service on an individual’s participation in unwelcome sexual conduct (“quid pro quo”);
  2. Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to Rhodes’ education program or activity; or
  3. Sexual assault, dating violence, domestic violence, or stalking.  (These terms are defined in the Definitions section of the Rhodes Sexual Misconduct Policy.)

“Sexual misconduct” is a broader term that covers other sex-based conduct beyond the USDOE’s “sexual harassment” definition.

If alleged sexual misconduct does not satisfy the USDOE’s definitional requirement, then it may be addressed according to the Rhodes Sexual Misconduct Policy and/or Rhodes Anti-Discrimination and Harassment Policy instead of this Policy.

B. Jurisdictional Requirement
An “education program or activity” includes locations, events, or circumstances over which Rhodes exercises substantial control over both the respondent and the context in which the sexual harassment occurs, and also includes any building owned or controlled by a student organization that is officially recognized by Rhodes. USDOE’s Regulations exclude any “education program or activity” that does not occur in the United States. (§ 106.44(a).) 

If alleged sexual misconduct does not satisfy the USDOE’s jurisdictional requirement, such as off-campus behavior alleged to have an on-campus effect, then it may be addressed under the Rhodes Sexual Misconduct Policy and/or Rhodes Anti-Discrimination and Harassment Policy instead of this Policy.

C. Other Definitions
The terms “Complainant” and “Respondent” are used throughout this Policy and the Rhodes Sexual Misconduct Policy. A Complainant is an individual who is alleged to be the victim of conduct that could constitute sexual harassment. A Respondent is an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment. (§ 106.30.)

Other terms, like Supportive Measures and Formal Complaint, are defined below. 

All relevant terms, including Consent and Incapacitation, are defined in the Rhodes Sexual Misconduct Policy.
“Sexual harassment” is defined differently in different contexts, including for employee issues under Title VII, as described in the Anti-Discrimination and Harassment Policy.

Section III: USDOE Statements of Equitable Treatment

A.  As required by USDOE’s Regulations, Rhodes’ Formal Grievance Process will “treat complainants and respondents equitably by [1] offering supportive measures … to a complainant, and [2] by following a grievance process that complies with [the new Title IX Regulations] before the imposition of any disciplinary sanctions or other actions that are not supportive measures … against a respondent.” (106.44(a); 106.45(b)(1)(i).) This Policy explains the new Title IX Regulations’ requirements.

Supportive measures also may be offered as needed to respondents and other members of the Rhodes community who may be affected by sexual misconduct.

B.  The Title IX Regulations define “supportive measures” as “non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the complainant or the respondent.” They may be sought or provided before or after a Formal Complaint is filed, or where no Formal Complaint has been filed. “Such measures are designed to restore or preserve equal access to the [school’s] education program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties or the [school’s] educational environment, or deter sexual harassment.”

Supportive measures may include: counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, campus escort services, mutual restrictions on contact between the parties, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of the campus, and other similar measures. Other supportive measures are described in Section XI of Rhodes’ comprehensive Sexual Misconduct Policy.

Rhodes will keep any supportive measures provided to the complainant or respondent confidential, to the extent possible. However, supportive measures that impact other members of the Rhodes community (e.g. mutual no-contact orders, where the other party must be informed of the order and its implications) may be disclosed in order to enforce them. The Title IX Coordinator will coordinate the effective implementation of supportive measures.

C.  An individual’s status as a respondent will not be considered a negative factor during consideration of the grievance. Respondents are entitled to, and will receive the benefit of, a presumption that they are not responsible for the alleged conduct unless and until the grievance process concludes and a determination regarding responsibility is issued. Similarly, a person’s status as a complainant, respondent, or witness will not determine whether or not they are deemed credible. (106.45(b)(1)(ii-iv).)

D.  Rhodes’ Formal Grievance Process will provide remedies to a complainant only if the grievance process described in this Policy results in a determination that the respondent is responsible for sexual harassment as defined by the DOE.  Remedies are designed to restore or preserve equal access to the school’s education program or activity, and they may include the same individualized services as supportive measures. Remedies may be disciplinary and punitive. (106.45(b)(1)(i).) In the event that the allegations do not meet the jurisdiction requirements and definition of “sexual harassment” under Title IX Regulations, see Rhodes’ Anti-Discrimination and Harassment Policy and/or Rhodes Sexual Misconduct Policy for further information related to investigation and available remedies.

E.  Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process (Title IX administrators) will not have a conflict of interest or bias in favor of or against complainants or respondents generally or an individual complainant or respondent in the grievance process. Rhodes will provide necessary and appropriate training toeach administrator involved in the Title IX process. Training materials will not rely on sex stereotypes and will promote impartial investigations and adjudications of Formal Complaints of sexual harassment. (106.45(b)(1)(iii).)

Section IV: Formal Grievance Process

This portion of the Policy outlines the steps taken to initiate a grievance, as well as USDOE’s procedural requirements for investigation and adjudication of Formal Complaints.

A. Formal Complaint

  1. The submission of a Formal Complaint triggers the Formal Grievance Process described herein when received by the Title IX Coordinator. A report may also be made to the Provost, the Director of Human Resources or the Deputy Title IX Coordinators, who will promptly notify the Title IX Coordinator. 

The Title IX Regulations define a Formal Complaint as “a document filed by a complainant or signed by the Title IX Coordinator alleging sexual harassment [as defined by the Title IX Regulations] against a respondent and requesting that [Rhodes] investigate the allegation of sexual harassment.”

At the time of filing a Formal Complaint, “a complainant must be participating in or attempting to participate in the education program or activity.” A Formal Complaint must be in writing, and may be filed with the Title IX Coordinator in person, by mail, by email, or through the online Report form available at http://sites.Rhodes.edu/TitleNine. The Formal Complaint must contain the complainant’s physical or digital signature, or some other indication that the complainant is the person filing it. (106.30.)

  1. If Rhodes receives an allegation of sexual misconduct that falls within the Formal Grievance Policy’s scope (it meets both the Title IX Regulations’ jurisdictional requirements and definition of “sexual harassment” (see Section II)) but no Formal Complaint is filed, then the new Title IX Regulations prevent Rhodes from administering a formal grievance process that may impose disciplinary sanctions or other actions against a respondent. Supportive measures, however, may still be given. According to USDOE, the purpose of the Formal Complaint is to clarify that the complainant (or the Title IX Coordinator) believes that the school should investigate the allegations of sexual harassment against the respondent. 34 C.F.R. § 106.44(a); 34 C.F.R. § 106.45(b)(1)(i); see also 34 C.F.R. § 106.8(c).

Accordingly, Rhodes strongly encourages complainants to file Formal Complaints to initiate the required Formal Grievance Process described in this Policy. If the alleged conduct meets the Regulations’ definitional and jurisdictional requirements, the law now requires a Formal Complaint before Rhodes can pursue a full investigation or explore the possibility of an informal or early resolution, which occur before holding a disciplinary hearing or issuing sanctions.

  1. After filing a Formal Complaint, a complainant may withdraw their Formal Complaint at any time by providing written notice to the Title IX Coordinator. That withdrawal will result in dismissal of the Formal Grievance Process unless the Title IX Coordinator takes action under subsection A.iv immediately below. (See also Subsection D.v. below regarding permissive dismissal.)
  2. A Title IX Coordinator may sign a Formal Complaint to initiate or continue the Formal Grievance Process described herein, if necessary to fulfill the school’s duties under Title IX to not be deliberately indifferent to actual knowledge of sexual misconduct. Signing a Formal Complaint does not make a Title IX Coordinator a complainant or otherwise a party.  (106.30.)
  3. Rhodes may, but is not required to, consolidate Formal Complaints arising out of the same factual circumstances in two scenarios:
      1. Where there is more than one complainant or respondent;
      2. Where a complaint has also been filed by the respondent against the complainant. (106.45(b)(4).) In such cases, the Formal Grievance Process for a later-filed complaint may be consolidated into an earlier-filed process rather than re-start from the beginning (e.g., the new charges may be considered in the course of a pre-existing investigation).
  4. Mandatory Dismissal (106.45(b)(3)(i, iii).)
  5. If a Formal Complaint is filed, Rhodes will investigate its allegations.
  6. If the conduct alleged does not meet the Formal Grievance Policy scope requirements in Section II for “sexual harassment” as defined by USDOE, Rhodes must dismiss the Formal Complaint under this Policy.  However, in such circumstance, the complaint will be addressed under the Rhodes Sexual Misconduct Policy and/or Rhodes Anti-Discrimination and Harassment Policy for review and possible investigation and resolution.
  7. In such circumstance, Rhodes will promptly and simultaneously send written notice to each party of the dismissal of the Formal Complaint, the reasoning, and the transfer.

B. Title IX Coordinator Initial Responsibilities

  1. Upon receipt of any report of alleged sexual misconduct, the Title IX Coordinator will promptly contact the complainant to discuss the availability of supportive measures and explain the process involved in filing a Formal Complaint. The Title IX Coordinator will inform the complainant of the availability of supportive measures with or without the filing of a Formal Complaint, and will consider the complainant’s wishes with respect to supportive measures. (106.44(a).)
  2. Supportive measures will be assessed and may be offered as needed to complainants, respondents and other members of the Rhodes community who may have been affected by the alleged conduct. Supportive measures are discussed in Section III.B. 
  3. The Title IX Coordinator may conduct a limited, threshold investigation:
  4. to determine if the alleged conduct meets the Formal Grievance Policy scope requirements in Section II for § 106.30 “sexual harassment;” 
  5. to determine whether the school’s Title IX obligations require the Title IX Coordinator to “sign” a Formal Complaint if the Complainant does not file one; and
  6. for other limited purposes;

provided that if a Formal Complaint is filed or signed, the Title IX Coordinator will fulfill the terms of this Formal Grievance Process, including the notice provisions immediately below and the more thorough investigation process described below even if it is somewhat duplicative of the threshold investigation.

If the respondent is a current employee, the Deputy Title IX Coordinator for HR matters may conduct or participate in the threshold investigation. 

  1. The Title IX Coordinator may remove a respondent from the education program or activity on an emergency basis if the Title IX Coordinator conducts an individualized safety and risk analysis and determines that there is an immediate threat to the physical health or safety of any student or other individual arising from the allegations of sexual harassment justifying removal. The respondent must receive notice and an opportunity to challenge the decision immediately following the removal. (106.44(c).)
  2. The Title IX Coordinator, or the Deputy Title IX Coordinator for HR matters, may place a non-student employee respondent on administrative leave during the pendency of a Formal Grievance Process. (106.44(d).)

For any case involving both a student and an employee, the Title IX Coordinator and the Deputy Title IX Coordinator for HR matters will work jointly. 

C. Notice of Allegations (106.45(b)(2))[1]

  1. Upon receipt of a Formal Complaint, Rhodes will provide written notice to known parties of the following:
  1. Notice of Rhodes’ Formal Grievance Process by providing access to this policy.
  2. Notice of the allegations potentially constituting sexual harassment as defined by USDOE, including sufficient details known at the time. Sufficient details are defined in the Title IX Regulations to include:
        1. The identities of the parties involved in the incident, if known;
        2. The conduct allegedly constituting sexual harassment; and
        3. The date and location of the alleged incident, if known.
  3. Per the Title IX Regulations, the written notice must also include the following statements:
  1. The respondent is presumed not responsible for the alleged conduct.
  2. A determination regarding responsibility is made at the conclusion of the grievance process.
  3. The parties may have an advisor of their choice, who may be, but is not required to be, an attorney.
  4. The parties may inspect and review evidence.
  5. The parties are prohibited from knowingly making false statements or knowingly submitting false information during the grievance process.
  1. The notice must be given as soon as practicable and with sufficient time to prepare a response before any initial investigation interview.
  2. If, at any point during the course of the investigation, Rhodes decides to investigate allegations that are not included in the original notice, it will provide notice of the additional allegations to the parties.

 

D. Investigation Procedure

 

  1. The Title IX Coordinator will appoint an Investigator to investigate the allegations subject to the Formal Grievance Process. The investigation may include, among other steps, interviewing the complainant, the respondent, and any witnesses; reviewing law enforcement investigation documents if applicable; reviewing relevant student or employment files; and gathering and examining other relevant documents, social media and evidence.

The Investigator will attempt to collect all relevant information and evidence. While the Investigator will have the burden of gathering evidence, it is crucial that the parties present evidence and identify witnesses to the Investigator so that they may be considered during the investigation. As described below in Section IV.E.iii.3., while all evidence presented at a hearing by the parties will be considered, the adjudicator(s) may, in its/their discretion, grant lesser weight to last-minute information or evidence introduced at the hearing that was not previously presented for investigation by the Investigator.   

The investigation file should contain all information gathered during the investigation that is potentially relevant to the alleged misconduct; the Investigator should not filter or exclude evidence or decide the weight or credibility of evidence, unless the evidence is clearly irrelevant.

Following the investigation, the Investigator will draft an investigation report succinctly describing all collected information. The Investigator will not make any recommendation as to whether a Policy violation has occurred or potential sanctions.

  1. Evidentiary Considerations
      1. While investigating the allegations of any Formal Complaint of sexual harassment, the Investigator will conduct an objective evaluation of all relevant evidence. Relevant evidence is any evidence that may tend to make the allegations at issue more or less likely to be true (both corroborating and “exculpatory” or contradicting evidence).
      1. Standard of evidence
  2. In assessing allegations of sexual harassment and conducting its Formal Grievance Process, Rhodes will use a preponderance of the evidence standard. (106.45(b)(1)(vii).) This standard means that the alleged sexual misconduct is “more likely than not” to have occurred.
  3. That standard will apply to all Formal Complaints of sexual harassment, regardless of whether the Formal Complaint is against a student or an employee or faculty member. (106.45(b)(1)(vii).)

 

  1. As dictated by the Title IX Regulations at 34 C.F.R. § 106.45(b)(5), when investigating a Formal Complaint and throughout the grievance process, Rhodes will:
  1. Ensure that the burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility rest on the school and not on the parties. This means that the school’s decision-makers will use the preponderance standard. See also Subsection D.i. above.
  2. Provide an equal opportunity for the parties to present witnesses and other relevant evidence.
  3. Not restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence.
  1. That said, Rhodes expects the parties to respect the sensitive nature of allegations of sexual misconduct and to respect other parties’ sense of confidentiality.
  2. While Rhodes cannot prevent a party from discussing the allegations under investigation, the Title IX Regulations and this Policy prohibit retaliation against any person because they participate or refuse to participate in any part of the school’s sexual misconduct processes.  See Section V. below.
  3. Consistent with FERPA’s prohibition on re-disclosure of confidential information, any person who receives another person’s confidential information solely as a result of participation in any investigation or proceeding under this Policy, is prohibited from using or disclosing such confidential information outside of such forums without express consent or for any improper purpose. This provision only applies to other people’s confidential information, such as medical or psychological treatment records. A party is never restricted from discussing their own experience. This provision does not apply to any information learned outside of an investigation or proceeding under this Policy.
  1. Provide the parties with the same opportunities to have others present during any grievance proceeding, including the opportunity to bring an advisor of their choice to any related meeting or proceeding. The advisor may be, but is not required to be, an attorney. Rhodes will not limit the choice or presence of an advisor for either the complainant or respondent in any meeting or grievance proceeding; however, Rhodes will restrict the extent to which the advisor may actively participate in the proceedings, which will apply equally to both parties’ advisors. 
  1. Advisors are not permitted to directly participate in any proceeding, except as specified in Section IV.E.iv. below related to hearings. Advisors may be present solely to advise or support the party and are prohibited from speaking directly to the investigator, adjudicators, other parties, or witnesses in such proceedings.
  1. Provide written notice to each party of the date, time, location, participants, and purposes of each Formal Grievance Process meeting at which they are invited to participate, with sufficient time for the party to prepare to participate.
  1. For all hearings Rhodes will provide 10 days’ notice;
  2. For all non-hearing investigative interviews or meetings to which a party is invited or expected at Rhodes’ discretion, Rhodes will provide 5 days’ notice.
  1. Provide both parties an equal opportunity to inspect and review any evidence Rhodes obtained as part of the investigation, whether obtained from a party or other source, that is directly related to the allegations raised in a Formal Complaint. The provision of such evidence is intended to help each party meaningfully respond to the evidence before the investigation concludes.
  1. Parties may elect to submit certain records of medical examinations, treatment, or mental health services. Rhodes will not access, consider, disclose, or otherwise use a party’s records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional’s or paraprofessional’s capacity, or assisting in that capacity, and which are made and maintained in connection with the provision of treatment to the party, unless the party voluntarily consents in writing to their use in a Formal Grievance Process. (106.45(b)(5)(i).)

 

  1. Investigative Report (106.45(b)(5)(vi-vii).)
  1. Prior to completion of the investigative report, Rhodes will send to each party, and the party’s advisor if any, a draft investigative report and the evidence subject to inspection and review.
    1. Such evidence also will be available at any hearing, to give each party equal opportunity to refer to such evidence during the hearing, including for purposes of cross-examination.
    2. Rhodes retains discretion to elect to send such materials in an electronic format or a hard copy. The provision of such evidence may include data security safeguards that prevent it from being downloaded, printed or forwarded. (See 85 Fed. Reg. at 30304.)
  2. The parties will have 10 calendar days to submit a written response.  The investigator will consider any such response prior to completion of the final investigative report.
  3. The investigator will then create a final investigative report that fairly summarizes the relevant evidence. The investigative report will not make any recommendation as to whether a policy violation has occurred or potential sanctions. At least 10 days prior to a hearing, Rhodes will send the final investigative report to each party, and the party’s advisor if any, for their review and written response.
  4. Any such response must be received by the Title IX Coordinator within five days of when the final investigative report was delivered to the party, so that the party’s response may be available for consideration by the adjudicator(s). If warranted, the investigator may choose to update the final investigative report to take a party’s response into account, in which case the hearing date may be postponed.

 

  1. Permissive Dismissal
  1. At any time during the investigation or hearing, Rhodes may dismiss the Formal Complaint or any of its allegations if:
  1. A complainant notifies the Title IX Coordinator in writing that he or she would like to withdraw the Formal Complaint in whole or in part;
  2. The respondent is no longer enrolled in or employed by the school; or
  3. Specific circumstances prevent Rhodes from gathering evidence sufficient to reach a determination as to the Formal Complaint, in whole or in part.

(106.45(b)(3)(ii).)

  1. In all such circumstances, supportive measures may be continued.
  2. Under the first circumstance, the Title IX Coordinator may choose in his or her discretion to sign the Formal Complaint to continue the Formal Grievance Process.  See also Sections IV.A.iii-iv, above.
  3. Under the second circumstance:
    1. The respondent’s student or employment records may be marked to indicate their departure during a disciplinary process (which may resume if they return to Rhodes), but will not indicate that such respondent was found or assumed responsible for any alleged misconduct pending at the time of departure.
    2. The respondent may be required to notify the Title IX Coordinator if they intend to visit any building owned or controlled by Rhodes or a student organization that is officially recognized by Rhodes, or if they otherwise seek to attend any Rhodes education program or activity or event, so that the complainant may be given an opportunity to receive supportive measures if needed.
  4. If permissive dismissal is granted under this section, the Formal Grievance Process will cease. Under the Title IX Regulations, effective August 14, 2020, no further investigation will occur, and no disciplinary sanctions or actions can be imposed against the respondent related to the Formal Complaint. See Section IV.A.ii.
  5. A permissive dismissal under this section differs from a mandatory dismissal under Section IV.A.vi. for alleged conduct that does not meet the Formal Grievance Policy scope requirements contained in Section II for § 106.30 “sexual harassment.”

 

E. Adjudication

  1. Adjudication via hearing
  1. Rhodes’ Formal Grievance Process will culminate in a live hearing before one or more adjudicators, who will consider all evidence presented (subject to the terms below) and determine whether a respondent is responsible or not responsible for a violation of this Policy, based on the criteria of a preponderance of evidence. Under that standard, the burden of proof is met, and a respondent may be found responsible for a policy violation, if the adjudicator(s) determine that it is more likely than not that the respondent committed the conduct alleged. Respondents are entitled to, and will receive the benefit of, a presumption that they are not responsible for the alleged conduct until the grievance process concludes and a determination regarding responsibility is issued. If the respondent is found responsible for a violation of this Policy, the respondent may be subjected to disciplinary action. (106.45(b)(6)(i).)

 

  1. The adjudicators will be selected by the Title IX Coordinator and may vary based on the enrollment or employment status of the respondent.
    1. Student-respondent cases typically will be adjudicated by a three-member panel of trained Rhodes faculty and/or staff. One of the three panel members will be designated as the chairperson.
    2. Staff-respondent cases typically will be adjudicated by the Vice President for Finance and Business Affairs.
    3. When the respondent is a non-tenured faculty member, the case typically will be adjudicated by the Provost.
    4. When the respondent is a tenured faculty member, the case typically will be adjudicated by the Faculty Governance Committee or the Faculty Committee on Appeals consistent with Section X of the Rhodes Handbook. The adjudication process will adhere to the Section X process to the extent possible.
    5. A separate adjudicator is also permitted to preside as a hearing officer and make evidentiary rulings at any hearing.

The adjudicators will not be the same person as the Title IX Coordinator or the Investigator. 

 

  1. At the request of either party, Rhodes will conduct the live hearing with the parties located in separate rooms. Technology will enable the adjudicator(s) and parties to simultaneously see and hear the party or witness answering questions. Live hearings may, then, be conducted with all parties physically present in the same location, or any or all parties, witnesses and other participants may appear at the live hearing virtually.
  2. Rhodes will transcribe or record (audio or audiovisual) any adjudicative hearing. It will be available to the parties for inspection and review in compliance with FERPA.

 

  1. Pre-hearing
      1. The Title IX Coordinator will identify the adjudicators to the parties five days in advance of the hearing.  Either party may challenge a named adjudicator if believed to have a conflict of interest or bias. A challenge must be delivered in writing to the Title IX Coordinator at least two days in advance of the hearing, specifying the reasons for such belief. The Title IX Coordinator has sole discretion to keep or replace the challenged adjudicator, and if replaced, will postpone the hearing to allow for a replacement adjudicator.
      2. Five days in advance of the hearing, the parties will identify their expected attendees (including any advisor) and their expected witnesses (including themselves), including the witnesses’ expected sequence, via writing to the Title IX Coordinator, who will supply the disclosure to the other party so that they can be prepared.  The parties will not be strictly bound to their disclosures, but they should be submitted in good faith. 
      3. Typically, the parties will be in charge of choosing and supplying their own witnesses at the hearing. When necessary for the pursuit of truth and to gather evidence sufficient to reach a determination, the adjudicators will have discretion to ask the Title IX Coordinator to request additional witnesses after receipt of the parties’ witness lists; recognizing, however, that the school has no ability to compel any witness to attend. Any such requested witness will be disclosed to the parties.

 

  1. Evidence
  1. At the hearing, all relevant evidence will be objectively evaluated.  Relevant evidence is any evidence that may tend to make the allegations at issue more or less likely to be true (corroborating and exculpatory or contradicting evidence). Credibility determinations will not be based on a person’s status as a complainant, respondent, or witness. (106.45(b)(1)(ii).) 
  2. The Title IX Regulations state that questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant, unless:
  1. “offered to prove that someone other than the respondent committed the conduct alleged” or
  2. “if the questions and evidence concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent.”

(34 C.F.R. § 106.45(b)(6)(i).)

  1. While all relevant evidence presented at a hearing by the parties will be considered, the adjudicator(s) have discretion to grant lesser weight to last-minute information or evidence introduced at the hearing that was not previously presented for investigation by the Investigator. See also Section IV.D.i., above.

 

  1. Cross-examination
  1. As stated above in Section IV.D.iii.4., each party may be accompanied to the hearing by the advisor of their choice who may be, but is not required to be, an attorney. Advisors may be present solely to advise or support the party and are prohibited from speaking directly to the investigator, adjudicators, other parties, or witnesses during the hearing, except for conducting cross examination.

 

  1. At the hearing, each party’s advisor is permitted to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility. Such cross examination at the live hearing must be conducted directly, orally, and in real time by the party’s advisor of choice, and never by a party personally.  (106.45(b)(6)(i).)  However, the adjudicator(s) will typically ask questions before either advisor.

 

  1. If a party does not have an advisor present at the live hearing, Rhodes will provide one without fee or charge to conduct cross-examination on behalf of that party. The advisor provided may be, but is not required to be, an attorney. (106.45(b)(6)(i).)
    1. If a party does not have an advisor for the hearing, the party must notify the Title IX Coordinator no later than the party’s pre-hearing disclosures. (See Section IV. E. ii. 2., above.)  Otherwise, the hearing may be delayed, and the appointed advisor may have less time to prepare for the hearing.
    2. Rhodes will provide a pool of trained advisors from whom the party will choose their advisor.

 

  1. Only relevant cross-examination and other questions may be asked of a party or witness. See Section IV.E.iii., above, regarding relevancy. Before a party or witness answers a cross-examination or other question, the adjudicator must first determine whether the question is relevant and explain any decision to exclude a question as not relevant. (106.45(b)(6)(i).) 

 

  1. If a party or witness does not submit to cross-examination at the live hearing, the adjudicator(s) must not rely on any statement of that party or witness in reaching a determination regarding responsibility. However, the adjudicator(s) cannot draw an inference about the determination regarding responsibility based solely on a party’s or witness’s absence from the live hearing or refusal to answer cross-examination or other questions. (106.45(b)(6)(i).) 

 

  1. Determination Regarding Responsibility
  1. The adjudicator(s) will issue a written determination following the hearing. Based on the preponderance of the evidence, the adjudicator(s) will decide if the respondent is responsible for engaging in the conduct alleged, and if so, what disciplinary action may be appropriate.
  2. The written determination will include:
  1. Identification of the allegations potentially constituting sexual harassment as defined in 106.30;
  2. A description of the procedural steps taken from the receipt of the Formal Complaint through the determination, including any notifications to the parties, interviews with parties and witnesses, site visits, methods used to gather evidence, and hearings held;
  3. Findings of fact supporting the determination;
  4. Conclusions regarding the application of this Policy to the facts;
  5. A statement of, and rationale for, the result as to each allegation, including:
          1. A determination regarding responsibility;
          2. Any disciplinary sanctions the adjudicator(s) imposes on the respondent; and
          3. Whether remedies designed to restore or preserve equal access to Rhodes’ education program or activity will be provided to the complainant; and
  6. Procedures and permissible bases for the parties to appeal the determination.

(106.45(b)(7)(ii).)

  1. The written determination will be provided to the parties simultaneously.
  2. Supportive measures also may be provided to the complainant that are designed to restore or preserve equal access to Rhodes’ education program or activity, even if they are not listed in the written determination. Remedies and supportive measures that do not impact the respondent should not be disclosed in the written determination; rather, the determination should simply indicate that “remedies will be provided to the complainant.” 85 Fed. Reg. at 30425. The Title IX Coordinator is responsible for effective implementation of any remedies and supportive measures. (106.45(b)(7)(iv).)

 

  1. Range of Sanctions and Remedies (106.45(b)(1)(vi))
  1. The following sanctions may be imposed upon any student found to have violated the Policy:
  1. Warning: After a hearing, the Board may believe the appropriate lesson has been learned and conclude the matter with a formal letter of warning.
  2. Loss of Privileges: Denial of specified privileges for a designated period of time.
  3. Continued Sexual Assault Education: Attending or participating in a required number, determined by the Hearing Board, of educational and/or awareness programs relating to the Sexual Misconduct, and providing evidence of engaging in the programs.
  4. Fines: Previously established and published fines may be imposed.
  5. Restitution: Compensation for loss, damage, or injury. This may take the form of appropriate service and/or monetary or material replacement.
  6. Discretionary Sanctions: Work assignments, service to the College or community, education, referral to counseling, required behavioral assessment, or other related discretionary assignments.
  7. Residence Hall Suspension: Separation of the student from the residence halls for a definite period of time, after which the student is eligible to return. Conditions for readmission may be specified.
  8. Residence Hall Expulsion: Permanent separation of the student from the residence halls.
  9. Disciplinary Probation: A written notification for violation of specified regulations. Probation is designated for a specified period of time and includes the probability of more severe disciplinary sanctions, including suspension or expulsion, if the student is found to violate any institutional regulation(s) during the probationary period. Students can be placed on disciplinary or housing probation.
    1. Level 1 Disciplinary Probation: A student is not considered in good social standing with the College. Good Standing may be required for participation in certain campus activities. In addition, students not in good social standing may have their conduct reviewed for leadership or employment positions on campus.
  1. Level 2 Disciplinary Probation without Representation: A student may not represent the institution on or off campus in any capacity. Examples include, but are not limited to: competition in varsity athletics, international programs or activities, executive board member of a student organization, PA, RA, Diplomat, Mock Trial, or Rhodes Ambassador.
  2. College Suspension: Separation of the student from Rhodes College for a definite period of time, after which the student is eligible to return. Conditions for readmission may be specified.      
  3. College Expulsion: Permanent separation of the student from Rhodes College.  Pursuant to Rhodes’ academic criteria, expulsion may occur at any time before a diploma is awarded. 
  1. In the event the Respondent is a Rhodes employee, disciplinary sanctions may include, but are not limited to, written discipline, mandatory EAP Counseling, suspension, and/ or termination of employment.

 

  1. Finality

The determination regarding responsibility becomes final either:

  1. if an appeal is filed, on the date that Rhodes provides the parties with the written determination of the result of the appeal, or
  2. if an appeal is not filed, the date on which an appeal would no longer be considered timely. (106.45(b)(7)(iii).)

 

F. Appeals

 

          1. Both parties may appeal from a determination regarding responsibility, or from a dismissal of a Formal Complaint or any allegations therein, on the following bases:
  1. A procedural irregularity, meaning an alleged failure to follow the process outlined in this Policy, that affected the outcome of the matter;
  2. New evidence that was not reasonably available to the appealing party at the time of the hearing or dismissal, that could affect the outcome of the matter; and
  3. The Title IX Coordinator, Investigator, or adjudicator(s) had a conflict of interest or bias for or against complainants or respondents generally or the individual complainant or respondent that affected the outcome of the matter. The notice of appeal must describe specifically the basis upon which such conflict of interest or bias is alleged and how it allegedly affected the outcome.
  4. Rhodes reserves the right to offer an appeal equally to both parties on additional bases in its discretion. (106.45(b)(8)(i-ii).)

 

  1. Appeals must be submitted in writing to the Title IX Coordinator within 10 days of the date that the written adjudication determination is provided to the parties. The written appeal must state the grounds for the appeal, include the name of the appealing party, and bear evidence that it was submitted by the appealing party.  The appeal statement must contain a sufficient description supporting the grounds for appeal.  If the grounds for appeal is to consider new evidence that could affect the outcome of the matter that was not reasonably available to the appealing party before or during the time of the hearing or the dismissal, then the written appeal must include such information.  The Title IX Coordinator retains discretion to verify and/or waive minor procedural variations in the timing and content of the appeal submission.

 

  1. Upon receipt of an appeal, Rhodes will
  1. Notify the other party in writing when the appeal is filed and implement appeal procedures equally for both parties (in the event the Respondent is a tenured professor, the Appeal will be heard by the Faculty Committee for Appeals pursuant to Section X of the Handbook);
  2. Ensure that the decision-maker(s) for the appeal is not the same person as the decision-maker(s) that reached the original determination regarding responsibility or dismissal, the investigator(s), or the Title IX Coordinator;
  3. Ensure that the decision-maker(s) for the appeal does not have a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent, and that the decision-maker(s) for the appeal has received the appropriate and necessary training;
  4. Give both parties a reasonable, equal opportunity to submit a written statement in support of, or challenging, the outcome.

(106.45(b)(8)(iii).)

  1. Rhodes will provide a copy of the appeal to the non-appealing party. The non-appealing party may submit a written statement within 10 days that may seek to affirm the initial decision and/or respond to the appeal statement.
  2. The Title IX Coordinator has discretion to impose or withhold any applicable sanctions or supportive measures prior to the appeal deadline and prior to the resolution of any appeal.
  3. The decision-maker(s) for the appeal will issue a written decision describing the result of the appeal and the rationale for the result within a reasonably prompt time frame following receipt of all appeals materials. The appeal will determine whether the adjudicator(s) made an error on the grounds alleged in the appeal statement. The appeal is typically determined based on the existing record, but the appeal decision-maker(s) will have discretion to convene a limited or full hearing if needed. The appeal decision will be given simultaneously to both parties. (106.45(b)(8)(iii)(E-F).)
  4. In the event that the Respondent is a tenured faculty member and the decision of the Faculty Committee on Appeals is one of termination or dismissal, an additional layer of appeal will be available pursuant to Section X of the Handbook.

G. Informal Resolution

    1. At any time prior to reaching a determination regarding responsibility, Rhodes may facilitate an informal resolution process, such as mediation, that does not involve a full investigation and adjudication. Rhodes may not offer an informal resolution process unless a Formal Complaint is filed. Both parties must agree to participate in an informal resolution process, and if they do, the Formal Grievance Process stops. Either party may withdraw from the informal process and re-start the Formal Grievance Process at any time before an informal resolution is reached. Rhodes will not require the parties to participate in an informal resolution process, and will not require them to waive their rights to a Formal Grievance Process. (106.45(b)(9).)
    2. Rhodes will not offer or facilitate an informal resolution process to resolve allegations that an employee sexually harassed a student. (106.45)(b)(9)(iii).)
    3. Prior to facilitating an informal resolution process, Rhodes will:
      1. Provide written notice to the parties disclosing the following:
  1. The allegations;
  2. The requirements of the informal resolution process, including the circumstances under which it precludes the parties from resuming a Formal Complaint arising from the same allegations;
  3. The fact that, at any time prior to agreeing to an informal resolution, any party may withdraw from the informal resolution process and resume the Formal Grievance Process; and
  4. Any consequences resulting from participating in the informal resolution process, including the records that will be maintained or could be shared.
      1. Obtain the parties’ voluntary, written consent to the informal resolution process.

(106.45(b)(9)(i-ii).)

    1. If the parties agree to a resolution during an informal resolution process, the Formal Complaint will be deemed withdrawn and the Formal Grievance Process will be terminated.  However, the resolution will be considered binding, and its breach will give rise to a new Complaint, which may restart the Formal Grievance Process.  
 

[1] If the Respondent is a tenured faculty member, in conjunction with the notice requirements listed herein, the Vice President for Academic Affairs will also follow the requirements for Preliminary Proceedings Concerning the Fitness of a Faculty Member required by Section X of the Handbook. 

  1. No person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX, its regulation, or this Policy, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing. “Intimidation, threats, coercion, or discrimination, including charges against an individual for code of conduct violations that do not involve sex discrimination or sexual harassment, but arise out of the same facts or circumstances as a report or complaint of sex discrimination, or a report or formal complaint of sexual harassment, for the purpose of interfering with any right or privilege secured by Title IX or this [Policy], constitutes retaliation.”
  2. Rhodes will “keep confidential the identity of any individual who has made a report or complaint of sex discrimination, including any individual who has made a report or filed a formal complaint of sexual harassment, any complainant, any individual who has been reported to be the perpetrator of sex discrimination, any respondent, and any witness, except as may be permitted” by Title IX, FERPA, or as otherwise required by law, or to carry out Rhodes’ Title IX procedures.
  3. The exercise of rights protected under the First Amendment does not constitute retaliation.
  4. Charging an individual with a code of conduct violation for making a materially false statement in bad faith in the course of a sexual misconduct grievance proceeding does not constitute retaliation. A determination regarding responsibility alone, however, is not sufficient to conclude that any party made a materially false statement in bad faith.
  5. Complaints alleging retaliation may be filed with the Title IX Coordinator and will follow grievance procedures either under this Policy, the Rhodes Sexual Misconduct Policy, or the Anti-Discrimination and Harassment Policy.

    In the event an individual alleges that the Title IX Coordinator retaliated against them, the individual may file a complaint with the Director of Human Resources, who will follow the grievance procedures either under this Policy or pursuant to the Rhodes Sexual Misconduct Policy. The Title IX Coordinator will not oversee the investigation or adjudication of a complaint alleging that they engaged in retaliation.