Formal Resolution Hearing for Students
This section applies when both parties are students. It does not apply when one or more of the parties is an employee (faculty, staff member or contract services employee), as employees are subject to the processes described in the Rhodes College Handbook, unless agreed between the Chief Human Resources Officer and the Title IX Coordinator. The College has discretion to apply these provisions when one or both parties are neither students nor employees (e.g., when one party is a former student or is not enrolled at or employed by Rhodes).
A. General Provisions
1. A Formal Resolution Hearing is the College’s formal disciplinary proceeding through which the Sexual Misconduct Hearing Board evaluates evidence related to a Claim to determine whether a student Respondent is responsible or not responsible for a violation of the Policy, based on the criteria of “a preponderance of evidence.” If the Respondent is found in violation of the Policy, the Respondent may be subjected to disciplinary action.
2. At least ten (10) business days prior to a hearing, both parties and the Sexual Misconduct Hearing Board will be provided access to a hearing packet containing the investigation report and other information pertinent to the hearing. (See also Section IV.E., herein.) The packet must not be copied and must be returned at the end of the proceeding because it typically will contain other parties’ confidential and FERPA-protected information. Additionally, receipt of the hearing packet is conditioned on each recipient’s agreement not to re-disclose or use other people’s confidential information, learned as a result of the investigation or proceeding, outside of such forums without express consent or for any improper purpose.
3. It is each party’s responsibility to present their own witnesses at the hearing. The parties must give at least three days’ notice prior to the hearing of who their attendees and witnesses will be and the witnesses’ expected sequence, so the other party can be prepared. The parties will not be strictly bound to their lists, but they should be submitted in good faith.
The Title IX Coordinator, in consultation with the Chair of the Sexual Misconduct Hearing Board, shall have discretion to exclude purely-character witnesses or other witnesses based on investigation results that show their expected testimony is not relevant to the facts at issue in the hearing. The parties may object to such a determination, but the Title IX Coordinator shall have ultimate discretion on this issue. The default position shall be to permit all witnesses desired by the parties in case they have relevant testimony, but to allow their testimony to be truncated at the hearing if it proves to not be relevant to the facts at issue.
When necessary for the pursuit of truth, the Hearing Board shall have discretion to ask the Title IX Coordinator to request additional witnesses after receipt of the parties’ witness lists. Typically, however, the parties shall be in charge of choosing and supplying their own witnesses.
4. All hearings under this section will be recorded and closed to the public. The attendance of any person at the hearing will be at the discretion of the Sexual Misconduct Hearing Board’s chairperson; however, the Claimant and the Respondent will have the same opportunities to have others present. Rhodes may limit the number of people in attendance at hearings, conferences and related disciplinary proceedings but will not interfere with parties’ choices of specific attendees without cause. For example, see Section VI.B.2., below.
5. Legal rules of evidence or criminal or civil procedure will not apply at Formal Resolution Hearings.
6. A Claimant does not need to be present at the hearing as a prerequisite to proceed with the hearing. If the Claimant chooses to be present at such hearing, they will not be required to be present for the entire hearing. The Respondent may also choose not to be present for some or all of the hearing. These provisions are subject to Section VI.B.3.
That said, the hearing is the opportunity for the Claimant and the Respondent to provide their facts and evidence to the Sexual Misconduct Hearing Board, and a Claimant or Respondent who fails to appear after having received proper notice of a hearing will be deemed to have waived any right to personally present any evidence during the hearing and any subsequent appeal. Others may present evidence related to their case, such as the Investigator or fact witnesses, only during the Formal Resolution Hearing.
When requested, the Board’s chairperson will make arrangements so that the Claimant and the Respondent do not have to be present in the same room at the same time, but each party shall have the right to hear and see all witnesses’ testimony via electronic means, such as videoconference or skype.
7. The Title IX Coordinator shall have discretion to alter these procedures as needed, including to avoid scheduling conflicts with exams, holiday periods and school closures. For example, the Title IX Coordinator has discretion to shorten the timeframes listed above to avoid an exam period or summer vacation. The Title IX Coordinator also has discretion to hold a hearing over the summer and to utilize videoconference and/or teleconference technology in lieu of in-person attendance, if needed. Any such alteration shall be done in a fair manner, to not unfairly disadvantage one party over another party.
B. The Formal Resolution Hearing and Determinations of Responsibility
1. At the Formal Resolution Hearing, the Investigator may give a statement containing a summary of their factual findings, and each party will have the option to provide an introduction and an opening statement, summarizing their position.
2. Each party will be permitted to call their own witnesses. Witnesses will be asked to affirm adherence to the Honor Code. Prospective witnesses, other than the Claimant and the Respondent, may be excluded from the hearing during the statements of the Investigator and other witnesses. The Sexual Misconduct Hearing Board will not consider information from character witnesses or character testimony.
3. The Board, the Claimant and the Respondent will have an opportunity to question witnesses who appear at the hearing. In other words, any person who offers testimony at the hearing must remain available to answer questions from the Board and both parties. Questions by the Claimant and the Respondent should be directed to the Board Chair, who will facilitate the questioning of all witnesses, including the Investigator. Typically, the Board will ask its own questions first, then the questions of the party whose witness it is, then the questions of the other party. The Board Chair will be responsible for ensuring the questioning is fair and complies with the terms of the Policy, but will not otherwise substantively limit the scope of the parties’ questions unless they seek to elicit solely character evidence, irrelevant information, unduly cumulative evidence, or have the effect of impermissibly badgering or harassing the witness. Questions about the parties’ sexual history with anyone other than each other are expressly prohibited during the hearing phase, but if the Respondent is found in violation of the Policy, Respondent’s past sexual misconduct may be subject to inquiry in connection with determining potential sanctions.
4. The Board may, in its discretion, exclude or grant lesser weight to last-minute information or evidence introduced at the hearing that was not previously presented for investigation by the Investigator.
5. At the conclusion of the hearing, the Investigator may give a closing statement and each party will have an opportunity to provide a closing statement at their option.
6. All parties, the witnesses and the public will be excluded during Board deliberations, which will not be recorded or transcribed.
7. The Title IX Coordinator will be present at the hearing and can assist with procedural matters. However, the Title IX Coordinator will not participate in the deliberations of the Hearing Board in determining responsibility.
8. In all cases, the Hearing Board must consider evidence presented by the Claimant, the Respondent, the Investigator and/or others and determine by a preponderance of the evidence whether a violation of the Policy occurred, i.e., whether it is more likely than not that a Respondent violated the Policy, and impose sanctions, if any.
9. The Hearing Board will notify the Title IX Coordinator of the decision.
10. Decisions made in a Formal Resolution Hearing may be appealed as described in the Appeal Section below.
C. Notices of Outcome
1. Within three (3) business days following the Sexual Misconduct Hearing Board’s decision, the Title IX Coordinator will simultaneously provide the Claimant and the Respondent a written notice of the outcome of the hearing, the applicable sanctions (if any), and the appeals procedure. This Outcome Letter will be provided to the Claimant and Respondent by personal delivery or email (with automated return receipt). The Claimant and Respondent will be deemed to have received the Outcome Letter on the date of delivery.
2. To ensure that the recommended sanctions are enforced and/or corrective action is taken, in cases where the Respondent is a student, the Outcome Letter will also be provided to the Associate Dean of Students.