Effective Aug. 14, 2020
Lafayette College will respond whenever it has actual notice of an alleged violation of the policy on Equal Opportunity, Harassment, and Nondiscrimination (“the Policy”). The College will respond to allegations that constitute Title IX Sexual Harassment using the procedures outlined here, in Process A. All other allegations of harassment or discrimination based on a protected class that do not fall within Title IX Sexual Harassment will be referred to the procedures outlined in Process B. For conduct that does not fall under either of these policies, see the Faculty, staff, or student handbooks for adjudicatory procedures that may apply.
In appropriate circumstances, and with notice to the parties, these same procedures may be used to address collateral misconduct (e.g., vandalism, physical abuse of another).
While the Title IX Coordinator will most commonly oversee implementation of these procedures, Deputy Title IX Coordinators and/or other trained individuals may be designated to do so.
2. Notice/Formal Complaint
Upon receipt of a Formal Complaint or notice to the Title IX Coordinator, the Title IX Coordinator initiates a prompt initial assessment to determine the next steps the College needs to take. In doing so, the Title IX Coordinator must promptly contact the Complainant to discuss availability of supportive measures, consider the Complainant’s wishes with respect to supportive measures, inform the Complainant of the availability of supportive measures, and explain to the Complainant the process for filing a Formal Complaint.
The Title IX Coordinator will initiate at least one of three responses:
1) Offering supportive measures only because the Complainant does not want to submit a Formal Complaint; and/or
2) An informal resolution upon submission of a Formal Complaint and where both parties consent to the informal resolution option in writing; and/or
3) A Formal Grievance Process including an investigation and a hearing, upon submission of a Formal Complaint.
The College uses the Formal Grievance Process to determine whether or not the Policy has been violated. If it is determined that there has been a violation, the College will promptly implement effective remedies designed to ensure that it is not deliberately indifferent to harassment or discrimination, their potential recurrence, or their effects.
3. Initial Assessment
Following receipt of notice of an alleged violation of this Policy, the Title IX Coordinator engages in an initial assessment, typically within five (5) business days. The steps in an initial assessment can include:
Dismissal of Formal Complaints (Mandatory and Discretionary)
The College must dismiss a Formal Complaint or any allegations therein if, at any time during the investigation or hearing, it is determined that:
The College may dismiss a Formal Complaint or any allegations therein if, at any time during the investigation or hearing:
Upon any dismissal of a Formal Complaint, the Title IX Coordinator will promptly send written notice of the dismissal and the rationale for doing so simultaneously to the parties.
This dismissal decision is appealable by any party under the procedures for appeal below. A Complainant who decides to withdraw a Formal Complaint may later request to reinstate it or refile it.
The College permits the filing of counterclaims, i.e. a Formal Complaint filed by a Respondent against a Complainant in response to the Complainant’s initial Formal Complaint, but uses an initial assessment, described above, to assess whether the allegations in the counterclaim Formal Complaint are made in good faith. Counterclaims by a Respondent may be made in good faith, but are, on occasion, made for purposes of retaliation, instead. Counterclaims made with retaliatory intent will not be permitted.
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.
Counterclaims may also be resolved through the same investigation as the underlying allegation, at the discretion of the Title IX Coordinator. When counterclaims are not made in good faith, they will be considered retaliatory and may constitute a violation of this policy.
5. Right to an Adviser
The parties may each have an Adviser of their choice present with them for all meetings, interviews, and hearings within the Formal Grievance Process, if they so choose.
a. Who Can Serve as an Adviser
The Adviser may be a friend, mentor, family member, attorney, or any other individual a party chooses to advise, support, and/or consult with them throughout the resolution process. The parties may choose Advisers from inside or outside of the Lafayette College community.
The Title IX Coordinator will also offer to assign a trained Adviser for any party if the party so chooses. If the parties choose an Adviser from the pool available from the College, the Adviser will be trained by the College and be familiar with the College’s resolution process.
If the parties choose an Adviser from outside the pool of those identified by the College, the Adviser may not have been trained by the College and may not be familiar with College policies and procedures.
Parties also have the right to choose not to have an Adviser in the initial stages of the resolution process, prior to a hearing. Both parties must have an Adviser at any hearing.
b. Adviser’s Role in Meetings and Interviews
The parties may be accompanied by their Adviser in all meetings and interviews at which the party is entitled to be present, including intake and interviews. Advisers should help the parties prepare for each meeting and are expected to advise ethically, with integrity, and in good faith. The College cannot guarantee equal Advisory rights, meaning that if one party selects an Adviser who is an attorney, the College is not obligated to provide an attorney.
c. Advisers in Hearings/ College -Appointed Adviser
Under U.S. Department of Education Title IX regulations, a form of indirect questioning is required during the hearing, and it must be conducted by the parties’ Advisers. The parties are not permitted to directly question each other or any witnesses. If a party does not have an Adviser for a hearing, the Title IX Coordinator or hearing administrator will appoint a trained Adviser for the limited purpose of conducting any questioning of the other party and witnesses.
A party may reject this appointment and choose their own Adviser, but they may not proceed at a hearing without an Adviser. Similarly, if the party’s selected Adviser will not conduct questioning, the Title IX Coordinator or hearing administrator will appoint an Adviser who will do so, regardless of the participation or non-participation of the advised party in the hearing itself. Questioning of the parties and witnesses may also be conducted by the Decision-makers during the hearing.
d. Adviser Violations of College Policy
All Advisers are subject to the same Lafayette College policies and procedures, whether they are attorneys or not. Advisers are expected to advise their advisees without disrupting proceedings. Advisers should not address College officials in a meeting or interview unless invited to (e.g., asking procedural questions). The Adviser may not make a presentation or represent their advisee during any meeting or proceeding and may not speak on behalf of the advisee to the Investigators or other Decision-makers except during a hearing proceeding, during cross-examination.
The parties are expected to respond to questions on their own behalf throughout the investigation phase of the resolution process. Although the Adviser generally may not speak on behalf of their advisee, the Adviser may consult with their advisee, either privately as needed, or by conferring or passing notes during any resolution process meeting or interview. For longer or more involved discussions, the parties and their Advisers should ask for breaks to allow for private consultation.
Any Adviser who oversteps their role as defined by this policy will be warned only once. If the Adviser continues to disrupt or otherwise fails to respect the limits of the Adviser role, the meeting will be ended, or other appropriate measures implemented. Subsequently, the Title IX Coordinator will determine, in their sole discretion, how to address the Adviser’s non-compliance and future role.
e. Pre-Interview Meetings
Advisers may request to meet with the administrative officials conducting interviews/meetings in advance of these interviews or meetings. This pre-meeting allows Advisers to clarify and understand their role and the College’s policies and procedures.
f. Sharing Information with the Adviser
Title IX regulations require the College to share documentation and evidence related to the allegations with the Parties and their Advisers.
g. Privacy of Records Shared with Adviser
Advisers are expected to maintain the privacy of the records shared with them. The College may seek to restrict the role of any Adviser who does not respect the sensitive nature of the process or who fails to abide by the College’s privacy expectations.
h. Expectations of an Adviser
The College generally expects an Adviser to adjust their schedule to allow them to attend meetings when planned, but may change scheduled meetings to accommodate an Adviser’s inability to attend, if doing so does not cause an unreasonable delay.
The College may also make reasonable provisions to allow an Adviser who cannot attend in person to attend a meeting by telephone, video conferencing, or other similar technologies as may be convenient and available.
i. Expectations of the Parties with Respect to Advisers
A party may elect to change Advisers during the process and is not obligated to use the same Adviser throughout. The parties are expected to inform the Investigators, or Title IX Coordinator, of the identity of their Adviser at least two (2) business days before the date of their first meeting with Investigators (or as soon as possible if a more expeditious meeting is necessary or desired).
The parties are expected to provide timely notice to the Title IX Coordinator if they change Advisers at any time. Parties are expected to inform the hearing administrator of the identity of their hearing Adviser at least two (2) business days before the hearing.
j. Assistance in Securing an Adviser
In addition to those Advisers who may be offered by the College, Respondents may wish to contact organizations such as:
Complainants may wish to contact organizations such as:
6. Resolution Processes
Once a Formal Complaint has been filed, there are two types of Resolution Processes – Informal Resolution or a Formal Grievance Process (see parts a. and b. below). Resolution can commence as Informal and if not resolved may be switched to Formal; conversely, resolution can commence as Formal and when appropriate, can be switched to Informal.
All resolution proceedings are private. All persons present at any time during the resolution process are expected to maintain the privacy of the proceedings in accordance with College Policy. Although there is an expectation of privacy around what Investigators share with parties during interviews, the parties have discretion to share their own knowledge and evidence with others if they so choose, with the exception of information the parties agree not to disclose related to Informal Resolution. The College encourages parties to discuss any sharing of information with their Advisers before doing so.
a. Informal Resolution
Informal Resolution can include three different approaches and must always include the written consent of both parties:
To initiate Informal Resolution, a Complainant first needs to submit a Formal Complaint, as defined above. A Respondent who wishes to initiate Informal Resolution should contact the Title IX Coordinator.
It is not necessary to pursue Informal Resolution first in order to pursue a Formal Grievance Process, and any party participating in Informal Resolution can stop the process at any time before a final determination regarding responsibility is reached and begin or resume the Formal Grievance Process.
Prior to implementing Informal Resolution, the Title IX Coordinator will provide the parties with written notice of the reported misconduct and any sanctions or measures that instead may result from participating in a Formal Grievance Process, including information regarding any records that will be maintained or shared by the College.
The Title IX Coordinator 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.
Informal Resolution is not available as a means for resolving allegations that an employee sexually harassed a student.
a.1) Alternate Resolution
Alternate Resolution is a type of Informal Resolution which may include mediation, restorative practices, or negotiated resolution. At the end of Alternate Resolution, the parties reach a mutually agreed upon resolution of an allegation. All parties must consent to the use of Alternate Resolution. Alternate Resolutions are not appealable.
The Title IX Coordinator may look to the following factors to assess whether Alternate Resolution is appropriate, or which form of Alternate Resolution may be most successful for the parties:
The ultimate determination of whether Alternate Resolution is available or successful 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 may result in appropriate responsive/disciplinary actions. Results of Formal Complaints resolved by Alternate Resolution are not appealable.
Alternate Resolution is not typically the primary resolution mechanism used to address reports of violent behavior of any kind or in other cases of serious violations of policy.
a.2) Respondent Accepts Responsibility for Alleged Violations
Another type of Informal Resolution is when the Respondent accepts 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 process will be paused, and the Title IX Coordinator will determine whether Informal Resolution can be used according to the criteria above.
If Informal Resolution could be applicable, the Title IX Coordinator will determine whether all parties and the College 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 College 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 this type of Informal Resolution. If the parties cannot agree on all terms of Informal Resolution, the Formal Grievance Process will be initiated, or will resume at the same point where it was paused.
b. Formal Grievance Process
The other method of resolution is through a Formal Grievance Process. This is a method of formal resolution designated by the College to address conduct that falls within the Policy, as defined by Title IX Regulations 34 CFR 106.30, and which complies with the requirements of the Title IX Regulations 34 CFR 106.45. See below for more information regarding the Formal Grievance Process. If both parties agree, and the Title IX Coordinator approves, the Formal Grievance Process may be paused and the Informal Resolution process may be commenced.
The College will make a good faith effort to complete the Resolution Process within a sixty-to-ninety (60-90) business day time period, including appeal. This timeline can be extended as necessary for appropriate cause by the Title IX Coordinator or hearing administrator, 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.
7. Formal Grievance Process Pool
The Formal Grievance Process is carried out by a pool of investigators, hearing officers, appeal officers, and advisers (“the Pool”). The Pool may include College employees and/or external members. Members of the Pool may be announced in an annual distribution of this policy to all students, parents/guardians of students, employees, prospective students, and prospective employees.
a. Pool Member Roles
Members of the Pool are trained annually, and can serve in in the following roles, at the direction of the Title IX Coordinator:
b. Pool Member Appointment
The Title IX Coordinator appoints the Pool, which acts with independence and impartiality.
c. Pool Member Training
The Pool members receive annual training. This training may vary slightly based on Pool member roles and includes, but is not limited to:
All Pool members are required to attend these trainings annually. The materials used to train all members of the Pool are publicly posted here: https://sash.lafayette.edu/.
8. Formal Grievance Process: Notice of Allegations (NOA), and Notice of Investigation and Allegations (NOIA)
Upon receipt of a Formal Complaint, the Title IX Coordinator will provide written notice of the allegations (“NOA”). If the matter is then moving forward (pursuant to section 3 above, and if an Informal Resolution has not been reached), the Title IX Coordinator will also provide written notice of the investigation and allegations (the “NOIA”) to the Respondent upon commencement of the Formal Grievance Process. This facilitates the Respondent’s ability to prepare for the interview and to identify and choose an Adviser to accompany them. The NOA and NOIA are also copied to the Complainant, who is to be given advance notice of when the NOA and NOIA will be delivered to the Respondent.
Both the NOA and the NOIA will include:
Amendments and updates to the NOIA may be made as the investigation progresses and more information becomes available regarding the addition or dismissal of various charges.
Notice 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(es) of the parties as indicated in official College records, or emailed to the parties’ College-issued email or designated accounts. Once mailed, emailed, and/or received in-person, notice will be presumptively delivered.
9. Appointment of Investigators
Once the decision to commence a formal investigation is made, the Title IX Coordinator appoints Pool members to conduct the investigation (typically using a team of two Investigators), usually within two (2) business days of determining that an investigation should proceed.
10. Ensuring Impartiality
Any individual materially involved in the administration of the Resolution Process, including the Title IX Coordinator, Investigators, and Decision-makers, may neither have nor demonstrate a conflict of interest or bias for a party generally, or for a specific Complainant or Respondent.
The Title IX Coordinator will vet the assigned Investigators and Decision-makers to ensure impartiality by ensuring there are no actual or apparent conflicts of interest or disqualifying biases. 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. If the source of the alleged conflict of interest or bias is the Title IX Coordinator, concerns should be raised with the Vice President for Campus Life.
The Formal Grievance Process involves an objective evaluation of all relevant evidence obtained, including evidence that supports that the Respondent engaged in a policy violation and evidence that supports that the Respondent did not engage in a policy violation. Credibility determinations may not be based solely on an individual’s status or participation as a Complainant, Respondent, or witness.
The College 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 using the preponderance of the evidence standard.
11. Investigation Timeline
Investigations are completed expeditiously, though some investigations may take longer, depending on the nature, extent, and complexity of the allegations, availability of witnesses, police involvement, etc.
The College will make a good faith effort to complete investigations as promptly as circumstances permit and will communicate regularly with the parties to update them on the progress and timing of the investigation.
12. Delays in the Investigation Process and Interactions with Law Enforcement
The College 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 Title IX Coordinator or hearing administrator 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 College will promptly resume its investigation and Resolution Process as soon as feasible. During such a delay, the Title IX Coordinator will implement supportive measures as deemed appropriate.
College action(s) or processes are not typically altered or precluded on the grounds that civil or criminal charges involving the underlying incident(s) have been filed or that criminal charges have been dismissed or reduced.
13. Steps in the Investigation Process
All investigations are thorough, reliable, impartial, prompt, and fair. Investigations involve interviews with all relevant parties and witnesses; obtaining available, relevant evidence; and identifying sources of expert information, as necessary.
All parties have a full and fair opportunity, through the investigation process, to suggest witnesses and questions, to provide evidence and expert witnesses, and to fully review and respond to all evidence on the record. However, the ultimate burden of gathering evidence sufficient to reach a determination regarding responsibility rests on the College.
The Title IX Coordinator or Investigators typically take the following steps (not necessarily in this order):
14. Role and Participation of Witnesses in the Investigation
Witnesses (as distinguished from the parties) are encouraged to cooperate with and participate in the College’s investigation and resolution process.
Although in-person interviews for parties and all potential witnesses are ideal, circumstances (e.g., study abroad, summer break, pandemics) may require individuals to be interviewed remotely. Skype, Zoom, FaceTime, WebEx, or similar technologies may be used for interviews if the Investigator(s) determine that timeliness or efficiency dictate a need for remote interviewing. The College will take appropriate steps to reasonably ensure the security/privacy of remote interviews.
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 submits a written statement but does not intend to be and is not present for questioning at a hearing, their written statement may not be used as evidence at the hearing.
15. Recording of Interviews
No unauthorized audio or video recording of any kind is permitted during investigation meetings. If Investigators elect to audio and/or video record interviews, all involved parties must be made aware of and consent to audio and/or video recording, and they may not make their own personal recording of the interview.
16. Evidentiary Considerations in the Investigation
The investigation does not consider: 1) incidents not directly related to the possible violation, unless they evidence 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.
17. Referral for Hearing
Provided that the Formal Complaint is not resolved through Informal Resolution, once the final investigation report is shared with the parties, the Title IX Coordinator will refer the matter for a hearing.
The hearing cannot be less than ten (10) business days from the conclusion of the investigation – i.e., when the final investigation report is transmitted to the parties and the Decision-makers–unless all parties and the Decision-makers agree to an expedited timeline.
The Title IX Coordinator will select appropriate Decision-makers from the Pool depending on whether the Respondent is a student, staff member, or faculty member.
18. Hearing Decision-maker Composition
The College will designate a three-member Decision-maker panel from the Pool, at the discretion of the Title IX Coordinator. One of the three members will be appointed as Chair by the Title IX Coordinator or hearing administrator.
The Decision-makers will not have had any previous involvement with the investigation. The Title IX Coordinator or hearing administrator may elect to have an alternate from the Pool sit in throughout the hearing process in the event that a substitute is needed for any reason.
Those who have served as Investigators will be witnesses in the hearing and therefore may not serve as Decision-makers. Those who are serving as Advisers for any party may not serve as Decision-makers in that matter.
The Title IX Coordinator may not serve as a Decision-maker or Chair in the matter but may serve as an administrative facilitator of the hearing if their previous roles 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 Chair or designee.
19. Evidentiary Considerations in the Hearing
Any evidence that the Decision-makers determine is relevant may be considered. The following evidence is generally not relevant and will not be considered by the decision-makers: 1) incidents not directly related to the possible violation, unless they evidence a pattern; or 2) 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.
Within the boundaries stated above, the hearing Decision-makers have discretion to consider character evidence generally, if offered, but that evidence is unlikely to be relevant unless it is fact evidence or relates to a pattern of conduct.
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, and is not shared until then.
The parties may each submit a written impact statement prior to the hearing for the consideration of the Decision-makers and the relevant administrators at the sanction stage of the process when a determination of responsibility is reached.
After post-hearing deliberation, the Decision-makers, by majority, will render a determination based on the preponderance of the evidence; in other words, whether it is more likely than not that the Respondent violated the Policy as alleged.
20. Notice of Hearing
No less than ten (10) business days prior to the hearing, the Title IX Coordinator or the Chair will send written notice of the hearing to the parties. Once mailed, emailed, and/or received in-person, notice will be presumptively delivered.
The notice will contain:
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 College and remain within the 60-90 business day goal for resolution.
A student facing charges under this Policy is not in good standing to graduate.
21. Alternative Hearing Participation Options
If a party or parties prefer not to attend or cannot attend the hearing in person, the party should request alternative arrangements from the Title IX Coordinator or the Chair at least five (5) business days prior to the hearing.
The Title IX Coordinator or the Chair can arrange to use technology to allow remote testimony without compromising the fairness of the hearing. Remote options may also be needed for witnesses who cannot appear in person. Any witness who cannot attend in person should let the Title IX Coordinator or the Chair know at least five (5) business days prior to the hearing so that appropriate arrangements can be made.
22. Pre-Hearing Preparation
The Chair or hearing facilitator after any necessary consultation with the parties, Investigators and/or Title IX Coordinator, will provide the names of persons who will be participating in the hearing, all pertinent documentary evidence, and the final investigation report to the parties at least ten (10) business days prior to the hearing.
Any witness scheduled to participate in the hearing must have been first interviewed by the Investigators or have offered a written statement or answered written questions, unless all parties and the Chair 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 Chair do not assent to the presentation of witnesses and/or the admission of evidence newly offered at the hearing, the Chair may delay the hearing and instruct that the investigation needs to be re-opened to consider that evidence or interview that new witness.
The parties will be given a list of the names of the Decision-makers 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-makers a list of the names of all parties, witnesses, and Advisers 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 Advisers 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.
23. Pre-Hearing Meetings
The parties and/or their Advisers may request a pre-hearing meeting with the Chair or hearing administrator to review the hearing procedures.
The pre-hearing meeting(s) will not be recorded.
24. Hearing Procedures
At the hearing, the Decision-makers have 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 on Equal Opportunity, Harassment, and Nondiscrimination.
Participants at the hearing will include the Chair, any additional panelists, the hearing facilitator, the Investigator(s) who conducted the investigation, the parties (or three (3) organizational representatives when an organization is the Respondent), Advisers to the parties, any called witnesses, the Title IX Coordinator, and anyone providing authorized accommodations or assistive services.
The Chair will answer all questions of procedure. Anyone appearing at the hearing to provide information will respond to questions on their own behalf. The Chair 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-makers and the parties and the witnesses will then be excused.
25. 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. At the discretion of the Title IX Coordinator, a Formal Complaint and a related Counterclaim may be considered jointly at the same hearing. In joint hearings, separate determinations of responsibility will be made for each Respondent with respect to each alleged policy violation.
The Title IX Coordinator may instead permit the investigation and/or hearings pertinent to each Respondent to be conducted separately if there is a compelling reason to do so.
26. The Order of the Hearing – Introductions and Explanation of Procedure
At the outset of a hearing, the Chair explains the procedures and introduces the participants. This may include a final opportunity for challenge or recusal of Decision-makers on the basis of bias or conflict of interest. The Chair will rule on any such challenge unless the Chair is the individual who is the subject of the challenge, in which case the Title IX Coordinator will review and decide the challenge.
The Chair and/or hearing facilitator then conducts the hearing according to the hearing script. 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. As noted, 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.
27. 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-makers and the parties (through their Advisers). The Investigator(s) may be present during the entire hearing process, but not during deliberations.
Neither the parties nor the Decision-makers should ask the Investigator(s) their opinions on credibility, recommended findings, or determinations, and the Investigators, Advisers, and parties will refrain from discussion of or questions about these assessments. If such information is introduced, the Chair will direct that it be disregarded.
28. 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 Chair. The parties/witnesses will submit to questioning by the Decision-makers and then by the parties through their Advisers (“indirect questioning”).
All questions are subject to a relevance determination by the Chair. The Adviser, 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 Chair upon request if agreed to by all parties and the Chair), the proceeding will pause to allow the Chair to consider it (and state it if it has not been stated aloud), and the Chair will determine whether the question will be permitted, disallowed, or rephrased.
The Chair may invite explanations or persuasive statements regarding relevance with the Advisers, if the Chair so chooses. The Chair will then state their decision on the question for the record and advise the party/witness to whom the question was directed, accordingly. The Chair will explain any decision to exclude a question as not relevant, or to reframe it for relevance.
The Chair will limit or disallow questions on the basis that they are irrelevant, unduly repetitious (and thus irrelevant), or abusive. The Chair has final say on all questions and determinations of relevance. The Chair may ask advisers to frame why a question is or is not relevant from their perspective but will not entertain argument from the Advisers on relevance once the Chair 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 Chair may elect to address those issues, 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 Chair should not permit irrelevant questions that probe for bias.
29. Refusal to Submit to Cross-Examination (Indirect Questioning) and Inferences
If a party or witness chooses not to submit to cross-examination, or indirect questioning, at the hearing, either because they do not attend the hearing, or they attend but refuse to participate in questioning, then the Decision-makers may not rely on any statement made by that party or witness (including those contained in the investigation report) in the ultimate determination of responsibility. The Decision-makers must disregard all such statements. Evidence provided that is something other than a statement by the party or witness may still be considered. “Statement” for purposes of this Policy means factual assertions made by a party or witness. A “statement” might include a factual assertion made during an interview or conversation, written by the individual making the assertion (including those found in a Formal Complaint), and memorialized in the writing of another (e.g., in an investigative report, police report, or medical record).
Cross-examination is an all or nothing proposition, meaning that if any question is refused, no statements of that party or witness are admissible. Only if a party or witness is willing to submit to cross-examination, and answers all questions, will their statements prior to or at the hearing be fully admissible. If a party or witness chooses not to submit to cross-examination at the hearing, either because they do not attend the hearing, or they attend but refuse to participate in questioning, then the Decision-makers may not rely on any statement made by that party or witness in the ultimate determination of responsibility. The Decision-makers must disregard all statements. Evidence provided that is something other than a statement by the party or witness may be considered.
Whether a party or witness does or does not answer questions from the Decision-makers, their statements will be admissible as long as they are willing to submit to cross-examination questions, even if they are not asked such questions. The Decision-makers 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 Title IX sexual harassment are considered at the same hearing, the Decision-makers may consider all evidence they deem relevant, may rely on any relevant statement as long as the opportunity for cross-examination is afforded to all parties through their Advisers, and may draw reasonable inferences from any decision by any party or witness not to participate or respond to questions.
If a party’s Adviser of choice refuses to comply with the College’s established rules of decorum for the hearing, the College may require the party to use a different Adviser. If a College-provided Adviser refuses to comply with the rules of decorum, the College may provide that party with a different Adviser to conduct cross-examination on behalf of that party.
30. Recording Hearings
Hearings (but not deliberations) are recorded by the College 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-makers, the parties, their Advisers, and appropriate College administrators 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.
31. Deliberation, Decision-making, and Standard of Proof
After the hearing is complete, the Decision-makers will deliberate in closed session to determine whether the Respondent is responsible or not responsible for the policy violation(s) in question. 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 Chair, but is there only to facilitate procedurally, not to address the substance of the allegations.
If the Respondent is found responsible for a policy violation on one or more of the allegations, the Decision-makers will review the previously submitted impact statements and any pertinent conduct history for the Respondent and will determine the appropriate sanction(s) after consultation with other appropriate administrators (who shall also review the impact statements). For students, sanctions based on findings of responsibility will be determined by the Decision-makers in consultation with the Office of Student Conduct. For staff, sanctions based on findings of responsibility will be determined by the Decision-makers in consultation with the Office of Human Resources. For faculty, sanctions based on findings of responsibility will be determined by the Decision-makers in consultation with the Provost. The Decision-makers and the relevant administrators may – at their discretion – consider the impact statements, but they are not binding. The Chair will ensure that each of the parties has an opportunity to review any impact statement submitted by the other party(ies).
Once a determination and sanction has been decided, the Chair will then prepare a notice of outcome and deliver it to the Title IX Coordinator, stating the determination on both responsibility and sanctions, if any.
This notice of outcome 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.
32. Written Determination Regarding Responsibility
Using the notice of outcome, the Title IX Coordinator will then work with the Chair to prepare a Written Determination Regarding Responsibility. The Title IX Coordinator will then share the Written Determination Regarding Responsibility with the parties and their Advisers within seven (7) business days of receiving the notice of outcome.
The Written Determination Regarding Responsibility will 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 College records, or emailed to the parties’ College-issued email or otherwise approved account. Once mailed, emailed, and/or received in-person, notice will be presumptively delivered.
The Written Determination Regarding Responsibility will articulate the specific policy(ies) reported to have been violated, including the relevant policy section, and will contain a description of the procedural steps taken by the College 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 Written Determination Regarding Responsibility 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 College is permitted to share such information under state or federal law; any sanctions issued which the College is permitted to share according to state or federal law; and whether any remedies will be provided to the Complainant designed to ensure access to the College’s educational or employment program or activity (the specific remedies, if any, that are being offered is not typically shared with the Respondent unless the remedy directly relates to the Respondent).
The Written Determination Regarding Responsibility will also include information on when the results are considered by the College to be final, any changes that occur prior to finalization, and the relevant procedures and bases for any available appeal options.
33. Statement of the Rights of the Parties (see Appendix A)
Factors considered when determining a sanction/responsive action may include, but are not limited to:
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 other internal processes or external authorities.
a. Student Sanctions
The following are the usual sanctions that may be imposed upon students or organizations, singly or in combination:
b. Employee Sanctions/Responsive Actions
Responsive actions for an employee who has engaged in harassment, discrimination, and/or retaliation include:
35. Withdrawal or Resignation While Charges Pending
a. Students: Should either party decide not to participate, or advise that they no longer wish to participate, in the Formal Grievance Process, the Process may proceed absent their participation. Should a student Respondent permanently withdraw from the College, the resolution process may end, as the College no longer has disciplinary jurisdiction over the withdrawn student.
However, in every circumstance the College will continue to address and remedy any systemic issues or concerns that may have contributed to the alleged violation(s), and any ongoing effects of the alleged harassment, discrimination, and/or retaliation. It is possible that a student who withdraws or leaves while the process is pending may not be able to return to the College. They may also be barred from College property and/or events.
If the student Respondent only withdraws or takes a leave for a specified period of time (e.g., one semester or term), the resolution process may continue remotely and that student is not permitted to return to the College unless and until there has been an outcome and all sanctions, if any, have been satisfied.
b. Employees: Should an employee Respondent resign with unresolved allegations pending, the resolution process may end, as the College no longer has disciplinary jurisdiction over the resigned employee.
However, the College will continue to address and remedy any systemic issues or concerns that contributed to the alleged violation(s), and any ongoing effects of the alleged harassment or discrimination.
Any party may file a request for appeal (“Request for Appeal”). It must be submitted in writing to the Title IX Coordinator within five (5) business days after that party receives the Written Determination Regarding Responsibility.
A three-person Appeal panel chosen from the Pool will be designated by the Title IX Coordinator. No appeal panelists will have been involved in the process previously, including any dismissal appeal that may have been heard earlier in the process. A voting Chair of the Appeal panel will be designated by the Title IX Coordinator.
The Request for Appeal will be forwarded to the Appeal Chair for consideration to determine if the request meets the grounds for appeal (a Review for Standing).
This Review for Standing is not a review of the merits of the appeal, but solely a determination as to whether the request meets the grounds and is timely filed.
a. Grounds for Appeal
Appeals are limited to the following grounds:
If after a Review For Standing the grounds stated in the Request for Appeal do not meet the grounds in this Policy, that Request for Appeal will be denied by the Appeal Chair and the parties and their Advisers, and the Title IX Coordinator 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 Chair will notify the other party(ies) and their Advisers, the Title IX Coordinator, and, when appropriate, the Investigators and/or the original Decision-makers. The other party(ies) and their Advisers, 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 five (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 Chair to all parties to submit a written statement in support of, or challenging, the outcome.
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 via a Review for Standing to determine if it meets the grounds in this Policy by the Appeal Chair and either denied or approved. If approved, it will be forwarded to the party who initially requested an appeal, the Investigators and/or original Decision-makers, as necessary, who will submit their responses in five (5) 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 Chair will collect any additional information needed and all documentation regarding the approved grounds and the subsequent responses will be shared with the Appeal Panel, and the Panel will render a decision in no more than seven (7) business days, barring exigent circumstances. All decisions are by majority vote and apply the preponderance of the evidence standard.
A written 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, if appropriate, any sanctions that may result which the College is permitted to share according to state or federal law, and the rationale supporting the essential findings to the extent the College 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’ College-issued email or otherwise approved account. Once mailed, emailed and/or received in-person, notice will be presumptively delivered.
b. Sanctions Status During the Appeal
Any sanctions imposed as a result of the hearing are stayed during the appeal process. Supportive measures may be reinstated, subject to the same supportive measure procedures above.
If any of the sanctions are to be implemented immediately post-hearing, but pre-appeal, then emergency removal procedures (detailed above) for a hearing on the justification for doing so must be permitted within 48 hours of implementation.
The College may still place holds on official transcripts, diplomas, graduations, and course registration pending the outcome of an appeal when the original sanctions included separation.
c. Appeal Considerations for the Appeal Decision-makers
37. 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 actions 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:
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 College to the Respondent to ensure no effective denial of educational access.
The College will maintain the privacy of any long-term remedies/actions/measures, provided privacy does not impair the College’s ability to provide these services.
38. Failure to Comply with Sanctions and/or Interim and Long-term Remedies and/or Responsive Actions
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 College 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.
The College will maintain for a period of at least seven years records of:
The College will also maintain any and all records in accordance with state and federal laws.
40. Disabilities Accommodations in the Resolution Process
Lafayette College is committed to providing reasonable accommodations and support to qualified students, employees, or others with disabilities to ensure equal access to the College’s resolution process.
Anyone needing such accommodations or support should contact the Academic Resource Hub for Accessibility Services (for students) or the Office of Human Resources (for employees), who will review the request and, in consultation with the person requesting the accommodation and the Title IX Coordinator, determine which accommodations are appropriate and necessary for full participation in the process.
41. Revision of this Policy and Procedures
This Policy and procedures supersede any previous policy(ies) addressing harassment, sexual misconduct, discrimination, and/or retaliation under Title IX, and will be reviewed and, if appropriate, updated annually by the Presidential Oversight Committee on Sexual Misconduct. The College 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 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.
The Policy in effect at the time of the offense will apply even if the policy is changed subsequently but prior to resolution, unless the parties consent to be bound by the current policy.
Procedures in effect at the time the incident is reported will apply to resolution of incidents, regardless of when the incident occurred.
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.
The Policy and this Process A are effective August 14, 2020.
 If circumstances require, the President or Title IX Coordinator will designate another person to oversee the process below should an allegation be made about the Coordinator or the Coordinator be otherwise unavailable or unable to fulfill their duties.
 These dismissal requirements are mandated by the 2020 Title IX Regulations, 34 CFR Part 106.45.
 This could include an attorney, advocate, or support person. The law permits one Adviser for each party (witnesses are not entitled to Advisers within the process, though they can be advised externally).
 The final investigation report may be shared using electronic means that preclude downloading, forwarding, or otherwise sharing.
ATIXA 2020 ONE POLICY, TWO PROCEDURES MODEL USE AND ADAPTATION OF THIS MODEL WITH CITATION TO ATIXA IS PERMITTED THROUGH A LIMITED LICENSE TO LAFAYETTE COLLEGE. ALL OTHER RIGHTS RESERVED.