|Responsible Unit||Title IX|
|Responsible Cabinet Member||VP for EMSA|
|Last Revision Date||2021-08-27|
|Last Review Date||2021-08-27|
What is the purpose of the Title IX Grievance Policy? 1
Title IX of the Educational Amendments of 1972 prohibits any person in the United States from being discriminated against on the basis of sex in seeking access to any educational program or activity receiving federal financial assistance. The U.S. Department of Education, which enforces Title IX, has long defined the meaning of Title IX’s prohibition on sex discrimination broadly to include various forms of sexual harassment and sexual violence that interfere with a student’s ability to equally access our educational programs and opportunities.
On May 19, 2020, the U.S. Department of Education issued a Final Rule under Title IX of the Education Amendments of 1972 that:
- Defines the meaning of “sexual harassment” (including forms of sex-based violence);
- Addresses how this institution must respond to reports of misconduct falling within that definition of sexual harassment; and
- Mandates a grievance process that this institution must follow to comply with the law in these specific covered cases before issuing a disciplinary sanction against a person accused of sexual harassment.
See, 85 Fed. Reg. 30026 (May 19, 2020). The full text of the Final Rule and its extensive Preamble are available here.
Based on the Final Rule, SUNY Brockport will implement the following Title IX Grievance Policy, effective August 14, 2020.
How does the Title IX Grievance Policy impact other campus disciplinary policies?
In recent years, “Title IX” cases have become a short-hand for any campus disciplinary process involving sex discrimination, including those arising from sexual harassment and sexual assault. But under the Final Rule, SUNY Brockport must narrow both the geographic scope of its authority to act under Title IX and the types of “sexual harassment” that it must subject to its Title IX investigation and adjudication process. Only incidents falling within the Final Rule’s definition of sexual harassment will be investigated and, if appropriate, brought to a live hearing through the Title IX Grievance Policy defined below.
SUNY Brockport remains committed to addressing any violations of its policies, even those not meeting the narrow standards defined under the Title IX Final Rule.
Specifically, our campus has:
- A Code of Student Conduct that defines certain behavior as a violation of campus policy, including dating violence, domestic violence, stalking, sex and/or gender based discrimination, sexual harassment (hostile environment and quid pro quo), non-consensual sexual contact, non-consensual intercourse, and sexual exploitation;
- An Employee Discrimination Complaint Procedure that defines sexual assault, sexual harassment in the educational setting, sexual harassment in the employment setting, and sexual violence.
To the extent that alleged misconduct falls outside the Title IX Grievance Policy, or misconduct falling outside the Title IX Grievance Policy is discovered in the course of investigating covered Title IX misconduct, the University retains authority to investigate and adjudicate the allegations under the policies and procedures defined within the Code of Student Conduct or Employee Discrimination Complaint Procedure, as applicable, through a separate grievance proceeding.
The elements established in the Title IX Grievance Policy under the Final Rule have no effect and are not transferable to any other policy of the University for any violation of the Code of Student Conduct, employment policies, or any civil rights violation, except as narrowly defined in this Policy. This Policy does not set a precedent for other policies or processes of the University and may not be cited for or against any right or aspect of any other policy or process.
How does the Title IX Grievance Policy impact the handling of complaints?
Our existing Title IX office and reporting structure remains in place. What has changed is the way our Title IX office will handle different types of reports arising from sexual misconduct, as detailed in full throughout Section 2.
2. Title IX Grievance Policy
GENERAL RULES OF APPLICATION
This Title IX Grievance Policy will become effective on August 14, 2020, and will only apply to formal complaints of sexual harassment brought on or after August 14, 2020. Complaints brought prior to August 14, 2020, will be investigated and adjudicated according to the Title IX Grievance Policy if a case is not complete by that date. 2
Revocation by Operation of Law
Should any portion of the Title IX Final Rule, 85 Fed. Reg. 30026 (May 19, 2020), be stayed or held invalid by a court of law, or should the Title IX Final Rule be withdrawn or modified not to require the elements of this policy, then this policy, or the invalidated elements of this policy, will be deemed revoked as of the publication date of the opinion or order and for all reports after that date, as well as any elements of the process that occur after that date, if a case is not complete by the date of opinion or order publication. Should the Title IX Grievance Policy be revoked in this manner, any conduct covered under the Title IX Grievance Policy shall be investigated and adjudicated under the existing Code of Student Conduct or Employee Discrimination Complaint Procedure, as applicable.
Non-Discrimination in Application
The requirements and protections of this policy apply equally regardless of sex, sexual orientation, gender identity, gender expression, or other protected classes covered by federal or state law. All requirements and protections are equitably provided to individuals, regardless of such status or status as a complainant, respondent, or witness. Individuals who wish to file a complaint about SUNY Brockport’s policy or process may contact the Department of Education’s Office for Civil Rights using contact information available at https://ocrcas.ed.gov/contact-ocr.
Covered Sexual Harassment
For the purposes of this Title IX Grievance Policy, “covered sexual harassment” includes any conduct on the basis of sex that satisfies one or more of the following:
- An employee’s conditioning educational benefits on participation in unwelcome sexual conduct (i.e., quid pro quo);
- Unwelcome conduct that a reasonable person would determine is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the educational institution’s education program or activity;
- Sexual assault (as defined in the Clery Act), which includes any sexual act directed against another person, without the consent of the victim, including instances where the victim is incapable of giving consent;
- Dating violence (as defined in the Violence Against Women Act [VAWA] amendments to the Clery Act), which includes any violence committed by a person: (A) who is or has been in a social relationship of a romantic or intimate nature with the victim; and (B) where the existence of such a relationship shall be determined based on a consideration of the following factors: (i) The length of the relationship; (ii) The type of relationship; and (iii) The frequency of interaction between the persons involved in the relationship.
- Domestic violence (as defined in the VAWA amendments to the Clery Act), which includes any felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner, by a person similarly situated to a spouse of the victim under New York State domestic or family violence laws, or by any other person against an adult or youth victim who is protected from that person’s acts under the domestic or family violence laws of New York State.
- Stalking (as defined in the VAWA amendments to the Clery Act), meaning engaging in a course of conduct directed at a specific person that would cause a reasonable person to: (A) fear for their safety or the safety of others; or (B) suffer substantial emotional distress.
Note that conduct that does not meet one or more of these criteria may still be prohibited under the SUNY Brockport Code of Student Conduct or Employee Discrimination Complaint Procedure.
For the purposes of this Title IX Grievance Policy, “consent” is the same definition as set forth in the Code of Student Conduct, Category II: Sexual/Gender Based Discrimination and Misconduct, and is as follows:
- Affirmative consent is a knowing, voluntary, and mutual decision among all participants to engage in sexual activity.
- Consent may be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity.
- Consent is active, not passive.
- Silence or lack of resistance, in and of itself, does not demonstrate consent.
- Consent is required and is the responsibility of the person(s) initiating each specific sexual act regardless of whether the person initiating the act is under the influence of drugs and/or alcohol.
- Consent to any sexual act or prior consensual sexual activity between the parties or with any party does not constitute consent to any other sexual act.
- Consent may be initially given but withdrawn at any time.
- When consent is withdrawn or cannot be given, sexual activity must stop.
- Consent cannot be given when a person is incapacitated.
- Incapacitation occurs when an individual lacks the ability to knowingly choose to participate in sexual activity. Incapacitation may be caused by the lack of consciousness or being asleep, being involuntarily restrained, or if an individual otherwise cannot consent.
- Depending on the degree of intoxication, someone who is under the influence of alcohol, drugs, or other intoxicants may be incapacitated and therefore unable to consent.
- It is not an excuse that the student responding party of sexual misconduct was intoxicated and/or under the influence of other drugs, and therefore, did not realize the incapacity of the other.
- Consent cannot be given if any of the parties are under the age of 17, or if an individual otherwise cannot consent.
- Consent cannot be given when it is the result of any coercion, intimidation, force, or threat of harm.
- The definition of consent does not vary based upon a participant’s sex, sexual orientation, gender identity or gender expression.
Education Program or Activity
For the purposes of this Title IX Grievance Policy, SUNY Brockport’s “education program or activity” includes:
- Any on-campus premises
- Any off-campus premises that SUNY Brockport has substantial control over. This includes buildings or property owned or controlled by a recognized student organization.
- Activity occurring within computer and internet networks, digital platforms, and computer hardware or software owned or operated by, or used in the operations of SUNY Brockport’s programs and activities over which SUNY Brockport has substantial control.
For the purposes of this Title IX Grievance Policy, “formal complaint” means a document – including an electronic submission – filed by a complainant with a signature or other indication that the complainant is the person filing the formal complaint, or signed by the Title IX Coordinator, alleging sexual harassment against a respondent about conduct within SUNY Brockport’s education program or activity and requesting initiation of the procedures consistent with the Title IX Grievance Policy to investigate the allegation of sexual harassment.
For the purposes of this Title IX Grievance Policy, “Complainant” means any individual who has reported being, or is alleged to be, the victim of conduct that could constitute covered sexual harassment as defined under this policy.
For the purposes of this Title IX Grievance policy, “Respondent” means any individual who has been reported to be the perpetrator of conduct that could constitute covered sexual harassment as defined under this policy.
For the purposes of this Title IX Grievance policy, “Parties” means the complainant and respondent.
A “business day” means a day other than Saturday, Sunday, and New York State and federal holidays.
Relevant evidence and questions
“Relevant” evidence and questions refer to any questions and evidence that tend to make an allegation of sexual harassment more or less likely to be true.
“Relevant” evidence and questions do not include the following types of evidence and questions, which are deemed “irrelevant” at all stages of the Title IX Grievance Process:
- Evidence and questions about the complainant’s sexual predisposition or prior sexual behavior unless:
- They are offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or
- They 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(6)(i).
- Evidence and questions that constitute, or seek disclosure of, information protected under a legally-recognized privilege.
Legally-recognized privileges include, e.g., attorney-client privilege, doctor-patient privilege, etc.
- Any party’s medical, psychological, and similar records, unless the party has given voluntary, written consent. 85 Fed. Reg. 30026, 30294 (May 19, 2020).
Confidentiality vs. Privacy
Consistent with SUNY Brockport’s Code of Student Conduct, references made to confidentiality refer to the ability of identified confidential resources not to report crimes and violations to law enforcement or university officials without permission, except for extreme circumstances, such as a health and/or safety emergency or child abuse. References made to privacy mean SUNY Brockport offices and employees who cannot guarantee confidentiality, but will maintain privacy to the greatest extent possible, and who will disclose information only as necessary i) to investigate and/or seek a resolution; and ii) to notify the Title IX Coordinator or designee, who is responsible for tracking patterns, spotting systemic issues, and offering supportive measures. SUNY Brockport will limit the disclosure as much as practicable, even if the Title IX Coordinator determines that the request for confidentiality cannot be honored.
This Policy does not alter any institutional obligations under federal disability laws including the Americans with Disabilities Act of 1990, and Section 504 of the Rehabilitation Act of 1973. Parties may request reasonable accommodations for disclosed disabilities to the Title IX Coordinator at any point before or during the Title IX Grievance Process, that do not fundamentally alter the Process. The Title IX Coordinator will not affirmatively provide disability accommodations that have not been specifically requested by the parties, even where the parties may be receiving accommodations in other institutional programs and activities.
MAKING A REPORT REGARDING COVERED SEXUAL HARASSMENT TO SUNY BROCKPORT
Any person may report sex discrimination, including sexual harassment (whether or not the person reporting is the person alleged to be the victim of conduct that could constitute sex discrimination or sexual harassment), in person, by mail, by telephone, or by electronic mail, using the contact information listed for the Title IX Coordinator, or by any other means that results in the Title IX Coordinator receiving the person’s verbal or written report.
Contact Information for the Title IX Coordinator:
Name: Denine Carr
Office Address: 620 Allen Administration Building; SUNY Brockport
Email Address: firstname.lastname@example.org
Telephone Number: (585) 395-5066
Such a report may be made at any time (including during non-business hours), by phone or email, or by interoffice or U.S. mail to the office address listed for the Title IX Coordinator.
Reports also may be made (anonymously or not) at: https://cm.maxient.com/reportingform.php?SUNYBrockport&layout_id=4
The following Officials will provide privacy, but not confidentiality, upon receiving a report of conduct prohibited under this policy:
- Title IX Coordinator or designee;
- Affirmative Action Officer;
- Human Resources personnel;
- Student Conduct Director or other Student Conduct personnel;
- Residential Life personnel, including Resident Directors and Resident Assistants;
- University Police; and
- Faculty, administrators, and most staff.
The following are Confidential Resources:
- Hazen Center for Integrated Care (Student Health and Counseling Centers); and
- RESTORE advocate, located at Hazen Hall.
NON-INVESTIGATORY MEASURES AVAILABLE UNDER THE TITLE IX GRIEVANCE POLICY
Complainants who report allegations that could constitute covered sexual harassment under this policy have the right to receive supportive measures from SUNY Brockport, regardless of whether they desire to file a complaint. These supportive measures may include: Counseling, no contact order, academic support (including extensions or modifications), change in housing, change in on-campus work schedule, campus escort service, leave of absence, etc., as appropriate. Supportive measures are non-disciplinary and non-punitive. See 85 Fed. Reg. 30401.
SUNY Brockport retains the authority to remove a respondent from its programs or activities on an emergency basis, where SUNY Brockport (1) undertakes an individualized safety and risk analysis; and (2) determines that an immediate threat to the physical health or safety of any student or other individual arising from the allegations of covered sexual harassment justifies a removal.
If SUNY Brockport determines such removal is necessary, the respondent will be provided notice and an opportunity to challenge the decision within three business days following the removal. If the respondent challenges the removal, the administrator hearing the challenge will make a decision within five business days of request. The administrator will not be involved in any decision regarding responsibility or appeal of that decision regarding responsibility.
SUNY Brockport retains the authority to place a non-student employee respondent on administrative leave during the Title IX Grievance Process, consistent with the applicable collective bargaining agreement.
THE TITLE IX GRIEVANCE PROCESS
Filing a Formal Complaint
The timeframe for the Title IX Grievance Process begins with the filing of a Formal Complaint. The Grievance Process will be concluded in a reasonably prompt manner, and will generally take no longer than ninety (90) calendar days after the filing of the Formal Complaint; in some instances, the process may be extended for a good reason, including but not limited to, the unavailability or absence of a party, a party’s advisor, or a witness; concurrent law enforcement activity; or the need for language assistance or accommodation of disabilities.
To file a Formal Complaint, a complainant must provide the Title IX Coordinator a written, signed complaint describing the facts alleged. Complainants are only able to file a Formal Complaint under this policy if they are currently participating in, or attempting to participate in, the education programs or activities of SUNY Brockport, including as an employee. For complainants who do not meet this criteria, the University will utilize existing policy in the Code of Student Conduct or the SUNY Employee Discrimination Complaint Procedure.
If a complainant does not wish to make a Formal Complaint, the Title IX Coordinator may determine a Formal Complaint is necessary. SUNY Brockport will inform the complainant of this decision in writing, and the complainant need not participate in the process further, but will receive all notices issued under this policy and process.
Nothing in the Title IX Grievance Policy, Code of Student Conduct or Employee Discrimination Complaint Procedure prevents a complainant from seeking the assistance of state or local law enforcement alongside the appropriate on-campus process.
The institution may consolidate Formal Complaints alleging covered sexual harassment against more than one respondent, or by more than one complainant against one or more respondents, or by one party against the other party, where the allegations of covered sexual harassment arise out of the same facts or circumstances.
The Title IX Coordinator or the Affirmative Action Officer will determine if the Title IX Grievance process may apply to a Formal Complaint. The process will apply when all of the following elements are met, in the reasonable determination of the Title IX Coordinator:
- The conduct is alleged to have occurred on or after August 14, 2020;
- The conduct is alleged to have occurred in the United States;
- The conduct is alleged to have occurred in SUNY Brockport’s education program or activity; and
- The alleged conduct, if true, would constitute covered sexual harassment as defined in this policy.
If all of the elements are met, SUNY Brockport will investigate the allegations according to the Title IX Grievance Process.
Allegations Potentially Falling Under Two Policies
If the alleged conduct against students, if true, includes conduct that would constitute covered sexual harassment and conduct that would not constitute covered sexual harassment, the Title IX Grievance Process will be applied to investigation and adjudication of only the allegations that constitute covered sexual harassment as well as conduct covered in the Code of Student Conduct, Category II: Sexual/Gender Based Discrimination and Misconduct: Prohibited Behavior. Any Code of Student Conduct, Category I: General Student Conduct cases will be adjudicated separately, and in accordance with the Code of Student Conduct.
If the alleged conduct against employees, if true, includes conduct that would constitute covered sexual harassment and conduct that would cover sexual harassment and other sexual misconduct that is prohibited by the Employee Discrimination Complaint Procedure, the Title IX Grievance Process will be applied to investigation and adjudication of only the allegations that constitute covered sexual harassment. Any alleged conduct that may also violate the Employee Discrimination Complaint Procedure will be adjudicated separately, and in accordance with the process set forth therein.
If any one of these elements is not met, the Title IX Coordinator will notify the parties that the Formal Complaint is being dismissed for the purposes of the Title IX Grievance Policy. Each party may appeal this dismissal, using the procedure outlined in “Appeals,” below.
The Title IX Coordinator may dismiss a Formal Complaint brought under the Title IX Grievance Policy, or any specific allegations raised within that Formal Complaint, at any time during the investigation or hearing, if:
- A complainant notifies the Title IX Coordinator in writing that they would like to withdraw the Formal Complaint or any allegations raised in the Formal Complaint;
- The respondent is no longer enrolled or employed by SUNY Brockport; or
- If specific circumstances prevent the University from gathering evidence sufficient to reach a determination regarding the Formal Complaint or allegations within the Formal Complaint.
Each party may appeal this dismissal, using the procedure set forth in “Appeals,” below.
Notice of Dismissal of Formal Complaint
Upon deciding to dismiss the Formal Complaint or any allegations raised in the Formal Complaint, the University will promptly send written notice of the dismissal of the Formal Complaint or any specific allegation in it, and the reason for the dismissal, simultaneously to the parties through their institutional email accounts. It is the responsibility of the parties to maintain and regularly check their email accounts.
Notice of Referral to Other Investigative Process
Upon dismissal of the Formal Complaint, for the purposes of Title IX, SUNY Brockport retains discretion to utilize either the Code of Student Conduct process or Employee Discrimination Complaint Procedure to determine if a violation of either the Code of Student Conduct or Employee Discrimination Complaint Procedure has occurred. If so, the University will promptly send written notice to the parties that the allegations will be investigated using one of those processes, and not the Title IX Grievance Process.
Notice of Allegations
If the Formal Complaint moves forward, using the Title IX Grievance Process, then the Title IX Coordinator will draft and provide the Notice of Allegations to all parties alleged to be involved in the covered sexual harassment. Such notice will occur as soon as practicable, after SUNY Brockport receives a Formal Complaint of the allegations, if there are no extenuating circumstances.
The parties will be notified by their institutional email accounts if they are a student or employee, and by other reasonable means, if they are neither.
SUNY Brockport will provide sufficient time for respondents to review the Notice of Allegations and prepare a response before any initial interview.
The Title IX Coordinator may determine that the Formal Complaint must be dismissed on the mandatory grounds identified above, and will issue a Notice of Dismissal. If such a determination is made, all parties to the allegations of sexual harassment identified in the Formal Complaint will receive the Notice of Dismissal in conjunction with, or in separate correspondence after, the Notice of Allegations.
Contents of Notice
The Notice of Allegations will include the following:
- Notice of the institution’s Title IX Grievance Process and a hyperlink to a copy of the process;
- Notice of the allegations potentially constituting covered sexual harassment, and sufficient details known at the time the notice is issued, such as the identities of the parties involved in the incident, if known, including the complainant; the conduct allegedly constituting covered sexual harassment; and the date and location of the alleged incident, if known;
- A statement that the respondent is presumed not responsible for the alleged conduct until otherwise proven and that a determination regarding responsibility will be made at the conclusion of the grievance process;
- A statement that the parties may have an advisor of their choice, who may be, but is not required to be, an attorney, as required under 34 C.F.R. § 106.45(b)(5)(iv);
- A statement that before the conclusion of the investigation, the parties may inspect and review evidence obtained as part of the investigation that is directly related to the allegations raised in the Formal Complaint, including the evidence upon which the institution does not intend to rely in reaching a determination regarding responsibility, and evidence that tends to prove or disprove the allegations, whether obtained from a party or other source, as required under 34 C.F.R. § 106.45(b)(5)(vi); and
- A statement that providing false or misleading information to a student conduct officer or university official or knowingly furnishing false information to the University in the form of a false complaint or report is a violation of the Code of Student Conduct. [See Code of Student Conduct, Section I, 17(c) and/or 20.]
If, in the course of an investigation, the University decides to investigate allegations about a complainant or respondent that are not included in the Notice of Allegations and are otherwise covered “sexual harassment” falling within the Title IX Grievance Policy and/or Sexual/Gender Based Discrimination and Misconduct pursuant to Category II of the Code of Student Conduct or the Employee Discrimination Complaint Procedure, SUNY Brockport will notify the parties whose identities are known of the additional allegations by their institutional email accounts or other reasonable means (if a party is not a student at SUNY Brockport).
The parties will be provided sufficient time to review the additional allegations to prepare a response before any initial interview regarding the additional charges.
Advisor of Choice and Participation of Advisor of Choice
SUNY Brockport will provide the parties equal access to advisors and support persons; any restrictions on advisor participation will be applied equally.
The University has a long-standing practice of requiring students to participate in the process directly and not through an advocate or representative. Students participating as complainant or respondent in this process may be accompanied by an advisor of choice to any meeting or hearing to which they are required or are eligible to attend. The advisor is not an advocate. Except where explicitly stated by this policy, as consistent with the Final Rule, advisors shall not participate directly in the process as per standard policy and practice of SUNY Brockport.
SUNY Brockport will not intentionally schedule meetings or hearings on dates where the advisors for all parties are not available, provided that the advisors act reasonably in providing available dates and work collegially to find dates and times that meet all schedules.
The University’s obligations to investigate and adjudicate in a prompt timeframe under Title IX and other University policies apply to matters governed under this policy, and SUNY Brockport cannot agree to extensive delays solely to accommodate the schedule of an advisor. The determination of what is reasonable shall be made by the Title IX Coordinator or designee. SUNY Brockport will not be obligated to delay a meeting or hearing under this process more than five (5) business days due to the unavailability of an advisor, and may offer the party the opportunity to obtain a different advisor, including the option of using one provided by the University.
Notice of Meetings and Interviews
SUNY Brockport will provide, to a party whose participation is invited or expected, written notice of the date, time, location, identity of participants, and purpose of, investigative interviews, other meetings with a party and hearings, with sufficient time for the party to prepare to participate.
Each party may request a one-time delay in the Grievance Process of up to five (5) business days for good cause (granted or denied in the sole judgment of the Title IX Coordinator, Director of Student Conduct, Affirmative Action Officer, or designee) provided that the requestor provides reasonable notice and the delay does not overly inconvenience other parties.
For example, a request to take a five-day “pause” made an hour before a hearing for which multiple parties and their advisors have traveled to and prepared for will generally not be granted, while a request for a five-day “pause” in the middle of investigation interviews to allow a party to obtain certain documentary evidence will generally be granted.
The Title IX Coordinator, Director of Student Conduct, or designee shall have sole judgment to grant “pauses” in the process.
General Rules of Investigations
After the Title IX Coordinator issues the Notice of Allegations, the co-investigators designated by the Title IX Coordinator or the Affirmative Action Officer will perform an investigation of the conduct alleged to constitute covered sexual harassment, within a reasonably prompt timeframe.
SUNY Brockport, and not the parties, has the burden of proof and the burden of gathering evidence, i.e. the responsibility of showing a violation of this policy has occurred. This burden does not rest with either party, and either party may decide not to share their account of what occurred or may decide not to participate in an investigation or hearing. This does not shift the burden of proof away from the University and does not indicate responsibility.
The University cannot access, consider, or disclose medical records without a waiver from the party (or parent, if applicable) to whom the records belong or about whom the records include information.
SUNY Brockport will provide an equal opportunity for the parties to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence, (i.e. evidence that tends to prove and disprove the allegations) as described below.
Inspection and Review of Evidence
Prior to the completion of the investigation, the parties will have an equal opportunity to inspect and review the evidence obtained through the investigation. The purpose of the inspection and review process is to allow each party the equal opportunity to respond meaningfully to the evidence prior to conclusion of the investigation.
Evidence that will be available for inspection and review by the parties will be any evidence that is directly related to the allegations raised in the Formal Complaint. It will include any:
- Relevant evidence, even if that evidence does not end up being relied upon by the University in making a determination regarding responsibility;
- Inculpatory or exculpatory evidence (i.e. evidence that tends to prove or disprove the allegations) that is directly related to the allegations, whether obtained from a party or other source.
All parties must submit any evidence they would like the investigators to consider prior to when the parties’ time to inspect and review evidence begins. See, 85 Fed. Reg. 30026, 30307 (May 19, 2020).
The University will send the evidence made available for each party and each party’s advisor, if any, to inspect and review through an electronic format, or where that may not be possible, in hard copy. SUNY Brockport is not under an obligation to use any specific process or technology to provide the evidence and shall have the sole discretion in terms of determining format and any restrictions or limitations on access.
The parties will have ten (10) calendar days to inspect and review the evidence and submit a written response by email to the investigators. The investigators will consider the parties’ written responses before completing the Investigative Report. The parties may request a reasonable extension of time in which to inspect and review for good reason.
The University will provide copies of the parties’ written responses to the investigator to all parties and their advisors, if any. See, 85 Fed. Reg. 30026, 30307 (May 19, 2020).
After receiving the parties’ written responses, the investigators may choose to interview or re-interview a party, both parties, or witness(es), and may provide the parties with written notice, extending the investigation, and explaining the reason for the extension.
Any evidence subject to inspection and review will be available at the hearing, if any, including for purposes of cross-examination.
The parties and their advisors are required to sign an agreement not to disseminate any of the evidence subject to inspection and review or use such evidence for any purpose unrelated to the Title IX grievance process. See, 85 Fed. Reg. 30026, 30435 (May 19, 2020).
The parties and their advisors agree not to photograph or otherwise copy the evidence. See, 85 Fed. Reg. 30026, 30435 (May 19, 2020).
Inclusion of Evidence Not Directly Related to the Allegations
Evidence obtained in the investigation that is determined in the reasoned judgment of the investigators not to be directly related to the allegations in the Formal Complaint will not be disclosed, or may be appropriately redacted before the parties’ inspection to avoid disclosure of personally identifiable information of a student. Any evidence obtained in the investigation that is kept from disclosure or appropriately redacted will be documented in a “privilege log” that may be reviewed by the parties and their advisors, if any. See, 85 Fed. Reg. 30026, 30438 (May 19, 2020).
The investigators, in conjunction with the Title IX Coordinator, Affirmative Action Officer, or designee, will create an Investigative Report that fairly summarizes relevant evidence and will provide the report to the parties at least ten (10) calendar days prior to the hearing in electronic format or hard copy for each party’s review and written response.
The Investigative Report is not intended to catalog all evidence obtained by the investigators, but rather, its purpose is to provide a fair summary of that evidence.
Only relevant evidence (including both inculpatory and exculpatory – i.e. tending to prove/ disprove the allegations) will be referenced in the Investigative Report.
The investigator may redact irrelevant information from the Investigative Report when that information is contained in documents or evidence that is/are otherwise relevant. See, 85 Fed. Reg. 30026, 30304 (May 19, 2020).
General Rules of Hearings
SUNY Brockport will not issue a disciplinary sanction arising from an allegation of covered sexual harassment without holding a live hearing, unless otherwise resolved through an informal resolution process.
The live hearing may be conducted with all parties physically present in the same geographic location, or, at the University’s discretion, any or all parties, witnesses, and other participants may appear at the live hearing virtually through remote video conferencing applications, such as Zoom or Microsoft Teams. This technology will enable participants simultaneously to see and hear each other. At its discretion, SUNY Brockport may delay or adjourn a hearing based on technological errors not within the University’s, a party’s, or a witness’s control.
All proceedings will be recorded through either audio recording or audiovisual recording by SUNY Brockport. For privacy reasons, neither the parties nor their advisors are allowed to record the hearings. Cameras or other reproduction equipment, other than SUNY Brockport’s audio recording or audiovisual recording devices, are not permitted in a hearing, unless as a result of a reasonable accommodation. The recording or its transcript will be made available to the parties for inspection and review, upon request. SUNY Brockport, at its discretion, will determine whether the recording or a transcript will be provided.
Prior to attending a hearing, the parties and their advisors must sign an agreement not to disseminate any of the testimony heard or evidence obtained in the hearing or use such testimony or evidence for any purpose unrelated to the Title IX Grievance Process. Once signed, this Agreement may not be withdrawn See, 85 Fed. Reg. 30026, 30435 (May 19, 2020).
Continuances or Granting Extensions
SUNY Brockport may determine that multiple sessions or a continuance (i.e. a “pause” on the continuation of the hearing until a later date or time) is needed to complete a hearing. If so, the University will notify all participants and endeavor to accommodate all participants’ schedules and complete the hearing as promptly as practicable.
As a general rule, no new evidence or witnesses may be submitted during the live hearing.
If a party identifies new evidence or witnesses that were not reasonably available prior to the live hearing and could affect the outcome of the matter, the party may request that such evidence or witnesses be considered at the live hearing.
The decision-maker will consider this request and make a determination regarding (1) whether such evidence or witness testimony was actually unavailable by reasonable effort prior to the hearing, and (2) whether such evidence or witness testimony could affect the outcome of the matter. The party offering the newly-discovered evidence or witness has the burden of establishing these questions by the preponderance of the evidence.
If the decision-maker answers in the affirmative to both questions, then the parties will be granted a reasonable pause in the hearing to review the evidence or prepare for questioning of the witness.
Participants in the Live Hearing
Live hearings are not public, and the only individuals permitted to participate in the hearing are as follows:
Complainant and Respondent (the parties)
- The parties cannot waive the right to a live hearing.
- The University may still proceed with the live hearing in the absence of a party, and may reach a determination of responsibility in their absence, including through any evidence gathered.
- SUNY Brockport will not threaten, coerce, intimidate or discriminate against any party in an attempt to secure the party’s participation. See 34 C.F.R. § 106.71; see also 85 Fed. Reg. 30026, 30216 (May 19, 2020).
- The decision-maker cannot draw an inference about the determination regarding responsibility based solely on a party’s absence from the live hearing or refusal to answer cross-examination or other questions. See 34 C.F.R. §106.45(b)(6)(i). However, a party’s absence from the hearing may impact the outcome.
- The parties must abide by SUNY Brockport’s Rules of Decorum [see Addendum 1 at the end of this document].
- For a hearing involving an employee as respondent, the hearing body will consist of a single decision-maker.
- For a hearing involving a student as respondent, the hearing body will consist of either a single decision-maker or a panel of three decision-makers. If the allegations are that of the Clery crime of rape, the matter will be heard by a panel; otherwise, the respondent will be able to choose whether they want a single decision-maker or a panel of three. If more than one respondent is involved in a matter and one chooses a panel of three, then the hearing will be held with a panel of three decision-makers.
- No member of the hearing body also will have served as the Title IX Coordinator, Title IX investigator, or advisor to any party in the case, nor may any member of the hearing body serve on the appeals body in the case.
- No member of the hearing body will have a conflict of interest or bias in favor of or against complainants or respondents generally, or in favor or against the parties to the particular case.
- The hearing body will be trained on topics including how to serve impartially, issues of relevance, including how to apply the rape shield protections provided for complainants, and any technology to be used at the hearing.
- The parties will have an opportunity to raise any objections regarding a decision-maker’s actual or perceived conflicts of interest or bias upon receipt of notice identifying the decision-maker(s) or during the live hearing.
Advisor of Choice
- The parties have the right to select an advisor of their choice, who may be, but does not have to be, an attorney.
- The advisor of choice may accompany the parties to any meeting or hearing they are permitted to attend, but may not speak for the party, except for the purpose of cross-examination at a hearing.
- The parties are not permitted to conduct cross-examination; it must be conducted by the advisor. As a result, if a party does not select an advisor, the University will select an advisor to serve in this role for the limited purpose of conducting the cross-examination, at no fee or charge to the party.
- The advisor is not prohibited from having a conflict of interest or bias in favor of or against complainants or respondents generally, or in favor or against the parties to the particular case.
- The advisor is not prohibited from being a witness in the matter.
- If a party does not attend the live hearing, the party’s advisor may appear and conduct cross-examination on their behalf. 85 Fed. Reg. 30026, 30340 (May 19, 2020).
- If neither a party nor their advisor appear at the hearing, the University will provide an advisor to appear on behalf of the non-appearing party. See, 85 Fed. Reg. 30026, 30339-40 (May 19, 2020).
- Advisors are subject to SUNY Brockport’s Rules of Decorum, and may be removed upon violation of those Rules.
- Witnesses cannot be compelled to participate in the live hearing, and have the right not to participate in the hearing, free from retaliation. See, 85 Fed. Reg. 30026, 30360 (May 19, 2020).
- Witnesses shall be subject to the University’s Rules of Decorum.
For all live hearings conducted under this Title IX Grievance Process, the procedure will be as follows:
- The decision-maker(s)/ will open and establish rules and expectations for the hearing;
- The parties will each be given the opportunity to provide opening statements;
- The decision-maker(s) will ask questions of the parties and witnesses;
- The parties will be given the opportunity for live cross-examination after the decision-maker(s) conducts their initial round of questioning. During the parties’ cross-examination, the decision-maker will have the authority to “pause” cross-examination at any time for the purposes of asking the decision-maker’s own follow up questions, and at any time necessary in order to enforce the established Rules of Decorum; and
- Should a party or the party’s advisor choose not to cross-examine a party or witness, the party shall affirmatively waive the right to cross-examination through a written or oral statement to the decision-maker.
Live Cross-Examination Procedure
Each party’s advisor will conduct live cross-examination of the other party or parties and witnesses. During this live-cross examination, the advisor will ask the other party or parties and witnesses relevant questions and follow-up questions, including those challenging credibility, directly, orally, and in real time.
The decision-maker(s) will request that advisors provide their intended cross-examination questions in writing, in advance of the hearing. Any questions not submitted in advance of the hearing must be submitted to the decision-maker(s) in writing in advance of the cross-examination of a party or witness, so that the decision-maker is able to determine if the question is relevant, before each question is answered. Cross-examination questions that are duplicative of those already asked, including by the decision-maker(s), may be deemed irrelevant if they have already been asked and answered.
Review of Recording/Transcript
The recording or transcript of the hearing, at SUNY Brockport’s discretion, will be available for review by the parties within five business days following the hearing, unless there are any extenuating circumstances. A copy of recording or/transcript of the hearing will not be provided to parties or advisors.
DETERMINATION REGARDING RESPONSIBILITY
Standard of Proof
SUNY Brockport uses the preponderance of the evidence standard for investigations and determinations regarding responsibility of formal complaints covered under this policy. This means that the decision-maker(s) determine whether it is more likely than not that a violation of this policy occurred.
General Considerations for Evaluating Testimony and Evidence
While the opportunity for cross-examination is required in all Title IX hearings, determinations regarding responsibility may be based in part, or entirely, on documentary, audiovisual, and digital evidence, as warranted in the reasoned judgment of the decision-maker(s).
Decision-makers shall not draw inferences regarding a party’s or witness’ credibility based on the party’s or witness’ status as a complainant, respondent, or witness, nor shall decisions be based on stereotypes about how a party or witness acted or “should have” acted under the circumstances.
Generally, credibility judgments should rest on the demeanor of the party or witness, the plausibility of their testimony, the consistency of their testimony, and its reliability in light of corroborating or conflicting testimony or evidence.
Credibility judgments should not rest on whether a party’s or witness’s testimony is non-linear or incomplete, or if the party or witness is displaying stress or anxiety.
Decision-makers will afford the highest weight, relative to other testimony, to first-hand testimony by parties and witnesses regarding their own memory of specific facts that occurred. Both inculpatory and exculpatory (i.e. tending to prove/disprove the allegations) evidence will be weighed in equal fashion.
Except where specifically barred by the Title IX Final Rule, a witness’s testimony regarding third-party knowledge of the facts at issue will be allowed, but will generally be accorded lower weight than testimony regarding direct knowledge of specific facts that occurred.
The Final Rule requires that SUNY Brockport allow parties to call “expert witnesses” for direct and cross examination. While the expert witness will be allowed to testify and be cross-examined as required by the Final Rule, the decision-maker will be instructed to afford lower weight to non-factual testimony of the expert relative to fact witnesses, and any expert testimony that is not directed to the specific facts that occurred in the case will be afforded lower weight relative to fact witnesses, regardless of whether the expert witness testimony is the subject of cross examination and regardless of whether all parties present experts as witnesses.
The Final Rule requires that SUNY Brockport allow parties to call character witnesses to testify. The University does not allow character witnesses in other proceedings. While the character witnesses will be allowed to testify and be cross-examined as required by the Final Rule, the decision-maker(s) will be instructed to afford very low weight to any non-factual character testimony of any witness.
The Final Rule requires that SUNY Brockport admit and allow testimony regarding polygraph tests (“lie detector tests”) and other procedures that are outside of standard use in academic and non-academic conduct processes. While the processes and testimony about them will be allowed, as required by the Final Rule, the decision-maker(s) will be instructed to afford lower weight to such processes relative to the testimony of fact witnesses.
Where a party’s or witness’s conduct or statements demonstrate that the party or witness is engaging in retaliatory conduct, including but not limited to, witness tampering and intimidation, the decision-maker(s) may draw an adverse inference as to the credibility of the party or witness who is engaging in the retaliatory conduct.
Components of the Determination Regarding Responsibility
The written Determination Regarding Responsibility will be issued simultaneously to all parties through their SUNY Brockport email account, or other reasonable means as necessary, if a party is not a SUNY Brockport student or employee.
The Determination will include:
- Identification of the allegations potentially constituting covered sexual harassment;
- 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 other evidence, and hearings held;
- Findings of fact supporting the determination;
- Conclusions regarding which section of this Policy and/or Code of Student Conduct, Category II: Sexual/Gender Based Discrimination and Misconduct, if any, the respondent has or has not violated;
- For each allegation:
- A statement of, and rationale for, a determination regarding responsibility;
- A statement of, and rationale for, any disciplinary sanctions the University imposes on the respondent; and
- A statement of, and rationale for, whether remedies designed to restore or preserve equal access to the University’s education program or activity will be provided to the complainant; and
- The recipient’s procedures and the permitted reasons for the complainant and respondent to appeal, described below.
Timeline of Determination Regarding Responsibility
If there are no extenuating circumstances, the determination regarding responsibility will be issued by the University within fifteen (15) business days of the completion of the hearing.
The determination regarding responsibility becomes final either on the date that the institution provides the parties with the written determination of the result of the appeal, if an appeal is filed, consistent with the procedures and timeline outlined in “Appeals” below, or if an appeal is not filed, the date on which the opportunity to appeal expires.
Each party may appeal (1) the dismissal of a formal complaint or any included allegations and/or (2) a determination regarding responsibility. To appeal, a party must submit their written appeal within five (5) business days of being notified of the decision, indicating the grounds for the appeal.
The limited grounds for appeal available are as follows:
- Procedural irregularity that affected the outcome of the matter (i.e. a failure to follow the University’s own procedures);
- New evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made, that could affect the outcome of the matter;
- The Title IX Coordinator, investigator(s), or decision-maker(s) had a conflict of interest or bias for or against an individual party, or for or against complainants or respondents in general, that affected the outcome of the matter; and
- The sanction is either too severe or not severe enough, based upon the proven violation.
Students may submit their appeals via the SUNY Brockport Title IX Sexual Misconduct / Gender Discrimination Appeal.
The submission of appeal stays any sanctions during the pendency of an appeal. Supportive measures and remote learning opportunities remain available during the pendency of the appeal.
If a party appeals, the University will, as soon as practicable, notify the other party in writing of the appeal, however the time for appeal shall be offered equitably to all parties and shall not be extended for any party solely because the other party filed an appeal.
Appeals may be no longer than five (5) pages, and any attachments may be no longer than ten (10) pages. Appeals should be submitted in electronic form. Appeals that do not meet these standards may be returned to the party for correction, but the time for appeal will not be extended unless there is evidence that technical malfunction caused the appeal document not to meet these standards.
Appeals will be decided by a panel of at least two SUNY Brockport administrators, who will be free of conflict of interest and bias, and will not serve as investigator, Title IX Coordinator, or hearing decision-maker in the same matter.
The outcome of the appeal will be provided in writing simultaneously to both parties and will include the appeal panel’s rationale for the decision.
SUNY Brockport will keep the identity of any individual who has made a report or complaint of sex discrimination confidential, including the identity of any individual who has made a report or filed a Formal Complaint of sexual harassment under this Title IX Grievance Policy, any complainant, any individual who has been reported to be the perpetrator of sex discrimination, any respondent, and any witness, except as permitted by the FERPA statute, 20 U.S.C. 1232g, or FERPA regulations, 34 CFR part 99, or as required by law, or to carry out the purposes of 34 CFR part 106, including the conduct of any investigation, hearing, or judicial proceeding under this Title IX Grievance Policy.
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 of the Education Amendments of 1972 or its implementing regulations.
No person may intimidate, threaten, coerce, or discriminate against any individual 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 under this Title IX Grievance Policy.
Any intimidation, threats, coercion, or discrimination, for the purpose of interfering with any right or privilege secured by Title IX or its implementing regulations constitutes retaliation. This includes any charges filed against an individual for code of conduct violations that do not involve sex discrimination or sexual harassment, but that arise from the same facts or circumstances as a report or complaint of sex discrimination or a report or Formal Complaint of sexual harassment. 3
1 This Model Policy is not legal advice, and use of the Model Policy does not create an attorney-client relationship between the reader, user, or browser and the Student Conduct Institute. Members should contact their own attorney to obtain advice with respect to the implementation of any changes to their existing campus policies and procedures. Only your attorney can provide assurances that the information contained herein – and your interpretation of it – is applicable or appropriate to your particular situation. All material is copyright 2020 The State University of New York. This material is developed and intended only for members of the Student Conduct Institute. It may not be shared or distributed without the express permission of the Student Conduct Institute.
2 This specific provision may be subject to additional guidance from OCR (which will be shared, if issued).
3 The Code of Student Conduct contains the following policies:
1. Good Samaritan Policy. The term “Good Samaritan” is used to refer to a student(s) who summons medical attention for a person (including themselves) in need of medical assessment and/or treatment for a problem to which the student may have contributed or caused by participating in the use and abuse of alcohol and/or other drugs. While the University does not condone violations of the Code of Student Conduct or state and federal laws, the University may take into consideration actions of students who act as “Good Samaritans” by reducing the disciplinary actions associated with alcohol and/or other drug use violations, including limited immunity to campus student conduct charges.
2. Policy for Alcohol and/or Drug Use Amnesty in Sexual Violence Cases. The health and safety of every student at SUNY Brockport is of utmost importance. The University recognizes that students who have been drinking and/or using drugs (whether such use is voluntary or involuntary) at the time that violence, including but not limited to, domestic violence, dating violence, stalking, or sexual assault, occurs may be hesitant to report such incidents due to fear of potential consequences for their own conduct. The University strongly encourages students to report incidents of domestic violence, dating violence, stalking, or sexual assault to University officials. A bystander acting in good faith, or a reporting individual acting in good faith, who discloses any incident of domestic violence, dating violence, stalking, or sexual assault to University officials or law enforcement will not be subject to the University Code of Student Conduct for violations of alcohol and/or drug use policies occurring at or near the time of the commission of the domestic violence, dating violence, stalking, or sexual assault.
SUNY Brockport Rules of Decorum for Title IX Grievance Process Hearings
Purpose of the Rules of Decorum
Title IX hearings are not civil or criminal proceedings, and are not designed to mimic formal trial proceedings. They are primarily educational in nature, and the U.S. Department of Education, writing about Title IX in the Final Rule “purposefully designed these final regulations to allow recipients to retain flexibility to adopt rules of decorum that prohibit any party advisor or decision-maker from questioning witnesses in an abusive, intimidating, or disrespectful manner.” 85 Fed. Reg. 30026, 30319 (May 19, 2020). The Department has determined that institutions “are in a better position than the Department to craft rules of decorum best suited to their educational environment” and build a hearing process that will reassure the parties that the institution “is not throwing a party to the proverbial wolves.” Id.
To achieve this purpose, institutions may provide for reasonable rules of order and decorum, which may be enforced through the removal of an advisor who refu
Links to Related Procedures and Information
Code of Student Conduct
SUNY Brockport Gender-Based and/or Sexual Misconduct Report (Report can be made anonymously)
SUNY Brockport Title IX Sexual Misconduct / Gender Discrimination Appeal
SUNY Discrimination Complaint Procedure
Title IX Coordinator
U.S. Department of Education (US DOE) – 85 Fed. Reg. 30026 (May 19, 2020) Final Rule under Title IX of the Education Amendments of 1972
US DOE OCR Blog – Regarding Live Hearings (May 22, 2020)
US DOE – Office for Civil Rights (OCR) Contact Information
History (in descending order)
|Next Review Date||2026-08-27||Five-year review|
|Revision Date||2021-08-27||Removed a provision in the regulations, as it is no longer enforced by the DOE.|
|Adoption Date||2020-08-10||Policy Adopted|
|Draft Review Date||N/A||Draft Policy under 30-day Campus Review|
This policy was approved by President’s Cabinet on 2020-08-10