Interim Adjudication Guidance for Title IX Reports of Sexual Harassment and Misconduct

This interim policy and procedures guide to the University’s response to reported incidents of sexual harassment and misconduct has been created to comply with the Department of Education’s 2020 Title IX Final Rule revising the requirements under which colleges and universities must receive and respond to reports of sexual harassment and misconduct within our communities.

The guide is intended to replace the procedural response to reports of sexual harassment and misconduct that are in violation of the University’s Equal Opportunity, Nondiscrimination, Sexual and Other Forms of Harassment policy and are handled through the Equity Dispute Resolution Process.

I.   Introduction

Prohibited actions addressed through this policy include acts of sexual harassment, sexual assault, sexual misconduct, dating violence, domestic violence, and stalking.

Allegations of sexual harassment and misconduct must be reported to the Title IX Administrator(s) immediately (see Section VI). The University will implement initial remedial and responsive actions upon notice of alleged violations of this policy, and will take additional prompt remedial and/or disciplinary action with respect to any individual who has been found to engage in harassing or discriminatory behavior or retaliation in violation of this policy.

All allegations of sexual harassment and misconduct will be addressed in accordance with the process outlined in Sections IV-VII of this document, which applies regardless of the status of the parties involved, who may be students or employees (staff, faculty, or administrators).

The University reserves the right to act on off-campus conduct that may constitute a violation of this policy when the off-campus conduct could have an on-campus impact or impact on the mission of the University. St. Mary’s University also reserves the right to address reports under the Code of Student Conduct or an alternate dispute resolution or grievance process in the event that the complaint cannot be pursued under the procedure described in this document.

II.   Prohibited Conduct

Sexual Harassment

St. Mary’s University has an obligation to respond to all types of sexual harassment (including any instance of sexual assault, dating violence, domestic violence, or stalking) occurring in any educational program or activity setting on campus, off-campus, or in any residences or houses owned or controlled by university-recognized student organizations.

An educational program or activity includes locations, events, or circumstances over which the University exercised substantial control over both the reporting party and the respondent and the content in which the harassment occurs.

Members of the university community who report that they are victims of sexual  harassment, sexual assault, dating violence, domestic violence, or stalking have the right to report their incident to the University and to receive a prompt and equitable resolution to this report.

Any reporting party also has the right to choose whether to report the crime to university or local law enforcement. The University would like to stress the importance of a reporting party going to a hospital for treatment and to preserve evidence, if applicable, as soon as possible after an incident occurs.

Under federal law, the university’s obligation to respond to incidents of sexual harassment and misconduct does not apply to reported incidents of sexual harassment occurring off- campus in private settings that are not part of a university educational program or activity.

Both the Department of Education’s Title IX Final Rule and the State of Texas regard sexual harassment as a form of sex discrimination and, therefore, as an unlawful discriminatory practice. The University has adopted the definition of sexual harassment found in the Final Rule, which defines sexual harassment broadly to include three types of misconduct on the basis of sex:

• Any instance of quid pro quo harassment by a university employee
• Any unwelcome conduct that a reasonable person would find so severe, pervasive and objectively offensive that it denies a person equal educational access
• Any instance of sexual assault (as defined in the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (hereafter referred to as “The Clery Act”), dating violence, domestic violence, or stalking as defined in the Violence Against Women Act (VAWA).

Quid pro quo sexual harassment occurs when a harasser such as a work supervisor, professor, or other person is in a position of authority over the person being harassed. This type of sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other verbal, visual, or physical conduct of a sexual/gendered nature when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment or academic status, or (2) submission to or rejection of such conduct by an individual is used as the basis for employment or academic decisions.

Sexual harassment that does not involve any proposed quid pro quo arrangement but instead creates a hostile educational or work environment is also covered under this policy.

Specifically, this policy covers any unwelcome actions that a reasonable person would find so severe, pervasive and objectively offensive that they create an intimidating, hostile, or offensive working, educational, or social environment that effectively denies a person equal work or academic access.

Incidents of sexual assault are not evaluated for severity, pervasiveness, offensiveness, or denial of equal educational access, because such misconduct is sufficiently serious to deprive a person of equal access.

The following actions are considered violations of this policy:

1.  Sexual Assault

Sexual assault is any sexual act directed against another person, without consent of the victim, including instances where the victim is incapable of giving consent.

Examples of sexual assault include:

• Rape: Penetration, no matter how slight, of the vagina or anus, with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim. This offense includes the rape of both males and females.
• Fondling: Touching of the private body parts of another person for the purpose of sexual gratification, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental capacity.
• Incest: Sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.
• Statutory Rape: Sexual intercourse with a person who is under the age of consent (18 years old).

2.  Dating Violence

Dating violence is an act of violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim. The existence of such a relationship shall be determined based on:

• The reporting party’s statement and with consideration of the length of the relationship
• The type of relationship
• The frequency of interaction between the persons involved in the relationship.

3. Domestic Violence

Domestic violence is a felony or misdemeanor crime of violence committed by:

• A current or former spouse or intimate partner of the victim
• A person with whom the victim shares a child in commonA person who is cohabitating with, or has cohabitated with, the victim as a spouse or intimate partner.
• A person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction in which the crime of violence occurred.
• 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 the jurisdiction in which the crime of violence occurred.

4. Stalking

Stalking is engaging in a course of conduct directed at a specific person that would cause a reasonable person to:

• fear for the person’s safety or the safety of others; or
• suffer substantial emotional distress.

5. Additionally, the University has defined additional acts of sexual harassment or misconduct, as stated below, that will also be considered violations of this policy.

Non-consensual sexual contact is defined as:

• any intentional sexual touching,
• however slight,
• with any object,
• by a person upon another person,
• that is without consent and/or by force.Sexual touching includes any bodily contact with the breasts, groin, genitals, buttocks, mouth, or other bodily orifice of another individual, or any other bodily contact in a sexual manner.

Sexual touching includes any bodily contact with the breasts, groin, genitals, buttocks, mouth, or other bodily orifice of another individual, or any other bodily contact in a sexual manner.

Sexual Exploitation

Sexual exploitation refers to a situation in which a person takes non-consensual or abusive sexual advantage of another or situations in which the conduct does not fall within the definitions of sexual harassment or misconduct as defined in this policy. Examples of sexual exploitation include, but are not limited to:

• Sexual voyeurism (such as watching a person undressing, using the bathroom or engaged in sexual acts without the consent of the person observed)
• Taking pictures or video or audio recording of another in a sexual act, or in any other private activity without the consent of all involved in the activity, or exceeding the boundaries of consent (such as allowing another person to hide in a closet and observe sexual activity, or disseminating sexual pictures without the photographed person’s consent)
• Engaging in sexual activity with another person while knowingly infected with human immunodeficiency virus (HIV) or other sexually transmitted disease (STD) and without informing the other person of the infection, and further includes administering alcohol or drugs (such as “date rape” drugs) to another person without his or her knowledge or consent.

6. A Note About Consent

Consent is knowing, voluntary, and clear permission by word or action, to engage in mutually agreed upon sexual activity. Since individuals may experience the same interaction in different ways, it is the responsibility of each party to make certain that the other has consented before engaging in the activity. For consent to be valid, there must be a clear affirmative expression in words or actions that the other individual consented to that specific sexual conduct. Consent cannot be obtained by threat, coercion, or force. Agreement under such circumstances does not constitute consent.

St. Mary’s University uses this definition of consent to assess whether or not a respondent to an allegation of sexual harassment had knowing, voluntary, and clear permission by word or action to engage in any activity under review. Any respondent found to have engaged in non-consensual sexual activity will be found responsible for violating this policy.

A person cannot consent if he or she is unable to understand what is happening or is disoriented, helpless, asleep, or unconscious for any reason, including impairment due to alcohol or other drugs. An individual who engages in sexual activity when the individual knows, or should know, that the other person is physically or mentally incapacitated has violated this policy. It is not an excuse that the individual accused of sexual misconduct did not realize the incapacity of the other due to intoxication.

Incapacitation is defined as a state in which someone cannot make rational, reasonable decisions because the individual lacks the capacity to give knowing consent (e.g., to understand the “who, what, when, where, why or how” of their sexual interaction). This policy also applies to a person whose incapacity results from mental disability, involuntary physical restraint, and/or from the taking of incapacitating drugs.

Consent to some sexual contact (such as kissing or fondling) cannot be presumed to be consent for other sexual activity (such as intercourse). A current or previous dating relationship is not sufficient to constitute ongoing consent. The existence of consent is based on the totality of the circumstances, including the context in which the alleged incident occurred and any similar previous patterns that may be evidenced. Silence or the absence of resistance alone may not indicate consent. A person can withdraw consent at any time during sexual activity by expressing in words or actions that he or she no longer wants the act to continue, and, if that happens, the other person must stop immediately.

In Texas, a minor (meaning a person under the age of 18 years) cannot consent to sexual activity. This means that sexual contact by an adult with a person younger than 18 years old is a violation of this policy.

III. Rights of Parties to the Process

1.       Statement of Complainant’s Rights

A complainant is defined as an individual who is alleged to be the victim of conduct that could constitute sexual harassment. A reporting party’s rights under this process include the following:

• To receive a written notice of all allegations
• To have an adviser of their choice during this process
• An equal opportunity to submit and review evidence throughout the investigation
• To be treated with respect by university officials
• To take advantage of campus support resources (such as the Student Counseling Center, The Office of Student Advocacy and Anti-Violence Education (OSAVE) and the Student Health Center for students, or EAP services for staff)
• To provide written consent before using the party’s medical, psychological, or similar treatment records during a grievance process
• To experience a safe living, educational, and work environment
• To refuse to have an allegation resolved through informal conflict resolution procedures
• To receive amnesty for minor student misconduct (such as alcohol or drug violations) that is ancillary to the incident
• To be free from retaliation
• To be protected from inappropriately being asked about prior sexual history (“rape shield” protections)
• To have allegations heard in a timely manner and in substantial accordance with these procedures
• To fully participate in any investigative process whether the reporting party is serving as the accusing party or the University is serving as an accusing party
• To be informed in writing of the outcome/resolution of the allegation, sanctions where permissible, and the rationale for the outcome where permissible.

2. Statement of Respondent’s Rights

A respondent is defined as an individual who is reported to be the perpetrator of conduct that could constitute sexual harassment. A respondent’s rights under this process include the following:

• To receive a written notice of all allegationsTo have an adviser of their choice during this process
• An equal opportunity to submit and review evidence throughout the investigation
• To be treated with respect by university officials
• To take advantage of campus support resources (such as the Student Counseling Center, The Office of Student Advocacy and Anti-Violence Education (OSAAVE) and the Student Health Center for students, or EAP services for staff)
• To provide written consent before using the party’s medical, psychological, or similar treatment records during a grievance process
• To be free from retaliation
• To refuse to have an allegation resolved through informal conflict resolution procedures
• To be presumed not responsible prior to a finding to the contrary and permitted to continue academic pursuits pending a final determination
• To fully participate in any investigative process regardless of whether the accusing party is an individual(s) or the university
• To have allegations heard in a timely manner and in substantial accordance with these procedures
• To be informed in writing of the outcome/resolution of the allegation and the rationale for the outcome.

3. Statement of Witness’s Rights

• To be treated with respect by university officials
• To take advantage of campus support resources (such as the Student Counseling Center, The Office of Student Advocacy and Anti-Violence Education (OSAAVE) and the Student Health Center for students, or EAP services for staff)
• To receive amnesty for minor student misconduct (such as alcohol or drug violations) that is ancillary to the incident.
• To be free from retaliation

4.  Confidentiality

Once a formal complaint of sexual harassment or misconduct is received, except as otherwise required by FERPA, The Clery Act, Title IX or other applicable laws, the identity of a reporting party who is the subject of a report must remain confidential and may only be disclosed to:

• Persons employed by St. Mary’s University who are necessary to conduct an investigation of the report or any related hearings
• A law enforcement officer as necessary to conduct a criminal investigation of the report
• The person or persons alleged to have perpetrated the reported incident, to the extent required by law
• Potential witness to the incident as necessary to conduct an investigation of the report.

Although the university will make every effort to keep the identity of any formal sexual harassment reporting party(s) private, federal law requires this information to be shared with the following parties: respondent, witness or reporter associated with a complaint of sexual harassment, and incident investigators, hearing and/or appeals panel.

If a reporting party would like the details of a sexual harassment incident to be kept confidential, the student may speak with on-campus counselors, health service providers, members of the clergy/chaplains or staff from the Office of Student Advocacy and Anti-Violence Education who will maintain confidentiality, unless the student requests in writing that the information be shared.

5. Retaliation

Retaliation is defined as any adverse action taken against a person participating in a protected activity because of the person’s participation in that protected activity. All parties to the case, including reporting party, respondent, identified witnesses, and advisors shall not be intimidated, retaliated against, ridiculed, etc. by any party to the case, individual affiliated with a party to the case, or any agent(s) acting on behalf of an involved party.

Individuals reported to be engaged in one or more of these prohibited actions are subject to investigation and sanctions under the applicable University policy (ies) (i.e., Faculty Handbook, Employee Manual, Code of Student Conduct). Acts of alleged retaliation must be reported immediately to the Title IX Administrator(s) and will be promptly investigated under the processes outlined in this document.

The University also prohibits any party from tampering with any witness or with any potential evidence.

IV. Sexual Misconduct Adjudication

St. Mary’s University uses the preponderance of the evidence standard for determining responsibility for all formal complaints of sexual harassment and misconduct (including where employees and faculty are respondents).

The University will act on any allegation of sexual misconduct outlined in Section II of this policy that is formally received by the Title IX Administrator(s).

If circumstances require, the President or Title IX Administrator(s) may designate another person to oversee the process below, should an allegation of discriminatory misconduct be made against a Title IX Administrator(s) or the Administrator(s) be otherwise unavailable or unable to fulfill their duties.

The procedures described below apply to all sexual harassment and misconduct allegations involving students, staff, administrators, or faculty. Redress and requests for responsive actions for allegations brought against non-members of the University community are also covered by these procedures.

1  St. Mary’s University school cannot access, consider, disclose, or otherwise use a reporting party’s records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional’s or paraprofessional’s capacity, or assisting in that capacity, and which are made and maintained in connection with the provision of treatment to the party, unless the school obtains that party’s voluntary, written consent to do so.
2  For allegations involving employees hired with adjunct status, the Provost and Vice President for Academic Affairs may interim suspend pursuant the Faculty Handbook or Personnel Manual.
 

Filing and/or Reporting and Allegation or Incident

Generally, any person may report sexual harassment or misconduct (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 Administrator(s), or by any other means that results in the Title IX Administrator(s) receiving the person’s verbal or written report.

A “formal complaint” is defined as a document filed by a reporting party or signed by a Title IX Co-Coordinator alleging discriminatory misconduct against a respondent and requesting that the school investigate the allegation of discriminatory misconduct. A formal complaint can be filed directly by a reporting party with a Title IX Co-Coordinator if the reporting party is participating in an education program or activity of the University or is attempting to participate in an education program or activity.

Students, staff, administrators, or faculty of the University who witness or receive information that Section II of this policy may have been violated must also promptly make a formal complaint of the incident to the institution’s Title IX Administrator(s).in accordance with the terms of this document. Individuals are encouraged to report allegations promptly in order to maximize the University’s ability to obtain evidence and conduct a thorough, impartial investigation. Failure to report promptly may significantly limit the University’s ability to investigate and provide resolution to a matter.

Deliberately false and/or malicious accusations of violations of this policy, as opposed to allegations which, even if erroneous, are made in good faith, are just as serious an offense and will be subject to appropriate disciplinary action.

Under Texas Education Code § 51.253 et. seq., University non student employees who knowingly fail to report or who knowingly falsify a report with the intent to harm or deceive are subject to criminal penalties and dismissal.

Clery Compliance will assess each EDRP complaint it receives to see if it qualifies as a crime. This is done to fulfill the University’s legal obligation under federal law.

Any University employee who witnesses a crime must immediately notify the University’s Clery Compliance Coordinator clery@stmarytx.edu.

Reports may be submitted on-line at the following website: https://www.stmarytx.edu/compliance/title-ix/

Allegation or Incident Report Intake

Once St. Mary’s University has received actual knowledge of a complaint, the Title IX Administrator(s), in consultation with appropriate campus officials, will make an initial determination as to whether a policy violation may have occurred and/or whether an informal resolution might be appropriate. Actual knowledge is defined as notice of sexual misconduct or allegations of sexual harassment that has been provided to the Title IX Administrator(s) or any other campus official who has authority to enact corrective measures on behalf of the University.

Once this actual knowledge has been received in writing, the Title IX Administrator(s) will also promptly reach out to both the reporting party and the respondent to offer student support resources as needed, discuss the availability of supportive measures with or without the filing of a formal complaint, and explain to the process for filing a formal complaint.

St. Mary’s University affirms that a reporting party’s wishes with respect to whether the school investigates should be respected unless the Title IX Administrator(s) determines that signing a formal complaint to initiate an investigation over the wishes of the complainant is not clearly unreasonable in light of the known circumstances.

In situations in which allegations of sexual harassment arise out of the same facts or circumstances or event, St. Mary’s University may consolidate formal complaints that are

• Against more than one respondent
• By more than one reporting party against one or more respondents
• By one party against the other party in a complaint, such as retaliation.

If a formal complaint of sexual misconduct would not constitute sexual harassment if proven, did not occur in a University education or activity, or did not occur against a person within the United States, the University is required to dismiss the formal complaint3. Such a dismissal does not preclude University action under another provision of the Code of Student Conduct, Employee Manual, or Faculty Handbook.

The university may also dismiss a case if the reporting party notifies the Title IX Administrator(s) in writing that he or she would like to withdraw the complaint, the respondent is no longer enrolled or employed by the school, or specific circumstances prevent the University from gathering sufficient evidence to make a determination Should an initial review of a formal complaint result in a determination that no further investigation is warranted, the Title IX Administrator(s) will give notice to both parties as appropriate.

3  St. Mary’s University has a Title IX obligation to respond to incidents of sexual harassment that occur off campus “if” any of three conditions are met:
a.  The off-campus incident occurs as part of the recipient’s operations pursuant to 20 U.S.C. 1687 and 34 CFR 106.2(h);
b.  The recipient exercised substantial control over the respondent and the context of the alleged sexual harassment that occurred off campus pursuant to § 106.44(a); or
c.  The incident of sexual harassment occurs at an off-campus building owned or controlled by a student organization officially recognized by a postsecondary institution pursuant to § 106.44(a)

1.       Informal Resolution

Informal resolution is often used for less serious, yet inappropriate, conduct and is encouraged as an alternative to the formal hearing process to resolve conflicts. Once a formal complaint has been received, the Title IX Administrator(s) will determine if an informal resolution is appropriate based on the willingness of the parties, the nature of the conduct at issue, and the susceptibility of the conduct to conflict resolution. St. Mary’s University may facilitate an informal resolution that does not involve a full investigation and live hearing by providing both parties with a written notice disclosing:

1. The allegations under review.
2. The requirements of the informal resolution process.
3. The circumstances under which it precludes the parties from resuming the University’s formal complaint process arising from the same fact pattern.
4. Any other consequences of participating in the informal resolution process.
5. The records that will be maintained or could be shared.

After receiving this notice, both parties must provide voluntary, written consent to participate in the informal resolution process prior to initiating this procedure.

Informal resolution of a formal complaint is never permitted where the accusation is that an employee has sexually harassed a student.

In an informal resolution meeting, the Title IX Administrator(s) or other designee will facilitate a dialogue with the parties to find an effective resolution, if possible. Sanctions are not possible as the result of an informal resolution process, though the parties may agree to appropriate remedies. St. Mary’s University cannot compel students to agree to informal resolution as a condition of enrollment.

The Title IX Administrator(s) will keep records of any resolution that is reached. Failure to abide by the accord can result in appropriate sanctions or corrective actions. Informal resolution(s) will not be the primary resolution mechanism used to address allegations of sexual assault or violent behavior of any kind, or in other cases of serious violations of policy, though it may be made available after the formal process is completed should the parties and the Title IX Administrator(s) believe that it could be beneficial. It is not necessary to pursue conflict resolution first in order to make a formal violation allegation, and anyone participating in conflict resolution can stop that process at any time and request a formal hearing.

However, a full investigation will be initiated if the Title IX Administrator(s) determines there is evidence of a violation of Section II of this policy, a pattern of misconduct, or a perceived threat of further harm to the University or any of its students or employees. Other alleged policy violations associated with the underlying violation may be included in the adjudication of the primary complaint. The University aims to complete the resolution process within a reasonably prompt time period, which can be extended as necessary for appropriate cause by the Title IX Administrator(s) with notice to the parties. All individual deadlines described forthwith are subject to this rule.

2.       Interim Remedies

If, in the judgment of the Title IX Administrator(s), and in consultation with appropriate campus officials, the safety or well-being of any member(s) of the University community may be jeopardized by the presence on campus of the accused individual, the Title IX Administrator(s) (or designee) may implement interim remedies intended to address the short-term effects of harassment, discrimination, or retaliation, i.e., to redress harm to the reporting party and the community and to prevent further violations without unreasonably burdening the other party or parties to a complaint. As it relates to safety determinations, these decisions will be made in consultation with the Chief of Police (or designee).

Interim measures should be equitable and appropriate, making every effort to avoid depriving any student of their education. These interim remedies may include, but are not limited to, referral to counseling and health services or to the Employee Assistance Program, extensions of time or other course-related adjustments, modifications of work or class schedules, campus escort services, mutual restrictions on contact between the parties, changes in work or housing locations, increased security and monitoring of certain areas of campus, curricular and co- curricular restrictions, interim suspension, and other similar accommodations.

The university can interim suspend a respondent from campus on an emergency basis provided that the university:

• Undertakes an individualized safety and risk analysis
• Determines that an immediate threat to the physical health and safety of any student or other individual arising from the allegations of sexual harassment justifies removal
• Provides the respondent with notice and an opportunity to challenge the decision immediately following the removal.

During an interim suspension, alternative coursework options may be pursued to ensure as minimal an impact as possible on the responding student. St. Mary’s University may also place a “non-student employee respondent” on leave during the duration of a grievance process.

The Title IX Administrator(s) have sole discretion to implement or stay an interim suspension for a student, staff, or administrator under investigation for an alleged violation of this policy, and to determine its conditions and duration. Violation of an interim suspension under this policy will be grounds for expulsion or termination.

For allegations involving faculty, the Provost and Vice President for Academic Affairs may interim suspend a faculty member, consistent with Section 2.8.7 of the Faculty Handbook, on the recommendation of the Title IX Administrator(s), pending the completion of the investigation process.

C.     Investigation

If the allegation appears to indicate a policy violation, or if the University, based on the alleged policy violation(s), wishes to initiate an investigation, then the Title IX Administrator(s) will appoint one or more persons to conduct an investigation into the allegation, usually within ten (10) business days of determining that an investigation is warranted. If circumstances require, the Title IX Administrator(s) may designate an individual or individuals external to St. Mary’s University to conduct the investigation.

Once the Title IX Administrator(s) decides to open an investigation that may lead to disciplinary action against the responding party, a detailed written notice will be issued to the responding party of the allegation(s) constituting a potential violation providing sufficient time to prepare a response before any initial interview with the investigator(s). Details in the written notice shall include:

a, The identities of the parties involved.

b. The specific actions listed in Section II that were allegedly violated.

c. Other alleged policy violations associated with the underlying violation.

d. The precise conduct allegedly constituting the potential violation.

e. The date and location of the alleged incident and other content as dictated by state and federal law.

This notice will also affirm that the respondent is presumed innocent and that any determination of responsibility will be made at the end of this process. Each party will receive this written notice in advance of any interview or hearing with sufficient time to prepare for meaningful participation. The respondent and reporting party must respond to requests for information and/or interviews in a timely manner.

The investigation of allegations brought directly by those alleging harm will be completed expeditiously. Investigation length may vary as needed to ascertain direct first-hand information, collect corroborating information, and interview potential witnesses. The University may undertake a short delay, typically ten (10) business days, to allow for evidence collection when criminal charges on the basis of the same behaviors that invoke this process are being investigated. University action will not be altered or precluded on the grounds that civil or criminal charges involving the same incident have been filed or that charges have been dismissed or reduced.

All investigations will be thorough, reliable, and impartial and will include interviews with relevant parties and witnesses, obtaining available evidence, and identifying sources of expert information, if necessary. During an investigation, the appointed investigator(s) may consult with the Title IX Administrator(s) as needed on related investigative procedural matters.

Upon the completion of investigation, the investigator(s) will provide their investigation findings report fairly summarizing the relevant evidence, summaries of interviews, and all supporting documentation to the Title IX Administrator(s).. The Title IX Administrator(s) will allow the parties (and advisors) access to the entire investigative file for review.

The Title IX Administrator(s) must then afford each party the opportunity to prepare and submit a response to the investigation’s findings within ten (10) University business days. This response may include any written, relevant questions that a party wants asked of any party or witness, provide each party with the answers, and allow for additional, limited follow-up questions from each party.

Following the conclusion of this response period, the Title IX Administrator(s) will review the investigation findings report, accept or remand the investigation findings report for additional information, and give notice to the relevant parties of the next steps the university will take to resolve the harassment allegations.

Withdrawal or Resignation While Charges Pending

The University will not permit a student to withdraw if that student has an allegation pending for any violation of this Policy. Should a student decide to leave and not participate in the investigation and/or hearing, the process will nonetheless proceed in the student’s absence to a reasonable resolution and the responding student will not be permitted to return to University unless all sanctions have been satisfied.

The University shall, upon request by another postsecondary educational institution and as permitted by state or federal law, including the Family Educational Rights and Privacy Act  (FERPA), 20 U.S.C. 1232g, Texas HB 1735 and SB 449, provide to the requesting institution information relating to a determination by the institution that a student enrolled at the institution violated the institution’s policy or code of conduct by committing sexual harassment, sexual assault, dating violence, or stalking.

Should any University employee resign while charges are pending, the records of the Title IX Administrator(s) will reflect that status.

D.     Formal Resolution

Once the final investigation report has been reviewed by both parties and submitted as a final document, the Title IX Administrator(s) will determine, based on the finding(s) of the investigative team, whether or not the preponderance of the evidence (i.e., whether it is more likely than not that the respondent committed the alleged violation) supports a finding of a policy violation.

If the Title IX Administrator(s) affirms that the preponderance of evidence does not support a finding of a policy violation, the parties will be notified and the process will end unless the reporting party requests that the Title IX Administrator(s) make an extraordinary determination to re-open the investigation or to forward the matter for a hearing. This decision lies in the sole discretion of the Title IX Administrator(s). In the event of no finding of a policy violation, no documents associated with the investigation of a complaint will be shared with any party.

If the Title IX Administrator(s) affirms that the preponderance of evidence supports a finding of a policy violation, then the Title IX Administrator(s) may recommend informal resolution (see Section 4.b), a resolution without a hearing, or a formal hearing, based on the following criteria.

1.    Resolution Without a Hearing

A resolution without a hearing can be pursued for any conduct that falls within Section II of this policy and other related policy violations at any time during the process. The Title IX Administrator(s) will provide written notification of a determination to any member of the University community who is accused of violating this policy and other related policy violations. The accused individual may choose to accept the findings of the investigation. In cases involving a finding of responsibility, the party may admit responsibility for all or some of the alleged policy violations at any point in the process.

Both the reporting party and respondent must, in writing to the Title IX Coordinator(s), accept the findings of the investigation within three (3) business days of receiving notice of the investigative findings. Once mailed, emailed to University-issued email address, or received in-person, notice will be presumptively delivered.

If findings are completely accepted by both parties, the Title IX Administrator(s) will find the individual in violation of the policy for the admitted conduct and will assign an appropriate sanction or responsive action (see Section V). If the sanction or corrective action is accepted by both the reporting party and respondent, the Title IX Administrator(s) will implement the sanction(s), and otherwise reasonably remedy the effects of the admitted conduct upon the reporting party and the community.

If either party rejects the sanction(s) or corrective action(s), a live hearing will be held on the sanction(s) or corrective action(s) according to the procedures outlined in Section IV-E of this policy.  For matters involving faculty, sanctions and corrective actions for faculty will be consistent with Sections 2.8.6 and 2.8.7 of the Faculty Handbook, to include any appeals.

For allegations not resolved at the investigative phase or through informal resolution, the Title IX Administrator(s) must initiate a formal hearing.

E.     Formal Hearing Process

1.       Notification of Charges

At least fifteen (15) business days prior to the formal hearing, or as far in advance as is reasonably possible if an accelerated hearing is scheduled with the consent of the parties, the appointed decision maker for the hearing will send a letter to the parties with the following information:

a. A detailed description of the alleged violation(s), a description of the applicable procedures, and a statement of the potential sanctions/responsive actions that could result.

b. The time, date, and location of the hearing and a reminder that attendance is mandatory, superseding all other campus activities. If any party does not appear at the scheduled hearing, the hearing will be held in their absence. For compelling reasons, the Title IX Co-coordinator(s) may reschedule the hearing.

c. The parties may have the assistance of an adviser of their choosing at the hearing. The advisor may not be a party or a witness to the allegation, or related allegation(s), under consideration by the Hearing Panel.

d. Hearings for possible violations that occur near or after the end of an academic term will be held prior to the start of the next term whenever possible.

Once mailed, emailed to University-issued email address, or received in-person, notice will be presumptively delivered.

2.       Hearing Procedures

Participants of the hearing are limited to the Hearing Officer (who cannot be the same person as the Title IX Coordinator or the investigator, the members of the Hearing Panel (if a Panel is selected), the investigator(s) who conducted the investigation on the allegation(s), the reporting party(s) and respondent(s), advisers to the parties, and any called witnesses.

All parties must submit to the Hearing Officer the names of witnesses intended to be called during the hearing. The Hearing Officer will provide to the complainant and respondent with the names of the Hearing Panel members, written investigative findings report, pertinent documentary evidence, and the list of witnesses.

Should either party object to any Hearing Panel member, he/she must raise all objections, in writing, to the Title IX Administrator immediately upon receipt of notice of hearing. Hearing Panel members will only be unseated if the Title IX Administrator concludes that their reported bias precludes an impartial hearing of the allegation. Additionally, any panelist who feels he/she cannot make an objective determination must recuse himself or herself from the proceedings when notified of the identity of the parties and all witnesses in advance of the hearing.

If alternative questioning mechanisms are desired, (screens, use of video communication, questions directed through the Hearing Officer, etc.), the parties must request them from the Hearing Officer prior to the hearing.

3.       Title IX Sexual Misconduct Live Hearing

As required under Title IX, St. Mary’s University must conduct a live hearing to resolve all formal complaints of sexual misconduct that are not dismissed or resolved through the use of informal resolution methods previously described in this document.

The decorum of the live hearing is regulated by the Hearing Officer, who serves as the final decision-maker for this process. Details of decorum requirements of the live hearing will be sent to both parties ahead of the live hearing. If decorum is violated the Hearing Officer will bar the offending party from the process. At the discretion of the Hearing Officer, a pre-hearing conference may be conducted as needed.

All live hearing proceedings are private. All persons present at any time during the hearing are expected to maintain the privacy of the proceedings, subject to University consequences for failure to do so. While the contents of the hearing are private, the parties have discretion to share their own experiences if they so choose and should discuss doing so with their advisers.

There will be no observers in the hearing. The Hearing Officer will allow witnesses who have relevant information to appear during the portion of the hearing in order to respond to specific questions from the panel or the parties involved.

In hearings involving more than one respondent or in which two reporting parties have accused the same individual of substantially similar conduct, the standard procedure will be to hear the allegations jointly; however, the Hearing Officer may permit the hearing pertinent to each respondent to be conducted separately. In joint hearings, separate determinations of responsibility will be made for each respondent.

The live hearing shall also be informed and guided by the following requirements:

4.       Decisions

The Hearing Panel or Hearing Officer will deliberate in closed session to determine whether the respondent is responsible or not responsible for the violation(s) in question. The determination will be based on a preponderance of the evidence (i.e., whether it is more likely than not that the respondent committed each alleged violation). If a respondent is found responsible by the Hearing Officer or by a majority of the panel, the Hearing Officer or the panel will recommend appropriate sanctions to the Title IX Administrator(s).

The Hearing Officer will prepare a written deliberation report and deliver it to the Title IX Administrator(s), detailing the panel’s findings of fact, conclusions as to whether the facts support a finding of responsibility for the alleged violation(s), how each member voted, the information cited by the panel in support of its conclusions, and any information the Hearing Panel excluded from its consideration and why.

The report shall include any recommended sanctions and the rationale for such sanctions. This report must be submitted to the Title IX Administrator(s) within ten (10) business days of the end of deliberations.

The Title IX Administrator(s) will notify the respondent and reporting party of the final determination within five (5) business days of receipt of the deliberation report. This notification will include any initial, interim, and/or final decision of the University, any sanctions imposed by the University, and the rationale for the result and the sanctions. Such notification, along with notification of the University’s procedures to appeal, shall be simultaneously provided in writing to both parties.

The notification may be delivered by one or more of the following methods: in person; mailed to the local or permanent address of the parties as indicated in official University records; or emailed to the parties’ University-issued email account. Once mailed, emailed and/or received in-person, notice will be presumptively delivered.

F.     Appeals

Both the reporting party and the respondent to a complaint may appeal a determination regarding responsibility, or the University’s dismissal of a formal complaint or any related allegations. All appeals must be submitted in writing to the Title IX Administrator(s) within three (3) business days of the delivery of the decision. Pending the outcome of the appeal, sanction(s) and/or corrective actions are implemented immediately unless the Title IX Administrator(s) or designee stays their implementation in extraordinary circumstances.

Faculty appeals will be conducted consistent with Section 2.16 of the Faculty Handbook, with results of the appeal reported to the Title IX Administrator(s).

The original finding(s) and sanction(s) are presumed to have been decided reasonably and appropriately and will stand unless there is a showing of clear error. Both the complainant and respondent may file an appeals on the following grounds:

• A procedural error or omission occurred that significantly impacted the outcome of the hearing (e.g. substantiated bias, material deviation from established procedures, etc.)
• To consider new evidence that was unavailable during the original hearing or investigation, which could substantially impact the original finding or sanction. A summary of this new evidence and its potential impact must be included
• The Hearing Officer, investigator, or panel member(s) had conflicts of interest or bias that affected the outcome of the matter
• The sanctions fall outside the range of sanctions, if any, the University has designated for this offense. If no range of sanctions is specified, sanctions may be appealed on the basis that they are disproportionate to the severity of the violation(s).

The original finding(s) and sanction or corrective action(s) will stand if the Title IX Administrator(s) determines the appeal is not timely or is not based on the grounds listed above. The Title IX Administrator(s)’s decision on appeals is final.

When either the reporting party(s) or respondent(s) requests an appeal, the non- appealing party (parties) will be notified within three (3) business days. The party requesting the appeal must demonstrate that the grounds for an appeal request have been met. The non-appealing party(ies) are provided an opportunity to respond in writing within the timeline outlined by the Title IX Administrator(s) in the notice of appeal.

Additional principles governing the hearing of appeals include the following:

• To successfully rebut the presumption that the original finding(s) and/or sanction(s) is reasonable and appropriate, a showing of clear error to the investigation must be demonstrated.
• Appeals are not intended to be full re-hearing of the allegation(s). Appeals are confined to a review of the investigator report, written documentation or record of the original hearing, and pertinent documentation regarding the grounds for appeal. Appeals granted based on new evidence should normally be remanded to the original Hearing Panel or Hearing Officer for reconsideration. [Other appeals may be remanded at the discretion of the Title IX Administrator(s), or heard by a hearing officer, or a new  Appeals panel.]
• The Appeals Panel or Hearing Officer has 15 (fifteen) business days to consider the appeal.
• The Appeals Panel or Hearing Officer will prepare a written statement and deliver it to the Title IX Administrator(s), detailing the determination of the Panel or Hearing Officer, show each member voted, the information cited by the Appeals Panel or Hearing Officer in support of its recommendation, and any information the Panel or Hearing Officer excluded from its consideration and why. This report must be submitted to the Title IX Administrator(s) within five (5) business days of the end of their deliberations.
• The Title IX Administrator(s) will render a written decision on the appeal to all parties within five (5) business days from receipt of the Appeal Panel’s statement.
• In the event of an unsuccessful appeal, final determinations and/or identified sanction(s) will stand and are final.
• Once an appeal is decided, sanctions that make a student ineligible to return to St. Mary’s University for a reason other than an academic or financial reason will be noted on the student’s University transcript.
• Once an appeal is decided, the outcome is final; further appeals are not permitted.

V.   Sanctions and Corrective Actions

When a respondent accepts responsibility after the initial investigation or is found responsible by a decision-maker at the completion of a hearing, the University will assign an appropriate sanction or responsive action. If the sanction or corrective action is accepted by both the reporting party and respondent, the Title IX Administrator (s) will implement the sanction(s), and otherwise reasonably remedy the effects of the admitted conduct upon the reporting party and the community.

Factors considered when determining a sanction or corrective action may include:

• The nature, severity of, and circumstances surrounding the violation
• An individual’s disciplinary history
• Previous allegations or allegations involving similar conduct
• Any other information deemed relevant by the Title IX Administrator(s)
• The need for sanctions or corrective actions to bring an end to the conduct
• The need for sanctions or corrective actions to prevent the future recurrence of similar conduct
• The need to remedy the effects of the conduct on the reporting party and the community

A.     Student Sanctions

One or more of the following sanctions and corrective actions may be imposed upon any student found responsible or who accepts responsibility for any violation(s) of this policy that have been substantiated through this Title IX review process. On inquiry, the Title IX Administrator(s) may — as permitted by law and/or with consent of the student — release information regarding conduct records and sanctions to employers, licensing agencies, certifying boards, graduate programs, government background inspectors, and transferor institutions.

• Warning: A written notice will be sent to the student(s) who violated University policies and/or rules. It specifies that inappropriate and unacceptable actions have occurred and that more severe conduct action will result should the student be involved in other violations while the student is enrolled at the University.

• Restitution: Compensation for damage caused to the University or any person’s property. This is not a fine but, rather, a repayment for property destroyed, damaged, consumed, or stolen.

• Fines: Reasonable fines may be imposed.

• Community/University Service Requirements: For a student to complete a specific supervised university service.

• Loss of Privileges: The student will be denied specified privileges for a designated period of time.

• Confiscation of Prohibited Property: Items whose presence is in violation of university policy will be confiscated and will become the property of the University.

• Behavioral Requirement: This includes required activities such as, but not limited to, seeking academic counseling or substance abuse screening, writing a letter of apology, etc.

• Educational Program: Requirement to attend, present, or participate in a program related to the violation. It may also be a requirement to sponsor or assist with a program for others on campus to aid them in learning about a specific topic or issue related to the violation for which the student or organization was found responsible. Audiences may be restricted.

• Restriction of Visitation Privileges: May be levied on residential or non- resident students. The parameters of the restriction will be specified.

• University Housing Probation: The student is put on official notice that, should further violations of Residence Life or University policies occur during a specified probationary period, the student may immediately be removed from university housing. Regular probationary meetings may also be imposed.

• University Housing Reassignment: The student is reassigned to another University housing facility. Residence Life personnel will decide on the reassignment details.

• University Housing Suspension: The student is removed from university housing for a specified period of time after which the student is eligible to return. Conditions for readmission to university housing may be specified. Under this sanction, a student is required to vacate University housing within 24 hours of notification of the action, though this deadline may be extended upon application to, and at the discretion of, the Director of Housing and Residence Life. This sanction may be enforced with a trespass action if deemed necessary. Prior to reapplication for university housing, the student must gain permission from the Director of Housing and Residence Life (or designee).

• University Housing Expulsion: The student’s privilege to live in or visit any University housing structure is revoked indefinitely. This sanction may be enforced with a trespass action if deemed necessary.

• University Probation: The student is put on official notice that, should further violations of university policies occur during a specified probationary period, the student may face suspension or expulsion. Regular probationary meetings may also be imposed.

• Eligibility Restriction: The student is deemed “not in disciplinary good standing” with the University for a specified period of time. Specific limitations or exceptions may be granted by the Vice President of Student Development (or designee) and terms of this conduct sanction may include, but are not limited to, the following:

1. Ineligibility to hold any office in any student organization recognized by the University or hold an elected or appointed office at the University; or
2. Ineligibility to represent the University to anyone outside the University community in any way including: participating in the study abroad program, attending conferences, or representing the University at an official function, event or intercollegiate competition as a player, manager or student coach, etc.

• University Suspension: The student is separated from the University for a specified minimum period of time, and upon the satisfaction of specific conditions, after which the student is eligible to return. The student is required to vacate the campus within 24 hours of notification of the action, though this deadline may be extended upon application to, and at the discretion of, the Director of Judicial Affairs and Community Education. This sanction may be enforced with a trespass action as necessary. This sanction may be noted as a Conduct Suspension on the student’s official academic transcript.

• University Expulsion: The student is permanently separated from the University. The student is barred from being on campus and the student’s presence at any University-sponsored activity or event is prohibited. This action may be enforced with a trespass action as necessary. This sanction will be noted as a Conduct Expulsion on the student’s official academic transcript.

• Other Sanctions: Additional or alternate sanctions may be created and designed as deemed appropriate to the offense with the approval of the Director of Judicial Affairs and Community Education or designee.

B.      Staff Sanctions

Sanctions and corrective actions for a staff member who has engaged in conduct outlined in Section II of this policy include, but are not limited to, verbal and written warning, required counseling, demotion, suspension with pay, suspension without pay, and dismissal, in accordance with the terms of Section 5.0 Separation from Employment in the University’s Personnel Manual.

C.     Faculty Sanctions

Sanctions and corrective actions for a faculty member who has engaged in conduct outlined in Section II of this policy will be consistent with Sections 2.8.6 and 2.8.7 of the Faculty Handbook.

D.     Failure to Complete Sanctions or Comply with Corrective Actions

All individuals found responsible for violating conduct outlined in Section II of this policy are expected to comply with sanctions and/or corrective actions within the time frame specified by the Title IX Administrator(s) (except for faculty who are subject to Sections 2.8.6 and 2.8.7 of the Faculty Handbook). Failure to follow through on sanctions and/or corrective actions by the date specified, whether by refusal, neglect, or any other reason, may result in additional sanctions and/or corrective actions and/or suspension, expulsion, or termination from the University and may be noted on a student’s official transcript. A suspension will only be lifted when compliance is achieved to the satisfaction of the Title IX Administrator(s).

VI.   Legal Reporting Obligations

St. Mary’s University is required by federal law to issue a timely warning to the campus community for all Clery Act crimes that occur on or near campus or on other property owned or controlled by the university. Once a confirmed Clery crime is reported to campus security authorities (CSAs) or local police agencies and is considered to represent a serious or continuing threat to students and employees, StMU will issue a timely warning to alert the Rattler community and aid in the prevention of similar crimes. Reporting party(s) of sexual misconduct should be aware that StMU will make every effort to ensure that a reporting party’s name and other identifying information is not disclosed in a Timely Warning, while still providing enough information for community members to make safety decisions in light of any potential danger.

To fulfill the University’s Clery crime reporting obligations all university employees who have been classified as campus security authorities (CSAs) are required to report any Clery Act- related offense immediately to the University Police Department. Under Texas SB 212 any university employee, who, in the course of their job, witnesses or receives information regarding an incident that could reasonably constitute sexual harassment, sexual assault, dating violence, or stalking is required to report promptly this information to the Title IX Administrator(s). The Title IX Administrator(s) must then immediately notify the University Police to determine whether a Timely Warning is necessary or required for the reported incident. In addition, the Title IX Co-Coordinator is required to immediately report an incident to the University President if the safety of any person is in imminent danger as a result of the incident.

University employees do not have to report an incident in which they were the victim of sexual harassment, sexual assault, dating violence, or stalking. Employees also do not have to report any disclosure made at a public awareness event sponsored by the University or by any University-affiliated student organization.

Community members who wish to make a confidential complaint of sexual assault, sexual discrimination, sexual harassment, stalking, or dating and domestic violence may contact the following offices for assistance:

• The Student Counseling Center
• The Student Health Center
• Office of Sexual Advocacy and Anti-Violence Education
• University Ministry.

Community members who wish to make an anonymous complaint may file an online incident report through https://www.stmarytx.edu/compliance/title-ix/

VII. Record Retention

Records of all allegations, investigation reports, associated records, findings, hearing and/or appeals documentation, sanctions and/or resolutions will be kept by the Title IX Administrator(s) for seven (7) years from the time of their creation except for those cases involving separation from the University, which will be maintained according to university policy. Records of student expulsions will be maintained indefinitely by notation on the official academic transcript (see Section VI).

VIII. Policy Revisions

These procedures will be reviewed and updated annually by the Title IX Administrator(s). The Title IX Administrator(s) may make minor modifications to procedures that do not materially jeopardize the fairness owed to any party. However, the Title IX Administrator(s), in consultation with appropriate campus officials, may also vary procedures materially with notice upon determining that changes to law or regulation require policy or procedural alterations not reflected in this procedure. Procedures in effect at the time of its implementation will apply. Policy in effect at the time of the offense will apply even if the policy is changed subsequently, unless the parties’ consent to be bound by the current policy.

IX.   Campus Title IX Administrator(s), Hearing Officers and Investigation & Panel Members

Investigators, hearing and appeals panel members are assigned at the direction of the Title IX Administrator(s). Hearing Officers are assigned as needed for any allegations of sexual misconduct and preside over the live hearing. Hearing Officers can be employees of the university and/or outside consultant/vendors.

Investigators, hearing and appeals panel members receive annual training organized by the Title IX Administrator(s), including a review of University policies and procedures, so that they are able to provide accurate information to members of the University community. Investigators, hearing and appeals panel members are required to attend annual training.

Panel member appointments are reviewed annually and should be made with attention to representation of groups protected by this policy. Individuals who are interested in serving as an investigator, hearing and appeals panel member are encouraged to contact the Title IX Administrator(s) or their respective Vice President/Provost.

Questions about this policy may be made internally to:

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Report crimes to:

University Police Department

(210) 436-3330 non-emergency

(210) 431-1911 emergency

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