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Sexual Misconduct – Grievance and Investigation Process

Definitions

Sexual Harassment: Unwelcome, gender-based verbal or physical conduct is sufficiently severe, persistent or pervasive that is unreasonably interfered with, limits or deprives someone of the ability to participate in or benefit from the University’s educational program. The unwelcome behavior may be based on power differentials (quid pro quo), the creation of a hostile environment or retaliation. Examples include: an attempt to coerce an unwilling person into a sexual relationship; to repeatedly subject a person to egregious, unwanted sexual attention; to punish a refusal to comply; to condition a benefit on submitting to sexual advances; sexual violence; intimate partner violence; stalking; and, gender-based bullying.

Discrimination: Any distinction, preference, advantage for or detriment to an individual compared to others that is based upon an individual’s actual or perceived gender, race, color, age, creed, national or ethnic origin, physical or mental disability, veteran status, pregnancy status, religion or sexual orientation that is so severe, persistent or pervasive that it unreasonably interferes with or limits a student’s ability to participate in or benefit from the university’s educational program or activities.

Discriminatory Harassment: Detrimental action based on an individual’s actual or perceived gender, race, color, age, creed, national or ethnic origin, physical or mental disability, veteran status, pregnancy status, religion, sexual orientation or other protected status that is so severe, persistent or pervasive that it unreasonably interferes with or limits a student’s ability to participate in or benefit from the University’s educational program or activities.

Retaliatory Harassment: Intentional action taken by an accused individual or allied third party, absent legitimate non-discriminatory purposes, that harms an individual as reprisal for filing or participating in a civil rights grievance proceeding.

Sexual harassment of a Student by another Student: Any unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature by a student toward another student that is so severe, persistent or pervasive that it unreasonably interferes with or limits a student’s ability to participate in or benefit from the University’s educational program or activities.

Sexual harassment of a Faculty/Staff Member by a Student: Any unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature toward a faculty/staff member by a student that is so severe, persistent or pervasive that it unreasonably interferes with employment [or living] conditions or deprives the individual of employment access or benefits.

Sexual Harassment of a Student by a Faculty/Staff Member: Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature by a faculty or staff member toward a student are held to constitute sexual harassment when:

  • Submission to such sexual conduct is made either explicitly or implicitly a term or condition of rating an individual’s educational development or performance; or
  • Such conduct is so severe, persistent or pervasive that it unreasonably interferes with or limits a student’s ability to participate in or benefit from the University’s education program or activities.

While a particular interaction must be offensive to both a reasonable person and to the victim to be defined as harassment, faculty and staff members and other persons of authority should be sensitive to questions about mutuality of consent that may be raised and to conflict of interest that are inherent in personal relationship that result from professional and educational interactions. Harassment is particularly damaging when it exploits the educational dependence and trust between students and faculty/staff. When the authority and power inherent in faculty/staff relationship with students, whether overtly, implicitly, or through misinterpretation, is abused in any way, there is potentially great damage to the individual student, to the accused individual, and to the climate of the institution.

Complaints Concerning Discrimination and/or Harassment

Barry University does not discriminate on the basis of race, creed, color, ethnicity, national origin, ancestry, religion, gender, sexual orientation, gender identity, genetic information, familial status, marital status, pregnancy, age, disability status or veteran status. This policy applies to students, employees, applicants and trustees with respect to participation in any program, benefit, activity or student/employment opportunity offered by the University. Every member of the University community is expected to uphold this policy as a matter of mutual respect and fundamental fairness in human relations. Every student of this institution has a responsibility to conduct himself/herself in accordance with this policy as a condition of enrollment. Further, every University employee has an obligation to observe Barry University policies and implementation of federal and state law as a term of employment. No person shall be retaliated against for reporting violations or concerns about prohibited discrimination or bias through appropriate University channels.

Nothing in this non-discrimination statement shall require Barry University to act in a manner contrary to the beliefs and teachings of the Catholic Church or the University mission statement.http://bucwis.barry.edu/hr/pdf/Non%20Discrimination%20Statement%20Final%205-30-12.pdf

This process involves an immediate initial investigation to determine if there is reasonable cause to believe the nondiscrimination policy has been violated. If so, the University will initiate a prompt, thorough and impartial investigation. This investigation is designed to provide a fair and reliable determination about whether the University’s nondiscrimination policy has been violated. If so, the University will implement a prompt and effective remedy designed to end the discrimination, prevent its recurrence and address its effects.

Students who wish to report a concern or complaint relating to discrimination or harassment may do so by reporting the concern to the University Title IX Deputy Coordinator for Students: Dr. Maria L. Alvarez, Dean of Students, Landon Student Union, Suite 300, (305) 899-3085, malvarez@barry.edu

Individuals with complaints of this nature also always have the right to file formal complaint with the United States Department of Education:
Office for Civil Rights (OCR)
400 Maryland Avenue, SW
Washington, DC 20202-1100
Customer Service Hotline: (800) 421-3481
Facsimile: (202) 453-6012
TDD#: (877) 521-2172
Email: OCR@ed.gov
Web:http://www.ed.gov/ocr

Formal and Informal Grievance Procedure for Student Complaints

This procedure is intended to apply to student-on-student grievance, and employee civil rights grievances against students. All other types grievances by students against students or employees against students will be addressed through the student conduct process located elsewhere in this Handbook.

If you have a complaint against a Barry University faculty, staff or visitor for sexual harassment, sex discrimination, sexual assault, or stalking you should contact the Human Resources Department, Director of Employee Relations. The Director of Employee Relations is responsible for Title IX compliance for matters involving employees, including training, education, communication, and administration of the grievance procedure for all Title IX complaints against Barry University faculty, staff and visitors, including those complaints filed by students.

In the event that an employee is taking classes or should a student also be an employee (e.g., work-study, RA, GA, etc.) procedures applicable to employee-on-employee grievances through the Department of Human Resources may also be applicable. It is the practice of this institution to bring employee and student grievance mechanisms together for joint resolution in such cases. Sanctions may result in an individual’s capacity as a student, as an employee, or both.

Informal Dispute Resolution Efforts: A Useful First Step before Filing Formal Complaints

Before pursuing the formal complaint process, every reasonable effort should be made to constructively resolve issues with faculty, staff, or administrators, including following procedures for formal appeal. Whenever possible and safe, the problem or complaint should first be discussed with the individual involved in the complaint. If satisfactory resolution is not reached after discussion with the individual, the student should contact the individual’s direct supervisor to attempt to resolve the complaint. If these efforts are unsuccessful, the formal complaint process may be initiated. The University does not require a student to contact the person involved or that person’s supervisor if doing so is impracticable, or if the student believes that the conduct cannot be effectively addressed through informal means.

Formal Grievance Process

The Office of the Dean of Students is designated to formally investigate grievances against students. Notice of a formal complaint can be made in person to an appropriate official, but the University strongly encourages submission of grievances in writing, by email attachment as a MS Word or pdf document, or in other written form to Dr. Maria L. Alvarez, Dean of Students.

The grievance should clearly and concisely describe the alleged incident(s), when and where it occurred, and the desired remedy sought. The grievance should be signed by the initiator or, in the case of an email submission, sent as an email attachment, in letter format and should contain the name and all contact information for the grievant (Complainant). Any supporting documentation and evidence should be referenced within the body of the formal grievance. Additionally, the initiator of a formal grievance should submit any supporting materials in writing as quickly as possible.

The Complainant’s supporting documentation should clearly demonstrate all informal efforts, if any, to resolve the issue(s) with the person involved and the person’s supervisor. This includes names, dates and times of attempted or actual contact along with a description of the discussion and the manner of communication made in the course of each effort. If contacted the person involved and/or the supervisor is impracticable, the Complainant should state the reasons why.

Upon receipt of a grievance the Dean of Students Office will open a formal case file and assign a case officer who will direct the investigation and confer with the Title IX Deputy Coordinator for Students an interim action, accommodations for the alleged victim, or other necessary remedial short-term actions.

The case officer will then take the following steps:

  • In coordination with the Title IX Deputy Coordinator for Students, initiate any initial necessary remedial actions;
  • Determine the identity and contact information of the complainant (whether that be the initiator, the alleged victim, or a university proxy or representative);
  • Identify the correct policies allegedly violated;
  • Conduct an immediate initial investigation to determine if there is reasonable cause to charge the accused individual, and what policy violations should be alleged as part of the complaint;
  • If there is insufficient evidence to support reasonable cause, the grievance should be closed with no further action;
  • Meet with the complainant to finalize the complaint and
  • Prepare and deliver the notice of investigation (and possibly notice of charges, if appropriate) on the basis of the initial investigation;
  • Commence a thorough, reliable and impartial investigation by developing a strategic investigation plan, including a witness list, evidence list, intended timeframe, and order of interviews for all witnesses and the accused individual, who may be given notice of charges prior to or at the time of the interview;
  • Complete the investigation promptly, and without unreasonable deviation from the intended timeline;
  • Make a finding, based on a preponderance of the evidence (whether a policy violation is more likely than not);
  • Present the findings to the accused individual, who may accept the findings, accept the findings in part and reject them in part, or may reject all findings;
  • Share the findings and update the complainant on the status of the investigation and the outcome.

Where the accused individual is found not responsible for the alleged violation(s), the investigation should be closed. Where the accused individual accepts the finding that s/he violated university policy, the Office of the Dean of Students will impose appropriate sanctions for the violation, after consultation with the Title IX Deputy Coordinator for Students. The University will act to end the discrimination, prevent its recurrence, and remedy its effects on the victim and the university community.

In the event that the accused individual rejects the findings in part or entirely, the Office of the Dean of Students will convene a hearing under its respective procedures to determine whether the accused individual is in violation of the contested aspects of the complaint. At the hearing, the findings of the investigation will be admitted, but are not binding on the decider(s) of fact. The case officer(s) may give evidence. The hearing will determine whether it is more likely than not that the accused individual violated the policies forming the basis of the charge. The goal of the hearing is to provide an equitable resolution via an equitable process, respecting the civil and legal rights of all participants.

The Office of the Dean of Students has final decision making authority with regard to formal complaints, subject to appeal. Where an accused individual is found in violation, the Office of the Dean of Students will impose appropriate sanctions for the violation, after consultation with the Title IX Deputy Coordinator for Students. The University will act to end the discrimination, prevent its recurrence, and remedy its effects on the victim and the university community. Appeal proceedings as described in this Handbook will apply to all parties to the complaint.

Elaboration on Student Participation in the Grievance Process

The investigator assigned by the Office of the Dean of Students will contact or request a meeting with the initiator of the formal grievance, and the Complainant (if different people). The investigator also may contact or request a meeting with relevant university staff, students, or others as part of the investigation. The Complainant may request to meet and discuss the allegations of the grievance with the Administrative Hearing Officer and may offer any documentation, witnesses, or other materials in support of the complaint. The Complainant has the option to have an advisor of their choice during a meeting with the case officer to discuss the documentation submitted by the student in support of the grievance.

The Complainant must advise the case officer of the identity of an advisor or witness at least two (2) business days before the date of the meeting with the case officer. During a meeting with the case officer, an attorney acting as a lawyer may not serve as the student’s advocate or formally represent the student. These procedures are entirely administrative in nature and are not considered legal proceedings. No audio or video recording of any kind other than as required by institutional procedure is permitted, nor is formal legal representation allowed. At the case officer’s discretion, the case officer may remove anyone disrupting the meeting from the discussion. All these same opportunities and privileges extend to all parties to the complaint.

Time Frame and Grounds for Filing an Appeal Request

In the event that an accused individual accepts the findings of the investigation, those findings cannot be appealed. Sanctions imposed by the Office of the Dean of Students post-investigation can be appealed by any party according to the grounds, below. Post-hearing, any party may appeal the findings and/or sanctions only under the grounds described, below.

All sanctions imposed by the original case officer or hearing body will be in effect during the appeal. A request may be made to the Dean of Students (or her designee) for special consideration in exigent circumstances, but the presumptive stance of the institution is that the sanctions will stand. Graduation, study abroad, internships/externships, etc. do NOT in and of themselves constitute exigent circumstances, and students may not be able to participate in those activities during their appeal. In cases where the appeal results in reinstatement to the institution or of privileges, all reasonable attempts will be made to restore the student to their prior status, recognizing that some opportunities lost may be irretrievable in the short term.

The decision of the student conduct process may be appealed by petitioning through the Office of the Dean of Students. Accused individuals or complainants must petition within 2 business days of receiving the written decision for a review of the decision or the sanctions imposed. Any party who files an appeal must do so in writing to the Office of the Dean of Students. The Office of the Dean of Students will share the appeal with the other party (e.g., if the accused individual appeals, the appeal is shared with the Complainant, who may also wish to file a response), and then the Office of the Dean of Students will draft a response memorandum (also shared with all parties). All appeals and responses are then forwarded to the appeals officer/committee for initial review to determine if the appeal meets the limited grounds and is timely. The original finding and sanction will stand if the appeal is not timely or substantively eligible, and the decision is final. If the appeal has standing, the documentation is forwarded for consideration. The party requesting appeal must show error as the original finding and sanction are presumed to have been decided reasonably and appropriately. The ONLY grounds for appeal are as follows:

  1. A procedural, or substantive, error occurred that significantly impacted the outcome of the hearing (e.g. substantiated bias, material deviation from established procedures, etc.);
  2. To consider new evidence, unavailable during the original hearing or investigation, that could substantially impact the original finding or sanction. A summary of this new evidence and its potential impact must be included;
  3. The sanctions imposed are substantially disproportionate to the severity of the violation.

If the appeals officer determines that new evidence should be considered, it will return the complaint to the original case officer or hearing body to reconsider in light of the new evidence, only. The reconsideration of the hearing body is not appealable.

If the appeals officer determines that a material procedural [or substantive] error occurred, it may return the complaint to the original hearing body with instructions to reconvene to cure the error. In rare cases, where the procedural [or substantive] error cannot be cured by the original hearing officers (as in cases of bias), the appeals officers or committee may order a new hearing on the complaint with a new body of hearing officers. The results of a reconvened hearing cannot be appealed. The results of a new hearing can be appealed, once, on the four applicable grounds for appeals.

If the appeals officer or committee determines that the sanctions imposed are disproportionate to the severity of the violation, the appeals officer or committee will return the complaint to the student conduct office, which may then increase, decrease or otherwise modify the sanctions. This decision is final.

The procedures governing the hearing of appeals include the following:

  • All parties should be timely informed of the status of requests for appeal, the status of the appeal consideration, and the results of the appeal decision;
  • Every opportunity to return the appeal to the original hearing body for reconsideration (remand) should be pursued;
  • Appeals are not intended to be full re-hearings of the complaint (de novo). In most cases, appeals are confined to a review of the written documentation or record of the original hearing, and pertinent documentation regarding the grounds for appeal;
  • This is not an opportunity for appeals officers to substitute their judgment for that of the original hearing body merely because they disagree with its finding and/or sanctions. Appeals decisions are to be deferential to the original hearing body, making changes to the finding only where there is clear error and to the sanction only if there is a compelling justification to do so;
  • Sanctions imposed are implemented immediately unless the Dean of Students stays implementation in extraordinary circumstances, pending the outcome of the appeal;
  • The appeals officer will render a written decision on the appeal to all parties within forty-eight working hours from hearing of the appeal. The committee’s decision to deny appeal requests is final.

Special Grievance Process Provisions

  1. Attempted violations
    In most circumstances, University will treat attempts to commit any of the violations listed in the Student Code of Conduct as if those attempts had been completed.
  2. University as Complainant
    As necessary, the University reserves the right to initiate a complaint, to serve as Complainant, and to initiate conduct proceedings without a formal complaint by the victim of misconduct.
  3. False Reports
    The University will not tolerate intentional false reporting of incidents. It is a violation of the Student Code of Conduct to make an intentionally false report of any policy violation, and it may also violate state criminal statutes and civil defamation laws.
  4. Immunity for Victims and Witnesses
    The university community encourages the reporting of Code of Conduct violations, especially sexual misconduct. Sometimes, victims or witnesses are hesitant to report to university officials or participate in grievance processes because they fear that they themselves may be charged with policy violations, such as underage drinking at the time of the incident. It is in the best interest of this community that as many victims as possible choose to report to university officials, and that witnesses come forward to share what they know. To encourage reporting, the University pursues a policy of offering victims of sexual misconduct and witnesses limited immunity from being charged for policy violations related to the sexual misconduct incident. While violations cannot be completely overlooked, the University will provide educational rather than punitive responses, in such cases.
  5. Bystander Engagement
    The welfare of students in our community is of paramount importance. At times, students on and off-campus may need assistance. The University encourages students to offer help and assistance to others in need. Sometimes, students are hesitant to offer assistance to others, for fear that they may get themselves in trouble (for example, as student who has been drinking underage might hesitate to help take a sexual misconduct victim to Public Safety). While policy violations cannot be overlooked, the University will provide educational options, rather than punishment, to those who offer their assistance to others in need.
  6. Parental Notification
    The University reserves the right to notify parents/guardians of dependent students regarding any health or safety risk, change in student status or conduct situation, particularly alcohol and other drug violations. The University may also notify parents/guardians of non-dependent students who are under age 21 of alcohol and/or drug policy violations. Where a student is not-dependent, university will contact parents/guardians to inform them of situations in which there is a significant and articulable health and/or safety risk. The university also reserves the right to designate which university officials have a need to know about individual conduct complaints pursuant to the Family Educational Rights and Privacy Act.
  7. Notification of Outcomes

    The outcome of a campus hearing is part of the educational record of the accused individual, and is protected from release under a federal law, FERPA. However, the University observes the legal exceptions as follows:

    • Complainants in non-consensual sexual contact/intercourse incidents have an absolute right to be informed of the outcome, essential findings, and sanctions of the hearing, in writing, without condition or limitation. Complainants in sexual exploitation, sexual harassment, stalking, relationship violence and any other gender-based offense have an absolute right to be informed of the outcome, in writing, and to be informed of any sanctions that directly relate to them, and to essential findings supporting the outcome when the outcome is one of violation (and the underlying offense is a crime of violence as defined below and in 34 C.F.R. 99.39) and/or it is equitable to share the essential findings with all parties.
    • The University may release publicly the name, nature of the violation and the sanction for any student who is found in violation of a university policy that is a “crime of violence,” including: arson, burglary, robbery, criminal homicide, sex offenses, assault, intimidation (which may encompass stalking and/or bullying), hazing, destruction/damage/vandalism of property and kidnapping/abduction. The university will release this information to the complainant in any of these offenses regardless of the outcome.
  8. Past Sexual History/Character

    The past sexual history or sexual character of a party will not be admissible by the other party in the investigation or hearing unless such information is determined to be highly relevant by the Chair. All such information sought to be admitted will be presumed irrelevant, and any request to overcome this presumption by the parties must be included in the complaint/response or a subsequent written request, and must be reviewed in advance of the hearing by the Dean of Students. While previous conduct violations by the accused individual are not generally admissible as information about the present alleged violation, the Dean of Students may supply previous complaint information to the investigators, the conduct board, or may consider it him/herself if s/he is hearing the complaint, only if:

    1. The accused was previously found to be responsible;
    2. The previous incident was substantially similar to the present allegation;
    3. Information indicates a pattern of behavior and substantial conformity with that pattern by the accused individual.
  9. Alternative Testimony Options
    For sexual misconduct complaints, and other complaints of a sensitive nature, whether the alleged victim is serving as the complainant or as a witness, alternative testimony options will be given, such a placing a privacy screen in the hearing room, or allowing the alleged victim to testify outside the physical presence of the accused individual, such as by Skype. While these options are intended to help make the alleged victim more comfortable, they are not intended to work to the disadvantage of the accused individual

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