Procedures for Resolution of Complaints Against Students
Regarding Sexual Misconduct
Investigation and Adjudication Process
Most allegations of misconduct within the Austin College community will proceed through the disciplinary process set forth under the Non-Academic Code of Student Conduct. Allegations of sexual misconduct (including but not limited to sexual harassment, unwelcome conduct, hostile environment, sexual assault, sexual exploitation and intimidation, stalking, domestic violence, and dating violence) will be adjudicated using the process(es) outlined below.
For complaints alleging a possible violation of the Austin College Sexual Misconduct Policy the following terms shall apply:
- Reporter/complainant participant: In this process, the person reporting a possible violation of Sexual Misconduct Policy and/or complaint is referred to as the reporter/complainant.
- Responding participant: In this process, the person who is alleged to have violated the Sexual Misconduct Policy is referred to as the responding participant, or a respondent.
Reporting a complaint
A student who wishes to make a report of sexual misconduct is encouraged to inform the Title IX coordinator. To the extent possible, a report should be written and include details of the sexual misconduct, name of the accused student, the date, and location. Any other relevant and supporting information should be submitted as well. In a report of sexual misconduct, the College will conduct an initial Title IX assessment. At the conclusion of the assessment, the report will be referred for either a remedies-based resolution or investigation to determine if there is sufficient information to proceed with judicial resolution.
Upon receipt of a report, the Title IX coordinator or his designee will have a preliminary meeting with the reporter/complainant. The purpose of the preliminary meeting is to gain basic understanding of the nature and circumstances of the report; it is not intended to be a full investigation. At this meeting, the reporter/complainant will be provided with a copy of the Sexual Misconduct and Harassment Policy, as well as information about resources, procedural options, interim remedies or remedies, confidentiality and advised about the College’s prohibition on retaliation.
The initial review will proceed to the point where a reasonable assessment of the safety of the individual and of the campus community can be made. Thereafter, an investigation may continue depending on a variety of factors, such as the nature of the complaint, the reporter/complainant’s wish to pursue disciplinary action, the risk posed to any individual or the campus community by not proceeding.
In the course of this assessment, the College will consider the interest of the reporter/complainant and his/her expressed preference for the manner for resolution. Where possible and as warranted by a review of the facts and circumstances, the College will seek action consistent with reporter/complainant’s request.
Where a reporter/complainant requests that a name or other identifiable information not be shared with the respondent or that no formal action be taken, the College will balance this request with its dual obligations to provide a safe and non-discriminatory environment for all College community members. The College also will consider its responsibility to afford a respondent fundamental fairness by providing notice and an opportunity to respond before action is taken against him/her.
Should the reporter/complainant not wish to proceed with an investigation or judicial resolution, the Title IX coordinator, in consultation with the Dean of Students and Chief of Campus Police, will determine, based on the available information, including any investigative report, whether the investigation or the judicial resolution proceedings should nonetheless go forward.
The College reserves the right to proceed with adjudicating a complaint without the support of the reporter/complainant.
In making such a determination the College will consider, among other factors, the following:
- whether the reporter/complainant has requested confidentiality;
- whether he/she wants to participate in the investigation or judicial hearing;
- the severity and impact of the sexual misconduct;
- the respective ages of the participants;
- whether the reporter/complainant is a minor under the age of 18;
- whether the respondent has admitted to the sexual misconduct;
- whether the respondent has a pattern of committing sexual misconduct;
- the existence of independent evidence; and
- the extent of prior remedial methods taken with the respondent.
The College will take all reasonable steps to investigate and respond to the complaint consistent with the request for confidentiality or a request not to pursue an investigation, but the College’s ability to do so may be limited, based on the nature of the request by the reporter/complainant.
Participants will be informed of the College’s chosen course of action. Following the initial assessment with the reporter/complainant, and considering requests to date, the Title IX coordinator will meet with the student alleged to have violated the Sexual Misconduct Policy – the respondent. The respondent is welcome to bring a support person/advisor with them to the meeting. At this meeting the Title IX coordinator or designee will provide respondent with information about the complaint. The respondent will be provided a copy of the Sexual Misconduct Policy, advised of their rights and responsibilities and available resources and told about the College’s prohibition on retaliation.
Prior to receiving the written information about the complaint, the respondent will be asked to acknowledge his/her understanding for confidentiality and non-retaliation, essentially, agreeing not to disclose or discuss anything related to the complaint with anyone other than those authorized to see/hear such information under the process.
Upon receipt of a complaint, and continuing through to the release of a final outcome, the College has a duty to protect the complainant as well as the student body from potential further harassment. Therefore, the College may initiate interim or temporary measures. Such measures are intended to reduce further contact between the participants, to ensure the safety of all involved, and to address concerns that may create a hostile environment. Interim measures and remedies will vary based on the facts of a particular case.
Examples of possible interim measures could include, but are not be limited to:
- administrative no-contact or “stay away” orders;
- academic accommodation and support;
- change in residential living arrangement, extracurricular activities, dining area access, work situation, and transportation on and off campus;
- counseling and health services;
- increased monitoring, supervision and/or security.
An interim suspension of the respondent from the campus (e.g. residence halls, classes, other activities, etc.) will be enacted should there be a demonstrated threat to the health and safety of themselves or others involved and/or the normal operations of the College. Such determinations will be made by the Title IX coordinator in consultation with the Dean of Students and the Chief of Campus Police.
Upon receipt of initial statements from the participants, the Title IX coordinator will review the information. Where the review indicates a possible violation of the Sexual Misconduct Policy, the Title IX coordinator will refer the case to a neutral investigator(s) of the College’s choosing. The investigation is designed to provide fair, reliable gathering of facts. The investigation will be thorough, impartial, and fair; and all individuals will be treated with appropriate sensitivity and respect. The process will be conducted in a manner that is respectful of individual privacy concerns.
It is the responsibility of the investigator to gather information relevant to the facts provided by the statements of the participants to the extent reasonable and possible. Such information gathering will include, but is not limited to, speaking with the participants and any other individuals who may have relevant information, gathering any available physical or medical evidence, including documents, communications between the participants, and other electronic records as necessary and appropriate. Participants will have an equal opportunity to be heard, submit information, and identify witnesses who may have relevant information.
Upon completion of the fact-finding process, the investigator will prepare a report setting forth the facts gathered. The report, along with any other relevant information, will be provided to the Title IX coordinator. The Title IX coordinator, in consultation with the Dean of Students, and Chief of Campus Police or their designee will review the report and make a threshold determination regarding whether there is sufficient information upon which a Student Conduct Council could find a violation of the Sexual Misconduct Policy. If there is sufficient information, the case will be referred to the Dean of Students for resolution within the process for resolving alleged violations of the Austin College Sexual Misconduct Policy. Both participants will be informed of the conclusion(s) made from the investigative report.
The Title IX Coordinator, in consultation with the Dean of Students and Chief of Campus Police or their designee, will determine the appropriate manner of resolution, and, if appropriate, pursue either a remedies-based resolution or an investigation to determine if there is sufficient information to pursue judicial resolution.
Basic expectations for individuals involved in the process for resolving alleged violation(s) of the Sexual Misconduct Policy
- Austin College community members are expected to participate in this process and cooperate fully, although efforts will be made where possible to accommodate schedules to reduce the burden of participation on participants and others.
- Unless both participants agree otherwise, participants will not communicate with one another regarding the incident in question, once the process has begun.
- To the extent permitted by law, participants and others will maintain confidentiality of the process. This is not intended to imply that participants involved in the process are prevented from speaking to parents, counselors, other confidantes or from reporting the matter to local authorities.
Remedies-based resolution is a non-judicial approach designed to eliminate a hostile environment without taking disciplinary action against a respondent. When enacting a remedies-based resolution, the College will take immediate and corrective action through the imposition of individual and community remedies designed to maximize the reporter/complainant’s access to his/her educational and extracurricular activities at the College.
Examples of remedies-based resolution can include, but not be limited to, interim measures as identified, targeted or broad-based educational programming or training, direct communication with the respondent by reporter/complainant, communication with the respondent by the Title IX coordinator or others, or appropriate forms of restorative justice. Depending on what is chosen, it may be possible for the reporter/complainant to maintain anonymity.
A remedies-based resolution will not be used in instances involving violent behavior and/or sexual assault.
Procedures and related information for resolution (formal and informal) of situations involving alleged violations of the sexual misconduct policy
Mediation (informal resolution)
When possible and safe, effort may be made to address/resolve problematic behavior, conflicts, or misconduct situation(s) through an informal process. The reporter/complainant must participate voluntarily and will not be required to work directly with the person alleged to have created the problem. He/she will be able to end the process at any time and shall have the right to engage in the formal process for resolution.
Such informal resolution may result in a letter/memorandum of understanding between the participants.
Mediation or other such informal resolution will not be used in allegations involving violent behavior, sexual misconduct, and /or sexual assault.
Administrative agreement option
Following the submission of a complaint and continuing through the fact-finding investigation prior to the start of the Student Conduct Council hearing process, the respondent may seek an administrative agreement with the designated administrator, typically the Dean of Students. Such an agreement includes acceptance of responsibility for a violation of the Sexual Misconduct Policy. Once committed, such acceptance cannot be withdrawn or appealed. Sanctions will be applied consistent with those set forth in section (H) of the hearing process below. Confidentiality and records will be maintained as indicated as well.
Student Conduct Council (Sexual Misconduct) Hearing
The hearing is intended to provide an opportunity for the reporter/complainant and respondent to address information in the investigative report as well as their accounts of events and for the Council to determine the facts of the case, make a determination regarding alleged violation of College regulations, and to recommend appropriate sanctions, if necessary.
The hearing is closed and is not open to the public. The hearing process is an administrative process conducted in a higher education setting and is not subject to the same standards as a court of law. Rules of evidence found in legal proceedings shall not be applied, nor shall any deviations from these prescribed procedures alone invalidate a decision, unless significant prejudice to a reporter/complainant, respondent, or the College may exist.
Violations of this Sexual Misconduct Policy will be determined through careful investigation and findings meeting the preponderance of the evidence (i.e., more likely than not) standard.
If a participant does not attend a hearing for any non-emergency or non-compelling reason, the hearing may be held in the individual’s absence at the discretion of the Dean of Students/Chair.
If a respondent chooses to withdraw from the College prior to the end of the semester (defined by the last day of final exams) during which a complaint was filed under the Sexual Misconduct Policy, a hold shall be placed on the respondent’s records noting “pending disciplinary charges.” Should the respondent withdraw after the semester ended, similar action will be initiated. This notation will be removed or changed as appropriate following the completion of the disciplinary process and/or resolution of the complaint. If the respondent withdraws from the College while the disciplinary process is pending, a permanent notation will be placed on his/her student transcript stating, “student withdrew with disciplinary charges pending.” A student who leaves under these circumstances will not be eligible to return to the College. A respondent cannot receive a degree while there is a pending, unresolved complaint against him/her.
A reporter/complainant or respondent may request participation by other suitable means that would not require physical proximity to the other participant. This could include, but not be limited to, partitioning a hearing room or using technology, such as Skype or conference call from an alternative location, to facilitate participation. Any proposed alternative must be reviewed in advance to ensure it is consistent with the goals of a fair and equitable process.
All participants involved in the hearing are required to keep the information learned in preparation for the hearing and at the hearing private. Consistent with the Family Education Rights and Privacy Act (FERPA) regulations, the participants, Council, and others associated may not share copies of documents. All copies provided must be returned to the College at the conclusion of the hearing as well as any appeals process. Any breach of this duty is subject to disciplinary action by the College.
Student Conduct Council Hearing adjudication process
A. Both the reporter/complainant and the respondent will:
- participate in a pre-hearing meeting;
- be given a statement of allegation(s) in writing;
- be provided a notice of hearing five calendar days prior to the hearing;
- be permitted to review all investigative documents and related information, subject to the privacy limitations imposed by state and federal law at least five days prior to the hearing;
- be able to provide a written response to the investigative documents within the stated timeline;
- have the opportunity to identify witnesses – such individuals must have observed the acts in question or have information relevant to the incident and cannot be participating solely to speak generally about an individual’s character;
- be permitted to have an advisor/support person of their choice to assist him/her throughout the hearing – such individuals may only speak to the person to whom they are assisting;
* An attorney may serve as an advisor/advocate/support person but must abide by the preceding statement. The College will not recognize or enforce agreements between parties reached outside this process.
- listen (e.g. by skype or phone connection) to the discussion (interviews, questions) in the hearing process;
- be given the opportunity to provide follow-up questions to the Council for consideration to ask of other hearing participants;
- be notified of the outcome of the hearing and/or any appeal.
B. The Student Conduct Council hearing panel shall:
- be referred to as the Council;
- be amended to include three faculty or staff members and the Chair; the Chair is typically the Dean of Students;
- review all documents and information as presented to them;
- engage all participants needed to reach an informed decision;
- utilize “preponderance of the evidence” standard, meaning that it is more likely than not the respondent is responsible for the alleged violation;
- deliberate in closed (private) session to make determination of finding whether the respondent is in violation or not in violation of the Sexual Misconduct Policy;
- provide additional recommendation(s) regarding sanction, if desired – In so doing the Council will consider all the relevant information presented, prior disciplinary history, and any confirmed mitigating circumstances.
C. The Dean of Students /Chair will:
- convene all meetings involved in the adjudication procedures and facilitate the hearing process;
- be a non-voting Council member regarding findings;
- have the authority to determine the relevance of information in the investigative report, any witnesses and/or their statements, and other documented evidence as is material to the determination of responsibility given the nature of the allegation(s);
- provide the report of findings to the Vice President for Student Affairs.
D. Situational representative
- The College reserves the right to have a situational representative in the hearing to assist with presenting a case to the Student Conduct Council. Typically this would be a staff member and/or campus police officer.
- At the request of the Council, the investigator(s) of a situation may be included in the hearing as either a situational representative or to respond to questions of the Council.
E. General Hearing Process
- The Chair will direct all present to state their names.
- The Chair will excuse unapproved parties, explain the general format and procedures for the hearing and answer any questions from the respondent or reporter/complainant.
- The Sexual Misconduct Policy violation(s) will be stated.
- The respondent will make a plea of either “in violation” or “not in violation”.
- The witnesses will be asked to leave the room and shall be called back as requested by the Council.
- The Council will interview the participants as they need in order to make an informed decision.
- Each, the respondent and the reporter/complainant, will be given private time with the Council for the purpose of discussing any questions, observations, or related information that either participant wants the Council to review with the other directly.
- The Council will reconvene with all participants.
- Closing (summary) statements will be heard.
- All participants will leave and the Council shall deliberate in closed, private session.
- The Council may reconvene, following the initial hearing, to consider additional questions or clarifications.
F. Related Hearing Process Guidelines
Request to reschedule hearing – Either participant can request to have a hearing rescheduled. Request for such must be made to the Dean of Students/Chair at least three business days prior to the hearing. Such a reschedule will be at the discretion of the Council and its chair. Such is typically done when there are pending criminal charges against the respondent and he/she wants time to seek legal counsel and/or there is a substantive conflict in one’s schedule, particularly regarding academic tasks.
Contest a Council member – Participants may question the participation of any Council member for conflict of interest or other good cause. Familiarity alone does not create a conflict. However, where there is clear information to suggest a member will not be able to provide unbiased and impartial decision, an alternate should be used.
Preponderance of the evidence – Council members will consider credible evidence to assess the preponderance of the evidence or greater weight standard. This standard expects Council members to consider whether it is more likely than not that a violation occurred.
Recording of hearing – The College will not audio or video record the Student Conduct Council hearing, nor is any other individual permitted to do so.
Prior sexual history of a reporter/complainant – A reporter/complainant’s prior sexual history is not relevant and will not be admitted as evidence at a hearing. Where there is a current or ongoing relationship between participants, and the respondent alleges consent, the prior sexual history between participants may be relevant to assess the manner and nature of communications between them. However, the mere fact of a current or previous dating or sexual relationship by itself is not sufficient to constitute consent. Any prior sexual history of reporter/complainant with other individuals typically is not and will not be considered.
Pattern of evidence by a respondent – Where there is evidence of a pattern of conduct similar in nature by the respondent , either prior to or subsequent to the conduct in question, regardless of whether there has been a finding of responsibility, this information may be deemed relevant to the Council’s determination of in violation and /or assigning of a sanction.
Any participant seeking to introduce information about prior sexual history or pattern of evidence should bring this information to the attention of the investigator(s) at the earliest opportunity. The College, through the Dean of Students/Chair may choose to introduce this information, with notice to both parties.
To aid in an advance determination of such information, a participant must submit to the Dean of Students/Chair three days after the notice of the charge has been made the following:
- a written statement of the information, if not already provided during the investigation;
- a summary of the relevance of this information to make a decision of in violation or sanction; and,
- a brief statement of why this information was not shared previously.
Expert witnesses – Both the investigator and the Dean of Students/Chair reserve the right to consult with any experts which he/she deems necessary to the determination of the facts for a case. Such individuals could be consulted to review or provide a professional opinion regarding evidence discovered or testimony presented in a hearing.
G. Student Conduct Council Finding
Once all the issues regarding the complaint have been fully investigated and adequately addressed, the Council will report its decision to the Vice President for Student Affairs. The decision will be reached by a majority. Under ordinary circumstances, the Council’s decision will be issued in writing within five days after the hearing.
The imposition of sanctions will take effect immediately and will not be deferred pending the resolution of appeal. Graduation, study abroad, internships, etc. do not in and of themselves constitute exigent circumstances. In cases where the appeal results in reinstatement to the College or resumption of privileges, all reasonable attempts will be made to restore the student to prior status, recognizing that some opportunities may be irreparable in the short term
The Council may find one of the following related to a sexual misconduct complaint:
- A finding that the Sexual Misconduct Policy was violated. The Council can then recommend additional sanction(s) to the minimum consequences set forth by the College.
- A finding that the Sexual Misconduct Policy was not violated as there is insufficient information to substantiate the allegations of the complaint.
Upon final review of the entire process and the information related to the complaint, the Vice President for Student Affairs will notify both the reporter/complainant and the respondent in writing.
A student who is found for the first time to be in violation for any component of this Austin College Sexual Misconduct Policy that is less than defined herein as sexual assault (rape/penetration) shall at a minimum be placed on deferred suspension for the next two long semesters (including break periods, etc.) from the semester in which the violation occurred.
A student who is found to have either a repeat violation of The Austin College Sexual Misconduct Policy or that defined as sexual assault herein shall at a minimum be suspended from the College for the next four long semesters (including break periods, etc.) from the semester in which the violation occurred. Upon re-enrollment the student shall be on probation during the first long semester in which he/she returns.
Additional consequences may be added to these minimum sanctions.
I. Appeal Procedure
Either participant may appeal the final determination of the decision in writing to the Vice President for Academic Affairs. The appeal must be filed within five calendar days of having received the outcome. The reporter/complainant and/or respondent may appeal only the parts of the decision directly relating to them. Dissatisfaction with the outcome of the hearing is not grounds for appeal. The appeal shall consist of a plain, concise, and complete written statement outlining the grounds for the appeal. The burden of proof lies with the participant requesting the appeal, as the original decision is presumed to have been decided reasonably and appropriately. The Title IX Coordinator will inform participants of the appeal. Each participant has an opportunity to respond in writing to an appeal within five calendar days of being notified.
The limited bases for appeal are as follows:
- To consider new evidence unavailable during the original hearing or investigation that could substantially impact the original finding and sanctions. This new evidence and its potential impact must be included.
- A procedural error occurred that adversely impacted the outcome of the hearing. Such a deviation would be of substantial impact on the fairness and/or outcome.
- The sanction(s) imposed beyond the minimum consequences established by the College are excessive for the designated violation and the cumulative history of the respondent.
The Vice President for Academic Affairs shall consider the merits of an appeal only on the basis of the three grounds for appeal and supporting information provided in the written request and the record of the original hearing. The Vice President for Academic Affairs will communicate the result of the appeal to the participants within 15 calendar days of having received the appeal.
In violation findings of responsibility regarding a sexual misconduct are maintained as part of the student’s portfolio that is stored in the Student Affairs office. Cases involving suspension or expulsion will become a permanent part of the student’s portfolio. The portfolio will be maintained in the file for no fewer than seven years after the student departs from the College.
Medical and law schools and some governmental agencies may require disclosure by the College of any student conduct findings. Students who transfer to other schools or participate in off-campus study programs may also be required to provide such information.