Fayetteville Policies and Procedures 418.1
Title IX Policy for Complaints of Sexual Assault and Other Forms of Sexual Harassment
- NOTICE OF NONDISCRIMINATION UNDER TITLE IX
The University of Arkansas, Fayetteville does not discriminate on the basis of sex in the education programs and activities that it operates and is prohibited from doing so by Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq., and the U.S. Department of Education’s implementing regulations, 34 CFR Part 106. The University’s nondiscrimination policy extends to admission, employment, and other programs and activities. Inquiries regarding the application of Title IX and 34 C.F.R. Part 106 may be sent to the University’s Title IX Coordinator, the U.S. Department of Education Assistant Secretary for Civil Rights, or both.
- JURISDICTION AND SCOPE
Sexual harassment as defined in this policy (including sexual assault) is a form of sex discrimination and is prohibited. Title IX requires the University to promptly and reasonably respond to sexual harassment in the University’s education programs and activities, provided that the harassment was perpetrated against a person in the United States. At the time that a formal complaint is filed, the complainant must be participating in (or attempting to participate in) an education program or activity of the University. An education program or activity includes locations, events, or circumstances over which the University exercises substantial control over both the respondent and the context in which the sexual harassment occurs, and also includes any building owned or controlled by a student organization that is officially recognized by a postsecondary institution.
This policy applies to allegations and complaints of sexual harassment as defined herein. All other complaints of discrimination or misconduct that do not fall within the jurisdiction of Title IX may be made through other campus procedures.
This policy shall not be construed or applied to restrict academic freedom at the University. Further, it shall not be construed to restrict any rights protected under the First Amendment, the Due Process Clause, or any other constitutional provisions. This policy also does not limit an employee’s rights under Title VII of the Civil Rights Act.
All complaints or reports about sex discrimination (including sexual harassment) should be submitted to the Title IX Coordinator:
Liz Means, Title IX Coordinator
University of Arkansas
1 University of Arkansas
Administration Building 405
Office: (479) 575-7111 (voice) or (479) 575-3646 (tdd)
Cell Phone: (479) 409-9972 (voice or text)
In addition, the U.S. Department of Education, Office of Civil Rights, may be contacted by phone at 800-421-3481 or by email at firstname.lastname@example.org.
Any person may report sex discrimination, including sexual harassment (whether or not the person 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 above, or by any other means that results in the Title IX Coordinator receiving the person’s verbal or written report. Such a report may be made at any time (including during non-business hours) by using the telephone number or electronic mail address, or by mail to the office address, listed for the Title IX Coordinator.
The University encourages reporting of incidents of prohibited conduct and seeks to remove any barriers to reporting. The University recognizes that an individual who has been drinking or using drugs at the time of an incident may be hesitant to make a report because of potential consequences for their own conduct. Individuals who report prohibited conduct or participate as witnesses will not be subject to disciplinary sanctions for personal consumption of alcohol and/or other substances.
The University may initiate an educational discussion with individuals about their alcohol and/or drug use or may direct these individuals to services such as counseling for alcohol and/or drug use. Amnesty will not be extended for any violations of University policy other than alcohol/drug use. The use of alcohol, drugs, and/or legally prescribed medication does not justify or excuse behavior that constitutes prohibited conduct under this policy.
- FILING A REPORT WITH LOCAL LAW ENFORCEMENT
In some instances, sexual harassment may constitute both a violation of this policy and criminal activity. The University grievance process is not a substitute for instituting legal action. The University encourages individuals to report alleged sexual misconduct promptly to campus officials AND to law enforcement authorities, where appropriate. Individuals may file a report directly with local law enforcement agencies by dialing 911. Individuals may also contact any of the following for assistance in filing a report with local law enforcement:
University Police Department Fayetteville Police Department
155 S. Razorback Road 100 W. Rock Street
Fayetteville, Arkansas 72701 Fayetteville, Arkansas 72701
- PRESERVING EVIDENCE
It is important that evidence of sexual assault be preserved, because it may be needed for prosecuting a criminal case. Victims and others should not alter the scene of an attack. The victim should not change clothes, bathe or shower, drink or eat anything, or brush his or her teeth before reporting the assault. Any items worn by the victim during the assault, but are not currently being worn, and any materials encountered during the assault (i.e., bed sheets, blankets, etc.) should be placed in a paper bag and brought along with the victim to a local hospital emergency department that has kits to collect and preserve evidence of sexual assault.
- EMPLOYEES' DUTY TO REPORT TO TITLE IX COORDINATOR
In order to enable the University to respond effectively and to proactively stop instances of sexual harassment, employees must, within 24 hours of receiving information regarding a potential violation of this policy, report information to the Title IX Coordinator. Any employee who fails to promptly report a matter to the Title IX Coordinator may be subjected to disciplinary action for failing to do so. There are two categories of employees who are exempt from this requirement: (1) licensed health-care professionals and other employees who are statutorily prohibited from reporting such information and (2) persons designated by the campus as victim advocates.
- OFF-CAMPUS CONDUCT
Conduct that occurs off campus can be the subject of a formal complaint or report and will be evaluated to determine whether the circumstances fall within the University’s jurisdiction under Title IX or should be referred to a different department or official within the University.
Except as compelled by law or as required to conduct a full and fair grievance proceeding in response to a formal complaint, the University will treat the information obtained or produced as part of the Title IX procedures as confidential. The University will keep confidential the identity of any individual who has made a report or complaint of sex discrimination, including any individual who has made a report or filed a formal complaint of sexual harassment, any complainant, any individual who has been reported to be the perpetuator of sex discrimination, any respondent, and any witness, except as may be permitted by the FERPA statute, 20 U.S.C. § 1232g, or FERPA regulations, 34 CFR Part 99, or as required by law, or to carry out the purposes of 34 CFR Part 106, including the conduct of any investigation, hearing, or judicial proceedings arising thereunder.
- AVAILABILITY OF COUNSELING AND ADVOCACY
Counseling and other mental health services for victims of sexual assault are available on campus and in the community. Students may use the Counseling and Psychological Services (CAPS) department at the Pat Walker Health Center and the Sexual and Relationship Violence Center. Employees of the University may be able to seek help through the Employee Assistance Program. Community Health Agencies, such as Ozark Guidance Center, and counselors and psychotherapists in private practice in the area can provide individual and group therapy.
- EDUCATION AND AWARENESS PROGRAMS
The University’s Title IX Coordinator is responsible for planning and coordinating campus education and awareness programs about all forms of sexual harassment. Programs are presented regularly throughout the academic year in residence halls, fraternities, sororities, and for other student organizations, academic classes, intercollegiate athletics, employee training and professional development and in other settings that are likely to reach people throughout the campus community. Campus-wide education and awareness activities are also conducted during Sexual Assault Prevention and Awareness Week.
All employees must acknowledge receipt of this policy and complete sexual harassment and assault training within the first six months of their employment. This training is designed to help faculty and staff recognize and understand their responsibility to report all instances of sex-based discrimination and violence against members of the university community. Employees are encouraged to meet the training requirement through the available online modules, however in-person training may be scheduled, as needed. Each employee should receive refresher training at least every three years.
All students who are new to the university, including transfer and graduate students, must complete the online training modules before or during their first semester of enrollment at the university. This training is designed to help students learn about consent, how to help and safely intervene in a potentially harmful situation, where to report allegations, and available resources for those who have been harmed by sex-based discrimination or violence.
- GRIEVANCE PROCEDURE
These procedures apply to all grievances regarding conduct that may constitute sexual harassment as defined in this policy (including sexual assault) and that falls within the University’s Title IX jurisdiction. All other grievances by students, employees, or third parties shall be addressed through other procedures. The University’s Title IX grievance process includes formal and informal procedures that encourage prompt resolution of complaints. In most cases, the complainant’s submission of a formal, written complaint to the Title IX Coordinator will initiate the formal grievance process. However, the Title IX Coordinator may also submit a formal complaint under the circumstances described below. The University will respond promptly to all formal complaints of sexual harassment.
- BASIC REQUIREMENTS
The University’s grievance process shall adhere to the following principles:
- All relevant evidence—including both inculpatory and exculpatory evidence—will be evaluated.
- Credibility determinations may not be based on a person’s status as a complainant, respondent, or witness.
- The Title IX Coordinator, investigator, hearing officers, appeal panelists, persons involved with the informal resolution, and any other persons that play a significant role in the Title IX grievance process shall not have a conflict of interest or bias for (or against) complainants or respondents generally or for (or against) an individual complainant or respondent.
- The respondent is presumed to not be responsible for the alleged conduct until a determination of responsibility is made at the conclusion of the grievance process.
- The time frames for concluding the grievance process shall be reasonably prompt, as set forth in more detail in the procedures below.
- The grievance process may be temporarily delayed, and limited extensions of time frames may be granted, for good cause. In such instances, written notice to the complainant and the respondent of the delay or extension and the reasons for the action will be provided. Good cause may include considerations such as the absence of a party, a party’s advisor, or a witness; concurring law enforcement activity; or the need for language assistance or accommodations of disabilities.
- Questions or evidence that constitute, or seek disclosure of, information protected under a legally recognized privilege will not be required, allowed, relied upon, or otherwise used. The University shall not consider, disclose, or otherwise use a 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 the capacity, and which are made and maintained in connection with the provision of treatment to the party, unless the University obtains that person’s voluntary, written consent to do so for a grievance under this section.
- No party shall be restricted from discussing the allegations under investigation or to gather and present relevant evidence.
- A party whose participation in a hearing, investigative interview, or other meeting
shall be provided with a written notice of the date, time, location, participants,
and purpose of all hearings, investigative interviews, or other meetings, with sufficient
time for the party to prepare to participate.
- INITIAL REPORT/INTAKE PROCESS
- Initial Meeting with Complainant: Promptly upon receiving a report of conduct that could potentially be a violation
of Title IX, the Title IX Coordinator (or designee) will contact the complainant to
schedule an initial meeting to, as applicable:
- provide a copy of this policy
- explain the process for filing a formal complaint
- explain avenues for resolution, including informal and formal
- explain the steps involved in an investigation and hearing under this policy
- discuss confidentiality standards and concerns
- refer to law enforcement, counseling, medical, academic or other resources, as appropriate
- discuss, as appropriate, possible supportive measures, which are available with or without the filing of a formal complaint
- If the complainant requests that no further action be taken and/or that no formal
complaint be pursued, the Title IX Coordinator (or designee) will inform the complainant
that retaliation is prohibited and that honoring the complainant's request may limit
the University’s ability to fully respond to the incident. In the event the complainant
stands firm on his or her request that no further action be taken, the Title IX Coordinator
will evaluate whether to file a complaint under the criteria set forth below.
- Initial Meeting with Complainant: Promptly upon receiving a report of conduct that could potentially be a violation of Title IX, the Title IX Coordinator (or designee) will contact the complainant to schedule an initial meeting to, as applicable:
- FORMAL COMPLAINT PROCESS
- Form and Filing of Complaint: The filing of a formal, written complaint initiates the formal grievance process and is available to any person who is participating in (or attempting to participate in) a University educational program or activity. The Title IX Coordinator (or an investigator designated by the Title IX Coordinator) will investigate the allegations in the formal complaint. Formal complaints can be filed in several ways. The complainant may submit the complainant’s own document that contains the complainant’s signature (either physical or digital) and is filed with the University’s Title IX Office by U.S. mail, in person, through the Title IX portal provided for this purpose, or by email. The formal complaint should set forth the allegations and request that the Title IX Office investigate the matter.
- Filing by Title IX Coordinator: The Title IX Coordinator may initiate the grievance process, even where the complainant declines to file a formal complaint, if the Coordinator determines that the particular circumstances require the University to formally respond to and address the allegations. Circumstances to be considered include, among others, a pattern of alleged misconduct by a respondent and whether the complaint has alleged use of violence, weapons, or other similar conduct. The Title IX Coordinator will also consider the complainant’s wishes with respect to supportive measures and desired response by the University. Where a report is made anonymously and the Title IX Coordinator files the complaint, both the complainant and respondent will receive notice of the allegations with written details and identities of the parties if known.
- Consolidation of Formal Complaints: The Title IX Coordinator may consolidate formal complaints as to allegations of sexual harassment against more than one respondent, or by more than one complainant against one or more respondents, or by one party against the other party, where the allegations of sexual harassment arise out of the same facts or circumstances.
- Dismissal of Complaint Prior to Resolution: A formal complaint must be dismissed by the Title IX Coordinator if the alleged conduct
(1) does not constitute sexual harassment, as defined in this policy, even if proved;
(2) did not occur in the University’s education program or activity; or (3) did not
occur against a person in the United States. In addition, a complaint may be dismissed
if, at any time during the investigation or hearing, a complainant notifies the Title
IX Coordinator in writing that the complainant would like to withdraw the formal complaint
or any allegations therein; the respondent is no longer enrolled or employed by the
recipient; or specific circumstances prevent the gathering of evidence sufficient
to reach a determination as to the formal complaint or any allegations therein.
Upon dismissal of a formal complaint, for any reason, the Title IX Coordinator will send simultaneous, written notice of and reason(s) for the dismissal to the parties. The dismissal decision may be appealed pursuant to the procedure for appeals set forth in this policy. Dismissal of a complaint under this Title IX policy does not preclude a complainant from pursuing a grievance through other appropriate campus procedures.
- Notice of Formal Complaint: Upon receipt of the formal complaint, the Title IX Coordinator will send simultaneous
notifications of the filing of the complaint to the complainant and the respondent
(if known). If, in the course of an investigation, the Title IX Coordinator decides
to investigate allegations about the complainant or respondent that are not included
in the initial notice, the Title IX Coordinator must provide notice of the additional
allegations to the parties whose identities are known. The initial notice will contain
- The allegations of the complaint that potentially constitute sexual harassment, including sufficient details known at the time and with sufficient time to prepare a response before any initial interview (including the identities of the parties involved in the incident, if known, the conduct allegedly constituting sexual harassment under this policy, and the date and location of the alleged incident, if known)
- A copy of the Title IX policy
- A statement that the respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the grievance process
- A statement informing the parties that they have a right to have one advisor of their choice to assist them throughout the proceedings who may be (but is not required to be) an attorney
- A statement that the parties have the right to inspect and review all evidence collected during the complaint process
- A statement that any party who knowingly makes false statements or submits false information during the grievance process will be subject to disciplinary procedures
- Initial Meeting with Respondent: If a formal complaint is filed, the Title IX Coordinator will promptly schedule an
initial meeting with the respondent after the written notice of the formal complaint
is sent as described above. Prior to the initial meeting, the Title IX Coordinator
shall provide a written notice of the date, time, location, participants, and purpose
of the meeting, with sufficient time for the party to prepare to participate. During
the initial meeting with the respondent, the Title IX Coordinator (or designee) will,
- provide a copy of this policy (if not previously provided)
- explain avenues for resolution, including informal and formal
- explain the steps involved in an investigation and hearing under this policy
- discuss confidentiality standards and concerns
- discuss non-retaliation requirements
- inform of any supportive measures already determined and being provided to the complainant that would directly affect the respondent
- refer to law enforcement, counseling, medical, academic or other resources, as appropriate
- discuss, as appropriate, possible supportive measures that can be provided to the respondent
- Right to Advisor: Both parties will be advised that they may be accompanied by one advisor/support person to assist them throughout the Title IX process, which can be (but is not required to be) an attorney. The advisor is not allowed to speak or otherwise actively participate during the pre-hearing interviews or meetings. It is the party’s responsibility to obtain the services of an advisor, except that the University shall make an advisor available to the parties during the determination hearing upon request. A party who wants the University to provide an advisor for the determination hearing should make a request at least 10 days prior to the hearing. The advisor’s role at the hearing is further explained below.
- Emergency Removal: If, after a safety and risk analysis, the Title IX Coordinator determines that the respondent poses an immediate threat to the physical health or safety of any student or other individual arising from the allegations of sexual harassment, the Title IX Coordinator may recommend the respondent be removed from the University’s programs or activities. Such a recommendation is made to the Dean of Students where a student is the respondent, to the appropriate dean on matters where a faculty member is the respondent, and to the Associate Vice Chancellor for Human Resources for matters where a staff member is the respondent. In such instances, the respondent will be provided with a written notice of the reasons for the removal. Within 5 days of receiving the notice, the respondent may seek reconsideration of the decision by requesting a meeting with the Chancellor or designee.
- Administrative leave: Nothing in this policy precludes the University from placing a non-student employee respondent on administrative leave during the pendency of the grievance process.
- Supportive Measures: Supportive measures, as defined in this policy, will be based on the facts and circumstances
of each situation. The Title IX Coordinator is responsible for coordinating the effective
implementation of supportive measures. They may include, but are not limited to, the
- extensions of deadlines or other course-related adjustments
- modifications of work or class schedules
- campus escort services
- mutual restrictions on contact between the parties
- changes in working or housing locations
- leaves of absence
- increased security and monitoring of certain areas of the campus
The University will maintain as confidential any supportive measures provided to the complainant or respondent, to the extent that maintaining such confidentiality would not impair the ability of the University to provide the supportive measures.
- Informal Resolution: At any time after a formal written complaint is filed but prior to reaching a determination
regarding responsibility, the University may facilitate a resolution without a full
investigation and adjudication. The complainant and respondent must give their voluntary,
written consent to the informal resolution process. The informal resolution process
will not be utilized to resolve any allegation of sexual assault as defined by the
policy or allegations that an employee sexually harassed a student.
Prior to commencing the informal resolution process, the Title IX Coordinator or designee must provide the parties a written notice that includes the following information:
- Notice of the allegations contained in the formal complaint, including dates, location(s), and identities of the parties
- Any agreed upon resolution reached at the conclusion of the informal complaint process will preclude the parties from resuming a formal complaint arising from the same allegations
- At any time prior to agreeing to a resolution, any party has the right to withdraw from the informal resolution process and resume the grievance process with respect to the formal complaint
- Any consequences resulting from participating in the informal resolution process, including the records that will be maintained or could be shared
- COMPREHENSIVE INVESTIGATION
If resolution of the allegations does not proceed through the informal process, the matter will proceed with a comprehensive investigation and resolution through the formal complaint processes. The Title IX Coordinator will be responsible for overseeing the prompt, equitable, and impartial investigation during the formal complaint process. The burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility shall rest on the University and not the parties.
- Assignment of Investigator: If the Title IX Coordinator’s designee is to conduct the investigation, the Title IX Coordinator will forward the complaint to the investigator and share the investigator’s name and contact information with the complainant and the respondent.
- Conflicts of Interest: Immediately after the identity of the person who will conduct the investigation is determined and communicated to the parties, the investigator, the complainant, or the respondent may identify to the Title IX Coordinator in writing any real or perceived conflicts of interest or bias that the person charged with conducting the investigation (including the Title IX coordinator, where applicable) may have. The Title IX Coordinator will carefully consider such statements and will assign a different individual as investigator if it is determined that a material conflict of interest exists.
- Overview of Investigation: Upon receipt of the formal complaint, the Title IX Coordinator/Investigator (hereinafter
“Investigator”) will promptly begin the investigation, which shall include but is
not limited to the following:
- conducting interviews with the complainant, the respondent, and any witnesses (including expert witnesses, where applicable) and summarizing such interviews in written form
- visiting, inspecting, and taking photographs at relevant sites
- where applicable, collecting and preserving relevant evidence (in cases of corresponding criminal reports, this step may be coordinated with law enforcement agencies)
- obtaining any relevant medical records pertaining to treatment of the complainant, provided that the complainant has voluntarily authorized release of the records in writing to the investigator
- Inspection and Access to Evidence: The parties may identify to the Investigator any evidence or witnesses they wish to
be included as part of the investigation. Both parties will also have equal opportunity
to inspect and review any evidence obtained during the investigation. The Investigator
will complete the gathering of evidence as soon as practicable, which will ordinarily
occur within approximately 30 days after the filing of the formal complaint.
After the gathering of evidence has been completed but prior to completion of the investigative report, the Investigator will provide to each party and party’s advisor, if any, any evidence obtained as part of the investigation that is directly related to the allegations raised in the formal complaint, including the evidence upon which the University does not intend to rely in reaching a determination regarding responsibility and inculpatory or exculpatory evidence (whether obtained from a party or other source), so that each party can meaningfully respond to the evidence prior to the conclusion of the investigation. The evidence will be provided in an electronic format or a hard copy. The parties will have 10 calendar days to submit a written response to the evidence, which will be considered by the Investigator prior to completion of the investigative report. The evidence will be made available for the parties to use at the hearing to determine responsibility.
- Investigative Report: The investigative report shall fairly summarize the relevant evidence and must include
the following items and information that is relevant to the allegations in the formal
- the dates of the Title IX Coordinator’s initial receipt of a report of alleged sexual harassment against the complainant, intake meeting, and the filing of the formal complaint
- a statement of the allegation(s), a description of the incident(s), the date(s) and time(s) (if known), and location of the alleged incident(s)
- the names of all known witnesses to the alleged incident(s)
- the dates that the complainant, respondent, and other witnesses were interviewed, along with summaries of the interviews
- descriptions or summaries of any physical or documentary evidence that was obtained (g., text messages, emails, surveillance video footage, photographs)
- any written statements of the complainant, respondent, or other witnesses
- the response of University personnel and, if applicable, University-level officials,
including any supportive measures taken with respect to the complainant and respondent
The Investigator shall provide a draft of the investigative report to the Title IX Coordinator for review before the report becomes final. An electronic or hard-copy version of the final investigative report will be provided to each party (and each party’s advisor) concurrently. The investigative report shall be provided as soon as practicable after the parties have submitted their written responses to the evidence (if any) and at least 10 calendar days prior to the determination hearing. The parties may provide a written response to the investigative report within 5 calendar days after receiving it.
- DETERMINATION HEARING
Following the conclusion and distribution of the investigative report, a hearing will be conducted to determine the outcome and resolution of the complaint. The parties and their advisors, if any, will be notified by the Hearing Officer, the Title IX Coordinator, or a designee, of the date, time and location of the hearing, as set forth in the notice provisions below.
- Hearing Officer: Within 3 days of the release of the investigative report to the parties, or as soon
as practicable thereafter, the Chancellor or designee will appoint a Hearing Officer,
who may be (but is not required to be) an individual not permanently employed by the
University, who will be responsible for conducting the hearing and making findings
regarding responsibility and, if applicable, any necessary sanctions. The Title IX
Coordinator will provide a copy of the formal complaint and the investigative report,
along with the parties’ written responses to the investigative report, to the Hearing
Promptly after the appointment of the Hearing Officer, the Title IX Coordinator will provide concurrent written notice to the complainant and the respondent, setting forth the name of the individual selected to serve as the Hearing Officer. The parties may challenge the participation of the appointed Hearing Officer based on bias or a conflict of interest by submitting a written objection to the Chancellor or designee within 3 calendar days of receipt of the notice. Any objection must state the specific reason(s) for the objection. The Chancellor or designee will evaluate the objection and determine whether to select a new Hearing Officer. Failure to submit a timely and proper objection will constitute a waiver of the objection. Any changes in the Hearing Officer will be communicated in writing to both parties prior to the date of the hearing.
- Submission of Witnesses Lists: Within 5 calendar days of receipt of the notice of the Hearing Officer, both parties may provide to the Hearing Officer a list of witnesses, if any, that they propose be called to testify and a brief description of each proposed witness’s connection to and/or knowledge of the issues in dispute. Absent good cause, a party cannot include a witness on the party’s pre-hearing witness list unless the witness was identified during the investigation. The Hearing Officer reserves the right to call relevant witnesses who may not have been included on a party’s witness list.
- Notice of the Hearing: Not less than 5 days but not more than 10 days after delivery of the notice of the Hearing Officer’s identity, the Hearing Officer will provide a separate notice to the complainant, respondent, and any other witnesses whose testimony the Hearing Officer deems relevant, requesting such individuals to appear at the hearing to determine responsibility. The notice should set forth the date, time, and location for the individual’s requested presence. The Hearing Officer shall provide, in the notice to the parties, the names of the witnesses that the Hearing Officer plans to call. The hearing shall be conducted promptly but no sooner than 10 calendar days after release of the investigative report.
- Failure to Appear: If any party fails to appear at the hearing if requested to do so, and such party was provided notice of the hearing as set forth above, then, absent extenuating circumstances, the Hearing Officer will proceed to determine the resolution of the complaint. As explained below, if a party fails to appear, it is unlikely that the Hearing Officer will consider the non-appearing party’s version of events based on another source, such as the formal complaint or a prior statement.
- Option for Virtual Presence: Live hearings may be conducted with either all parties present in the same geographic location or, at the University’s discretion, any or all parties and witnesses may appear at the live hearing virtually, with technology enabling participants simultaneously to see and hear each other. Either party may request not to be in the same room as the other party. If any party makes such a request, then both parties will be required to attend the hearing from a location or room different from where the Hearing Officer is sitting. If the hearing is virtual, or there is a request for separate rooms at a physical location, the University will ensure that all participants are able to simultaneously see and hear the party or the witness answering questions. Instructions will be provided for accessibility prior to the hearing date.
- Recordings: An audio or audio-visual recording will be created of the live hearing and will be made available for inspection and review at any party’s request.
- Advisors: Both the complainant and respondent may be accompanied by an advisor during the hearing. The advisor’s role at the hearing shall consist of (1) providing private advice to the party he/she is supporting and (2) questioning the opposing party and other witnesses. The advisor can be anyone, including an attorney. A party may arrange for the party’s advisor of choice to attend the hearing at the party’s own expense. Alternatively, the University will select and provide an advisor to assist a party at the hearing to determine responsibility, without fee or charge, upon request. In either scenario, the advisor may only participate in the hearing to the extent allowed under this policy.
- Evidentiary Matters and Procedure: The parties, through their advisors, shall have an equal opportunity to question the opposing party and other witnesses, including fact and expert witnesses, and present other inculpatory or exculpatory evidence. Formal rules of evidence will not be observed during the hearing. The Hearing Officer will conduct the initial questioning of witnesses prior to the questioning by an advisor. The Hearing Officer will make all determinations regarding the order of witnesses, relevancy of questions, and the evidence to be considered or excluded during the hearing and decision-making process. The Hearing Officer may, in his or her discretion, choose to call the Investigator for the purpose of providing an overview of the investigation and findings.
- Witness Examinations: Each party’s advisor is permitted to question the opposing party and the other witnesses,
so long as the questions are relevant and not duplicative of the questions posed by
the Hearing Officer. The questions may include challenges to credibility. No other
questioning or speaking participation by an advisor will be allowed. A party may not
examine a party or witness directly; rather, a party must utilize the services of
an advisor for the purpose of posing questions to another party or witness. A party
not represented by an advisor may, however, submit a list of proposed questions to
the Hearing Officer and ask that the questions be posed to the opposing party or witness.
The Hearing Officer will make determinations regarding relevancy of questions before a party or witness answers. If a determination is made to exclude the question based on relevancy, the Hearing Officer will provide an explanation of why the question was deemed irrelevant and excluded.
A party should notify the Hearing Officer at least 5 days in advance of the hearing if the party will be accompanied by an advisor. The Hearing Officer may disallow the attendance of any advisor if, in the discretion of the Hearing Officer, such person’s presence becomes disruptive or obstructive to the hearing or otherwise warrants removal. Advisors will be not be permitted to badger or question the opposing party or any witness in an abusive or threatening manner. Absent accommodation for a disability, the parties may not be accompanied by any other individual during the hearing process except as set forth in this policy. University officials may seek advice from the University’s Office of General Counsel on questions of law, policy, and procedure at any time during the process.
- Prior Sexual Conduct: Questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant, unless such questions and evidence about the complainant’s prior sexual behavior are offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or if the questions and evidence concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent.
- Refusal to submit to cross examination: If a party or witness does not submit to cross-examination at the live hearing, the Hearing Officer must not rely on any statement of that party or witness in reaching a determination regarding responsibility; provided, however, that the Hearing Officer cannot draw an inference about the determination of responsibility based solely on a party’s or witness’s absence from the live hearing or refusal to answer cross-examination or other questions.
- Confidentiality and Disclosure. To comply with FERPA and Title IX and to provide an orderly process for the presentation and consideration of relevant information without undue intimidation or pressure, the grievance process is not open to the general public. Accordingly, documents prepared in anticipation of the hearing (including the formal complaint, investigative report, evidentiary materials, notices, and prehearing submissions), recordings of the hearing, and documents, testimony, or other information used at the hearing may not be disclosed outside of the hearing proceedings, except as may be required or authorized by law.
- Decision of the Hearing Officer and Standard of Evidence: Following the conclusion of the hearing, the Hearing Officer will determine whether the evidence establishes that it is more likely than not that the respondent committed a violation of this policy. In other words, the standard of proof will be the preponderance of the evidence. This standard applies to complaints against both students and employees. In reaching the determination, the Hearing Officer will objectively and thoroughly evaluate all relevant evidence, both inculpatory and exculpatory, and reach an independent decision, without deference to the investigative report.
- Written Determination of Responsibility: As soon as practicable following the hearing (and ordinarily within 10 days thereafter),
the Hearing Officer shall complete a report of his/her findings. The Hearing Officer
will send simultaneous notification of the decision to both parties and their advisors,
where applicable, with the following information:
- Identification of the allegations potentially constituting sexual harassment under the policy
- A description of the procedural steps taken from the receipt of the formal complaint through the determination, including any notifications to the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence and the hearing held
- Findings of fact that support the determination
- Conclusions regarding the application of the University’s conduct standards to the facts
- A statement and rationale for the result as to each allegation, including a determination as to responsibility using the preponderance of the evidence standard
- Any disciplinary sanctions imposed on respondent
- Whether any remedies designed to restore or preserve equal access to the University’s education program or activity will be provided to the complainant (description of remedies is not included)
- Procedures and permissible bases for the parties to appeal
- Sanctions: If the Hearing Officer determines that more likely than not the respondent committed
a violation of this policy, then the Hearing Officer will determine sanctions and
give consideration to whether a given sanction will (a) bring an end to the violation
in question, (b) reasonably prevent a recurrence of a similar violation, and (c) remedy
the effects of the violation. Sanctions for a finding of responsibility will depend
upon the nature and gravity of the misconduct, any record of prior discipline for
a violation of this policy, or both. The range of potential sanctions is set forth
in the definitions section of this policy.
Ordinarily, sanctions will not be imposed until the resolution of any timely appeal under this policy. However, if it is deemed necessary to protect the welfare of the victim or the University community, the Hearing Officer may recommend to the Appeals Panel that any sanctions be imposed immediately and continue in effect until such time as the appeal process is exhausted.
- Remedies: Where a determination is made that the respondent was responsible for sexual harassment, the Hearing Officer will determine any final remedies to be provided to the complainant, if any, and the Title IX Coordinator will communicate such decision to the complainant and the respondent to the extent that it affects him/her. Remedies must be provided in all instances in which a determination of responsibility for sexual harassment has been made against the respondent. Remedies must be designed to restore or preserve equal access to the University’s education program or activity. Such remedies may include the same individualized services described above as “supportive measures”; however, remedies need not be non-disciplinary or non-punitive and need not avoid burdening the respondent.
- No Retaliation: The Title IX Coordinator will take steps to prevent any harassment of or retaliation
against the complainant, the respondent, or third parties, such as informing them
about how to report subsequent problems, following up with them to ensure that there
are no subsequent problems, and providing training for the campus community.
- Hearing Officer: Within 3 days of the release of the investigative report to the parties, or as soon as practicable thereafter, the Chancellor or designee will appoint a Hearing Officer, who may be (but is not required to be) an individual not permanently employed by the University, who will be responsible for conducting the hearing and making findings regarding responsibility and, if applicable, any necessary sanctions. The Title IX Coordinator will provide a copy of the formal complaint and the investigative report, along with the parties’ written responses to the investigative report, to the Hearing Officer.
- Procedure for Appeals: Both the complainant and the respondent may appeal from (1) the Title IX Coordinator’s
dismissal of a formal complaint or any allegations therein or (2) the Hearing Officer’s
determination. The appeal should be submitted in writing to the Title IX Coordinator
within 5 days of receipt of the Hearing Officer’s decision. The Title IX Coordinator
will forward the appeal to the Appeal Panel. The appeal will be decided based on the
written record and without deference to the decision of the Hearing Officer.
If the respondent is a student, the appeal will be decided by an Appeal Panel. If the respondent is an employee, the Chancellor or designee will decide the appeal. The Appeal Panel will be comprised of at least two faculty and/or staff members. One of the members of the Appeal Panel can be (but need not be) a person who is not a University employee. The Chancellor or designee shall designate one of the panelists as the Chair of the Appeal Panel. The Chair of the Appeal Panel (in cases where the respondent is a student and a panel is utilized) or the Chancellor or designee (in other cases) shall make any decisions concerning appellate jurisdiction under the permissible grounds for appeal described below.
The party appealing may submit his/her written and signed appeal by way of email, facsimile, hand-delivery, or postal delivery. The Title IX Coordinator will promptly inform the other party of the appeal.
- Grounds for Appeal: The appeal from the decision of the Hearing Officer must be for one of the following reasons: (1) a procedural irregularity that affected the outcome of the decision; (2) there is new evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made and that could affect the outcome of the matter; (3) the Title IX Coordinator, Investigator(s), or Hearing Officer had a conflict of interest or bias for or against complainants or respondents in general or against an individual complainant or respondent that affected the outcome; or (4) the sanctions imposed are not appropriate to the nature and severity of the conduct for which the respondent was found responsible
- Responses: Within 5 days of receipt of the appeal, the other party may submit a written statement in response to the appeal and which supports or challenges the dismissal or determination. The response should be submitted to the Title IX Coordinator, who shall provide a copy to the decision-maker and the appealing party.
- Decision on Appeal: As soon as practicable after receiving the parties’ written submissions (and ordinarily within approximately 10 days), the Chancellor (or designee) or Appeal Panel will issue a written decision describing the result of the appeal and the rationale for the result. The decision on appeal may uphold the decision, modify it, or remand for further factual development. The decision-maker on appeal will concurrently notify the complainant and the respondent of the decision, with a written copy provided to the Title IX Coordinator.
- Employees: Nothing in this Policy shall create an expectation of continued employment with the
University or be construed to prevent or delay the institution from taking any disciplinary
action deemed appropriate and consistent with applicable University policies (including
suspension and immediate termination of employment) for any violation of state law,
federal law or University policy.
- Procedure for Appeals: Both the complainant and the respondent may appeal from (1) the Title IX Coordinator’s dismissal of a formal complaint or any allegations therein or (2) the Hearing Officer’s determination. The appeal should be submitted in writing to the Title IX Coordinator within 5 days of receipt of the Hearing Officer’s decision. The Title IX Coordinator will forward the appeal to the Appeal Panel. The appeal will be decided based on the written record and without deference to the decision of the Hearing Officer.
- TIME PERIODS
The University will make every reasonable effort to ensure that the investigation and resolution of a complaint occurs in as timely and efficient a manner as possible.
Any party may request an extension of any deadline by providing the Title IX Coordinator or his or her respective deputies with a written request for an extension that includes reference to the duration of the proposed extension and the basis for the request.
The Title IX Coordinator may also modify timelines in cases where information is not clear, judged to be incomplete, relevant parties are not available for interview, absence of an advisor, concurrent law enforcement activity, the need for language assistance or disability accommodation and/or other circumstances that may arise.
- RETALIATION PROHIBITED
No person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX, 34 C.F.R. Part 106, or this policy, or because an individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this part. Intimidation, threats, coercion, or discrimination, including changes against an individual for code of conduct violations that do not involve sex discrimination or sexual harassment, but arise out of the same facts or circumstances as a report or complaint of sex discrimination, or a report or formal complaint of sex discrimination of harassment, for the purpose of interfering with any right or privilege secured by Title IX, 34 C.F.R. Part 106, or this policy, constitutes retaliation. However, the exercise of rights protected under the First Amendment does not constitute retaliation.
- FALSE REPORTS
Willfully making a false report of sexual harassment or submitting false information during these proceedings is a violation of University policy and is a serious offense. However, a determination regarding responsibility, alone, is not sufficient to conclude that any party made a materially false statement in bad faith. Any person who willfully makes or participates in making a false or frivolous report of discrimination, harassment, retaliation or sexual misconduct will be subject to disciplinary action. False reporting may also violate state criminal statutes and civil defamation laws.
- EXTERNAL REPORTING AGENCIES
Although complainants are encouraged to resolve their grievances related to discrimination by utilizing this Complaint/Grievance Procedure, they may have the right to file a complaint directly with the following agencies. Individuals who wish to file complaints with these external agencies should make contact as soon as possible and verify any applicable time limits and deadlines.
Office of Civil Rights (OCR)
U.S. Department of Education
1999 Bryan St., Suite 1620
Dallas, TX 75201-6810
Toll Free: 1-800-421-3481
- EFFECTIVE DATE
The University reserves the right to make changes and amendments to this Policy as needed, with appropriate notice to the campus community. However, the Policy in force at the time that a Complaint is filed will be the Policy used throughout the investigation, hearing, and any appeals.
- RETENTION OF RECORDS
For a period of at least seven years, the University will maintain the records of:
- Each sexual harassment investigation, including any determination regarding responsibility, any recordings or transcripts, disciplinary sanctions, and remedies provided to the complainant
- Any appeal and the result therefrom
- Any informal resolution and the result therefrom
- All materials used to train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process. These materials will be made publicly available on the University’s website.
- Records of any actions, including supportive measures, taken in response to a report
or formal complaint of sexual harassment, along with documentation of the University’s
bases for its conclusion that its response was not deliberately indifferent.
Documentation pertaining to terminations, expulsions or educational sanctions may be retained indefinitely.
- BASIC REQUIREMENTS
- DEFINITION OF TERMS
- Complainant: Any individual who is alleged to be the victim of conduct that could constitute sexual harassment. At the time of the filing of a formal complaint, a complainant must be participating in or attempting to participate in the education program or activity of the recipient with which the formal complaint is filed. Any person may report sex discrimination, including harassment, whether or not the person reporting is the person alleged to be the victim of discrimination or harassment.
- Consent: Consent is clear, knowing, and voluntary. Consent is active, not passive. Silence,
in and of itself, cannot be interpreted as consent. Consent can be given by words
or actions, if those words or actions create mutually understandable clear permission
regarding willingness to engage in (and the conditions of) sexual activity. If coercion,
intimidation, threats, or physical force are used, there is no consent.
If a person is mentally or physically incapacitated or impaired so that such person cannot understand the fact, nature or extent of the sexual situation, there is no consent. This includes impairment or incapacitation due to alcohol or drugs or being asleep or unconscious. Incapacitation is a state where someone cannot make rational, reasonable decisions because he or she lacks the capacity to give knowing consent. This Policy also covers a person whose incapacity results from mental disability, sleep, involuntary physical restraint, or from the taking of rape drugs. Possession, use and/or distribution of any of these substances, including Rohypnol, Ketamine, GHB, Brundage, etc. is prohibited, and administering one of these drugs to another person is a violation of this Policy. More information on these drugs can be found at http://www.911rape.org/
Use of alcohol or other drugs will never function as a defense to a violation of this Policy. An individual violates this policy if the individual initiates and engages in sexual activity with someone who is incapacitated, and (1) the individual knew the other person was incapacitated, or (2) a sober reasonable person under similar circumstances as the person initiating the sexual activity would have known the other person was incapacitated.
There is also no consent when there is force, expressed or implied, or use of duress or deception upon the victim. Whether an individual has taken advantage of a position of influence over an alleged victim may be a factor in determining consent.
Force is the use of physical violence and/or imposing on someone physically to gain sexual access. Force also includes overt threats, implied threats, intimidation, and coercion that overcome resistance or produce consent.
Coercion is unreasonable pressure for sexual activity. Coercive behavior differs from seductive behavior based on the type of pressure someone uses to get consent from another. When someone makes clear to you that they do not want sex, that they want to stop, or that they do not want to go past a certain point of sexual interaction, continued pressure beyond that point can be coercive.
Under Arkansas law, the age of consent varies with the degrees of assault, the age of the actor, and the relationship of the actor to the other party. For specific information, please refer to Arkansas statutes (e.g., Arkansas Code Annotated § 5-14-125, Sexual Assault in the Second Degree).
Consent to any one form of sexual activity cannot automatically imply consent to any other forms of sexual activity. In addition, previous relationships or prior consent cannot imply consent to future sexual acts.
- Dating Violence: Violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim and where the existence of such relationship is determined based on consideration of the following factors: (1) the length of the relationship; (2) the type of relationship; and (3) the frequency of interaction between the persons involved in the relationship.
- Days: Refers to working days, rather than calendar days, unless otherwise specified.
- Domestic Violence: The term includes felony or misdemeanor crimes of violence committed by a current spouse or intimate partner of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of Arkansas, or by any other person against an adult or youth victim who is protected from that person’s acts under the laws of Arkansas. Under the Arkansas law on domestic abuse, “family or household members” means spouses, former spouses, parents and children, persons related by blood within the fourth degree of consanguinity, in-laws, any children residing in the household, persons who presently or in the past have resided or cohabitated together, persons who have or have had a child in common, and persons who are presently or in the past have been in a dating relationship together.
- Education Program or Activity: Includes locations, events, or circumstances over which the University exercised substantial control over both the respondent and the context in which the sexual harassment occurred, and also includes any building owned or controlled by an officially recognized student organization.
- Formal Complaint: A document filed by a complainant or signed by the Title IX Coordinator alleging sexual harassment against a respondent and requesting that the recipient investigate the allegation of sexual harassment. The phrase “document filed by a complainant” means a document or electronic submission (such as by electronic mail or through an online portal provided for this purpose by the University) that contains the complainant’s physical or digital signature, or otherwise indicates that the complainant is the person filing the formal complaint.
- Party: The complainant or respondent.
- Preponderance of the Evidence: A standard of proof where the conclusion is based on facts that are more likely true than not.
- Respondent: An individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment.
- Sanctions: The determination of sanctions to be imposed against a respondent who is found to have been responsible for violating this policy will depend upon the nature and gravity of the misconduct, any record of prior discipline for a violation of this Policy, or both. Sanctions against students may include, without limitation, expulsion or suspension from the University, disciplinary probation, expulsion from campus housing, mandated counseling, and/or educational sanctions. Sanctions against employees and other non-students may include, without limitation, a written reprimand, disciplinary probation, suspension, termination, demotion, reassignment, revision of job duties, reduction in pay, exclusion from campus or particular activities, and/or educational sanctions deemed appropriate.
- Sexual Assault: The term “sexual assault” means an offense classified as a forcible or nonforcible
sex offense under the uniform crime reporting system of the Federal Bureau of Investigation.
A nonforcible sex offense includes incest (i.e., the nonforcible sexual intercourse between persons who are related to each other
within the degrees wherein marriage is prohibited by law) and statutory rape (i.e., nonforcible sexual intercourse with a person who is under the statutory age of
consent). A forcible sex offense is any sexual act directed against another person,
without the consent of the victim including instances where the victim is incapable
of giving consent. A forcible sex offense includes:
- forcible rape: the penetration, no matter how slight, of the vagina or anus with any part of the body or object, or oral penetration by a sex organ of another person, without the consent of the victim.
- Forcible sodomy: Oral or sexual intercourse with another person, forcibly and/or against that person’s will or not forcibly or against that person’s will in instances where the victim is incapable of giving consent because of his/her youth or because of his/her temporary or permanent mental or physical incapacity;
- Sexual assault with an object: Using an object or instrument to unlawfully penetrate, however slightly, the genital or anal opening of the body of another person, forcibly and/or against that person’s will or not forcibly or against that person’s will in instances where the victim is incapable of giving consent because of his/her youth or because his/her temporary or permanent or physical incapacity.
- Forcible fondling: The touching of the private body parts of another person for the purpose of sexual gratification, forcibly and/or against that person’s will or not forcibly or against that person’s will in instances where the victim is incapable of giving consent because of his/her youth or because his/her temporary or permanent or physical incapacity.
- Sexual Harassment: Sexual harassment is conduct on the basis of sex constituting one of the following:
- An employee of the University conditioning the provision of an aid, benefit, or service of the institution on an individual’s participation in unwelcome sexual conduct;
- Unwelcome conduct determined by a reasonable person to be so severe, pervasive and objectively offensive that it effectively denies a person equal access to the University’s educational programs or activities; or
- Any of the following:
- “Sexual assault” as defined in 20 U.S.C. 1092(f)(6)(A)(v) and this policy
- “Dating violence” as defined in 34 U.S.C. 12291(a)(10) and this policy
- “Domestic violence” as defined in 34 U.S.C. 12291(a)(8) and this policy
- “Stalking” as defined in 34 U.S.C. 12291(a)(30) and this policy.
- Stalking: Engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear for his or her safety or the safety of others or suffer substantial emotional distress.
- Supportive Measures: Non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without a fee or charge to the complaint or respondent before or after the filing of a formal complaint or where no formal complaint has been filed. Such measures are designed to restore or preserve equal access to the recipient’s education program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties or the University’s educational environment or deter sexual harassment.