Grievance Process Hearings
AS REQUIRED BY TITLE IX, the Grievance Process provides for a mandatory live hearing. Live hearings may be conducted with all parties physically present in the same geographic location, but may also, at the University’s discretion, be facilitated virtually such that any or all parties, witnesses, and other participants may appear at the live hearing virtually, with technology enabling all participants simultaneously to see and hear each other.
Hearings are facilitated by one or more hearing administrators who are trained and qualified Comprehensive Policy Administrators ("CPA") tasked with reviewing and examining all relevant evidence, presenting questions to parties and witnesses as needed to make findings of responsibility, and, where applicable, facilitating the determination of sanctions appropriate to the policy violation at issue. A Grievance Process hearing is an administrative process, and formal rules of evidence (such as those applied to courtroom hearings) do not apply.
One hearing administrator serves as the hearing chairperson, who is responsible for ensuring order and decorum, and for directing the hearing procedures. Other individuals who may be present for a hearing include other hearing administrator(s), Executive Director for Equity & Compliance ("EDEC"), investigator, parties and their advisors, and witnesses (who are admitted to the hearing when called upon by the hearing chairperson). When any party is accompanied by an advisor who is also an attorney, the University also reserves the right to have an attorney present to represent the University.
Hearings begin with introductions of all individuals present and a brief introduction of the case by the hearing chairperson. After the introduction, the hearing administrators call upon the parties to respond to questions, usually in the following order: complainant, respondent, witnesses. Following the direct questioning of each individual by the hearing administrators, both parties are afforded the opportunity to present questions of their own – through their advisor – to the individual who was just questioned (i.e., cross-examination). Following the direct questioning of a party, that party’s own advisor is not permitted to cross-examine their own advisee/party.
Recording the Hearing
The University creates an audio or audiovisual recording of all hearings, which are made available to the parties for inspection and review upon request and are maintained pursuant to the recordkeeping policy described in the Comprehensive Policy.
Cross-Examination by Advisors
During the hearing, the parties’ advisors will have the opportunity to cross-examine other participating parties and witnesses (if any). Such cross-examination must be conducted directly, orally, and in real time by the party’s advisor and never by a party personally.
The role of the advisor at a live hearing is not to represent a party, but only to relay the party’s cross-examination questions that the party wishes to have asked of the other party and witnesses. If a party does not have an advisor present at the live hearing, the University will provide – without fee or charge to the party – an advisor of the University’s choice, to perform the limited function of presenting the advisee’s questions to the other party and/or witnesses.
Each party must prepare their questions, including any follow-up questions, for the other party and witnesses, and provide them to their advisor. The advisor will ask the questions as the party has provided them, and may not ask questions that the advisor has developed without their party. Each party’s advisor may pose relevant and permissible questions to the opposing party and witnesses, subject to the limitations set forth in Article 3, subsection VI(C), including those challenging credibility.
The protocol for presenting questions by an advisor is as follows. Each question will first be proposed by the advisor to the hearing chairperson (or a designee), who will assess whether the question is relevant. If the question is relevant, the hearing chairperson will “affirm” the question and direct the questioned individual to respond. If the question is not relevant or is otherwise prohibited, the hearing chairperson will “exclude” the question, direct the questioned individual not to answer the question, and immediately and succinctly explain the reasoning for exclusion. Parties and their advisors may not object to proposed questions; the hearing chairperson has sole discretion in affirming or excluding questions.
If a party or witness does not participate in the live hearing, does not submit to cross-examination, or refuses to answer permissible questions from the hearing administrators or advisors, the hearing administrators may, at their discretion and based on the totality of the circumstances, assign limited or no weight to statements or information provided by that party or witness in reaching a determination regarding responsibility. The hearing administrators may not make any inferences regarding responsibility based solely on a party’s or witness’s absence from the live hearing or refusal to answer cross-examination or other questions.
Prohibited/Excluded Questions during the Hearing
Questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant, unless (a) 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 (b) 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.
The University does not permit questions by hearing administrators or by other parties through their advisors that seek disclosure of information protected under a legally recognized privilege, unless the person holding such privilege has waived the privilege.
Additionally, the University does not permit questions that are unduly repetitive or that are presented in a rude, hostile, or abusive manner. If an otherwise permissible question is presented in an impermissible manner, the hearing chairperson may instruct the advisor to rephrase the question. Advisors who do not abide by these guidelines may be removed from any meeting and excluded from serving in an advisor role, to be replaced with another advisor of choice or, if needed, an advisor assigned by the University.
Concluding the Hearing
Before concluding the hearing, each complainant will be provided no more than 10 minutes to present an optional closing statement. Thereafter, each respondent will have the same opportunity. Following the respondent’s closing statement, the hearing adjourns. The hearing administrator(s) deliberate in private following the conclusion of the hearing before making a finding as to responsibility for each alleged policy violation.
Following the conclusion of the hearing and after any sanctions are determined (if applicable), the hearing chairperson issues a written determination, which is communicated by the EDEC to both parties simultaneously and in writing (and presumptively received upon delivery). The written determination:
- Identifies the allegations that may constitute Title IX sexual harassment and any other prohibited conduct addressed in the hearing, if applicable;
- Describes the procedural steps taken from the receipt of the formal complaint through the determination, including any notifications to the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, and hearings held;
- Presents findings of fact supporting the determination;
- Presents conclusions regarding the application of the Comprehensive Policy to the facts;
- Provides a statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility, any sanctions the University imposes on the respondent, and whether remedies will be provided to the complainant; and
- Describes the University’s procedures and permissible bases for the complainant and respondent to appeal.