Conduct that Falls Under Title IX of the Education Amendments of 1972 - All Members of the University Community

The following is a description of the rights and options available in all formal investigations falling under Title IX of the Education Amendments of 1972.

a. Advisor of Choice

In addition to the Administrative Support Person assigned to students when particular reports of sexual and related misconduct are received (see Section VII(A), “Assignment of an Administrative Support Person to Students”), the University will provide the parties equal access to advisors and support persons. Any restrictions on advisor participation will be applied equally.

The University has a long-standing practice of requiring students to participate in the process directly and not through an advocate or support person. Students participating as a complainant or respondent may be accompanied by an Advisor of Choice to any meeting or hearing to which they are required or are eligible to attend. Except where explicitly stated in the Policy and Procedures, Advisors of Choice shall not participate directly in the process.

The University will not intentionally schedule meetings or hearings on dates where the Advisors of Choice for the parties are not available, provided that the Advisors of Choice act reasonably in providing available dates and work collegially to find dates and times that meet all schedules.

The University’s obligations to investigate and adjudicate in a prompt time frame under Title IX and other University policies apply to matters governed under this policy, and Fordham University cannot agree to extensive delays solely to accommodate the schedule of an Advisor of Choice. The determination of what is reasonable shall be made by the Director of Gender Equity/Title IX Coordinator or their designee. Fordham University will not be obligated to reschedule a meeting or hearing under this process for more than five (5) business days due to the unavailability of an Advisor of Choice, and may offer the party the opportunity to obtain a different Advisor of Choice or utilize one provided by the University.

b. Time Frame for the Title IX Grievance Process

While the time to resolve a reported incident will vary from matter to matter depending on the specific facts and circumstances, it is expected that in most instances Formal Complaints will be resolved within 120 business days, but the time frame may be extended for good reason. Good reason includes, but is not limited to: the absence of a party, a party’s advisor, or a witness; the complexity of the matter; concurrent law enforcement activity; or the need for language assistance or accommodation of disabilities. The procedure for requesting extensions is described below.

c. Filing a Formal Complaint

To file a Formal Complaint, a complainant must provide the Director of Gender Equity/Title IX Coordinator, the Department of Public Safety, or their designee a written, signed complaint describing the facts alleged. Complainants are only able to file a Formal Complaint under the Policy and Procedures if they are currently participating in, or are attempting to participate in, an education program or activity at the University. This includes being in the role of employee. For complainants who do not meet this criteria, the University will apply those portions of the Policy and Procedures that are applicable (see Section VII “Institutional Analysis of Reports”).

d. Requesting the University Not Investigate

If a community member does not wish to file a Formal Complaint, the Director of Gender Equity/Title IX Coordinator, Vice President for Student Affairs, or their designee may determine that a Formal Complaint is necessary. In these instances, the University will serve as the complainant in the matter. The University will inform the community member of this decision in writing, and that person need not participate in the process further. They will, however, receive all notices issued under this Policy and Procedures.

Community members have the right to make a report to the Department of Public Safety, local law enforcement, and/or state police, or choose not to report; to report the incident to the University; to be protected by the University from retaliation for reporting an incident; and to receive assistance and resources from the University.

A complainant who files a Formal Complaint may elect, at any time, to address the matter through the University’s Informal Resolution Process (see Section VIII(B), “Informal Resolution Process”).

e. Notice of Allegations

The Director of Gender Equity/Title IX Coordinator, the Department of Public Safety, or their designee will draft and provide the Notice of Allegations to the parties. After the University receives the Formal Complaint, the Notice of Allegations will be provided to the respondent as soon as is practicable.

If in the course of an investigation the University decides to investigate additional allegations involving the respondent, the University will promptly notify the parties of the additional allegations. The parties will be provided sufficient time to review the additional allegations to prepare a response to those allegations.

The University will provide a party written notice of the date, time, location, participants, and purpose of any meeting, and will provide sufficient time for a party to prepare for their meeting.

f. Delays

For good cause, each party may request a delay in the Formal Resolution Process. The requestor must provide a reasonable basis for the request and the delay must not overly inconvenience other parties. The request will be granted or denied in the sole judgment of the Director of Gender Equity/Title IX Coordinator, Public Safety, Dean of Students, Vice President for Student Affairs, Human Resources, or their designee.

g. Delay or Denial of Degree Award for Students

During the period disciplinary charges are pending against a student, the University may deny and/or delay issuance of a degree. Furthermore, the University may refuse to issue a degree to a student who is serving a suspension or has been permanently dismissed from the University.

h. Investigation

After issuing the Formal Complaint and Notice of Allegations, the Department of Public Safety, the Director of Gender Equity/Title IX Coordinator, or their designee will conduct a formal investigation into the reported conduct.

The University, and not the parties, is responsible for gathering information (i.e., the University has the responsibility to show a violation of the Policy and Procedures has occurred). Either party may decide not to share their experience and may decide not to participate in an investigation or hearing.

The University cannot access, consider, or disclose medical records without a waiver from the party (or parent, if applicable) to whom the records belong or of whom the records include information. The University will provide an equal opportunity for the parties to present witnesses and other information.

1. Multi-Party Matters

The University may consolidate Formal Complaints alleging prohibited conduct under Title IX of the Education Amendments of 1972 when those Formal Complaints arise out of the same facts or circumstances.

2. Inspection and Review of Investigative Record

Prior to the completion of the investigation, the parties will have an equal opportunity to inspect and review the information obtained during the investigation. The purpose of this inspection and review process is to give each party an equal opportunity to meaningfully respond to the information gathered prior to the conclusion of the investigation.

Any information that is directly related to the allegations raised in the Formal Complaint and Notice of Allegations will be available for inspection and review by the parties. The University will send this information to each party and each party’s Advisor of Choice, if any, through an electronic format.

The parties will have ten (10) business days to inspect and review the Investigative Record and submit a written response by email to the investigator. The investigator will consider the parties’ written responses before completing the Investigative Report. Parties may request a reasonable extension if needed. If the parties wish to address whether information in the record is directly related to the allegations raised, that response should be submitted in a separate document.

The University will provide copies of the other party’s written response addressing whether information in the Investigative Record is directly related to the allegations raised in the Formal Complaint. The University will also provide copies of the other party’s written response addressing additional information directly related to the allegations in the Formal Complaint. Each party will have the option to submit a 250-word response to any written response submitted by the other party as a part of a review of the Investigative Record. The parties will have five (5) business days to submit the 250-word response.

Information obtained during the course of the investigation that is determined, in the reasoned judgment of the investigator, not to be directly related to the allegations in the Formal Complaint will not be disclosed, or may be appropriately redacted before the parties’ inspection to avoid disclosure of personally identifiable information. Any information obtained in the investigation that is kept from disclosure or appropriately redacted will be retained in the file. Any information deemed properly subject to inspection and review will be available at any hearing, including for purposes of cross-examination.

The parties' advisors must sign an agreement not to disseminate any of the information subject to inspection and review or use such information for any purpose unrelated to the Title IX grievance. Once signed, this Agreement may not be withdrawn. Given the sensitive nature of this matter, the University expects that the parties will keep the information and testimony obtained during the hearing confidential to the greatest extent possible.

3. Investigative Report

The investigator will create an Investigative Report fairly summarizing relevant information. The Investigative Report is not intended to catalog all information obtained by the investigator, but only to provide a fair summary of the information directly related to the allegations.

The investigator may redact irrelevant information from the Investigative Record when that information is contained in materials that are otherwise relevant.

i. Hearings

The University will not issue a disciplinary sanction arising from an allegation of prohibited sexual and related misconduct under this section without holding a live hearing unless the matter is otherwise resolved through the Informal Resolution Process.

The live hearing may be conducted with all parties physically present in the same geographic location. At the request of either party, the University will provide for the live hearing to occur with the parties located in separate rooms with technology enabling the decision-maker and parties to simultaneously see and hear the other party or the witness answering questions. In addition, at the University’s discretion, any or all parties, witnesses, and other participants may appear at the live hearing virtually through an appropriate video conferencing platform. This technology will enable participants to see and hear each other simultaneously. At its discretion, the University may reschedule a hearing based on technological issues.

All proceedings will be recorded by transcript or through an audio or audiovisual recording. That transcript or recording will be made available to the parties for inspection and review.

Prior to obtaining access to any information, the advisors must sign an agreement not to disseminate any of the testimony heard or information obtained in the hearing or use such testimony or information for any purpose unrelated to the Title IX grievance without prior, written approval from the University. Once signed, this Agreement may not be withdrawn. Given the sensitive nature of this matter, the University expects that the parties will keep the obtained information confidential to the greatest extent possible.

1. Multiple Hearing Sessions

The University may determine that multiple sessions are needed to complete a hearing. If so, the University will notify all participants and endeavor to reasonably accommodate all participants’ schedules and complete the hearing as promptly as practicable.

2. Participants in the Live Hearing

Live hearings are not public, and the only individuals permitted to participate in the hearing are the following:

Complainants and Respondents (the Parties)

• The parties cannot waive the right to a live hearing.
• The University may still proceed with the live hearing in the absence of a party, and may reach a determination of responsibility in their absence.
• The University will not threaten, coerce, intimidate or discriminate against the party in an attempt to secure the party’s participation.
• Unless prohibited by applicable law, the decision-maker can rely on prior statements made by a party when reaching a determination regarding responsibility even if a party does not submit to cross-examination.
• The decision-maker cannot draw an inference about responsibility based solely on a party’s absence from the live hearing or refusal to answer cross-examination or other questions.
• The parties shall be subject to the University’s Rules of Decorum.

Advisors of Choice

• The parties have the right to select an advisor of their choice.
• The Advisor of Choice may accompany the parties to any meeting or hearing they are permitted to attend, but may not speak for the party or otherwise communicate on behalf of the party except for the purpose of cross-examination.
• In addition to selecting an Advisor of Choice to conduct cross-examination, the parties may assign an advisor who may accompany the parties to any meeting or hearing they are permitted to attend, but may not speak for the party. This may include an Administrative Support Person (see Section VII(A), “Assignment of an Administrative Support Person to Students”).
• The parties are not permitted to conduct cross-examination; it must be conducted by their Advisor of Choice. For this reason, if a party does not select an Advisor of Choice, the University will select an Advisor of Choice to serve in this role for the limited purpose of conducting the cross-examination at no fee or charge to the party.
• If a party does not attend the live hearing, the party’s Advisor of Choice may appear and conduct cross-examination on their behalf.
• If neither a party nor their Advisor of Choice appears at the hearing, the University will provide an Advisor of Choice to appear on behalf of the non-appearing party.
• Advisors of Choice are subject to the University’s Rules of Decorum, and may be removed upon violation of those Rules.

Witnesses

• Witnesses cannot be compelled to participate in the live hearing, and they have the right not to be subjected to retaliation for non-participation.
• Unless prohibited by applicable law, if a witness does not submit to cross-examination, the decision-maker can rely on any statements made by that witness in reaching a determination regarding responsibility, including any statement relayed by the absent witness to a party or witness who testifies at the live hearing.
• Witnesses shall be subject to the University’s Rules of Decorum.

The Decision-Maker

• The outcome of the hearing will be decided by a single decision-maker.
• The parties will have an opportunity to raise any objections regarding a decision-maker’s actual or perceived conflicts of interest or bias at the commencement of the live hearing.
• The decision-maker is permitted to have hearing facilitators present. Hearing facilitators may be University employees who are present during the hearing to assist with the orderly management of the hearing process.

3. Hearing Procedures

For all live hearings conducted under this section, the procedure will be as follows:

• The decision-maker, or designee, will open and establish rules and expectations for the hearing;
• The parties will each be given the opportunity to provide opening statements read or submitted by the party themselves;
• The decision-maker will be given the opportunity to ask initial questions of the parties and witnesses;
• The Complainant’s Advisor of Choice will be given an opportunity to ask questions of the Complainant after the decision-maker has conducted their initial questioning of the Complainant;
• The Respondent’s Advisor of Choice will be given an opportunity to conduct live crossexamination of the Complainant after the Complainant has had an opportunity to be questioned by their own Advisor of Choice;
• The Respondent’s Advisor of Choice will be given an opportunity to ask questions of the Respondent after the decision-maker has conducted their initial questioning of the Respondent;
• The Complainant’s Advisor of Choice will be given an opportunity to conduct live crossexamination of the Respondent after the Respondent has had an opportunity to be questioned by their own Advisor of Choice;
• The parties will be given the opportunity for live cross-examination of a witness after the decision-maker conducts its initial questioning of the witness;
• During any cross-examination, the decision-maker will have the authority to pause the cross-examination at any time for the purposes of asking the decision-maker’s own follow-up questions or taking any time necessary in order to enforce the established Rules of Decorum;
• Should a party or their Advisor of Choice choose not to cross-examine a party or witness, the party will affirmatively waive cross-examination through a written or oral statement to the decision-maker. A party’s waiver of cross-examination does not eliminate the ability of the decision-maker to use statements made by the party;
• At the conclusion of cross-examination, the decision-maker will have an opportunity to ask additional questions of that party or witness;
• The decision-maker reserves the right to prohibit further questioning of a party or witness after the parties have been given an opportunity to cross-examine that party or witness, or after the decision-maker has asked their additional questions following the conclusion of cross-examination.

4. Live Cross-Examination Procedure

Consistent with the Rules of Decorum, each party’s Advisor of Choice will conduct live crossexamination of the other party, or parties, and any witnesses. During this live cross-examination, the Advisor of Choice will ask the other party, or parties, and any witnesses relevant questions and follow-up questions directly, orally, and in real time, including those challenging credibility.

5. Relevant Information and Questions

Before any cross-examination question is answered, the decision-maker will determine if the question is relevant. Relevant information and questions refer to any questions and information that tend to make an allegation more or less likely to be true.

Relevant information and questions do not include the following types of information and questions, which are deemed “irrelevant” at all stages of the process outlined in this portion of the Policy and Procedures:

• Information and questions about the complainant’s sexual predisposition or prior sexual behavior unless:
  • They are offered to establish that someone other than the respondent committed the conduct alleged by the complainant, or
  • They concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to establish consent.
• Information and questions that constitute, or seek disclosure of, information protected under a legally-recognized privilege.
• Any party’s medical, psychological, and similar records unless the party has given voluntary, written consent.
• Cross-examination questions that are duplicative of questions already asked may be deemed irrelevant.

6. Review of Recording

The recording of the hearing will be available for review by the parties within 10 business days, unless there are any extenuating circumstances. The audio or visual recording of the hearing will not be distributed to parties or their Advisor of Choice.

j. Determination Regarding Responsibility

1. Standard of Proof

The University uses the preponderance of the evidence standard for investigations and determinations regarding responsibility. This means that the investigation and hearing determines whether it is more likely than not that a violation of the Policy and Procedures occurred.

2. General Considerations for Evaluating Information

The University allows parties to call relevant “expert witnesses” for direct and crossexamination.

When appropriate, the University will allow parties to call relevant character witnesses to testify.

The University will admit and allow testimony regarding relevant polygraph tests (“lie detector tests”) and other procedures that are outside of standard use in academic and non-academic conduct processes.

3. Outcome Letters - Determinations Regarding Responsibility

The outcome letter will be issued simultaneously to all parties through their University email account or through other reasonable means. The Determination will include:

1. Identification of the allegations potentially constituting prohibited conduct under Title IX of the Education Amendments of 1972;
2. 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 information, and hearings held;
3. Findings of fact supporting the determination;
4. Conclusions regarding which section of the Policy and Procedures, if any, the respondent has or has not violated;
5. For each allegation:
   • A statement of, and rationale for, a determination regarding responsibility;
   • A statement of, and rationale for, any disciplinary sanctions the recipient imposes on the respondent; and
   • A statement of, and rationale for, whether remedies designed to restore or preserve equal access to the recipient’s education program or activity will be provided by the recipient to the complainant; and
6. The recipient’s procedures and the permitted reasons for the complainant and respondent to appeal (described below in Section IX, “Appeal of Dismissals or Determinations”).

4. Timeline of Determination Regarding Responsibility

If there are no extenuating circumstances, the determination regarding responsibility will be issued by the University in a reasonably prompt time frame after the completion of the hearing.

5. Finality

The determination regarding responsibility becomes final either on the date that the University provides the parties with the written determination of the result of the appeal, if an appeal is filed consistent with the procedures and timeline outlined in Section IX, “Appeal of Dismissals or Determinations,” below, or, if an appeal is not filed, the date on which the opportunity to appeal expires.