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Westminster College Grievance Process

 6. Grievance Procedures for Formal Complaints of Sexual Harassment


For purposes of addressing formal complaints of sexual harassment, the College will comply with the grievance procedures of this section. The College’s grievance procedures treat complainants and respondents equitably by providing remedies to a complainant where a determination of responsibility for sexual harassment has been made against the respondent, and by following a grievance process that complies with this section before the imposition of any disciplinary sanctions or other actions that are not supportive measures against a respondent.59 Remedies are designed to restore or preserve equal access to the College’s education program or activity.60

  1. Basic Requirements for Grievance Procedures

  2. Grievance proceedings shall be conducted by officials who receive annual training on the issues related to domestic violence, dating violence, sexual assault, and stalking and how to conduct an investigation and hearing process that protects the safety of victims and promotes accountability. 61 Proceedings shall provide a prompt, fair, and impartial investigation and resolution.62

    The College’s grievance procedures shall use an objective evaluation of all relevant evidence, including both inculpatory and exculpatory evidence.63 During the grievance process, credibility determinations may not be based on a person’s status as a complainant, respondent, or witness.64

    Any individual designated by the College who is to be involved in the College’s grievance procedures, such as a coordinator, investigator, or decision-maker, shall not have a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent.65 It is presumed that the respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process66

    The College’s grievance procedure includes reasonably prompt time frames for the conclusion of the grievance process. This includes reasonably prompt timeframes for filing and resolving appeals and informal resolution processes, and a process that allows for the temporary delay of the grievance process or the limited extension of time frames for good cause with written notice to the complainant and the respondent for the delay or extension and the reasons for the action.67 “Good cause” may include consideration such as the absence of a party, a party’s advisor, or a witness, concurrent law enforcement activity, or the need for language assistance or accommodation of disabilities.68

    The College’s grievance procedures describe the range of possible sanctions and remedies that the College may implement following any determination of responsibility.69 The grievance procedures also describe the standard of evidence to be used to determine responsibility. This standard of evidence is applied for formal complaints against students as well as formal complaints against employees, including faculty.70 It shall be applied to all formal complaints of sexual harassment.71

  3. Supportive Measures

  4. The College must provide written notification to students and employees about existing counseling, health, mental health, victim advocacy, legal assistance, and other services available for victims both on-campus and in the community.72 The College provides such written notification in Appendix “A”. There are a range of supportive measures available to complainants and respondents. 73 Such supportive measures may include but are not limited to, counseling, 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 work or housing locations, leaves of absence, increased security and monitoring of certain areas of the campus, and other similar measures.

  5. Notice of Allegations
  6. Upon receipt of a formal complaint from a student or employee or upon the initiation of a formal complaint by the Title IX Coordinator on behalf of the College, the College must provide the following written notice to the parties who are known: notice of the College's grievance procedures, including any information resolution process, notice of the allegations of sexual harassment potentially constituting sexual harassment, including sufficient details known at the time and with sufficient time to prepare a response before any initial interview. Sufficient details include the identities of the parties involved in the incident, if known, the conduct allegedly constituting sexual harassment, and the date and location of the alleged incident, if known.74

    The College’s written notice must also include 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.75

    The written notice must inform the parties that they may have an advisor of their choice, who may be, but is not required to be, an attorney and may inspect and review evidence. In accordance with Item 24 of the Violations Section of the College’s Code of Conduct, the College prohibits the parties from making false statements or knowingly submitting false information during the grievance process, or any College-related matter.76

    If, in the course of investigation, the College decides to investigate allegations about the complainant or respondent that are not included in the notice requirements above, then the College will provide notice of the additional allegations to the parties whose identities are known.77

  7. Investigations of a Formal Complaint

  8. The College must investigate the allegations in a formal complaint.78 If the conduct alleged in the formal complaint would not constitute sexual harassment even if proved, did not occur in the College’s education program or activity, or did not occur against a person in the United States, then the College must dismiss the formal complaint with regard to that conduct for purposes of sexual harassment under title IX.79 However, such a dismissal does not preclude action under another provision of the College’s code of conduct.80

    As soon after the initiation of the investigation as possible, the Title IX Coordinator or the designated investigator shall notify all College employees or students who are believed to have documentary, electronic, or tangible evidence to preserve such evidence for the investigation.81 The College must also notify the complainant82 of: (a) the importance of preserving evidence as may be necessary to the proof of criminal domestic violence, dating violence, sexual assault, or stalking, or in obtaining a protection order, (b) the agencies to whom the alleged offense should be reported, (c) options regarding law enforcement and campus authorities, including notification of the complainant’s83 option to (i) notify proper law enforcement authorities, including on-campus and local police, (ii) be assisted by campus authorities in notifying law enforcement authorities if the complainant84 so chooses, and (iii) decline to notify such authorities.85

    When investigating a formal complaint, the College must ensure that the burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility rests on the College and not on the parties, provided that the College cannot access, 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 that capacity, and which are made and maintained in connection with the provision of treatment to the party, unless the College obtains that party’s voluntary, written consent to do.86

    The College must provide both parties an equal opportunity to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint, including the evidence upon which the College 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 conclusion of the investigation.87

    The College must also provide an equal opportunity for the parties to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence.88 In addition, the College may not restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence89

    The College must provide the parties with the same opportunities to have others present during any grievance proceeding, including the opportunity to be accompanied to any related meeting or proceeding by the advisor of their choice.90 The College may not limit the choice of advisor or presence of advisor for either the complainant or respondent in any meeting or grievance proceeding.91 Advisors are not required to be attorneys.92 Additionally, the College may not limit the choice or presence of an advisor for either the complainant or respondent in any meeting or grievance proceeding.93 However, the College may establish restrictions regarding the extent to which the advisor may participate in the proceedings, as long as the restrictions apply equally to both parties.94

    The College must also provide to the party whose participation is invited or expected written notice of the date, time, location, participants, and purpose of all hearings, investigative interview, or other meetings with a party, with sufficient time for the party to prepare to participate.95

  9. Investigative Report

  10. The College is required to create an investigative report that fairly summarizes relevant evidence.96 Prior to completion of an investigative report, the College must send each party and the party's advisor, if any, the evidence subject to inspection and review in an electronic format, or a hard copy, and the parties must have at least 10 days to submit a written response, which the investigator will consider prior to completion of the investigative report.97 The College must also provide a copy of the investigative report at least 10 days prior to a hearing or other time of determination regarding responsibility, send to each party and the party’s advisor, if any, the investigative report in an electronic format or a hard copy, for their review and written response.98

  11. Live Hearing

  12. The College is required under Title IX to have a live hearing as part of the College’s grievance procedures.99

    During a live hearing, the College and the College's decision-maker(s) must permit each party’s advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility.100 Such cross-examination at the live hearing must be conducted directly, orally, and in real time by the parties' advisor of choice and never by a party personally, notwithstanding the discretion of the College to otherwise restrict the extent to which advisors may participate in the proceedings.101 If a party does not have an advisor present at the live hearing, the College will provide without fee or charge to that party, an advisor of the College’s choice, who may be, but is not required to be, an attorney, to conduct cross examination on behalf of that party.102

    The College must also make all evidence subject to the parties' inspection and review available at any hearing to give each party equal opportunity to refer to such evidence during the hearing, including for purposes of cross-examinations.103

    Only relevant cross cross-examination and other questions may be asked of a party or witness. Before a complainant, respondent, or witness answers a cross-examination or other question, the decision-maker(s) must first determine whether the question is relevant and explain any decision to exclude a question as not relevant.104 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.105

    If a party or witness does not submit to cross-examination at the live hearing, the decision-maker(s) must not rely on any statement of that party or witness in reaching a determination regarding responsibility; provided, however, that the decision-maker(s) cannot draw an inference about the determination 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.106

    Live hearings may be conducted with all parties physically present in the same geographic location or, at the College’s discretion, any or all parties, witnesses, and other participants may appear at the live hearing virtually, with technology enabling participants simultaneously to see and hear each other.107 Colleges must create an audio or audiovisual recording, or transcript, of any live hearing and make it available to the parties for inspection and review. 108 At the request of either party, the College must provide for the live hearing to occur with the parties located in separate rooms with technology enabling the decision-maker(s) and parties to simultaneously see and hear the party or the witness answering questions.109

59 34 CFR §106.45(b)(1)(i)
60 34 CFR §106.45(b)(1)(i)
61 34 CFR §668.46(k)(2)(ii)
62 34 CFR §668.46(k)(2)(i)
63 34 CFR §106.45(b)(1)(ii).
64 34 CFR §106.45(b)(1)(ii).
65 34 CFR §106.45(b)(1)(iii).
66 34 CFR §106.45(b)(1)(iv).
67 34 CFR §106.45(b)(1)(v).
68 34 CFR §106.45(b)(1)(v).
69 34 CFR §106.45(b)(1)(vi).
70 34 CFR §106.45(b)(1)(vii).
71 34 CFR §106.45(b)(1)(vii).
72 34 CFR §668.46 (b)(11)(iv)
73 34 CFR §106.45(b)(1)(ix)
74 34 CFR §106.45(b)(2)(i)(A)-(B)
75 34 CFR §106.45(b)(2)(i)(B).
76 34 CFR §106.45(b)(2)(i)(B)
77 34 CFR §106.45(b)(2)(ii)
78 34 CFR §106.45(b)(3)(i).
79 34 CFR §106.45(b)(3)(i).
80 34 CFR §106.45(b)(3)(i)
81 34 CFR §668.46((b)11)(ii)(A)
82 See Note 46 above.
83 See Note 46 above.
84 See Note 46 above.
85 34 CFR §668.46((b)11)(ii)(A)
86 34 CFR §106.45(b)(5)(i).
87 34 CFR §106.45(b)(5)(vi)
88 34 CFR §106.45(b)(5)(ii)
89 34 CFR §106.45(b)(5)(iii)
90 34 CFR §106.45(b)(5)(iv)
91 34 CFR §106.45(b)(5)(iv)
92 34 CFR §105.45(b)(5)(iv)
93 34 CFR §106.45(b)(5)(iv)
94 34 CFR §106.45(b)(5)(iv)
95 34 CFR §106.45(b)(5)(v).
96 34 CFR §106.45(b)(5)(vii).
97 34 CFR §106.45(b)(5)(vi).
98 34 CFR §106.45(b)(5)(vii).
99 34 CFR §106.45(b)(6)(i).
100 34 CFR §106.45(b)(6)(i).
101 34 CFR §106.45(b)(6)(i).
102 34 CFR §106.45(b)(6)(i).
103 34 CFR §106.45(b)(5)(vi).
104 34 CFR §106.45(b)(6)(i).
105 34 CFR §106.45(b)(6)(i).
106 34 CFR §106.45(b)(6)(i).
107 34 CFR §106.45(b)(6)(i)
108 34 CFR §106.45(b)(6)(i).
109 34 CFR §106.45(b)(6)(i).

 7. Determination Regarding Responsibility


For the purpose of making a determination regarding responsibility, the College must appoint decision-maker(s) who cannot be the same person(s) as the Title IX Coordinator(s) or the investigator(s) for the College's grievance procedures.110 When making a determination regarding responsibility, the College must apply the standard of evidence as defined above.111

The College's decision-maker(s) must issue a written determination regarding responsibility.112 The College must provide the written determination to the parties simultaneously.113 The College's written determination must include:

  1. identification of the allegations potentially constituting sexual harassment;
  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 evidence, and hearings held;
  3. findings of fact supporting the determination;
  4. conclusions regarding the application of the College’s code of conduct to the facts;
  5. a statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility, any disciplinary sanctions the College imposes on the respondent, and whether remedies designed to restore or preserve equal access to the College’s education program or activity will be provided by the College to the complainant; and
  6. the College’s procedures and permissible bases for the complainant and respondent to appeal.114>

The College must list all of the possible sanctions or supportive measures that the College may impose following the results of any College disciplinary proceeding for an allegation of dating violence, domestic violence, sexual assault, or stalking in its annual security report, all of which are listed in Appendix “B”.115 In cases of alleged violence, sexual harassment, dating violence, sexual assault, or stalking, both the complainant and the respondent shall be simultaneously informed in writing of the outcome of any institutional disciplinary proceeding, the institution's procedures for the accused and the complainant 116 to appeal the results of the institutional disciplinary proceeding, any change to the results that occurs prior to the time that such results become final, and when such results become final.117

The determination regarding responsibility becomes final either on the date that the College provides the parties with the written determination of the result of the appeal, if an appeal is filed, or if an appeal is not filed, the date on which an appeal would no longer be considered timely.118

The Title IX Coordinator is responsible for effective implementation of any remedies.119

110 34 CFR §106.45(b)(7)(i).
111 34 CFR §106.45(b)(7)(i).
112 34 CFR §106.45(b)(7)(i).
113 34 CFR §106.45(b)(7)(iii).
114 34 CFR §106.45(b)(7)(ii)(A)-(F).
115 34 CFR §668.46(k)(1)(k)(iii)
116 See Note 46 above.
117 20 U.S.C. § 1092(f)(8)(B)(iv)(III).
118 34 CFR §106.45(b)(7)(iii).
119 34 CFR §106.45(b)(7)(iv).

 8. Appeals


The College must offer both parties an appeal from a determination regarding responsibility, and from a College’s dismissal of a formal complaint or any allegations therein, on the following bases: (a) procedural irregularity that affected the outcome of the matter; (b) new evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made, that could affect the outcome of the matter; and/or (c) the Title IX Coordinator, investigator(s), or decision-maker(s) had a conflict of interest or bias for or against complainants or respondents generally or the individual complainant or respondent that affected the outcome of the matter.120

As to all appeals, the College must (a) notify the other party in writing when an appeal is filed and implement appeal procedures equally for both parties; (b) ensure that the decision-maker(s) for the appeal is not the same person as the decision-maker(s) that reached the determination regarding responsibility or dismissal, the investigator(s), or the Title IX Coordinator; (c) ensure that the decision-maker(s) for the appeal complies with the standards set forth in this policy and Title IX; (d) give both parties a reasonable, equal opportunity to submit a written statement in support of, or challenging, the outcome; (e) issue a written decision describing the result of the appeal and the rationale for the result; and (f) provide the written decision simultaneously to both parties. 121

120 34 CFR §106.45(b)(8)(i),
121 34 CFR §106.45(b)(8)(iii).

 9. Informal Resolution Process


A College may not require as a condition of enrollment or continuing enrollment, or employment or continuing employment, or enjoyment of any other right, waiver of the right to an investigation and adjudication of formal complaints of sexual harassment consistent with this section.122 Similarly, a College may not require the parties to participate in an informal resolution process under this section and may not offer an informal resolution process unless a formal complaint is filed. 123 However, at any time prior to reaching a determination regarding responsibility the College may facilitate an informal resolution process, such as mediation, that does not involve a full investigation and adjudication, provided that the College (a) provides to the parties a written notice disclosing: (i) the allegations, (ii) the requirements of the informal resolution process including the circumstances under which it precludes the parties from resuming a formal complaint arising from the same allegations, provided, however, that 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, and (iii) any consequences resulting from participating in the informal resolution process, including the records that will be maintained or could be shared; (b) obtains the parties’ voluntary, written consent to the informal resolution process; and (c) does not offer or facilitate an informal resolution process to resolve allegations that an employee sexually harassed a student.124

123 34 CFR §106.45(b)(9).
124 34 CFR §106.45(b)(9)(i)-(iii).

 10. Record Keeping


A College must maintain for a period of seven years records of each sexual harassment investigation including any determination regarding responsibility and any audio or audiovisual recording or transcript, any disciplinary sanctions imposed on the respondent, and any remedies provided to the complainant designed to restore or preserve equal access to the College’s education program or activity; any appeal and the result therefrom; any informal resolution and the result therefrom; and all materials used to train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process.125 Materials used to train Title IX Coordinators, investigators, decision-makers, and any persons who facilitates an informal resolution process will be publicly available on the College’s website.126

The College shall create, and maintain for a period of seven years, records of any actions, including any supportive measures, taken in response to a report or formal complaint of sexual harassment.127 In each instance, the College shall document the basis for its conclusion that its response was not deliberately indifferent, and document that it has taken measures designed to restore or preserve equal access to the College’s education program or activity.128 If the College does not provide a complainant with supportive measures, then the College must document the reasons why such a response was not clearly unreasonable in light of the known circumstances.129 The documentation of certain bases or measures does not limit the College in the future from providing additional explanations or detailing additional measures taken.130

125 34 CFR §106.45(b)(10)(i)(A)-(D).
126 34 CFR §106.45(b)(10)(i)(A)-(D)
127 34 CFR §106.45(b)(10)(ii).
128 34 CFR §106.45(b)(10)(ii).
129 34 CFR §106.45(b)(10)(ii).
130 34 CFR §106.45(b)(10)(ii).

 11. Prevention and Education


The College shall provide education programs to promote the awareness of rape, acquaintance rape, domestic violence, sexual assault, sexual harassment, and stalking, which shall include:

  1. Primary prevention and awareness programs for all incoming students and new employees, which shall include:
    1. A statement that the College prohibits the offenses of domestic violence, dating violence, sexual assault, sexual harassment, and stalking;
    2. The definition of domestic violence, dating violence, sexual assault and stalking in the state of Pennsylvania;
    3. The definition of consent, in reference to sexual activity, in the state of Pennsylvania;
    4. Safe and positive options for bystander intervention that may be carried out by an individual to prevent harm or intervene when there is a risk of domestic violence, sexual assault, sexual harassment, or stalking against a person other than such individual;
    5. Information on risk reduction to recognize warning signs of abusive behavior and how to avoid potential attacks.
    6. Information described in 20 U.S.C. 1092(f)(8)(B)(ii) though (vii); and
  2. Ongoing prevention and awareness campaigns for students and faculty including the information described in clauses (a) through (f) of subparagraph 1 above.131

131 34 CFR §668.46(j)

 12. Prevention and Education


The College ensures that Title IX coordinators, investigators, and decision-makers, and any person who facilitates an informal resolution process, receive training on the definition of sexual harassment, the scope of the College’s education program or activity, how to conduct an investigation and grievance process including hearings, appeals, and informal resolution processes, as applicable, and how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias.132 Coordinator(s) should be knowledgeable about other applicable Federal and State laws, regulations, and policies that overlap with Title IX.133 Additionally, the College ensures that decision-makers receive training on any technology to be used at a live hearing and on issues of relevance of questions and evidence, including when questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant.134 Furthermore, the College ensures that investigators receive training on issues of relevance to create an investigative report that fairly summarizes relevant evidence.135

The College uses training materials that do not rely on sex stereotypes to train coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process.136 The College also uses materials that promote impartial investigations and adjudications of formal complaints of sexual harassment to train coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process.137

 13. Retaliation Prohibited


The College or any other person may not intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX or this part, or because the 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.138 Intimidation, threats, coercion, or discrimination, including charges 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 sexual harassment, for the purpose of interfering with any right or privilege secured by Title IX or this part, constitutes retaliation.139 Complaints alleging retaliation may be filed according to the grievance procedures for sex discrimination.140 The exercise of rights protected under the First Amendment does not constitute retaliation.141 Charging an individual with a code of conduct violation for making a materially false statement in bad faith in the course of a grievance proceeding under this part does not constitute retaliation.142 However, a determination regarding responsibility alone will not be sufficient to conclude that any party made a materially false statement in bad faith.143

138 34 CFR §106.71(a).
139 34 CFR §106.71(a).
140 34 CFR §106.71(a)
141 34 CFR §106.71(b)(1)
142 34 CFR §106.71(b)(2).
143 34 CFR §106.71(b)(2)

 Possible Sanctions or Support Measures


The possible sanctions that College may impose for students include warning, required counseling, probation, suspension, expulsion, and organizational sanctions (deactivation, loss of recognition, loss of some or all privileges for a specified period of time).

The possible sanctions that College may impose for employees include warning (verbal or written), performance improvement/management process, required counseling, required training or education, probation, loss of annual pay increase, loss of oversight or supervisory responsibility, demotion, suspension with pay, suspension without pay, and termination.

The possible supportive measures that College may impose include referral to counseling, medical, and/or other health services, referral to the Employee Assistance Program, student financial aid counseling, education to the community or community subgroup, altering campus housing situation, altering work arrangements for employees or student-employees, safety planning, provide campus escorts, providing transportation accommodations, implementing contact limitations (no contact orders) between the parties, academic support, and offering adjustments to academic deadlines, course schedules, etc.