Procedures for the Resolution of Title IX Sex Discrimination Complaints (non-harassment) Against Students

Procedures for the Resolution of Title IX Sex Discrimination Complaints (non-harassment) Against Students

Abstract:
These Procedures will be used to investigate and resolve all complaints of sex discrimination brought against UAB students (undergraduate, graduate, full-time, and part-time).
Effective Date:
08/14/2020
Contacts:
None Assigned
Administrative Category:
Applies To:
Faculty, Staff, Students
Material Original Source:

University of Alabama at Birmingham

PROCEDURES FOR THE RESOLUTION OF TITLE IX SEX DISCRIMINATION COMPLAINTS (non-harassment) AGAINST STUDENTS 

August 14, 2020


Related Policies
UAB Enterprise Code of Conduct
Equal Opportunity and Discrminatory Harassment Policy
Duty to Report and Non-Retaliation Policy
Student Conduct Code
Policy Concerning Consensual Romantic Relationships
Policy on the Protection of Children on UAB Premises and in UAB-Sponsored Activities
Violence Prevention and Response Policy
 
Related Procedures
Procedures for the Resolution of Sexual Harassment Complaints

Table of Contents
I. Overview and Applicability
II. Rights of Complainants and Respondents
III. Supportive Measures
IV. Investigative Procedures
V. Adjudication
VI. Appeals Process
VII. Other Relevant Information


I. Overview and Applicability

The University of Alabama at Birmingham (“UAB” or “the University”) has developed these Procedures for the Resolution of Title IX Sex Discrimination (non-harassment) Complaints Against Students (“the Procedures”) pursuant to and in compliance with Title IX of the Education Amendments of 1972 and its implementing regulations (collectively referred to as “Title IX”). These Procedures should be read in conjunction with the Title IX Sex Discrimination, Sexual Harassment, and Sexual Violence Policy (“the Title IX Policy”) and the Student Conduct Code, which includes additional information regarding applicable definitions, key terms, reporting options, available resources and other relevant topics.

These Procedures will be used to investigate and resolve all complaints of sex discrimination brought against UAB students (undergraduate, graduate, full-time, and part-time). Sex discrimination prohibited by the Title IX Policy is defined as the exclusion from participation in, denial of benefits from, or subjection to unfavorable treatment in any University educational or employment-related program or activity on the basis of gender, sexual orientation, gender identity, or gender expression. These Procedures apply to complaints of sex discrimination covered under Title IX but which do not fall within the category of Sexual Harassment or Sexual Violence as defined in the University of Alabama at Birmingham’s Title IX Policy.

Formal Complaints of Sexual Harassment against students will be investigated and resolved using the Procedures for the Resolution of Title IX Sexual Harassment and Sexual Violence Complaints. Formal Complaints of Sexual Harassment that include allegations of both sexual harassment and sex discrimination (non-harassment) will be addressed pursuant to the Procedures for Resolution of Formal Complaints of Sexual Harassment.

All other complaints of discrimination against students, including but not limited to those based on race, color, religion, ethnic origin, age, and disability, will be resolved using the University’s Equal Opportunity and Discriminatory Harassment Policy. Additionally, any sex discrimination that does not rise to the level of Prohibited Conduct and/or falls outside the jurisdiction of the Title IX policy and these Procedures may be investigated and addressed pursuant to other applicable policies, including but not limited to, UAB’s Equal Opportunity & Discriminatory Harassment Policy and Enterprise Code of Conduct.

The University is fully committed to promoting a safe and healthy educational and work environment. All community members are strongly encouraged to report to the University any incident of sex discrimination.


II. Rights of Complainants and Respondents

  1. Right to an Advisor

    • Complainants and Respondents may be accompanied by one advisor throughout the Investigation. That advisor, however, cannot be someone who may be considered a witness during the Investigation. An advisor can be present to provide support to a Complainant or Respondent throughout an investigation and any hearing process. An advisor may not speak, write, or otherwise communicate with an Investigator, any student or University employee that is part of the investigation process, or the Hearing Panel on behalf of the Complainant or Respondent. An advisor who does not abide by these guidelines may be excluded from the investigation and/or hearing process. The advisor may be legal counsel, but participation will be limited as stated herein. An advisor’s failure to comply with the participation limitations outlined in these Procedures and the Title IX Policy may result in the advisor being dismissed from any meeting, or other proceeding. Any fees charged by the advisor are the sole responsibility of the requesting party. Consistent with the University’s obligations to promptly resolve sex discrimination complaints, the University reserves the right to proceed with any meeting or interview, regardless of the availability of the party’s selected advisor.

  1. Additional Rights of Both Complainants and Respondents

    • These procedures for the investigation and resolution of sex discrimination complaints against students are designed to be accessible, prompt, fair, and impartial. Throughout the investigation, adjudication, and resolution of sex discrimination complaints, both Complainant(s) and Respondent(s) have the following rights:

      • To be informed of available options for making a Report of Sex Discrimination;

      • To receive a notice of the allegations, an opportunity to respond to allegations, and access to policy statements regarding the investigation process and possible sanctions/disciplinary action;

      • To be advised of the University’s prohibition on retaliation against an individual who exercises their rights under Title IX or the Title IX Policy;

      • To receive information regarding University and community support resources (including, but not limited to, modification of academic, living, transportation, or working situations; and available health and mental health counseling, victim advocacy, safety planning, information about possible legal assistance, visa and immigration assistance, student financial aid, and, if applicable, disability accommodations). A request for such accommodations or Supportive Measures, if they are reasonably available, will be provided; 1

      • To a thorough and impartial investigation;

      • To be accompanied by an Advisor at all University proceedings relevant to the investigation and Hearing process, subject to the limitations outlined herein;

      • Subject to the limitations set forth herein, to be notified of significant actions and proceedings relevant to the University investigation and Hearing process;

      • To be notified of the appeal process and whether an appeal is available;

      • To be notified in writing when final results become available;

      • To have access to published policies regarding Title IX and University disciplinary procedures, including the possible range of sanctions;

      • To be notified that information and materials the University obtains during its investigation into allegations of sex discrimination may be disclosed in response to a valid subpoena; and

      • To be notified that Respondent is not required to make a statement or otherwise provide information relevant to the investigation.


III. Supportive Measures

Supportive Measures are available upon receipt of a report of sex discrimination and prior to the resolution of a complaint, as appropriate. The issuance of Supportive Measures is not disciplinary in nature and should not be construed as a determination by the University that the Respondent has engaged in sex discrimination. Supportive measures are available for the Complainant, Respondent, and/or the campus community while the University is investigating an allegation of sex discrimination. Both the Complainant and Respondent (or someone on behalf of the Complainant or Respondent) may request Supportive Measures from the University Title IX Coordinator or a Deputy Title IX Coordinator. The Title IX Coordinator will work with the appropriate office(s) to ensure that any necessary supportive measures are promptly provided. The range of Supportive Measures may include, but are not limited to the following:

  • Rescheduling of exams and assignments;

  • Providing alternative course completion options;

  • Change in class schedule, including the ability to drop a course without penalty or to transfer;

  • Change in work schedule or job assignment;

  • Change in student’s campus housing;

  • Assistance from University support staff in completing housing relocation;

  • Limiting access to certain University facilities or activities pending resolution of the matter;

  • Voluntary leave of absence;

  • Providing academic support services, such as tutoring;

  • Institutional resources pertaining to visa/immigrant status;

  • University-imposed leave, suspension, or separation for the Respondent; and

  • Any other measure that can be tailored to the involved individuals to achieve the goals of this Policy.

Additional resources the University may offer include:

  • Access to counseling services and assistance in setting up initial appointments, both on and off campus; and

  • Resources on and off campus for trained advocates who can provide crisis response.

UAB will maintain the privacy of any Supportive Measures provided under the Title IX Policy to the extent practicable.

An individual’s failure to comply with restrictions imposed by Supportive Measures is a violation of the Title IX Policy and Student Code of Conduct and may be a basis for conduct action.


IV. Investigative Procedures

  1. Time Frame for Resolution

    • The University seeks to resolve all Reports of sex discrimination as promptly as reasonably possible. Best efforts will be made to follow the time frames discussed below.

    • In calculating time periods, “business days” do not include weekends or UAB holidays. All time frames may be extended when necessary to ensure the integrity and completeness of the investigation, accommodate the availability of witnesses, accommodate delays by the parties, account for University breaks or vacations, or address other legitimate reasons, including the complexity of the investigation (including the number of witnesses and volume of information provided by the parties) and the severity and extent of the alleged conduct. Any extension of the timeframes, and the reason for the extension, will be shared with the parties in writing.

    • UAB will disclose information about its investigation and resolution of sex discrimination complaints only to those who need to know the information to carry out their duties and responsibilities. It will inform all University personnel participating in an investigation, proceeding, or hearing that they are expected to maintain the privacy of the process. This does not prohibit either a Complainant or Respondent from obtaining the assistance of family members, counselors, therapists, clergy, doctors, attorneys, or other resources.

  1. Initial Assessment

    • When a Report of sex discrimination is made, the Title IX Coordinator will conduct an Initial Assessment. This assessment will determine whether the alleged conduct could present a potential violation of the Title IX Policy and whether further action is warranted based on the alleged conduct.

    • The Initial Assessment normally begins with a preliminary meeting between the Complainant and the Title IX Coordinator or designee. The purpose of the preliminary meeting is to gather facts that will enable the Title IX Coordinator in consultation with other offices as appropriate, to:

      • Assess the nature and circumstances of the allegation(s);

      • Address any immediate concerns about the emotional well-being of the parties;

      • Notify the Complainant of the availability of medical treatment to address any mental and emotional health concerns and to preserve evidence;

      • Provide the Complainant with written information about:
        • On and off campus resources;
        • The available range of Supportive Measures;
        • An explanation of the procedural options, including Voluntary Resolution, Investigation, and Adjudication; and
        • The Complainant’s rights during the process;

      • Discuss the Complainant’s expressed preference for manner of resolution and any barriers to proceeding;

      • Explain the University’s policy prohibiting Retaliation; and

      • Explain the role of an advisor.

    • If a Complainant wants to make a report of sex discrimination but also wants to maintain anonymity and/or request that no investigative or disciplinary measures be taken, the Title IX Coordinator will advise the Complainant that the University will consider the request but cannot guarantee it will be able to honor the request. The University will weigh such a request in light of the University’s obligation to provide a non-discriminatory environment. There will be times when the University may not able to honor a request so as to comply with this obligation. In determining whether it can honor a request for confidentiality, some or all of the following factors may be considered:

      • The nature and scope of the alleged conduct;

      • The respective ages and roles of the Complainant and Respondent;

      • The risk posed to any individual or to the campus community by not proceeding;

      • Whether there have been other reports of sex discrimination involving the Respondent;

      • The Complainant’s wish to pursue disciplinary action;

      • Whether the University possesses other means to pursue the investigation and obtain relevant evidence without participation from the Complainant; and

      • Considerations of fundamental fairness and due process with respect to the Respondent should the course of action include disciplinary action against the Respondent.

      • The University’s obligation to investigate and to provide a non-discriminatory environment.

    • The University’s ability to fully investigate and respond to a Report may be limited if the Complainant requests that their name not be disclosed to the Respondent or declines to participate in an investigation.

    • At the conclusion of the Initial Assessment, the Title IX Coordinator will determine the appropriate resolution route. Resolution may include: (1) no further action; (2) Informal Voluntary Resolution; or (3) the initiation of an investigation that may lead to sanctions/disciplinary action. The Respondent will be notified when UAB takes action that would impact a Respondent, such as the initiation of an investigation or the Complainant’s decision to seek Informal Voluntary Resolution.

  1. Informal Voluntary Resolution

    • Informal Voluntary Resolution, when selected by the Complainant and deemed appropriate by the Title IX Coordinator, is a path designed to eliminate the discriminatory conduct at issue, prevent its recurrence, and remedy its effects in a manner that meets the expressed preference of the Complainant and preserves the safety and welfare of the campus community. Informal Voluntary Resolution does not involve an investigation or disciplinary action against a Respondent and is not appropriate for all forms of conduct under the Title IX Policy. The time frame for completion of Informal Voluntary Resolution may vary, but the University will seek to complete the process within sixty (60) business days of the Complainant’s request.

    • The University retains the discretion to determine, when selected by the Complainant, which cases are appropriate for Informal Voluntary Resolution. A Complainant may request and decide to pursue Informal Voluntary Resolution at any time. In those cases in which Informal Voluntary Resolution involves either the notification to, or participation by, the Respondent, it is the Respondent’s decision whether to accept Informal Voluntary Resolution.

    • Informal Voluntary Resolution may include: establishing Supportive Measures; conducting targeted or broad-based educational programming or training for relevant individuals or groups; facilitating a meeting with the Respondent with the Complainant in appropriate cases; and any other remedy that can be tailored to the involved individuals to achieve the goals of the Title IX Policy. In some forms of Informal Voluntary Resolution, the remedies imposed will focus on supporting the Complainant with no participation or involvement by the Respondent. In other forms of Informal Voluntary Resolution, the Respondent may agree to participate. Depending on the type of remedy used, it may be possible for a Complainant to maintain anonymity.

    • Informal Voluntary Resolution may also include restorative principles that are designed to allow a Respondent to accept responsibility for discrimination and acknowledge responsibility to the Complainant or to the University community. Restorative models will be used only with the consent of both parties, under the supervision of University-approved trained professionals, and following a determination by the University that the matter is appropriate for a restorative approach.

    • As the title implies, participation in Informal Voluntary Resolution is a choice, and either party can request to end this manner of resolution and pursue an investigation at any time, including if Informal Voluntary Resolution is unsuccessful at resolving the report. Similarly, a Complainant can request to end an investigation and pursue Informal Voluntary Resolution at any time. In addition, either party may request Supportive Measures regardless of whether any particular course of action is sought.

    • Information disclosed by any party during the Informal Voluntary Resolution process will not be considered during a subsequent investigation or Adjudication.

    • Because the outcome of Informal Voluntary Resolution process is mutually developed and agreed upon by the parties, an appeal of the process and its result is not permitted.

  1. Investigation Procedures

    • If deemed appropriate based on the Initial Assessment, the University will initiate a prompt, thorough, and impartial investigation of conduct that the Title IX Coordinator determines involves matters covered by these Procedures (i.e., all complaints of sex discrimination brought against a student). The Title IX Coordinator will designate an Investigator(s) who has training and experience investigating allegations of sex discrimination. The Investigator may be a University employee or an outside investigator. The Investigator will coordinate the gathering of information to determine whether the preponderance of the evidence establishes that the alleged conduct constitutes a violation of the Title IX Policy. A preponderance of the evidence means that it is more likely than not that the alleged conduct occurred based on a totality of the circumstances.

    • The investigation is a neutral fact-gathering process. The Respondent is presumed to be not responsible; this presumption may be overcome only where the Investigator concludes that it is more likely than not that the Respondent violated the Title IX Policy. Neither party is required to participate in the investigation nor any form of resolution under these Procedures. The Investigator will not draw an adverse inference against a party merely because that party elects not to participate in the investigation.

    • The University will make reasonable efforts to protect the privacy of participants, in accordance with applicable state and federal law, while balancing the need to gather information to conduct a thorough investigation.

      1. Notice of Investigation

        • The Title IX Coordinator will send the Complainant and the Respondent a written Notice of Investigation, which constitutes the formal notice of the alleged policy violation(s). The Notice of Investigation will contain the following:

          • A summary of the allegations of Prohibited Conduct at issue, which will generally include the identities of the parties involved, the specific section of the Title IX Policy allegedly violated, and the date and location of the incident;

          • The range of potential violations under the Title IX Policy;

          • On and off campus resources;

          • Rights of the Respondent;

          • The range of potential sanctions; and

          • Notification that expulsion is a potential sanction and that expulsion precludes matriculation (where appropriate).

        • Once the Notice of Investigation has been delivered to the parties, the investigation phase begins.

      1. Conducting the Investigation

        • The Title IX Coordinator will oversee the investigation. The investigation is designed to provide a fair and reliable gathering of the facts by a trained and impartial Investigator. All individuals, including the Complainant, the Respondent, and any third-party witnesses will be treated with appropriate sensitivity and respect throughout the investigation. The investigation will safeguard the privacy of the individuals involved in a manner consistent with federal law and University policy.

        • During the investigation, the Complainant and Respondent will have an opportunity to be heard, submit information, and identify witnesses who may have relevant information. The Investigator will speak separately with the Complainant, the Respondent, and any other individuals who are willing to participate and have information relevant to the determination of responsibility. As part of the investigation, the Investigator may gather or receive information that is relevant to the determination of an appropriate sanction or remedy, including information about the impact of the alleged conduct on the parties. The Investigator will also endeavor to gather all available evidence, including prior statements by the parties or witnesses, any communications between the parties, email messages, social media materials, text messages, audio or video recordings, and other records as appropriate, available, and feasible.

        • The Investigator has the discretion to determine the relevance of any witness or other evidence to the finding of responsibility and may exclude information if the Investigator determines that the information is irrelevant. The Investigator may also exclude statements of personal opinion by witnesses and statements as to general reputation for any character trait, including honesty.

      1. Timing of the Investigation

        • The University will seek to conclude the investigation within sixty (60) business days from the issuance of the Notice of Investigation. The time frame for completion of the investigation, or any designated time frames of steps in the investigation, may be extended as set forth herein above. Any extension of the timeframes, and the reason for the extension, will be shared with the parties in writing. Best efforts will be made to complete the process in a timely manner by balancing principles of thoroughness and fundamental fairness with promptness.

      1. Cooperation in the Investigation

        • All community members, including students, faculty, and staff are strongly encouraged and expected to cooperate with the Title IX Coordinator in the investigation, as well as any adjudication, of any allegations of Prohibited Conduct. The Title IX Coordinator may request to meet with individuals from the University community identified as having relevant evidence. Both a Complainant and a Respondent may decline to participate in proceedings under the Title IX Policy. The Title IX Coordinator will determine whether the investigation and any adjudication will proceed without the Complainant(s) pursuant to the factors set out in the Initial Assessment as described in Section IV.B. above.

      1. Impact Statement

        • The Complainant and Respondent may provide a written Impact Statement to the Investigator during the investigation. These written Impact Statements will not be considered in determining responsibility but may be considered in determining appropriate sanctions and/or remedies. A party may submit an Impact Statement at any time during the investigation process, provided that it is submitted no later than five (5) business days after the parties have received a copy of the Final Investigative Report. Any Impact Statement submitted by one party will be shared with the opposing party, but may be redacted at the discretion of the Title IX Coordinator, or in accordance with state or federal law.

      1. Submission of Additional Evidence

        • At the conclusion of the investigation and prior to preparing the Final Investigation Report, the Investigator will notify the Complainant and Respondent of the completion of the investigation and provide them with the opportunity to submit any additional evidence, such as witness identities, documents, or other information not previously submitted. The parties will have ten (10) business days to submit any such additional evidence in writing. In the absence of good cause, evidence discoverable through the exercise of due diligence that is not provided to the Investigator will not be considered by the Investigator or a Hearing Panel.

      1. Final Investigation Report

        • After receipt and consideration of any additional evidence from the Complainant or Respondent, or after the ten (10) business days have lapsed without the submission of additional evidence, the Investigator will complete a Final Investigation Report. The Final Investigation Report shall include a determination, using the preponderance of the evidence standard, regarding whether the Respondent is responsible for violating the Title IX Policy. In reaching this determination, the Investigator will consult with the Title IX Coordinator. If it is determined that the evidence supports a finding of responsibility, the Final Investigation Report will also include recommended sanctions as set forth herein and/or the Student Conduct Code. All such recommended sanctions identified by the Investigator shall be approved in advance by the Title IX Coordinator. Additional information regarding sanctions is set forth below in Section V.D.

        • The Title IX Coordinator shall provide a copy of the Final Investigation Report in electronic format to both parties simultaneously, as well as a notice of the right of both parties to request Administrative Review or Adjudication by a Hearing Panel in accordance with Section V below. The Title IX Coordinator may, in his/her sole discretion, redact portions of the Final Investigation Report to protect privacy interests, comply with applicable federal, state, or local law, or address other considerations. As a precondition of receiving a copy of the Final Investigation Report, all parties and their respective advisors (if any) must sign and agree to abide by a non-disclosure agreement.

        • When the Investigator determines the preponderance of the evidence supports a finding that a Title IX Policy violation occurred with respect to one or more of the allegations, the Respondent may accept or contest such recommended finding(s) by so notifying the Title IX Coordinator in writing. If the Respondent accepts the finding of responsibility but timely challenges the sanctions, the Title IX Coordinator will refer the case for Adjudication by a Hearing Panel solely on the issue of sanctions.

        • If the Respondent timely contests one or more of the finding(s) of responsibility, the Respondent may submit a written statement to the Title IX Coordinator explaining why the Respondent contests such finding(s). The Title IX Coordinator will allow the Complainant to review such statement and respond in writing within five (5) business days.

        • When the Investigator determines the preponderance of the evidence does not support a finding of responsibility on one or more of the allegations, the Complainant may accept or contest the recommended finding(s) by so notifying the Title IX Coordinator, in writing. If the Complainant accepts the recommended finding(s) of no responsibility, the investigation will be closed and documented in accordance with applicable University policies.

        • If the Complainant timely contests one or more of the recommended finding(s), the Complainant may submit a written statement to the Title IX Coordinator explaining why the Complainant contests such finding(s). The Title IX Coordinator will allow the Respondent to review such statement and respond in writing within five (5) business days.

        • Where both the Complainant and the Respondent agree with the determination and any recommended sanction detailed in the Final Investigation Report, or where neither party requests further review within the timelines discussed below, the determination and sanction(s) become final. The Title IX Coordinator will notify both parties concurrently in writing that the determination is final and not subject to further appeal or review.

        • For both Complainants and Respondents, a request for Administrative Review or Adjudication by a Hearing Panel is timely when it is delivered in writing to the Title IX Coordinator within five (5) business days after the Outcome Conference.

  1. Final Outcome Conference

    • Upon issuing the Final Investigation Report, the Title IX Coordinator will provide each party the opportunity to meet, separately, with the Title IX Coordinator to review the Final Investigation Report (“the Final Outcome Conference”). The Final Outcome Conference for each party will be conducted as soon as reasonably practicable after issuance of the Final Investigation Report.

  1. Acceptance of Responsibility

    • The Respondent may, at any time, request to resolve the Investigation process or resolve specific allegation(s) by accepting responsibility for the alleged sex discrimination. The Title IX Coordinator will complete a summary report of the information gathered. The Title IX Coordinator will consider the request; if the request is granted, the Title IX Coordinator, in consultation with the Director of Student Conduct will determine the appropriate sanction(s).

    • When a Respondent accepts responsibility for the sex discrimination, both the Complainant and Respondent may appeal the determination on the basis that the sanction(s) is either too severe or too lenient. The appeal process is detailed in Section VI of these procedures.


V. Adjudication Options

  1. Administrative Review of a Determination of No Title IX Policy Violation

    • If the Complainant requests administrative review of a determination that no Title IX Policy violation occurred, the Final Investigation Report will be reviewed by the Vice President of Student Affairs (or his/her designee) (“the Designated Reviewing Official”). The Designated Reviewing Official may meet separately with the Respondent and the Complainant. The Complainant and Respondent will both have the opportunity to submit additional information in writing. The Designated Reviewing Official may agree with the determination, disagree with the determination, or request additional investigative follow-up.

      • If the Designated Reviewing Official agrees with the determination, it is deemed final and not subject to further appeal or review.

      • If the Designated Reviewing Official disagrees with the determination, it will immediately be forwarded to the Title IX Coordinator to initiate Adjudication by a Hearing Panel.

      • If the Designated Reviewing Official determines additional investigation is necessary before he/she can make a decision, the matter will be returned to the Title IX Investigator for further review.

    • The Designated Reviewing Official will render a decision in writing to both parties concurrently within ten (10) business days of receipt of the request for review. This timeframe may be extended for good cause provided that both the delay and the reason for the delay are communicated to the parties in writing, in advance of the delay.

  1. Adjudication by a Hearing Panel

      1. Review of a Determination that a Title IX Policy Violation Occurred

        • If the Respondent challenges the determination that a Title IX Policy violation occurred, the Title IX Coordinator will issue a Notice of Hearing to the Complainant and the Respondent and convene a Hearing Panel in accordance with the procedures outlined below. The Hearing Panel’s role is twofold: (i) determine whether the preponderance of the evidence establishes a Title IX Policy occurred, and if so, (ii) determine what sanction(s), if any, is warranted.

      1. Review of Recommended Sanction Only

        • If either the Complainant or the Respondent requests a hearing solely on the recommended sanction(s), the Title IX Coordinator will convene a Hearing Panel as outlined below, which will conduct a hearing limited to the issues of determining whether (i) the recommended sanction(s) was appropriate, and if not, (ii) the appropriate alternative sanction(s).

  1. Adjudication by a Hearing Panel

    • The Hearing Process will generally be completed within twenty-five (25) business days from the date of the request for a hearing but may be extended for good cause with written notice to the parties.

      1. Hearing Panel

        • After issuing a Notice of Hearing, the Title IX Coordinator will designate a Hearing Panel to review the determination in the Final Investigation Report. In addition to a Hearing Chair, a Hearing Panel is composed of three (3) individuals, selected from a pool of trained individuals (typically including two (2) faculty or staff members and one (1) student). Any individual designated by the Title IX Coordinator to serve on a Hearing Panel must have sufficient training or experience to serve in this capacity. A Hearing Panel member may decline to participate based on a conflict of interest, bias, or lack of impartiality. The Hearing Panel Chair will conduct and preside over the hearing but is not a voting member of the Hearing Panel. Instead, the Hearing Panel Chair’s role is to maintain consistency in the hearing process by providing the Hearing Panel with guidance on all applicable Title IX Policy and procedures, the preponderance of the evidence standard, and the range of available sanctions. The Hearing Panel Chair will also draft the Hearing Panel’s determination.

      1. Pre-Hearing Meeting

        • As the first step in the Hearing Process, the Hearing Panel Chair will meet separately with the Investigator and each party to resolve any pre-hearing concerns. At this pre-hearing meeting, the parties will each have the opportunity to identify the witnesses (who have already been identified and interviewed by the Investigator) they wish to call at the hearing; raise any challenge to the composition of the Hearing Panel based on bias, conflict of interest, or lack of impartiality; and identify any evolving or new information not previously identified through the investigation or available through the exercise of due diligence. The parties will also have the opportunity to address questions about the process. If the Complainant is not participating in the hearing, he/she is not required to attend this meeting.

        • Both parties have the ability to challenge a Hearing Panel member on the basis of an actual conflict of interest, bias, or lack of impartiality. The request must be submitted in writing, raised no later than the date of the pre-hearing meeting, and clearly state the grounds to support a claim of bias, conflict of interest, or an inability to be fair and impartial. Failure to object prior to the date of the pre-hearing meeting eliminates the possibility of appealing the outcome of the hearing based on the assertion that a member of the Hearing Panel had a conflict of interest, was biased, or lacked impartiality.

      1. Hearing Procedures

        • The Hearing will be scheduled and conducted in accordance with the procedures outlined herein. The Hearing will take place in a closed session. The Hearing Panel will determine whether the preponderance of the evidence establishes a Title IX Policy violation occurred. In reaching a determination, the Hearing Panel will solicit information from the Investigator, the Complainant, the Respondent, and any witnesses as appropriate to ensure a full assessment of the relevant facts. This information shall be provided in the presence of the parties, unless a party waives their right to participate.

        • Subject to the limitations stated in this Policy, both the Complainant and the Respondent have the same opportunity to have an advisor of their choice present during the hearing, at their own expense. The advisor, who may be an attorney, may privately consult with and advise the party but may not question witnesses, make statements, or otherwise directly participate in the proceedings. The Hearing Panel Chair may remove or dismiss an advisor who becomes disruptive or who does not abide by the limitations on their participation.

        • All evidence each party wishes to be considered by the Hearing Panel should have been presented to the Investigator during the investigation process. If evidence was not provided to the Investigator during the investigation process, then presentation of such evidence during the hearing is at the discretion of the Hearing Panel Chair but generally will only be allowed based on new information not known during the investigation process. Further, all materials that the Investigator, Complainant, or Respondent want the Hearing Panel to consider must be submitted to the Title IX Coordinator (or designee) at least four (4) business days prior to the hearing. The Title IX Coordinator (or designee) will provide the submitted materials to the Hearing Panel and make copies available for inspection by the Complainant and Respondent at least three (3) business days prior to the hearing, consistent with FERPA or other regulation governing the disclosure of education records. Any materials submitted and/or discovered fewer than four (4) business days before the hearing may only be considered at the sole discretion of the Hearing Panel Chair.

        • The Complainant and the Respondent have the right to present witnesses, subject to the discretion of the Hearing Panel Chair. Each party must provide a list of potential hearing witnesses to the Title IX Coordinator (or designee) at least four (4) business days prior to the hearing. The Title IX Coordinator (or designee) will provide the witness list(s) to the Hearing Panel.

        • All questioning of parties is conducted through the Hearing Panel. A party does not have a right to question or cross examine another party directly. A party may recommend direct questions to be asked of another party by submitting them in writing to the Title IX Coordinator (or designee) three (3) calendar days prior to the hearing. The Title IX Coordinator (or designee) will provide them to the Hearing Panel. During the hearing, a party may also suggest questions to the Hearing Panel based on information presented during the hearing. The Hearing Panel Chair, in his/her sole discretion, will determine the relevancy of all questions presented, and, if they are deemed relevant, the Hearing Panel may pose those questions to the other party. The Hearing Panel Chair has discretion to alter the exact wording of any proposed question. Parties (but not advisors) may directly question non-party witnesses or provide proposed questions to the Hearing Panel. The Hearing Panel may also independently question the parties, witnesses, and/or Investigator to elicit relevant information.

        • The Complainant and Respondent may appear before the Hearing Panel if they wish and make an oral statement regarding the facts. Upon request, a party or witness may participate by telephone or videoconference from a different physical location or may request that a visual barrier be placed to limit the individual’s exposure to other hearing participants. The Complainant and Respondent will not be in the hearing room together, unless both parties agree in writing. The party who is not before the Hearing Panel may have audio access to the hearing via telephone when the other party appears.

        • The Hearing Panel will not review any Impact Statements unless a determination of a Title IX Policy violation is made. After consideration of all of the relevant information, the Hearing Panel will make a determination whether the preponderance of the evidence establishes a Title IX Policy violation occurred. Preponderance of the evidence means that it is more likely than not that the conduct occurred. The Hearing Panel’s determination must be reached by a majority vote. If the Hearing Panel determines a violation occurred, it will also determine and impose a sanction(s). Sanctions of suspension or expulsion must be supported by a unanimous vote. A majority vote is required for all other sanctions.

        • With the exception of any approved reasonable accommodation, a Respondent, Complainant, advisor, and/or witness may not bring electronic devices that capture or facilitate communication (e.g., computer, cell phone, audio/video recorder, etc.) into a hearing room. The Title IX Coordinator will make an audio recording of the hearing to be kept on file in accordance with UAB’s document retention policy. Reasonable care will be taken to create a quality audio recording and minimize technical problems; however, technical problems that result in no recording or an inaudible one will not be a valid argument for appeal.

  1. Imposition of Sanctions

    • The Title IX Policy prohibits a broad range of behaviors, which are serious in nature. In keeping with the University’s commitment to foster an environment that is safe, inclusive, and free of Prohibited Conduct, the Title IX Policy provides the Investigator and Hearing Panel with wide latitude in the imposition of sanctions tailored to the facts and circumstances of each report, the impact of the alleged Prohibited Conduct on the Complainant and surrounding community, and accountability for the Respondent. The imposition of sanctions is designed to eliminate Prohibited Conduct under the Title IX Policy, prevent its recurrence, and remedy its effects, while supporting the University’s educational mission and federal obligations. Sanctions may include educational, restorative, rehabilitative, and punitive components. Some behavior, however, is so egregious in nature, harmful to the individuals involved, or so deleterious to the educational process that it requires severe sanctions, including suspension from the University.

    • In cases where neither party challenges the Investigator’s determination of responsibility or recommended sanctions as outlined in the Final Investigation Report, the sanctions set forth therein will stand. In cases that are resolved through a Hearing Panel, the Hearing Panel is responsible for determining the appropriate sanction(s). In determining appropriate sanctions, both the Investigator or Hearing Panel may solicit information from the Complainant, the Respondent, and any other individual who can provide information relevant to a determination regarding potential sanctions. The Investigator and Hearing Panel may also review any written Impact Statements submitted by the Complainant, the Respondent, or a community representative.

    • In addition, the Investigator and the Hearing Panel shall consider the following factors:

      • the nature of the conduct at issue;

      • the impact of the conduct on the Complainant;

      • the impact or implications of the conduct on the community or the University;

      • prior misconduct by the Respondent, including the Respondent’s relevant prior discipline history;

      • maintenance of a safe and respectful environment conducive to learning; and

      • any other mitigating, aggravating, or compelling circumstances to reach a just and appropriate resolution in each case.

    • The Investigator and the Hearing Panel may also consider restorative outcomes that allow a Respondent to develop insight about their responsibility for the behavior, learn about the impact of the behavior on the Complainant, and identify how to prevent or change the behavior.

      1. Sanctions that Impact a Student’s Status

        • Sanctions may be imposed individually or in combination. Sanctions that affect a student’s status with the University include the following:

          • Expulsion means that a student is removed from the University permanently and may not seek readmission.

          • Suspension for a Definite or Indefinite Period means that the student must leave the University for a definite or indefinite period. This form of suspension anticipates that the student may eventually return if applicable conditions are satisfied.

          • Probation for a Definite or Indefinite Period means that a student is not in good standing and may remain at the University but may be required to satisfy specified conditions or requirements.

      1. Sanctions that Do Not Impact a Student’s Status

        • Sanctions that do not affect a student’s good standing status with the University include, but are not limited to, the following:

          • Educational Requirements. Completion of projects, programs, or requirements designed to help the student manage behavior and understand why it was inappropriate.

          • “No Contact” Orders. Compliance with orders that limit access to specific University areas or forms of contact with particular persons.

          • Housing Restrictions. Exclusion from University housing or change in housing arrangements.

          • Community Service. Completion of up to sixty (60) hours of community service over a period not to exceed twelve (12) weeks under guidelines established and monitored by the Title IX Coordinator and AVP of Student Experience.

          • Written Warning. An official reprimand that is communicated by letter to a student, notifying him/her notice that any subsequent Title IX Policy violation will carry more serious sanctions.

  1. Remedies

    • The Title IX Coordinator will identify long-term or permanent remedies to address the effects of the conduct on the Complainant, restore the Complainant’s well-being, and maximize the Complainant’s educational and employment opportunities. Such remedies should seek to restore to the Complainant, to the extent possible, all benefits and opportunities lost as a result of the Prohibited Conduct. The Title IX Coordinator will also identify remedies to address the effects of the conduct on the University community.

    • The Title IX Coordinator will consider the appropriateness of remedies, including Supportive Measures, on an ongoing basis to assure the well-being of the parties throughout the process. Long-term remedies may include extending or making permanent any Supportive Measures or implementing additional measures tailored to achieve the goals of the Title IX Policy. Many of the remedies that a Complainant might need after a finding of responsibility will have already been provided as Supportive Measures, including but not limited to academic accommodations, short term counseling, and housing arrangements. The Title IX Coordinator will, in all cases, consider whether there is a need for additional remedies. Additional remedies or supports may be included in the sanctions, such as reassignment or removal of the Respondent from a class or a dormitory.

  1. Notice of Hearing Outcome

    • Within five (5) business days of the conclusion of the Hearing, the University will provide a written Notice of Hearing Outcome to the Complainant and the Respondent concurrently. The Notice of Hearing Outcome will include the finding by the Hearing Panel as to whether there is a Title IX Policy violation, the rationale for the result, and a brief summary of the evidence on which the decision is based, as appropriate. Where there is a finding of a Title IX Policy violation, the Respondent will be informed of any sanctions, the date by which the requirements must be satisfied (if applicable), and the consequences of failure to satisfy the requirements. The Complainant will be informed of any sanctions and remedies that directly relate to the Respondent, including information about the Respondent’s presence on campus (or in a shared class or residence hall), that may help a Complainant make informed decisions or work with the University to eliminate Prohibited Conduct and prevent its recurrence.

    • The Notice of Hearing Outcome will also include information about the appeal process, including the available grounds for an appeal, the time frame for submitting an appeal, and the name of the Appeals Officer who will be assigned to review any appeal filed. If neither party seeks an appeal within five (5) business days of the Notice of Outcome, any sanction(s) imposed by the Hearing Panel will take effect immediately.

VI. Appeals Process

  1. Appeal of Hearing Panel’s Decision

    • Following a Hearing, both the Complainant and Respondent have a right to seek a review of the Notice of Hearing Outcome with regard to a finding of responsibility or non-responsibility and/or the imposed sanctions.

    • Mere dissatisfaction with the Notice of Hearing Outcome is not a valid basis for appeal. The Complainant’s and Respondent’s right to appeal the Notice of Final Outcome regarding a final determination of responsibility and/or the resulting sanction(s) are limited to:

      • The existence of a procedural irregularity that materially affected the Hearing Panel’s decision and/or recommended sanctions;

      • The existence of new evidence that was not reasonably available at the time the determination regarding responsibility or sanctions was made that could affect the outcome;

      • The Title IX Coordinator, Investigator, or Hearing Panel member(s) had a conflict of interest or bias that affected the outcome; and/or

      • The University Hearing Panel’s recommended sanctions are too severe or too lenient.

    • The appeal must be submitted in writing to the Appeals Officer within five (5) business days of the Notice of Hearing Outcome. The appeal shall consist of a plain, concise, and complete written statement outlining the grounds for appeal and all relevant information to substantiate the basis for the appeal.

    • Each party will be given the opportunity to review the written appeal and respond to it in writing to the Appeals Officer. Any response by the opposing party must be submitted to the Appeals Officer within three (3) business days from being provided the appeal. If both parties file an appeal, the appeal documents from each party will be considered together in one appeal review process.

    • In any request for an appeal, the burden of proof lies with the party requesting the appeal, because the Hearing Outcome will be presumed to have been decided reasonably and appropriately. Appeals are not intended to be a rehearing of the matter. The scope of the appeal will be limited only to the permissible grounds outlined above that have been accepted for review. In most cases, appeals are confined to a review of the written documentation or record of the original hearing and pertinent documentation regarding the grounds for appeal. The Appeals Officer may speak to the Investigator, the Hearing Chair, or the parties, as appropriate. The Appeals Officer will defer to the original Hearing Panel, making changes to Hearing Panel’s findings only where there is clear error.

    • If an appeal is granted, the Appeals Officer may remand the case to the Hearing Panel and provide instructions regarding the nature and extent of its reconsideration. The Hearing Panel will act promptly to reconsider the matter consistent with those instructions. Following reconsideration, the finding of the Hearing Panel or the sanction(s) imposed by the Hearing Panel will be final and not subject to further appeal under the Title IX policy.

    • Alternatively, the Appeals Officer may modify the Hearing Panel’s decision and/or sanction in accordance with the Title IX Policy and these procedures.

    • If the appeal is denied, the matter is closed, and the Hearing Panel’s decision stands as final. The Appeals Officer will issue a written decision describing the result of the appeal and the rationale for the result. The appeal decision will be provide simultaneously to both parties no later than fifteen (15) business days after all written responses are received.

    • The imposition of sanctions pursuant to a Notice of Final Outcome shall be stayed during an appeal under this section.

  1. Appeal of Sanctions when Respondent Accepts Responsibility

    • For cases of Acceptance of Responsibility, the Complainant and/or Respondent can only appeal based on the grounds that the sanction(s) imposed are either too severe or too lenient. Appeals must be submitted to the VP of Student Affairs or his or her designee.

    • Each party may respond in writing to any appeal submitted by the other party. Written responses must be submitted within three (3) business days following delivery of the notice of the written appeal. Written requests for appeal submitted by one party will be shared with the other party. The sanction review will ordinarily be a review of the Title IX summary report and any information submitted by the parties to the Appeals Officer. The Appeals Officer has the ability to sustain or modify the sanctions. The Appeals Officer will simultaneously notify the parties of the Appeal decision within fifteen (15) days of receipt of all written responses. The appeal decision is final.

VII. Additional Considerations

  1. Withdrawal and Readmission

    • If a student voluntarily withdraws from the University while charges against him or her are pending, permission for readmission will be considered only after the charges have been resolved. For the sake of clarity, the University reserves the right to continue with an investigation of a violation of the Title IX Policy even when a student Respondent has voluntarily withdrawn from the University.

  1. Intersection With Other Procedures

    • These complaint resolution procedures are the exclusive means of resolving complaints alleging sex discrimination by UAB students in violation of the Title IX Policy. To the extent there are any inconsistencies between these complaint resolution procedures and other University grievance, complaint, or discipline procedures, these complaint resolution procedures will control the resolution of complaints alleging sex discrimination by UAB students in violation of the Title IX Policy.

  1. Post-Resolution Follow Up

    • The Complainant and Respondent are encouraged to provide the Title IX Coordinator with feedback about their experience with the process and recommendations regarding ways to improve the effectiveness of the campus’ implementation of the Title IX Policy.

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If any Supportive Measures are put in place (for Respondent(s) or Complainant(s)), those measures may impact the availability of certain resources and available accommodations if they restrict an individual’s access to areas of campus.