Title IX and Sexual Discrimination Policy
Enterprise State Community College is committed to providing a workplace and campus community free of sexual misconduct and harassment. As required by Title IX of the Education Amendments of 1972, the College does not discriminate on the basis of sex in its education programs and activities. This includes discrimination affecting employees of the College and applicants for employment, students and applicants for admission, or members of the public. All members of the College community are expected to conduct themselves in a manner that does not infringe upon the rights of others, whether on College premises or at any College-owned off-campus location and while participating in any educational program or activity of the College.
Sexual harassment, which includes sexual misconduct and sexual assault, is a form of sex discrimination which is prohibited under Title IX of the Education Amendments of 1972 and the Violence Against Women Act. This policy is intended to reaffirm the College’s commitment to address sexual harassment, take steps to prevent its reoccurrence, and preserve or restore equal access to the College’s education programs and activities. Dating violence, domestic violence, and stalking may also be considered forms of sexual discrimination. Due to the seriousness of these offenses, the College has adopted specific policies and procedures, outlined in the Student Handbook, employment policies, and webpage, to address alleged instances of sexual harassment, sexual misconduct, sexual assault, dating violence, domestic violence, and stalking. The College believes that no person should bear the effects of sexual harassment alone. When such conduct occurs, the College’s paramount concern is for the safety and well-being of those impacted. To support and assist students, the College provides a range of resources that include a trained counselor.
Under Title IX, individuals reporting allegations related to sexual harassment and/or sexual violence, have the right to a resolution of their complaint, to have the college conduct a prompt, thorough and impartial investigation, and to receive supportive measures to ensure the safety and wellbeing of the individuals involved and the college community.
When allegations of sexual harassment and/or sexual violence in any form are brought to the attention of the Title IX Coordinator, and if a responding party is found to have violated this policy, serious sanctions will be used to prevent its reoccurrence. Enterprise State Community College does not tolerate or condone retaliation. Individuals wishing to report sexual harassment and/or sexual violence and/or to make inquiries concerning the application of Title IX at the College may contact:
Ms. Jessica Lunsford (Employees)
Enterprise State Community College
Director of Human Resources
600 Plaza Drive Enterprise Alabama 36331
Phone: 334-347-2623 ext. 2222
Email: jlunsford@escc.edu
Ms. Dava Foster (Students)
Enterprise State Community College
Director of Student Success
600 Plaza Drive Enterprise Alabama 36331
Phone: 334-347-2623 ext. 2293
Email: dfoster@escc.edu
and/or
Assistant Secretary
U.S. Department of Education
Office for Civil Rights
Lyndon Baines Johnson Department of Education Building
400 Maryland Avenue, SW
Washington, DC 20202-1100
Telephone: 800-421-3481
Fax: 202-453-6012; TDD: 800-877-8339
Email: OCT@ed.goc (mailto: OCR@ed.gov)
Information regarding the Title IX Coordinator and their role will be provided to all faculty, staff, students, applicants for admissions, and applicants for employment. Also, this information is available on the College website at www.escc.edu under the Human Resources page and Student Handbook/Academic Catalog.
Title IX Policy
The U.S. Department of Education’s Office for Civil Rights (OCR) enforces, among other statutes, Title IX of the Education Amendments of 1972. Title IX protects people from discrimination based on sex in education programs or activities that receive Federal financial assistance. Title IX states that:
“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
Definitions Relating to Sexual Harassment
Many terms are used in the context of sexual harassment. The following will provide some common definitions and examples.
Actual knowledge: The notice of sexual harassment or allegations of sexual harassment to the Title IX Coordinator or any official of the College who has authority to institute corrective measures of behalf of the College shall be deemed actual knowledge on the part of the College.
Complainant: is an individual who is alleged to be the victim of conduct that could constitute sexual harassment. For the purposes of this procedure a Complainant may be an individual applying for admission or employment, an employee, a student or an individual otherwise participating in or attempting to participate in the College’s education programs and activities.
Respondent: is an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment.
Formal complaint: is a document filed by the complainant or signed by the Title IX Coordinator alleging sexual harassment against a respondent and requesting that the College investigate the allegation of sexual harassment. Note: At the time of filing a formal complaint, a complainant must be participating in or attempting to participate in an educational program or activity of the College at which the formal complaint is filed.
Consent: “Consent” must be informed, voluntary, and mutual and can be withdrawn at any time. There is no consent when there is force, expressed or implied, or when coercion, intimidation, threats, or duress is used. Whether or not a person has taken advantage of a position of influence over another person may be a factor in determining consent. Silence or absence of resistance does not imply consent. Past consent to sexual activity with another person does not imply ongoing future consent with that person or consent to that same sexual activity with another person.
Incapacitation: An individual who is incapacitated is unable to give consent to sexual contact. States of incapacitation include sleep, unconsciousness, intermittent consciousness, intoxication, or any other state where the individual is unaware that sexual contact is occurring or is otherwise unable to give informed and voluntary consent. Incapacitation may also exist because of a mental or developmental disability that impairs the ability to consent to sexual contact. Example: A person who is taking pain medication and falls asleep under the influence of the medication can be incapacitated and not be able to give consent to sexual contact.
Sexual Misconduct: Committing sexual abuse, sexual assault, sexual harassment, sexual exploitation, or statutory rape, as defined below or under Alabama state law.
Harassment: The striking, shoving, kicking, or otherwise touching or making physical contact in regard to another for the purpose of harassing, annoying or alarming; and/or directing abusive or obscene language or making an obscene gesture toward someone for the purpose of harassing, annoying, or alarming. Example: Making or using persistent derogatory comments, epithets, or slurs that place a person in a hostile or fearful environment or where the person’s safety is in jeopardy.
Sexual harassment: Conduct on the basis of sex that satisfies one or more of the following:
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A school employee conditioning education benefits on participating in unwelcome sexual conduct (i.e. quid pro quo);
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Unwelcomed conduct that a reasonable person would determine is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity; or
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Stalking, dating violence, or domestic violence.
Definitions of Sexually Based Offenses
Sexual abuse in the first degree:
(a) A person commits the crime of sexual abuse in the first degree if:
(1) He subjects another person to sexual contact by forcible compulsion; or
(2) He subjects another person to sexual contact who is incapable of consent by reason of being physically helpless or mentally incapacitated.
(b) Sexual abuse in the first degree is a Class C felony (Alabama Code 13A-6-66).
Sexual abuse in the second degree:
(a) A person commits the crime of sexual abuse in the second degree if:
(1) He subjects another person to sexual contact who is incapable of consent by reason of some factor other than being less than 16 years old; or
(2) He, being 19 years old or older, subjects another person to sexual contact who is less than 16 years old, but more than 12 years old.
(b) Sexual abuse in second degree is a Class A misdemeanor, except that if a person commits a second or subsequent offense of sexual abuse in the second degree within one year of another sexual offense, the offense is a Class C felony (Alabama Code 13A-6-67).
Rape in the first degree:
(a) A person commits the crime of rape in the first degree if:
(1) He or she engages in sexual intercourse with a member of the opposite sex by forcible compulsion; or
(2) He or she engages in sexual intercourse with a member of the opposite sex who is incapable of consent by reason of being physically helpless or mentally incapacitated; or
(3) He or she, being 16 years or older, engages in sexual intercourse with a member of the opposite sex who is less than 12 years old.
(b) Rape in the first degree is a Class A felony (Alabama Code 13A-6-61).
Rape in the second degree:
(a) A person commits the crime of rape in the second degree if:
(1) Being 16 years old or older, he or she engages in sexual intercourse with a member of the opposite sex less than 16 and more than 12 years old; provided, however, the actor is at least two years older than the member of the opposite sex.
(2) He or she engages in sexual intercourse with a member of the opposite sex who is incapable of consent by reason of being mentally defective.
(b) Rape in the second degree is a Class B felony (Alabama Code 13A-6-62).
Sodomy in the first degree:
(a) A person commits the crime of sodomy in the first degree if:
(1) He engages in deviate sexual intercourse with another person by forcible compulsion; or
(2) He engages in deviate sexual intercourse with a person who is incapable of consent by reason of being physically helpless or mentally incapacitated; or
(3) He, being 16 years old or older, engages in deviate sexual intercourse with a person who is less than 12 years old.
(b) Sodomy in the first degree is a Class A felony (Alabama Code 13A-6-63).
Sodomy in the second degree:
(a) A person commits the crime of sodomy in the second degree if:
(1) He, being 16 years old or older, engages in deviate sexual intercourse with another person less than 16 and more than 12 years old.
(2) He engages in deviate sexual intercourse with a person who is incapable of consent by reason of being mentally defective.
(b) Sodomy in the second degree is a Class B felony (Alabama Code 13A-6-64).
Domestic Violence:
Includes felony or misdemeanor crimes of violence committed by a current or former spouse of the victim, by a person with whom the victim shares a child in common, by a person cohabitating with or has cohabitated with the victim as a spouse, or by any other person against an adult or youth victim who is protected from that person's acts under the domestic or family violence laws of the jurisdiction (34 U.S.C.12291(a)(8).
In Alabama, domestic violence includes felony and misdemeanor crimes of violence committed by a current or former spouse, parent, child, any person with whom the defendant has a child in common, a present or former household member, or a person who has or had a dating or engagement relationship with the defendant (Alabama Code Section 13A, Article 7 Domestic Violence in 1st, 2nd, and 3rd Degrees).
Dating Violence:
Means violence committed by a person –
(a) Who is or has been in a social relationship of a romantic or intimate nature with the victim; and
(b) Where the existence of such a relationship will be determined based on a consideration of the following factors:
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The length of the relationship,
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The type of relationship,
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The frequency of interaction between the persons involved in the relationship (34 U.S.C.12291(a) (10).
In Alabama, dating violence is covered under Alabama Code Section 13A, Article 7 Domestic Violence in 1st, 2nd, and 3rd Degrees.
Stalking:
Means engaging in a course of conduct directed at a specific person that would cause a reasonable person to a) fear for his or her safety or the safety of others; or b) suffer substantial emotional distress 34 U.S.C.12291(a)(30).
In Alabama, stalking is when a person intentionally and repeatedly follows or harasses another person and who makes a threat, either expressed or implied, with the intent to place that person in reasonable fear of death or serious bodily harm (13A-6-90 Stalking in the first degree) or a person who, acting with an improper purpose, intentionally and repeatedly follows, harasses, telephones, or initiates communication, verbally, electronically, or otherwise, with another person, any member of the other person's immediate family, or any third party with whom the other person is acquainted, and causes material harm to the mental or emotional health of the other person, or causes such person to reasonably fear that his or her employment, business, or career is threatened, and the perpetrator was previously informed to cease that conduct (Section 13A-6-91 Stalking in the second degree).
Sexual assault:
Means an offense classified as a forcible or nonforcible sex offense under the uniform crime reporting systems of the Federal Bureau of Investigation 20 U.S.C.1092 (f)(6)(A)(v).
Victims Option to Report
Students and employees who are victims of crime including rape, acquaintance rape, domestic violence, dating violence, sexual assault, or stalking, are encouraged by the College to report but do have the option not to report the incident to campus law enforcement, or local law enforcement. In those cases, the victim may still seek assistance confidentially from a service provider. A list of possible service providers can be found here.
Formal Complaint Process
Initial Steps
Any student or employee of the College or applicant for employment or admission who has a complaint against a student or a member of the College faculty, staff, or administration concerning sexual harassment (Title IX of the Educational Amendments of 1972) or has knowledge of any conduct constituting sexual harassment in an educational program or activity of the College or which occurred on property owned by the College or controlled by the College should report the complaint to the campus Title IX Coordinator. An educational program or activity of the College includes, but is not limited to locations, events or circumstances over which the College exercised substantial control over both the respondent and the context in which the sexual harassment occurs, and also includes buildings owned or controlled by a student organization that is officially recognized by the College.
Reporting a Complaint
Any individual may report sexual harassment incident to Title IX Coordinator in person, by email, by telephone, or in writing. The report must include the names of the Complainant(s) and Respondent(s), approximate date of incident, facts of the incident, and contact information for the person submitting the complaint.
The Title IX Coordinator will respond in writing to the person submitting the complaint as soon as practicable, but not exceeding five (5) business days. If the person submitting the complaint is not the Complainant, the Title IX Coordinator will also contact the Complainant within five (5) business days.
If after a discussion with the Complainant, the Title IX Coordinator determines that the complaint does not qualify as a Title IX Complaint, the Title IX Coordinator will notify the Complainant in writing and may redirect the Complaint to the appropriate committee.
If after a discussion between the Complainant and the Title IX Coordinator, the Title IX Coordinator determines that the complaint meets the criteria of a Title IX Complaint and the Complainant requests to file a formal complaint, the Title IX Coordinator will initiate the formal complaint process.
Supportive Measures
Supportive measures means non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the complainant or the respondent before or after the filing of a formal complaint or where no formal complaint has been filed. Such measures are designed to restore or preserve equal access to the College’s education program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties or the College’s educational environment, or deter sexual harassment. Supportive measures may include 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. The College must maintain as confidential any supportive measures provided to the complainant or respondent, to the extent that maintaining such confidentiality would not impair the ability of the College to provide the supportive measures. The Title IX Coordinator is responsible for coordinating the effective implementation of supportive measures.
Supportive measures will be offered to the Complainant within five (5) business days of receipt of the complaint.
Supportive measures will be offered to the Respondent simultaneously with the Notice of Allegations.
Standard of Evidence for Determining Responsibility
For the purposes of College Title IX procedures, the College will use a “preponderance of evidence” standard for determining responsibility. Preponderance of the Evidence means evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is evidence which as a whole shows that the fact sought to be proved is more probable than not.
Formal Complaint Process
A formal complaint must be submitted in electronic (email) or written format to the Title IX Coordinator and must be signed by the Complainant. In the event that under the circumstances a formal complaint should be pursued notwithstanding a Complainant’s desire not to file a formal complaint, the Title IX Coordinator may sign the complaint. The complaint must include the following:
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the date of the original complaint,
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names of Complainant and Respondent,
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facts and description of the complaint, and
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the request to investigate the complaint.
A Complainant must be participating in or attempting to participate in a College sponsored program or activity at the time the complaint is filed.
Dismissal of Formal Complaint
The College may dismiss a formal complaint or allegations therein if:
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the Complainant informs the Title IX Coordinator in writing that the Complainant desires to withdraw the formal complaint or allegations therein,
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the Respondent is no longer enrolled or employed by the school, or
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specific circumstances prevent the school from gathering sufficient evidence to reach a determination.
The College must dismiss a formal complaint or allegations therein if:
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the allegations do not meet the definitions of sexual harassment
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the alleged conduct did not occur within the United States, or
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the alleged conduct did not occur within a College sponsored program or activity.
If the College determines the formal complaint or allegations therein will be dismissed, the Title IX Coordinator will provide written notice to both parties of the dismissal of allegations, and the reason for dismissal within five (5) business days of the decision to dismiss the complaint.
Notice of Allegations
The Title IX Coordinator will provide simultaneous written notice of allegations, including sufficient details, and intent to investigate the Complainant and Respondent no later than ten (10) calendar days after receipt of the formal complaint. The Title IX Coordinator will also provide both parties with the formal complaint, grievance and appeal process, possible sanctions and remedies, and availability of advisors. The written notice shall include a statement that the respondent is presumed not responsible for the alleged conduct, that the parties and their advisors may review and inspect evidence, and advise the parties of the provisions of the College Code of Conduct relating to making false statements or submitting false information during the grievance process.
The Title IX Coordinator will additionally notify the Title IX investigator of the pending investigation and provide a copy of the formal complaint.
Advisors
In addition to providing the Complainant and Respondent with written notice of allegations and intent to investigate, the Title IX Coordinator will inform the parties of the availability of advisors. Both parties shall have the right to retain, at the respective party's own cost, the assistance of legal counsel or other personal representative advisor. In the alternative, either or both parties may also request an advisor provided by the College.
Only an advisor may conduct cross-examination during the live hearing.
Neither party may dismiss a College appointed advisor.
Investigation Procedure
The Title IX investigator is responsible for conducting an investigation of the submitted formal complaint. The Title IX investigator will have received Title IX investigator training within the current academic year.
The burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility rest on the College and not on the parties.
The Title IX investigator will notify the Complaint and Respondent in writing of the intent to investigate within five (5) business days of receipt of the formal complaint and will commence interviews within ten (10) business days or receipt of the formal complaint. The Title IX investigator will notify the Complainant and Respondent and their respective advisors in writing of all individuals the investigator intends to interview.
Either party may identify other witnesses with relevant information for interview or other evidence for review by the investigator.
The Title IX investigator will conduct a factual investigation of the formal complaint and shall research applicable statutes, regulations, and/or policies, if any. The Title IX investigator will notify any interviewees in writing of the intent to interview. Interviewees will have at least five (5) business days’ notice of an interview. Notice will include the participants, date, place, purpose, and time of the interview.
The College will provide an equal opportunity for the parties to present witnesses, including fact and expert witnesses, and other inculpatory (tending to establish fault or guilt) and exculpatory (clearing or tending to clear from alleged fault or guilt) evidence. Credibility determinations may not be based on a person’s status as a complainant, respondent or witness.
The College will 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, who may be, but is not required to be, an attorney, and not limit the choice or presence of advisor for either the complainant or respondent in any meeting or grievance proceeding; however, the College may establish restrictions regarding the extent to which the advisor may participate in proceedings, as long as the restrictions apply equally to both parties.
The College will 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.
The College will make all such evidence subject to the parties’ inspection and review available at any hearing to give each party equal access to refer to such evidence during the hearing, including for purposes of cross-examination.
Prior to the completion of the investigative report, the Title IX investigator will submit all reviewed evidence to the Title IX Coordinator.
The Title IX Coordinator will provide copies of all evidence reviewed during the investigation to the Complainant, Respondent, and their respective advisors. All parties will have ten (10) business days to review the evidence and respond in writing to the Title IX Coordinator.
Subsequent to the ten (10) business day review period, the Title IX Coordinator will direct any responses from the Complainant, Respondent, or their respective advisors to the Title IX Investigator for additional review. The Title IX Investigator will submit a final report and the reviewed evidence to the Title IX Coordinator. At least 10 days prior to the live hearing, the Title IX Coordinator will simultaneously provide the Complainant, Respondent, their respective advisors, with the final report and all reviewed evidence for their review and written response. The President will select a Hearing Officer to conduct the live hearing. The Hearing Officer shall be provided a copy of the investigative report and reviewed evidence.
Live Hearing Procedure
Upon receipt of the final investigative report, the Hearing Officer will convene a Decision Maker panel and schedule a live hearing. The panel will consist of three (3) individuals selected by the Hearing Officer who have completed Decision Maker training during the current academic year. The Hearing Officer will designate one of the Decision Makers as Primary Decision Maker. The Hearing Officer will notify the Complainant, Respondent, their respective advisors, Title IX Coordinator, Title IX Investigator, witnesses named in the final report, and the Decision Makers of the live hearing date within five (5) business days of receipt of the final investigative report. The live hearing date must provide the Complainant, Respondent, and their respective advisors with no less than ten (10) business days to review the final investigative report and all supporting evidence. A Hearing Officer may be utilized in addition to the Hearing Decision Maker(s).
The hearing must be a live, recorded hearing with the opportunity for both advisors to conduct cross-examinations. The hearing shall be recorded by either a court reporter or on audio or video tape or by other electronic recording medium. In addition, all items offered into evidence by the parties, whether admitted into evidence or not, shall be marked and preserved as part of the hearing record.
Upon request, the Complainant and Respondent may participate in the hearing via on-campus video conferencing provided that all parties, including the Decision Making Panel, are able to see and hear the party or witness answering questions in real-time.
The Hearing Officer, Decision Makers, Complainant, Respondent, and their respective advisors will attend the hearing. The Title IX investigator, Title IX Coordinator and witnesses will be called to provide testimony if requested by the Decision Makers, parties or their respective advisors.
If a party does not have an advisor present at the live hearing, the College shall 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.
The hearing process will consist of:
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Opening statement by Hearing Officer
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Review of hearing procedures, formal complaint and notice of allegations by Hearing Officer
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Review of potential hearing outcomes and sanctions by Hearing Officer
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Complainant Testimony
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Cross-examination of Complainant by Respondent advisor
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Testimony of Witnesses of Complainant
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Cross-examination of Complainant Witnesses by Respondent advisor
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Respondent Testimony
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Cross-examination of Respondent by Complainant advisor
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Witnesses of Respondent Testimonies
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Cross-examination of Respondent Witnesses by Complainant advisor
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Decision Maker inquiries
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Review of appeal process by Hearing Officer
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Closing statement by Hearing Officer
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Dismissal of parties
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Decision Maker deliberations
At the hearing, the Hearing Officer shall read the hearing procedures, notice of allegations, formal complaint, potential hearing outcomes, and potential sanctions. After the Hearing Officer concludes opening statements, the Complainant shall have the opportunity to present such oral testimony and offer such other supporting evidence as deemed relevant to the formal complaint. Subsequent to Complainant testimony, the Respondent advisor may conduct cross-examination. The Decision Makers may question the Complainant after the cross-examination.
The Complainant may call witnesses to provide testimony as deemed appropriate to the formal complaint. The Respondent advisor may conduct cross-examination of the witnesses. The Decision Makers may question the witnesses after the cross-examination.
The Respondent shall then be given the opportunity to present such testimony and offer such other evidence as deemed relevant to the Respondent's defense against the formal complaint. Subsequent to Respondent testimony, the Complainant advisor may conduct cross-examination. The Decision Makers may question the Respondent after the cross-examination.
The Respondent may call witnesses to provide testimony as deemed appropriate to the formal complaint. The Complainant advisor may conduct cross-examination of the witnesses. The Decision Makers may question the witnesses after the cross-examination.
Only relevant cross-examination and other questions may be asked of a party or witness.
During cross-examination, the advisor will pose each question orally to the Primary Decision Maker. The Primary Decision Maker will determine if the Complainant, Respondent, or witnesses may respond to the question. If the Primary Decision Maker chair determines that the question is not relevant, the Primary Decision Maker will explain the rationale for dismissing the question. Rape shield protection is provided for Complainants which deems irrelevant questions and evidence about a Complainant’s prior sexual behavior unless offered to prove that someone other than the Respondent committed the alleged misconduct or if the questions and evidence concern specific incidents of Complainant’s prior sexual behavior with respect to the Respondent and offered to prove consent.
Decision makers cannot draw an inference about the determination regarding responsibility based solely on a party or witness’s absence from the live hearing or refusal to answer cross-examination or other questions.
Upon conclusion of the presentation of the evidence and cross-examinations, the Hearing Officer shall read the appeal process and closing statements. The Complainant, Respondent, their respective advisors and all witnesses shall be dismissed.
The Decision Makers will deliberate to determine if the Respondent is deemed responsible and submit a written hearing report which contains:
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identification of the allegations potentially constituting sexual harassment;
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a description of the procedural steps taken from the receipt of the formal complaint through determination, including any notifications to the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, and hearings held;
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findings of fact supporting the determination;
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conclusions regarding the application of the College’s code of conduct to the facts;
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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
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the College’s procedures and permissible bases for the complainant and respondent to appeal.
The Primary Decision Maker will submit the hearing report to the Hearing Officer within ten (10) business days of the live hearing.
The Hearing Officer will submit the hearing report simultaneously to the Title IX Coordinator, Complainant, Respondent, and their respective advisors within three (3) business days of receipt of the hearing report.
The College must provide the written determination to the parties simultaneously. 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.
The Title IX Coordinator will retain the recording of the hearing, the hearing report, the investigative report, and all evidence obtained during the investigation and all evidence offered at the hearing.
Appeal Procedure
Appeals of a determination regarding responsibility and from the College’s dismissal of a formal complaint or any allegations therein are available to both parties on the following grounds: (1) procedural irregularity that affected the outcome of the matter; (2) new evidence that was not reasonably available at the time the decision regarding responsibility or dismissal was made, that could affect the outcome; and/or (3) the Title IX Coordinator, Investigator, or a Decision Maker had a conflict of interest or bias that affected the outcome.
The President of Enterprise State Community College or his/her designee shall be the appeal authority in upholding, rejecting, or modifying the recommendations of the Decision Maker Panel. The President or his/her designee shall not be bound in any manner by the recommendation(s) of the Decision Maker Panel, but shall take it (them) into consideration in rendering his/her decision.
Either party may file a written request with the President requesting that the President review the decision of the Decision Maker Panel. The written request must be filed within ten (10) business days following the party's receipt of the hearing report. If the appeal is not filed by the close of business on the tenth (10th) business day following the party's receipt of the report, the party's opportunity to appeal shall have been waived.
As to all appeals, the College will:
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notify the other party in writing when an appeal is filed and implement appeal procedures equally for both parties;
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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.
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ensure the decision-maker(s) for the appeal complies with the standards set for in 34 C.F.R. § 160.45(b)(iii);
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give both parties a reasonable, equal opportunity to submit a written statement in support of, or challenging, the outcome;
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issue a written decision describing the result of the appeal and the rationale for the result; and
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provide the written decision simultaneously to both parties.
A decision on a party’s appeal shall be rendered within 30 calendar days of the initiation of the appeals process. The time for decision may be extended for exigent circumstance or as may be otherwise agreed by the parties.
If the Respondent is also an employee of the College, the individual may also file a claim with the Equal Employment Opportunity Commission within 180 days of the alleged discriminatory act.
Informal Resolution
The 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. Similarly, the 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. 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 does the following:
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provides to the parties a written notice disclosing: the allegations, 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 any consequences resulting from participating in the informal resolution process, including the records that will be maintained or could be shared;
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obtains the parties’ voluntary, written consent to the informal resolution process; and
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does not offer or facilitate an informal resolution process to resolve allegations that an employee sexually harassed a student.
RETALIATION PROHIBITED
Neither the College nor other person may intimidate, threaten, coerce, or discriminate against any individual for the purpose interfering with any right or privilege secured by Title IX, or because the individual has made a report or complaint, testified, assisted, or participated in any manner an investigation, proceeding, or hearing conducted under this policy. Complaints alleging retaliation may be filed according to the grievance procedures included in the formal complaint process. The College shall keep confidential the identity of any individual who has made a report or filed a formal complaint of sexual harassment, any complainant, any individual who has been reported to be the perpetrator of sex discrimination, any respondent, and any witness except as may be permitted by FERPA statute, 20 U.S.C. 1232g or FERPA regulations, 34 CFR part 99, or as required by law, or to carry out the purposes of 34 CFR part 106, including the conduct of any investigation, hearing, or judicial proceeding arising thereunder.
Range of Possible Sanctions for Students
On final determination of responsibility the following sanctions may be imposed against a respondent:
Reprimand
Written notice that continuation or repetition of improper conduct may be cause for further disciplinary action.
Restitution
Compensation for damages to property owned by the College, limited to actual cost of repair or replacement.
Probation
This sanction is for a designated period of time, which may include exclusion from privileges, such as extracurricular activities and/or on-campus driving privileges. Furthermore, if the student is determined by any of the disciplinary procedures herein to be in subsequent violation of the Code of Student Conduct during the probationary period, the student may be either suspended or expelled. Provisions of the probationary period shall be determined and expressed by the Title IX Coordinator.
No Contact Orders
Written notice to cease all contact with an alleged victim of sexual misconduct.
Cease and Desist Orders
The alleged perpetrator will be directed by written notice to cease and desist any activity noted by the alleged victim as offensive or threatening and that may be a violation of the Title IX & Sex Discrimination Policy.
Voluntary Withdrawal
A student may be given the option to voluntarily withdraw from a class or from the College in lieu of disciplinary action. The Title IX Coordinator, in some circumstances, may specify a period of time before the student may apply for readmission or re-enroll in a class or classes. To qualify for readmission, the student must receive approval from the Dean of Students and meet the academic standards for readmission. Students will not be eligible for any refund from the College. (If a student withdraws before disciplinary procedures are carried out, the student will be subject to discipline as may be imposed by the designated College official at the time of reentry into the College).
Suspension
Separation from the College for a definite period of time. A student may be suspended for a specific period of time not to exceed two (2) years. To qualify for readmission after suspension, a student must receive approval from the Dean of Students and meet all reasonable requirements and academic standards for readmission. Students will not be eligible for any refund from the College.
Expulsion
An indefinite termination of a student from the College for a period of not less than two (2) years. To qualify for readmission after expulsion, a student must receive approval from the Dean of Students and meet all reasonable requirements and academic standards for readmission. Students will not be eligible for a refund from the College. Under certain conditions, expulsion could mean permanent severance from the College.
Other Requests of the complainant as deemed appropriate.
Range of Possible Sanctions for Employees
For violations of this policy by faculty or staff members, disciplinary penalties (in accordance with the employment laws, regulations, and policies governing the employee in question) may include:
Range of Possible Sanctions for Individuals Other than Employees or Students
For violations of this policy by an individual unaffiliated with the College, disciplinary penalties may include:
At any time in the grievance process the College may impose a temporary delay or limited extension of time frames for good cause with written notice to the complainant and the respondent of the delay or extension and the reasons for the action. Good cause may include considerations 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.
Neither the College assigned Investigator or Decision Makers and any person who facilitates an informal resolution process shall require, rely upon, or otherwise use questions or evidence that constitute or seek disclosure of information protected under a legally recognized privilege, unless the person holding such privilege has waived the privilege.
The College’s Title IX Coordinators, Investigators, Decision Makers shall all have received training for their respective roles prior to participating in a Title IX Complaint or grievance process. All materials used to train the Title IX Coordinators, Investigators, Decision Makers and any person who facilitates an informal resolution process may be found on the College’s website at www.escc.edu.