Formal Title IX Sexual Harassment Complaint Investigation Procedures

Formal Title IX Sexual Harassment Complaints shall be investigated as follows:

  1. Initial Review of the Complaint. The Title IX Coordinator shall conduct an initial review of the Complaint to determine whether an investigation is required. An investigation is required when there is a dispute of fact which impacts the determination of whether Title IX Sexual Harassment has occurred, or it is otherwise in the best interest of the campus community to do so. During the entirety of this grievance process, there will be a presumption that a Title IX Respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process.
  2. Assignment of Neutral Investigator. If an investigation is required, then the Title IX Coordinator shall assign a qualified neutral investigator to investigate the alleged misconduct (“Investigator”). In some cases, an investigative team may be utilized. The Investigator shall have no conflict of interest and be free of bias for or against a Title IX Complainant or Title IX Respondent generally or individually with respect to the people involved. Such determinations regarding bias shall be made by an objective evaluation of the circumstances without relying on stereotypes (e.g., assuming that all self-described feminists or survivors are biased against men, or that a man is incapable of being sensitive to women, or that prior work as a victim advocate or as a defense attorney renders the person biased for or against complainants or respondents). The Title IX Coordinator shall have broad discretion in selection of an Investigator, provided that the person assigned has both the skills, training and resources necessary to conduct a complete investigation. The Investigator may be a University employee or a third-party investigator.
  3. Notice of Formal Title IX Sexual Harassment Complaint Procedures. Before the investigation begins, the Title IX Coordinator will simultaneously provide the Title IX Complainant and Title IX Respondent with a Notice of Formal Title IX Complaint & Investigation Procedures (“Notice of Formal Title IX Sexual Harassment Complaint”). If a party has already elected an Advisor and submitted the required documentation for their Advisor, the Notice of Formal Title IX Sexual Harassment Complaint shall also be delivered to the Advisor. Additionally, in the case of unemancipated minors, the Title IX Coordinator shall send a copy of such notice to the unemancipated minor’s parent or guardian and is permitted to communicate with the parent or guardian regarding the grievance process. If the alleged victim’s identity is unknown and the Formal Title IX Sexual Harassment Complaint is filed by the Title IX Coordinator, the Notice of Formal Title IX Sexual Harassment Complaint is not required to be provided to the alleged victim or a third party who may have filed the initial report of Title IX Sexual Harassment. The Notice of Formal Title IX Sexual Harassment Complaint shall include the following information, as applicable:

    1. The alleged conduct that, if true, constitutes Title IX Sexual Harassment, including, if known, the identities of the Parties involved in, and the date, time, and location of, the alleged incident;
    2. A statement that the Respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the grievance process;
    3. A summary of the grievance process, including information regarding informal resolution procedures, each party’s entitlement to inspect and review evidence, rights regarding an Advisor and a copy of this Policy;
    4. Information regarding the importance of preserving evidence and the identification and location of witnesses, and that such evidence may assist in proving a criminal offense or in obtaining a protection order in a court of law;
    5. The purpose of the investigation and a statement that the investigation is when all known and/or available evidence or information must be introduced;
    6. A statement that knowingly making false statements or knowingly submitting false information to the University as part of the grievance process is a violation of this Policy and the codes of conduct applicable to employees and the Student Values and Behavioral Standards policy, and may subject the person doing so to corrective measures, up to and including expulsion from the University’s academic program and/or termination from employment;
    7. The identity and contact information for the Investigator;
    8. A statement that the standard of evidence is a Preponderance of Evidence;
    9. A statement warning against interference with the integrity of the investigation, including, but not limited to, discussions with witnesses which may be perceived as threatening or coercive;
    10. Any Title IX Supportive Measures that have been imposed (including information regarding the availability of both on-campus and off-campus resources and other supportive services); and an admonition against Retaliation;
    11. A statement that any new allegations that arise during the course of the investigation that could subject either party to new or additional sanctions shall be subject to the same notice requirements;
    12. A statement that advises student parties of their right to consult with an attorney, at their own expense, at any stage of the process if they wish to do so and that an attorney may serve as a support person or an advisor.
  4. Amended Notice of Formal Title IX Sexual Harassment Complaint. If during the course of the investigation, the Investigator will be investigating new allegations about the Parties that are not originally included in the Notice of Formal Title IX Sexual Harassment Complaint, then a subsequent notice containing these new allegations (“Amended Notice of Formal Title IX Sexual Harassment Complaint”) will be issued to both Parties. Additionally, if the new allegations do not constitute Title IX Sexual Harassment then the University may elect to process those allegations under other applicable grievance or dispute resolution processes, including, but not limited to, Grievance Process 1 or those contained in student or employee handbooks.
  5. Investigation Process.

    1. Timeline. Generally, the investigation shall be complete within ninety (90) business days from the issuance of the Notice of Formal Title IX Sexual Harassment Complaint to the Parties. This deadline and all deadlines contained in this Policy may be extended by the University for good cause. The Complainant and Respondent will be notified in writing of any such extensions, the reasons for the extension and the projected new timeline. The University shall not unreasonably deny a student party’s request for an extension of a deadline related to a complaint during periods of examination or school closures.
    2. Standard of Proof. The applicable standard of proof shall be a Preponderance of the Evidence.
    3. Interviews, Participation of the Parties & Gathering of Evidence. The Investigator is the person primarily responsible for gathering evidence sufficient to reach a determination regarding responsibility (i.e., such burden shall not rest on the Parties). During the investigation, the Investigator will meet separately with the parties and witnesses who may have relevant information and will also gather other available and relevant evidence and information. The Investigator will provide an equal opportunity for the Parties to present witnesses, including fact and expert witnesses, and will objectively review other inculpatory and exculpatory evidence. The Investigator will also consider relevant circumstances such as the ages of the Complainant and Respondent, disability status, position of authority of involved parties and other factors. The Parties are permitted to discuss the allegations under investigation with others or to gather and present relevant evidence; however, the Parties are precluded from intimidating or otherwise tampering with Parties or witnesses or otherwise interfering with the investigation, such as by attempting to alter or prevent a Party or witnesses’ testimony involved in the investigation. To the extent a student who is a Respondent declines to participate in the investigation, non-participation may not be used as a basis for appeal of the process and the Investigator will complete the investigation without the input of the Respondent. The interviews may be electronically recorded at the discretion of the Investigator and will be maintained by the Title IX Coordinator. It will be the sole electronic recording permitted; the Parties are not permitted to make their own recording of their interview. No recording devices, including cell phones, will be permitted in the room where the interview is taking place other than the Investigator’s recording device. The University reserves all rights with regard to requiring employee participation in the investigation process provided by law and University policy. The Investigator may bring support staff to investigative interviews or other proceedings to assist in the process. Parties and witnesses may bring an Advisor, as described below. No other persons are permitted at an investigatory interview or other proceeding unless granted permission by the Title IX Coordinator.
    4. Consent Required for Privileged Information. The Investigator cannot access, consider, disclose, or otherwise use a Party’s records which are protected by a legally recognized privilege, including, but not limited to, the following: the attorney-client privilege, questions and evidence made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional’s or paraprofessional’s capacity, or assisting in that capacity, and which are made and maintained in connection with the provision of treatment to the party, unless the Investigator obtains that party’s voluntary, written consent to do so.
    5. Sexual History. The Investigator may not consider a Title IX Complainant’s prior sexual history with the following two exceptions: if such information is offered to prove that someone other than the respondent committed the conduct alleged by the Title IX Complainant, or if the questions and evidence concern specific incidents of the Title IX Complainant’s prior sexual behavior with respect to the Respondent and are offered to prove consent.
    6. Prior Dating Relationship. The Investigator may not consider the existence of a dating relationship or prior or subsequent consensual sexual relations between the Complainant and Respondent unless the evidence is relevant to how the parties communicated consent in prior or subsequent consensual sexual relations. Where the Investigator allows consideration of evidence about a dating relationship or prior or subsequent consensual sexual relations between the complainant and the respondent, the mere fact that the complainant and respondent engaged in other consensual sexual relations with one another is never sufficient, by itself, to establish that the conduct in question was consensual. Before allowing the consideration of any evidence of a prior dating relationship, the Investigator shall provide a written explanation to the parties as to why consideration of the evidence is appropriate.
  6. Opportunity to Review Documentation and Information During Investigation Process. During the investigation process, the Investigator shall 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 Title IX Sexual Harassment Complaint. This includes evidence upon which the University does not intend to rely on in reaching a determination regarding responsibility, and includes inculpatory or exculpatory evidence whether obtained from a Party or other source, such that each Party should be able to meaningfully respond to the evidence prior to conclusion of the investigation. All Parties should submit any evidence that they would like the Investigator to consider prior to when the Parties’ time to inspect and review evidence begins.

    1. Redactions. The Investigator may redact information provided to either Party that is not directly related to the allegations or that is otherwise barred by a legally recognized privilege, or a Party’s treatment records if the Party has not provided written consent as further described in Section A.5.d. Formal Title IX Sexual Harassment Complaint Investigation Procedures/Investigation Process/Consent Required for Privileged Information, of Section XIII Grievance Process 2 for Formal Title IX Sexual Harassment Complaints. The Title IX Coordinator shall keep a log of all information not directly related or that is otherwise withheld from the Parties.
    2. Procedures for Review of Documentation. The University will send to each Party and the Party's advisor, if any, the evidence subject to inspection and review in an electronic format or a hard copy. The Parties will have ten (10) calendar days after receiving this information to submit a written response which the Investigator will consider prior to completion of the investigative report. During this ten (10) calendar day period, both Parties may provide additional evidence in response to their inspection and review of the evidence that had been provided to them. The additional evidence provided by both parties will be shared with the other party and each party shall have an additional opportunity to respond to the other party’s additional evidence during a five (5) calendar day period following the end of the ten (10) calendar day period. Following this process, the Investigator may also follow up with the Parties regarding any outstanding evidence either Party has not had a chance to speak to. No further review, exchange or submissions will be permitted at this stage.
  7. Investigation Report; Parties’ Review of Report. The Investigator shall prepare a written investigation report that fairly summarizes relevant evidence and includes copies of relevant documents as enclosures to the report (“Investigation Report”). The Investigation Report will include a statement summarizing the alleged misconduct, the perspectives of the parties (e.g., admissions or denials), a summary of the evidence, including a list of witnesses interviewed and documents reviewed. In a case where there are multiple Title IX Sexual Harassment Complainants and/or multiple Title IX Sexual Harassment Respondents, a single investigative report is permitted. At least ten (10) calendar days prior to the live hearing, the Investigator will send to each Party and each Party’s advisor, if any, the investigative report in an electronic format or a hard copy, for their review and written response. At the same time as the Investigator sends the Investigation Report to the Parties, the Investigator shall also send a copy of the Investigation Report to the Title IX Coordinator. During this ten (10) calendar day period the Parties may provide a written response to the Investigation Report to the Investigator.
  8. Title IX Sexual Harassment Case File. The Title IX Sexual Harassment Case File shall include:

    1. The initial report of Sex-Based Misconduct;
    2. The Formal Complaint;
    3. All notices delivered to the parties;
    4. Copies of all documents and information provided to the parties for review and inspection (either included as part of the Investigation Report or as separate documents);
    5. The Parties written responses to the Investigator regarding their inspection and review of documents and information during the investigation;
    6. The Investigation Report including all exhibits; and
    7. The Parties written responses to the Investigation Report, if available.
  9. Notices. All notices and communications to FPU faculty, staff, administration, and students will be delivered via the University’s email system. All such parties have a responsibility to promptly read all University emails. For individuals outside of the FPU community (including former employees and former/withdrawn students), notices and communications will be sent to the most recent email and physical home address on file with the Title IX Coordinator.
  10. Advisor. The Title IX Complainant and/or Title IX Respondent may choose anyone (including legal counsel, a colleague, friend, family member or other representative) to voluntarily serve as an advisory support person (“Advisor”), but in all cases the parties must participate directly in all meetings or process prior to the live hearing. The Complainant and Respondent may be accompanied by their Advisor to any meeting or investigation process; however, the Advisor may not speak on their behalf, advise them on how to answer a question of Investigator, or engage with the Investigator or others participating in any part of the process (excluding the live hearing), or otherwise interfere with the investigation in any way—other than to take reasonable breaks during the meeting or proceeding to confer with the respective Party. The Complainant and Respondent must notify the Investigator at least three (3) business days in advance if they wish to bring an Advisor and must disclose their name and contact information to the Investigator. The University may require the Parties and Party advisors to enter into non-disclosure agreements and/or FERPA waivers.