Initial Review of Reports of Sex-Based Misconduct; Dismissal of Formal Title IX Sexual Harassment Complaint and Appeal from Dismissal

For reports regarding Sex-Based Misconduct, the Title IX Coordinator shall conduct an initial review of the report and determine the appropriate grievance process for the matter, as set forth in this section.

A. Requirements for Formal Title IX Sexual Harassment Complaint

In order for a complaint to be subject to the Grievance Process for Complaints of Title IX Sexual Harassment, a Formal Title IX Sexual Harassment Complaint must be filed either by an alleged victim, the parent or guardian of a minor alleged to be a victim, or the Title IX Coordinator.

A Formal Title IX Sexual Harassment Complaint is considered “filed” when either of the following occurs:

  1. An alleged victim files a report alleging another person has subjected them to Title IX Sexual Harassment and the report contains a physical or digital signature, or otherwise indicates that the Complainant is the person filing the Formal Title IX Sexual Harassment Complaint. If the identity of the Respondent is not known to the Complainant, the Complainant does not need to include the Respondent’s identity in the Complaint, as this may be determined during the investigation process.
  2. The Title IX Coordinator files and signs a Formal Title IX Sexual Harassment Complaint. 

Additionally, at the time of filing a Formal Title IX Sexual Harassment Complaint, the following three requirements must be met:

  1. The alleged victim must be participating in or attempting to participate in the education program or activity of the University;
  2. The alleged misconduct must have occurred against a person in the United States either (a) on FPU property; (b) in connection with FPU activities, programs, or events where the University exercises substantial control over the respondent and the context in which the incident occurred; (c) buildings owned or controlled by officially recognized University student organizations, regardless whether the building is located on or off-campus and irrespective of whether the University exercised substantial control over the respondent and the context of the harassment; (d) cyber harassment conducted over computer and internet networks, digital platforms, and computer hardware or software owned or operated by, or used in the operation of, the University; or (e) off-campus conduct that has effects in the education program; and
  3. The conduct alleged in the Formal Title IX Sexual Harassment Complaint must, if proven by a preponderance of the evidence, constitute Title IX Sexual Harassment. 

Participation or Attempted Participation in an Educational Program or Activity: An alleged victim must be participating in or attempting to participate in the education program or activity of the University. This includes, but is not limited to:

  1. Applicants for or students enrolled in a University academic programs;
  2. Applicants for employment or those employed by the University;
  3. Alumni of the University if they graduated from a program of the University and intend to either (a) apply to a different program offered by the University or (b) to remain involved with University’s alumni programs and activities; or
  4. A student who is on a leave of absence if they are still enrolled as a student of the University or if they intend to re-apply to the University after the leave of absence is concluded; or
  5. A student who has left the University because of Title IX Sexual Harassment, but who wants to re-enroll if the University responds appropriately to the Title IX Sexual Harassment;
  6. Employment by the University.

Substantial Control: When determining whether the University exercises substantial control over the respondent and the context in which the incident occurred, factors to be considered include, but are not limited to, whether the University funded, promoted, or sponsored the event.

Off-Campus Conduct: Off-Campus Conduct effects an education program when the alleged victim has to interact with the respondent in a University’s education program or activity, or when the effects of the underlying Title IX Sexual Harassment creates a hostile environment in the alleged victim’s workplace or educational environment.

B. Title IX Coordinator’s Decision to File a Formal Title IX Sexual Harassment Complaint

The Title IX Coordinator should file a Formal Title IX Sexual Harassment Complaint if doing so is necessary to avoid being deliberately indifferent to known Title IX Sexual Harassment, with or without the participation of the alleged victim. In determining whether to file a Formal Title IX Sexual Harassment Complaint, the Title IX Coordinator may consider a variety of factors including, but not limited to, a pattern of alleged misconduct by a particular respondent, and/or whether the allegations involve violence, weapons, whether filing a Formal Title IX Sexual Harassment Complaint is the best mechanism to protect the campus community, or similar factors.

To the extent possible, the Title IX Coordinator will respect the alleged victim’s autonomy and wishes with respect to the filling of a Formal Title IX Sexual Harassment Complaint and grievance process. As such, the Title IX Coordinator’s decision to file a Formal Title IX Sexual Harassment Complaint may occur only after the Title IX Coordinator has promptly contacted the alleged victim of Title IX Sexual Harassment to discuss availability of supportive measures, explain to the process for filing a Formal Title IX Sexual Harassment Complaint and consider the alleged victim’s wishes with respect to supportive measures and the Formal Title IX Sexual Harassment Complaint process.

Where the Title IX Coordinator files a Formal Title IX Sexual Harassment Complaint, the Title IX Coordinator is not considered a Complainant or otherwise a Party to the grievance process.

C. Dismissal of Formal Title IX Sexual Harassment Complaint; Appeal of Dismissal

The University is required to dismiss a Formal Title IX Sexual Harassment Complaint if: (1) the conduct alleged, if true, does not constitute Title IX Sexual Harassment; (2) the conduct alleged did not occur in the University’s education program or activity; or (3) did not occur against a person in the United States.

The University may, but is not required to, dismiss a Formal Title IX Sexual Harassment Complaint at any time during the grievance process if: 

  1. An alleged victim notifies the Title IX Coordinator in writing that the alleged victim would like to withdraw the Formal Title IX Sexual Harassment Complaint or allegations therein;
  2. The respondent is no longer enrolled or employed by the University; or
  3. Specific circumstances prevent the University from gathering evidence sufficient to reach a determination as to the Formal Title IX Sexual Harassment Complaint or allegations therein.

Circumstances preventing University from gathering sufficient evidence to reach a determination includes, but are not limited to, the following: the report of Sex-Based Misconduct does not identify an alleged victim; the report of Sex-Based Misconduct includes precisely the same allegations that the University has already processed through this Policy; the length of time between an alleged incident of Sex-Based Misconduct and the filing of a Formal Title IX Sexual Harassment Complaint prevents the University from collecting enough evidence to reach a conclusion; or when the alleged victim has stopped participating in the investigation but has not sent a written withdrawal request and the only inculpatory evidence available is the alleged victim’s statement in the Formal Title IX Sexual Harassment Complaint or as told to the Title IX Coordinator or a University investigator.

In all cases of dismissal of a Formal Title IX Sexual Harassment Complaint, regardless of whether the dismissal was mandatory or permissive, such dismissal does not preclude the University, in its sole discretion, from processing a report of Sex-Based Misconduct under the University’s Grievance Process 1, or another appropriate University policy or procedure.

If the University dismisses a Formal Title IX Sexual Harassment Complaint, the Title IX Coordinator will promptly send written notice of the dismissal and reasons for such dismissal simultaneously to the Parties (“Notice of Dismissal of Formal Title IX Sexual Harassment Complaint”). Such notice shall include an option to appeal the determination regarding dismissal.

Either party may appeal the dismissal of a Formal Title IX Sexual Harassment Complaint on any of the following bases: (1) a procedural irregularity that affected the outcome of the matter; (2) new evidence not reasonably available at the time the determination of dismissal was made that could affect the outcome of the matter; or (3) the Title IX Coordinator had a conflict of interest or bias against a party generally or individually that affected the outcome of the matter. 

Any appeal of a dismissal of a Formal Title IX Sexual Harassment Complaint must be made in writing to the Title IX Coordinator within five (5) business days of the date of the Notice of Dismissal of Formal Title IX Sexual Harassment Complaint and must set forth all grounds for the bases of such appeal. If an appeal does not set forth sufficient grounds for appeal, the appeal will be dismissed. If an appeal does set forth sufficient grounds for appeal the appeal will be reviewed by an appeal adjudicator for final decision regarding dismissal on or around five (5) business days of the date of the appeal.

D. Option to Consolidate Formal Title IX Sexual Harassment Complaints

The Title IX Coordinator may consolidate multiple Formal Title IX Sexual Harassment Complaints against more than one Title IX Sexual Harassment Respondent, or by more than one Title IX Sexual Harassment Complainant against one or more Title IX Sexual Harassment Respondents, or by one party against the other party, where the allegations of sexual harassment arise out of the same facts or circumstances. The requirement for the same facts or circumstances means that the multiple Title IX Sexual Harassment Complainants’ allegations are so intertwined that their allegations directly relate to all parties.

E. Offer of Title IX Supportive Measures

The Title IX Coordinator is responsible for offering and coordinating the effective implementation of Title IX Supportive Measures. In cases of alleged Title IX Sexual Harassment, regardless of whether or not a Formal Title IX Sexual Harassment Complaint has or will be filed, the Title IX Coordinator will promptly contact the alleged victim to discuss the availability of Title IX Supportive Measures and consider the person’s wishes with respect to such measures. The Title IX Coordinator will engage in a meaningful dialogue with the alleged victim to determine which supportive measures may restore or preserve equal access to the University’s education program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties or the University’s educational environment, or deter sexual harassment. If a complainant desires supportive measures, the recipient can, and should, keep the complainant’s identity confidential (including from the respondent), unless disclosing the complainant’s identity is necessary to provide supportive measures for the complainant (e.g., where a no-contact order is appropriate and the respondent would need to know the identity of the complainant in order to comply with the no-contact order, or campus security is informed about the no-contact order in order to help enforce its terms).

When supportive measures are not provided to the alleged victim, the Title IX Coordinator shall document the reason why such measures were not provided and not clearly unreasonable in light of the known circumstances.

The Title IX Coordinator may also provide Title IX Supportive Measures to the person accused of Title IX Sexual Harassment, as appropriate.

F. Emergency Removal of Student Title IX Respondent; Appeal of Emergency Removal

The Title IX Coordinator may remove a student Title IX Respondent from the education program or activity on an emergency basis only if: 

  1. Before such removal, the University will undertake an individualized safety and risk analysis, determine that an immediate threat to the physical health or safety of any student or other individual arising from the allegations of sexual harassment justifies removal; and
  2. The Title IX Respondent is provided with notice and an opportunity to appeal the decision immediately following the removal (“Notice of Emergency Removal”). 

To appeal a decision for emergency removal, a student Title IX Respondent must submit their appeal (“Emergency Removal Appeal”) to the Title IX Coordinator in writing within seventy-two (72) hours of receiving the Notice of Emergency Removal. The Emergency Removal Appeal must describe the reasons why emergency removal is not appropriate. 

The Emergency Removal Appeal will be reviewed by the Vice President of Student Development (or designee other than the Title IX Coordinator) which will issue of a final decision on emergency removal, generally within forty-eight (48) hours of the Title IX Coordinator’s receipt of the Emergency Removal Appeal. A Title IX Respondent is subject to the requirements of the emergency removal while the appeal is pending.

Nothing in this section precludes the University from placing an employee Title IX Respondent on paid administrative leave.