Live Hearing Procedures | University Handbooks

Formal Title IX Sexual Harassment Complaints shall be adjudicated at a live hearing (“Hearing”) as set forth below. References to the “Parties” include the Title IX Complainant(s) and Title IX Respondent(s).

Hearing Officer Appointment and Purpose. The Title IX Coordinator shall appoint a Hearing Officer to conduct a live hearing as required under Title IX procedures. The Hearing Officer shall be the decision maker and shall:
1. Evaluate all relevant evidence, both inculpatory and exculpatory, and independently reach determinations regarding findings of fact and whether the Title IX Respondent is responsible for Title IX Sexual Harassment; and
2. Determine the appropriate Preventative and Corrective Measures, consistent with the University’s past practice and this Policy.
Hearing Officer Qualifications. The Hearing Officer may be a University employee or external third-party, such as an attorney, so long as the person:
1. Is not the Title IX Coordinator or Investigator;
2. Is free from conflict of interest or bias, including bias for or against complainants or respondents generally or with respect to the individual parties;
3. Has reviewed this Policy and understands the regulations applicable to the live hearing process pursuant to 34 Code of Federal Regulations Section 106.45; and
4. Is qualified by experience, education and/or training to effectively implement the requirements:
  1. To serve impartially;
  2. Understand issues of relevance of evidence (including how to apply the sexual history evidentiary rules);
  3. The preponderance of the evidence standard; and
  4. Any technology to be used at the hearing.
Delivery of Notice, Documents, and Information. All notices 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, notices and communications will be sent to the most recent email address on file with the Title IX Coordinator or, if no email address is on file then to their last known physical address. Copies of all documents provided to the Parties will also be provided to each Party’s advisor if known at the time the documents are delivered to the Parties. If a Party is an unemancipated minor, copies of all documents will be provided to the Party and a parent or guardian of the minor upon request of either the parent/guardian or Party. The Title IX Sexual Harassment Case File and other relevant documents and information will be provided electronically unless otherwise requested by a hearing participant.
Virtual Hearing; Participants. Generally, all hearings will be virtual. A virtual hearing means that the Parties are located in separate locations such that the parties never come face-to-face with each other, the Hearing Officer, or witnesses. This may be done through the use of technology whereby all participants are still able to simultaneously see and hear the proceedings. At a virtual hearing, the Parties have the right to be present to observe and hear (or, if deaf, hard of hearing, blind or visually impaired, to access through auxiliary aids) testimony of all individuals who testify and to propose questions to be asked of all individuals who testify at the hearing through their Advisor. The University may, in its discretion, designate that the hearing will be in person and, if so, either Party may request a virtual hearing instead. Such request must be made in writing submitted to the Title IX Coordinator at least five (5) calendar days prior to the Hearing. Only the Parties, witnesses, Advisors, the Title IX Coordinator, University support staff, and support staff of external professionals involved in the proceeding may attend the Hearing.
Pre-Hearing Procedures.
1. Notice of Hearing. The Title IX Coordinator will send a written Notice of Title IX Sexual Harassment Hearing to the Title IX Complainant and the Title IX Respondent at least fifteen (15) calendar days before the hearing. The Notice of Title IX Sexual Harassment Hearing shall include the following information:
  1. The date, time, location;
  2. Purpose of the hearing;
  3. The name of the Hearing Officer;
  4. Other applicable pre-hearing, hearing and post-hearing procedures;
  5. An electronic or hard-copy of the Title IX Sexual Harassment Case File; and
  6. Notification of whether the University had elected to hold the hearing in-person and, if so, information regarding how to request a virtual hearing.
2. The Hearing Officer shall also receive a copy of the Notice of Title IX Sexual Harassment Hearing.
3. Summary of Information. At least ten (10) calendar days before the hearing, the Title IX Complainant and the Title IX Respondent will submit to the Title IX Coordinator a written summary of the information they intend to present at the hearing, including a list of documents to be presented, the names of all requested witnesses, and a brief summary of such witnesses’ expected testimony (“Summary of Information”). The Parties must provide the Title IX Coordinator with electronic or hard-copies of any documents not already in the Title IX Sexual Harassment Case File.
4. Notice to Witnesses. The Title IX Coordinator shall contact each requested witness and to notify them of the date, time, location of the Hearing and procedures relevant to their appearance (“Notice to Witness of Hearing Appearance”).
5. Deadline for Response to Investigation Report. The last day for the Parties to submit their response to the Investigation Report is five (5) calendar days before the hearing.
6. Cross-Examination or Other Questions. The University encourages that the Parties submit their questions in advance of the hearing to the Title IX Coordinator to allow for a more efficient hearing process, although this does not preclude either Party from asking questions at the Hearing which were not previously submitted. Student parties will have the opportunity to submit written questions to the Hearing Officer in advance of the hearing. At the hearing, the other party will have the opportunity to note an objection to the questions posed. If a Party chooses to submit questions in advance, they are encouraged to do so at least three (3) calendar days prior to the Hearing.
7. Pre-Hearing Packet. At least three (3) calendar days prior to the Hearing, the Title IX Coordinator will provide to each Party and the Hearing Officer, either a hard-copy or an electronic copy of the Pre-Hearing Packet, which shall include:
  1. The Summary of Information provided by the Parties;
  2. Any new documents not already provided; and
  3. A list of witnesses who are expected to appear at the Hearing.
8. Request for Disability Accommodations. If a Party, witness, Hearing Officer or Decision-Maker Panel member requires reasonable accommodation for a disability, they shall submit such request in writing to the Title IX Coordinator along with supporting information from a healthcare provider as soon as possible and at least three (3) calendar days prior to the hearing.
Hearing Procedures.
1. Hearing Officer Guidelines; Standard of Evidence. Prior to and during the live hearing the Hearing Officer shall approach each case without any preconceived ideas of the responsibility of the Parties involved and thoroughly review the Title IX Sexual Harassment Case File, Summaries of Information and any other relevant documents and information submitted by the Parties prior to hearing. To arrive at findings of fact and determination of responsibility the Hearing Officer must objectively evaluate relevant evidence (both inculpatory and exculpatory) and analyze whether that evidence warrants a high or low level of weight or credibility, including the credibility of each Party and witness. The Hearing Officer has discretion to accept or exclude additional information presented at the live hearing; however, the Hearing Officer may not exclude any evidence relevant to the allegations of Title IX Sexual Harassment. The standard of evidence at the Hearing shall be a Preponderance of the Evidence. The Hearing Officer may determine that an extension or continuance of the hearing is necessary and, if so, shall coordinate with the Title IX Coordinator to issue simultaneous notices to all Parties and witnesses.
2. Recording. The University will create an audio or audiovisual recording, or transcript, of any live hearing and will make it available to the parties for inspection and review, within a reasonable time period following the hearing. The type of recording shall be at the Title IX Coordinator’s discretion. The University’s recording shall be the only recording permitted at Hearing, and the Parties will receive a copy of it with the Hearing Officer’s Decision.
3. Hearing Advisor. Each Party is given the opportunity to choose their own advisor, who may but is not required to be an attorney, to attend the Hearing (“Hearing Advisor”) to ask relevant questions of the other Party at the Hearing. If a Party does not select their own Hearing Advisor, the University will assign such Party their own Hearing Advisor selected by the University at no cost to the Party. The Hearing Advisor may be, but is not required to be, the Advisor who supported the Party during the investigation phase. The Parties are prohibited from being accompanied at the Hearing by anyone other than their Hearing Advisor except as follows:
  1. A parent or guardian of a Party who is an unemancipated minor may attend; and
  2. Additional parties required as part of a reasonable accommodation for a disability (e.g., a sign language interpreter) may attend.
4. Availability of Evidence; Presentation of Evidence. The University will make all such evidence that has been shared with the Parties subject to the other Party’s inspection and review available at the live hearing to give each Party equal opportunity to refer to such evidence during the hearing, including, but not limited to for purposes of cross-examination. The Title IX Coordinator (or designee), Investigator (or designee) or other University representative may, but is not required to, present evidence to the Hearing Officer at the Hearing. If the University presents evidence to the Hearing Officer, that shall not make the University a party to the proceeding. A designee or other University representative may be another University employee or an external third-party, such as an attorney or other qualified representative. The Complainant and Respondent will each have the opportunity to present the information they submitted (unless excluded by the Hearing Officer).
5. Rules of Procedure and Decorum. The Hearing Officer shall decide on any procedural issues as they may come up during the Hearing. The Hearing Officer will also make any determinations necessary to ensure an orderly, productive, and procedurally proper hearing. The Hearing Officer may pause or continue the proceeding as needed in order to make appropriate decisions on procedural issues, including issues of relevance of evidence. Complaint(s), respondent(s), witnesses, and Hearing Advisors are prohibited from interrupting or disturbing the hearing process. Additionally, Hearing Advisors are prohibited from questioning witnesses or the other Party in an abusive, intimidating, harassing, unduly time consuming, repetitive, or disrespectful manner. If a Party’s Hearing Advisor refuses to comply with the rules of decorum they may be removed from the Hearing and, if so, the University shall provide that Party a different Hearing Advisor to conduct the cross examination on behalf of that Party.
6. Questions During Hearing.
  1. Questions by Parties’ Hearing Advisors. All questioning on behalf of a Party shall be done by the Parties’ Hearing Advisors. The Hearing Advisor may only ask relevant cross-examination and other questions of a party or witness. After each question is asked by the Hearing Advisor, and before the Party or witness answers the question, the Hearing Officer will determine whether the question is relevant and, if it is not relevant, explain the decision to exclude the question. If a Party or witness is present at the Hearing, but disagrees with a relevance determination, they may either:
    1. Abide by the hearing-officer determination and answering the question; or
    2. Refuse to answer the question.
  2. A Party or witness may not answer a question that the Hearing Officer has determined to be irrelevant. Unless the Hearing Officer reconsiders the relevance determination, the Hearing Officer cannot rely on any statement made by a Party or witness which that Party or witness has declined to answer regarding cross-examination questions.
  3. Questions by the Hearing Officer. Additionally, the Hearing Officer has the right and responsibility to ask questions and elicit information from Parties and witnesses on the Hearing officer’s own initiative to aid the Hearing Officer in obtaining relevant evidence, both inculpatory and exculpatory.
  4. Failure to Appear for Cross-Examination. If a Party or witness does not submit to cross-examination at the live hearing, the Hearing Officer may still rely on any relevant statement of that Party or witness previously made in reaching a determination regarding responsibility, including, for example, those statements made by the parties and witnesses during the investigation, emails or text exchanges between the parties, statements about the alleged misconduct, statements in police reports, sexual assault examination reports, medical reports and other documents even if those documents contain statements of a party or witness who is not cross-examined. However, the Hearing Officer cannot draw an inference about the determination regarding responsibility based solely on a Party’s or witness’s absence from the live hearing or refusal to answer cross-examination or other questions. Statements that a Party or witness made to a third party when that witness or Party are unavailable themselves to be cross-examined at the live hearing (e.g., statements that a party made to a family member or friend), including statements made against a Party’s own interests, may still be relied on when the Party having made those statements fails to submit to cross-examination.²
  5. Irrelevant Questions. Questions regarding the below information are deemed not relevant and will be excluded at the Hearing unless the question(s) fall(s) into an exception described below.
    1. Consent Required for Privileged Information. The Hearing Officer 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 Party has provided voluntary, written consent to do so.
    2. Sexual History. The Hearing Officer 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 Complainant’s prior sexual behavior with respect to the Respondent and are offered to prove consent.
    3. Prior Dating Relationship. The Hearing Officer 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 Hearing Officer 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 Hearing Officer shall provide a written explanation to the parties as to why consideration of the evidence is appropriate.
    4. Duplicative or Repetitive Questions. Once a question has been asked, duplicative or repetitive questions are irrelevant.
    5. Questions of Witnesses Without Relevant Information. Questions of witnesses who do not have any relevant information regarding the allegations of Title IX Sexual Harassment.
Hearing Officer Decision. The Hearing Officer shall issue a written decision (“Hearing Officer Decision”) to the Title IX Coordinator within ten (10) business days following the end of the Hearing. Additionally, where not enough information exists for the Hearing Officer to issue a decision, the Hearing Officer may remand the case for further investigation or consideration by the Investigator. The Title IX Coordinator shall simultaneously deliver the Hearing Officer Decision to the Parties within two (2) business days following receipt of it from the Hearing Officer. The Title IX Coordinator is responsible for the effective implementation of Preventative and Corrective Measures determined by the Hearing Officer. The Hearing Officer Decision becomes final when:
1. The appeal deadline has passed; or
2. The appeal process has concluded and the Parties receive notification of the appeal decision. Specifically, the Hearing Officer Decision shall include the following information:
  1. Identification of the allegations of Title IX Sexual Harassment;
  2. A description of the procedural steps taken from the receipt of the Formal Title IX Sexual Harassment Complaint through the determination, including, but not limited to any notices to the Parties, interviews with Parties and witnesses, site visits, methods used to gather other evidence, and Hearing;
  3. Findings of fact supporting the determination of whether the Title IX Respondent is responsible for Title IX Sexual Harassment;
  4. Conclusions regarding the application of this Policy;
  5. A statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility, any Preventative and Corrective Measures to be imposed on the Title IX Respondent and/or provided to the Title IX Complainant in order to restore or preserve equal access to the University's education program or activity;
  6. A summary of matters not addressed under the grievance process that may be separately addressed pursuant to another University policy including, but not necessarily limited to, codes of conduct applicable to employees and the Student Values and Behavioral Standards policy;
  7. A statement that the Title IX Coordinator is responsible for effective implementation of the Preventative and Corrective Measures;
  8. The University's procedures and grounds for appeal, and the name and contact information for the appeal adjudicator; and
  9. A copy of the recording of the Hearing.
Preventative and Corrective Measures – Guidelines for the Hearing Officer. Preventative and Corrective Measures should serve the purpose of stopping Title IX Sexual Harassment, preventing its recurrence, and restoring or preserving equal access to the University’s education program or activity. Such measures need not avoid burdening a Title IX Respondent who has been found responsible for Title IX Sexual Harassment. Importantly, Preventative and Corrective Measures should appropriately reflect the University’s commitment to education, personal growth, accountability, and ethical behavior. The Hearing Officer shall ensure they are consistent and proportionate responses to conduct that violates this Policy, taking into consideration the context and seriousness of the violation, and based on a fact-specific, case-by-case inquiry.

² This Section XIII(B)(6)(f)(iii) was revised by FPU on September 21, 2021 in order to comply with Victim Rights Law Center et al. v. Cardona, United States District Court, District of Massachusetts orders filed July 28, 2021 and August 10, 2021, and the United States Department of Education Letter to Students, Educators and other Stakeholders dated August 24, 2021 regarding Victim Rights Law Center et al. v. Cardona. This revision shall be effective for all Grievance Process 2 hearings held on or after September 3, 2021 regardless of whether the facts giving rise to the alleged misconduct occurred before that date.