/Institutions/Cumberland-University/json/2022-2023/University-Policy-local.json

/Institutions/Cumberland-University/json/2022-2023/University-Policy.json

Policy > Sexual Misconduct > Sexual Misconduct Reporting an Incident - Title IX > Live Hearing Procedures

Live Hearing Procedures

IX. Live Hearing Procedures

 

A.   Upon the receipt of the final investigation report from the investigator, the Title IX Coordinator shall complete the following steps:

1.    Simultaneously notify both the Respondent and the Complainant that the final report has become available for review at least 10 actual days before any hearing. Advisors may review the report.

2.    Deliver the report to the appropriate Decision Maker, who will have training on question relevance, including how to provide sound and defensible rationale for excluding unapproved questions. Decision Makers are selected by the Title IX Coordinator and may include the University’s legal counsel, senior faculty members, or senior staff members.

3.   The Title IX Coordinator will call together a live hearing panel of the appropriate Decision Maker and two members of the Title IX Council. The Decision Maker will serve as the Chair of the panel.

a.    Members of the Title IX Council will be current faculty or staff members at the University, and will be appointed by the Title IX Coordinator.

b.    Members of the Title IX Council, including Decision Makers, will have annual training that satisfies the requirements of Title IX of the Education Amendments of 1972, the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, and the 15 20 U.S.C. § 1981 16 20 U.S.C. § 1092(f) Cumberland  Title IX Policy 22 federal regulations implementing those statutes, as amended. Members will understand confidentiality requirements and the University’s Title IX policy.

c.     Members of the panel, including Decision Makers, must disclose a conflict of interest with either party that could create a perception of bias. Conflicts of interest will result in the member being removed from the panel and replaced.

d.    If the Complainant or Respondent believes a panel member or the Decision Maker has a conflict of interest, that party must submit a written explanation of the reason for that belief to the Title IX Coordinator. The explanation must be submitted within 3 business days of the time when the party knew or should have known the facts that would give rise to the alleged conflict of interest. The Title IX Coordinator, in consultation with necessary counsel, will determine if a conflict of interest exists under the criteria set forth in T.C.A. § 4-5-303 or some other basis that warrants the appointment of a different hearing officer or committee member and respond to the party in writing within 3 business days, absent good cause. The decision of the Title IX Coordinator shall be final.

 

B.    The panel will receive the investigation report (as described in Section VIII.) in advance of the live hearing.

C.    The Complainant and Respondent shall receive sufficient notice of the hearing (including date, time, location, participants, and purpose). The Complainant, Respondent, and each party’s Advisor shall be allowed access to any evidence presented during any disciplinary hearing or other proceeding during the disciplinary process.

D.    Both the Complainant and Respondent will be granted live video and audio access to the entirety of the proceedings upon request, but both parties will never be present in the same location at the same time during the hearings.

E.    Hearings will consist of the panel, including the Decision Maker, requesting the presence of individuals including the Complainant, the Respondent, the investigator, and any witnesses.

1.      Both parties may request to appear before the hearing panel if they wish and make an oral statement regarding the facts. Both parties shall be allowed to have an Advisor of their choice accompany them. During this appearance, the panel may ask questions of the party, but extended statements or questioning is unnecessary. The other party’s Advisor may also ask questions of the party (See Section IX. F.)

a.    Only Relevant cross-examination and other questions may be asked of a party or witness.

b.    Questions that test credibility will be allowed, but intimidating questioning tactics will not be allowed.

c.     Before any question is answered, the Decision Maker must first determine whether the question is Relevant and explain any decision to exclude a question as not Relevant.

d.    Questions and evidence about the Complainant’s sexual predisposition, prior sexual behavior, or similar questions are not Relevant, unless such questions and evidence about the Complainant’s prior sexual behavior are offered to prove that someone other than the Respondent committed the conduct alleged by the 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.

2.    The hearing panel may ask the investigator questions related to the investigation report.

3.    The hearing panel may request to hear from one or more of the witnesses, though the panel’s presumption should be that the investigator has identified and interviewed all relevant witnesses and supplied the information necessary for the hearing panel to render its decision and determine sanctions. Both parties’ Advisors may also request to hear from any witness for cross-examination, with all questions adhering to guidelines outlined in Section IX. E. 1.

F.    Advisors of Complainants and Respondents have the right to ask questions and follow-up questions to, or “cross-examine”, the other party and all witnesses during the live hearing.

1.    Any cross-examination at the live hearing must be conducted directly, orally, and in real time by the party’s Advisor of choice and never by a party personally.

2.    All questions must adhere to guidelines outlined in Section IX. E. 1.

3.    If a party does not have an Advisor present at the live hearing, the University will provide an appropriate Advisor, free of charge to the party.

4.    If a party or witness does not submit to cross-examination at the live hearing, the Decision Maker must not rely on any statement of that party or witness in reaching a determination regarding responsibility; provided, however, that the Decision Maker 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.

G.    All hearings will be recorded by transcript or audio/audiovisual recording. The Complainant and Respondent will both have access to this record for inspection and review, but never for copy.

H.    The hearing panel will convene to deliberate and render a decision regarding whether or not the Respondent has violated University policy by a preponderance of the evidence, though the final determination is at the sole discretion of the Decision Maker. The Decision Maker shall use a preponderance of the evidence standard when reaching a decision.

I.     The Decision Maker prepares the hearing panel’s written decision and rationale, including the specific sections of the code alleged to have been violated; a description of all the steps taken from the receipt of the Formal Complaint through the hearing; specific descriptions of all findings of fact that support the determination; a statement and rationale with respect to each allegation, including determination (finding of responsibility or non-responsibility), and sanctions. The written determination will be returned to the Title IX Coordinator, who will provide simultaneous written notification of the outcome to the Complainant and the Respondent via Cumberland email. The Decision Maker’s determination will be filed with the investigation report.

J.  If either the Complainant or Respondent is dissatisfied with the panel’s determination, that determination may be appealed to the Provost and Vice President for Academic Affairs by notifying the Title IX Coordinator in writing of the decision to appeal within 5 business days of the date that the panel’s determination is sent to the parties’ University email addresses. (See Section X.)

K.    If a written request for appeal is not received within 5 business days, the determination is final.

L.     If a final decision has been made that a policy violation occurred, the Title IX Coordinator shall determine if any remedies are required to address the campus-wide environment, taking into consideration the impact of an incident of Sexual Discrimination and/or Harassment on the campus as a whole and on specific groups or areas on campus. For example, the Title IX Coordinator may determine that specific training is needed for a student group whose members have been accused of Sexual Assault.