Discrimination, Harassment, and Sexual Misconduct
DETAILED DISCRIMINATION, HARASSMENT, AND SEXUAL MISCONDUCT PROCESSES AND STANDARDS
Any behavior that violates PPM 3-32, which prohibits discrimination on the basis of race, color, national origin, pregnancy, genetics, age (over 40), disability, religion, sex, sexual orientation, gender identity/expression, veteran, active military status and other classifications protected by law. This includes sexual misconduct, including sexual assault, stalking, domestic violence, or dating violence.
Jurisdiction: This section describes procedures for handling of allegations of discrimination, harassment, or sexual misconduct against students under PPM 3-32.
Goal: The goal of this process is to end discrimination and harassment, including sexual misconduct; eliminate any hostile environment; prevent its recurrence; and remedy the discriminatory effects on the complainant(s) and others as appropriate. Informal procedures at the lowest level possible are encouraged except where safety concerns are present, where alleged conduct was so traumatic that there is a risk of further psychological harm, or where a power differential between the parties makes mediation otherwise inappropriate.
Standard of Review: Preponderance of the evidence – meaning it was more likely than not that the student violated the standards in PPM 3-32 and the Student Code.
Temporary Interim/Emergency Sanctions: Individuals may face sanctions prior to engaging in this process if deemed appropriate at described in PPM 6-22.
Level 1: The issue is reviewed by the AA/EO Office under informal or formal procedures described in PPM 3-32, and then reviewed by the Dean of Students for decision making
Time Frames: Complaints should be reported as soon as possible after the event(s) which gives rise to the complaint. Complaints should be filed within six months of the most recent act which violates the policy. Where the interests of justice require, however, this time limit may be waived by AA/EO.
- The process described in this section is a synopsis only of how allegations are handled at this stage of the proceedings. Please review PPM 3-32 for more detailed information.
- An individual (“Complainant”) who believes a student (“Respondent”) has violated PPM 3-32 may submit a complaint to AA/EO.
- The parties may have an advisor present during meetings with AA/EO, who may only advise the student and may not actively participate in the informal process. In instances where it is foreseeable that a sanction of expulsion or suspension for ten days or more may be applied, the Respondent shall be notified of this right prior to being interviewed about allegations of misconduct and provided notice of the allegations. Notice may be given immediately before being interviewed, however, interviews will be rescheduled if the student desires to have an advisor in attendance.
- AA/EO may respond to the complaint with informal procedures, if neither the Complainant nor the Respondent request a formal investigation. Any party or AA/EO may request a formal investigation at any time. Formal investigations include written Complaints and Responses, and may also include witness interviews, physical or electronic evidence and other sources of information, as deemed appropriate.
- A complaint alleging a violation of PPM 3-32, may include claims of violations of other policies that grow out of the same facts or occurrences, and which may be resolved through this process as deemed appropriate by AA/EO.
- If a complaint is resolved informally, or at any time prior to the conclusion of a formal investigation, a Resolution Agreement will be prepared to record the terms of the resolution.
- If a formal investigation is completed, the AA/EO office will prepare a report. The parties will have the opportunity to respond to the report. The report, along with any submissions from the parties, will then be sent to the Dean of Students for her or his consideration.
- The Dean of Students will review the formal report and any submissions made by the parties and then determine within 10 working days whether to close the complaint, investigate further, attempt informal resolution between the parties, or impose disciplniary sanctions. Informal resolution is only available if all parties and the Dean of Students agree. The parties will simultaneously be notified of the decision, the basis for the decision, and any proposed sanctions or other resolution.
- Parties may appeal a decision by the Dean of Students at the formal level, described below.
Level 2: Committee level review.
Decision Maker: Complaints at this level shall be reviewed by the Student Code Review Committee (“Committee”), which Committee shall comprise five individuals who can engage in independent judgment. A student may only be a member of the Committee if agreed upon by the parties. Committee members shall receive annual training on those issues, including discrimination involving domestic violence, dating violence, sexual assault, and stalking, and on how to conduct an investigation and hearing process that protects the safety of victims and promotes accountability. One member of the Committee will be appointed Chair. Parties may submit objections to the Due Process Officer if there is good cause to believe the Committee members will not engage in independent judgment, who may appoint replacement members.
Time Limits: All Level 2 behavioral complaints must be sent to the Due Process Officer within ten working days of the notice of the final decision at Level 1.
- If the issue is not resolved to the satisfaction of the parties at the informal level, either party may submit a petition for a hearing to the Due Process Officer. The Due Process Officer shall promptly send the petition request to the Chair of the Committee.
- The petition must be in writing and include the basis for the challenge and the remedy sought.
- The Chair may determine not to review the petition if it is untimely, frivolous, based on issues that are beyond the jurisdictional boundaries established by University policy, or contains no actionable facts. Such decision must be in writing and may be reviewed by the Due Process Officer, in accordance with Level 3 below. The Chair may also recommend that the issue be reviewed further for resolution at an informal level, where appropriate.
- If the petition is accepted, the Chair shall give the Dean of Students a copy of the petition, notification of the process, and shall inform the Dean of Students of the opportunity to submit a written response to the Chair.
- The Chair shall schedule a hearing date within a reasonable time and notify the parties in writing of the date of the hearing, the names of the Committee members, and the procedures for the hearing.
- Prior to the hearing, the parties shall make available to each other and to the Committee a list of witnesses and a list of documents or other evidence the parties would like the Committee to consider at the hearing. In exceptional circumstances, the Committee may allow a party to invite others not listed or submit additional evidence at the hearing, at their discretion.
- The Chair has the option of holding a pre-hearing conference with the parties, to discuss how the hearing will be held, set forth procedures, review witnesses lists and a summary of witnesses’ testimony, and lists and summaries of exhibits. A mediated solution may be attempted at the pre-hearing conference, if desired by the parties. If attendance is required, arrangements may be made for the parties to not be located in the same room.
- At the hearing, the parties may be accompanied by an advisor of their choice. In instances where it is foreseeable that the sanction may be expulsion or suspension for ten days or more, the advisor may actively participate in the formal hearing to the same extent that would be otherwise allowed by the party, but may waive these rights. The parties must advise the Committee of their intent to bring the advisor no less than five (5) working days in advance of the hearing.
- If the parties so desire, steps will be taken to ensure that the parties do not have to be in the same room as one another during the hearing.
- A hearing is not to be an adversarial process. The hearing committee may determine the structure of the hearing and may require the parties to communicate their positions in accordance with reasonable rules of procedure, decorum, and respect, so long as the parties have an opportunity to be heard, including submission of testimony from witnesses and other relevant evidence, and the opportunity to respond to evidence submitted by the other party. This may include requiring the parties to submit questions to the Chair to be asked of any individuals testifying. At the discretion of the Chair, the Chair may ask the witness the question, ask the party to rephrase the question, disallow the question or ask the party to move on to another question or area of questioning. Parties are permitted to give opening and closing statements.
- During questioning, the parties, advisors and Committee will treat all persons with respect, particularly in matters of alleged sexual harassment or discrimination.
- The Committee may determine the relevance of any evidence received, and may limit evidence, including scope, nature, or duration, when in the discretion of the Committee it is deemed inappropriate, repetitious, disruptive, unreliable, or otherwise of little use.
- The Committee may determine the relevance of any evidence received, and may limit evidence, including scope, nature, duration, when in the discretion of the Committee it is deemed inappropriate, repetitious, disruptive, unreliable, or otherwise of little use. The Utah rules of evidence or procedure and any other formal rules of legal evidence or procedure do not apply. The Committee may admit evidence such as written statements or some or all of a report prepared by an investigator; however, the Committee shall take appropriate care to review the reliability of the evidence submitted and should seek first person accounts where possible.
- Hearings shall be closed to the public.
- Hearings shall be recorded. Deliberations and decision making of the Committee are not recorded.
- Participants are not allowed to bring weapons to the hearing and appropriate security measures may be taken to ensure enforcement, in accordance with law and PPM 9-20. Hearings shall be held in a secure hearing room.
- The Committee shall be advised by University Legal Counsel to provide guidance on legal matters.
- The Committee may only rely on the evidence and testimony presented in the hearing. They may not rely on prior knowledge of the facts or conduct their own investigation of the facts.
- Students are presumed not to have engaged in violation of University policy until found otherwise. The Dean of Students shall bear the responsibility of showing, through a preponderance of the evidence, sufficient reason exists to find a violation of University policy.
- The Committee will make a decision based on majority vote.
- After reviewing all evidence deemed relevant, the Committee will issue a written decision, including findings, grounds for the decision, sanctions or remedies, as appropriate, and any additional recommendations. Decisions shall be given simultaneously to the parties.
- The Committee is empowered to structure a resolution, which in its discretion satisfies the interests of justice. Such a resolution may not unduly burden a party where the party has not been found to have acted in violation of the policies of the institution.
- If any party fails to attend the hearing without good cause, the Committee may proceed with the hearing and take testimony and evidence and report its decision on the basis of such testimony and evidence.
Level 3: Due Process Level: The decision of the Committee may be appealed on due process grounds.
- Either party may ask for a review of the decision or resolution by the Due Process Officer by submitting notice and reasons in writing to the Due Process Officer within five working days of notice of the decision.
- Except as may be required to clarify the issues and/or to explain the significance of new information, a review shall be limited to review of the evidence provided to the Committee and the record kept, for one or more of the following purposes:
- To determine whether the hearing was conducted in conformity with prescribed procedures;
- To determine whether the decision reached was based on substantial information; that is, whether the findings in the case were sufficient to establish a violation of the Student Code based on a preponderance of the evidence standard;
- To consider new information not submitted to the Committee because such information and/or facts were not known to the party at the time of the hearing.
- Any of the above grounds must be shown to have had a prejudicial impact on the decision.
- The Due Process Officer may take the following actions:
- Affirm the decision of the Committee;
- Direct the Committee to open the hearing again for a particular purpose;
- Remand the case for a new hearing.
- The decision shall be in writing and delivered to the parties and the Committee in a timely manner.
- The decision of the Due Process Officer is final.