SEXUAL MISCONDUCT, DISCRIMINATION, HARASSMENT, AND RETALIATION (TITLE IX)
POLICY STATEMENT ON DISCRIMINATION
The University of Arkansas at Pine Bluff is committed to providing an environment that emphasizes the dignity and worth of every member of its community and that is free from harassment and discrimination based upon race, color, religion, national origin, service in the uniformed services (as defined in state and federal law), veteran status, sex, age, pregnancy, gender identity, sexual orientation, physical or mental disability or genetic information. Such an environment is necessary to a healthy learning, working and living atmosphere. Accordingly, all acts of discrimination, harassment, retaliation and sexual misconduct as defined by this Policy are prohibited.
DISCRIMINATION, HARASSMENT, RETALIATION AND SEXUAL MISCONDUCT COMPLAINTS
JURISDICTION – SEXUAL MISCONDUCT POLICY
Title IX protects the University community from sexual discrimination, harassment and misconduct in a school’s education programs and activities. Title IX protects the University community in connection with all academic, educational, extracurricular, athletic and other University programs, whether those programs take place on University property, in University transportation, at a class or training program sponsored by the University at another location or elsewhere.
This Policy shall not be construed or applied to restrict academic freedom at the University, nor shall it be construed to restrict constitutionally protected expression. Consistent with state and federal law, reasonable accommodation will be provided to persons with disabilities.
All Complaints of or concerns about conduct that may violate this policy should be submitted to:
Title IX Coordinator For Students
University of Arkansas at Pine Bluff Deputy Title IX Coordinator
Office of Affirmative Action Dean of Students
Administration Building, Room 102 Caldwell Hall, Room 201
P: 870-575-8406 or F: 870-575-4753 P: 870-575-8361 or F: 870-575-4652
e-mail: email@example.com e-mail: firstname.lastname@example.org
FILING REPORT WITH LOCAL LAW ENFORCEMENT
In some instances, sexual misconduct may constitute both a violation of University Policy and criminal activity. The University grievance process is not a substitute for instituting legal action. The University encourages individuals to report alleged sexual misconduct promptly to campus officials AND to law enforcement authorities, where appropriate. Individuals may file a report directly with local law enforcement agencies by dialing 911. Individuals may also contact any of the following for assistance in filing a report with local law enforcement:
UNIVERSITY POLICE DEPT. PINE BLUFF POLICE DEPT. JEFFERSON COUNTY SHERIFF
1900 REEKER STREET 200 EAST 8TH AVENUE 101 EAST BARRAQUE STREET
PINE BLUFF, AR 71601 PINE BLUFF, AR 71601 PINE BLUFF, AR 71611
870-575-8102 870-543-5100 870-541-5351
It is important that evidence of sexual assault be preserved, because it may be needed for prosecuting the criminal case. Victims and others should not alter the scene of the attack. The victim should not change clothes, bathe or shower, drink or eat anything, or brush her/his teeth before reporting the assault. Any items worn by the victim during the assault, but are not currently being worn, and any materials encountered during the assault (i.e., bed sheets, blankets, etc.) should be placed in a paper bag and brought along with the victim to a local hospital emergency department that has kits to collect and preserve evidence of rape and sexual assault.
STUDENT AND VISITOR RESPONSIBILITY TO REPORT
Students and visitors to the University are strongly encouraged to report allegations of discrimination, harassment, retaliation and sexual misconduct to the Title IX Coordinator and/or deputy. A report, written or verbal, should be made as soon as possible, preferably within 24 hours, after the incident in order to facilitate an effective response. The longer a report is delayed, the more difficult it will be for the University to investigate. Reports may be made by the person experiencing the misconduct or by a third party, such as a witness or someone who is told of the misconduct.
MANDATORY EMPLOYEE REPORTING
In order to enable the University to respond effectively and to proactively stop instances of discrimination, harassment, retaliation and sexual misconduct at the University, all employees must, as soon as possible and preferably within 24 hours of receiving information regarding a potential violation of this Policy, report information to the Title IX Coordinator (or deputy Coordinator) or Campus Police. Only employees who are statutorily prohibited from reporting such information (e.g., licensed health-care professionals) are exempt from these reporting requirements. This Policy is not intended to restrict curriculum or prohibit or abridge the use of particular textbooks or curricular materials.
Conduct that occurs off campus can be the subject of a Complaint or report and will be evaluated to determine whether it violates this Policy. Allegations of off-campus sexual misconduct are of particular concern and should be brought to the University’s attention.
Subject to the other provisions of this Policy and the requirements of law, every possible effort will be made to ensure that all information received as part of the University’s Complaint/Grievance Procedure is treated discreetly. All parties to the Complaint are required to maintain the confidentiality of all information received during this process. However, it is not possible to guarantee that all Complaints will remain confidential because of the University’s obligation to investigate allegations of misconduct. All requests to maintain confidentiality shall be directed to the Title IX Coordinator who has the authority to make such determinations.
Except as compelled by law or in the interest of fairness, just resolution or health and safety considerations, disclosure of information contained in Complaints, their substance, procedures and the results of investigations will be limited to the immediate parties, witnesses and other appropriate officials. Limited disclosure may also be necessary to conduct a full and impartial investigation.
AVAILABILITY OF COUNSELING AND ADVOCACY
Counseling and other mental health services for victims of sexual assault are available on campus and in the community. Students and employees may use the Health Services Center or Student Counseling, Assessment and Development Center. Employees of the University may be able to seek help through the Employee Assistance Program. Community mental health agencies, such as the Southeast Arkansas Behavioral Healthcare Mental Health Facility. Additionally, counselors and psychotherapists in private practice in the area can provide individual and group therapy. Coalition Against Spouse Abuse (CASA), Women’s Shelter or Domestic Violence and Rape Crisis Programs may assist with making referrals for individual counseling and support groups and in identifying non-counseling campus and community resources that may be of additional help and serve as a victim advocate upon request.
EDUCATION AND AWARENESS PROGRAMS
The University’s Title IX Office, Student Counseling, Assessment and Development Center and UAPB Campus Police are responsible for planning and coordinating campus education and awareness programs about all forms of sexual assault, including rape, acquaintance rape, domestic violence, dating violence, and other sex offenses. Programs are presented regularly throughout the academic year in residence halls, fraternities, sororities, and for other student organizations, academic classes, employee training and professional development, and in other settings that are likely to reach people throughout the campus community. Campus-wide education and awareness activities are also conducted during Sexual Assault Prevention and Awareness Week.
POLICY EXPECTATIONS WITH RESPECT TO CONSENSUAL RELATIONSHIPS
There are inherent risks in any romantic or sexual relationship between individuals in unequal positions (such as teacher and student, or supervisor and employee). These relationships may be less consensual than perceived by the individual whose position confers power. The relationship also may be viewed in different ways by each of the parties, particularly in retrospect. Furthermore, circumstances may change, and conduct that was previously welcome may become unwelcome. Even when both parties have consented at the outset to a romantic or sexual involvement, this past consent may not remove grounds for a later charge of a violation of Policy.
The University does not wish to interfere with private choices regarding personal relationships when those relationships do not interfere with the goals and policies of the University. However, for the personal protection of members of this community, relationships in which power differentials are inherent (faculty-student, staff-student, administrator-student or employee) are prohibited except in extraordinary circumstances.
Consensual romantic or sexual relationships in which one party maintains a direct supervisory or evaluative role over the other party are prohibited. Therefore, persons with direct supervisory or evaluative responsibilities who are involved in such relationships must bring those relationships to the timely attention of their supervisors. This will likely result in removing the employee from the supervisory or evaluative responsibilities, or shifting the student or employee out of being supervised or evaluated by someone with whom he or she has established a consensual relationship. Failure to self-report such relationships to a supervisor as required may result in disciplinary action for an employee, up to and including termination.
These procedures are intended to apply to all grievances involving discrimination, harassment, retaliation, and sexual misconduct as described in this policy, including but not limited to those brought by a student against an employee and/or fellow student, employee against fellow employee and/or student, and third party against employee and/or student. All other grievances by students, employees, or third parties shall be addressed through other grievance procedures. The university benefits from formal and informal procedures that encourage prompt resolution of complaints and concerns raised by members of the university community.
The University benefits from formal and informal procedures that encourage prompt resolution of Complaints and concerns raised by members of the University community. These procedures are intended to apply to all complaints involving discrimination, harassment, retaliation, and sexual misconduct.
Upon receiving a report of alleged or possible violation of this Policy, the Affirmative Action/Title IX Coordinator and/or deputy will evaluate the information received and determine what further actions should be taken. During the Informal Complaint assessment every reasonable effort should be made to constructively resolve issues with students, faculty, staff and administrators. The Complainant may want to resolve his/her Complaint by discussing it with the offending party in circumstances where it is practical and safe to do so, or elect forgo the Informal Complaint process.
If the conduct of parties involved is impracticable, unsafe, or cannot be effectively addressed through Informal Complaint process the compliant will automatically progress to the Formal Complaint process.
All sexual assault should be handled through the Formal Complaint process and the Affirmative Action/Title IX Coordinator and law enforcement will follow the procedures described in this Policy, including but not limited to those brought by a student against an employee and/or fellow student, employee against fellow employee and/or student, and third party against employee and/or student
The Affirmative Action/Title IX Coordinator and/or deputy will take steps, either directly with the complainant or through a reporting employee, to provide information about the University’s Complaint Procedure, as well as available health and advocacy resources and options for criminal reporting.
The Title IX Coordinator will be responsible for overseeing the prompt, fair, and impartial investigation and resolution of Complaints filed with the University. The Title IX Coordinator or his/her designee will investigate all Complaints of discrimination, harassment, retaliation and sexual misconduct and determine any accommodations or other remedial short-term actions necessary in light of the individual circumstances presented.
The Title IX Coordinator or his/her designee will apprise human resources, manager, and the vice chancellor for the appropriate division or department of the Complaint, or if the Complaint is against a student, the Dean of Students and Vice Chancellor of Student Affairs.
The Title IX Coordinator or his/her designee, who will have been properly trained, will:
- identify the correct policies allegedly violated;
- conduct an immediate initial investigation to determine if reasonable grounds exist for believing that the conduct at issue violates this policy;;
- meet with the Complainant to finalize the Complaint;
- prepare the notice of allegations on the basis of initial investigation;
- develop a strategic investigation plan which may include a witness list, an evidence list, an intended timeframe, and an order of interviews for all witnesses, including the Respondent;
- conduct a thorough, reliable and impartial investigation during which witnesses may or may not be given notice prior to the interview;
- complete the investigation promptly, and without unreasonable deviation from the intended timeline;
- make a written finding on the case, based on a preponderance of the evidence, which indicates that it is more likely than not that a Policy violation has or has not occurred, and identifies appropriate remedies and/or sanctions, if any; and
- prepare a complete report on the investigation and findings. This report shall be maintained by the Title IX Coordinator and made available in the event of an appeal.
As noted above, an investigation of the Complaint will be conducted by the Title IX Coordinator or his/her designee unless it is clear from the face of the Complaint or the Title IX Coordinator’s initial meetings with the parties that no reasonable grounds exist for believing that the conduct at issue violates this Policy.
In the event that the Complaint was made by someone other than the alleged victim, the Title IX Coordinator will consider the following factors in determining whether it is reasonable to investigate the Complaint:
- the source and nature of the information,
- the seriousness of the alleged incident,
- the specificity of the information,
- the objectivity and credibility of the source of the information,
- whether the alleged victims can be identified, and
- whether those individuals wish to pursue the matter.
In the event that the Title IX Coordinator determines that an investigation of the Complaint should not be conducted, he/she will determine and document (in consultation, as necessary, with the alleged victim, the Respondent and any other University administrators) the appropriate resolution of the Complaint and inform the parties of the same.
With all Complaints, if the Title IX Coordinator determines that an investigation should be conducted, the Title IX Coordinator will promptly investigate the matter. The existence of concurrent criminal investigations or proceedings shall not delay the investigation of any Complaint filed under this Policy.
If another individual is designated to investigate the matter, the Title IX Coordinator will share the investigator’s name and contact information with the alleged victim and the Respondent and will forward the Complaint to the investigator. Within three (3) business days of such appointment, the investigator, the alleged victim or the Respondent may identify to the Title IX Coordinator in writing any real or perceived conflicts of interest posed by assigning such investigator to the matter. The Title IX Coordinator will carefully consider such statements and will assign a different individual as investigator
if it is determined that a material conflict of interest exists.
Upon receipt of the Complaint, the Title IX Coordinator will promptly begin the investigation, which shall include but is not limited to the following:
- conducting interviews with the Complainant, the alleged victim (if not the Complainant), the Respondent, and third-party witnesses (including expert witnesses, where applicable) and summarizing such interviews in written form;
- visiting, inspecting, and taking photographs at relevant sites; and
- where applicable, collecting and preserving relevant evidence (in cases of corresponding criminal reports, this step may be coordinated with law enforcement agencies).
Throughout the investigation, the Title IX Coordinator will remain neutral. The Title IX Coordinator should obtain, where applicable and where possible, the written consent of any third-party witnesses to the disclosure, as contemplated by this Policy, of any personally identifiable information contained in the Complaint, the Investigative Report, and for any other documents the disclosure of which is contemplated by this Policy in order to further the resolution of the Complaints.
Initial Meeting with Complainant and/or Alleged Victim
. As soon as is practicable, the Title IX Coordinator will contact the Complainant and the alleged victim (if not the Complainant) to schedule an initial meeting to, as applicable:
provide a copy of this Policy;
provide a copy of the Discrimination, Harassment and Sexual Misconduct Complaint on which the Complainant may, if he or she agrees to disclose the information, provide details regarding the allegation, including the name of the accused individual and the date, location and general nature of the alleged violation of Policy (the Complaint Form may be completed by Complainant or dictated to the Title IX Coordinator, who will confirm the accuracy of his or her documentation with the Complainant);
- explain avenues for resolution;
- explain the steps involved in an investigation under this Policy;
- discuss confidentiality standards and concerns;
- determine whether the Complainant or the alleged victim (if not the Complainant) wishes to pursue a resolution through the University or no resolution of any kind;
- refer to law enforcement, counseling, medical, academic or other resources, as appropriate; and
- discuss, as appropriate, possible interim measures that can be provided during the pendency of the investigative and resolution processes.
. Unless circumstances dictate otherwise, the Title IX Coordinator will promptly issue a “No Contact” order to all parties upon notice of any sexual assault Complaint. In all cases, the University may implement any necessary interim measures, deemed appropriate and reasonably available, regardless of whether a Complaint has been filed (with either campus administrators or law enforcement agencies) or whether an investigation has commenced (by either campus administrators or law enforcement agencies). Interim measures may include, but are not limited to:
- issuing no-contact orders;
- providing an escort to ensure that an individual can move safely between classes, work, and/or activities;
- reassigning on-campus housing;
- dissolving a campus housing contract and offering a pro-rated refund;
- changing work arrangements or location;
- rescheduling class work, assignments, and examinations;
- arranging for the Complainant to take an incomplete in a class;
- reassigning class section;
- permitting a temporary withdrawal from the University;
- providing alternative course completion options;
- providing counseling services; and
- providing academic support services.
Following the initial meeting with the Complainant and the alleged victim (if not the Complainant), the Title IX Coordinator will,
if applicable, promptly determine the interim measures to be provided to the alleged victim. Such determination will be promptly communicated to the alleged victim, and no later than the point at which it is communicated to the Respondent.
Initial Meeting with Respondent. If the Complainant or alleged victim (if not the Complainant) wishes to pursue resolution through the University or if the University otherwise deems that a further investigation is warranted, as soon as is reasonably practicable after the Title IX Coordinator’s initial meeting with the Complainant (and, if applicable, the alleged victim), the Title IX Coordinator will schedule an initial meeting with the Respondent. During the initial meeting with the Respondent, the Investigator will, as applicable:
- provide sufficient written information, consistent with privacy laws and any request for confidentiality, to allow Respondent to address the allegation (e.g., the name of the Complainant/alleged victim, the date, location, nature of the alleged violation of Policy, etc.);
- provide a copy of this Policy;
- explain the University’s procedures for resolution of the Complaint;
- explain the steps involved in an investigation under this Policy;
- discuss confidentiality standards and concerns;
- discuss non-retaliation requirements;
- inform of any interim measures already determined and being provided to the Complainant and/or the alleged victim that would directly affect the Respondent (e.g., changing his or her class schedule, moving him or her to an alternate residence hall, etc.);
- refer to law enforcement, counseling, medical, academic or other resources, as appropriate; and
- discuss, as appropriate, possible interim measures that can be provided to the Respondent during the pendency of the investigative and resolution processes.
Investigative Report. The Title IX Coordinator shall complete a written investigative report (“Investigative Report”) that shall include the following items:
- The name and sex of the alleged victim and, if different, the name and sex of the person reporting the allegation (It should also include any other relevant protected class characteristics if the Complaint involves a violation of this Policy based on a protected status other than gender);
- a statement of the allegation, a description of the incident(s), and the date(s) and time(s) (if known) of the alleged incident(s);
- the date that the Complaint or other report was made;
- the date the Complainant and alleged victim (if not the Complainant) were interviewed;
- the date the Respondent was interviewed;
- the names and sex of all persons alleged to have committed the alleged violation of this Policy (It should also include any other relevant protected status characteristics if the Complaint involves a violation of this Policy based on a protected status other than gender);
- the names and sex of all known witnesses to the alleged incident(s);
- the dates that any relevant documentary evidence (including cell phone and other records as appropriate) was obtained;
- any written statements of the Complainant (or victim, if different from the Complainant), the Respondent and any witnesses;
- summaries of all interviews conducted, photographs, and descriptions of relevant evidence, summaries of relevant electronic records, and a detailed report of the events in question;
- a written finding on the case, based on a preponderance of the evidence which indicates whether or not it is more likely than not that a Policy violation has occurred;
- the policy or policies violated and, in consultation, as necessary, with the Complainant, alleged victim (if different than the Complainant), Respondent, and other University officials, any remedial and/or disciplinary action deemed appropriate under the circumstances;
- the response of University personnel and, if applicable, University-level officials, including any interim measures and permanent steps taken with respect to the Complainant, alleged victim (if different than the Complainant) and the Respondent; and
- a narrative of all action taken to prevent recurrence of any harassing incident(s), including any written documentation.
If the Title IX Coordinator is unable to obtain the consent of third-party witnesses, he or she will redact
the Investigative Report to the extent necessary to avoid inappropriate disclosure of such witness’s personally identifiable information, while ensuring that such redaction
does not prevent resolution of the Complaint.
If the Title IX Coordinator determines and documents, based on the investigation, that reasonable grounds exist to believe that the conduct at issue constitutes a violation of this Policy, the Title IX Coordinator/Deputy Coordinator will determine the appropriate remedy and/or sanction to be imposed and will include the appropriate remedy and/or sanction in the Investigative Report. Imposition of the appropriate remedy and/or sanction will be imposed only after all appeals have been exhausted.
In determining the appropriate remedy and/or sanction, the University will act to end the discrimination, harassment, retaliation or sexual misconduct, prevent its recurrence and remedy its effects on the victim and/or University community. Sanctions will depend upon the nature and gravity of the misconduct, any record of prior discipline for a violation of this Policy, or both. Sanctions may include, without limitation, withholding a promotion or pay increase, reassigning employment, terminating employment, temporary suspension without pay, compensation adjustments, expulsion or suspension from the University, disciplinary probation, expulsion from campus housing, mandated counseling and/or educational sanctions as deemed appropriate.
The Title IX Coordinator shall complete and distribute the Investigative Report, concurrently, to the alleged victim and Respondent within thirty (30) calendar days following receipt of a Complaint. All parties to whom the Investigative Report is distributed pursuant to this Policy should maintain it in confidence. The Investigative Report may only be disclosed as contemplated by this Policy.
If the Title IX Coordinator finds no reasonable grounds to believe that the conduct at issue constitutes a violation of this Policy, then the Title IX Coordinator will determine and document the appropriate resolution of the Complaint in the Investigative Report and will promptly notify the parties of that determination.
APPEAL INVOLVING FACULTY/STAFF
All appeals where the Respondent is a University faculty or staff member shall be made to the Chancellor or his/her designee. Both the alleged victim and the Respondent may appeal any or all of the Title IX Coordinator’s decision in writing to the Chancellor or his/her designee within ten (10) business days of receipt of the Investigative Report. The appealing party must also provide a copy of the appeal to the Title IX Coordinator within the same time period. The appeal should include a brief statement describing any or all parts of the Investigative Report that is
being appealed and the reason for appeal. Acceptable means of notification include email, facsimile, hand delivered notification
or postal delivery. The Title IX Coordinator will promptly inform the other party of the appeal.
Within thirty (30) days of receipt of the appeal, the Chancellor or his/her designee will make a final determination as to whether the Complaint should be closed, whether a violation of Policy has occurred, and/or whether any additional or different remedial action or sanctions are warranted. The Chancellor or his/her designee will concurrently notify the alleged victim and the Respondent of his/her decision.
All non-tenured faculty and staff members of the University are at-will employees who may be terminated at any time, with or without cause. With regard to such faculty and staff, nothing in this Policy shall create an expectation of continued employment with the University or be construed to prevent or delay the University from taking any disciplinary action deemed appropriate (including suspension and immediate termination of employment) for any violation of state law, federal law or University policy. When the Respondent is a faculty member with tenure and the sanction imposed or upheld by the Chancellor or his/her designee is dismissal
of the Respondent’s employment, the matter shall proceed pursuant to Board Policy 405.1.
APPEAL INVOLVING A STUDENT
In those instances where the Respondent is a University student, the alleged victim and/or the Respondent may appeal any or all of the Title IX Coordinator’s decision to a Hearing Panel by providing a written appeal to the Chancellor or his/her designee with a copy also being provided to the Title IX Coordinator. The appeal must be submitted within ten (10) business days of receipt of the Investigative Report and must include a brief statement describing any or all parts of the Investigative Report being appealed and the reason for appeal. Acceptable means of notification include email, facsimile, hand delivered notification
or postal delivery.
Within three (3) business days of receiving the appeal, the Chancellor or his/her designee will appoint the members of the Hearing Panel, to include at least three faculty and/or staff members. The Chancellor or his/her designee will select one member of the Hearing Panel to act as the Chair. The Title IX Coordinator will provide a copy of the Complaint and the Investigative Report to each member of the Hearing Panel and, if only a portion of the Title IX Coordinator’s findings and determinations are appealed, the Title IX Coordinator will specify which part(s) of the alleged misconduct will be the subject of the hearing.
Promptly after the appointment of the members of the Hearing Panel, the Title IX Coordinator will provide concurrent
written notice to the alleged victim and the Respondent, setting forth the names of the individuals selected to serve on and chair the Hearing Panel. If only a portion of the findings and determination are appealed, the Title IX Coordinator will also specify in the notice which part(s) of the alleged misconduct will be the subject of the hearing.
The parties may challenge the participation of any member of the Hearing Panel by submitting a written objection to the Chancellor or his/her designee within three (3) business days of receipt of the notice of the composition of the Hearing Panel. Any objection must state the specific reason(s) for the objection.
The Chancellor or his/her designee will evaluate the objection and determine whether to alter the composition of the Hearing Panel. Failure to submit a timely and proper objection will constitute a waiver of any right of objection to the composition of the Hearing Panel. Any changes in the composition of the Hearing Panel will be provided in writing to both parties prior to the date of the hearing.
Submission of Written Materials
. Within five (5) business days of receipt of the notice of the initial composition of the Hearing Panel, the alleged victim and the Respondent may provide the Chair of the Hearing Panel with a list of witnesses, if any, that they propose that the Hearing Panel call and a brief description of each proposed witness’s connection to and/or knowledge of the issues in dispute, and a written statement of position.
Notice of the Hearings.
Not less than five (5) business days but not more than ten (10) business days after delivery of notice of the initial composition of the Hearing Panel to the parties, the Hearing Panel will provide a separate notice to the alleged victim, Respondent and any witnesses or other third parties whose testimony the Hearing Panel deems relevant, requesting such individuals to appear before the Hearing Panel. The notice should set forth the date, time, and location for the individual’s requested presence. The Hearing Panel shall provide the names of the witnesses or other third parties that the Hearing Panel plans to call in its notices to the alleged victim and the Respondent. The hearing shall be conducted within twenty (20) business days but no sooner than ten (10) business days of the receipt of the appeal.
Failure to Appear
. If any party fails to appear before the Hearing Panel if requested to do so, and such party was provided proper notice of the hearing as set forth above, then absent extenuating circumstances, the Hearing Panel will proceed to determine the resolution of the Complaint.
Both the alleged victim and the Respondent may be accompanied by one support person to assist them during the hearing process. This support person can be anyone, including an attorney. Unless the student has received a suspension of ten (10) or more days or expulsion, the support person may not address the Hearing Panel, present evidence, make objections or statements, ask questions of any party or witness or otherwise participate in the hearing, beyond privately communicating with the party that he/she is supporting. If the student has received a suspension of ten (10) or more days or expulsion, the support person may fully participate during the disciplinary appeal proceeding.
The Chair must be notified five (5) business days in advance of the hearing if a party will be accompanied by a support person. The Chair may disallow the attendance of any support person if he/she is also a witness or if, in the discretion of the Chair, such person’s presence would be disruptive or obstructive to the hearing or otherwise warrant removal. All support persons must agree to keep any and all information presented in the hearing confidential in order to attend. Absent accommodation for disability
, the parties may not be accompanied by any other individual during the hearing process except as set
forth in this Policy. College officials may seek advice from the University of Arkansas System Office of General Counsel on questions of law and procedure at any time during the process.
The alleged victim and the Respondent will have an equal opportunity to present evidence during their hearing. Formal rules of evidence will not be observed during the hearings.
Prior Sexual Conduct
. Evidence of the prior sexual conduct of the alleged victim and the Respondent with others will not be permitted at the hearings, with the following exceptions:
- evidence is permitted to show that the alleged victim has in the past been formally disciplined by the University for falsely filing Complaints alleging a violation of this Policy;
- evidence is permitted to show that the Respondent has in the past been either convicted in a criminal proceeding or formally disciplined by the University for conduct which would violate this Policy, if deemed relevant; and
- evidence regarding the past sexual activity of the Respondent (regardless of whether the Respondent was formally charged with a violation of the Policy with respect to such conduct) may be permitted to show that the Respondent has engaged in a pattern of behavior similar to the alleged violations of policy at issue before the Hearing Panel, provided that (1) the
- Respondent has not been found “not responsible” by the University in a proceeding related to such conduct and (2) the Chair has made written findings both that the evidence is reliable and trustworthy and that the conduct is sufficiently and substantially similar to the conduct at issue before the Hearing Panel to suggest a pattern of behavior.
Hearing Procedure. The Hearing Panel will conduct a hearing during which it will interview and question the Complainant, the alleged victim, the Respondent, and any witnesses or other third parties whose testimony the Hearing Panel deems relevant. The parties will not be allowed to personally question or cross-examine each other during the hearing,
but will be allowed to question witnesses. The Chair will resolve all questions concerning procedure or the admission of evidence or testimony, including the relevancy and reliability of the evidence and testimony. All participants at the hearing are expected to provide truthful testimony. The Complainant and/or alleged victim have the option not to be in the same room with the Respondent during the hearing. Any party may choose not to testify or appear before the Hearing Panel; however, his/her exercise of that option will not preclude the Hearing Panel from making a determination regarding the Complaint filed against the Respondent.
Decision of the Hearing Pane
l. Following the conclusion of the hearing, the Hearing Panel will confer and by majority vote determine whether the evidence (including the information provided in and by the Investigative Report, the parties’ written statements, if any, the evidence presented at the hearings, and the testimony of the parties and witnesses) establishes that it is more likely than not that the Respondent committed a violation of this Policy. In other words, the standard of proof will be the preponderance of the evidence. If the Hearing Panel determines that more likely than not the Respondent committed a violation of this Policy, the Hearing Panel will recommend sanctions and give consideration to whether a given sanction will (a) bring an end to the violation in question, (b) reasonably prevent a recurrence of a similar violation, and (c) remedy the effects of the violation. The Hearing Panel will forward its recommendations regarding sanctions to the Chancellor or his designee, who will make the final determination regarding all sanctions.
Sanctions for a finding of responsibility will depend upon the nature and gravity of the misconduct, any record of prior discipline for a violation of this Policy, or both. Sanctions may include, without limitation, expulsion or suspension from the University, disciplinary probation, expulsion from campus housing, mandated counseling, and/or educational sanctions deemed appropriate by the Hearing Panel.
Ordinarily, sanctions will not be imposed until the resolution of any timely appeal under this Policy. However, if it is deemed necessary to protect the welfare of the victim or the University community, the Hearing Panel may recommend and the Chancellor or his/her designee may determine that any sanctions be imposed immediately and continue in effect until such time as the appeal process is exhausted.
At such time that the appeal process is exhausted, the Title IX Coordinator will determine the final accommodations to be provided to the victim,
if any, and the Title IX Coordinator will communicate such decision to the victim and the Respondent to the extent that it affects him/her.
The Title IX Coordinator will also take steps to prevent any harassment of or retaliation against the Complainant, the victim (if not the Complainant), or third parties, such as informing them about how to report subsequent problems, following up with them to ensure that there are no subsequent problems, providing training for the campus community, and providing counseling for the Respondent. The Title IX Coordinator will also take steps to prevent the harassment of or retaliation against the Respondent.
Furthermore, the Title IX Coordinator will take prompt corrective action if the Complainant or the victim (if not the Complainant) experiences retaliation or is subjected to further violation of this Policy or if the original sanctions imposed on the Respondent are ineffective to protect the safety and well-being of the Complainant, the victim (if not the Complainant), or other members of the University community. The Title IX Coordinator will also take reasonable steps to eliminate any hostile environment that has been created, such as conducting trainings
and disseminating informational materials. In taking the above-outlined steps, the Title IX Coordinator will make every reasonable effort to minimize the burden on the Complainant and/or alleged victim.
Final Outcome Letter.
Within ten (10) business days following the conclusion of the hearings, the Hearing Panel will issue a written decision letter (the “Final Outcome Letter”) concurrently to the Respondent, and the alleged victim (if not the Complainant). The Final Outcome Letter will set forth (1) the name of the Respondent, (2) the violation(s) of this Policy for which the Respondent was found responsible, if any, (3) the recommended sanctions imposed on the Respondent, if any, and it may set forth names of other individuals, such as a victim or witness, provided that such other individuals provide their written consent to such inclusion.
In order to comply with FERPA, the letter will not include information considered part of a party’s “education record” (as that term is defined by FERPA) that is not otherwise exempt from disclosure under the Act, or other information about sanctions that do not relate to the victim.
Confidentiality and Disclosure.
In order to comply with FERPA and Title IX and to provide an orderly process for the presentation and consideration of relevant information without undue intimidation or pressure, the hearing process is not open to the general public. Accordingly, documents prepared in anticipation of the hearings (including the Complaint, the Investigative Report, the notices of hearing, and the prehearing submissions referenced above) and documents, testimony, or other information introduced at the hearings may not be disclosed outside of the hearing proceedings, except as may be required or authorized by law.
The University will make every reasonable effort to ensure that the investigation and resolution of a Complaint occurs
in as timely and efficient a manner as possible. The University’s investigation and resolution of a Complaint (including an appeal, if applicable) will generally be completed within 60 calendar days of the receipt of the Complaint, absent extenuating circumstances. Hearings, if at all, will take place after the conclusion of the investigation. If hearings have taken place, both the Complainant and the Respondent generally will receive a Final Outcome Letter within ten (10) business days of the conclusion of the hearing.
Any party may request an extension of any deadline by providing the Title IX Coordinator or his or her respective deputies with a written request for an extension that includes reference to the duration of the proposed extension and the basis for the request.
For purposes of calculating all time periods set forth in this Complaint and Grievance Policy, a business day is defined to mean normal operating hours, Monday through Friday, excluding recognized national and state holidays and University closings.
Timelines may be modified in cases where information is not clear, judged to be incomplete, relevant parties are not available for interview
, and/or other related circumstances as may arise. The Title IX Coordinator may also modify any deadlines contained in this Policy as necessary and for good cause.
ACKNOWLEDGEMENT OF RESPONSIBILITY
At any time prior to the issuance of the Investigative Report or the date of his/her designated hearing, the Respondent may elect to acknowledge his/her actions and take responsibility for the alleged policy violation. In such situation, the Title IX Coordinator will propose sanction(s). If either party objects to the proposed sanction(s), they may appeal the sanction pursuant to this Policy.
Retaliation against any person who files a Complaint,
participates in an investigation,
or opposes a discriminatory employment or educational practice or policy is prohibited. A person who believes retaliation has occurred should notify the Title IX Coordinator as soon as possible.
Willfully making a false report of sexual harassment is a violation of University policy and is a serious offense. Any person who willfully makes or participates in making a false or frivolous report of discrimination, harassment, retaliation or sexual misconduct will be subject to disciplinary action. False reporting may also violate state criminal statutes and civil defamation laws.
OFFICE OF CIVIL RIGHTS COMPLAINT
Although Complainants are encouraged to resolve their grievances related to discrimination by utilizing this Complaint/Grievance Procedure, they have the right to file a complaint directly with the U.S. Department of Education, Office for Civil Rights (OCR). Information regarding applicable timelines and procedures is available from OCR. You may call 1-800-421-3481 to obtain further information about filing a complaint with OCR.
The University reserves the right to make changes and amendments to this Policy as needed, with appropriate notice to the community. However, the Policy in force at the time that a Complaint is filed will be the Policy used throughout the investigation, hearing and any appeals that are heard.
The University will retain documentation (including but not limited to the written Complaint, notifications, the Investigative Report, any written findings of fact, petitions for appeal, any documents or evidence submitted by the parties, hearing transcripts or recording (if any) and any written communication between the parties), for at least three (3) years. Documentation pertaining to terminations, expulsions or educational sanctions may be retained indefinitely.
Complainant: Any party who makes a Complaint against a student, employee, staff member or campus visitor.
Consent: Consent is a clear, knowing and voluntary decision to engage in sexual activity.
Because consent is voluntary, it is given without coercion, force, threats, or intimidation. It is given with positive cooperation in the act or expression of intent to engage in the act pursuant to an exercise of free will.
Consent is active, not passive. Silence, in and of itself, cannot be interpreted as consent. Consent can be given by words or actions, as long as those words or actions consist of an affirmative, unambiguous, conscious decision by each participant to engage in mutually agreed-upon sexual activity.
Consent is revocable, meaning consent can be withdrawn at any time. Thus, consent must be ongoing throughout a sexual encounter. Once consent has been revoked, sexual activity must stop immediately.
Consent can be limited, meaning consent to any one form of sexual activity cannot automatically imply consent to any other forms of sexual activity. Further, previous relationships or prior consent cannot imply consent to future sexual acts.
Consent cannot be given when a person is incapacitated, such as when a person is physically or mentally unable to make informed, rational judgments, or lacks the ability to understand the “who, what, when, where and how” related to the sexual activity. States of incapacitation include, but are not limited to, unconsciousness and sleep. Where alcohol or drugs are involved, incapacitation is determined by how the alcohol or other drugs have impacted a person’s decision-making capacity, awareness of consequences, and/or ability to make fully informed judgments.
Use of alcohol or other drugs will never function as a defense to a violation of this Policy. In sum:
-Silence does not equal consent.
-Lack of verbal resistance does not constitute consent.
-Lack of physical resistance does not constitute consent.
-There is no consent when there is force, coercion, intimidation, threats or duress.
-Consent may be withdrawn at any time, and sexual activity must cease when consent is withdrawn unless or until additional consent is given.
-Consent to one form of sexual activity does not indicate consent to another form of sexual activity.
-A prior sexual relationship does not indicate current or future consent.
-Minors cannot give consent.
-Physically or mentally incapacitated persons cannot give consent.
-Consent may be determined by whether the accused knew, or a reasonable person should have known, that the alleged victim was incapacitated.
Dating Violence: Violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the alleged victim. It includes any unwelcome physical violence such as hitting, pulling, shoving, kicking, biting or throwing things; and sexual assault, sexual exploitation and sexual harassment.
Discrimination (general definition): Conduct that is based upon an individual’s race, color, religion, national origin, service in the uniformed services (as defined in state and federal law), veteran status, sex, age, pregnancy, gender identity, sexual orientation, physical or mental disability or genetic information that excludes an individual from participation, denies the individual the benefits of, treats the individual differently or otherwise adversely affects a term or condition of an individual’s employment, education, living environment or participation in a University program or activity. This includes failing to provide reasonable accommodation, consistent with state and federal law, to persons with disabilities.
Discriminatory Harassment: Detrimental action based on an individual’s race, color, religion, national origin, service in the uniformed services (as defined in state and federal law), veteran status, sex, age, pregnancy, gender identity, sexual orientation, physical or mental disability or genetic information. Harassing conduct may take various forms, including, name-calling, graphic or written statements (including the use of cell phones or the Internet), or other conduct that may be physically threatening, harmful, or humiliating. Harassment does not have to include intent to harm, be directed at a specific target or involve repeated incidents. Gender-based harassment includes sexual harassment.
Domestic Violence: Physical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury, or assault between family or household members; or any sexual conduct between family or household members, whether minors or adults, that constitutes a crime under the laws of this state. Family or household members means spouses, former spouses, parents and children, persons related by blood within the fourth degree of consanguinity, any children residing in the household, persons who presently or in the past have resided or cohabited together, persons who have or have had a child in common, and persons who are presently or in the past have been in a dating relationship together. See also, Arkansas Code Annotated § 9-15-103—”Domestic Abuse”).
Hostile Environment: A hostile environment exists when there is harassing conduct based on race, color, religion, national origin, service in the uniformed services (as defined in state and federal law), veteran status, sex, age, pregnancy, gender identity, sexual orientation, physical or mental disability or genetic information that is sufficiently serious (i.e., severe, pervasive, or persistent) and objectively offensive to deny or limit a person’s ability to participate in or benefit from the University’s programs, services, opportunities or activities; or when such conduct has the purpose or effect of unreasonably interfering with an individual’s employment. Harassment that creates a hostile environment (“hostile environment harassment”) violates this Policy.
Non-Consensual Sexual Contact: Non-consensual sexual contact is any intentional sexual touching, however slight, with any object by a male or female upon a male or a female that is without consent and/or by force. Sexual Contact includes intentional contact with the breasts, buttock, groin, or genitals, or touching another with any of these body parts, or making another touch you or themselves with or on any of these body parts; any intentional bodily contact in a sexual manner, though not involving contact with/of/by breasts, buttocks, groin, genitals, mouth or other orifice.
Non-Consensual Sexual Intercourse: Non-consensual sexual intercourse is any sexual intercourse however slight, by a male or female upon a male or a female that is without consent and/or by force. Intercourse includes vaginal penetration by a penis, object, tongue or finger; anal penetration by a penis, object, tongue, or finger; and oral copulation (mouth to genital contact or genital to mouth contact), no matter how slight the penetration or contact.
Respondent: The person(s) against whom a Complaint has been made.
Retaliation: Action taken by an accused individual or by a third party against any person because that person has opposed any practices forbidden under this Policy or because that person has filed a Complaint, testified, assisted or participated in any manner in an investigation or proceeding under this Policy. This includes action taken against a bystander who intervened to stop or attempt to stop discrimination, harassment or sexual misconduct. Retaliation includes intimidating, threatening, coercing or in any way discriminating against an individual because of the individual’s Complaint or participation. Action is generally deemed retaliatory if it would deter a reasonable person in the same circumstances from opposing practices prohibited by this Policy.
Sexual Assault: An actual or attempted sexual contact with another person without that person’s consent. Sexual assault includes, but is not limited to involvement in any sexual contact when the victim is unable to consent; intentional and unwelcome touching of, or coercing, forcing, or attempting to coerce or force another to touch a person’s intimate parts (defined as genital area, groin, inner thigh, buttocks, or breast); and sexual intercourse without consent, including acts commonly referred to as “rape.”
Sexual Exploitation: Occurs when a person takes non-consensual or abusive sexual advantage of another for his/her own advantage or benefit, or to benefit or take advantage of anyone other than the one being exploited, and that behavior does not otherwise constitute one of the other sexual misconduct offenses. Examples of behavior that could rise to the level of sexual exploitation include, but are not limited to:
• invading sexual privacy;
• prostituting another person;
• non-consensual video or audio-taping of sexual activity;
• going beyond the boundaries of consent (e.g., allowing others to watch consensual sex without that party’s knowledge or consent);
• engaging in voyeurism;
• non-consensual distribution of photos, other images, or information of an individual’s sexual activity, intimate body parts, or nakedness, with
the intent to or having the effect of embarrassing an individual who is the subject of such images or information;
• knowingly transmitting an STI, such as HIV, to another without disclosing your STI status;
• exposing one’s genitals in non-consensual circumstances or inducing another to expose his or her genitals; or
• possessing, distributing, viewing or forcing others to view illegal pornography,
• sexually-based stalking and/or bullying may also be forms of sexual exploitation.
Sexual Harassment: Sexual Harassment is unwelcome, gender-based spoken, written or symbolic action or physical conduct that is sufficiently severe, persistent or pervasive that it has the effect of unreasonably interfering with, limiting or denying someone the ability to participate in or benefit from the University’s educational programs. The unwelcome behavior may be based on power differentials, the creation of a hostile environment or retaliation.
For the purpose of this Policy, sexual harassment includes stalking or repeatedly following, harassing, threatening, or intimidating another by telephone, mail, electronic communication, social media, or any other action, device or method that purposely or knowingly causes substantial emotional distress or reasonable fear of bodily injury or death. Sexual harassment also includes quid pro quo sexual harassment which exists when there are unwelcome sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature and submission to or rejection of such conduct results in adverse educational or employment action.
Not all workplace or educational conduct that may be described as “harassment” affects the terms, conditions or privileges of employment or education. For example, a mere utterance of an ethnic, gender-based or racial epithet which creates offensive feelings in an employee or student would not normally affect the terms and conditions of their employment or limits a student’s ability to participate in or benefit from the University’s educational programs or activities.
Sexual Misconduct: includes sexual assault, inducing incapacitation for sexual purposes, sexual exploitation and dating and domestic violence.
Status: A full-time employee of the University will be considered an “employee” for the purposes of this Policy, regardless of whether he/she is also enrolled as a student. Any student who is a part-time employee will be considered a “student” for the purposes of this Policy unless the incident under consideration occurred in connection with his/her employment.
Stalking: is repeated or obsessive unwanted attention directed toward an individual or group that is likely to cause alarm, fear, or substantial emotional distress. Stalking may take many forms, including following, lying in wait, monitoring, and pursuing contact. Stalking may occur in person or through a medium of communication, such as letters, e-mail, text messages, or telephone calls. In some circumstances, two instances of such behavior may be sufficient to constitute stalking.