Student Handbook

3.4.1 - Title IX Sexual Harassment Response and Complaint Resolution Process

Under Title IX, Xavier must and will investigate allegations in a formal complaint of Sexual Harassment. A formal complaint is a document submitted by a Reporting Party (an individual alleged to be the victim of conduct that could constitute Sexual Harassment) or signed by the Chief Title IX Officer alleging that Sexual Harassment has been committed by a Responding Party (an individual who has been reported to be the perpetrator of conduct that could constitute Sexual Harassment) and requesting that Xavier investigate the allegation of Sexual Harassment. At the time of filing a formal complaint, the individual reporting having experienced the sexual harassment must be participating in or attempting to participate in a Xavier education program or activity for the complaint to be addressed under these Title IX Sexual Harassment policies.

The Chief Title IX Officer who signs a formal complaint is not deemed a Reporting Party as described in these policies.

Under these Title IX Sexual Harassment policies, the following information applies.

Initial Assessment of Reported Conduct (Section 3.4.1.1)
Title IX Investigation of Formal Complaint (Section 3.4.1.2)
Methods of Resolving a Charge of a Violation of the Title IX Sexual Harassment Policies (Section 3.4.1.3)
Title IX Sexual Harassment Hearings (Section 3.4.1.4)
Request for an Appeal From a Title IX Sexual Harassment Hearing (Section 3.4.1.5)
Title IX Sexual Harassment Appeals (Section 3.4.1.6)
Supportive Measures in Title IX Sexual Harassment Matters (Section 3.4.1.7)
Retaliation Prohibited (Section 3.4.1.8)
Confidentiality and Disclosures (Section 3.4.1.9)
Benchmark Sanctions for Title IX Sexual Harassment (Section 3.4.1.10)

3.4.1.1 Initial Assessment of Reported Conduct

The Chief Title IX Officer is responsible for assessing whether the conduct reported may rise to a potential violation of Xavier’s Title IX Sexual Harassment policies. If the Chief Title IX Officer assesses that the reported conduct may violate these policies, the report will proceed for resolution under the Title IX Sexual Harassment policies of this section. If the Chief Title IX Officer assesses that the conduct alleged in the formal complaint would: 1) not constitute Sexual Harassment as defined by Title IX even if proved; 2) did not occur in a Xavier education program or activity, or 3) did not occur against a person in the United States, then in accord with federal law, the Title IX Office will dismiss the formal complaint with regard to that conduct for purposes of Sexual Harassment under Title IX.

If the formal complaint is dismissed, the Chief Title IX Officer will inform the Reporting Party of their right to proceed under Xavier’s Interpersonal Violence policies if deemed warranted.

A Reporting Party may not choose to proceed under the Interpersonal Violence policies if the Chief Title IX Officer has assessed the report should proceed under Title IX Sexual Harassment policies.

If the Chief Title IX Officer determines that the reported conduct may rise to a potential violation of Xavier’s Title IX Sexual Harassment policy and there is no appeal of that determination submitted (see Section 3.4.1.1.1 Initial Assessment of Appeal Process) or an appeal of that determination does not result in a reversal of the determination, then the report will be resolved under the following Sexual Harassment complaint resolution process required by Xavier’s Title IX Sexual Harassment policies.

3.4.1.1.1 Appeal of Initial Assessment Process

Under Title IX, the Reporting and Responding Parties have the right to appeal Xavier’s dismissal of a formal complaint on the following bases:

Procedural irregularity that affected the outcome of the matter;
New evidence that was not reasonably available at the time the dismissal was made, that could affect the outcome of the matter; and
The Chief Title IX Officer had a conflict of interest or bias for or against Reporting Parties or Responding Parties generally or the individual Reporting Party or Responding Party that affected the outcome of the matter.

Appeals of a dismissal of a formal complaint must be submitted within three business days of the parties being notified of the dismissal by the Chief Title IX Officer, and shall be submitted to the Vice President for Student Affairs (which for these purposes may mean a person designated by the Vice President for Student Affairs if unavailable). The Vice President for Student Affairs will review the matter, including a review of the Chief Title IX Officer's written analysis, rationale for the dismissal decision, the Title IX Investigation Report to date, and any other information and evidence the Vice President for Student Affairs deems necessary to comprehensively review the appeal. The Vice President for Student Affairs may also request to meet with the Responding Party, Reporting Party, Chief Title IX Officer, and/or other individuals that may have relevant additional information. The Vice President for Student Affairs will endeavor to notify the parties and the Chief Title IX Officer of the outcome of the appeal within three business days of receiving it. The decision of the Vice President for Student Affairs is final.

If the Chief Title IX Officer's determination to dismiss the formal complaint is upheld by the Vice President for Student Affairs or if no appeal is submitted, the Chief Title IX Officer will inform the Reporting Party of their right to proceed under the Interpersonal Violence policies.

If an appeal is successful, the formal complaint will proceed under these Title IX Sexual Harassment policies.

Xavier may also dismiss the formal complaint or any allegations therein, if at any time during the investigation or hearing:

A Reporting Party notifies the Chief Title IX Officer in writing that the Reporting Party would like to withdraw the formal complaint or any allegations therein;
The Responding Party is no longer enrolled by Xavier; or
Specific circumstances prevent Xavier from gathering evidence sufficient to reach a determination as to the formal complaint or allegations therein.

Upon a dismissal required or permitted, Xavier will promptly send written notice of the dismissal and reason(s) therefor simultaneously to the parties. If Chief Title IX Officers’s determination to dismiss the formal complaint is upheld by the Vice President for Student Affairs or if no appeal is submitted, the Chief Title IX Officer will inform the Reporting Party of their right to proceed under the Interpersonal Violence Policies.

If the Chief Title IX Officer's determination to dismiss the formal complaint is reversed by the Vice President for Student Affairs, the formal complaint will proceed under these Title IX Sexual Harassment Policies.

Xavier may also dismiss the formal complaint or any allegations therein, or suspend the investigation thereof, if at any time during the investigation or hearing:

A Reporting Party notifies the Chief Title IX Officer in writing that the Reporting Party would like to withdraw the formal complaint or any allegations therein;
The Responding Party is no longer enrolled by Xavier; or
The Chief Title IX Officer determines that specific circumstances prevent Xavier from gathering evidence sufficient to reach a determination as to the formal complaint or allegations therein.

Upon a dismissal required or permitted, Xavier will promptly send written notice of the dismissal and reason(s) therefor simultaneously to the parties.

3.4.1.2 Title IX Investigation of a Formal Complaint

If it is determined by the Title IX Office that a report of Sex Discrimination will be addressed under the Title IX Sexual Harassment policies, the following information applies.

Xavier’s Title IX Office conducts all Title IX Sexual Harassment investigations.

1. The time it takes to conduct an investigation depends on the particular facts and circumstances; however, most investigations will begin within 10 business days of a complaint being made and the Chief Title IX Officer will take all reasonable steps to conduct the investigation in a timely manner. Timelines may expand or contract depending on many factors including, but not limited to, a concurrent law enforcement activity; the complexity of the matter; the availability of party(ies); witnesses, or evidence; the time in the school year when the investigation takes place; the need for language assistance; and/or accommodation of disabilities.

At the Chief Title IX Officers' discretion, multiple incidents involving the same individual(s) may be considered in one investigation or in separate investigations. The order of separate investigations will be determined by the Chief Title IX Officer.

To the extent consistent with Xavier’s Title IX Sexual Harassment policies and the best interests of all concerned (as determined by Xavier), Xavier will comply with law enforcement requests for cooperation. Such cooperation may require Xavier to temporarily delay the start of or suspend an ongoing Title IX Sexual Harassment investigation while the law enforcement agency is in the process of gathering evidence (not the ultimate outcome of the criminal investigation or the filing or disposition of any criminal charges). If Xavier has temporarily delayed or suspended its investigation, Xavier will promptly resume its investigation as soon as it is notified by the law enforcement agency that it has completed the evidence gathering process. Law enforcement agencies typically take three to ten calendar days for their evidence gathering process, although the delay in Xavier's investigation may be shorter or longer in certain circumstances. In any case, Xavier may implement appropriate Supportive Measures (Section 3.4.1.7) and/or Emergency Removal proceedings (Section 3.4.1.7.1) during the law enforcement agency's investigation period to provide for the safety of the Reporting Party and the campus community and to avoid retaliation.

In Title IX Sexual Harassment matters, the Reporting and Responding Parties may be accompanied to any related meeting or proceeding by the advisor of their choice, who may be, but is not required to be, an attorney. Information on advisor participation and role in Title IX Sexual Harassment Hearings is described in Section 3.4.1.4.

Prior to completion of the investigative report, Xavier’s Title IX Office will send to each party and the party’s advisor, if any, the initial draft Title IX Investigation Report to inspect and review. The parties will have 10 business days to submit a written response, which the Title IX Office will consider prior to completion of the investigative report.

The Title IX Office will then create a Title IX Investigative Report that fairly summarizes all relevant evidence and will provide that report to each party and the party’s advisor, if any, for their review and written response. Absent circumstances arising, such as (but not limited to) new evidence surfacing, this Report will be deemed final. If the Title IX Office determines to revise the Report after issuance, the Chief Title IX Officer will share revisions with the parties and the Dean of Students Office. At least 10 days prior to a hearing, the Dean of Student’s Office will send to each party and the party’s advisor, if any, the final Title IX Investigative Report in an electronic format or a hard copy.

3.4.1.3 Methods of Resolving a Charge of a Violation of the Title IX Sexual Harassment Policies

3.4.1.3.1 Accept Responsibility for Alleged Violation and Associated Sanctions

At any time before the start of a hearing to resolve the complaint, the Responding Party may elect to accept responsibility for the alleged violation(s) and accept the benchmark or other appropriate sanctions for the alleged violation as determined by the Dean of Students or designee.

3.4.1.1.2 Hearings

In the event the Responding Party has not accepted responsibility and/or the sanctions offered, the matter will proceed to a hearing (see Section 3.4.1.4 Title IX Sexual Harassment Hearings).

3.4.1.4 Title IX Sexual Harassment Hearings

The purpose of a hearing is to determine if a Responding Party is responsible or not responsible for the alleged violation of the Standards of Student Conduct, using the preponderance of the evidence standard, described below, to determine a finding of responsible.

Title IX requires live hearings to resolve Title IX Sexual Harassment reports. Hearings will be conducted with all parties physically present in the same geographic location. At Xavier’s discretion, any or all parties, witnesses, and other participants may appear at the hearing virtually, with technology enabling participants simultaneously to see and hear each other. At the request of either party, Xavier will provide for the hearing to occur with the parties located in separate locations with technology enabling the decision-maker(s) and parties to simultaneously see and hear the party or the witness answering questions.

At the conclusion of a hearing, a Responding Party will be found responsible if responsibility for the charged violation is established by a "preponderance of the evidence." This means that the Title IX Sexual Harassment Hearing Panel has determined that it is "more likely than not" that the Responding Party violated the Standard of Student Conduct policy at issue.

The Responding Party, Reporting Party and Xavier may identify witnesses to be called at a hearing. Only witnesses with knowledge directly related to the pending charges will be allowed to present information at the hearing. If it has not already done so in conjunction with the preparation of its report, the Title IX Office may interview a witness prior to the hearing so that the Dean of Students can determine if the witness has knowledge directly related to the pending charges.

The Chief Title IX Officer (or Title IX and Interpersonal Violence Program Director if they conducted the investigation) will serve as a witness in the hearing and will answer questions from the parties and/or Hearing Panel members related to the investigation report only. The Chief Title IX Officer or Title IX Program Director will not offer an opinion or conclusion as to whether they believes the responding is responsible for violating any provisions of this Handbook.

Witnesses may be dismissed from the hearing if statements are based on opinion or perceived character alone.

A Title IX Sexual Harassment Hearing Panel may reasonably limit the scope and time devoted to each case or item of discussion during the hearing, including the number of people providing information. Specifically, corroboration provided by witnesses shall be allowed where appropriate, but repetitive statements, discussion or witness material may be limited.

Title IX Sexual Harassment Hearings are governed by these policies and not by the rules of evidence used by courts.

At the Dean of Students' discretion, multiple incidents involving the same individual may be considered in one Title IX Sexual Harassment Hearing.

At the Dean of Students' discretion, charges against multiple Responding Parties charged with the same or related violations arising out of one or more related incidents may be considered in one Title IX Sexual Harassment Hearing.

All Title IX Sexual Harassment Hearing Panel Members receive annual training, appropriate for Title IX Sexual Harassment matters.

At the discretion of the Dean of Students, or designee, technology may be used to facilitate hearing participation for involved parties who are not able to be physically present for the hearing. Examples include but are not limited to video conferencing and audio conferencing.

3.4.1.4.1 Notice of Charges for a Title IX Sexual Harassment Hearings

A student charged with a violation of the Title IX Sexual Harassment policies will be sent a charge letter by the Dean of Students or a Title IX Sexual Harassment Hearing Officer to the student's Xavier email account. Generally, a charge letter will inform the Responding Party of the Standards of Student Conduct sections allegedly violated; reference the Student Handbook section that contains information about possible sanctions; direct the student to information about the Student Conduct Process; and provide notice that the student may accept responsibility for the alleged violation(s) of the Standards of Student Conduct and accept the benchmark or other appropriate sanctions for the alleged violation as determined by the Dean of Students or designee. Notification of the date, time and location of a hearing will typically be included in the charge letter or may be provided to the Responding Party at a later time.

3.4.1.4.2 Reporting Party Involvement in Title IX Sexual Harassment Hearings

In matters involving allegations of Title IX Sexual Harassment, a Reporting Party may choose how they want to participate in the Title IX Sexual Harassment complaint resolution process.

A Reporting Party may fully participate in the Title IX investigation and the conduct process as described in this Student Handbook. Under this option, the Reporting Party will be afforded all rights enumerated in Section 3.3.1.4.7.3 Rights of Reporting Party, or
A Reporting Party may provide their report/statement to the Title IX Office and discontinue participation. The Title IX Office will assess under Xavier's Title IX Sexual Harassment policies what steps, if any, and up to and including terminating the investigation and grievance process, are necessary to address and resolve the charge. The Reporting Party (and Responding Party if applicable) will be notified of this decision, or
A Reporting Party has the right not to participate in Xavier's Title IX Sexual Harassment complaint resolution process at any time and will not be compelled to do so. It should be understood that this will limit Xavier's ability to fully address the reported policy violations. If a Reporting Party notifies Xavier Officials that they will not be participating, the Chief Title IX Officer and/or Dean of Students will determine under Xavier’s Title IX Sexual Harassment policies whether the University will proceed with the complaint resolution process without the Reporting Party's participation.

3.4.1.4.3 Title IX Sexual Harassment Hearing Panels

Title IX Sexual Harassment hearings will be heard by a Hearing Panel. Hearing Panel members will be selected from a pool of faculty members, administrators, and students who receive annual training. Hearing Panels will consist of no less than three individuals, and will generally be comprised of two faculty or staff members, and one student.

3.4.1.4.4 Identification, Collection, Dissemination and Presentation of Information

In Title IX Sexual Harassment hearings, the Dean of Students is responsible for identifying, collecting and disseminating information to be presented at the hearing to the Hearing Panel in accordance with these procedures. At the hearing, a member of the Hearing Panel will facilitate all proceedings and at the conclusion of the hearing will facilitate the Hearing Panel's deliberations.

3.4.1.4.5 Timing of Title IX Sexual Harassment Hearings

(1) Title IX Sexual Harassment hearings will be scheduled no sooner than 10 business days after the Dean of Students’ Office has received the final Title IX Investigation Report.

(2) At least five business days before a Title IX Sexual Harassment Hearing, the Responding Party and the Reporting Party will be notified of the date, time, location of the hearing, names of Hearing Panel members, and will be provided with all documents to be presented to the Hearing Panel. FERPA-protected information may be redacted. Each party will have two business days after the Responding Party and Reporting Parties are notified of the date, time and location of the hearing to notify the Dean of Students of a request to change the date or time of the hearing or an objection to any Hearing Panel member. Changes to date and time and objections will only be granted for good cause, as determined in the sole discretion of the Dean of Students. The parties will be notified in writing of any change to the date, time, location, or Hearing Panel at least two business days before the originally- scheduled hearing date.

(3) At least two business days before the hearing, the Responding Party and Reporting Party, if any, must submit to the Dean of Students a list of witnesses they want to present information at the hearing.

(4) At least 24 hours before the hearing, the Responding Party and Reporting Party, if any, will each be given a list of all witnesses who will be called at the hearing, including witnesses submitted by the Responding Party, the Reporting Party and Xavier.

"Business days" means any day that is not a weekend, a day the University is closed or a national holiday.

3.4.1.4.6 Title IX Sexual Harassment Hearing Procedures

A Title IX Sexual Harassment Hearing will be conducted according to the following procedures:

(1) The Title IX Sexual Harassment Hearing will be closed to everyone except those persons specifically provided for in this process or persons whose presence at the hearing is authorized in advance by the Dean of Students.

(2) A Responding Party will be presumed to be not responsible for the alleged conduct until a different determination regarding responsibility is made at the conclusion of the hearing. To be found responsible, the Hearing Panel must conclude, based on the entirety of the statements and records presented, that there is sufficient evidence to conclude by a preponderance of the evidence that the respondent violated Xavier’s Title IX Sexual Harassment policy.

(3) Each party has the opportunity to be accompanied to any related meeting or proceeding by the advisor of their choice, who may be, but is not required to be, an attorney; however, as permitted by these Title IX Sexual Harassment policies, in a Title IX Sexual Harassment Hearing, Xavier limits the advisor’s role and participation in a hearing to only asking questions of the other party and/or witnesses. Outside of this limited “questioning” role, while the advisor may help the Reporting or Responding Party prepare their position and privately/quietly consult with the party at any time, the advisor may not present the Reporting or Responding Party’s position or speak for or on behalf of the party during the hearing. All parties and advisor conduct, including when advisors are questioning the other party or a witness, must be respectful and non-abusive. Should a party or advisor engage in conduct that does not align with these decorum standards, Xavier’s Dean of Students or Director of Student Integrity will address this issue and give the party or advisor the opportunity to correct their conduct. Should the individual continue to engage in conduct that does not meet Xavier’s decorum expectations, the Dean of Students or Director of Integrity reserves the right to have that individual leave the hearing. If such a step must be taken, the Dean of Students or Director of Student Integrity may require the party to use a different advisor to ask questions of the other party and witnesses.

If a party does not have an advisor present at the hearing, Xavier will provide an advisor to fulfill this limited role. This individual, who will be referred to as the “Questioning Advisor” will be a Xavier staff member specifically assigned and trained for this role.
If a Reporting Party has Xavier’s Campus Advocacy Coordinator or a Peer Support Volunteer as their advisor or either party has an Integritas Advisor as their advisor, those individuals may not serve as the Questioning Advisor. Therefore, the Reporting Party or Responding Party will need to utilize a different advisor of choice or request a Xavier-assigned Questioning Advisor for the limited questioning role in the hearing. In this event, the Integritas Advisor, Campus Advocacy Coordinator, and/or Peer Support Volunteer would be required to leave the hearing while the Questioning Advisor participates.

(4) A scheduled hearing may proceed in the absence of a Responding Party, a Reporting Party, or any other individual who fails to appear. An absence will not be considered grounds for an appeal.

(5) At the beginning of the hearing, the Responding Party and Reporting Party will each be advised of their rights. The Reporting Party, the Responding Party, and the Hearing Panel will be provided the opportunity to ask relevant questions about the materials and information presented.

(6) In the hearing, each advisor (or Questioning Advisor as the case may be) will be permitted to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility. Such questions will be conducted directly, orally, and in real time by the party’s advisor of choice and never by a party personally.

(7) Only relevant questions may be asked of a party or witness. Before a Reporting Party, Responding Party, or witness answers a question, the Hearing Panel Chair will first determine whether the question is relevant and explain any decision to exclude a question as not relevant. Reasons the Chair may determine the question may not be permitted include, but are not limited to the question posed being repetitive, harassing, unduly prejudicial, seeking to access privileged information (e.g. mental health information), and/or questions related to the sexual history of a party that does not fall within the potentially permitted scope of Section 3.4.1.4.6 of the Title IX Sexual Harassment Hearing Procedures. The Hearing Panel Chair must explain to the party proposing the questions any decision to exclude a question as not relevant. The Chair’s decision on relevancy is final. The Chair will take the time they assess is necessary to make conduct a thorough, appropriate relevancy determination and may pause the hearing to discuss the relevancy question with the other Hearing Panel members before issuing their determination. Parties and advisors will be not permitted to challenge the relevancy determination after receiving the explanation.

(8) Questions and evidence about the Reporting Party’s sexual predisposition or prior sexual behavior are not relevant, unless such questions and evidence about the Reporting Party’s prior sexual behavior are offered to prove that someone other than the Responding Party committed the conduct alleged by the Reporting Party, or if the questions and evidence concern specific incidents of the Reporting Party’s prior sexual behavior with respect to the Responding Party and are offered to prove consent.

(9) Xavier will create an audio or audiovisual recording, or transcript, of the Title IX Sexual Harassment and make it available to the parties for inspection and review.

(10) At the conclusion of the hearing, the Hearing Panel shall confidentially consider all of the statements and records made available at the hearing to formulate a decision on the issue of responsibility. Except in exigent circumstances, the decision should be made within five business days of the conclusion of the hearing.

(11) If the Responding Party is found to be responsible, the Dean of Students shall then provide the Hearing Panel with records reflecting any prior student conduct violations for which the Responding Party was previously found responsible, which information may be considered by the Hearing Panel in recommending a sanction.

(12) If a Responding Party is found responsible, the Hearing Panel will recommend sanctions to the Dean of Students, who will assess the recommended sanction(s) they deem appropriate. If the sanction ultimately imposed varies from the recommendation of the Hearing Panel, the Dean of Students will include the reasons for such variance in the notices provided to the Reporting Party or other victim and the Responding Party as required by this Handbook.

(13) At the conclusion of the hearing and the Hearing Panel deliberation process, the Hearing Panel will issue a written determination regarding responsibility applying the preponderance of evidence standard of evidence. The written determination will be provided to the parties simultaneously within five business days of the conclusion of the hearing.

(14) The determination regarding responsibility becomes final following the conclusion of the appeal process if an appeal is submitted, or, if an appeal is not submitted, the date on which an appeal would no longer be permitted to be submitted.

(15) The Chief Title IX Officer is responsible for effective implementation of any remedies.

3.4.1.4.7 Student Rights and General Information Pertaining to Title IX Sexual Harassment Hearings

The Title IX Sexual Harassment complaint resolution process is an educational process and is not an adversarial criminal or civil legal process. The rights and procedures required in such legal systems are not applicable in the Student Conduct Process.

The following rights and information apply in Title IX Sexual Harassment hearings:

General Information (Section 3.4.1.4.7.1)
Rights of the Responding Party (Section 3.4.1.4.7.2)
Rights of the Reporting Party (Section 3.4.1.4.7.3)

3.4.1.4.7.1 General Information

Xavier’s Title IX Sexual Harassment complaint resolution process ensures an objective evaluation of all relevant evidence – including both inculpatory and exculpatory evidence.
Credibility determinations will not be based on a person’s status as a Reporting Party, Responding Party, or witness.
The Title IX Sexual Harassment complaint resolution process does not require, allow, rely upon, or otherwise use questions or evidence that constitute, or seek disclosure of, information protected under a legally recognized privilege, unless the person holding such privilege has waived the privilege.
Xavier will not access, consider, disclose, or otherwise use a Reporting Party or Responding Party’s records that are 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 Xavier obtains that party’s voluntary, written consent to do so for a grievance process.
Xavier provides an equal opportunity for the both parties to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence.
Xavier does not restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence.
Each party may be accompanied to any related meeting or proceeding by the advisor of their choice, who may be, but is not required to be, an attorney.
Each party has the right to be present throughout the hearing but not during the deliberation of the Hearing Panel.
Each party has the right to hear all of the information presented.
Each party has the right to present pertinent information and witnesses to substantiate their position. Witnesses must be present at the hearing and their lack of attendance is not cause for appeal.
Each party has the right to submit a request for appeal of the outcome of a hearing. The request must be made as described in Request for an Appeal From a Determination of the Title IX Sexual Harassment Hearing (Section 3.4.1.5).

3.4.1.4.7.2 Rights of the Responding Party

These rights are specific to the Responding Party and are in addition to the rights shared by both parties in Section 3.4.1.4.7.1 General Information.

The Responding Party has the right to remain silent. If silence is maintained, the outcome of the hearing will be determined on the information presented. The Hearing Panel may not draw any inference from a Responding Party's choice to remain silent.
The Responding Party has the right to respond to the allegations against them.

3.4.1.4.7.3 Rights of the Reporting Party

These rights are specific to the Reporting Party and are in addition to the rights shared by both parties in Section 3.4.1.4.7.1 General Information.

A Reporting Party may choose how they want to participate in the Title IX Sexual Harassment Hearing (Section 3.4.1.4.2 Reporting Party Involvement in Title IX Sexual Harassment Hearings)
A Reporting Party will be provided written notification of the outcome of the hearing with respect to that alleged violation.

3.4.1.5 Request for an Appeal From a Determination of the Title IX Sexual Harassment Hearing Panel

The request for an appeal from a determination of a Title IX Sexual Harassment Hearing Panel will be to the Title IX Sexual Harassment Appeal Panel ("University Appeal Board "). In certain situations, it may become difficult, impractical or impossible for the University Appeal Board to review a case. In these circumstances, the appeal will be reviewed by an appointed designee. See Section 3.3.1.4.9 Title IX Sexual Harassment Appeals of these policies.

3.4.1.6 Title IX Sexual Harassment Appeals

Both the Reporting and Responding Parties have the right to appeal a determination regarding responsibility of the Title IX Sexual Harassment Hearing Panel.

3.4.1.6.1 Requesting an Appeal

After a Title IX Sexual Harassment Hearing, the Responding Party and the Reporting Party will each have five business days after notice of the outcome of the hearing is sent in which to request an appeal. Requesting an appeal does not mean that an appeal will be heard. Requests for appeals will only be granted for specific reasons outlined below.

Requests for an appeal must be made in writing and directed to the Dean of Students or designee. A request for an appeal must be received by the Dean of Students or designee no later than 5:00 p.m. on the fifth business day after receipt of the outcome of the hearing. The Dean of Students or designee will convene a University Appeal Board to review the appeal. In certain situations, it may become difficult, impractical or impossible for the University Appeal Board to review a case. In these circumstances, the appeal will be reviewed by a designee appointed by the Dean of Students.

3.4.1.6.2 Reasons for Requesting an Appeal

Upon request, an appeal will only be allowed if the request provides sufficient factual basis for at least one of the following grounds for an appeal

Procedural irregularity that affected the outcome of the matter;
New evidence that was not reasonably available at the time of the determination of the Harassment Hearing Panel regarding responsibility that could affect the outcome of the matter; and
The Chief Title IX Officer, or a Title IX Sexual Harassment Hearing Panel member(s) had a conflict of interest or bias for or against Reporting or Responding Parties generally or the individual Reporting Party or Responding Party that affected the outcome of the matter.

3.4.1.6.3 Review of a Request for an Appeal

When the University Appeal Board receives a request for an appeal, it will notify the non-appealing party in writing that an appeal has been submitted. The non-appealing party will only receive a copy of the request for an appeal if the request is accepted. The Appeal Board will review the request for an appeal to determine if the request provides sufficient factual basis for one of the three grounds for an appeal. If the Appeal Board finds that the request is insufficient, it will provide the requesting student with written notification that the request for an appeal is denied within 5 business days of the actual review. A copy of this notification will be sent to the non-appealing party.

If the Appeal Board determines that the request for appeal provides sufficient factual basis for at least one of the three grounds for appeal, the appeal request will be granted. The requesting student will receive notification within five business days that includes: (a) an explanation that granting the request for an appeal means the appeal will be conducted and does not mean any conclusions have been made as to the merits of the appeal; (b) a general description of how the appeal will be conducted, including any times and dates with which the student must comply; (c) a request for written statements if the Appeal Board desires such statements; (d) at least a general timeline that includes due dates, if any, dates for meetings, if possible, and timelines for making a determination. The non-appealing party will be provided the same notification along with a copy of the request for an appeal, and the opportunity to provide a written statement to the Appeal Board. No additional statements will be accepted from either party unless explicitly requested by the appeal board. The same relevancy criteria will apply in the appeal process as applied in the hearing process.

Both parties will be given written notification of their respective reasonable and equal opportunity to submit a written statement in support of, or challenging, the determination of the Title IX Sexual Harassment Hearing.

Appeal Board members receive annual training, appropriate for Title IX Sexual Harassment matters. Any individual who was a member of the Title IX Sexual Harassment Hearing Panel involved with the initial hearing is disqualified from hearing the appeal.

While the Appeal process is pending, sanctions of Suspension and Expulsion assigned by the original Hearing Panel will be in effect. In such cases, the Responding Party will be placed on Administrative Separation (Section 3.3.8) pending the conclusion of the Appeal process.

3.4.1.6.4 Conducting the Appeal if the Appeal Request is Granted

If the request for an appeal is granted, the Appeal Board will consider the record of the matter to determine the appropriateness of the decision and sanctions rendered in the original hearing. The record is comprised of the materials used in the hearing, any transcript from the case hearing, and any recording of the hearing. The Appeal Board will also consider the written request for an appeal, and any written statements it solicits.

3.4.1.6.5 Appeal Meeting

Once a request for an appeal has been granted, the appeal is generally granted or denied based upon the materials used in the hearing, any transcript from the case hearing, and any recording of the information presented in the request for an appeal, and the written statements referenced in Section 3.4.1.6 (c), if any. However, in some instances, it may be necessary for a meeting to be conducted to clarify details presented. An appeal meeting is not a rehearing of the case. The appeal meeting, if warranted, will be conducted in accordance with the procedures outlined below:

1) The appeal meeting will be closed to everyone except those persons specifically invited by the Appeal Board.

2) A student whose presence is requested at an appeal meeting has the right to be accompanied and assisted at the appeal meeting by the advisor of their choice, who may be, but is not required to be, an attorney. The role of the advisor in an appeal will be limited to helping a Reporting Party or Responding Party prepare their position but the advisor may not present it or speak for or on behalf of the individual during the appeal process.

3.4.1.6.6 Written Statements

The Appeal Board may request written statements from the Reporting Party, Responding Party, and other individuals it deems appropriate and necessary. The Appeal Board may set a limit on the length of such statements and then they may use such statements as they deem fit. Unsolicited statements from the Reporting Party, Responding Party, or anyone else will not be considered by the Appeal Board if the statements are not part of the record of the hearing by the Title IX Sexual Harassment Hearing Panel.

3.4.1.6.7 New Evidence

Only new information that was not available at the time of the hearing by the Title IX Sexual Harassment Hearing Panel will be accepted and considered by the Appeal Board. If new information is accepted because it was not available at the time of the hearing by the Title IX Sexual Harassment Hearing Panel, the Appeal Board may use this new information in considering the outcome of the appeal only if it is determined to be accurate and justified, in the judgment of the Appeal Board.

3.4.1.6.8 Final Decision

An Appeal Board's decision to grant or deny a request for an appeal is a final decision. If a request for an appeal is granted, the decision of the Appeal Board reviewing the appeal will also be a final decision.

The Appeal Board will issue a written decision simultaneously to both parties describing the result of the appeal and the rationale for the result.

3.4.1.7 Supportive Measures

Pending resolution of a Title IX Sexual Harassment matter, when there is a significant student conduct or health and safety concern that requires immediate intervention to preserve and support the general welfare and academic experience of one or more students and/or the Xavier community, the Title IX Office, Dean of Students Office, Office Residence Life or Xavier University Police Department, make take and/or provided Supportive Measures.

Supportive Measures are typically non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the Reporting Party or the Responding Party before or after the filing of a formal complaint or where no formal complaint has been filed. Such measures are designed to restore or preserve equal access to the Xavier’s education program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties or Xavier’s educational environment, or deter sexual harassment.

Supportive Measures may apply to one, both, or multiple parties involved. Examples of Supportive Measures include, but are not limited to:

Extensions of deadlines or other course-related adjustments (Sections 3.3.6 and 3.3.7)

Changes to housing locations or arrangements (Section 3.3.5)
Campus escort services (Section 3.3.3)
Modifications of work or class schedules (Section 3.3.9)
Leaves of absence (Section 3.3.9)
Increased security and monitoring of certain areas of the campus (Section 3.3.4)
Connecting parties to counseling, health, and/or advocacy services (Section 3.3.9)
Visa and immigration assistance (Section 3.3.9)
Emergency Medical Withdrawal (Section 3.3.10)
Xavier University Issued No Contact Order (Section 3.3.1)
Externally Issued Protective Orders (Section 3.3.2)

Should an individual pose an immediate danger to or severely disrupt the Xavier community, or endanger any individual (including oneself), a student may be placed on Administrative Separation while the student conduct is pending. This means the student will be separated from Xavier, including removal from all housing, classes and activities, pending the resolution of the Title IX Sexual Harassment matter. If the resolution of the underlying Title IX Sexual Harassment matter does not result in a separation from Xavier (i.e., suspension or expulsion), measures will be taken to assist the student in mitigating any negative academic impact resulting from being administratively separated from Xavier. The decision whether or not to impose an Administrative Separation will be at the discretion of the Title IX Office or Dean of Students Office.

Should a Responding Party be found responsible for a violation of Xavier’s Title IX Sexual Harassment policies, Administrative Separation may be continued or initiated pending conclusion of any appeal proceedings.

3.4.1.7.1 Emergency Removal in Title IX Sexual Harassment Matters

Under Title IX, Xavier may remove a Responding Party from Xavier’s education program or activity on an emergency basis. To do so, the Chief Title IX Officer must undertake an individualized safety and risk analysis. If the Chief Title IX Officer determines that there is an immediate threat to the physical health or safety of any student or other individual arising from the allegations of sexual harassment that justifies removal, they will provide the Responding Party with notice of the determination as well as the Responding Party’s opportunity to challenge the decision immediately following the removal.

If a Responding Party chooses to appeal the removal decision, they have three business days from notice of the removal to submit a written appeal to the Vice President for Student Affairs (which for these purposes may mean a person designated by the Vice President for Student Affairs if unavailable). The Vice President for Student Affairs will review the matter, including reviewing the Chief Title IX Officer's written safety and risk analysis, rationale for the removal decision, the Title IX Investigation Report to date, and any other information and evidence the Vice President for Student Affairs deems necessary to comprehensively review the appeal. The Vice President for Student Affairs will meet with the Responding Party if requested when the appeal is submitted, and may also request to meet with the Reporting Party, the Chief Title IX Officer, and/or other individuals who may have relevant additional information. The Vice President for Student Affairs will notify the Responding Party and the Chief Title IX Officer of the outcome of that review within five business days of receipt of the appeal. The Vice President for Student Affairs decision is final.

Other Supportive Measures may be taken if deemed appropriate by the Title IX Office, Dean of Students Office, Office of Residence Life or the Xavier University Police Department based on the facts and circumstances of a particular situation.

Supportive Measures imposed may be temporary pending the results of an investigation and/or student conduct process or may become permanent as determined by Xavier University. Violations of Xavier directives and/or Supportive Measures may constitute separate Code of Conduct violations that may lead to additional disciplinary action.

Personally identifiable information about the Reporting Party will be treated as confidential and only shared with persons with a specific need to know. This would include individuals who are investigating/adjudicating the complaint or delivering resources or support services to the Reporting Party. For example, publicly available records for purposes of Clery Act reporting and disclosures will be made without inclusion of identifying information about the Reporting Party, as defined in 42 USC 1395 (a) (20).). Further, Xavier will maintain as confidential, any adjustments or Supportive Measures provided to the reporting to the extent that maintaining such confidentiality would not impair the ability of the University to provide the accommodations or protective measures.

Xavier must and will maintain as confidential any Supportive Measures provided to the Reporting or Responding Party, to the extent that maintaining such confidentiality would not impair Xavier’s ability to provide the Supportive Measures. In Title IX Sexual Harassment matters, the Title IX Office is responsible for coordinating the effective implementation of Supportive Measures.

Requests for Supportive Measures should be directed to the Title IX Office, which will collaborate with the additional, relevant offices and/or departments as necessary.

3.4.1.8 Retaliation Prohibited

Under Title IX, neither Xavier nor any other person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under these policies.

Intimidation, threats, coercion, or discrimination, including charges against an individual for Student Code of Conduct violations that do not involve Sex Discrimination or Sexual Harassment, but arise out of the same facts or circumstances as a report or complaint of Sex Discrimination, or a report or formal complaint of Sexual Harassment, made for the purpose of interfering with any right or privilege secured by Title IX constitutes retaliation.

Xavier will keep confidential the identity of any individual who has made a report or complaint of Sex Discrimination, including any individual who has made a report or filed a formal complaint of Sexual Harassment, any Reporting Party, any individual who has been reported to be the perpetrator of Sex Discrimination or Sexual Harassment, any Responding Party, and any witness, except as may be permitted by the FERPA statute, 20 U.S.C. 1232g, or FERPA regulations, 34 CFR part 99, or as required by law, or to carry out the purposes of 34 CFR part 106, including the conduct of any investigation, hearing, or judicial proceeding arising thereunder.

Complaints alleging retaliation may be filed according to the Title IX Sexual Harassment policies and complaint resolution process of the Student Handbook.

Charging an individual with a Student Code of Conduct violation for making a materially false statement in bad faith in the course of a Title IX Sexual Harassment complaint resolution process does not constitute retaliation prohibited by Title IX, provided, however, that a determination regarding responsibility, alone, is not sufficient to conclude that any person made a materially false statement in bad faith.

3.4.1.9 Confidentiality and Disclosures

3.4.1.9.1 General Confidentiality

The name, status, and violations or alleged violations of any student will not be disclosed to anyone other than the appropriate University officials, except as required or permitted by law. Generally, the outcome of any Title IX Sexual Harassment complaint resolution process and appeal will remain confidential. These statements of general confidentiality are subject to the following rules on required disclosures and permissible disclosures.

Nothing provided herein is intended to restrict the ability of any party from discussing or disclosing information to others or gathering evidence that is necessary within the parameters of preparation for and participation in the complaint resolution process. However, because of the sensitive and private nature of these matters, all persons involved any aspect of an allegation of Sex Discrimination should respect the privacy of the parties involved and keep the matter confidential within the parameters of preparation for and participation in the complaint resolution process unless otherwise required by law. All communication by parties and witnesses should be respectful and comply with this Student Handbook. Information will only be disclosed to the extent required by law, and to the extent that such disclosure is necessary and permitted under this Student Handbook for the investigation and adjudication of any claim of Sex Discrimination. Failure of any individual to maintain these parameters may result in disciplinary action in accord with the applicable University policies and procedures.

3.4.1.9.2 Required Disclosures

Under Federal law, Xavier must provide written notice to the Reporting and the Responding Party of the final results of any complaint resolution process brought against a Responding Party for alleged violations of Xavier’s Title IX Sexual Harassment policies. This notification is required regardless of whether or not the Responding Party is found responsible for the alleged violation, and may only include the final results of the complaint resolution process with respect to that violation. This disclosure will be made whether or not the alleged victim is the Reporting Party. Written notice will include all information described in Section 3.4.1.4.6 Title IX Sexual Harassment Hearing Procedures.

3.4.1.9.3 - Permissible Disclosures

The University may also choose to disclose information in certain circumstances, including, but not limited to, those described in Section 3.6.3.3 Permissible Disclosures.

3.4.1.10 Benchmark Sanctions for Title IX Sexual Harassment

Xavier University’s general approach to sanctioning for Student Handbook policy violations is described in Section 3.7 Sanctions.

If a student is found responsible for Title IX Sexual Harassment, the following benchmark sanctions are a starting point for determining the appropriate sanction. Actual sanctions imposed are determined on a case-by-case basis and may be greater or lesser than the benchmark sanctions. These benchmark sanctions are intended to offer guidance to the individuals and panels imposing and recommending sanctions, and to alert students of the serious nature of certain violations. This list does not limit the forms of sanctions that may be assessed through the Student Conduct Process.

Definitions of conduct that constitutes prohibited Title IX Sexual Harassment are in Section 2.3.3.1.

(a) Sexual Harassment- the benchmark sanction for a student found responsible ranges from University Probation to Expulsion

(b) Sex Offenses, Forcible - the benchmark sanction for a student found responsible ranges from University Probation to Expulsion

(d) Forcible Sodomy- the benchmark sanction for a student found responsible is Expulsion.

(e) Sexual Assault with an Object- the benchmark sanction for a student found responsible is Expulsion

(f) Forcible Fondling- the benchmark sanction for a student found responsible ranges from Suspension to Expulsion.

(g) Incest- the benchmark sanction for a student found responsible is Expulsion.

(h) Statutory Rape- the benchmark sanction for a student found responsible is Expulsion.

(i) Dating violence- the benchmark sanction for a student found responsible ranges from University Probation to Expulsion.

(j) Domestic violence- the benchmark sanction for a student found responsible ranges from University Probation to Expulsion.

(k) Stalking- the benchmark sanction for a student found responsible ranges from Suspension to Expulsion.

Benchmark Sanctions for Interpersonal Violence may be found in Section 3.7.2.2.