Hearing Procedures Involving Student Respondents

V. HEARING PROCEDURES INVOLVING STUDENT RESPONDENTS

A. Hearings Before External Adjudicator: Overview

The External Adjudicator shall hear all claims of sexual misconduct, harassment, and discrimination involving student Respondents pursuant to the procedures set forth in this Policy. The External Adjudicator will determine responsibility and decide sanctions, if appropriate, after a finding of responsibility. In cases brought under the Policy, the evidentiary standard of preponderance of evidence will be used for the sexual misconduct-related violations. In addition, if a student Respondent admits responsibility, the External Adjudicator will decide sanctions. In matters involving alleged violations for which a student Respondent has accepted responsibility,in addition to alleged violations that are proceeding to a hearing, the External Adjudicator will delay making all sanction recommendations until reaching a determination as to responsibility for the alleged violations proceeding to hearing.

B. Role of Title IX Coordinator

The Title IX Coordinator will refer the written complaint, if any, the Statement of Alleged Policy Violations, the Investigation Report, and the response, if any, to the External Adjudicator. The External Adjudicator is supported by the Title IX Coordinator, who will be present during the hearing, to serve as a resource for the External Adjudicator on issues of policy and procedure, and to see that policy and procedure are appropriately followed throughout the hearing. In that role, the Title IX Coordinator may request that the College’s legal counsel be present during any meeting or hearing. If the External Adjudicator determines, by a preponderance of the evidence, that the Respondent has violated the Policy, the External Adjudicator, in consultation with the Title IX Coordinator, will determine the appropriate sanction.

C. Scope of Hearing

The External Adjudicator may only find responsibility for claims or supporting allegations that appear on the Statement of Alleged Policy Violations prepared by the Title IX Coordinator. In cases involving complaints against students where related complaints are submitted to the Title IX Coordinator and the Dean of Students Office pursuant to the Student Code, the investigation and/or hearing of both the sexual misconduct, harassment and/or discrimination complaint and the Student Code violation(s) will be decided by the External Adjudicator, as discussed herein.

D. Hearing Protocols

1. Timing

The External Adjudicator will conduct a prompt, thorough, and unbiased hearing. Hearings will be held as soon as practicable, normally within two-to-four weeks of circulation of the SAPV/RNM and Investigation Report, including between semesters subject to the availability of witnesses, etc. The parties will receive notice of any delay of convening a hearing.

2. Review and Consideration of Evidence

The External Adjudicator will base its determination whether behavior constitutes sexual misconduct, harassment, and/or discrimination under this Policy on the evidence presented. With respect to other violations of the Student Code, the External Adjudicator will consult with the student dean advising the Judicial Council. The External Adjudicator will invite the Complainant and Respondent to appear before it, and will hear and question witnesses, if there are any. The Complainant and Respondent may be present at the hearing if they choose or they may choose to participate in the hearing remotely. However, neither party shall be allowed to directly question or cross-examine the other or any witness during the hearing. Five (5) business days prior to the hearing, questions, if any, shall be submitted to the External Adjudicator by both parties in writing, who will then decide whether those questions are relevant to the matter and in compliance with Title IX requirements; this does not preclude either party from submitting additional written questions during the hearing for the External Adjudicator’s consideration. Questions submitted by either party will not be shared with the other party.

In addition, ten (10) business days prior to the hearing, the parties shall, for the External Adjudicator’s consideration, provide the names of any material witnesses, if any, they suggest be called and a summary of information each witness would provide through his/her testimony. (Character witnesses are not permitted.) Names of witnesses provided by the Complainant/Respondent will be shared with the other party. Further, the Complainant shall be offered the opportunity to participate in the hearing without being in the presence of the Respondent, or accommodations can be made so the Complainant may participate in the hearing without facing the Respondent.The External Adjudicator will conduct a hearing and will review whatever information it deems necessary to assist it in reaching a determination as to the merits of the charge, including information obtained by the Investigators during the investigation. The parties and witnesses will address only the hearing officer, and not each other. Only the hearing officer may question witnesses and parties.The External Adjudicator will prohibit questions of either party or any witness that are repetitive, irrelevant or harassing. Parties are allowed to note, in writing only, any objections to questions posed at the hearing: they will do so by keeping a running written record of any objections during the hearing, and they may not object to questions by speaking. Only at the conclusion of the hearing will parties provide the record of their objections, if any, to the hearing officer, for inclusion in the record. Although courtroom rules of evidence and procedure will not apply, the hearing will be conducted in a respectful manner that promotes fairness and accurate factfinding.

The Title IX Coordinator will request the attendance of all the witnesses whose testimony the External Adjudicator has determined was within the hearing scope. The Title IX Coordinator will coordinate to have the investigator present at the hearing for questions regarding the investigation and the investigation Report.

The College cannot compel parties or witnesses (with the exception of the Investigator) to testify in the hearing. Any witnesses’ decision not to participate will not be a reason to cancel or postpone a hearing. In cases where the credibility of a witness is not significant to the determination of a particular disputed issue and that witness does not appear at the hearing, the External Adjudicator may determine what weight to give to their statements from the investigation report. All witnesses other than the parties will attend the hearing only for their own testimony.

The parties are expected not to spend time on undisputed facts or evidence that would be duplicative.

3. Review and Consideration of “New” Evidence

If the External Adjudicator determines that “new” evidence that did not come to light during the investigation has been presented during the hearing, the External Adjudicator may adjourn the hearing for a period that the External Adjudicator deems appropriate to enable the Complainant and/or Respondent to respond to such evidence. Evidence is considered “new” only if the External Adjudicator finds the evidence is relevant and important and could not with a reasonable effort have been discovered earlier by the party and provided to the investigator.

4. Privacy of Proceedings

The hearings will be closed, except to the Complainant and the Respondent, their respective advisor/support person and their respective Case Manager. The advisor/support person may consult with the party during the hearing but may not address the External Adjudicator. Once the hearings have ended and the process of deliberation has begun, the meeting will be closed to all but the External Adjudicator, the Title IX Coordinator, and the College’s legal counsel (as appropriate).

5. Impact and Mitigation Statements

Within two (2) business days of the close of the hearing, either party may submit a separate Impact or Mitigation statement, no longer than 1,500 words, that will only be read and considered by the External Adjudicator upon a finding of responsibility. These statements should be sent to the Title IX Coordinator, who will forward the submissions to the External Adjudicator upon a finding a responsibility.Upon a finding of responsibility, the Title IX Coordinator will also ensure that each of the parties will receive any statement submitted by the other party.

The Impact Statement is a written statement describing the impact of the Respondent’s conduct on the Complainant and expressing a preference about the sanction(s) to be imposed. The Mitigation Statement is a written statement explaining any factors that the Respondent believes should mitigate or otherwise be considered in determining the sanctions(s) imposed.

6. Decisions by External Adjudicator

Decisions of the External Adjudicator following the hearing will be limited to the following issues: (i) whether a violation of this Policy hasoccurred; and (ii) upon a finding of responsibility, an appropriate sanction. As soon as a decision on the case is reached, it will be summarized in a writing containing factual findings and the basis for the conclusion, prepared by the External Adjudicator within 10 business days of the hearing.

7. Determination of Sanctions by External Adjudicator

The External Adjudicator, upon a finding of responsibility, shall determine sanctions for student Respondents. The sanctions may include remedial or corrective actions as warranted (including, but not limited to, extension of or expansion or any interim measures already in place). In general:

Expulsion is the expected sanction for any student who is determined to have committed sexual assault involving sexual penetration and force and/or incapacity.
Any determination of responsibility for committing sexual assault involving sexual penetration without force or incapacitation may result in a sanction ranging from suspension of no less than one-year or the Complainant’s remaining tenure on campus (whichever is longer) to expulsion
Any determination of responsibility for committing sexual assault involving sexual contact may result in a sanction ranging from conduct probation up to expulsion.
Any determination of responsibility for engaging in any other prohibited form of conduct may result in a sanction ranging from conduct warning to expulsion.

The External Adjudicator will not deviate from the range of recommended outcomes unless compelling justification exists to do so. The External Adjudicator may issue a single sanction or a combination of sanctions. In considering the appropriate sanction within the recommended outcomes, the External Adjudicator will consider the following factors:

the impact of the conduct on the Complainant;
the impact of the conduct on the community, its members, or its property;
the Respondent’s prior discipline history;
how the College has sanctioned similar incidents in the past;
the nature and violence of the conduct at issue;
whether the Respondent has accepted responsibility;
whether the Respondent is reasonably likely to engage in the conduct in the future based on pattern and practice evidence heard and considered by the investigator and/or External Adjudicator;
the need to deter similar conduct by others; and
any other mitigating or aggravating circumstances, including the College’s values.

Absent compelling justifications, if the Respondent has previously been found responsible under College policy to have engaged in the same or similar conduct in the past, the sanction will be expulsion.

The following list of sanctions is illustrative rather than exhaustive, and the College reserves the right to impose other reasonable sanctions or to combine sanctions as it deems appropriate:

Conduct Warning—A written notification that a violation of the Student Code occurred and that any further responsible finding of misconduct may result in more severe disciplinary action. Warnings are typically recorded for internal purposes only and are not considered part of a student’s permanent student conduct record. Though disclosed with a student’s signed consent, a student who receives a warning is still considered in good standing at the College.

Conduct Probation—A written notification that indicates a serious and active response to a violation of the Student Code. Probation is for a designated period of time and includes the probability of more severe sanctions, if found responsible for additional violations of the Student Code, including suspension or expulsion from the College. Notification of probation is considered a change in status and will normally be sent to parents. Probation may also include restrictions from certain activities, such as registered parties, or all activities with alcohol.
Loss of Privileges—Denial of the use of certain College facilities or the right to participate in certain activities or to exercise certain privileges for a designated period of time.
Residential Relocation or Suspension from Housing—Relocation is the reassignment of a student from one living space to another. Residential Suspension is the removal of a student from on-campus housing. Relocation and Residential Suspension are typically accompanied by the loss of privileges regarding the visitation to specific residential areas for a specified period of time. The College may take such action for remedial, rather than disciplinary purposes. These actions may also be part of interim measures.
Educational Requirements/Referrals—The College reserves the right to impose counseling or substance assessments or other required educational sanctions.
College Suspension—The separation of a student from the College for a specified period of time, after which the student is eligible to return. Conditions for re-enrollment may be required and will be included in the notification of suspension. During the period of suspension, the student may not participate in College academic, co-curricular, or extra-curricular activities; may be banned from all property owned or operated by the College, as well as the other Claremont Colleges. Students who are suspended may not be on campus without specific, written permission of the Dean of Students or designee. Suspension is for a designated period of time and includes the probability of more severe sanctions, including expulsion, if found responsible for violations of the Student Code. Notification of suspension will normally be sent to parents, as it results in a change of status.
Expulsion—Expulsion is the permanent separation of the student from the College. Students who have been expelled may not be on campus without specific, written permission from the dean of students or designee. Notification of expulsion will normally be sent to parents, as it results in a change of status.

8. Other Remedial Decisions by External Adjudicator

The External Adjudicator should also consider other remedial actions that may be taken to address and resolve any incident of discrimination or harassment and to prevent the recurrence of any discrimination, including strategies to protect the Complainant and any witnesses from retaliation; provide counseling for the Complainant; other steps to address any impact on the Complainant, any witnesses, and the broader student body; and any other necessary steps reasonably calculated to prevent future occurrences of harassment.

9. Transmission of External Adjudicator’s Decision and Report

In the case of student Respondents, the External Adjudicator will communicate their decision and hearing report in writing to the Title IX Coordinator within 10 business days. The External Adjudicator and Title IX Coordinator may communicate during this period if there any outstanding issues that require clarification or explication. Once the decision and report by the External Adjudicator is received by the Title IX Coordinator, the Title IX Coordinator will inform each of the parties simultaneously and provide in writing the decision and hearing report. The Complainant’s copy of the decision, report and details of the sanction(s) imposed on the Respondent, if any, may be limited in the copy of the External Adjudicator’s report given to Complainantdue to Respondent’s FERPA or other applicable privacy rights. A copy of the decision and report will also be provided to the Vice President for Student Affairs/Dean of Students who will also enter the decision into the Respondent’s record and will be placed inpermanent confidential records in the Dean of Students office and available to the Title IX Coordinator and External Adjudicators.

The sanction(s) imposed will be implemented immediately and will be in effect pending the outcome of any appeal.