The Title IX grievance procedure addresses allegations of Title IX violations subject to the Title IX regulations adopted by the U.S. Department of Education (USDOE), effective August 14, 2020. Conduct that falls outside the scope of the Title IX regulations (i.e., power-based violence) may be addressed by applying the Power-Based Violence and Sexual Misconduct Policy. The Title IX grievance procedure and its terms supersede any policies pertaining to the investigation or adjudication of “sexual harassment” as defined in this protocol. The informal resolution process included in these grievance procedures applies to Title IX complaints associated with gender discrimination, inequities, and other aspects of Title IX regulations.
The USDOE’s Title IX Regulations apply to both:
Sexual harassment is defined as conduct on the basis of sex that satisfies one or more of the following criteria:
An education program or activity includes locations, events, or circumstances in which an institution exercises substantial control over both the respondent and the context in which the sexual harassment occurs, and also includes any building owned or controlled by a student organization that is officially recognized by an institution. The Title IX regulations exclude any education program or activity that does not occur in the United States. (§106.44(a))
Conduct that does not satisfy the USDOE’s jurisdictional requirement, such as off-campus behavior alleged to have an on-campus effect, may be addressed under alternative procedures including but not limited to the Code of Student Conduct, Power-Based Violence and Sexual Misconduct Policy, and University Policies webpage.
As required by the Title IX regulations, complainants and respondents are treated equitably by: (1) offering supportive measures to a complainant, and (2) following a grievance process that complies with the procedural requirements of the Title IX regulations before the imposition of any disciplinary sanctions against a respondent. (§106.44(a); §106.45(b)(1)(i)) Supportive measures also may be offered as needed to respondents and other individuals who belong to an institution’s community and who may be affected by sexual harassment.
An individual’s status as a respondent shall not be considered a negative factor during any process under this procedure. Respondents are entitled to, and will receive the benefit of, a presumption that they are not responsible for the alleged conduct unless and until the process concludes and a determination regarding responsibility is issued. Similarly, a person’s status as a complainant, respondent, or witness will not determine whether that person is deemed credible. (§106.45(b)(1)(ii-iv))
Remedies are to be provided to a complainant only if the grievance process described in this procedure results in a determination that the respondent is responsible for sexual misconduct. Remedies are designed to restore or preserve equal access to an institution’s education program or activity and may include the same individualized services as supportive measures. Remedies may be disciplinary and punitive and may burden a respondent. (§106.45(b)(1)(i))
Title IX coordinators, investigators, decision makers, and any person who facilitates an informal resolution process (collectively, Title IX administrators) will not have a conflict of interest or bias in favor of or against any party or participant in sexual misconduct (i.e., complainants, respondents, or witnesses).
For purposes of this Title IX grievance procedure, key terms are defined as follows:
Grievances will be resolved within 30-45 days after the process has started. The grievance process may be temporarily delayed or extended for good cause with written notice to the complainant and the respondent of the delay or extension and the reasons for the action. Good cause may include considerations such as the absence of a party, a party’s advisor, or a witness; concurrent law enforcement activity; or the need for language assistance or accommodation of disabilities.
This section outlines the steps taken to initiate a grievance and procedural requirements for investigations and adjudications of formal complaints in accordance with federal regulations.
A formal complaint is a document filed by a complainant or signed by the Title IX coordinator alleging sexual misconduct as defined by the Title IX regulations against a respondent and requesting an institution investigate the allegation of sexual harassment. The submission of a formal complaint and its receipt by the Title IX coordinator triggers the formal grievance process.
A formal complaint must be in writing and may be filed with the Title IX coordinator in person in the Office of Campus Compliance and Civility, located in the Burton Business Center, Suite 407; by mail at Box 93248, Lake Charles, LA 70609; by email at titleix@mcneese.edu; or by using the online form located at https://cm.maxient.com/reportingform.php?McNeeseState&layout_id=1.
The formal complaint must contain the complainant’s physical or digital signature, or some other indication that the complainant is the person filing it. (§106.30.) At the time of filing a formal complaint, a complainant must be participating in or attempting to participate in the education program or activity.
When an institution receives an allegation of conduct that falls within the scope of the Title IX grievance procedure, whereby it meets both the Title IX regulations’ definition of “sexual harassment” and their jurisdictional requirements (see Section II), but no formal complaint is filed, then the Title IX regulations prevent an institution from administering a formal grievance process (including any informal or early resolution) that permits the imposition of any disciplinary sanctions or other actions against a respondent. Supportive measures, however, may still be offered.
The Title IX coordinator may sign a formal complaint to initiate or continue the Title IX formal grievance procedure, if necessary, to fulfill an institution’s duty under Title IX to not be deliberately indifferent to actual knowledge of sexual misconduct. Signing a formal complaint does not make a Title IX coordinator a complainant or otherwise a party.
After filing a formal complaint, a complainant may withdraw their formal complaint at any time by providing written notice to the Title IX coordinator. That withdrawal concludes the Title IX formal grievance procedure process unless the Title IX coordinator takes action under subsection B of this Section.
The institution may consolidate formal complaints alleging sexual harassment against more than one respondent, or by more than one complainant against one or more respondents, or by one party against the other party, where the allegations of sexual harassment arise out of the same facts or circumstances.
If the conduct alleged in the formal complaint does not satisfy the requirements of sexual harassment as defined by §106.30, an institution must dismiss the formal complaint under this grievance process. However, the Title IX coordinator will transfer the complaint to the Power-Based Violence and Sexual Misconduct Policy and/or the Code of Student Conduct for review and possible investigation and resolution.
The institution will notify the parties simultaneously and in writing that the formal complaint is being dismissed for the purposes of the Title IX grievance procedure, and of the transfer if applicable. Each party may appeal this dismissal using the procedures outlined in an institution’s policy.
The institution may dismiss a formal complaint or any allegations therein, if at any time during the investigation or hearing:
Upon dismissal, the institution will promptly send written notice of the dismissal and reason(s) simultaneously to the parties.
Upon actual knowledge of a report of alleged conduct, the Title IX coordinator will perform an initial assessment which includes making initial contact with the potential complainant of the report and offering information to include supportive measures. If the initial assessment reveals that the alleged conduct does meet the definition of sexual harassment as contained within the USDOE’s Title IX regulations, the investigation will proceed pursuant to the Title IX formal grievance procedure below. If the alleged conduct does not meet the USDOE’s definition of sexual harassment, the investigation will proceed pursuant to the Code of Student Conduct, Power-Based Violence and Sexual Misconduct Policy, or other disciplinary procedure.
Upon receipt of a formal complaint, the institution will provide written notice of the following to known parties:
The Title IX coordinator will appoint an investigator to investigate the allegations documented in the formal complaint. The investigation may include, among other steps, interviewing the complainant, the respondent, and any witnesses; reviewing law enforcement investigation documents if applicable; reviewing relevant student or employment files; and gathering and examining other relevant documents, social media posts, and other evidence.
The investigator will attempt to collect all relevant information and evidence. Following the investigation, the investigator will draft an investigation report succinctly describing all collected information. The investigator will not make any determination as to whether a policy violation has occurred or recommend potential sanctions.
While investigating the allegations of any formal complaint of sexual harassment, the investigator will conduct an objective evaluation of all relevant evidence. Relevant evidence is any evidence that may tend to make the allegations at issue more or less likely to be true. (See §106.45(b)(1)(ii).)
In assessing allegations of sexual harassment, the standard of evidence to be used to determine responsibility is the preponderance of the evidence standard. This standard applies to formal complaints against students and employees, including faculty, and to all formal complaints of sexual harassment.
When investigating a formal complaint and throughout the investigation and adjudication process, the institution will:
The institution will provide a live hearing. An adjudicator will consider all the evidence presented and determine whether a respondent is responsible for a violation of this protocol. The adjudicator will not be the same person as the Title IX coordinator or the investigator. Cases will be adjudicated by a trained third-party adjudicator.
At the request of either party, a live hearing will occur with the parties located in separate rooms, with technology enabling the adjudicator and parties to simultaneously see and hear the party or the witness answering questions. A transcript or recording (audio or audiovisual) will be created of any adjudicative hearing to be made available to the parties for inspection and review pursuant to the Family Educational Rights and Privacy Act (FERPA).
At the live hearing, the adjudicator must permit each party’s advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility. Cross-examination at the live hearing must be conducted directly, orally, and in real-time by the party’s advisor of choice and never by a party personally. (§106.45(b)(6)(i)) Only relevant cross-examination and other questions may be asked of a party or witness. Advisors may be present solely to advise or support the party and are prohibited from speaking directly to the investigator, adjudicator, other parties, or witnesses during the hearing, except for conducting cross-examination.
Before a complainant, respondent, or witness answers a cross-examination or other question, the decision maker(s) must first determine whether the question is relevant and explain any decision to exclude a question as not relevant. If a party does not have an advisor present at the live hearing, the institution will provide, without fee or charge to that party, an advisor of the institution’s choice, who may be, but is not required to be, an attorney, to conduct cross-examination on behalf of that party.
Questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant, unless such questions and evidence about the complainant’s prior sexual behavior are offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or if the questions and evidence concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent.
If a party or witness does not submit to cross-examination at the live hearing, the decision maker(s) must not rely on any statement of that party or witness in reaching a determination regarding responsibility provided, however, that the decision-maker(s) cannot draw an inference about the determination regarding responsibility based solely on a party’s or witness’s absence from the live hearing or refusal to answer cross-examination or other questions.
Live hearings may be conducted with all parties physically present in the same geographic location or, at the institution’s discretion, any or all parties, witnesses, and other participants appearing at the live hearing virtually, with technology enabling participants simultaneously to see and hear each other. The institution will create an audio or audiovisual recording, or transcript, of any live hearing and make it available to the parties for inspection and review.
The adjudicator, will issue, simultaneously to both parties, a written determination regarding responsibility, which will include:
The determination regarding responsibility becomes final either on the date that the recipient provides the parties with the written determination of the result of the appeal, if an appeal is filed, or if an appeal is not filed, the date on which an appeal would no longer be considered timely.
A range of sanctions are applicable for employees and students:
Both parties are offered an opportunity to appeal a determination regarding responsibility, and of a recipient’s dismissal of a formal complaint or any allegations therein, on the following bases:
Both parties may equally be offered an appeal on an additional basis. For all appeals, the institution will:
At any time prior to reaching a determination regarding responsibility, the institution may facilitate an informal resolution process, such as mediation, that does not involve a full investigation and adjudication. The institution will not offer an informal resolution process unless a formal complaint is filed. The institution does not require the parties to participate in an informal resolution process and will not require them to waive their rights to a Title IX Formal Grievance process. (§106.45(b)(9)) The informal resolution process will be used for Title IX grievances not including allegation of sexual misconduct nor sexual harassment.
As part of an informal resolution, the institution will:
For Title IX complaints not including allegations of sexual misconduct nor sexual harassment (e.g., gender discrimination, gender inequities), the Title IX coordinator or assigned investigator(s) may conduct interviews or acquire necessary evidence to guide recommendations included in the resolution process. The informal resolution process (as noted in the preceding section) can be mediated by the Title IX coordinator and/or may include an agreement in which one or more of the parties involved agrees to accept discipline in the form of a warning, censure, probation, or other such disciplinary action as may be warranted by the circumstances of each case. Should both parties not agree with the discipline (if necessary) or recommendations presented by the Title IX coordinator, the case will be turned over to the University president for further review.
The institution will maintain, for seven years, records of:
The institution creates and maintains for seven years records of any actions, including any supportive measures, taken in response to a report or formal complaint of sexual harassment. In each instance, the institution documents the basis for its conclusion that its response was not deliberately indifferent, and documents that measures have been taken designed to restore or preserve equal access to its education program or activity. If the institution does not provide a complainant with supportive measures, then it will be documented why such a response was not clearly unreasonable in light of the known circumstances. The documentation of certain bases or measures does not limit the institution in the future from providing additional explanations or detailing additional measures taken.
This policy is distributed via the University Policies webpage.