The hearing is an opportunity for the parties to address the Hearing Panel in person and to question the other party and/or witnesses. It also provides the Hearing Panel an opportunity to obtain information following the investigation that is necessary to make a determination of whether a Policy violation occurred.
- Hearing Panel:
The hearing will be conducted by a three-person Hearing Panel. The Hearing Panel will receive annual training regarding the College’s definition of sexual harassment, the scope of the College’s education programs and activities, how to conduct a hearing, and how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias. The Hearing Panel will also receive training on the technology to be used at the live hearing, and on issues of relevance of questions and evidence, including when questions and evidence about the Reporting Party’s sexual predisposition or prior sexual behavior are not relevant.
The Hearing Panel must be impartial and free from bias or conflict of interest. If any Hearing Panel member has concerns that they cannot conduct a fair or unbiased review, the Hearing Panel member may report those concerns in advance of the prehearing conference to the Title IX Coordinator and a different Hearing Panel member will be assigned. Similarly, a Reporting Party or a Responding Party who has concerns that an assigned Hearing Panel member cannot conduct a fair and unbiased hearing may report those concerns to the Title IX Coordinator who will assess the circumstances and whether a different Hearing Panel member should be assigned. The Hearing Panel has broad discretion to determine the hearing format. The Hearing Panel is responsible for maintaining an orderly, fair, and respectful hearing and has broad authority to respond to disruptive or harassing behaviors, including adjourning the hearing or excluding the offending person. The Hearing Panel will also have discretion to call for breaks or recesses as deemed necessary during the hearing.
The parties may make requests to the Title IX Coordinator related to the format or the nature of their participation in the hearing. The Title IX Coordinator will work with the Hearing Panel to accommodate reasonable requests.
The Title IX Coordinator will forward a copy of the Investigation Report to the Hearing Panel and will schedule a hearing date, time, and location and notify the parties of the same. The date of the hearing will be at least ten (10) calendar days after the parties’ receipt of the Investigation Report and, except in extraordinary circumstances, no later than seventeen (17) calendar days from the issuance of the Investigation Report.
- Standard of Evidence and Burden of Proof:
In all cases before the Hearing Panel, the standard of proof is a preponderance of evidence. A finding of responsibility by a preponderance of the evidence means that it is more likely than not, based on all the reasonable evidence and reasonable inferences from the evidence, that the Responding Party violated this Policy. Neither party bears the burden of proof. It is the College’s burden of proof under the Grievance Process and the College’s burden of gathering evidence sufficient to reach a determination.
- Pre-hearing Meeting:
Prior to the hearing, the Title IX Coordinator will convene a separate pre-hearing meeting with each of the parties and their advisors to review procedures to be followed at the hearing; to identify the names of witnesses that will be asked to appear; and to answer any other questions or share information prior to the hearing. At this pre-hearing meeting, each party must identify the witnesses they will want to appear at the hearing for questioning in order to allow the Title IX Coordinator to successfully schedule and make arrangements for the hearing. The Title IX Coordinator will also discuss the time allotted for the hearing and any time limitations. If either party will not be attending the hearing, the Title IX Coordinator will determine whether and how that absence affects the ability of the College to move forward with the hearing, as well as the hearing schedule. The parties are expected to identify witnesses they wish to be available during the hearing by the pre-hearing meeting. The Hearing Panel may, in its discretion, exclude from the hearing witnesses who were not identified by a party.
- Recording Hearing:
The hearing is live and closed to the public. The parties are allowed to have their advisor present throughout the hearing process. The College will record the hearing and any other recording by the parties, their advisors or anyone else is prohibited. A copy of the recording will be made available to parties for their inspection and review. In most instances the hearing will be conducted virtually using technology enabling the Hearing Panel and parties to simultaneously see and hear the proceedings while the parties and Hearing Panel are in different locations.
- Case Presentation & Questioning:
The hearing is not intended to be a repeat of the investigation or an exhaustive review of the evidence summarized in the Investigation Report. The Hearing Panel will be well-versed in the facts of the case based upon the Investigation Report and any responses to the Investigation Report submitted by the parties. The parties and their advisors will attend the hearing before the Hearing Panel. Other College administrators may attend at the request of or with the prior approval of the Hearing Panel, and the parties will be notified in advance of anyone who will be in attendance.
The Hearing Panel has absolute discretion to decide upon the format for the hearing and to determine which witnesses are relevant to their outcome determination. The Hearing Panel may decline to hear from a witness where they conclude that the information is not relevant for their outcome determination or unduly duplicative of other testimony already provided at the hearing. A typical hearing may include brief opening remarks by a member of the Hearing Panel; questions posed by the Hearing Panel to one or both of the parties or witnesses; follow-up questions by one party to the other (typically with the Responding Party’s advisor questioning the Reporting Party first); questions by the Hearing Panel to any witness; and follow-up questions by the parties (through their advisors) to any witness. The Hearing Panel will also afford the parties an opportunity at the end of the hearing to offer brief closing remarks. A decision whether to offer closing remarks is completely voluntary.
During the hearing, the Hearing Panel will provide each party an opportunity, through their advisor, to ask the other party and any witnesses relevant questions and follow-up questions, including those challenging credibility. Such cross-examination at the live hearing will be conducted directly, orally, and in real time by the party’s advisor of choice and never by a party personally. If a party does not have an advisor present at the live hearing, the College will make available an individual who can ask the questions on the party’s behalf. If the party does not have an advisor, and refuses the College’s offer to provide an individual to ask questions on the party’s behalf, then the party will not be permitted to ask questions of the other party or any witnesses.
- Evidentiary Issues:
a. Presumption of non-responsibility and impact of non-participation
The Responding Party will be deemed responsible only where the Hearing Panel concludes that a preponderance of the evidence support a determination that the Responding Party engaged in sexual harassment. Neither party is required to participate in the investigation or any form of resolution under this Grievance Process, and the Hearing Panel will not draw any adverse inference from a decision by either of the parties not to participate.
If a party or witness does not submit to cross-examination at the live hearing, the Hearing Panel will not rely on any statement of that party or witness in reaching a determination regarding responsibility. The Hearing Panel will not 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.
b. Evidence of prior or subsequent misconduct
Prior or subsequent conduct of the Responding Party may be considered in determining pattern, knowledge, intent, motive, or absence of mistake. For example, evidence of a pattern of sexual harassment by the Responding Party, either before or after the incident in question, regardless of whether there has been a prior finding of sexual harassment, may be deemed relevant to the determination of responsibility for the sexual harassment under investigation. The determination of relevance of pattern evidence will be based on an assessment of whether the previous or subsequent conduct was substantially similar to the conduct under investigation or indicates a pattern of similar sexual harassment. Such prior or subsequent conduct may subject the Responding Party to additional sanctions. The Hearing Panel will determine the relevance of this information and both parties will have access to information regarding this information in the same manner they are provided access to all evidence gathered during the investigation.
c. Reporting Party’s prior sexual history
At all stages of the investigation and hearing process, 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. However, even in the context of a prior sexual relationship, consent to one sexual act on one occasion does not constitute consent to another sexual act on a different occasion. The Hearing Panel will explain to the party proposing the questions during the hearing any decision to exclude a question as not relevant.
d. Relevance of evidence
The Investigator will determine what evidence is relevant to include in the Investigation Report. The parties and their advisors will have an equal opportunity to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in the Formal Complaint even if deemed immaterial or irrelevant by the Investigator.
The Hearing Panel has the ultimate discretion in determining the relevance of any proffered evidence and to include or exclude certain types of evidence or questions. Evidence that is determined to have been offered for an improper purpose, such as to embarrass or harass another party or witness, will not be considered by the Investigator or the Hearing Panel and could be grounds for an independent complaint of retaliation.
Only relevant cross-examination and other questions may be asked of a party or witness. Before any party or witness answers a cross-examination or other question from an advisor, the Hearing Panel must first determine whether the question is relevant and explain any decision to exclude a question as not relevant.
e. Expert opinions
When expertise on a topic is needed in order to achieve a fuller understanding of the issues under investigation, the investigator may consult medical, forensic, technological or other experts. Information and opinions from experts may be sought by the investigator or proffered by any of the parties. When expert opinion information is directly related to the allegations raised in the Formal Complaint, the parties will be apprised of the information and provided an opportunity to submit additional expert information.
f. Privileged Information
No party will be required or permitted to 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.
- Notice of Decision:
Following the hearing, the Hearing Panel will consider all of the evidence and make a determination, by a preponderance of the evidence, whether the Responding Party has violated the Policy. The Hearing Panel will simultaneously issue to both parties a written Notice of Decision within ten (10) business days of the hearing, which will contain:
- Identification of the allegations potentially constituting sexual harassment
- A description of the procedural steps taken from the receipt of the Formal Complaint through the determination, including any notifications to the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, and hearings held;
- Findings of fact supporting the determination;
- Conclusions regarding the application of the College’s policy to the facts;
- A statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility, any disciplinary sanctions the Hearing Panel imposes on the Responding Party, and whether remedies designed to restore or preserve equal access to the College’s education program or activity will be provided to the Reporting Party; and
- An explanation of the College’s appeal procedures.
The determination regarding responsibility becomes final either on the date that the College 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.
- Remedies and Sanctions:
Where there is a finding of responsibility, the Hearing Panel is responsible for determining appropriate remedies and sanctions. Remedies will be designed to restore or preserve the Reporting Party’s equal access to St. Olaf’s education programs and activities. Remedies may include sanctions imposed upon a Responding Party who is found responsible for violating the College’s Policy Prohibiting Sexual Harassment. Such sanctions may include a variety of institutional responses or requirements, including, but not limited to, the following:
For students: expulsion; suspension (usually, at a minimum, the greater of either 1 year or the remaining amount of time the Reporting Party will remain a student at the College); disciplinary probation; restriction of privileges; required assessment or counseling; required attendance at educational programs; restitution; not being allowed to represent the College in leadership, volunteer, or paid positions; removal from campus housing; revocation of an honor or degree, and any other sanctions listed in the Code of Student Conduct or deemed appropriate under the circumstances.
For staff and faculty: a disciplinary warning, unpaid suspensions, suspension of promotion and salary increments, loss of prospective benefits, major fines, reduction in salary, suspension from service, suspension or withdrawal of privileges, demotion, termination of employment, and any other available sanctions as specified by the St. Olaf Faculty Manual, Faculty Handbook, or Staff Handbook as applicable. If the Hearing Panel determines that it is more likely than not that a faculty member has violated this Policy and that dismissal may be an appropriate sanction, the matter will be referred to the President, or the President’s designee, for appropriate process and decision, which shall be determined and administered in a manner consistent with the Faculty Manual.
The propriety of any particular sanction is reviewed on an individual basis based on the unique facts and circumstances as found by the Hearing Panel. In keeping with the College’s commitment to foster an environment that is safe, inclusive, and free of sexual harassment, the Grievance Process provides the
Hearing Panel with wide latitude in the imposition of sanctions tailored to circumstances of each unique matter.
The imposition of sanctions is designed to eliminate sexual harassment, prevent its recurrence, and remedy its effects, while supporting the College’s educational mission and legal obligations. In determining the appropriate sanctions, the Hearing Panel will be guided by a number of considerations, including:
- The severity, persistence or pervasiveness of the sexual harassment;
- Whether the sexual harassment included violence;
- The impact of the sexual harassment on the Reporting Party;
- The impact or implications of the sexual harassment within the St. Olaf community;
- Prior misconduct by the Responding Party, including the Responding Party’s relevant prior disciplinary history, at St. Olaf or elsewhere, and any criminal convictions;
- Whether the Responding Party has accepted responsibility for the sexual harassment;
- The Reporting Party’s stated preferences;
- The maintenance of a safe, nondiscriminatory and respectful environment conducive to learning; and
- Any other mitigating, aggravating, or compelling factors.
The Title IX Coordinator is responsible for implementation of any remedies and sanctions imposed by the Hearing Panel. Sanctions become effective either after the time for appeal has expired, or, if a party appeals the Hearing Panel’s decision, after the Appeal Adjudicator issues a determination affirming the Hearing Panel’s decision.
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