Formal Resolution Procedures for Title IX Prohibited Offenses involving Student Respondents

These Procedures apply to all campuses in the US and Canada.

These Procedures outline the steps in the investigation of cases involving allegations of Title IX Prohibited Offenses through a Formal Resolution Procedure where students are Respondents under the university’s Policy on Sexual and Gender-Based Harassment and Title IX (the “Policy”). Capitalized terms used and not otherwise defined in these Procedures are defined in the Policy. The Policy and these Procedures may address aspects of the same topic, with the Policy stating the university’s general policy and the Procedures providing more specific information concerning university processes. These Procedures must therefore be read in conjunction with the Policy.

At all times, the university reserves the right to determine which policies and procedures apply and which actions may be taken. In the event of any conflict or inconsistency between this procedure and other procedures that may relate to the same subject matter (e.g., procedures listed in the Code of Student Conduct), this Procedure shall supersede and apply unless otherwise stated in the Policy. Except as otherwise noted, proceedings under these Procedures do not preclude separate and additional proceedings under one or more other university policies or procedures.

1. As soon as is practicable after receiving a report of conduct that may constitute a Prohibited Offense, an Investigator from the OUEC will contact the Complainant identified in the report to schedule an initial meeting to refer them to the Policy and review rights and support options, including:

options for filing a Formal Complaint;

the steps involved in both the Informal and Formal Resolution Procedures under the Policy;

confidentiality of university resolution procedures;

referrals to law enforcement, counseling, medical, academic, or other resources, as appropriate; and

supportive, remedial and protective measures that can be provided during the pendency of a resolution procedure, as appropriate.

If the Complainant agrees to disclose information regarding the allegation, including the identity of the Respondent, the date, location, if known, and the general nature of the alleged violation of Policy and agrees to file a Formal Complaint, the Complainant will complete and sign their Rights Form.

2. The Title IX Coordinator will, in collaboration with appropriate university departments, assess the safety and well-being of the parties involved, as well as potential threats to the university community, and will determine the need for any immediate action, interim measures or Emergency Removal.

3. The Title IX Coordinator will determine whether the report states a potential violation of the Policy.

If the Title IX Coordinator determines that the Complainant’s allegations, if true, do not constitute a potential violation of the Policy, or that OUEC has no jurisdiction in the matter, OUEC staff will provide appropriate referrals to both on and off-campus resources. If new information is subsequently provided to the OUEC, OUEC may reevaluate whether the allegations constitute a potential violation of the Policy and/or whether OUEC has jurisdiction to investigate.

If the Title IX Coordinator determines that the Complainant’s allegations, if true, constitute a potential violation of the Policy, and a Formal Complaint is made, the Title IX Coordinator will assign an Investigator who will initiate the Formal Resolution procedure into the allegations.

4. We Care Case Managers will be assigned to students who are Complainants or Respondents. Case Managers will serve as the students’ main point of contact to provide interim measures and support resources (see Policy Section III.C).

5. Facts established as part of a Formal Resolution Procedure that reveal conduct that may violate the Code of Student Conduct will be investigated by the OUEC.

Rights owed to the parties under the Policy, including the right to an Advisor throughout the process and Appeal options, will apply to alleged violations of the Code of Student Conduct that stem from an investigation of a Prohibited Offense.

Facts established as part of a Prohibited Offense investigation that reveal conduct that may violate other university policies, procedures or commonly accepted norms of conduct will be referred to the appropriate office for review.

6. Notice of Allegations: Upon initiation of the investigation, the Investigator will notify the Respondent of the investigation in writing via their university email account.

The notice will:

provide a summary of the alleged Prohibited Offense including the identity of the Complainant, date, time and location, if known;

identify potential Policy violation(s) and the link to the Policy;

explain the prohibition against Retaliation;

explain that the parties are entitled to equal opportunity to access the relevant and not otherwise impermissible evidence or an accurate description of this evidence;

provide an explanation of the investigation process as described herein;

provide a statement informing the parties that the Policy prohibits knowingly making false statements, including knowingly submitting false information during the Resolution Process;

detail how a party may request disability accommodations during the Resolution Process;

include a statement that the Respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the Formal Resolution process; and

offer available support resources.

7. During the investigation, the parties will have an equal opportunity to provide information and participate in the Formal Resolution Procedure. The Investigator will request to meet separately with the Complainant and the Respondent for an interview.

Either party and any witnesses may choose to participate or decline to participate in the investigation. The Investigator may continue to investigate the alleged Prohibited Offense and produce an Investigative Report based on the available information.

Both the Complainant and the Respondent will be asked to provide relevant documentary evidence, including electronic or other records of communications between the parties or witnesses (e.g., photographs, text messages, emails, phone records, messages through social media sites, receipts, etc.) and the names of all relevant witnesses with information about the alleged Prohibited Offense. Witnesses cannot participate solely to speak about an individual’s character.
- Medical and counseling records are privileged records that Parties are not required to disclose in an investigation under the Policy. However, if a Party believes these records may contain relevant and material information, a Party may voluntarily choose to share such records with the Investigator only after waiving the privilege in writing. Any records provided by a Party become part of the investigative record and are available for review by the other Party.

Both the Complainant and the Respondent will have the opportunity to suggest questions to the with the Investigator to ask of another Party and/or witnesses.

Parties involved in the investigation may, under limited and extenuating circumstances, request to submit a written statement instead of participating in an interview with the Investigator.

The Investigator may also review any documentation, reports, video or other items the Investigator deems relevant to the allegation.

8. The Investigator, in consultation with the Title IX Coordinator, has discretion to determine the relevance of any witness or evidence and may exclude irrelevant, immaterial or unduly prejudicial information in preparing the Investigative Report.

The following types of evidence, and questions seeking that evidence, are impermissible regardless of whether they are relevant:

Evidence that is protected under a privilege recognized by Federal or State law or evidence provided to a confidential employee, unless the person to whom the privilege or confidentiality is owed has voluntarily waived the privilege or confidentiality;

A party’s or witness’s records that are made or maintained by a physician, psychologist, or other recognized professional or paraprofessional in connection with the provision of treatment to the party or witness, unless the university obtains that party’s or witness’s voluntary, written consent for use in its resolution procedures; and

Evidence that relates to the complainant’s sexual interests or prior sexual conduct, unless evidence about the complainant’s prior sexual conduct is offered to prove that someone other than the respondent committed the alleged conduct or is evidence about specific incidents of the complainant’s prior sexual conduct with the respondent that is offered to prove consent to the alleged sex-based harassment. The fact of prior consensual sexual conduct between the Complainant and Respondent does not by itself demonstrate or imply the complainant’s consent to the alleged sex-based harassment or preclude determination that sex-based harassment occurred.

9. The Investigator will provide each interviewed Party or witness a written Interview Summary for review via their university email account. The interviewed Party or witness may review the Interview Summary and confirm the summary’s accuracy or provide a written response within two (2) business days of receipt. Failure to respond within two (2) business days will be considered confirmation of the accuracy of the Interview Summary. The Investigator will review any written response by an interviewed party or witness and will incorporate information into the Investigative Report deemed relevant in the discretion of the Investigator.

10. At the conclusion of the initial investigative phase, the Investigator will share a Draft Summary of Facts gathered during the investigation with Complainant, Respondent and their respective advisors for their review and response. The Draft Summary includes all of the relevant and not otherwise impermissible evidence or an accurate description of this evidence that will be used in determining a finding. The identities of individuals named in the report may be redacted as deemed necessary in the sole discretion of the investigator. The Investigator will offer each of the Parties an opportunity to submit a written response to the Investigator(s) within ten (10) business days to:

clarify information;

provide an additional explanation;

identify any other relevant information for the Investigator to consider

provide a proposed list of questions for the Investigator to ask the other Parties and any Witnesses. Parties are not required to propose questions of one another and/or witnesses.

11. The Investigator will incorporate any new, relevant evidence and information obtained through the Parties’ review of the Draft Summary of Facts and any follow-up meetings into an Investigative Report. Thereafter, the Investigator will determine if additional investigation is required. Any further investigation will follow the steps above. If no further investigation is needed, the investigator(s) will finalize the Investigative Report.

12. The Investigator will submit the Investigative Report to the Title IX Coordinator for their review. The Title IX Coordinator will review the Investigative Report to assess its thoroughness, reliability and impartiality. The Title IX Coordinator may request more information or additional investigation. Any additional information obtained by the Investigator at this stage will be shared with the Complainant and Respondent for their review.

13. If the Title IX Coordinator determines that the Investigative Report contains insufficient information to constitute a potential violation of the Policy, the case will be closed and the decision will be simultaneously communicated in writing to the Complainant and the Respondent. There is no appeal of this decision.

14. If the Title IX Coordinator determines that the Investigative Report contains sufficient information to constitute a potential violation of the Policy, the case will be referred by the Title IX Coordinator to the Director of OSCCR (or designee).

15. The Director of OSCCR or designee will send a pre-hearing meeting notice to the university email account of the Complainant and the Respondent when they are Northeastern students.

If a Complainant or Respondent does not schedule their pre-hearing meeting within five (5) business days of receiving their notice, the party forfeits their right to participate in a pre-hearing meeting and the Director may move forward and schedule the hearing without the party’s input.

16. The pre-hearing meeting, which will take place at least ten (10) days prior to an Administrative Hearing, will be conducted as separate meetings, between the party, their advisor if applicable, and Director of OSCCR to:

Review the Investigative Report that forms the basis of the complaint;

Explain the charges of the Policy violation filed against the Respondent (from this point on in the process, the Respondent will be referred to as the Charged Student);

Explain the process for resolving the case;

Review the process for how to challenge participation by the Decision Maker for perceived bias or conflict of interest; and

Explain the role of the Decision Maker at the Administrative Hearing.

Following the pre-hearing meeting, the Director of OSCCR will provide a copy of the Final Investigative Report to the parties via email, along with the Pre-Hearing Summary Form if applicable.

17. The Decision Maker will schedule an Administrative Hearing with the Parties.

18. The Complainant and the Charged Student will each have the option to present a written or oral statement to the Decision Maker. Such statements, or the decision to give an oral statement, should be provided to the Decision Maker at least five (5) business days prior to the Hearing.

However, the Administrative Hearing is not a forum for the parties to present new facts, information or witnesses. The parties are expected to provide all relevant facts, information, witnesses to the Investigator during the investigation. Evidence offered after that time will be evaluated by the Decision Maker for relevance. Any new relevant evidence will be admitted to the record if:

all Parties and the Decision Maker agree to the new evidence being included in the hearing without remanding the Complaint back to the investigator;

the evidence is not duplicative of evidence already in the record;

it is not impermissible; and

the new evidence was not reasonably available prior to the conclusion of the Final Investigation Report.

If the above criteria are not met, but the evidence is deemed materially relevant and not duplicative, the Decision Maker may, at their discretion, take any of the following actions:

Delay the hearing;

Provide the Parties with at least five (5) business days to review the relevant evidence; or

Refer the case back to the Investigator for further investigation or analysis.

Any Party or witness scheduled to participate at the Administrative Hearing, must have first participated in the investigation process.

The Decision Maker may choose to pose additional questions to the Parties or a witness at the hearing. To the extent credibility is in dispute and relevant to one or more of the allegations, the Decision Maker may question them in order to assess their credibility.

However, the Decision Maker may direct a re-opening of the investigation if they have unanswered questions or at their discretion.

19. The Decision Maker will permit each party’s Advisor to ask the other Party and any witnesses all relevant questions and follow-up questions, including those challenging credibility. Such cross-examination at the live hearing must be conducted directly, orally, and in real time by the party’s Advisor and never by a party personally.

Only relevant cross-examination and other questions may be asked of a Party or witness. The Decision Maker will prohibit questions of either Party or of any witness that are repetitive, irrelevant, or harassing. Before a Complainant, Respondent, or witness answers a cross-examination or other question, the Decision Maker must first determine whether the question is relevant and explain any decision to exclude a question as not relevant.

The Decision Maker may not draw any inference from a decision of a Party or witness to not participate at the hearing, including to not submit to cross-examination or make any decisions about a Party’s credibility based on their decision to not participate in a hearing or submit to cross-examination or answer other questions.

20. Following the Administrative Hearing, the Decision Maker will deliberate and render a decision, utilizing the information articulated in the Investigative Report and information learned at the Administrative Hearing to determine whether a preponderance of the evidence establishes that a Policy violation occurred. In reaching a determination, the Decision Maker must objectively evaluate all evidence that is relevant and not otherwise impermissible, including both inculpatory and exculpatory evidence, independently.

21. The Director of OSCCR will provide both the Complainant and the Charged Student written notice of Decision Maker’s decision, the rationale for why a Policy violation was or was not found, and any relevant sanctions. The Director of OSCCR will also explain the appeals process to both parties.

22. The Complainant or the Charged Student may file a written appeal within five (5) business days of receiving the Decision Maker’s decision.

The written appeal will be provided to the non-appealing party, who may, but is not required to, provide a response within two (2) business days to the Director of OSSCR. The Director of OSSCR will appoint an Appeals Board to review the written appeal to determine whether it meets any of the following grounds for appeal:

new relevant information not reasonably available by the completion of the investigation that could affect the outcome;

procedural error that prevented the appealing party from a fair opportunity to present information and/or witnesses;

The Title IX Coordinator, Investigator, or Decision Maker had a conflict of interest or bias for or against Complainants or Respondents generally or the individual Complainant or Respondent that affected the outcome of the matter; and/or

review of the imposed sanctions based on extraordinary circumstances.

23. If an appeal is granted, the university will take appropriate steps as follows:

If an appeal is granted based on new information, the Appeals Board will determine whether the new information alters the original decision. The Director of OSCCR will notify the Parties of this determination.

If an appeal is granted for procedural error, the process will reset to the point at which the procedural error occurred and proceed from that point.

If an appeal is granted based on a review of imposed sanctions, the Director of OSCCR will notify the parties of the decision.

If an appeal is granted based on bias, the Senior Vice Chancellor for Student Affairs or designee will replace the individual who exhibited the bias or engaged in biased behavior and determine appropriate next steps.