Policy Against Discrimination and Harassment Based on Protected Class Status
Last Updated: 10/17/2012
Department Responsible: Dean of Students and Human Resources
Pertains To: Faculty, Staff, Students
I. Policy Purpose and Prohibited Conduct
A. Policy Purpose
B. Discrimination Defined and Prohibited
C. Harassment Defined and Prohibited
D. Retaliation Defined and Prohibited
E. Definition of Other Policy Terms
II. Designated Official
III. Proceedings Under the Policy
A. Informal Resolution
B. Complaint Initiation
C. Frivolous/Bad Faith Complaints
D. Delegation or Deferral of Complaint to Other Policies
E. Process Initiation
H. Hearing Procedures
I. Appeal Procedures
IV. Record Keeping
I. Policy Purpose and Prohibited Conduct
A. Policy Purpose
Hamline’s mission is “to create a diverse and collaborative community of learners dedicated to the development of students' knowledge, values, and skills for successful lives of leadership, scholarship, and service.” The Strategic Plan identifies as one of its goals that of becoming “an exemplar in the integration of diversity to achieve and sustain an inclusive community.” Strategic Direction, 2. Discrimination, harassment, or retaliation designed to silence, stigmatize, marginalize, or exclude any individual based on his or her inclusion in a protected class as identified below is incompatible with the University mission and vision to educate, to seek truth, and to sustain an inclusive community.
Hamline University will not tolerate harassment or discrimination based on race; color; gender/sex; ethnic background; national origin; sexual orientation; gender presentation; marital, domestic partner or parental status; status with regard to public assistance; disability; religion; age; or veteran status in its employment or educational opportunities. “Sexual misconduct,” which includes some forms of harassment or discrimination that are prohibited by this Policy also are prohibited by Hamline University’s Policy Prohibiting Sexual Misconduct.
This policy is intended to prevent such discrimination or harassment, if possible, and to remedy any discrimination or harassment that does occur firmly, fairly, and promptly. In addition, retaliation for the good faith bringing of a complaint or participating in any investigation or proceeding under this policy will not be tolerated and will be independent grounds for discipline or discharge.
All students, faculty, and staff must comply with this policy. Discrimination, harassment, or retaliation by independent contractors or their employees against Hamline employees or students also will be addressed by University administration. Under such circumstances, Hamline reserves the right to pursue any avenue of investigation and redress available. Complaints regarding the conduct of independent contractors or their employees should be directed to the Human Resources Office.
Nothing contained in this policy limits any rights of Hamline University or in any way restricts Hamline University from investigating any claim or concern that may fall under the prohibitions identified in this policy, regardless of whether a complaint is made under this policy. Faculty and staff must cooperate in any such investigation. The University also in its discretion may take immediate interim remedial action in appropriate circumstances. Nothing in this policy precludes an individual or the University from contacting criminal authorities under any circumstances deemed appropriate.
B. Discrimination Defined and Prohibited
It shall be a violation of this policy, as an act of discrimination, for any Hamline employee or student to make an adverse decision against any member of the Hamline community with respect to any employment or educational opportunity on the basis of race; color; gender/sex; ethnic background; national origin; sexual orientation; gender presentation; marital, domestic partner or parental status; status with regard to public assistance; disability; religion; age; or veteran status. One such form of discrimination prohibited by this policy is gender/sex discrimination, which includes unwelcome sexual advances, requests for sexual favors, sexually motivated physical contact or other unwelcome verbal or physical conduct or communication of a sexual nature: (1) when submission to such is made a term or condition, explicitly or implicitly, of obtaining or maintaining any employment or education opportunity; or (2) submission or rejection is used as a factor in a decision adversely affecting the individual's employment or education.
C. Harassment Defined and Prohibited
It shall be a violation of this policy for any Hamline employee or student to harass any member of the Hamline community on account of race; color; gender/sex; ethnic background; national origin; sexual orientation; gender presentation; marital, domestic partner or parental status; disability; religion; age; or veteran status. Harassment includes unwelcome oral or written communications or conduct: (1) which is based upon an individual’s perceived or actual inclusion in a class protected under this policy; and (2) which has the purpose or effect of substantially interfering with an individual's employment or education or creating an intimidating, hostile, abusive or offensive employment or educational environment.
Sexual harassment is a form of sexual misconduct that also is prohibited by the University’s Policy Prohibiting Sexual Misconduct.
D. Retaliation Defined and Prohibited
It shall be a violation of this policy for any Hamline employee or student to retaliate against any member of the Hamline community who has, in good faith, brought forward a complaint pursuant to this policy, provided testimony in good faith, or otherwise participated in proceedings conducted under this policy. Retaliation includes harassment and a decision adversely affecting an individual’s employment or education on the basis of such participation.
E. Definition of Other Policy Terms
1. “Advisor” means a person who serves to support a Complainant or Respondent in connection with and on the terms set forth in this policy. The Advisor may be internal or external to the University. The Advisor is not a Party to the proceedings.
2. "Complainant" means a person (or persons) who allege(s) discrimination, harassment, or retaliation under this policy.
3. "Days" when used in a relationship to time limits means working days (not calendar days).
4. “Designated Official” means the Dean of Students or the Dean’s designee. In the event that a complaint is brought against the Dean of Students or if bias is perceived on the part of the Dean of Students, the Director of Human Resources shall serve as the Designated Official.
5. “Impacted Party” means a Respondent who is a faculty member (except tenured law faculty), who is found by the Hearing Committee to have violated this policy and who consequently has had remedial measures imposed which directly and adversely impact the individual.
6. “Investigator” means the individual selected by the Designated Official to conduct an investigation of the complaint.
7. “Ombudsman” is a University employee who can serve as a neutral and informal resource for any University-related question, concern, or conflict. Because of the nature of the office, addressing a concern with the Ombudsman does not serve to initiate a complaint under this policy or provide notice to the University of the complaint.
8. “Mediator” means the individual selected by the Designated Official who seeks a mutually agreeable resolution to the complaint and conducts the Mediation. The Mediator may not be called to testify at the hearing on the matter or in any other proceeding relating to what took place during the Mediation.
9. “Parties” means the Complainant(s), the Respondent(s), and, where the President deems it warranted, a designee of the President (such as in certain cases where a Complainant is unwilling or unable to move forward with a complaint). University counsel, internal or external, may at any time participate in proceedings under this policy.
10. "Respondent" means a person (or persons) against whom discrimination, harassment, or retaliation is alleged.
II. Designated Official
The President has delegated to the Dean of Students in the Student Affairs division, as the Designated Official, the responsibility for the proper implementation of this policy, including the selection, training, and coordination of the Mediator(s), Investigator(s), and Hearing Committee. An exception to this delegation will occur when: (1) a complaint is brought by or against the Dean of Students; (2) the Designated Official has a personal friendship which extends to interaction outside of the University setting or a familial or external professional relationship with the Complainant or Respondent; or (3) the Complainant or Respondent provides notification and factual bases supporting a claim of bias on the part of the Designated Official to the Director of Human Resources within five (5) days of making or receiving notice, respectively, of a complaint, and the Director of Human Resources determines that the Dean of Students will not serve in the role of Designated Official for the proceedings at issue. Under such circumstances, the Director of Human Resources shall be the Designated Official. The Designated Official shall receive annual training on the subject of prohibited discrimination and harassment.
In all appointments to be made under this policy, the Designated Official will consult with the dean(s) of the college(s) or supervisors of the respective Complainant and the Respondent. In addition, student leaders, Human Resources, and administration shall be consulted as appropriate. All individuals so contacted will be advised of the obligation to keep the matters disclosed confidential. No one shall be permitted to serve as a Mediator, Investigator, on the Hearing Committee or as a decision maker regarding policy violation or any sanction for such if the complaint is made against that person or if the person has a personal friendship which extends to interaction outside of the University setting or a familial, or external professional relationship with the Complainant or Respondent. Under such circumstances involving a decision maker under this policy, the Designated Official shall consult with the Provost in the identification of an alternate. The names of the Mediator, Investigator, and Hearing Committee members assigned to a complaint may be obtained from the Designated Official by the Parties to the complaint at any time.
III. Proceedings Under the Policy
A. Informal Resolution
Members of the Hamline community who feel that this policy may have been violated are strongly encouraged to seek informal resolution of the issue. Informal resolution may include addressing the individual who is perceived to have violated the policy and/or speaking to a supervisor, dean, department chair or academic advisor. In addition, the office of the University Ombudsman can serve as a neutral and informal resource for any University-related question, concern, or conflict and may be used to discuss informal resolution as well.
While informal measures to address concerns under this policy are strongly encouraged, the University will not be deemed to have notice of an issue unless a complaint is made to the Designated Official. Addressing a concern with a colleague, your supervisor, your dean, department chair or academic advisor, or the Ombudsman does not serve to initiate a complaint under this policy or provide notice to the University of the complaint.
B. Complaint Initiation
Pursuit of proceedings under this policy will be taken seriously and could have significant consequences for any person found to be in violation of the policy. Reports or information received by individuals in the University other than the Designated Official which implicate this policy will be addressed as the University deems appropriate. Should a formal complaint be initiated with the Designated Official, the following steps, outlined in detail below, may occur:
• Mediation, in which both parties attempt to arrive at a mutually satisfactory resolution with the aid of a trained, neutral Mediator.
• Investigation, through which a trained Investigator reviews the facts underlying the complaint and issues a written determination as to whether there is probable cause to find a violation of this policy.
• Hearing, at which the parties have the opportunity to present facts to a Hearing Committee constituted pursuant to this policy.
The University will attempt to promptly resolve all complaints of discrimination, harassment, and retaliation, but reserves the right in its sole discretion to alter the time limits set forth in these procedures when necessary. Among others, the President, Dean of Students, Director of Human Resources, Mediator(s), Investigator(s), and Hearing Committee are authorized to extend deadlines. In particular, deadlines may need to be extended to take into account the academic calendar and potential absences from campus of faculty, students, and staff during academic recesses. Deadlines will not be extended based on the unavailability of an Advisor to any party; rather, an effort will be made where possible by the Designated Official to identify an alternate Advisor if there are issues with availability.
The goal at all stages of the proceedings is for all participants to treat each other respectfully and fairly, with even-handed treatment of all participants. All University officials involved in the proceedings will monitor the aspect of the proceedings in which they have involvement for any indications of power imbalances between parties or any intimidation of participants, and will take all appropriate steps to deal with such concerns.
The Complainant, Respondent, Advisors, Mediator(s), Investigator(s) and Hearing Committee shall be informed of the requirement to keep the allegations and proceedings under this Policy confidential, except as this policy or legal rights may allow. Nothing in this policy prohibits an individual from communicating with a state or federal human rights agency. Confidentiality by the Designated Official and the University administration will be maintained as reasonable and appropriate, but cannot be guaranteed.
All complaints of discrimination, harassment, or retaliation that an individual chooses to pursue in the form of a formal complaint under this policy must be submitted to the Designated Official. These Procedures are intended to be read and implemented in the context of the Hamline University’s Policy Prohibiting Sexual Misconduct, where applicable, which specifically addresses Hamline University’s obligations under Title IX. Hamline University reserves the right to address any conduct that arguably violates both the Sexual Misconduct Policy and the Discrimination and Harassment Policy under one or both policies. Written complaints which are signed and dated are preferred, and a complaint form is attached to this policy. Oral complaints will be accepted by the Designated Official, who will gather the information required by the attached complaint form, prepare the written complaint, and request that the Complainant sign the document so prepared. A complaint also may be submitted to the Designated Official by calling the Campus Conduct Hotline at 1-866-943-5787. A specially trained intake specialist will answer the call and gather the information needed to investigate the complaint. If you so choose, you may remain anonymous when reporting through the hotline, though this may adversely affect the University's ability to investigate and address the complaint. All documents relevant to the complaint must be provided by the Complainant to the Designated Official at the time the complaint is initiated. Failure or refusal to provide complete information pursuant to this policy may compromise the process.
C. Frivolous/Bad Faith Complaints
The Designated Official shall review the completed complaint to determine if the facts alleged, even if true, would establish a violation of this policy that would warrant the institution of formal proceedings. The Designated Official also shall review the completed complaint to assess whether, on its face, the complaint has been brought in good faith. Should the Designated Official determine that the complaint would not give rise to a policy violation or was brought in bad faith, the Complainant will be told that the complaint does not state a claim that warrants formal proceedings. The University reserves all rights to investigate and address complaints made in bad faith.
D. Delegation or Deferral of Complaints to Other Policies
The Designated Official also will review the completed complaint to determine if it falls under the authority of this Discrimination and Harassment Policy, if it should be delegated to the authority of a separate policy, or if it should be deferred pending the outcome of proceedings under another policy:
• Complaints where the Complainant(s) and Respondent(s) are students may be delegated to the Student Judicial policy.
• Complaints alleging misconduct that is unrelated to an individual’s status in a protected class may be delegated to the Dean of Students Office or Human Resources, as appropriate.
• Complaints or reports determined to allege sexual misconduct may be delegated to the Policy Prohibiting Sexual Misconduct.
• Complaints about academic evaluation unrelated to an individual’s status in a protected class may be delegated to the authority of the Grade Changes and Appeals Policy.
The discretion as to whether a complaint is delegated or deferred in favor of another policy lies wholly with the Designated Official. Delegation of a complaint by the Designated Official is final. If a complaint is delegated, the Complainant must initiate a complaint under the alternate, appropriate policy in order for the action to proceed.
E. Process Initiation
Once a complaint is made and deemed to fall under this policy, the Designated Official shall coordinate all proceedings under this policy, serve as a resource to the Parties as to the status of the proceedings, and ensure that the procedures under this policy are followed. The Designated Official will notify the Respondent and provide him/her a copy of the complaint. A Party confidentially may meet, without the other Parties present, with the Designated Official to review this policy’s procedures and the options available. Copies of outcomes from all aspects of the complaint process shall be sent to the Designated Official.
In addition, upon the filing of a complaint pursuant to this policy, the Designated Official will notify each Party of the right to identify one Advisor of his or her choosing who is to serve in a support role for the Party in the proceedings on the terms set forth within this policy. The Advisor may be internal or external to the University. At the timely, written request of any Party to the Designated Official, the Designated Official will identify and designate an Advisor for any Party (who will be internal to the University) who is unable to identify an Advisor on his or her own. The Complainant and Respondent are themselves responsible for keeping their respective Advisors apprised of the status of the complaint and proceedings. Advisors shall not have communications concerning the complaint with anyone with procedural or substantive responsibilities under this policy outside of the presence of their Advisees. Advisors shall be informed by the Designated Official of the need to maintain confidentiality pursuant to this policy.
Also, upon the filing of a complaint pursuant to this policy, the Designated Official shall identify a Mediator. The Mediator may be internal or external to the University, at the discretion of the Designated Official.
The first step in seeking a solution to the complaint is Mediation. The goal of Mediation is to seek conflict resolution. In this phase, the selected Mediator serves as a neutral party to the proceedings and confidentially works with the parties in an attempt to seek a mutually agreeable resolution. The Parties’ Advisors may attend the Mediation and provide consultation to their advisees. University Counsel, internal or external, may participate in the Mediation. The Mediator has discretion as to the manner in which the Mediation is to be conducted. The Mediator may decide under certain circumstances, for example, that it is not appropriate to require the Parties to meet in person. The goal is to complete the Mediation process within fifteen (15) days of the identification of the Mediator.
Outcomes of Mediation include one of the following:
1. Secure a mutually acceptable resolution of the issue that, with the review and approval of the Designated Official, officially resolves the case.
2. Declare the issue at an impasse with written agreement by the Complainant and Respondent that no further action be taken, in which case, with the review and approval of the Designated Official, the complaint will be deemed withdrawn.
3. Declare the issue at an impasse, in which case the matter will proceed to an Investigation.
Upon the conclusion of this phase, the Mediator will communicate only the outcome to the Designated Official. The Mediator may not be called as a witness or provide any other information in this or other proceedings about what took place during the Mediation. At the discretion of the Designated Official, the Designated Official may circumvent Mediation where circumstances warrant and proceed directly to Investigation.
The goal of Investigation is to determine whether probable cause exists of a violation of this policy. The following is the customary procedure for investigation under this policy:
1. Within five (5) days of receipt of a communication from the Mediator indicating that the Mediation concluded at an impasse and one or more of the Parties wishes to pursue the matter further, the Designated Official will appoint a neutral Investigator for the complaint. The Investigator may be internal or external to the University, at the discretion of the Designated Official. The Investigator will be trained or will have training regarding protected class discrimination and harassment. The Investigator will investigate the charges. The investigation may involve interviews of the Parties and relevant witnesses and review of documentation. The Advisor may attend the interview only of his or her advisee and may not direct the answers of the advisee. The Advisor may ask questions for clarification but may not otherwise interrupt, and may not interfere with, the interview. The goal is to complete the investigation within thirty (30) days of the conclusion of the Mediation process.
2. The Investigator will use reasonable means to preserve confidentiality, but confidentiality cannot be guaranteed. Before any disclosure of information, the Investigator must assess the situation and determine that disclosure is necessary to the pursuit of the investigation.
3. At the conclusion of the investigation, the Investigator will communicate briefly and in writing his or her findings of fact to the Designated Official, who will determine whether there is probable cause to believe the policy was violated. The findings and the Designated Official’s conclusion as to probable cause will be sent to the Complainant and the Respondent, and will be kept by the Designated Official. In addition, the findings and the Designated Official’s probable cause determination will be sent by the Designated Official to the appropriate Vice President (if a staff member is involved), or to the faculty member's dean (if a faculty member is involved).
If there is a determination of no probable cause, the Complainant may: (1) request another Mediation session; or (2) appeal by making a request for a Hearing to the Designated Official. Either request must be in writing within ten (10) days after the determination is made. If a timely request is made, and the Designated Official determines that the request is appropriate, the Designated Official will begin the mediation or hearing procedures. If no timely request is made, the determination will be deemed final and binding. The Designated Official will so inform the Complainant, the Respondent, and the supervisor and/or the Dean(s) of the college(s) of the Complainant and Respondent.
If there is a determination of probable cause, the Respondent may: (1) request another Mediation session; or (2) appeal by making a request for a Hearing to the Designated Official. Either request must be made in writing within ten (10) days after the determination is made. If the Respondent fails to timely respond, the determination may be deemed admitted and the Designated Official will review the determination with the Provost who shall then issue the final decision (including remedial measures), which shall not be subject to further review or appeal. If a timely request for mediation or hearing is made, the Designated Official will begin the mediation or hearing procedures.
H. Hearing Procedures
The purpose of the hearing is to provide the opportunity for the Hearing Committee to listen to the Complainant and Respondent and to develop the relevant evidence with regard to the alleged violations of this policy. The goal of the Hearing is to determine whether the facts, as alleged, are true and whether the facts found to be true constitute discrimination, harassment, or retaliation under this policy.
Upon initiation of the hearing procedures, the Designated Official will appoint and convene a Hearing Committee. The Hearing Committee will be convened as soon as reasonably possible after receipt of a timely request for hearing.
The Hearing Committee will consist of three individuals. In constituting the Hearing Committee, the Designated Official will identify five (5) potential members. In identifying members, the Designated Official will follow the guidelines noted above in the section labeled and describing the role of the “Designated Official.” The Complainant and the Respondent will each be allowed to reject one prospective Hearing Committee member, after which the remaining three members will be designated by the Designated Official as the Hearing Committee. The Designated Official in specific cases may remove and replace committee members if a conflict of interest or conflict with respect to time develops.
The process at the hearing will be generally as follows:
1. The Respondent and the Complainant may review in advance of the hearing the written determination of the Investigation as to whether there is probable cause to believe that this policy was violated.
2. The Respondent and Complainant may be accompanied to the hearing by an Advisor for support but the Advisor may not participate in the proceedings other than to ask questions of the Hearing Committee for clarification. Such questions may not, as determined by the chair of the Hearing Committee, interfere with the Hearing.
3. The Hearing Committee will meet and select its own chair and secretary to record the proceedings.
4. The Parties may present to the Designated Official no later than seven (7) days in advance of the hearing: (a) a written summary of their respective positions; (b) any and all documents they deem relevant to the proceedings; and (c) a list of no more than three (3) witnesses whom the Parties would like called to testify at the hearing with a statement describing the testimony that each would provide at the hearing. The Designated Official will immediately forward this information to the Hearing Committee. Because the Respondent is in the position of addressing matters raised by the Complainant, it is understood that the documents and witnesses identified by Respondent may be supplemented as the hearing proceeds.
5. The Hearing Committee will convene a hearing and will hear testimony from the Complainant and Respondent. The Committee also will call to testify the witnesses identified by the Parties as noted above except in those cases where the Committee decides that a witness would add no relevant information to the proceedings or has been identified for reasons other than to advance the fact finding of the Committee. The Committee may, but is not required to, call other individuals before it to inquire about the allegations.
6. Hearings are closed to everyone not directly related to the case. Witnesses may be excluded from the hearing except as necessary to secure their testimony.
7. The Hearing Committee has full discretion to place time limits on any and all testimony provided in the hearing. Only the members of the Committee may question the parties and witnesses. The Parties will not directly question any witnesses but will be allowed, only in a fashion that is not disruptive to the flow of the proceedings, to direct questions to the Chairperson of the Committee after being recognized.
8. The University, through the Office of the General Counsel, may observe or participate in hearings in the University’s sole discretion.
9. Court rules of evidence will not apply, nor will court rules of civil procedure apply. Fair, efficient and impartial resolution of the dispute will be the goal.
10. The Hearing Committee will review the case to determine: (a) whether the facts, as alleged, are true; and (b) whether the facts found to be true constitute discrimination, or harassment, or retaliation, or any combination thereof, under this policy.
11. The Hearing Committee must be convinced of a violation of the policy by a preponderance of the evidence.
12. The hearing and all deliberations of the Hearing Committee will be made in closed session. No record of such will be made except by the secretary selected from among the Hearing Committee members. The decision of the Committee will be made by majority vote. The decision will be in writing and will state specifically its finding as to whether a violation of this policy has occurred. If a Committee member disagrees with the decision and so wishes, that member may add a written explanation as to the reason for the disagreement.
Within fourteen (14) days after the hearing has concluded, the Committee will meet with the Designated Official to review the bases for its finding as to whether a policy violation occurred. The Designated Official shall thereafter inform the Parties simultaneously and in writing of the decision of the Hearing Committee and the procedures to appeal the results.
Within fourteen (14) days after notification that the Hearing Committee did not find that a violation of policy occurred, the Complainant(s) may appeal such finding as outlined below. For those circumstances where the Hearing Committee finds that a violation of policy has occurred, the Designated Official will review the finding with the appropriate Dean or supervisor, and they shall then assess what, if any, remedial measures may be appropriate.
These remedial measures may include, depending on the severity of the offense and past history, one or more of the following (the list is not intended to be exhaustive). A more severe penalty may be imposed for a first offense or before any lesser penalty. Progressive discipline is not required.
• Reprimand or warning, public or private;
• Appropriate community service;
• Continued employment or attendance at the university being subject to certain conditions;
• Denial of salary increases;
• Demotion or reassignment of teaching or supervisory responsibilities;
• Suspension from attendance at the university for a specific period, or suspension of employment without compensation for a specified period;
• Dismissal from employment or expulsion from attendance at the university.
Any sanction may be accompanied by required corrective action, such as treatment and/or counseling. Prior discipline records may be used in determining sanctions. For those circumstances involving the potential termination of a member of faculty or staff, the Designated Official shall in all cases consult with and receive approval from the respective Dean (and, where required, the President) or supervisor of the impacted employee.
The Designated Official will send written notice of the determination regarding remedial measures to the Party impacted directly by such measures and will send a separate written notice to the other Parties stating generally that corrective action has been identified.
I. Appeal Procedures
A Complainant(s) may appeal a finding that a violation of policy did not occur within fourteen (14) days after notification of such from the Designated Official. Such an appeal must be based on one or both of these reasons: (1) new evidence not reasonably available at the time of the original hearing, the absence of which can be shown to have had a detrimental impact on the outcome of the hearing; or (2) evidence that the hearing was not conducted consistent with these procedures.
For a Respondent(s) who is a tenured law faculty member in cases involving a proposed discharge, demotion or suspension, Section 8 of the School of Law Faculty Handbook will apply at this juncture. In such cases, the Designated Official will send notice to all Parties stating generally that corrective action has been identified and that the handbook procedure in Section 8 will apply.
All other Respondent(s) may, within fourteen (14) days after notification that corrective action has been identified after a finding by the Hearing Committee that a violation of policy has occurred, appeal the finding of a policy violation. Such an appeal must be based on one or both of these reasons: (1) new evidence not reasonably available at the time of the original hearing, the absence of which can be shown to have had a detrimental impact on the outcome of the hearing; or (2) evidence that the hearing was not conducted consistent with these procedures. Respondents who are faculty also may timely appeal the identified remedial measures. For all of these Respondents, the filing of an appeal will delay the imposition of any remedial measures identified until resolution of the appeal unless, in the University’s discretion, there are serious circumstances that warrant sooner implementation of the remedial measures, such as where (by way of example only) harm to an individual or to the University is threatened by such delay.
To effectuate an appeal, the Party must, within the fourteen (14) day period, provide a written statement describing in detail the bases for the appeal to the Provost. All documents that the Party wishes considered in connection with the appeal shall be attached to the statement. The Provost shall review the statement and the record of the proceedings and may review any other information relating to the matter. Within twenty-one (21) days of the receipt of the written statement requesting the appeal, the Provost will reach a decision. The decision shall be in writing and shall state as applicable: (1) whether the findings of the Hearing Committee will be upheld or reversed; and (2) whether any remedial measures imposed shall remain intact or be enhanced or reduced and in what specific respect. The Provost shall provide such written decision to the Designated Official, to the appealing party and to others with a business need to know. Simultaneously, the non-appealing party will be informed of any change to the results or conclusion with respect to a policy violation.
This decision shall not be subject to further review or appeal, with the exception that, in cases involving remedial measures imposed and upheld on faculty (other than tenured law faculty where discharge, demotion or suspension is proposed and as to which the procedure noted above will apply), the procedure set forth below (the “remedial measure appeal procedure”) will be available to any challenge of the remedial measures by the faculty member directly and adversely impacted by the remedial measures (the “Impacted Party”). The underlying finding of a policy violation is not subject to the remedial measure appeal procedure.
1. To effectuate the remedial measure appeal procedure, the Impacted Party must, within fourteen (14) days of the date of the written decision on appeal, provide a written statement to the Provost describing in detail the bases for the appeal. All documents that the Impacted Party wishes considered shall be attached to the statement.
2. The Impacted Party may choose to mediate any issues over the remedial measures and is encouraged to do so under conditions agreed to by the Provost.
3. The Provost will supervise the formation of an advisory Remedial Measure Advisory Committee in the following way:
o The Impacted Party will select one member;
o The President or his/her designee will select one member who has not participated in the proceedings to date;
o The two committee members thus chosen will choose a third member who has not participated in the proceedings to date.
o The Provost will provide notice of the committee membership to the Designated Official and to the Impacted Party.
4. A hearing to address the remedial measure appeal will begin no more than fourteen (14) calendar days after the date of such notice.
5. The Impacted Party and Provost may be accompanied to the hearing by an Advisor for support but the Advisor may not participate in the proceedings other than to ask questions of the Remedial Measures Advisory Committee for clarification. Such questions may not, as determined by the chair of the Committee, interfere with the Hearing.
6. The Remedial Measure Advisory Committee will meet and select its own chair and secretary to record the proceedings.
7. The Impacted Party and the Provost may present to the Remedial Measure Advisory Committee no later than seven (7) days in advance of the hearing a list of no more than three (3) witnesses whom they would like called to testify at the hearing with a statement describing the testimony that each would provide at the hearing.
8. The Remedial Measure Advisory Committee will convene a hearing and will hear testimony from the Impacted Party and Provost. The Committee may, but is not required to, call other individuals before it to inquire about the issues presented.
9. The Remedial Measure Advisory Committee has full discretion to place time limits on any and all testimony provided in the hearing. Only the members of the Committee may question the parties and witnesses. The Parties will not directly question any witnesses but will be allowed, only in a fashion that is not disruptive to the flow of the proceedings, to direct questions to the Chairperson of the Committee after being recognized.
10. Court rules of evidence will not apply, nor will court rules of civil procedure apply. Fair and efficient resolution of the dispute will be the goal.
11. The Remedial Measure Advisory Committee will review the evidence to determine if there is reasonable foundation for the remedial measures imposed. The burden is on the Provost to establish such by a preponderance of the evidence.
12. The hearing and all deliberations of the Remedial Measure Advisory Committee will be made in closed session. No record of such will be made except by the secretary selected from among the Remedial Measure Advisory Committee members. The decision of the Committee will be made by majority vote. The decision will be in writing and will state specifically its finding as to whether a there is reasonable foundation for the remedial measures imposed. If a Committee member disagrees with the decision and so wishes, that member may add a written explanation as to the reason for the disagreement.
13. The Remedial Measure Advisory Committee will present its advisory decision in writing within seven (7) calendar days of the conclusion of the hearing to the Designated Official. In the event that the Committee decides that there is reasonable foundation for the remedial measure imposed prior to the appeal, there will be no further consideration of the matter and the Designated Official shall advise the Impacted Party and the Provost. In the event that the Committee concludes the remedial measures were not supported by reasonable foundation, it shall recommend whether the measures should be reduced and in what specific respect, and the recommendation shall be forwarded by the Designated Official to the President. This advisory decision shall be taken into consideration by, but is not binding on, the President. Within fourteen (14) days of receipt of the advisory decision, the President will provide a written decision to the Impacted Party, Designated Official and Provost in which the remedial measure imposed is upheld or modified and the reasons for the decision are identified. The President’s decision is final.
IV. RECORD KEEPING
The Dean of Students will maintain all files and records created in connection with a complaint under these proceedings. With the exception of documented remedial measures, these files will be kept separate from regular student and employment files. Mediators and Investigators in subsequent investigations of other cases involving any of the same parties may obtain these records. The University affirms its right to use these records in any kind of administrative, governmental, or judicial proceedings in which they are relevant or necessary. The University will, to the extent permitted by law, keep identifying information about a Complainant out of publicly – available records.