Midwestern State University (MSU)
Policy 4-161.A: Title IX Sexual Misconduct
Board of Regents
University Policy and Procedure
Vice President for Student Affairs
Vice President for Administration and Finance
Title IX Coordinator
Human Resources Director
Next Scheduled Review:
This policy applies exclusively to Title IX Sexual Misconduct (as defined in Section 4.o, below), where:
Respondent has an employment or enrollment relationship with the University, and
The conduct allegedly occurred in an Education Program or Activity (as defined in Section 4.d, below).
Any other form of sexual misconduct is governed by MSU Policy 4.161.B. Attachment 1 to this policy visually depicts the applicability of MSU Policy 4.161.A and 4.161.B and summarizes their differing procedures. In the event of any conflict between the attachment and these policies, the text of the policies shall control.
This policy provides information regarding Midwestern State University's (referred to herein as "University") prevention and education efforts related to Title IX Sexual Misconduct, as defined in Section 4.o, below. This policy provides students and employees with their rights and options and also explains how the University will proceed once it has Actual Knowledge, as defined in Section 4.a, below, of allegations of prohibited Title IX Sexual Misconduct in keeping with the University's values and in order to meet the legal obligations of Title VII, Title IX, the Violence Against Women Act (VAWA), the Campus Sexual Violence Elimination Act (SaVE), the Texas Education Code, 34 CFR Part 106, and other applicable laws and regulations.
The University is committed to providing and strengthening an educational, working, and living environment where students, faculty, staff, and visitors are free from Title IX Sexual Misconduct of any kind.
The University will take all reasonable steps to respond to and prevent recurrence of any Title IX Sexual Misconduct and restore and preserve access to the Complainant and others, if appropriate.
All investigations and procedures will be conducted in a reasonably prompt timeframe and in an equitable and impartial manner. Investigations conducted under this policy are not criminal investigations. For all complaints under this policy, the burden of proof shall be a preponderance of the evidence, which means more likely than not.
The University expects all members of the University Community to comply with applicable law and University policies. Members of the University Community who violate this policy and related laws may be subject to disciplinary action or sanctions as provided in Section 11 of this policy, up to and including termination of employment, expulsion from the University, or being barred from University premises and events. To the extent there is no conflict with applicable federal or Texas law, termination of tenured faculty will be subject to the procedures outlined in the University's polices regarding revocation of tenure.
For complaints relating to any form of sexual misconduct other than Title IX Sexual Misconduct (as defined in Section 4.o, below), please see MSU Policy 4.161.B. For complaints relating to any form of discrimination not covered by MSU Policy 4.161..A or 4.161.B, or for acts of gender/sex discrimination, such as denial of employment, wages, or benefits based on gender/sex, that are not sexual in nature and do not constitute Title IX Sexual Misconduct as defined in this policy or Sexual Misconduct as defined in MSU Policy 4.161.B, please see MSU Policy 4.131 (Equal Opportunity and Affirmative Action Statement) and MSU Policy 4.171 (Racial Harassment Policy). The University reserves sole discretion to consolidate complaints arising out of the same facts or circumstances, involve more than one complainant or more than one respondent, or amount to counter-complaints by one party against the other. Additionally, if at any time during a Title IX Sexual Misconduct Grievance Process it is determined that the alleged conduct does not constitute Title IX Sexual Misconduct, the University may proceed under MSU Policy 4.161.B or any other applicable policy and procedure.
Definitions For purposes of this policy, the definitions below apply. However, some of these terms are also defined under state law. If an individual would like to file criminal charges for any alleged violations of criminal law, the definitions as set forth in state law may apply.
Actual Knowledge. Notice of Title IX Sexual Misconduct or allegations thereof to the University's Title IX Coordinator or any University official with the authority to institute corrective measures on the University's behalf.
Complainant. An individual, who must be participating or attempting to participate in the University's Education Program or Activity, who is alleged to be the victim of conduct that could constitute Title IX Sexual Misconduct. Without limiting the foregoing, generally, the Complainant is an individual who was allegedly subjected to a violation of this policy.
Consent. Mutually understandable words or actions, actively communicated both knowingly and voluntarily, that clearly convey permission for a specific activity. Consent is not effective if it results from: (i) the use of physical force, (ii) a threat of physical force, (iii) intimidation, (iv) coercion, (v) incapacitation, or (vi) any other factor that would eliminate an individual's ability to exercise their own free will to choose whether or not to engage in sexual activity.
Education Program or Activity. Includes locations, events, or circumstances over which the University exercised substantial control over both the Respondent and the context in which the Title IX Sexual Misconduct allegedly occurred, and also includes any building owned or controlled by a student organization that is officially recognized by the University.
Employee. An individual who receives a W-2 or 1042-S from the University, including full- and part-time faculty, staff, and students. An Employee is working in the course and scope of their employment if the Employee is performing duties in the furtherance of the University's interest.
Formal Complaint. Document filed by a Complainant or signed by the University's Title IX Coordinator alleging Title IX Sexual Misconduct against a Respondent and requesting that the University investigate the allegation of Title IX Sexual Misconduct.
Grievance Process. The process of addressing Formal Complaints of Title IX Sexual Misconduct before the imposition of any disciplinary or other actions against a Respondent. The Grievance Process is described in Section 10 of this policy.
Incapacitation. A state of being that prevents an individual from having capacity to give Consent. For example, incapacitation could result from the use of drugs or alcohol, an individual being asleep or unconscious, or because of an intellectual or other disability.
Informal Resolution. An alternative to the Grievance Process that may be offered and facilitated by the University following the filing of a Formal Complaint and upon the voluntary, written consent of the parties. The Informal Resolution Process is described in Section 10.h of this policy.
Investigative Report. A report that summarizes the relevant evidence based upon the completion of a prehearing investigation conducted under the Grievance Process.
Reporting Party. An individual or entity (in the case of the University), other than the Complainant, who reports an alleged violation of this policy.
Respondent. An individual who has been reported to be the perpetrator of conduct that could constitute Title IX Sexual Misconduct. Without modifying the foregoing, generally, the Respondent is the individual that is alleged to be responsible for the prohibited conduct alleged in a complaint.
Responsible Employee. All Employees, except as provided in Section 6 below, are Responsible Employees who must report allegations of Title IX Sexual Misconduct, including all known information concerning the incident, to the Title IX Coordinator as provided in Section 6, below.
Student. All persons who have accepted admission to, enrolled at, are taking courses at, and/or have a continuing relationship with the university, including those who attend full- or part-time at the undergraduate, graduate, or non-matriculated level.
Supportive Measures. Non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the Complainant or the Respondent before or after the filing of a Formal Complaint or where no Formal Complaint has been filed.
Title IX Sexual Misconduct. Conduct that allegedly occurred against a person in the United States, in University's Education Program or Activity, on the basis of sex, and that satisfies one or more of the following:
Quid Pro Quo. A University employee conditioning the provision of an aid, benefit, or service of the University on an individual's participation in unwelcome sexual conduct;
Severe, Pervasive, and Objectively Offensive Conduct. Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the University's education program or activity. Without limiting the foregoing, the following types of conduct are deemed to meet this severe, pervasive, and objectively offensive standard:
"Sexual Assault" as defined in 20 U.S.C. 1092(f)(6)(A)(v);2
"Dating Violence" as defined in 34 U.S.C. 12291(a)(10);3
"Domestic Violence" as defined in 34 U.S.C. 12291(a)(8);4 or
"Stalking" as defined in 34 U.S.C. 12291(a)(30).5
University Community. All University faculty, staff, and students of and visitors to any University premises or University-affiliated activity.
University Title IX Coordinators and the Midwestern State University Office of Equal Opportunity (OEO)
By or Between Students. The University has a Title IX Coordinator who oversees the University's compliance with Title IX, including investigating complaints of Title IX Sexual Misconduct by or between students:
EMAIL AND WEBSITE
Director of Title IX Compliance/Title IX Coordinator
By or Between Employees. The University Title IX Coordinator will investigate complaints of Title IX Sexual Misconduct by or between Employees of the University (provided, in certain instances, such complaints may be investigated in coordination with the University Title IX and human resources office):
EMAIL AND WEBSITE
Director of Title IX Compliance/Title IX Coordinator
Distinction Between Reports and Formal Complaints. This Section addresses employee reporting of Title IX Sexual Misconduct as required by Texas law. A report made under this Section does not constitute a Formal Complaint, which is required by federal regulation to initiate a Title IX Sexual Misconduct Grievance Process. Formal Complaints by or against students should be made in accordance with Section 7 of this policy. Formal Complaints regarding Employees (including student employees) should be made in accordance with Section 8 of this policy. The Grievance Process is described in Section 10 of this policy.
Mandatory Reporting to University by Employees. Texas law requires Employees to report certain types of sexual misconduct, including but not limited to Title IX Sexual Misconduct, to appropriate University personnel. All Employees, including student Employees, who in the course and scope of employment, witness or receive information regarding the occurrence of an incident that the Employee reasonably believes constitutes either Title IX Sexual Misconduct or "Sexual Misconduct" (as defined in MSU Policy 4.16.B) and is alleged to have been committed by or against an individual who was a student enrolled at or an Employee of the University at the time of the incident shall promptly report the incident to the University Title IX Coordinator or a Title IX Deputy Coordinator. An Employee is required to report an incident regardless of where or when the incident occurred. Failure to report "Sexual Harassment", "Sexual Assault", "Dating Violence", or "Stalking", as such terms are defined in MSU Policy 4.161.B, is a violation of state law that shall result in termination of employment and may result in criminal penalties.
Contents of Report. Except as provided by Section 6(d) below, the report required by Subsection 6(a) must include all information concerning the incident known to the Reporting Party, including the involved parties' names, regardless of whether the Complainant has expressed a desire for confidentiality; however, the Reporting Party may also state whether the Complainant has expressed a desire for confidentiality.
Contents of Report by Employee with Confidential Relationship. An Employee designated by the University as an individual with whom University students may speak confidentially concerning sexual misconduct or who receives information regarding such an incident under circumstances that render the Employee's communications confidential or privileged under other law shall, in making a report under this regulation, state only the type of incident reported and may not include any information that would violate a student's expectation of privacy. This subsection does not affect the Employee's duty to report an incident under any other law. The following classifications of individuals are Confidential Employees under this University policy: (1) Licensed Professional Counselors who are licensed with the State of Texas whose official University responsibilities include providing mental health counseling to members of the campus community; (2) Registered Nurses/Doctors/Family Nurse Practitioners who are registered with the State of Texas and whose official University responsibilities include providing health services to members of the campus community; and (3) University employees who are also licensed or credentialed Pastors should take care to ensure students and others disclose to them while in their official church role, as disclosures outside of this would constitute notice to the institution (employees are not confidential). If the Pastor employee also advises a student organization, then that employee may have additional responsibilities to report non-identifying aggregate data to the MSU Police Department regarding numerous other types of misconduct, if such misconduct is reported to have occurred on campus owned or controlled by MSU.
These definitions extend to teaching faculty when performing counseling, therapy, or health service roles in the Counseling Center, the Psychology Clinic, or the Vinson Health Center.
Reporting by Students and Third Parties to University Encouraged. All students and third parties are strongly encouraged to promptly report any incidents of sexual misconduct, including but not limited to Title IX Sexual Misconduct, to the University Title IX Coordinator or a Title IX Deputy Coordinator.
Limited Exception to Mandatory Employee Reporting. Notwithstanding Section 6(a), above, an Employee is not required to make a report under this Section concerning: (i) an incident in which the Employee was a victim of sexual misconduct, including but not limited to Title IX Sexual Misconduct; or (ii) an incident of which the individual received information due to a disclosure made at a sexual misconduct public awareness event sponsored by or affiliated with the University.
Reporting to Law Enforcement Agencies. All students, Employees, and third parties may also report incidents of Title IX Sexual Misconduct to law enforcement, including University and local police. Complaining Parties may choose to notify law enforcement and will be provided the assistance of a Title IX Coordinator or Title IX Deputy Coordinator in contacting these authorities if the individual wishes. For a list of law enforcement agencies, please see Section 15(c) of this regulation. Complaining Parties may also decline to notify law enforcement of incidents of sexual misconduct.
Victims Encouraged to Seek Medical Care. An individual who experiences sexual misconduct is encouraged to seek medical care for treatment and preservation of evidence, if applicable, as soon as practicable after the incident. Preserving DNA evidence can be key to identifying the perpetrator in a sexual violence case. Victims can undergo a Sexual Assault Forensic Exam (SAFE) performed by a Sexual Assault Nurse Examiner (SANE) to preserve physical evidence with or without police involvement. If possible, this should be done immediately. If an immediate medical exam is not possible, a SANE may still collect evidence several days following a sexual assault. With the examinee's consent, the physical evidence collected during this medical exam can be used in a criminal investigation. To undergo a SAFE, go directly to the nearest emergency department that provides SAFE services.
Preservation of Evidence. An individual who experiences any form of sexual misconduct should also preserve other evidence relevant to the complained of activity, such as items of clothing, photographs, phone records, text messages, computer records, and other documents.
Good Faith Actors. The University may not discipline or otherwise discriminate against an individual who in good faith: (i) makes a report as required under this regulation or (ii) cooperates with an investigation, a disciplinary process, or a judicial proceeding relating to a report made by the individual as required under this regulation. This Subsection does not apply to an individual who perpetrates or assists in the perpetration of the incident reported under this regulation.
Non-Disclosure of Private Information to Medical Providers. Absent consent from the Complainant, disclosures to a healthcare provider, mental health care provider, or other medical provider acting in the course and scope of their employment with the University shall only state the type of incident reported and may not include any information that would violate an expectation of privacy. These Employees are encouraged to provide Complaining Parties with information and guidance regarding University reporting options and available resources. This Subsection does not affect the Employee's duty to report an incident under any other law or regulation under which they maintain their licensure.
Request of Complainant to Not Investigate. If the Complainant of an alleged incident of "Sexual Harassment", "Sexual Assault", "Dating Violence", or "Stalking", as such terms are defined in MSU Policy 4.161.B, reported to the University requests the University not to investigate the alleged incident, the University may investigate the alleged incident in the same manner that an anonymous complaint may be investigated. The University shall inform the Complainant whether the University will conduct an investigation. In determining whether to investigate the alleged incident, the University shall consider:
The seriousness of the alleged incident;
Whether the University has received other reports of "Sexual Harassment", "Sexual Assault", "Dating Violence", or "Stalking", as such terms are defined in MSU Policy 4.161.B, committed by the alleged perpetrator or perpetrators;
Whether the alleged incident poses a risk of harm to others;
Whether the allegations involved violence, use of weapons, or other similar factors; and
Any other factors the University determines relevant.
If the University decides not to investigate an alleged incident described in this subsection based on the Complainant's request not to investigate, the University shall take any steps it determines necessary to protect the health and safety of the University Community in relation to the alleged incident.
How to Submit a Report. Employees may fulfill their reporting obligations by submitting a report through the applicable University electronic reporting form. Reporting Employees should keep a receipt or proof of the submission of the report. Please see below for a link to each University's electronic reporting form:
False or Malicious Claims. An individual found to have knowingly submitted a false or malicious claim may be subject to disciplinary action.
Complaints by or Against Students
Purpose of Formal Complaint. A Formal Complaint is required to initiate a Title IX Sexual Misconduct Grievance Process. In addition to the requirements of this Section, see Section 10, Grievance Process.
Types and Locations for Filing Formal Complaints
Student Complaint Against a Student. If a student wishes to file a Formal Complaint of Title IX Sexual Misconduct by another student, the student should contact and file the Formal Complaint with the University's Title IX Coordinator or the Deputy Title IX Coordinator for Students (contact information set forth in Section 5.a of this policy).
Student Complaint Against Employee. If a student wishes to file a Formal Complaint of Title IX Sexual Misconduct by a University Employee, the student should contact and file a Formal Complaint with the University's Title IX Coordinator or a Deputy Title IX Coordinator (contact information set forth in Section 5.a and b of this policy). Student complaints of Title IX Sexual Misconduct by an Employee may be investigated jointly by the University's Title IX Office and the Human Resources Office.
Student Employee Complaint Against Employee. If a student Employee has a complaint of Title IX Sexual Misconduct against an Employee that occurred during the course and scope of student's employment with the University, the student should follow the procedure set forth for Employees in Section 8 of this policy.
Employee Complaint Against Student. If an Employee has a complaint of Title IX Sexual Misconduct against a student, the Employee should contact and file a Formal Complaint with the University's Title IX Office and/or file an incident report form, found at the University's Title IX website (contact information and website are set forth in Section 5.a of this policy).
Required Contents of Formal Complaint. A Formal Complaint must be in writing and be submitted to the office described in Section 7.b. The University may provide a specific form for Complainant to complete.
Amnesty for Good Faith. If a student enrolled at the University makes a report or Formal Complaint of Title IX Sexual Misconduct in good faith, the University may not take disciplinary action against that student for violation(s) of the University's applicable student conduct policy in accordance with the amnesty provisions set forth in the respective University's Student Handbook or similar policy.
The Complainant or Respondent who is the subject of an alleged incident of Title IX Sexual Misconduct will be allowed to drop a course in which they are both enrolled without any academic penalty.
If a student withdraws or graduates from the University pending a Formal Complaint alleging the student violated this policy and the University's code of conduct by committing Title IX Sexual Misconduct, the University:
May dismiss the Formal Complaint and proceed under MSU Policy 4.161.B, but pursuant to Texas law may not end the disciplinary process or issue a transcript to the student until the University makes a final determination regarding responsibility;
Shall expedite the University's disciplinary process as necessary to accommodate both the student's and the alleged victim's interest in a reasonably prompt resolution, which may include dismissal of the Formal Complaint and process under MSU Policy 4.161.B; and
On request by another institution, the University shall provide to the requesting institution information relating to a determination that a student enrolled violated this regulation and the University's code of conduct by committing Title IX Sexual Misconduct.
Employee Complaint Procedures, Including Student Employees
Purpose of Formal Complaint. A Formal Complaint is required to initiate a Title IX Sexual Misconduct Grievance Process. In addition to the requirements of this Section, see Section 10, Grievance Process.
Type and Location for Filing a Formal Complaint. If an Employee wishes to file a Formal Complaint of Title IX Sexual Misconduct against another Employee, the Employee should contact and file the Formal Complaint with the Title IX Coordinator (contact information set forth in Section 5 of this policy).
In addition, in complaints of Title IX Sexual Misconduct, the following provisions shall control.
While there is no deadline to file a complaint, to promote prompt and equitable review, the University encourages individuals who believe they have experienced Title IX Sexual Misconduct to come forward as soon as possible with their complaint and to seek assistance. Delays in reporting greatly limit the ability to stop the Title IX Sexual Misconduct, collect evidence, and/or take effective action against individuals or organizations accused of violating this policy.
Individuals wishing to remain anonymous may file a report in any manner, including by telephone or written communication, with the University Title IX Coordinator or Title IX Deputy Coordinator. However, electing to remain anonymous may greatly limit the ability to investigate an alleged incident, collect evidence, and/or take effective action against individuals or organizations accused of violating this policy.
Complaints Involving Non-University Individuals
Complaints Against University Students or Employees. To file a Formal Complaint, a Complainant must be participating in or attempting to participate in the University's Education Program or Activity at the time the Formal Complaint is filed; however, if another individual has a complaint of any sexual misconduct by a University student or a University Employee acting in the scope of their employment, the individual involved may file a report with the University's Title IX Office, and the University may investigate and take steps to address the situation.
Complaints by University Students or Employees. If a University Employee or a University student has a complaint of sexual misconduct by a non-University party that affects the Employee's work environment or student's participation or attempt to participate in the University's Education Program or Activity, the Employee or student may make a report to the University Title IX Coordinator or Title IX Deputy Coordinator. University may conduct an inquiry and take action, if possible, to prevent further misconduct. However, responses may differ for complaints regarding third parties based on the level of control the University has over the third party. Even though the ability to take direct action against a third party may be limited, the University may take steps to provide appropriate remedies for the Employee or student and, where appropriate, the broader University Community.
Grievance Process for Formal Complaints of Title IX Sexual Misconduct
Formal Complaint Required to Initiate Grievance Process. The Grievance Process begins upon the filing of a Formal Complaint (as described in Sections 7, 8, and 9 of this policy or as otherwise permitted by applicable law). At the time of filing a Formal Complaint, the Complainant must be participating in or attempting to participate in the University's Education Program or Activity.
Assistance from Title IX Coordinator. When the University has Actual Knowledge of alleged Title IX Sexual Misconduct, the Title IX Coordinator shall promptly contact the Complainant to: (1) discuss the availability of Supportive Measures, (2) inform Complainant of the availability of Supportive Measures (with or without the filing of a Formal Complaint), and (3) explain to the Complainant the process of filing a Formal Complaint.
University Response to Receipt of Formal Complaint. Upon receipt of a Formal Complaint, University shall: (1) complete the actions required upon receiving notice, (2) evaluate jurisdiction and mandatory and discretionary dismissal as described below, (3) assess appropriate Supportive Measures for both parties, (4) evaluate the need for Emergency Removal or administrative leave, and (5) initiate the Grievance Process.
Initial Review of Formal Complaint.
Mandatory Dismissal. The University shall dismiss a Formal Complaint in the following situations: (a) the allegation does not describe conduct that would constitute Title IX Sexual Misconduct, as defined, even if proven; (b) the Title IX Sexual Misconduct did not occur in the University's Education Program or Activity; or (c) the Title IX Sexual Misconduct did not occur against a person in the United States.
Permissive Dismissal. The University may dismiss a Formal Complaint in the following situations: (1) the Complainant notifies the Title IX Coordinator in writing that they wish to withdraw the Formal Complaint or some allegations in the Formal Complaint; (2) the Respondent is no longer enrolled in or employed by the University; or (3) circumstances exist that prevent the University from gathering sufficient evidence to reach a determination as to the Formal Complaint or allegations therein.
Application of Other Policies Upon Dismissal of Formal Complaint. This policy applies exclusively to Title IX Sexual Misconduct, as defined in Section 4.o, above. Any other form of sexual misconduct is governed by MSU Policy 4.161.B. If the University dismisses a Formal Complaint, or allegations therein, it must promptly send written notice of the dismissal and the reason(s) for the dismissal simultaneously to all parties. Dismissal of a Title IX Sexual Misconduct Formal Complaint does not preclude action pursuant to other applicable disciplinary policies, including but not limited to those in MSU Policy 4.161.B Non-Title IX Sexual Misconduct and the applicable Student Handbook or other faculty, staff, or employee policies.
Appeal of Dismissal Decision. Any party can appeal the dismissal decision.
Right to Consolidate Complaints. University may consolidate Formal Complaints as to allegations of Title IX Sexual Misconduct: (1) against more than one Respondent, (2) by more than one Complainant against one or more Respondents, or (3) by one party against the other party, where the allegations of Title IX Sexual Misconduct arise out of the same facts or circumstances.
General Requirements of the Grievance Process.
Equitable Treatment of Parties. The University shall treat Complainants and Respondents equitably by: (1) offering Supportive Measures to a Complainant, (2) providing remedies to a Complaint where a determination of responsibility for Title IX Sexual Misconduct has been made against the Respondent, (3) executing the Grievance Process in compliance with this Section before the imposition of any disciplinary sanctions or other actions that are not Supportive Measures against the Respondent; and (4) providing the parties with the same opportunities to have others present during any proceeding under the Grievance Process, including the opportunity to be accompanied to any related meeting or proceeding by the advisor of their choice, who may be, but is not required to be, an attorney.6
No Conflicts of Interest. The Grievance Process requires the Title IX Coordinator, investigator, decision-maker, and facilitator of an Informal Resolution process be free of conflicts of interest or bias against a party.
Presumption of Non-Responsibility; Standard of Evidence. There will be a presumption that the Respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the Grievance Process. The standard of evidence under the Grievance Process shall be a preponderance of the evidence.
Objectivity. Credibility determinations may not be based on a person's status as a Complainant, Respondent, or witness. University shall require an objective evaluation of all relevant evidence, both inculpatory and exculpatory. University, Complainant, Respondent, Title IX Coordinator, investigator, decision-maker, or facilitator of an Informal Resolution process cannot require, allow, rely upon, or otherwise 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 and the Recipient has obtained that party's voluntary, written consent to do so for the Grievance Process under this policy.
Timeframe. The process for addressing a Formal Complaint under the Grievance Process will be concluded within the reasonably prompt timeframe of ninety (90) days. Notwithstanding the foregoing, there may be certain circumstances that allow for limited extensions of this timeframe for good cause. For such extensions of time or delays, there must be written notice to both the Complainant and Respondent of the delay or extension and the reasons for the action. A Grievance Process that exceeds ninety (90) days, shall be reviewed by University. Justification for the extended or delayed investigation must be documented. Complainant, Respondent, and other persons deemed appropriate by University will be provided an update on the progress of the Grievance Process after the review. The running of the ninety (90) day timeframe described in this subsection shall be tolled for any period in which the parties attempt to reach an agreement under the Informal Resolution Process under Section 10.h, below.
Notices. University will provide notices as required, including but not limited to:
Initial Notice to Respondent. University shall provide written notice to Respondent upon receipt of a Formal Complaint with sufficient time for the Respondent to prepare a response before any initial interview. Such notice shall include notice of this Grievance Process, including University's Information Resolution process, and the allegations, the conduct allegedly constituting Title IX Sexual Misconduct, and any sufficient details known at the time.
Supplemental Notice to Respondent. If additional allegations are later included within the scope of the investigation under this Grievance Process, supplemental notice of such allegations shall be provided at that time.
Notice to All Parties. University shall provide, to a party whose participation is invited or expected, written notice of the date, time, location, participants, and purpose of all hearings, investigative interviews, or other meetings, with sufficient time for the party to prepare to participate.
Supportive Measures. University shall offer Supportive Measures as defined in Section 4.n. Supportive measures may include changes in class schedule, housing, work location, or transportation options if requested and reasonably available.
Prehearing Investigation. University shall investigate allegations made in a Formal Complaint in accordance with this Grievance Process.
The burden of proof and burden of gathering evidence sufficient to reach a determination regarding responsibility shall be on the University and not on the parties.
University cannot obtain information that is protected by a legally recognized privilege without the party's voluntary written waiver in the form of written consent.
University shall not access, consider, disclose, or otherwise use a party's records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional's or paraprofessional's capacity, or assisting in that capacity, and which are made and maintained in connection with the provision of treatment to the party, unless the recipient obtains that party's voluntary, written consent.
University shall provide an equal opportunity for the parties to present witnesses and evidence, including fact and expert witnesses, and other inculpatory and exculpatory evidence during the prehearing investigation.
University shall not restrict either party from discussing the allegations or from gathering evidence.
Inspection and Review of Relevant Evidence.
Prior to the completion of an Investigative Report, University shall provide both parties with an equal opportunity to inspect and review any evidence obtained as part of the prehearing investigation that is directly related to the allegations raised in a Formal Complaint.
University shall send to each party and the party's advisor, if any, the evidence subject to inspection and review in an electronic format or a hard copy, and the parties shall have at least 10 days to submit a written response, which the investigator will consider prior to the completion of an Investigative Report.
Investigative Report. Upon completion of the investigation, University shall create an Investigative Report that fairly summarizes the relevant evidence. University shall send to each party and the party's advisor, if any, the Investigative Report in an electronic format or hard copy, for their review and written response, at least 10 days prior to the hearing, if a hearing is required under this policy or otherwise provided.
The University shall conduct an individualized safety and risk analysis to determine if an individual poses an immediate threat to the physical health or safety of any student or other individual arising from the allegations of Title IX Sexual Misconduct that justifies removal.
Where the University finds that a Respondent poses an immediate threat to the physical health or safety of any student or individual, the University may remove the Respondent prior to the conclusion of the Grievance Process to protect the safety of the University Community where an immediate threat exists.8
The University shall provide the Respondent with notice and an immediate opportunity to challenge the decision in writing to the Title IX Coordinator immediately following the emergency removal.
Informal Resolution Process.
The Informal Resolution Process presents an alternative to the Grievance Process. After the parties have been provided written notice of a Formal Complaint, the University may offer and facilitate the Informal Resolution Process, which may include, but is not limited to, arbitration, mediation, and restorative justice. At any time prior to reaching a determination regarding responsibility, the University may begin the Informal Resolution Process by obtaining the parties' voluntary, written consent to use this Informal Resolution Process. Notwithstanding the foregoing, the Informal Resolution Process must never be offered to resolve allegations that a University Employee sexually harassed a student.
The University may never require any person to participate in the Informal Resolution Process and may never condition enrollment, employment, or enjoyment of any other right or privilege upon agreeing to the Informal Resolution Process. Any party may withdraw from the Informal Resolution Process at any time prior to agreeing to a resolution and resume the Grievance Process with respect to the Formal Complaint.
Live Hearing. If the Formal Complaint is not dismissed or resolved by Informal Resolution, then the Formal Complaint shall proceed to a live hearing. The live hearing will be conducted in accordance with the procedure set forth in Attachment 2.
Written Determination Regarding Responsibility.
After a live hearing, the hearing panel, with assistance from the hearing officer, will issue a written determination regarding responsibility that will include: (1) identification of the allegations potentially constituting Title IX Sexual Misconduct; (2) a description of the procedural steps taken throughout the Grievance Process; (3) findings of fact supporting the determination of responsibility; (4) conclusions regarding the application of the University's applicable conduct policy to the facts of the alleged conduct; (5) a statement of and rationale for the result as to each allegation, including a determination regarding responsibility, any disciplinary sanctions imposed on the Respondent, and whether remedies designed to restore or preserve equal access to the University's Education Program or Activity will be provided by the University to the Complainant; (6) a statement that the University's procedures are permissible bases for the Complainant and Respondent to appeal; and (7) a statement that the determination may be appealed by the parties pursuant to this policy and information on how to file such appeal.
The written determination regarding responsibility becomes final when the time period to file an appeal has expired or when the written appeal decision has been sent to the parties.
Grounds for Appeal. The parties can appeal a determination regarding responsibility or the University's dismissal of a Formal Complaint or any allegations therein on the following grounds:
A procedural irregularity that affected the outcome of the matter;
New evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made, that could affect the outcome of the matter; or
The Title IX Coordinator, investigator(s), or decision-maker(s) 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
Filing by Appealing Party. The appeal process is initiated upon a party's filing of a written appeal within three (3) University business days after University's delivery of the written decision regarding responsibility. The written appeal must be filed with the University's Title IX Coordinator, as directed in the written determination regarding responsibility, and the party's written appeal must set forth the grounds for the appeal and any supporting information.
Response of Non-Appealing Party. Upon the filing of a written appeal, University will give written notice of the filed appeal to the non-appealing party. The non-appealing party will have three (3) University business days after University's delivery of the written notice to respond to the appeal.
Appeal Officer. The appropriate Vice President or Provost will serve as the appeal officer, so long as they are not the same person as the decision-maker(s). The Vice President (or Provost) serving as the appeal officer will consult with the Vice President for Student Affairs throughout the process, who in their Title IX oversight role will be able to provide consistent guidance on the appeals process.
Response of Original Decision-Maker. The appeal officer may submit the written appeal and non-appealing party's response to the original decision-maker(s), and such original decision-maker(s) may submit its response in support of the appeal or original decision to the appeal officer.
Review of Appeal. The appeal officer will first review the appeal to determine if the appeal is timely and properly sets forth the appropriate grounds for appeal, with adequate accompanying evidence. If any of these requirements are not met, the appeal will be dismissed, and the decision will be final. If these preliminary requirements are met, the appeal officer will then review the substance of the appeal and make a final determination.
Written Decision and Notice. Within five (5) University business days of the non-appealing party's deadline to submit a response to the filed appeal, the appeal officer will issue a written decision describing the result of the appeal and the rationale for the result. The appeal officer will provide the written decision simultaneously to both parties. The written decision of the appeal officer is final and may not be appealed.
The range of possible disciplinary sanctions and remedies following a determination of responsibility under the Grievance Process are set forth in this Section
Sanctions for students: Students found responsible for non-consensual sexual intercourse face a recommended sanction of university suspension or university expulsion. Refer to the Code of Student Conduct, Section 8: Conduct Procedures, for a full list of conduct sanctions available at the University.
Sanctions for Employees: Sexual misconduct is a serious offense and such violations are subject to any combination of sanctions, up to and including termination of employment. Refer to the following university polices governing faculty and staff disciplinary procedures:
Faculty: University Policy 3.125, Faculty Due Process
Staff: University Policy 3.228, Staff Employee Disciplinary Procedures
Retaliation and False Information
Retaliation. Retaliation against an individual who reports a potential violation in good faith under this policy, assists someone with a report of a violation or participates or refuses to participate in any manner in an investigation or in the resolution of a complaint made under this policy is strictly prohibited and will not be tolerated. Retaliation includes, but is not limited to threats, intimidation, coercion, discrimination, reprisals, or adverse actions related to an individual's employment or education. The University will take appropriate steps to ensure that an individual who, in good faith, reports, complains about, or participates or refuses to participate in an investigation, proceeding, hearing, or other resolution pursuant to this policy will not be subjected to retaliation. Individuals who believe they are experiencing retaliation are strongly encouraged to lodge a complaint with the University using the same procedure outlined in this policy.
Subsection (a) does not apply to an Employee who:
Reports an incident of Title IX Sexual Misconduct perpetrated by the Employee;
Cooperates with an investigation, a disciplinary process, or a judicial proceeding relating to an allegation that the Employee perpetrated an incident of Title IX Sexual Misconduct; or
Makes a report of Title IX Sexual Misconduct which after investigation is found not to have been made in good faith.
Individuals who are found to have retaliated under this policy will be subject to disciplinary action, up to and including termination of employment, expulsion from the University, or being barred from the University premises and events.
False Information. An individual found to have knowingly and in bad faith provided false or malicious information may be subject to disciplinary action up to an including dismissal or separation from the University. A determination that a Respondent is not responsible for allegations of Title IX Sexual Misconduct does not imply information provided was false. Similarly, a determination that a Respondent is responsible for a policy violation does not imply that a Respondent's statements disclaiming responsibility were false.
The protections provided by this Section apply to:
An individual who sought guidance from the University concerning an incident;
An individual who participated in the University's investigation of an incident; or
Respondent, if after completing an investigation, the University determines the report to be unsubstantiated or without merit.
Unless waived in writing by the individual, the identity of an individual described by Subsection (a):
Is confidential and not subject to disclosure under Chapter 552, Government Code; and
May be disclosed only to: (1) University Employees or individuals under contract with the University to which the report is made who are necessary for an investigation of the report or other related hearings; (2) a law enforcement officer as necessary to conduct a criminal investigation of the report by individuals described by Subsection (a); (3) a health care provider in an emergency, as determined necessary by the University; (4) the Respondent, to the extent required by other law or regulation; and (5) potential witnesses to the incident as necessary to conduct an investigation of the report and to the extent required by other law or regulation.
For the purposes of this Section, investigation includes the coordination of the incident response, implementation of interim measures, adjudication of the report, disciplinary action or administrative response to the report, and disclosure by the University as required under state or federal law or regulation.
The willful and unnecessary disclosure of confidential information by anyone, including the Complainant or Respondent, may affect the integrity of the investigation.
Students may make confidential reports to the University Student Counseling Centers, where available, or to other counselors identified by the University. Likewise, Employees may make confidential reports through the Employee Assistance Program. All Complaining Parties may also make confidential reports to local rape crisis centers or to other licensed clinical and/or mental health professionals acting in their professional role of providing those services, including medical providers employed by the University. Information may be shared by the clinical and/or medical provider only with the Complainant's or Respondent's consent.
Cooperation and Non-Interference with the Grievance Process
Cooperation by University Employees. All University Employees who are not a Complainant or Respondent are required to comply with the Supportive Measures or information requests, as directed or requested by the University Title IX Coordinator.
Non-Interference. Any individual who knowingly and intentionally interferes with a Grievance Process conducted under this policy is subject to disciplinary action up to and including dismissal or separation from the University. Interference with a Grievance Process may include, but is not limited to: (i) attempting to coerce, compel, influence, or prevent an individual from providing testimony or relevant information; (ii) divulging confidential information; (iii) removing, destroying, or altering documentation relevant to the investigation; (iv) providing false or misleading information to the investigator, or encouraging others to do so; or (v) making a report under this regulation that, after investigation, is found not to have been made in good faith.
Training and Education
The University's commitment to preventing and raising awareness of the harm resulting from the conduct prohibited in this policy includes providing primary prevention and awareness programs for all incoming students and new Employees, ongoing education to both Employees and students, and emailing information regarding this policy to students at the beginning of each academic semester. This policy is published on the University's website and information regarding this policy and related policies is required in orientation materials for new students, faculty, and staff. All Employees must attend equal employment opportunity non-discrimination and sex/gender discrimination training including sexual assault, sexual harassment, and campus crime mandated reporter training within the first thirty (30) days of employment and receive supplemental training every two (2) years. Other appropriate compliance training sessions will also be conducted on an ongoing basis. Training sessions will include information on how and where to report incidents of prohibited conduct, resources available, as well as risk reduction and safe and positive options for bystander intervention. In addition, the University Employees and administrators responsible for implementing this policy, including the University Title IX Coordinators, Title IX Deputy Coordinators, investigators, and hearing officers, receive training about offenses, investigatory procedures, due process requirements, impartiality, conflicts of interest, informal resolution processes, and University policies related to or described in this policy.
Notwithstanding the foregoing, Title IX Coordinators, Grievance Process investigators and decision-makers, and facilitator of an Informal Resolution process shall receive adequate and unbiased training on:
The application of this policy; and
The Grievance Process, including, where appropriate, conduction of hearings, use of technology, and making relevancy determinations.
All materials used to train University Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process are publicly available on the University's Title IX websites:
The University will create, make available to the Complainant and Respondent, and maintain for a period of seven (7) years the following records:
The Title IX Sexual Misconduct investigation, including any determination regarding responsibility, disciplinary sanctions imposed on the respondent, and remedies provided to the Complainant;
Any appeal and the result therefrom;
Informal Resolution, if any; and
All materials used to train coordinators, investigators, decision-makers with regard to Title IX Sexual Misconduct.
The University will also create and maintain for a period of seven (7) years records of any actions, including any supportive measures, taken in response to a report or Formal Complaint of Title IX Sexual Misconduct. In each instance, the University will document the basis for its conclusion that its response was not clearly unreasonable, and document that it has taken measures designed to restore or preserve access to the University's Education Program or Activity.
University Referencing Operating Policies
See the following for University Operating Policies and Procedures (OP):
The University maintains websites that provide comprehensive information about this policy, its procedures, Title IX, available resources, remedial support options, local support services, and illustrative examples of definitions contained herein.
Midwestern State University reserves the right to interpret, change, modify, amend, or rescind this policy, in whole or in part, at any time without notice to or consent of its Employees or other members of the University Community.
MSU Policy 3.347A (Sexual Harassment) is adopted by the Board of Regents.
MSU Policy 3.347A (Sexual Harassment) is renumbered by the Board of Regents following a comprehensive review of the Policies and Procedures Manual; it is now Policy 4.161.
Necessary changes are made only in wording according to the transition from divisions to colleges (division director changed to dean or chair, division changed to college or program, coordinator to chair, etc.).
The policy is revised and renamed: MSU Policy 4.161 (Sex Discrimination and Sexual Harassment)
Edited for clarity
Added paragraph 1 to definition: 1. Sex discrimination is defined as conduct directed at a specific individual or group of identifiable individuals that subjects the individual or group to treatment that adversely affects their employment or education on account of sex
Added "Sexual harassment is a form of sex discrimination"
Paragraph D renamed paragraph C
Paragraph D renamed Informal Disposition of Complaint
-added more paragraphs to this section labeled 2-7
added paragraph E. Formal Disposition of Complaint
added paragraph F. Right of Appeal
added paragraph G. Disposition of Hearing Committee's Decision
deleted previous paragraphs F. Acceptance of Hearing Committee's report and G. Right of Appeal
Added to beginning of paragraph on monitoring, "A copy of a sexual harassment/discrimination complaint and a report on the final disposition to remedy the complaint will be filed with the EEO coordinator"
A Formal Complaint may be filed with the Title IX Coordinator in person, by mail, by electronic mail, or by any additional method designated by the University. Contact information for University Title IX Coordinators is set forth in Section 5 of this policy. Links to each University's Title IX website are provided in Section 20 of this policy.
Sexual Assault. 20 U.S.C. 1092(f)(6)(A)(v) currently defines Sexual Assault as "an offense classified as a forcible or nonforcible sex offense under the uniform crime reporting system of the Federal Bureau of Investigation (FBI)" (20 U.S.C. 1092(f)(6)(A)(v), which is presently described by the FBI's Uniform Crime Reporting Program (UCR) National Incident-Based Reporting System (NIBRS) to include:
Forcible Sex Offense. Any sexual act directed against another person, without the consent of the victim including instances where the victim is incapable of giving consent.
Rape (Except Statutory Rape). The carnal knowledge of a person, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity.
Sodomy. Oral or anal sexual intercourse with another person, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity.
Sexual Assault with An Object. To use an object or instrument to unlawfully penetrate, however slightly, the genital or anal opening of the body of another person, without consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity.
Fondling. The touching of the private body parts of another person for the purpose of sexual gratification, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity.
Nonforcible Sex Offense. Unlawful, nonforcible sexual intercourse.
Incest. Nonforcible sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.
Statutory Rape. Nonforcible sexual intercourse with a person who is under the statutory age of consent.
Dating Violence. 34 U.S.C. 12291(a)(10) currently provides "the term ‘Dating Violence' means violence committed by a person
Who is or has been in a social relationship of a romantic or intimate nature with the victim; and
where the existence of such a relationship shall be determined based on a consideration of the following factors:
The length of the relationship.
The type of relationship.
The frequency of interaction between the persons involved in the relationship."
Domestic Violence. 34 U.S.C. 12291(a)(10) currently provides "the term 'Domestic Violence' includes felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction receiving grant monies, or by any other person against an adult or youth victim who is protected from that person's acts under the domestic or family violence laws of the jurisdiction."
Stalking. 34 U.S.C. 12291(a)(10) currently provides "the term 'Stalking' means engaging in a course of conduct directed at a specific person that would cause a reasonable person to:
Fear for his or her safety or the safety of others; or
Suffer substantial emotional distress."
University may not limit the choice or presence of advisor for either the Complainant or the Respondent; however, University may establish restrictions equally to both parties regarding the extent to which advisors may participate in the proceedings.
Details may include, for example, the identity of the parties involved in the incident (if known), and the date and location of the alleged incident (if known).
Emergency Removal may also take place in the instance where no Grievance Process is pending.