Resolution Processes for Sexual Misconduct Allegations

The University will seek to complete the appropriate resolution process as promptly as possible, consistent with the need to conduct sensitive and informed fact-gathering to ensure an equitable and unbiased resolution. This Policy designates reasonably prompt timeframes for the major stages of the investigation and resolution process (typically set forth in business days), but the University may extend any timeframe in this Policy for good cause. An extension may be required for good cause to ensure the integrity and thoroughness of the investigation; to comply with a request by law enforcement; in response to the unavailability of the parties or witnesses; or for other legitimate reasons, such as intervening breaks in the University calendar, University finals periods, the complexity of the investigation, the volume of information, number of witnesses, length of the written record, and/or the severity and extent of the alleged misconduct.

While requests for delays by the parties may be considered, the University cannot unduly or unreasonably delay the prompt resolution of a report under this Policy. Reasonable requests for delays by the parties may serve to extend the time period for resolution of the report. The Title IX Coordinator has the authority to determine whether an extension is required or warranted by the circumstances. The University will notify the parties in writing of any extension of the timeframes for good cause, the reason for the extension and the length of the extension.

Each party has the right to consult with an advisor of their choosing. Except as noted below under the Title IX Grievance Process, the advisor may be any person, including an attorney, who is not otherwise a party or witness involved in the investigation or whose role in the process does not otherwise create a conflict of interest. The parties may be accompanied by their respective advisor at any meeting or proceeding related to the resolution of a report under this Policy. While the advisor may provide support and advice to the parties at any meeting and/or proceeding, they may not speak on behalf of the parties or otherwise participate in, or in any manner delay, disrupt or interfere with meetings and/or proceedings, except as to the advisor’s right to conduct cross-examination during a hearing held under the Title IX Grievance Process. The University will not unduly delay the scheduling of meetings or proceedings based on an advisor’s unavailability. An advisor may be asked to meet with the Title IX Coordinator in advance of any proceedings to understand the expectations of the role, privacy considerations, and appropriate decorum.

Under a Title IX Grievance Process, the following provisions also apply:

• An advisor of choice may be any person the Complainant or Respondent choose, including an individual who is otherwise involved in the incident(s) or resolution process.
• As detailed below, the advisor may ask relevant questions of the other party and/or any witnesses for the purposes of cross-examination during the hearing.

The Title IX Coordinator is responsible for an Initial Review of disclosures and/or reports of potential violations of the Title IX and Sexual Misconduct Policy. The goal of this Initial Review is to provide an integrated and coordinated response to reports of sexual misconduct. The Initial Review will consider the nature of the report, the safety of the individual and of the campus community, and the Complainant’s expressed preference for resolution. The Initial Review will proceed to the point where a reasonable assessment of the safety of all involved parties and the community can be made.

In order to protect the safety of the campus community, the Title IX Coordinator may need to proceed with an investigation even if a Complainant specifically requests that the matter not be pursued. The Title IX Coordinator may also initiate an investigation of potential violations of this Policy even absent a formal report or identified Complainant or Respondent and even if a report has been withdrawn. In such a circumstance, the Title IX Coordinator will take into account the Complainant’s articulated concerns, the safety of the campus community, fairness to all individuals involved, and the University’s obligations under Title IX. The Title IX Coordinator will balance the Complainant’s request against the following factors in reaching a determination on whether the request can be honored:

• The totality of the known circumstances;
• Whether the Respondent has a history of violent behavior or is a repeat offender;
• Whether the incident represents escalation in unlawful conduct on behalf of the Respondent from previously noted behavior;
• The increased risk that the Respondent will commit additional acts of violence;
• Whether the Respondent used a weapon or force;
• Whether the Complainant is a minor;
• Whether the University possesses other means to obtain relevant evidence such as security footage;
• Whether available information reveals a pattern of perpetration at a given location or by a particular group;
• Fairness considerations for both the Complainant and the Respondent;
• The University's obligation to provide a safe and non-discriminatory environment;
• Any other available and relevant information.

Based upon the Title IX Coordinator’s Initial Review, the University will proceed with one of the following options:

1. Proceed under the Title IX Grievance Process. This process requires a Formal Complaint, as noted above, alleging Title IX Sexual Harassment within the University’s education program or activity and requesting initiation of the procedures consistent with the Title IX Grievance Process to investigate and adjudicate the allegations. A Complainant must file the Formal Complaint with the Title IX Coordinator.
2. Proceed under the Disciplinary Resolution This process addresses all alleged Sexual Misconduct that does not fall within the definition of Title IX Sexual Harassment and is therefore not subject to the Title IX Grievance Process. This process will occur when a Complainant requests an investigation of the alleged Sexual Misconduct, where the Title IX Coordinator determines to proceed with an investigation even when a Complainant requests that no investigation be pursued, or where an Informal Resolution is not appropriate or available.
3. Proceed with Informal Resolution (available only under certain conditions). This will always require the consent of the Complainant. The consent of the Respondent is also required when the form of resolution involves the Respondent.
4. If outside the scope of this Policy, refer the matter to another appropriate office or department for resolution under the relevant policy.
1. In the event that a report alleges violations of both the St. John Fisher Code of Conduct and this Policy (in accordance with amnesty for alcohol and drug use as specified in this Policy), the allegations will be separated and documentation will be appropriately redacted to preserve the privacy of individuals involved. The charges relevant to the Code of Conduct will be referred to the Student Conduct or Office or Human Resources for resolution.
5. If the Complainant expresses a preference to share information, but not pursue any further action at this time, and there is no immediate or continuing threat to an individual or the campus community, the disclosure will be documented with the Title IX Coordinator only.

In certain instances, the University must dismiss a Formal Complaint and not proceed further with a Title IX Grievance Process. In other instances, the University has the discretion to dismiss a Formal Complaint or any of its allegations, but is not required to do so. In the event that the University dismisses a Formal Complaint, it still retains the right to take all appropriate actions under this Policy’s Disciplinary Resolution Process or an Informal Resolution, as well as may be appropriate under any other code of conduct or policy.

Mandatory Dismissal of a Formal Complaint

The University must dismiss a Formal Complaint and must not proceed further with a Title IX Grievance Process when (i) the alleged conduct would not constitute Title IX Sexual Harassment (as defined above), even if proved, (ii) did not occur in the University’s education program or activity, or (iii) did not occur against a person in the United States.

Permissive Dismissal of a Formal Complaint

The University may dismiss a Formal Complaint, but is not required to do so, if at any time during the investigation or hearing under the Title IX Grievance Process: (i) the Complainant notifies the Title IX Coordinator in writing that the Complainant would like to withdraw the Formal Complaint or any of its allegations, (ii) the Respondent is no longer enrolled at the University or a University employee, or (iii) specific circumstances prevent the University from gathering evidence sufficient to reach a determination as to the Formal Complaint or its allegations.

Right to Appeal the Dismissal of a Formal Complaint

Both parties will receive written notice of the dismissal of a Formal Complaint and decision not to proceed further with a Title IX Grievance Process, which will state the University’s reasons for the action. Either party may appeal the dismissal of a Formal Complaint. Within five (5) business days after the written notice of the dismissal, an appeal must be submitted in writing to the Vice President of Student Affairs and Dean of Students, Campus Center 206, or mthornton@sjf.edu in cases involving a student Respondent.  In any case involving an Employee respondent, the appeal must be submitted to the Assistant Vice President of Human Resources or Provost, as designated by the Title IX Coordinator.

The limited grounds for an appeal of the dismissal of a Formal Complaint are as follows:

• A procedural irregularity affected the outcome of the dismissal determination;
• New evidence that was not reasonably available at the time of the dismissal determination that could have affected its outcome;
• The Title IX Coordinator or the person who made the dismissal determination had a conflict of interest or bias against an individual party, or for or against complainants or respondents in general, that affected the outcome.

If all parties voluntarily agree in writing to participate in an Informal Resolution that does not involve a full investigation and adjudication after receiving full disclosure of the allegations and their options under a Title IX Grievance Process or a Disciplinary Resolution Process and if the University determines that the particular Title IX complaint is appropriate for such a process, the University may facilitate an Informal Resolution, including mediation, to assist the parties in reaching a voluntary resolution. Before the parties agree to participate in an Informal Resolution, the University shall inform them in writing of the extent of confidentiality parameters that will apply to the process and whether any statements or evidence discussed or exchanged during the process may be used in either a Title IX Grievance Process or Disciplinary Resolution Process. Upon its completion, the result of an Informal Resolution may not be appealed by either party. An Informal Resolution is available any time up to a final decision under a Title IX Grievance Process or a Disciplinary Resolution Process.

Additionally, in an Informal Resolution of matters addressing Title IX Sexual Harassment, the following provisions also apply:

• An Informal Resolution will not be required as a condition of continued enrollment, or participation in a University program or activity. 
• An Informal Resolution may not occur unless a Formal Complaint has been filed. 
• Completing an Informal Resolution precludes the parties from resuming a Title IX Grievance Process arising from the same allegations. However, any time prior to agreeing to a resolution, any party may withdraw from the Informal Resolution and resume the Title IX Grievance Process.
• Informal Resolutions are not permitted to resolve a Formal Complaint alleging sexual harassment of a student by a University employee.

For Formal Complaints alleging Title IX Sexual Harassment, the University will proceed under the Title IX Grievance Process, consistent with the requirements of the Department of Education’s Title IX Rule. If any provision in this Policy may be deemed to be inconsistent with the Title IX Rule, the Title IX Rule’s requirements supersede and control the application of the University’s Title IX Grievance Process. For all other matters not subject to the Title IX Grievance Process and involving alleged Prohibited Conduct under this Policy, the University will proceed under its Disciplinary Resolution Process.

The processes are substantially similar in many respects and involve a notice of allegations, investigation, adjudication through a hearing, and a right to an appeal. Specific differences between the two processes are noted within each section of the investigation, hearing, and relevant procedures. 

This website provides an abbreviated overview of the University's Sexual Misconduct Resolution processes. For full details, refer to the Sexual Misconduct Policy (left). 

Throughout their participation and responsibilities in either process, the Title IX Coordinator, the investigator, decision-makers, or any person designated to facilitate an Informal Resolution, may not have a conflict of interest or bias for or against Complainants or Respondents generally or an individual Complainant or Respondent. The Respondent is presumed to be not responsible for the alleged conduct until a determination of responsibility is made at the conclusion of the process.

A Disciplinary Resolution includes formal procedures that involve an investigation, adjudication and, if appropriate, the imposition of sanctions.

This is an overview of the components of the Sexual Misconduct Committee Hearing process. For complete details of the, refer to the Sexual Misconduct Policy [pdf].

Investigation

Under the Title IX Grievance Process or the Disciplinary Resolution Process, the University will conduct a prompt and equitable investigation to gather relevant information to the determination, by a preponderance of the evidence, whether Prohibited Conduct occurred. The investigation will be impartial and will be conducted by trained individuals who have no actual bias or conflict of interest against any party or against Complainants or Respondents generally.

The burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility rest with the University, not the Complainant and Respondent. The University cannot 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 to the party, unless the University obtains that party’s voluntary, write consent to do so.

The Title IX Coordinator has the discretion to consolidate multiple reports into a single investigation if evidence relevant to one incident is relevant to the others. Consolidation might involve multiple Complainants and a single Respondent, multiple Respondents, or conduct that is temporally or logically connected.

In the investigation process, a Complainant and Respondent should expect that:

• The investigation will be prompt, thorough, and equitable.
• The investigation will include interviews with all reasonably available involved parties, including witnesses and other persons with first-hand knowledge.
• The Complainant and Respondent will have the opportunity to ask questions of each other and witnesses (“cross-examine”) via the investigators.
• The Complainant and Respondent shall have an equal opportunity to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence.
• There will be a complete review of any related, relevant documents.
• The disclosure of facts to parties and witnesses will be limited to what is reasonably necessary to conduct a fair and thorough investigation.
• Participants in the investigation will be advised of the importance of maintaining privacy throughout the process, but the University shall not restrict the ability of each party to discuss the allegations under investigation or to gather or present relevant evidence.
• At any time during the investigation, the investigator will make recommendations to appropriate University officials for Supportive Measures for the Complainant, Respondent, and/or witnesses.
• An investigation will result in a written report that, at a minimum, includes a statement of the allegations, the issues, and a summary of the information being forwarded to the Title IX Coordinator.
• The University will inform the parties at regular intervals of the status or progress of the process.

Review of Case Materials

When the investigation is complete, the investigator(s) complete a Report of Investigation for the Title IX Coordinator. Upon receipt of the report, the Title IX Coordinator with notify the Respondent and the Complainant of the conclusion of the Investigation phase and their right to review the entirety of the case file (subject to appropriate redaction, including as permitted and/or required by law) and review and comment on their respective statements and evidence prior to the hearing. Following the opportunity for review and comment, the Title IX Coordinator forwards the case to a Sexual Misconduct Committee Hearing and initiates scheduling and notifications of a Sexual Misconduct Committee Hearing.

During an Investigation under the Title IX Grievance Process, the following provisions also apply:

• Prior to the completion of the Investigation Report, the University will send to each party and the party’s advisor, if any, the evidence subject to review in a watermarked electronic or hard copy format.
• Parties have ten (10) business days to submit a written response, which the investigator(s) will consider prior to completion of the Investigation Report.
• Following receipt and consideration of written responses, the investigator(s) will finalize the report and it will be sent to the parties. Parties will have at least ten (10) business days to review the report before the hearing.

Sexual Misconduct Committee Hearing

A Sexual Misconduct Committee Hearing (hereafter referred to as the “Hearing”) takes place between the Respondent, Complainant, the Sexual Misconduct Hearing Committee (hereafter referred to as the “Committee”) and any witnesses with first-hand knowledge of the relevant facts. Hearings are private and closed to everyone except the involved persons. At their discretion, the Committee chair may request that a representative from the Department of Safety and Security be present throughout the hearing as well to ensure the safety of the proceedings and participants.

Barring unusual or exigent circumstances, the Complainant and Respondent will be served the appearance letter at least five (5) business days prior to the hearing date.  Both parties will be served the appearance letter through their University email address. It is the responsibility of the parties involved to check their University email address for this and all official communication from the University.

Procedure for Determining Responsibility

The Complainant and Respondent will receive simultaneous written notification of the outcome of the Hearing which will include the allegations potentially constituting Prohibited Conduct, a description of the procedural steps taken during the process, the factual findings supporting the determination, the rationale and conclusions applying the provisions of this Policy to the facts, the sanction(s) if applicable. The parties will also be notified of their right to appeal and the process for completing an appeal in the written notice of outcome. In cases hearing under a Disciplinary Process Resolution, sanctions assigned will be effective immediately.

In order to determine responsibility regarding any alleged violations, the Committee reviews all relevant information (inculpatory and exculpatory) presented through the investigation and hearing processes. The Committee does not consider a Respondent’s previous findings of responsibility when determining responsibility in the current matter. The determination of responsibility for a violation of this Policy and/or the student code of conduct will be made if in the judgment of the Committee that the conduct was more likely than not to have occurred (“the preponderance of the evidence” standard of proof).

Potential Outcomes

When there is a finding of responsibility, University sanctions will be assigned. For students, these may include, but are not limited to: written warnings, disciplinary probation, suspension, expulsion, as well as educational assignments and referrals. The complete list of University sanctions applicable to students is listed on the Student Code of Conduct website. 

If the Hearing results in suspension, the student may not re-enroll at the University for a prescribed period of time. Before re-enrollment at the University, the student will need to meet with the Title IX Coordinator to discuss the student’s progress in completing any assigned sanctions associated with the suspension and eligibility to resume enrollment at St. John Fisher University. Upon any re-enrollment, the student will be placed on Disciplinary Probation for the remainder of the academic career. The student’s transcript will reflect “W” (withdrawn) for all courses in which the student was enrolled for the semester. Tuition, room and board charges, as applicable, will be prorated based on the University Refund Policy. The date used to determine any refund is the date of this finding or the date of any interim action related to this finding, whichever date is earlier. Persons suspended from the University are considered to be Persona Non Grata (PNG) from the University until any successful re-enrollment at the University.

Disciplinary action and sanctions for staff employees and faculty members will be determined by the Assistant Vice President of Human Resources and/or the employee’s manager and/or higher administration, in accordance with the University’s existing employment practices.  Sanctions against a faculty member are subject to the Faculty Statutes as applicable.

Under the Title IX Grievance Process and the Disciplinary Resolution Process, both parties have the right to one level of appeal. Requests for an appeal should be made by completing an Appeal Request Form. The Appeal Request Form must be received within five (5) business days of the receipt of the written notification of outcome letter.

When requesting an appeal, the appealing party must demonstrate in writing that one or more of the following applies to their situation:

• Procedural irregularity that affected the outcome of the matter (i.e. University’s failure to follow its procedures);
• 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;
• The Title IX Coordinator, the investigator(s) or decision-maker(s) had a conflict of interest or bias against for or against an individual party, or for or against Complainants or Respondents in general, that affected the outcome of the matter; or
• The sanction imposed was not in keeping with the gravity of the violation

Both parties are notified when an appeal is requested, and notified again within five (5) business days if the appeal request has been granted. At the time of the request, both parties have seven (7) business days the opportunity to review and respond to the request. 

An impartial review panel, free from conflicts of interest, reviews the Appeal Request Form. The Appeal Panel will can dismiss the appeal for failing to state a grounds for appeal, affirm the original findings, amend the original sanctions, send the case back to the Hearing Committee, or convene a new Hearing Committee. In cases where sanction(s) are amended or rejected, a rationale will be specified. The Respondent and Complainant will be notified simultaneously of the written outcome of the appeal request within five (5) business days. The review panel does not rehear cases.

For those crimes of violence, as defined by the Clery Act, that St. John Fisher University is required by federal law to include in its Annual Security Report, the transcripts of students found responsible after a hearing and appeal, if any, shall include the following notation:

• "Suspended after a finding of responsibility for a code of conduct violation"
• "Expelled after a finding responsibility for a code of conduct violation"

Additionally, the transcript of any student who withdraws from the University following the receipt of a notice of investigation and declines to complete the disciplinary process shall include the following notation:

• "Withdrew with conduct charges pending"

Transcript Notation Review Process

When a student is suspended from the University, a notation has been placed on their transcript and the student may request a review of the notation for removal.

To request a review, the student must submit a letter to the Title IX coordinator requesting the removal of the notation which also includes the following information:

• A personal statement detailing the student’s time away from the University and outlining both positive contributions the student has made to the community and personal growth.
• Two (2) character reference letters. (Letters from family members are not acceptable.)

The Title IX coordinator will review the request and may require additional information. Following a review of the request, the Title IX coordinator may subsequently require speaking to or meeting with the student regarding the request before making a decision.

If a notation is removed from a transcript this does not erase the student's conduct history; it modifies the student's transcript upon the request being granted. In no case shall the transcript notation for suspension be removed prior to one year after the conclusion of the suspension. Notations for expulsion shall not be removed from transcripts.