Investigation and Appeals

The Title IX Coordinator has the authority to investigate allegations of discrimination prohibited by Title IX even absent the filing of a formal complaint, lack of participation by the complainant, or in the event that a complaint is withdrawn. In addition, the Title IX Coordinator may proceed with investigating a formal or informal complaint even if a complainant specifically requests that the matter not be pursued, if it is determined that an investigation is necessary to comply with the university’s regulatory obligations. In such a circumstance, the Title IX Coordinator or designee will take all reasonable steps to investigate and respond to the matter in a manner that is informed by the complainant’s articulated concern about pursuing the matter further.

Individuals found to have engaged in sexual harassment, stalking, and/or sexual violence will be subject to disciplinary actions, which could include written warnings placed in the respondent’s personnel or student file, participation in appropriate education or counseling, no contact order, termination of employment or non-renewal of an employment contract, suspension or dismissal from academic programs, exclusion from university activities, and suspension or expulsion from the university.

Investigation Process
Appeals Process
Other Violations
Informal Resolution

Investigation Process

Investigation, as used in this procedure, refers to the process the university uses to resolve sexual harassment, stalking, and sexual violence complaints. This includes the fact-finding investigation and any hearing and decision-making process the two assigned investigators use to determine: (1) whether or not the conduct occurred, and (2) if the conduct occurred, what actions the university will take, which includes imposing disciplinary consequences on the respondent and providing remedies to the complainant.

A complainant is any person who alleges to be the victim of sex discrimination, including but not limited to any act of sexual violence.

A respondent is any individual who is alleged to have discriminated on the basis of sex as defined in this policy. The status of the respondent will determine which office will be assigned to investigate and adjudicate the complaint.

All university officials involved from the initial investigation to the completion of the process (i.e., investigators, adjudicators, appeals committee, etc.), have received, at minimum, an annual training on the issues related to dating violence, domestic violence, sexual assault, and stalking, and on how to conduct an investigation and hearing process that protects the safety of victims and promotes accountability. The proceedings will be conducted by officials who do not have a conflict of interest or bias for or against the complainant or the respondent. If the complainant or respondent believes any university official in the proceeding is not suited to perform their role because of bias or conflict of interest, he or she must notify the Title IX Coordinator within five calendar days of learning the identity of the official and his/her role.

Students

Where the respondent is a student, the Title IX Coordinator or the coordinator’s designee will assign two trained student affairs professionals to investigate and adjudicate. Students found to have engaged in sexual harassment, stalking, or sexual violence will be subject to judicial process in accordance with the Student Code of Conduct (undergraduate students) or the Student Standards of Conduct (graduate and professional students).

Upon conclusion of the investigation, if the assigned officers find that the respondent has committed a violation of the Sexual Harassment, Stalking, and Sexual Violence Policy, appropriate sanctions will be determined and administered in accordance with the student judicial process.

Employees

For any incident involving employee(s) as a respondent(s), the assigned investigators will gather all information necessary for the adjudicators to use to determine whether or not the conduct occurred.

Staff and Academic Administrator

Where the respondent is a staff member, the Title IX Coordinator or the coordinator’s designee will assign two individuals to investigate: one trained HR representative and one additional trained staff member.

Upon conclusion of the investigation, the investigation panel will submit its findings and recommend appropriate disciplinary action, if any, to the Vice President of Human Resources and the Dean or Vice President over the respondent who will then either accept, reject, or modify the recommended action, and implement them appropriately.

Faculty

Where the respondent is a faculty member, the Title IX Coordinator or the coordinator’s designee, in consultation with the Provost, will assign one trained Human Resources representative and two trained faculty to investigate.

Upon conclusion of the investigation, the investigators will submit their findings and recommend appropriate disciplinary action to the Title IX Coordinator, dean of the respondent’s school, and the dean of another school, which will vote to either accept, reject, or modify the recommended disciplinary actions. The dean of the respondent’s school will communicate any disciplinary action to the respondent.

Administrators

For any incident involving administrators (i.e., members of the Office of the President (OP), the President's Council (PC), the Academic Cabinet (AC), and the Administrative Cabinet (TAC)) as a respondent(s), the Title IX Coordinator may hire an external investigator(s) to conduct the investigation.

For All Incidents

The investigators shall interview the complainant, respondent, and pertinent witnesses, and review any relevant written or other documentary evidence to determine whether the preponderance of the evidence supports the allegations, and, where misconduct is found, recommend or implement, as set forth above, appropriate disciplinary action.

Support Person/Advisor

The complainant and the respondent are granted the same opportunities to have others present during an adjudication process. Both parties will have the opportunity to be accompanied to any meeting by a support person/advisor of their choice for incidents related to sexual violence, domestic or dating violence, or stalking. A support person/advisor means any individual who is not involved in the alleged incident (i.e., witness), who can provide the complainant or respondent support, guidance, or advice.

For incidents related to Violence Against Women's Act (VAWA) crimes, both parties will have the opportunity to be accompanied to any meeting by any advisor of their choice.
For incidents related to non Violence Against Women's Act (VAWA) crimes, (e.g., sexual harassment), both parties will have the opportunity to be accompanied to any meeting by a support person/advisor who is pre-approved by the investigators, in consultation with the Title IX Coordinator. In cases of alleged sexual harassment, the advisor of choice may not be an attorney.

The support person/advisor may not question witnesses, make statements before the conduct committee, or otherwise participate in proceedings. The support person/advisor who acts contrary to these standards may jeopardize the fact-finding process and will be required to leave the meeting.

Communication During the Investigation Process

In incidents related to sexual violence, domestic or dating violence, or stalking, both complainant and respondent will be given timely notification related to when investigators are meeting with the complainant or respondent, and timely access to the information used during any formal or informal disciplinary meetings (such information includes relevant university policies and procedures, and any documents that will be reviewed during the meetings).

Although the proceedings will ordinarily be completed within 60 days, as set forth in the university’s current Sexual Harassment, Stalking, and Sexual Violence Policy. However, with good cause, reasonable extensions of the time for completion of the proceedings will be permitted. In such cases, the complainant and respondent will be provided with written notice, by the appropriate university official, of the extension and the reason for the extension.

Standard of Evidence

The standard of evidence used in the investigation of sexual harassment, stalking, and sexual violence complaints, including domestic violence, dating violence, sexual assault, and stalking, will be the “preponderance of the evidence” standard, wherein the investigators are to determine whether it is more likely than not that the behavior in question occurred and constituted a violation of university policy.

Conclusion of the Adjudicating Process

At the conclusion of the investigation process, both complainant and respondent will be concurrently notified in writing of the determination and appeal procedures within 5 (five) business days from the date of completion of the investigation process. If the determination is that the respondent has engaged in the alleged sexual violence and/or other violations of university policy, the disciplinary consequences shall also be included in the written notice of the determination.

Appeals Process

This process applies to an appeal of a determination resulting from an investigation of a possible violation of the Sexual Harassment, Stalking, and Sexual Violence Policy. Both the complainant and the respondent may participate in the appeal process in sexual harassment, stalking, and sexual violence accountability procedures.

The complainant and respondent will have only one opportunity to appeal. All appeal meetings are closed and the proceeding may be kept confidential at the discretion of the university. Appeal meetings may be recorded at the discretion of the university with notice to those involved.

The appeal shall consist of one or more of the following exclusive grounds for appeal:

New Information – There is new and significant information that has not yet been considered. Information would be considered “new” if it were not available to the complainant or respondent prior to the conclusion of the investigation.
Sanctions – Sanctions imposed are either excessive or insufficient to the violation(s) relative to sanctions imposed for similar violations under similar facts and circumstances.
Procedural Irregularity – e.g., the complainant and/or the respondent did not receive adequate notice of the opportunity to be heard.

Title IX Appeals Procedures (PDF)

An individual wishing to appeal the sexual harassment, stalking, and sexual violence process must do so in writing to the person designated below:

Incidents Involving Undergraduate Students

Submit the written appeal to the Associate Vice President for Student Affairs/Chief Judicial Officer or designee.
Chair of the committee: The Associate Vice President for Student Affairs/Chief Judicial Officer or designee.
Composition of the appeal committee: The chair of the committee will preside as a nonvoting member. If practicable, the committee shall consist of a combination of faculty member(s) and staff member(s). Each of the members are selected by the chair of the committee. There must be a minimum of three members present to constitute quorum.
The appeal committee makes recommendation to the Associate Vice President for Student Affairs/Chief Judicial Officer or designee.

Incidents Involving Graduate/Professional Students

Submit the written appeal to the Vice President for Graduate and Professional Enrollment and Student Services or designee.
Chair of the committee: The Vice President for Graduate and Professional Enrollment and Student Services or designee.
Composition of the appeal committee: The chair of the committee will preside as a nonvoting member. If practicable, the committee shall consist of a combination of faculty member(s) and staff member(s). Each of the members are selected by the chair of the committee. There must be a minimum of three members present to constitute quorum.
The appeal committee makes recommendation to the Vice President for Graduate and Professional Enrollment and Student Services or designee.

Incidents Involving Staff and Academic Administrators

Submit the written appeal to the Vice President for Human Resources or designee.
Chair of the committee: The Vice President for Human Resources or designee.
Composition of the appeal committee: The chair of the process will preside as a nonvoting member. If practicable, the committee shall consist of a combination of faculty member(s) and staff member(s). Each of the members are selected by the chair of the committee. There must be a minimum of three members present to constitute quorum.
The appeal committee makes recommendation to the Vice President for Human Resources or designee.

Incidents Involving Faculty

Submit the written appeal to the Faculty Moderator.
Chair of the committee/ Composition of the appeal committee: Membership of appeals to PARB will be determined by standard PARB procedures.
The PARB makes a recommendation to the Provost or designee.

Incidents Involving Administrators

Submit the written appeal to the Title IX Coordinator or designee.
The appeal process for administrators will mirror the process for staff and academic administrators, unless the Title IX Coordinator or designee, in consultation with the Office of General Counsel, determines modified appeal procedures are necessary to avoid conflicts of interests.

Content of the Appeal

The complainant or respondent must submit a written appeal within three business days of the date of the written decision. The written appeal must reflect the guidelines listed below.

The appeal must include:

Names of the parties involved
Clear statement of the nature of the appeal (must consist of one or more of the following exclusive grounds):
- New information
- Excessive or insufficient sanctions
- Procedural irregularity
A narrative of the incident including:
- Why it occurred
- How it occurred
- Where it occurred
- Who was present
- The information on which the appeal is based
The desired outcome

The appeal committee will review the petition for appeal, and any new evidence submitted by the appealing party in support of the appeal. At the discretion of the appeal committee, the appeal process may include an opportunity for the committee to ask questions of the appealing party, and others.

The sexual harassment, stalking, and sexual violence Appeal Committee will review all information and testimony presented. If the respondent’s behavior resulting in the disciplinary process involved violent or dangerous behavior, the committee shall be required to consider the safety of the APU community in its deliberations and recommendation, and any sanction imposed on the respondent shall not be stayed pending the appeal.

After review of information, interview of witnesses, and deliberation, the appeal committee will make a recommendation to the committee chair, based on the information submitted per the process noted above. The Associate Vice President for Student Affairs, Vice President for Graduate and Professional Enrollment and Student Services, Vice President for Human Resources, the Provost, or the President or the Board Chair will either accept, reject, or modify the recommendation. In cases appealed to PARB, that body will make its recommendations to the provost, whose decision is final. In all other cases, the decision of the chair of the committee is final.

After a decision has been reached, both the complainant and the respondent will be notified in writing by the chair of the committee. Decisions made in the appeal process are final and may not be addressed through the “Grievance Process.”

In cases appealed to PARB, where there is conflict between, on the one hand, the appeals proceedings outlined in this procedure and, on the other hand, PARB procedures outlined in the Faculty Handbook, the appeals proceedings outlined in this procedure govern.

Other Violations

Prohibition Against Retaliation

All persons are absolutely prohibited from taking any action against any other member of the university community either for alleging discrimination prohibited by Title IX or for cooperating in grievance proceedings related to such allegations, including but not limited to, the Complainant, Respondent, or witnesses to an alleged incident of sex discrimination. Any person engaging in any retaliatory action(s) will be subject to a separate complaint under the Student Standards of Conduct and this policy as applicable and appropriate sanctions or disciplinary action for determined violations up to and including dismissal from the university or termination of employment.

False Complaints

Any complainant who knowingly makes false charges alleging violations of this policy will be subject to disciplinary action up to and including termination of employment or dismissal from the university.

Other Prohibited Conduct

In the process of investigating a complaint of sexual misconduct, investigators may uncover other violations of university policy. A respondent found to have committed sexual misconduct, and to have engaged in other violations of university policy, may be subject to discipline both for the sexual harassment, stalking, and sexual violence, and for the other policy violations uncovered during the investigation.

Informal Resolution

Informal Resolution Process (34 CFR §106.45(b)(9))

Informal resolution is a voluntary process that parties can mutually agree to participate in rather than proceeding with an administrative hearing. Where informal resolution is appropriate, and properly invoked, it can further the biblical principle of pursuing reconciliation. Informal Resolutions under Title IX can only occur after a formal complaint is filed. Abuse of the informal resolution process, for example for the purposes of delay, can subject the offending party to the university Accountability process.

Subject to approval by the Title IX coordinator, the informal resolution process is available in matters involving a student complainant and a student respondent, a faculty/staff complainant and a student respondent, and a faculty/staff complainant and a faculty/staff respondent; the informal resolution process is not available in matters involving a student complainant and a faculty/staff respondent. The purpose of the Informal Resolution process is to eliminate the conduct which has been reported by the complainant (and prevent its recurrence), and place both individuals in a position to pursue their academic, working, and non-academic interests in a safe, respectful, and productive educational and working environment.

Under this process, there will be no disciplinary action taken against a respondent. The informal resolution will be documented in each party’s disciplinary file, as appropriate.

Initiation of the Informal Resolution Process

The informal resolution process (see appendix E) may be initiated at any time prior to issuing a final determination regarding responsibility. The Title IX coordinator will consider whether the informal resolution process is appropriate in the particular matter. In making this determination, the Title IX coordinator will consider the following factors:

The disciplinary record (or past conduct) of the respondent relating to sexual misconduct, physical violence, failure to comply with a no-contact order, and/or other relevant conduct
The nature of the alleged conduct, whether allegations involve multiple victims and/or a pattern of conduct, or other evidence-informed factors indicative of increased risk to campus safety
Whether proceeding with the informal resolution process is in accordance with the principles and objectives of the university’s Title IX Sexual Harassment policy/university Policy, as determined by the Title IX coordinator; and/or
Whether proceeding with the informal resolution process in matters involving faculty and staff members is in accordance with university employment practices.

If the Title IX coordinator determines that a case is not appropriate for the informal resolution process, the Title IX coordinator will inform parties in writing that the informal resolution process is unavailable.

If the formal grievance process has already begun, either party may seek to initiate the informal resolution process up until five business days prior to the hearing. If both parties agree to participate in the informal resolution process and Title IX coordinator approves of the informal resolution process, the formal grievance process will be adjourned while the informal resolution process is pending; if an agreement is not reached, the formal grievance process will be resumed.

Upon initiation of the informal resolution process, the Title IX coordinator will refer the matter to a trained informal resolution facilitator. The facilitator will consult (separately) with each party in an effort to reach a resolution that best meets the interests and needs of the parties. Unless they mutually choose to do so as part of an agreement, the parties will not meet together in person as part of the process.

At any time prior to agreeing to an informal resolution, any party has the right to withdraw from the informal resolution process and resume the process with respect to the formal complaint.

Potential Outcomes of the Informal Resolution Process

Depending on the nature and circumstances of the particular situation, parties may agree to outcomes such as:

A continued no-contact order for remainder of time as APU community member
Apply a no-contact order, placing the burden on the respondent to limit the respondent’s physical proximity to the complainant
Restrictions on the respondent from participation in particular organizations or events
Participation in a broad-based educational programming or training
Changes to on-campus housing, subject to availability
Participation by the respondent in the university-provided alcohol education program designed to reduce the harmful problems associated with alcohol misuse
Provision to the respondent of an “impact statement” written by the complainant (describing the impact(s) that the respondent’s conduct had on the complainant);
Mediation through supported direct or indirect interaction with the parties through the Title IX coordinator
Other measures deemed appropriate by the Title IX coordinator.

Failure to Comply with the Informal Resolution Agreement

Failure to comply with the signed agreement may result in disciplinary action for either party, consistent with university policy disciplinary procedures described in the Undergraduate Community Expectations as well as the Graduate and Professional Students Community Expectations.