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Student Discrimination and Title IX Complaint Procedure

Title: Student Discrimination and Title IX Complaint Procedure

Effective Date: August 2011
Revision Date: August 27, 2021
Responsible Office: Dean of Students/Compliance & Equity

Contents: ­­

I. Purpose and Summary of Procedure

A.  Purpose.  The purpose of this procedure is to provide a fair and effective investigation and adjudication process.  This procedure helps the university implement two important policies relating to discrimination, discriminatory harassment, and retaliation, including sexual harassment, gender-based harassment and sexual misconduct:

  • The Policy Prohibiting Discrimination, Discriminatory Harassment, Retaliation and Sexual Misconduct, which defines prohibited discrimination against a person that belongs to a protected group or is perceived to belong to a protected group (the “Discrimination Policy”); and
  • The Policy Prohibiting Title IX Sexual Harassment and Gender-Based Harassment (the “Title IX Policy”), which defines the different forms of sexual misconduct and explains reporting options.

This procedure also helps William & Mary comply with Title IX of the Education Amendments of 1972, which prohibits discrimination based on sex, and other federal and state anti-discrimination laws, by providing a fair, prompt and equitable process to respond to complaints, reports, and grievances.

B.   Summary of Procedure.  Under this procedure, reports are assessed initially within 72 hours by the Civil Rights Review Team to assess ongoing risk, evaluate the requests of the complainant for supportive measures, and determine the appropriate course of action.  For formal complaints investigated under this procedure, annually trained investigators interview the parties, relevant witnesses, and collect and analyze evidence (such as text messages, emails, pictures, medical records, social media posts).  Each party may review all collected evidence prior to the submission of the investigation report. The final investigation report is submitted to the Determination Official(s) and the parties.  Each party may submit a response to the investigation report to the Determination Official(s) prior to final adjudication, either by Administrative Determination or Conference Determination.  A live Conference Determination is held for the purpose of assessing credibility of parties and witnesses and evaluating disputed facts according to the Determination Conference process in Appendix A or Appendix B. Within three (3) business days of the Determination Conference, the Determination Official(s) make(s) a finding of responsibility or no responsibility based on the preponderance of the evidence.  If the Determination Official(s) find(s) that any student has violated university policy, the Determination Official(s), in consultation with the Dean of Students or designee, shall impose sanctions within the range of possible sanctions outlined in this procedure.  Either party may appeal the determination or sanctions (if any) to the Appellate Officer.  The decision of the Appellate Officer is final.

The university seeks to resolve matters promptly, typically within 60-90 business days[1]

II. Scope

This procedure applies to William & Mary as a whole university, including the Virginia Institute of Marine Science (the university).

This is the procedure for investigating any conduct prohibited by the Discrimination Policy and/or the Title IX Policy allegedly committed by a student.  A different procedure is used for addressing complaints and concerns of discrimination, discriminatory harassment, retaliation or sexual misconduct by employees or third parties (including but not limited to vendors, contractors, alumni/ae, visitors or local residents); the Dean of Students can assist students with such complaints or concerns. 

his procedure also may be used, under the authorization of the Dean of Students, for investigation and adjudication of other reported violations of the Student Code of Conduct, including other reported violations of the rights of others, particularly those requiring significant investigation, such as allegations of hazing.

This procedure may apply to misconduct that occurs on or off university property.    In cases where misconduct under the Title IX Policy is alleged, additional procedural requirements are implemented in compliance with the federal regulations. [2]

III. Definitions

Appellate Officer means the Provost or their designee who responds to appeals of determination and/or sanctions imposed under this procedure.

Civil Rights Review Team (“Review Team”) means the group of university administrators that receive and assess all reports of discrimination, discriminatory harassment, retaliation or sexual misconduct. For complaints involving a student the Review Team consists of representatives from the Office of Compliance & Equity, the William & Mary Police Department, and the Dean of Students Office.  The Review Team may include a representative from Human Resources or the Dean of Arts & Sciences, if staff or faculty is a complainant or respondent in the reported matter.  The Review Team operates pursuant to Va. Code §23.1-806(D)  and has access, under Virginia law, to certain otherwise confidential information, including law enforcement records and criminal history information, as provided in Va. Code §19.2-389 and §19.2-389.1; health records, as provided in Va. Code §32.1-127.1:03; university disciplinary, academic and/or personnel records; and prior reports of misconduct maintained by the Chief Compliance Officer. 

Complainant means an individual who is alleged to be the victim of conduct that could constitute discrimination, discriminatory harassment, including Title IX sexual harassment, retaliation or sexual misconduct as defined in the Discrimination Policy and the Title IX Policy.

Determination Official means the person or persons who make the determination of a responsibility or non-responsibility for each allegation investigated, and issues sanctions under this process.

Formal complaint means a document either filed by a complainant who is participating in or attempting to participate in an educational program or activity of the university or signed by the Title IX Coordinator alleging Title IX sexual harassment, Gender-Based harassment, discrimination, discriminatory harassment, retaliation or sexual misconduct (“misconduct”) against a respondent and requesting that the university investigate the allegations.

Investigator means the person or persons assigned to gather facts about an alleged violation of the Discrimination Policy or the Title IX Policy, to assess relevance and credibility, synthesize the evidence, and to compile this information into an investigation report.

Mandatory Reporter means a faculty or staff (including some student staff such as Resident Assistants, Teaching Assistants) of the university who is obligated by federal and/or state law (which designates such employee as a “Responsible Employee”) to share knowledge, notice, and/or reports of sexual harassment, gender-based harassment, and sexual misconduct as defined in the Discrimination Policy or Title IX Policy with the Title IX Coordinator.

Report means information about alleged discrimination, discriminatory harassment, or retaliation, including sexual harassment or sexual misconduct affecting a member of the university community, including a student, that is conveyed to a mandatory reporter of the university and is communicated to the Chief Compliance Officer/Title IX Coordinator.

Respondent means an individual who has been alleged to be in violation of university policy through conduct that could constitute discrimination, discriminatory harassment, or retaliation, including sexual harassment or sexual misconduct.

Retaliation means any adverse action taken by a respondent or allied third party against a person because the person made a good faith report of discrimination or discriminatory harassment, including sexual harassment or sexual misconduct, or the person is involved in or participated in an investigation or proceeding of such reported allegation under the Discrimination Policy, or Title IX Policy.  Retaliation includes, but is not limited to, threatening, intimidating, harassing, coercing or any other conduct that would deter a reasonable person from engaging in activity protected under this policy.   Retaliation does not include good faith counter complaints lawfully pursued in response to a report of discrimination or harassment, or non-discriminatory adverse actions taken for legitimate purposes (e.g. employee discipline for tardiness, student honor code charges for separate plagiarism incident)  

Student means all persons taking courses at the university, either full-time or part-time, persons pursuing undergraduate, graduate, or professional studies, and persons enrolled as a non-degree seeking students. 

Supportive measure means non-disciplinary, non-punitive, individualized service offered as appropriate, as reasonably available, and without fee or charge to the complainant or the respondent before or after making a report or filing of a formal complaint.   Examples of possible supportive measures include:

  • Issuing orders barring further contact between the complainant and the respondent (Campus No Contact Orders)
  • Providing an escort to ensure that a party may move safely between classes and activities
  • Providing counseling or medical services, including free services from the university Counseling Center or access to services at the Student Health Center
  • Making academic modifications, such as an extension for an assignment or late withdraw from a course
  • Relocating or rescheduling of classes
  • Changing residence locations when a complainant or respondent requests to move
  • Emergency Removal of a respondent from the university upon risk analysis and determination by the Review Team that the respondent poses an immediate threat to the physical health or safety of any student or other individual arising from allegations of sexual harassment or sexual misconduct. The risk assessment justifies removal on an emergency basis.  The respondent shall be provided with written notice of the emergency removal and an opportunity to challenge the decision to the Dean of Students or designee, which will be evaluated and reassessed within 24 hours of the challenge.

Title IX Coordinator means an official designated by the university who is responsible for ensuring the university’s compliance with Title IX regulations and the person who is responsible for coordination of this process for any investigation and adjudication of discrimination, discriminatory harassment, retaliation, sexual harassment, gender-based harassment, or sexual misconduct.

IV. Reporting, Retaliation, and Other Initial Matters  

A.  Filing a Report.  Please see Section V of the Discrimination Policy of Section V of the Title IX Policy for how and where to initially report misconduct.

B.  Initial Intake of Report; Immediate Services and Support Offered. Whenever the university receives a report that a person has experienced misconduct prohibited by the Discrimination Policy or the Title IX Policy, whether the offense occurred on- or off-campus, the Title IX Coordinator or designee will provide the complainant with a written explanation of their rights and options, including the availability of supportive measures.

If a person files a formal complaint for investigation under this procedure, the Title IX Coordinator will initiate the process under Sections VI and VII of this procedure. Timing of Reports. William & Mary encourages reporting misconduct as soon as possible in order to maximize the university’s ability to respond promptly and effectively. Because the passing of time decreases the ability to collect evidence and statements from witnesses, formal complaints must be submitted to the Compliance Officer within 365 calendar days of the most recent occurrence of the alleged misconduct, except for conduct that may violate the Title IX Policy or for conduct defined as Sexual Misconduct under the Discrimination Policy.   

The Chief Compliance Officer reserves the right to extend the time limits when circumstances justify an extension. 

C.  Jurisdiction.  The university has jurisdiction to investigate and adjudicate alleged misconduct committed by a respondent when the conduct: 

  • occurs on campus or on property owned or controlled by the university (university property); [3]
  • occurs in the context of a university employment or educational program or activity including, but not limited to, university-sponsored study abroad, research, or internship programs; 
  • uses university resources, such as workplace telephones or e-mail; or 
  • occurs off-campus and outside a university program or activity, but such conduct has continuing adverse effects on or poses a substantial risk of creating a hostile environment for any member(s) of the campus community while on university property or in any university program or activity. 

The university has jurisdiction to investigate and adjudicate alleged misconduct by the respondent when the respondent is a student as defined in Section III of this procedure or when the respondent is eligible to return as a student without applying for readmission to their current program.   Where the respondent is a degree candidate at the university, the Title IX Coordinator will consult with the Dean of Students concerning the respondent’s intended date of graduation and encourage the complainant to file a formal complaint in a timely manner to avoid loss of authority over the student due to graduation. The university will postpone degree conferral in the event that a formal complaint has been filed and is being adjudicated through this process.  Where a respondent has otherwise met all requirements for graduation, they may request permission to participate in commencement activities prior to a final determination. 

The Review Team will determine whether the university has jurisdiction and/or authority to conduct an investigation. (See Section VI.D. below) Even if the university does not have jurisdiction to investigate a formal complaint or the Review Team does not authorize an investigation, the university will take steps, when appropriate, to protect the complainant’s rights to participate in and enjoy the university’s programs and activities, such as by providing supportive measures for the complainant and preventing recurrence of discrimination, discriminatory harassment, including sexual harassment, retaliation or sexual misconduct by the respondent.

D. Retaliation. Under university policy, it is a violation to retaliate against any person for making a report of misconduct or against any person for filing a formal complaint or cooperating in an investigation (including serving as a witness).  Retaliation should be reported promptly to the Title IX Coordinator or investigator. 

 E.  Effect of Criminal Proceedings. Because misconduct may constitute both a violation of university policy and criminal activity, the university encourages people who have experienced criminal misconduct to report promptly to law enforcement.  The university also reports certain matters directly to law enforcement and/or the prosecutor with jurisdiction, as described in Section IV (F). 

The standards for finding a violation of criminal law are different from the standards for finding a violation of university policy.  This means that conduct may violate university policies even if it is not a crime or law enforcement agencies lack sufficient evidence of a crime and therefore decline to prosecute. 

This procedure is independent of any criminal investigation or proceeding.  The university generally will not wait for the conclusion of any criminal investigation or proceedings to commence its own investigation and implement supportive measures to protect the complainant and the university community. The university will consider law enforcement requests to delay temporarily and may grant such delays at its discretion. 

F. False Report or Deceitful Allegations.  Knowingly making a false report and/or alleging accusations of misconduct that are deceitful is a violation of university Honor Code and is subject to appropriate disciplinary action.  Complaints made in good faith that are not in fact a policy violation or that are not substantiated to find responsibility for a policy violation are not consider false reports. 

Knowingly providing false statements or evidence, purposefully tampering with or destroying evidence after being directed to preserve such evidence, or deliberately misleading any university administrator or official involved in this process is a violation of the university Honor Code and parties or witness who commit such violations are subject to appropriate disciplinary action.

V.  Timeline and Other General Procedural Considerations

A. Timeline, Deadlines and Extensions.  The university aims to conclude the investigation and adjudication within 60-90 business days. Scheduled or unscheduled breaks in university operations (including winter and spring break) may extend any time period or deadline in this procedure.   

The timeline for resolution begins on the date when an investigation into a formal complaint is authorized by the Review Team or the Title IX Coordinator.  See Section VI. 

Time periods may be extended as necessary by the administrator with oversight of the relevant process stage: the Title IX Coordinator, the Determination Official(s), or the Appellate Officer.  Extensions will be made to ensure the integrity and completeness of the investigation and/or for appropriate cause, such as compliance with a request by law enforcement, availability of witnesses or parties, scheduled or unscheduled university closings or breaks (including winter and spring breaks or closures due to weather events), vacations, complexities of a specific case including the number of witnesses and volume of information collected, and health or other emergencies.   

B. Roles/Conflicts. The administrators with specified roles in this process (Title IX Coordinator, Investigator, Determination Official(s), Appellate Officer) shall recuse themselves, and/or delegate their roles to others as necessary to ensure impartiality or to accommodate leave or professional or personal conflicts.  A party may request recusal or substitution of an investigator or advisor through the Title IX Coordinator or designee by specifying the nature of the conflict.  The Title IX Coordinator or designee will consider the request, the alleged conflict, and determine the appropriate steps for managing any conflict that exists. A request for the Title IX Coordinator to recuse themselves will be considered by members of the Review Team and if determined that the Title IX Coordinator must recuse themselves, a designee will be appointed by the Office of Compliance & Equity.

C. Parties Participation or Refusal to Participate in the Process.  This grievance procedure is designed primarily to address formal complaints of discrimination, discriminatory harassment, including sexual harassment, retaliation or sexual misconduct that may require formal discipline of a student.  The process anticipates the involvement of the complainant and the respondent to ensure full due process for the parties. Investigation and adjudication may be undertaken, however, with or without the participation of one or both parties, depending on the nature of the allegations and otherwise available evidence.  If a party declines to participate or declines to answer certain questions, this will not be considered in assessing the party’s credibility.  However, if a party or witness does not participate in the determination conference including answering direct questions by the other party’s advisor, no statements made by that party or witness during the investigation process may be considered in making the determination of a policy violation.   
 
If a complainant initially participates in a process but wishes to cease involvement in the process, or no longer wants the process to continue, the Review Team will consider carefully whether it is in the best interest of the university to proceed forward or whether the party’s wishes may be respected, based on the factors described in Section VI of the Title IX Policy.

D. Combined or Multiple Complaints. 

  1. Multiple complaints or allegations. The university typically investigates and adjudicates multiple allegations (potential policy violations) at one time if they stem from the same incident or are based on a pattern of behavior close enough in time or related sufficiently by their nature to be reasonably resolved in a single proceeding.  Questions about the use of a single proceeding to resolve multiple allegations will be decided by the Chief Compliance Officer and/or Title IX Coordinator, with the approval of the Dean of Students or designee, if there is an allegation of a violation of the Student Code of Conduct.   Students participating in an investigation process or who have made a formal complaint are protected from retaliation and the university must guard against a report or allegation being used as a tool of retaliation or as a strategic effort to discredit or preempt another report.  When both (all) parties involved in a formal complaint allege that the other party(s) violated their rights, for example, the Review Team will carefully assess all formal complaints to determine the appropriate course of action.  Because an investigation under this procedure is designed to collect evidence relevant to both parties’ perspectives, the appropriate course of action often will be to conduct a single investigation under this procedure.  In determining which student will be treated as the complainant and which as the respondent, the Review Team will consider relevant factors including those specified in Section VI of this procedure. The Review Team also may initiate an investigation in which both (or all) students are respondents. 
  2. Alleged violations of different policies. Should an incident result in an allegation that a student has violated the Discrimination Policy and/or the Title IX Policy and another applicable policy, such as the Honor Code or the Student Code of Conduct, the allegation will be processed under this procedure to ensure compliance with federal law. A respondent may not face more than one proceeding to determine the final disposition of a single incident.
  3. Amnesty.  In order to facilitate full and truthful cooperation from parties and witnesses in this procedure, the Dean of Students generally does not charge parties or material witnesses with Student Code of Conduct violations for drug or alcohol misconduct, such as consuming alcohol underage or consuming illegal drugs, unless such behavior relates directly to the sexual misconduct allegation.  An example of a Code of Conduct violation that relates directly to a sexual misconduct allegation would be provision of alcohol to an underage complainant by a respondent, when there is an allegation that the respondent provided the alcohol as a means to facilitate a sexual assault.  
E. Advisor and Silent Supporter for Complainant and Respondent. Each party may choose one (1) advisor to provide consultative advice and one (1) silent supporter to provide emotional support to them through the administrative process.  Both the advisor and the silent supporter may accompany the student to all interviews, meetings, and the determination conference.   The university will coordinate with the advisor of choice, but not the silent supporter, on their availability for meeting, interview and determination conference times.  The advisor will be copied on all communications with the student, including the investigation report, the determination conference agenda, and determination notice. 

William & Mary trains a group of faculty and staff to serve as advisors and assigns an advisor to each party based on advisor availability.  A party may choose instead to use an advisor of their choice, such as a friend, family member, or lawyer.   If a party uses an advisor of their choice, the party will continue to have access to the university’s trained administrative advisor.  In this situation, the trained administrative advisor will serve as a consultant to the party, but only one advisor of the party’s choice will be permitted to accompany the student to interviews or meetings, or to the determination conference.      

Parties who retain advisors of their choice are responsible for any costs associated with hiring such advisors.  A party may change advisors during the process.  

F. Role of the Advisor.  During interviews or meetings, an advisor may confer with or advise the party, may request a brief pause in the proceeding to confer with the student privately, and is provided a limited opportunity to ask questions or raise concerns during meetings or interviews.  The university expects parties to speak on their own behalf; an advisor does not respond to questions on the party’s behalf.  An advisor who disrupts a meeting, interview or proceeding will be required to leave the proceeding. 

In a Determination Conference that involves an allegation of Title IX Sexual Harassment as defined in the Title IX Policy, the party’s advisor is permitted to directly ask the parties and any witnesses all relevant questions and follow-up questions, including questions that challenge the person’s credibility (See Section VII (H)(2) of this procedure).  In a Determination Conference that involves allegations of misconduct under the Discrimination Policy, the Determination Official(s) are the only person(s) permitted to directly ask the parties and any witnesses all relevant questions and follow-up questions, including questions submitted in writing by a party. 

Parties may share records and investigation communications with their advisor. If a party engages an external advisor of their choice, they and the advisor must agree to consent and confidentiality requirements.   

G. Role of the Silent Supporter.  During interviews or meetings, a silent support is permitted to provide emotional and psychological support for the party and may request a brief pause in the proceeding to confer with the student privately.  The silent supporter may not ask questions or raise concerns during meetings, interviews or the determination conference.  The silent supporter may not respond to questions on the party’s behalf.  A silent supporter who disrupts a meeting, interview or proceeding will be required to leave the proceeding. 

If a party engages an external silent supporter, they and the silent supporter must agree to consent and confidentiality requirements.   

H. Disability Accommodations. The university is committed to providing reasonable accommodations for students with documented disabilities, in accordance with the Accommodation Policy and Procedure. Such accommodations may include, but are not limited to, administrative assistance, and additional time,   Students with disabilities who need reasonable modifications to address a suspected violation of the Discrimination Policy or the Title IX Policy are encouraged to contact the Director of Student Accessibility Services (sas@wm.edu) as early in the process as possible to identify and plan specific accommodations. Students typically will be asked to provide medical documentation. The Director of Student Accessibility Services will inform the Title IX Coordinator of appropriate accommodation(s).

I. Witness Failure to Cooperate.  If a student or employee witness fails to appear for a scheduled appointment or otherwise refuses to cooperate in an investigation and adjudication, the person may be subject to discipline or held responsible for conduct charges and or failure to comply.

J. Notice. Proper notice will consist of an email sent to a student’s or employee’s official university email account, written notice delivered through either university or U.S. Mail to an address in the Registrar’s or Human Resource’s records, or a letter delivered personally by university staff, including Residence Life student staff or supervisor.  In general, correspondence will be sent via email.

K. Witness Intimidation. Parties who contact witnesses or other parties with the intent to intimidate them, influence or collaborate regarding testimony, harass, or circumvent the process in any way, may be responsible for retaliation or a charge of abuse of process under Section III(C)(7) of the Student Code of Conduct.  Parties may not circumvent this provision by requesting or permitting advisors, friends or others to perform such actions on their behalf or for their benefit.  In general, it is expected that the university will conduct the investigation pursuant to this procedure prior to and free from interference by any independent investigation by or on behalf of a party.

L. Past Sexual Histories/Evidence of Other Sexual Misconduct or Harassing Conduct. In general, parties’ prior sexual history, character or reputation is not relevant and will not be considered as evidence of character or reputation during the investigation. Where there was a relationship between the parties and consent is at issue, the prior sexual history between the parties may be relevant to assess the manner and nature of communications between the parties or to explain physical evidence. As specified in the Title IX Policy, however, the mere fact of a current or previous dating or sexual relationship, by itself, is not sufficient to constitute consent.    

Evidence of prior sexual history of a party with other individual(s) may be prejudicial in nature, and so will be included only after assessing its relevance (probative value) and prejudicial nature.  Examples of evidence that may be admissible may be considered and included in the investigation report are: (a) evidence of conduct similar in nature to the alleged misconduct by the respondent, (b) evidence of a pattern or to be considered together with the alleged misconduct in determining whether a hostile environment was created, (c) evidence relevant to proving intent, state of mind, injury, or identity.  Such evidence may be considered regardless of whether there has been a finding of responsibility as to the other conduct, subject to the general determinations for admissibility of evidence described in Section M.   

M. Rules of Evidence. University proceedings are not judicial procedures designed to enforce laws.  They are internal, administrative processes designed to address formal complaints of violations of university policy while affording due process to the parties.  Universities do not conduct judicial proceedings and do not follow the rules of evidence employed by courts of law.  Information that does not come from a first-hand source (hearsay) may be considered where it is relevant.  Lie detector/polygraph evidence is not permissible.  Except as specifically provided in this procedure, the university is not required to consider any specific piece of evidence and may make reasonable determinations as to which evidence to exclude or consider.  Investigators exercise their professional judgment to determine what evidence is relevant and material to the case, and may exclude evidence that is unfairly prejudicial, that relates to collateral issues, or that is confusing, misleading, or needlessly cumulative.  Investigators will also consider the process by which the evidence was collected and the source of the evidence; for example, notes made by a private investigator hired by a party typically are not considered reliable and unbiased enough to introduce as evidence.  Witnesses’ (including parties’) observations and opinions as to events or motivation may be considered as evidence; the investigators and the Determination Official are trained to evaluate such evidence appropriately and do not accept an opinion as a statement of fact. 

If a party introduces evidence not considered in the investigation and documented in the investigation report, such as in a personal statement or an appeal, the Determination Official or Appellate Officer has the discretion in determining whether to consider such evidence; evidence impermissible under this procedure may not be introduced or considered.  The Determination Official may request additional information, guidance or investigation from the investigators or Title IX Coordinator regarding the evidence.  

Additionally, administrators with roles in this process shall not use, rely on, or seek disclosure of information protected under a legally recognized privilege, unless the person holding such privilege has waived the privilege.   

N. Formal Interviews and Other Meetings. Interviews and any other meetings generally are conducted in person in university facilities.  Remote interviews, meetings or conferences may be necessary and appropriate, in certain circumstances, and/or may be conducted when necessary to provide prompt resolution.  
  1. Interviews with Parties. Typically, there is one primary interview with each party and potentially one or more, shorter, follow-up interviews.  The primary interview is conducted in person unless (a) extenuating circumstances exist, (b) alternate arrangements are made as an accommodation (see paragraph E, above), as determined by the Title IX Coordinator, or (c) a party is not a member of the university community (e.g. a student or employee).  For parties who are not a member of the university community or otherwise obligated to cooperate (e.g. alumni), the university will make best efforts to conduct an in-person interview.  If an in-person interview is not feasible, the general preference is to conduct an interview using video call technology rather than via phone.  A follow-up interview may be conducted in person or remotely, or investigators may submit questions in writing to the party for response, at the investigators’ discretion depending on the circumstances including the scope of the follow-up interview.  
  2. Interviews with Witnesses. While in-person interviews remain the preference, interviews conducted telephonically or using video technology with witnesses are permissible.  Questions submitted in writing to a witness for written response are also permissible. 
O. Confidentiality, Need-to-Know, and Records Retention.  Inquiries about and reports of misconduct shall, whenever possible, be treated with confidentiality, in compliance with the Family Educational Rights and Privacy Act (FERPA).  Confidential information will be disclosed to others outside the process only when required by law or when personal safety is at risk.  However, an investigation/adjudication may require disclosure of information.  The university’s Student Records Privacy Policy lists the situations in which the university may (or in some cases, must) disclose personal identifiable information from a student’s educational record without the student’s prior consent.[4] 

This procedure specifies notification or consultation with various university offices and individuals with legitimate educational interest. In addition, other internal disclosures may be made, including:  

  • to the Office of University Counsel, for the purposes of obtaining legal advice. 
  • To university employees for the purpose of obtaining approval for or implementing supportive measures and preventing retaliatioto the University Registrar, for purposes of transcript notation.  
External disclosures may be made as required by law, including:  
  • mandatory reporting to the Department of Education for the Annual Security Report 
  • responses to search warrants or lawfully issued subpoenas 
  • responses to Freedom of Information Act requests, with proper/required redaction of personally identifiable information.[5] 

Records produced or collected pursuant to this procedure shall be maintained in accordance with federal and state law, including the Records Retention Schedules of the Library of Virginia, which implement the Virginia Public Records Act. [6] 

Precautions are taken to protect sensitive, confidential information including the investigation report and related communications, such as use of secure file transfer technology and incident management software systems.  Additional steps may be taken when sharing information with people who are not university employees or students, such as providing access to read and review documents rather than providing copies. 

VI.  Initial Assessment of Report

Upon receipt of a report or formal complaint of misconduct defined under the Discrimination Policy or the Title IX Policy, the Title IX Coordinator or designee will notify the other members of the Review Team, which shall assess the report or formal complaint within 72 hours in the case of a reported act of sexual violence7 and as soon as practicable in all other cases.  The Review Team will have access to all available facts and circumstances and may seek additional information about the reported incident through any other legally permissible means. 

A. Threat Assessment. The Review Team will review the report and any other available relevant information to assess the threat posed by the reported misconduct and to determine whether external reports are required.  The Review Team will make this determination based upon the following factors (the “risk factors”): 
  1. A formal complaint filed by the complainant; 
  2. Whether the respondent has prior arrests, reports and/or complaints related to discrimination, discriminatory harassment, retaliation or sexual misconduct or has any history of violent behavior; 
  3. Whether the respondent has a history of failing to comply with university protective measures, and/or any judicial protective order; 
  4. Whether the respondent has threatened to commit violence or any form of sexual misconduct; 
  5. Whether the reported misconduct involved multiple respondents; 
  6. Whether the reported misconduct involved physical violence. Examples of physical violence include hitting, punching, slapping, kicking, restraining, strangling, or brandishing or using any weapon; 
  7. Whether the report reveals a pattern of sexual misconduct (e.g., by the respondent, by a particular group or organization, around a particular recurring event or activity, or at a particular location); 
  8. Whether reported sexual misconduct was facilitated through the known or unknown provision of drugs or alcohol; 
  9. Whether reported sexual misconduct occurred while the complainant was unconscious, physically helpless or unaware that the sexual misconduct was occurring; 
  10. Any indications that the report was made in bad faith, such as retaliation or in anticipation of a complaint being filed against the complainant, or is baseless; 
  11. Whether the complainant is (or was at the time of the reported incident) a minor (under 18); 
  12. Whether any other aggravating circumstances or signs of predatory behavior are present; and 
  13. Applicable law, policy and procedure.

 The Review Team will refer to the university’s Threat Assessment Team those matters determined to warrant continued threat assessment or management beyond the supportive measures and other steps specified by this procedure. 

B. Mandated Reports to External Entities. The Review Team will assess each report to determine if a disclosure to law enforcement, prosecuting attorney’s office, or Department of Social Services must be as required by the Code of Virginia.  If the Review Team cannot reach consensus, the W&M Police representative shall make the determination if a mandated report is required.   

  1. If the Review Team determines that disclosure of the report and personally identifying information to the law enforcement agency that would be responsible for investigating the alleged act of sexual violence is necessary to protect the health or safety of the complainant or other persons, the W&M Police representative will immediately make such disclosure. 
  2. If the alleged act of sexual violence would constitute a felony violation of Section 18.2-61 of the Virginia Code, the W&M Police representative shall consult with the attorney for the Commonwealth or other prosecutor responsible for prosecuting the alleged felony. This consultation will not include personally identifiable information, unless such information was disclosed as described under Paragraph 1 above.  If this consultation does not occur and any other member of the Review Team concludes that the alleged incident would constitute a felony violation of Section 18.2-61, he or she will make the same consultation, within 24 hours.  
  3. If the reported incident involves abuse (including sexual violence against) of a minor (or someone who was a minor at the time of the incident), the Review Team will designate a team member to report the matter to the Department of Social Services within 24 hours and inform the other team members once the report has been made.  

If any external report is made under this Section, the Title IX Coordinator will notify the complainant promptly.   

C.  Offer Supportive Measures.  Upon receipt of a report or formal complaint of misconduct defined under the Discrimination Policy or the Title IX Policy, the Review Team will assess supportive measures to be offered to the complainant.  The Title IX Coordinator shall contact the complainant and offer supportive measures as recommended by the Review Team and assess any requests by the complainant for personalized supportive measures.

D.  Determination as to Appropriate Next Steps. Upon completion of the threat assessment and mandatory reports, and determination of supportive measures to offer the complainant, the Review Team will determine the appropriate course of action in consideration of the requests of the complainant. 

  1. No Further Action Requested.  If a complainant has requested no further action or has not filed a formal complaint, and the Review Team’s assessment concludes that this request may be honored, the Title IX Coordinator will not sign a formal complaint to initiate an investigation.  Supportive measures will continue to be provided to the complainant as necessary. 
  2. Formal Complaint Requesting Investigation of Misconduct Defined under Title IX Policy.  If a complainant wants an investigation and adjudication of a respondent’s conduct, they must file a formal written complaint with the Title IX Coordinator.   If a complainant files a formal complaint, the university must investigate the allegations under this procedure unless it is required to dismiss the formal complaint or any allegation therein if, at any time during the process, it is determined that: 
  • a. The conduct alleged in the formal complaint would not constitute sexual harassment as defined in the Title IX Policy, 
  • b. The conduct alleged did not occur in the university’s education program or activity, or  
  • c. The conduct alleged did not occur against a person in the United States. 

Either party may appeal this decision per Section VIII of this procedure.

In the event that a Title IX formal complaint is dismissed under this provision, the Review Team shall determine if investigation of conduct under the Discrimination Policy is warranted under this procedure.  Generally an investigation will be authorized if the conduct alleged would constitute a policy violation if substantiated and there exists a reasonable basis to find discriminatory intent. If an investigation is authorized, this grievance process shall be used for the policy provisions being investigated.   

     3. Formal Complaint Requesting Investigation of Misconduct Defined under Discrimination Policy.  If a formal complaint alleges misconduct under the Discrimination Policy, the Review Team shall determine in its discretion if investigation of the formal complaint is authorized or not authorized under this procedure.  If an investigation is authorized, this grievance process shall be used for the policy provisions being investigated.  If an investigation is not authorized, the Review Team’s decision is not subject to appeal.

Discretionary Factors Considered by the Review Team.  An investigation for allegations of misconduct other than Title IX Sexual Harassment or Gender-Based Harassment may not be authorized for one of the following reasons: 

  • The information available does not provide a reasonable basis for conducting an investigation under this procedure;
  • The conduct alleged, even if proven true, would not be a policy violation;
  • The complainant is no longer participating in or attempting to participate in an education program or activity of the university;
  • The respondent is no longer enrolled at or employed by the university;
  • The formal complaint is filed many years after the prohibited conduct allegedly occurred and witnesses are no longer available to participate and/or are no longer able to provide direct information about the allegations.  Prior to a decision to authorize or dismiss a formal complaint by the Review Team, the Title IX Coordinator may conduct limited inquiry with potential witnesses to further assess their availability and their recollection of direct information about the allegations.
  • A formal complaint contains allegations that are precisely the same as allegations the University has already investigated and adjudicated.  
     4.  Title IX Coordinator Files Formal Complaint.  If the complainant has requested that there be no investigation, is not participating in the process, or is not participating in or attempting to participate in an educational program or activity of the university, the Review Team will determine whether a formal complaint should be filed by the Title IX Coordinator under this procedure to protect the health and safety of the campus community and/or individual students, or to fulfill the university’s obligations to provide a campus environment free from harassment.  In making this determination, the Review Team will consider the Risk Factors and any evidence showing that the respondent made statements of admission or otherwise accepted responsibility for the misconduct, the existence of any independent information or evidence regarding the misconduct, and any other available and relevant evidence other than the complainant’s testimony. If the Review Team determines to authorize an investigation against the request of the complainant, the Title IX Coordinator will file a formal complaint and will notify the complainant promptly.  A complainant is not required to participate in an investigation initiated when the Title IX Coordinator files a formal complaint on their behalf. 

 

      5. Report or Formal Complaint Requesting Alternative Resolutions.  Prior to filing a formal complaint or after the Review Team has authorized an investigation of a formal complaint, the complainant may seek the following resolutions upon the consent of both parties and approval by the university: 

  • Adaptable Non-Disciplinary Resolution.  Certain types of alleged misconduct may be referred to the Dean of Students or designee to explore available options for Adaptable Resolution.  Adaptable Resolution is a remedies-based structured process that balances support and accountability without formal disciplinary action against the Respondent.   This alternative process may be initiated before an investigation is authorized or after an investigation has commenced, at any time prior to the Determination Conference being conducted.  In cases where the respondent is an employee of the university, referral to this process is not permitted.  A complainant’s request for this option shall be authorized by the Review Team unless it determines that there is a continuing, ongoing threat to the university community or the Title IX Coordinator has filed a formal complaint per Section VI.D.4.   
  • Pre-Determination Conference Resolution. Upon authorization of an investigation of a formal complaint by the Review Team and at any point prior to the Determination Conference, either the complainant or respondent may request resolution of the allegation(s) through a negotiated process wherein the respondent either:  
    • Accepts a finding of responsibility for the original allegations or other violations defined under either the Discrimination Policy or the Title IX Policy and accepts appropriate sanctions, which may or may not be within the proscribed range of sanctions in this procedure, provided both parties agree to the terms of the resolution as approved by the Title IX Coordinator; or   
    • Accepts primary or secondary sanctions under Section VII.I without a finding of responsibility for a violation, as approved by the Title IX Coordinator. 
Either party may choose to stop the negotiated process at any point prior to finalization of the Pre-Determination Resolution at which point the formal complaint process outlined in Section IV. X will resume.  See Appendix C for details of the Pre-Determination Conference Resolution process.     
  • Remedial Actions. Upon receipt of a report, but not a formal complaint, or upon dismissal of a formal complaint, the complainant may request that the university take remedial actions.  Remedial actions may include remedies offered to the complainant as well as actions designed to address possible areas of concern such as educational or awareness activities, targeted training, increased supervision or oversight of specific clubs or organizations, conversations and guidance provided to specific individuals, or notice communicated to an individual that the conduct is unwelcome.  It may be appropriate for reports that do not allege conduct that violates applicable university policy but do allege conduct not consistent with university expectations, such as harassing conduct that has not become severe or pervasive enough to create a hostile environment; the university may take action to prevent such harassing conduct from continuing or repeating and creating a hostile environment. The university, in consultation with the complainant, makes the final determination of what actions to implement. 
6.  Discretionary Dismissal of Formal Complaints.  If the Review has authorized an investigation under Section IV.D.2 or IV.2.3 of this procedure, the Title IX Coordinator, may in their discretion, dismiss the formal complaint at any point for one of the following reasons: 
  • a. The Complainant notifies the Title IX Coordinator in writing that the Complainant would like to withdraw the formal complaint or any allegations therein; 
  • b. The Respondent is no longer enrolled at or employed by the university;   
  • c.  A Complainant stops participating in the investigative process or refuses to participate in the process; or  

Discretionary dismissals by the Review Team are not subject to appeal.

VII.      Investigation and Determination of Policy Violation

This Section specifies the process used to investigate a formal complaint. The initiation of an investigation is a decision to collect evidence regarding a report; a respondent is presumed not responsible until a final determination is made. 

A.  Written Notification.  The Title IX Coordinator issues to the respondent written notification of the allegations of discrimination, discriminatory harassment, retaliation or sexual misconduct potentially constituting a policy violation, including sufficient details known at the time and with sufficient time for a respondent to prepare a response before any initial interview with investigators. Complainants are provided a copy of the written notification simultaneously and provided the name of an administrative advisor available to assist them if one has not already been provided or chosen.  Written notification shall contain at least:  
  • the allegations to be investigated, including the specific policy provision(s) at issue, the identity of the complainant, and available information regarding the date and location of incident(s); 
  • notice that allegations are subject to change based on information collected, but additional written notification must be provided if new policy violations are being investigated; 
  • the process to be used (this procedure) 
  • the parties’ rights to available resourcesincluding counseling, health, mental health, visa and immigration assistance, financial aid assistance and other services available within the institution and in the community; 
  • the name and contact information of the administrative advisor available to assist the party (Section V(E)), the right to choose a different advisor of the party’s choice, who may be, but is not required to be an attorney, and a description of the role of the advisor in this process;  
  • prohibition against retaliation of the other party or witnesses; 
  • prohibition against knowingly making false statements or knowingly submitting false information during the grievance process under this procedure;  
  • a presumption that no misconduct has occurred and a determination regarding responsibility of a policy violation is made at the conclusion of the grievance process; 
  • the party’s right not to incriminate themselves, as defined by the Student Code of Conduct, and for silence not to be held against them. 

B.  Initial Meetings with Parties. The Title IX Coordinator or designee communicates separately with each of the parties prior to the commencement of the investigation. The purpose of the initial meeting is to review the process for formal complaint investigation and adjudication, to review the roles of the individuals involved in the process, and to provide the parties with information about preparing for meetings with investigators and submission of evidence to the investigation, including the importance of preserving evidence for investigators to evaluate.  Parties are not expected to provide statements, produce evidence, or respond to the allegations at this initial meeting.

C. Resignation of Respondent. Within five (5) business days of the initial meeting, a respondent may request to resign permanently from the university.  If approved, the Director of Community Values and Restorative Practices will direct that the student’s official records, including the transcript, will carry a notation as required by Section 23-9.2:18 of the Virginia Code.  The student must certify via a notarized letter that the student understands that they will not seek or receive admission into any William & Mary program in the future, unless granted a waiver as described below.  The student will not be able to be present on campus property and/or attend university-sponsored functions or activities.  The student will leave the university with the status “not in good standing.” 

Permanent resignation will result in no other disciplinary process being conducted with respect to the resigning student.   

In exceptional circumstances, when definitive proof of a resigned student’s non-responsibility exists, they may request a waiver of resignation and readmission or a removal of the transcript notation.  This request must be made to the Dean of Students. A not guilty verdict in a criminal court is not, in itself, definitive proof of non-responsibility, as courts apply different standards of proof, follow different evidentiary and procedural rules, and adjudicate legal violations with elements different from university policy.  Similarly, a failure to prosecute does not constitute proof of non-responsibility.  Examples of definitive proof include video recording or DNA evidence proving that a different person committed the alleged misconduct.   

D.  Investigation.  Investigations are conducted by trained investigators.  The investigators are objective, neutral factfinders who are responsible for the collection of evidence and production of the investigation report.  Investigators receive annual training on the issues related to discrimination, discriminatory harassment, retaliation, domestic violence, dating violence, sexual assault, and stalking and how to conduct a trauma informed investigation that is fair, prompt and equitable.   
  1. Interviews.  Investigators may conduct interviews of the parties and witnesses.  Interviews with parties will be recorded.  Audio recordings will be shared with both parties as proscribed under Section VII(E).       
  • Introduction of Evidence.  Each party may introduce evidence during the investigation. Parties are not required to themselves uncover and produce evidence; if a party has cause to believe certain evidence exists, they should discuss the issue with an investigator.   See Section V(M).  
  • Witnesses. Parties may submit names of witnesses— people able to provide relevant information regarding the allegations—to be interviewed. The investigator(s) determines who to interview, based on their professional judgment as to the likelihood of discovering relevant evidence.  Character witnesses and witnesses who are suggested because they could offer information relevant to items that are not disputed or that have already been sufficiently supported through the investigation may not be interviewed.  The need for prompt complaint resolution must also be considered. 
  • Questions for Other Party. Each party has the right to suggest issues to be explored with the other party, or questions to be asked. The investigators, exercising their professional judgment in accordance with Section V(M), determine which issues or questions are relevant and the appropriate investigative method for acquiring information.    

          Third parties other than an advisor and a silent supporter are not permitted to be present during interviews; interviews are attended by the interviewee and the investigator(s), and a note-taker (in the discretion of the investigator(s)). Names and contact information of the advisor and silent supporter must be shared with the Title IX Coordinator. 

       2.  Documentary Evidence. Collection and review of documentary evidence such as photographs, text messages, social media postings, medical records, emails or audio recordings, comparisons of timelines of events, visual evaluation of relevant locations and recording of observations through photographs or other means.  Students and employees are requested to produce any relevant records upon request. A failure to produce requested records will be noted in the final investigation report.

       3.  Expert Witnesses.  Investigators may seek information from university officials or others with relevant scientific or other specialized knowledge, to help understand evidence, evaluate medical records, or determine a disputed issue.  Parties may provide or suggest an Expert Witnesses as well.  

       4.  Credibility assessment.  Investigators may assess the credibility of evidence provided by a party or witness based on consistency of statements, plausibility of statements made, and contrary evidence provided.  An investigator’s assessment that certain evidence lacks credibility is provided as information to assist the Determination Official(s) in considering the relative weight and value of that evidence.   

If allegations or evidence of retaliation or misconduct relating to the investigation itself (witnesses collaborating or destroying or concealing evidence, for example) arise during the course of the investigation, the investigator will consult with the Review Team to determine whether other measures are necessary to respond to the reported retaliation or misconduct, and to decide whether to address the reported retaliation as part of the current investigation.   

E. Evidence Review and Response by the Complainant and Respondent.  At the conclusion of the investigation and prior to the distribution of the investigation report, all parties and their advisors are permitted to review any evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint, including the evidence upon which the university does not intend to rely in reaching a determination regarding responsibility, and exculpatory evidence whether obtained from a party or other source, so that each party can meaningfully respond to the evidence prior to conclusion of the investigation.  Parties and advisors are provided simultaneous access to the information in electronic format.  Parties will have ten (10) business days to review and respond to the information provided by submitting any or all the following to the lead investigator: 
  • written comments, corrections, or clarifications to any party or witness statement; 
  • request for the university to rely on particular evidence for specific reasons that may not be evident in the information;  
  • new information or evidence not already provided; 
  • request for further investigation or evidence collection with regards to specific information (e.g. a specific witness not interviewed, or a specific detail not queried of a witness previously).  

Any response provided by a party will be shared with the other party(ies). 

F. Investigation Report.  Investigators will review and consider all relevant evidence, including the parties’ responses to the evidence, and produce the investigation report.  The report typically includes: 
  • a description of the allegations investigated including the elements of each alleged policy violation, 
  • relevant information regarding the parties, key witnesses (if any), and other contextual matters such as locations or specific events, 
  • a summary of the investigation process, i.e., the witnesses interviewed and evidence collected, 
  • a timeline of events, if useful, 
  • relevant records, such photographs and text messages, or summaries or redacted copies of such records as required, and 
  • a summary of the relevant evidence discovered, outlining which elements of each allegation are contested and relevant corroborating or contradicting evidence. As an example, a report may state that sexual contact was not disputed and that the only disputed issue is whether effective consent was given/received, then proceed to summarize the evidence found relevant to the existence of effective consent.   
  • The investigation report may include evidence of impact of the alleged misconduct on the complainant, to the extent such evidence is relevant in determining whether the alleged misconduct occurred.  

Investigator(s) will provide a copy of the investigation report and relevant evidence collected, including the parties’ response to the evidence, to the parties and the Determination Official(s).  The investigation report will not conclude if a policy violation has occurred.  The investigation report may include the investigators’ assessment of the credibility of witnesses’ statements and strength of specific evidence. 

The parties will have ten (10) business days to review the investigation report prior to the determination conference being conducted or the issuance of an administrative determination, in cases not alleging misconduct under the Title IX Policy.  Parties may provide a personal statement to be shared with the Determination Official(s) not to exceed 3,000 words, including any relevant information about personal circumstances to be considered by the Determination Official(s).  Any personal statement provided by a party will be shared with the other party(ies) prior to the determination conference.  Parties must submit personal statements to the Title IX Coordinator eight (8) business days after receipt of the investigation report.  

G. Standard of Review. The Determination Official(s) is (are) responsible for issuing a determination of whether there was a policy violation established by the preponderance of the evidence.  Preponderance of the evidence means that it is more likely than not that the alleged conduct occurred.  

H. Administrative or Conference Determination.  The Determination Official(s) will review the report, any responses and personal statements.  The Determination Official(s) may request additional investigation or information by or from the investigator(s).  The parties will be notified contemporaneously of any additional investigation or supplemental information provided.   After the Determination Official(s) review(s) the case file, they either (1) issue a determination of whether there was a policy violation based on the investigation report, supporting evidence and statements submitted by the parties in response to the investigation report (Administrative Determination) or (2) hold a determination conference (Conference Determination).   

A Conference Determination is automatically held if one or more allegation involves misconduct defined as Title IX Sexual Harassment under the Title IX Policy.   

For allegations of misconduct defined in the Discrimination Policy that are investigated under the procedure, if the Determination Official deems it necessary to resolve issues of fact, to assess credibility of one or more of the parties or witnesses, or if the Determination Official(s) has (have) questions about the investigation process, the Determination Official(s) may elect to hold a Determination Conference.  Typically, if the critical facts of an allegation are not in dispute, a conference is not appropriate.  If there is sufficient evidence substantiating a disputed point - such as photographs, text messages, or witness statements - a conference is not necessary to resolve that point. Parties will be notified of the Determination Official’s decision to resolve through administrative determination and have an opportunity to respond prior to the determination notice.   

  1. Administrative Determination. Administrative determination is documented in a determination notice shared with the parties.  The determination notice will be sent to both parties at the same time, with copies to the Dean of Students and the Title IX Coordinator.  The determination notice communicates the determination(s) made as to each allegation and the rationale for the determination, including the reasoning for not holding a determination conference if a party objected to the resolution method..  The notice also provides sanctions imposed in cases where a respondent is found responsible for a policy violation.  The notice includes the written procedures for appealing the determination and/or the sanctions, as provided in Section VIII of this procedure.    
  2. Conference Determination.  If a conference determination is held, the Determination Official(s) conduct(s) a live hearing according to the guidelines outlined in Appendices  A and B of this procedure.  The Determination Official(s) interview(s) the parties and relevant witnesses regarding the allegation(s) at issue.  The parties may listen to and/or watch the live interviews via audio or video feed.  Parties’ advisors may attend the conference, subject to the general rules regarding advisor participation (see Section V(E)).  Parties may also be accompanied by a silent support person.   
  • a.  Adjudication of Misconduct Defined under Title IX Policy.  Additional procedural requirements for Conference Determination include: 
    • i. Direct Questioning of Parties and Witness by Party’s Advisor.  Each party’s advisor is permitted to ask either party and any witnesses all relevant questions and follow-up questions, including those challenging credibility.  A party may not conduct direct questioning, and the university shall provide an advisor of the university’s choice to conduct direct questioning for any party who does not have their own advisor.   If the manner in which an advisor attempts to ask the question is harassing, intimidating, or abusive, the university reserves the right to enforce its Rules of Decorum for Determination Conference, including removal of the advisor and require a replacement.   
    • ii. Relevancy.  Only relevant direct questions, including relevant questions relating to a person’s credibility, may be asked of a party or witness and the decision-maker must determine the relevance of a question before a party or a witness answers.   
      • 1. Prior Sexual Behavior.  Questions regarding sexual behavior unrelated to the alleged conduct are not relevant unless such questions and evidence about the complainant’s prior sexual behavior are offered to prove that someone other than the respondent committed the conduct alleged” or the “questions and evidence concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent. 
      • 2. Medical, Psychological and Similar Records.  Questions about any party’s medical, psychological and similar records are not permitted unless the party have given written consent.  Other records protected by a legally recognized privilege are not permitted unless waived by the party. 
  • b. Determination Notice.  Within three (3) business days of the determination conference, the Determination Official(s) issue(s) a determination notice to the parties.  The notice will be sent to both parties at the same time, with copies to the Dean of Students and Title IX Coordinator.  The determination notice summarizes the procedure followed from the receipt of the formal complaint through the determination, including any notifications provided to the parties, any evidence collected, any site visits conducted, and any determination conference held.  The determination notice communicates the determination(s) made as to each allegation and the reasoning for the determination, including the findings of fact that support the determination and conclusions regarding the application of the policy to the facts.  It provides sanctions imposed in cases where a respondent is found responsible for a policy violation and determines 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. If there are sanctions that do not directly relate to the complainant, the complainant will be informed of these sanctions to the extent permitted by federal law.8  
    • The determination regarding responsibility becomes final either on the date that the recipient provides the parties with the written determination of the result of the appeal, if an appeal is filed, or if an appeal is not filed, the date on which an appeal would no longer be considered timely. 
    • The notice includes the written procedures for appealing the determination and/or the sanctions, as provided in Section VIII of this procedure.    
I. Determination of Sanctions and Remedies. Sanctions are determined by the Determination Official(s) in consultation with the Dean of Students or designee. The purpose of the sanctions is to prevent recurrence of similar conduct by the respondent or others and to eliminate a hostile environment for the complainant and the campus.  Sanctions are imposed within the range specified below for the violation, on a case-by-case basis considering the following factors: 
  • nature and specific facts of the violation,  
  • any conduct or honor violation history of the respondent,  
  • mitigating and aggravating factors,  
  • institutional practice, and  
  • the university’s goals, values and mission.   

  Depending on the circumstances, a finding of responsibility for rape or non-consensual sexual intercourse will likely result in at least one-semester suspension.  If a respondent has completed their degree requirements prior to the determination, the respondent’s degree will not be conferred until determination, and if there is a finding of responsibility, the degree will not be conferred until satisfactory completion of all sanctions. 

The potential primary and secondary sanctions are: 

  1. Primary Sanctions  
  • Permanent Dismissal: an involuntary separation of the student from William & Mary without the possibility of future readmission in any program. The student must leave the campus and is not eligible to participate in classes or any university-sponsored or university-related activities.  The student is not permitted on campus without prior written permission from the Dean of Students or designee.  The sanction is noted permanently on the student's transcript.   
  • Disciplinary Suspension of a definite or indefinite duration: an involuntary separation from the university during which the student must leave the campus and is not eligible to participate in classes or any university-sponsored or university-related activities.  During the period of suspension, the student is not permitted on campus without prior written consent from the Dean of Students or designee.  The sanction is noted on the student's transcript but is removed if the student is reinstated to good standing at the university. A definite suspension is a suspension that ends on a date determined by the Determination Official issuing the sanction. On or after such date the student may apply for re-enrollment. Suspensions are noted on the student’s transcript but are removed once the period of suspension has been completed.   
    • An indefinite suspension is a suspension that requires the student to petition the Dean of Students for reinstatement to good standing after a minimum period of time.  In such instances, the student must satisfy conditions necessary for reinstatement outlined by the Determination Official in the determination notice.  Conditions include, but are not limited to, personal progress in counseling, community service hours, reflection statement demonstrating personal growth and an understanding of the reason for suspension, and/or substance abuse treatment. 
      • The Dean or her designee determines if the student is entitled to reinstatement to good standing based on evaluation of the conditions of reinstatement.  The sanction of indefinite suspension is noted on the student’s transcript but is removed if the student is reinstated to good standing at the university. 
    • Reinstatement Process 
      • When the Determination Official assigns the sanction of indefinite suspension, the Dean of Students or designee determines whether the charged party has met the conditions necessary for reinstatement.  
      • The Dean or designee will have access to all file materials from the original determination, may require the respondent to make a personal appearance before the Dean or designee, and may solicit other information to reach a decision.  
  • Deferred Suspension: issued either for violations serious enough to warrant suspension, but where the specific circumstances of the case mitigate the offense or for repeated offenses of a less serious nature.  Deferred suspension is a designated period of time during which a student is given the opportunity to demonstrate the ability to abide by the community’s expectations of behavior articulated in the Student Code of Conduct and university policies.  A student on deferred suspension status is considered not in good standing and cannot represent the university as an official delegate or representative, hold an office (elected or appointed), in university groups of any kind,  or participate in university-sponsored travel or study abroad/study away. If the student is found responsible for violating any additional university code, policy or regulation during the period of Deferred Suspension, the Director of Community Values and Restorative Practices (or designee) can issue an immediate suspension from the university, and the student can be subject to additional sanctions for the subsequent violation(s). Deferred suspensions are noted on the student’s transcript but are removed once the sanction period has been completed. 
  • Disciplinary Probation: continued enrollment but with a warning that further misconduct or violation of university policy during the period of probation will be referred to the Office of Community Values and Restorative Practices and may result in the student's separation from the university. 
  • Warning: a notation on a student’s record confirming that a minor violation of university policy has occurred and that future violations may result in more severe sanctions.  No student may receive more than two warnings in an academic year without more serious action being taken. 

        2. Secondary Sanctions: 

  • Loss or Restriction of Privileges: the limitation or removal of specified social or personal privileges including, but not limited to, loss or restriction of computer privileges, entertainment of guests in the private areas of a residence hall, participation in social activities sponsored by the university or a residence hall, and/or the right to operate an automobile on campus. In addition, a student's current or subsequent year's Housing Agreement may be terminated or special conditions attached to it, or the student may suffer a reduction in priority of a specified number of places in the room selection process of a subsequent year. 
  • Loss of Housing 
  • Deferred Loss of Housing: the sanction of Loss of Housing may be placed in deferred status. If a student is found in violation of any university rule during the time of the deferred sanction, the Director of Community Values and Restorative Practices (or designee) can remove the student from housing immediately without further review. Additional student conduct sanctions appropriate to the new violation may also be issued. In addition, a student with Deferred Loss of Housing will not be eligible to hold an elected or appointed office in any affiliated housing organization. 
  • Housing Probation: an official notice that the student’s conduct is in violation of residence hall rules and/or university rules and that more stringent student conduct sanctions, including removal from housing, may result if future violations occur. In addition, a student serving Housing Probation is ineligible to hold an elected or appointed office in any affiliated housing organization. 
  • Educational Requirement: the requirement that the student complete one or more specific educational activities directly related to the violation committed. 
  • Task/Service Participation: the requirement that the student participate in assigned tasks that are appropriate to the regulation violated or behavior displayed. 
  • Restitution: the requirement that the student reimburse the university, appropriate individual or organization for damage, personal injury, or misappropriation. 
  • Alcohol/Substance Abuse Counseling/Education 
  • Written Apology 
  • Essay/Reflection or Research Paper 
  • Counseling with Certified Counselor 
  • Unilateral No Contact Order 
  • Relocation of Housing 
  • Required Withdrawal from Course 
  • Required Withdrawal from Student Organization 
  • Assignment to Mentor Program 

Sanctions are effective immediately upon being imposed by the Determination Official.  If the sanction includes suspension or dismissal, however, the effective date of the sanction will be evaluated on a case-by-case basis.  In those cases where sanctions are suspended pending appeal, supportive measures typically will continue in effect and additional measures may be imposed during the appeal period, if the Dean of Students determines that the continued presence of the student constitutes a risk of substantial disruption to the educational endeavors of an individual or the educational mission of the university.  If the sanction is not imposed immediately, the student will be considered not in good standing and will be subject to the same restrictions as students with Deferred Suspension status (see above) while enrolled prior to the imposition of the sanction. 

       3.  Expungement.  Under state law, a student with a transcript notation for a policy violation arising from sexual misconduct (Title IX Policy or Discrimination Policy Sexual Misconduct) may request expungement of such notation for good cause after three years according to institutional policy. 

 

J.  Hostile Environment Assessment; Remedies and Support Services.  The Dean of Students or designee and the Title IX Coordinator will ensure that appropriate remedies and services are offered to the complainant, regardless of the outcome.  The goal of remedies is to restore the complainant’s ability to enjoy institutional programs, benefits, and activities, to remedy harm (if applicable), and to prevent a hostile environment from being created and/or continuing.  The Title IX Coordinator is responsible for ensuring a hostile environment is not created for the complainant or other students and for effective implementation of any remedies.  

 The Dean or designee and the Title IX Coordinator will also offer appropriate services or support to the respondent, if there is a demonstrated need or request for such services.  

Potential remedies for either party may include: 

  • arranging to re-take a course or withdraw from a class(es) without penalty, 
  • extending any supportive measures defined in Section III (or initiating similar measures not already put into place) 

Typically, each party will be notified of the remedies and/or services specifically offered to them, but not to the other party. 

VIII.      Appeals

The appeal is an objective, independent review designed primarily to detect any significant errors in the investigation or determination.  The appeal is not a de novo review—the appellate officer does not review the case as if considering it for the first time.  Instead, the appeal is made with deference to the determination and to investigators’ actions, such as decisions regarding relevance of evidence, within the scope of this procedure.  Both parties have the right of appeal. The appellate officer reviews all appeals.

A.    Appeal Grounds and Outcomes. Parties may appeal the determination and/or the sanction, and complainants may appeal the decision to dismiss a formal complaint or any allegation therein on the following grounds:

  1. Material procedural error. The appeal must specify the procedural provision that was violated and the impact of this violation; procedural or technical deviations that do not affect the outcome of the determination will not be sufficient to sustain an appeal.  Examples of procedural errors that may be sufficient to sustain an appeal include failure to provide a party with an opportunity to review all evidence, including exculpatory evidence collected, failure to provide a party to respond to the investigation report (violation of Section VII(F)) or inclusion of polygraph results as evidence (violation of Section V(M)). If the appellate officer grants an appeal on the basis of procedural irregularity, they typically will remand the matter to remedy the irregularity, if appropriate. 
  2. The decision is inconsistent with the weight of the evidence. In reviewing an appeal based on this ground, the appellate officer does not replace the Determination Official’s judgment with their own; they review the matter to determine whether the evidence presented appears sufficient to support a determination based on the preponderance of the evidence standard.  If the appellate officer grants an appeal on this basis, they may modify the determination or may order further investigation. 
  3. New material evidence that (a) is not merely corroborative or repetitive and (b) was previously unknown or unavailable to the party and pertinent to the case that affected the outcome of the determination. The appealing party must provide an explanation as to why the evidence was unknown or unavailable.  If the appellate officer grants an appeal on this basis, they typically will remand the matter to the Determination Official for additional investigation or consideration. 
  4. Bias.  The Title IX Coordinator, investigator(s), or Determination Official 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. The appealing party must provide details or examples of why the individual had a conflict of interest or bias that affected the outcome of the determination.  If the appellate officer grants an appeal on this basis, they typically will remand the matter to the Title IX Coordinator for reassignment to a different investigator or Determination Official. If the appellate officer determines that the Title IX Coordinator was found to have a conflict of interest or bias that affected the outcome of the case, the case will be reviewed by the Provost to determine if the matter should be dismissed entirely or can be remedied for a fair and equitable outcome with another university administrator serving as the Title IX Coordinator.
B.     Appeal Process and Timeline.  Appeals must be submitted to the Title IX Coordinator within five (5) business days of the Determination Official’s issuance of the notification of determination.  All appeals must be in writing and clearly cite the ground(s) for the appeal and the evidence supporting it.  Appeals are limited to 3500 words, unless an exemption is granted.   The Title IX Coordinator or designee submits the appeal and all relevant case records to the appellate officer.  A copy of the appeal is shared with the other party.   The other party has three (3) business days to provide a written response to the appeal.  The appellate officer may confer with appropriate individuals, in order to obtain information necessary to make a fully-informed decision. 

The appellate officer shall render a determination on the appeal within ten (10) business days of the receipt of the appeal packet.  Written notice of the appeal decision, including the reasons for the decision and that the decision is final will be provided contemporaneously to all parties.  The appellate officer’s determination is final and not subject to further appeal. 

IXApproval, Amendment and Interpretation. 

This procedure was approved by the President effective February 6, 2015, by separating the procedure from the Sexual Misconduct Policy and making significant changes to the procedure important modifications and improvements to ensure compliance with applicable law and regulatory guidance.  

This procedure was amended by the President, on an interim basis, effective September 16, 2015, to make various changes including to comply with Virginia law effective July 1, 2015, and change the process for making determinations of violations from a hearing panel model to an investigative/administrative resolution model.  The procedure was finalized by the President effective September 23, 2016, with certain revisions.9 The procedure was amended by the President effective October 20, 2017, to modify time periods for investigation and resolution steps, to add a formal opportunity for both parties to respond to the final investigation report in writing, and to make clarifying modifications and additions.    

The Title IX Coordinator, with notification to the President, may make minor or technical revisions to this procedure. Effective December 2017, the Title IX Coordinator made two technical corrections relating to time periods.  

This procedure was amended by the President effective August 22, 2018, to (1) reduce (shorten) timelines for a number of process steps, (2) create an independent Determination Official role, replacing a process for review and response to a preliminary investigation report with a determination conference held by the Determination Official when deemed appropriate, and separating the role of determination of sanctions and remedies from the role of determination of policy violation, (3) specify the obligation of the Title IX Coordinator to determine whether a hostile environment has been created, (4) modify the provision regarding parties’ decision whether to participate in an investigation, (5) make conforming changes regarding sanctions (conforming to changes in terminology used by Student Conduct) and expanding the list of secondary sanctions. 

This procedure was amended by the President effective August 14, 2020, to comply with Department of Education amendments to part 106 of title 34 of the Code of Federal Regulations and to Code of Virginia Amendments to §23.1-900. 

This procedure was amended by the President effective August 16, 2021 to 1) clarify required and discretionary dismissal of formal complaint; 2) include additional alternative resolution options as permissible under the regulations; and 3) to eliminate in mandatory minimum sanctions for categories of misconduct.   

The Title IX Coordinator is responsible for interpreting this procedure. 



[1] Business days refers to days that William & Mary’s administrative offices are open.  During the winter break, to allow for prompt resolution, timelines may be compressed and/or may be specified to fall on days when the university is closed for the break.

[2]  See Section VII.H.2.a. of this procedure for additional procedural requirements provided for adjudication of alleged misconduct under the Title IX Policy

[3] Formal complaints of Title IX Sexual Harassment in education programs and activities in the United States including the following settings:  1. Buildings or other locations that are part of the school’s operations, including remote learning platforms (e.g. Williamsburg campus, VIMS campus, Washington Center); 2. Off-campus settings if the school exercised substantial control over the respondent and the context in which the alleged sexual harassment occurred (e.g. a school sponsored trip for recognized student organization or athletic team); and 3. Off-campus buildings owned or controlled by a student organization officially recognized by the institution, such as a building owned by a recognized fraternity or sorority. (e.g. a building owned or controlled by the organization itself and not owned or controlled by members of the organization as individuals).

[4] The Records Privacy Policy specifies that William & Mary may disclose the final results of a disciplinary proceeding. In accordance with FERPA, the Dean’s determination of certain policy violations is a final result of a disciplinary proceeding.  The disclosure that may be made is the student’s name, the sanction(s) imposed, and the policy violation.

[5] Data regarding specific incidents disclosed in the daily crime log or Annual Security Report do not include student names or other specific information regarding identifiable students.

[6] Under General Schedule GS-111, Series 1011173 and 1011174, student investigative or disciplinary records are to be retained for three years after the end of the academic year.  Under General Schedule GS-103, Series 100479, investigative files relating to discrimination complaints against an employee are to be retained for three years.

[7] Sexual violence, for this purpose, is defined by Section 23-9.2:15 of the Virginia Code as “physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent.”

[8] The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, the Family and Educational Rights and Privacy Act, and the Violence Against Women Reauthorization Act of 2013 each have provisions relating to disclosure of sanctions for sexual misconduct.

[9] Prior versions of this procedure are available from the Office of Compliance & Equity.

 

 

 

 

[3] The Records Privacy Policy specifies that William & Mary may disclose the final results of a disciplinary proceeding. In accordance with FERPA, the Dean’s determination of certain policy violations is a final result of a disciplinary proceeding.  The disclosure that may be made is the student’s name, the sanction(s) imposed, and the policy violation.

[4] Data regarding specific incidents disclosed in the daily crime log or Annual Security Report do not include student names or other specific information regarding identifiable students.

[5] Under General Schedule GS-111, Series 1011173 and 1011174, student investigative or disciplinary records are to be retained for three years after the end of the academic year.  Under General Schedule GS-103, Series 100479, investigative files relating to discrimination complaints against an employee are to be retained for three years.

[6] Sexual violence, for this purpose, is defined by Section 23-9.2:15 of the Virginia Code as “physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent.”

[7] The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, the Family and Educational Rights and Privacy Act, and the Violence Against Women Reauthorization Act of 2013 each have provisions relating to disclosure of sanctions for sexual misconduct.

[8] In compliance with Virginia Code 23.1-900.

[9] Prior versions of this procedure are available from the Office of Compliance & Equity.

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