Student Sexual Misconduct Policies and Procedures

1. Procedures for Violations of Sexual Misconduct Policy (non-TIX)

   Procedures for Violations of Sexual Misconduct Policy (non-TIX)

   1. Overview

   Luther College will act on any formal Complaint of a violation of the policy on Sexual Misconduct received by the Title IX Coordinator or any other Official with Authority that fall within the scope of this policy by applying these procedures

   The procedures below apply only to qualifying allegations of sexual misconduct (including sexual assault, dating violence, domestic violence, stalking, and sexual exploitation as defined above) involving students.

   For details relating to disability accommodations in the College’s resolution process please contact the Title IX Coordinator. At times, the Title IX Coordinator will need to consult with the Coordinator of Disability Services.

   2. Report or Complaint

   When the College receives a report of potential sexual misconduct, in most cases outreach will be done by the Title IX Coordinator with the Complainant to identify reporting options (discussed in another section) within and outside the College and to offer supportive measures.

   Upon receipt of a formal complaint of a violation of this policy, the Title IX Coordinator will promptly conduct an initial assessment to determine the next steps the College needs to take. The College will initiate at least one of two responses:

   1) Provide the Complainant with assistance and support only, based on the Complainant’s request that the College not take action, where that request is not clearly unreasonable;
   2) Determine the circumstances do not satisfy the jurisdictional requirements of Title IX at 34 CFR 106.45 and resolve the complaint under this Policy’s informal or formal resolution procedures;

   The investigation and grievance process will determine whether or not the Policy has been violated. If so, the College will promptly implement effective remedies designed to ensure that it is not deliberately indifferent to sexual misconduct, its potential recurrence, or effects.

   3. Dismissal (Discretionary)

   The College may dismiss a formal complaint or any allegations therein if, at any time during the investigation or hearing:
   

   1) A Complainant notifies the Title IX Coordinator in writing that the Complainant would like to withdraw the formal Complaint or any allegations therein; or
   2) The Respondent is no longer enrolled in or employed by the College; or
   3) Specific circumstances prevent the College from gathering evidence sufficient to reach a determination as to the formal Complaint or allegations therein.
   

   Upon dismissing the Complaint, the College will promptly notify the parties. This dismissal decision is appealable by any party. A Complainant who decides to withdraw a Complaint may later request to reinstate or refile it.

   4. Counterclaims

   The College permits the filing of counterclaims but uses an initial assessment, described above, to assess whether the allegations in the counterclaim are made in good faith. The College is obligated to ensure that the grievance process is not abused for retaliatory purposes. Counterclaims by the Respondent may be made in good faith, but are, on occasion, also made for purposes of retaliation. Counterclaims made with retaliatory intent will not be permitted.

   Counterclaims determined to have been reported in good faith will be processed using the grievance procedures below. Investigation of such claims may take place after resolution of the underlying initial allegation, in which case a delay may occur.

   Counterclaims, in most circumstances, will be resolved through the same investigation and the same hearing, at the discretion of the Title IX Coordinator. When counterclaims are not made in good faith, they will be considered retaliatory and may constitute a violation of this policy.

   5. Right to an Advisor

   The parties may each have an Advisor of their choice, at their expense, present with them for all meetings and interviews within the resolution process, if they so choose. The parties may select whoever they wish to serve as their Advisor. The party should choose an Advisor who can be consistently available to attend meetings during business hours. The College will attempt to schedule meetings at mutually convenient times, but cannot unduly delay the process to accommodate an Advisor with limited availability.

   The College may permit parties to have one additional support Advisor in the waiting room for a hearing, such as an advocate, upon special request to the Director of Student Rights and Responsibilities and/or Title IX Coordinator 5 business days in advance of the hearing. The decision to grant this request is at the sole discretion of the Director of Student Rights and Responsibilities and/or Title IX Coordinator and will be granted equitably to all parties should each party request it.

   a. Who Can Serve as an Advisor

   The Advisor may be a friend, faculty or staff member, family member, attorney (at the party’s own cost), or any other individual a party chooses to advise, support, and/or consult with them throughout the resolution process. For cases of sexual misconduct, the parties may choose Advisors from inside or outside of the College community.

   b. Advisor’s Role

   The parties may be accompanied by their Advisor in all meetings and interviews at which the party is entitled to be present, including intake and interviews. Advisors do not have the right to view the Hearing folder alone or independently from the Respondent. Advisors may be present to consult with during the Hearing, but may not ask questions or make comments during the hearing.

   c. Pre-Interview Meetings

   All Advisors must sign a Luther College Advisor Agreement Form prior to serving for a case as to understand the role and the College’s policies and procedures. Advisors are not able to speak for the parties during the investigative process.

   d. Advisor Violations of College Policy

   All Advisors are subject to the same College policies and procedures, whether they are attorneys or not. Advisors are expected to advise their party without disrupting proceedings. Advisors should not address College officials in a meeting or interview. The Advisor may not make a presentation or represent their party during any meeting or proceeding and may not speak on behalf of the party to the Investigator(s) or Luther College Hearing Board members.

   The parties are expected to ask and respond to questions on their own behalf throughout the investigation and hearing. Although the Advisor generally may not speak on behalf of their party, the Advisor may consult with their party, either privately as needed, or by conferring or passing notes during any resolution process meeting or interview, or during a hearing. For longer or more involved discussions, the parties and their Advisors should ask for breaks to allow for private consultation.

   If an Advisor disrupts or otherwise fails to respect the limits of the Advisor role, the meeting will be ended or other appropriate measures implemented. Subsequently, the Director of Student Rights and Responsibilities and/or Title IX Coordinator will determine how to address the Advisor’s non-compliance and future role.

   e. Expectations of an Advisor

   The College generally expects an Advisor to adjust their schedule to allow them to attend the College meetings when planned, but may change scheduled meetings to accommodate an Advisor’s inability to attend, if doing so does not cause an unreasonable delay and is still completed with typical business hours. The College may also make reasonable provisions to allow an Advisor who cannot attend in person to attend a meeting by telephone, video conferencing, or other similar technologies as may be convenient and available.

   f. Sharing Information with the Advisor

   The College expects that the parties may wish to have the College share documentation and evidence related to the allegations with their Advisors. Parties may share this information directly with their Advisor, but the advisor will be under the same expectations of privacy as the party. Doing so may help the parties participate more meaningfully in the resolution process.

   These records may not be shared with third parties, disclosed publicly, or used for purposes not explicitly authorized by the College. The College may seek to restrict the role of any Advisor who does not respect the sensitive nature of the process or who fails to abide by the College’s privacy expectations. The College may require both parties and their Advisors to enter into a written agreement prohibiting the use or dissemination of evidence for any purpose other than those directly related to the parties’ participation in the resolution process.

   6. Resolution Processes

   Resolution proceedings are private. All persons present at any time during the resolution process are expected to maintain the privacy of the proceedings in accordance with the College policy. The College asks for discretion in minimizing the sharing of information so as to respect the sensitivity of this matter for all parties.

   7. Alternative Resolution

   Situations involving sexual misconduct are unique and present myriad difficulties for the students involved. Although Luther College believes that the formal grievance process is best equipped to address sexual misconduct within our community, the college recognizes that in some cases the parties’ needs may be best met by more flexible processes. Accordingly, the college has established a structured Alternative Resolution model that focuses on remedies, support, and accountability outside of the traditional grievance process as an additional option for Complainants.

   It is not necessary to pursue Alternative Resolution first in order to pursue a Formal Grievance Process, and any party participating in Alternative Resolution can stop the process at any time and begin or resume the Formal Grievance Process.

   The College will obtain voluntary, written confirmation of the Alternative Resolution Agreement Form that all parties wish to resolve the matter through Alternative Resolution before proceeding and will not pressure the parties to participate. For more information please see the Title IX Policy.

   8. Formal Grievance Process: Notice of Investigation and Allegations

   Once the decision to commence a formal investigation is made, the Title IX Coordinator and/or the Director of Student Rights and Responsibilities appoints two investigators to conduct the investigation, usually within two (2) business days of determining that an investigation should proceed.

   The Title IX Coordinator and/or the Director of Student Rights and Responsibilities will provide written notice of the investigation and allegations (the “NOIA”) to the Respondent upon commencement of the Formal Grievance Process. This facilitates the Respondent’s ability to prepare for the interview and to identify and choose an Advisor to accompany them if desired. The NOIA is also copied to the Complainant, who is to be given advance notice of when the NOIA will be delivered to the Respondent.

   The NOIA will include:
   

   • The identity of the involved parties (if known),
     
   • The misconduct being alleged,
     
   • The date and location of the alleged incident(s) (if known),
     
   • The policies implicated,
     
   • A statement that the College presumes the Respondent is not responsible for the reported misconduct unless and until the evidence supports a different determination,
     
   • Information on the right to an Advisor of their choosing,
     
   • A statement informing the parties that the College’s Policy prohibits knowingly making false statements, including knowingly submitting false information during the resolution process,
     
   • Detail on how the party may request disability accommodations during the interview process and formal grievance process,
     
   • The name(s) of the Investigator(s), along with a process to identify, in advance of the interview process, to the Director of Student Rights and Responsibilities and/or Title IX Coordinator any conflict of interest that the Investigator(s) may have, and the parties’ rights to review and comment on investigative evidence.
     

   Amendments and updates to the NOIA may be made as the investigation progresses and more information becomes available regarding the addition or dismissal of various charges.

   9. Resolution Timeline

   The College will make a good faith effort to complete the resolution process within sixty-to-ninety (60-90) business days, including appeal. This timeline can be extended as necessary for appropriate cause by the Title IX Coordinator and/or the Director of Student Rights and Responsibilities, who will provide notice and rationale for any extensions or delays to the parties and an estimate of how much additional time will be needed to complete the process.

   The investigation phase of the process is completed expeditiously in a timely manner. Though some investigations may take weeks or even months, depending on the nature, extent, and complexity of the allegations, availability, and volume of witnesses, law enforcement involvement, etc.

   The College may undertake a short delay in its investigation (several days to a few weeks) if circumstances require. Such circumstances include but are not limited to: a request from law enforcement to temporarily delay the investigation, the need for language assistance, the absence of parties and/or witnesses, and/or accommodations for disabilities, special circumstances or health conditions.

   The College action(s) are not typically altered or precluded on the grounds that civil or criminal charges involving the underlying incident(s) have been filed or that criminal charges have been dismissed or reduced.

   10. Criminal Process

   The College Formal Grievance Process and the criminal process are not mutually exclusive. This means that an individual may pursue both complaint avenues at the same time, and students and employees are encouraged to do so for any act of sexual misconduct that may constitute a crime. If appropriate, the College may postpone temporarily its proceedings so as not to interfere with law enforcement.

   The College will produce records in response to a lawfully issued subpoena or court order without the student or employee’s consent. When student records are requested the College will notify students of its intent to comply with as required by the FERPA regulations at 34 CFR § 99.31(a)(9). The purpose of this advance notification requirement is to afford the student an opportunity to contest the subpoena in court.

   11. Ensuring Impartiality

   Any individual materially involved in the administration of the resolution process including the Director of Student Rights and Responsibilities and/or Title IX Coordinator, Investigator(s), and Hearing Board Chair and members may neither have nor demonstrate a conflict of interest or bias for a party generally, or for a specific Complainant or Respondent.

   The Title IX Coordinator and/or the Director of Student Rights and Responsibilities will review the assigned Investigators to ensure impartiality by ensuring there are no actual or apparent conflicts of interest or disqualifying biases. The parties may, at any time during the resolution process, raise a concern regarding bias or conflict of interest, and the Title IX Coordinator and/or the Director of Student Rights and Responsibilities will determine whether the concern is reasonable and supportable. If so, alternate personnel will be assigned and the impact of the bias or conflict, if any, will be remedied. If the source of the conflict of interest or bias is the Title IX Coordinator and/or the Director of Student Rights and Responsibilities, concerns should be raised with the Director of Human Resources.

   The Formal Grievance Process involves an objective evaluation of all relevant evidence obtained, including evidence which supports that the Respondent engaged in a policy violation and evidence which supports that the Respondent did not engage in a policy violation. Credibility determinations may not be based solely on an individual’s status or participation as a Complainant, Respondent, or witness.

   The College operates with the presumption that the Respondent is not responsible for the reported misconduct unless and until the Respondent is determined to be responsible for a policy violation by the applicable standard of proof.

   12. Steps in the Investigation Process

   All investigations are thorough, reliable, impartial, prompt, and fair. Investigations involve interviews with all relevant parties and witnesses, and obtaining available relevant evidence, both inculpatory and exculpatory.

   All parties have a full and fair opportunity, through the investigation process, to suggest witnesses and questions, to provide evidence, and to fully review and respond to all evidence on the record.

   The Investigator(s) typically take(s) the following steps (not necessarily in this order):

   • Interview the Complainant and Respondents separately. Each party will be asked to participate in an initial interview and may be asked to participate in a follow-up interview(s) as needed.
   • When participation of a party is expected, provide that party with notice of the date, time, and location of the meeting
   • Interview all available, deemed relevant witnesses and conduct follow-up interviews as necessary
     
   • Allow each party the opportunity to suggest relevant witnesses
     
   • Allow each party the opportunity to request an expert witness at the party’s personal expense
     
   • Complete the investigation promptly and without unreasonable deviation from the intended timeline
     
   • Provide regular status updates to the Title IX Coordinator and/or the Director of Student Rights and Responsibilities throughout the investigation
     

   Neither party will be restricted in their ability to discuss the allegations or to gather and present relevant evidence; provided, however, that such communications shall not constitute harassment of or retaliation against any party.

   The Complainant and Respondent will be provided the opportunity to inspect all evidence directly related to the allegations of the formal complaint The College may require both parties and their advisors to enter into a written agreement prohibiting the use or dissemination of evidence for any purpose other than those directly related to the parties’ participation in the resolution process.

   Complainant and Respondent will be given the opportunity to inspect and review the evidence collected during the College’s investigation. The parties can waive all or part of this inspection period. The parties can waive all or part of this inspection period.

   13. Role and Participation of Witnesses in the Investigation

   Luther College encourages all individuals with relevant information to participate in the resolution process, and will support their participation. However, the College does not compel students to participate.

   While in-person interviews for parties and all potential witnesses are ideal, circumstances (e.g., study abroad, summer break) may require individuals to be interviewed remotely. Zoom, Google Hangout, or similar technologies may be used for interviews if the Investigator(s) determine that timeliness or efficiency dictate a need for remote interviewing. The College will take appropriate steps to reasonably ensure the security/privacy of remote interviews.

   14. Recording of Interviews

   No unauthorized audio or video recording of any kind is permitted during investigation meetings. If Investigator(s) elect to audio and/or video record interviews, all involved parties must be made aware of audio and/or video recording.

   15. Evidentiary Considerations in the Investigation and Hearing

   The investigation does not consider questions and evidence about the Complainant’s sexual predisposition or prior sexual behavior unless such questions and evidence are offered to prove that someone other than the Respondent committed the conduct alleged by the Complainant, or if 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. At the hearing, the Board will not consider information or questions raised concerning: 1) incidents not directly related to the possible violation(s), 2) previous sexual history not related to the case, 3) personal mental health, or 4) defamation of character in regard to either party.

   The Investigator(s) will only access, consider, disclose, or otherwise use a party’s treatment records made or maintained by a health care provider, or other records protected under a legally recognized privilege if the party provides the Investigator(s) with voluntary, written consent to do so.

   16. Referral for Hearing

   If the allegations do appear to have merit, the Director of Student Rights and Responsibilities may resolve the charges administratively by mutual consent of the parties involved on a basis acceptable to the Title IX Coordinator. Such disposition shall be final, and there shall be no subsequent proceedings.

   Provided that the Complaint is not resolved through Alternative Resolution, once the final investigation report is shared with the parties, the matter will be referred for a hearing. The Director of Student Rights and Responsibilities or designee will serve as Chair (non-voting member) for the Luther College Hearing Board. The Title IX Coordinator will be present, but is not a member of the Board.

   17. Hearing Board Composition

   A quorum for the hearing board consists of five voting members with at least one student, one faculty member, and the Chair. The Chair will appoint the board members, considering factors such as availability, conflict of interest, and demographic balance. Hearings at or near the end of term may instead use a quorum of three, described below.

   18. Disciplinary History

   Previous disciplinary action of any kind involving the Respondent may be considered in determining an appropriate sanction upon a determination of responsibility. This information is only considered at the sanction stage of the process.

   19. Evidentiary Standard

   After post-hearing deliberation, the Hearing Board renders a determination based on the preponderance of the evidence; whether it is more likely than not that the Respondent violated the Policy as alleged.

   20. Notice of Hearing and Charges

   No less than seven (7) days prior to the hearing, the Chair of the Hearing Board will send notice of the hearing and charges to the parties.

   The notice will contain:

   • The time, date, and location of the hearing;
     
   • Information about the option for the live hearing to occur with the parties located in separate rooms using technology that enables the Hearing Board and parties to see and hear a party or witness answering questions. Such a request must be raised with the Chair or Title IX Coordinator at least five (5) days prior to the hearing.
     
   • A list of all those who will attend the hearing, along with an invitation to object to any Hearing Board Members on the basis of demonstrated bias. This must be raised with the Title IX Coordinator prior to the hearing.
     
   • Information on how the hearing will be recorded and on access to the recording for the parties after the hearing.
     
   • Notification that the parties may have the assistance of an Advisor of their choosing at the hearing. An invitation to contact the Title IX Coordinator and/or the Director of Student Rights and Responsibilities to arrange any disability accommodations, language assistance, and/or interpretation services that may be needed at the hearing, at least five (5) days prior to the hearing.
     
   • Parties may not bring mobile phones or electronic/recording devices into the hearing.
     

   Hearings for possible violations that occur near or after the end of an academic term (for example, during finals, break periods, January Term, or over the summer) and are unable to be resolved prior to the end of term will typically be held immediately after the end of the term or during the summer, as needed, to meet the resolution timeline and goal for resolution. A quorum of three (one faculty, one staff, and one student) rather than five will be required for these hearings.

   21. Alternative Hearing Participation Options

   If a party or parties prefer not to attend or cannot attend the hearing in person, the party should request alternative arrangements from the Title IX Coordinator and/or the Director of Student Rights and Responsibilities at least five (5) days prior to the hearing. The hearing will proceed with or without the participation of parties and/or witnesses.

   The Title IX Coordinator and/or the Director of Student Rights and Responsibilities can arrange to use technology to allow remote testimony without compromising the fairness of the hearing. Remote options may also be needed for witnesses who cannot appear in person. Any witness who cannot attend in person should let the Title IX Coordinator and/or the Director of Student Rights and Responsibilities know at least five (5) days prior to the hearing or in ideal situations during the investigation so that appropriate arrangements can be made.

   22. Pre-Hearing Preparation

   The Chair, after any necessary consultation with the parties, Investigator(s), and/or Title IX Coordinator, will provide the names of persons who will be participating in the hearing and all pertinent documentary evidence to the parties prior to the hearing.

   The Chair or designee will notify witnesses of the hearing date and time and that their presence has been requested. Any witness called by the Chair will also be expected to answer questions from the parties.

   Any witness (including expert witnesses) scheduled to participate in the hearing must have been first interviewed by the Investigator(s) or have proffered a written statement or answered written questions, unless all parties and the Chair assent to the witness’s participation in the hearing. The same holds for any evidence that is first offered at the hearing.

   The parties will be given a list of the Hearing Board members at least seven (7) business days in advance of the hearing unless recusals occur. All objections to any hearing board members must be raised in writing, detailing the rationale for the objection, and must be submitted to the Director of Student Rights and Responsibilities and/or Title IX Coordinator as soon as possible and no later than five (5) days prior to the hearing. Hearing Board members will only be removed if the Director of Student Rights and Responsibilities and/or Title IX Coordinator concludes that their bias or conflict of interest precludes an impartial hearing of the allegation(s).

   Any hearing board member who cannot make an objective determination must recuse themselves from the proceedings when notified of the identity of the parties and witnesses in advance of the hearing. If a hearing board member is unsure of whether a bias or conflict of interest exists, they must raise the concern to the Title IX Coordinator and Chair as soon as possible.

   During the seven (7) day period prior to the hearing, the parties have the opportunity for continued review on the final investigation report and available evidence.

   23. Hearing Procedures

   At the hearing, the Hearing Board has the authority to hear and make determinations on all allegations of sexual misconduct and/or retaliation. Participants at the hearing may include the Chair, hearing board members, the Investigator(s) who conducted the investigation, the Complainant and Respondent, Advisors to the parties, any called witnesses, the Title IX Coordinator, legal counsel retained by the College, and anyone providing authorized accommodations or assistive services.

   The Chair or Title IX Coordinator will answer all questions of procedure. Anyone appearing at the hearing to provide information (such as a witness, expert witness or investigator) will respond to questions on their own behalf.

   The Chair will allow witnesses who have relevant information to appear at a portion of the hearing in order to respond to specific questions from the hearing board and the parties will then be excused.

   24. Joint Hearings

   In hearings involving more than one Respondent or in which two (2) or more Complainants have accused the same individual of substantially similar conduct, the default procedure will be to hear the allegations jointly.

   However, the Title IX Coordinator and/or Director of Student Rights and Responsibilities may permit the investigation and/or hearings pertinent to each Respondent to be conducted separately if there is a compelling reason to do so. In joint hearings, separate determinations of responsibility will be made for each Respondent with respect to each alleged policy violation.

   25. The Order of the Hearing – Introductions and Explanation of Procedure

   The Chair explains the procedures and introduces the participants.

   The Chair conducts the hearing according to a hearing script. The Chair facilitates the recording, witness logistics, party logistics, curation of documents, separation of the parties, and other administrative elements of the hearing process with assistance provided by the Title IX Coordinator. The hearing typically begins with opening statements from the parties sharing vital content, series of questioning, questioning of witnesses, questions submitted for cross-examination, final questioning and closing statements.

   26. Testimony and Questioning

   At times, the Investigator(s) may be present at hearings and questioned, the parties and witnesses may provide relevant information in turn, beginning with the Complainant and then in the order determined by the Chair. The parties/witnesses will submit to questioning by the Hearing Board and then by the parties through the Chair.

   All questions are subject to a relevance determination by the Chair. The Chair will determine whether the question will be disallowed as irrelevant and pose the proposed question orally, electronically, or in writing (orally is the default, but other means of submission may be permitted by the Chair upon request or agreed to by the parties and the Chair).

   27. Recording Hearings

   Hearings (but not deliberations) are recorded by the College for purposes of review in the event of an appeal. The parties may not record the proceedings and no other unauthorized recordings are permitted.

   The Chair, the parties, their Advisors, and appropriate administrators of the College will be permitted to listen to the recording in a controlled environment determined by the Director of Student Rights and Responsibilities and/or Title IX Coordinator. No person will be given or be allowed to make a copy of the recording without permission of the Director of Student Rights and Responsibilities and/or Title IX Coordinator.

   28. Deliberation, Decision-making, and Standard of Proof

   The Hearing Board will deliberate in closed session to determine whether the Respondent is responsible or not responsible for the policy violation(s) in question. A simple majority vote is required to determine the finding. The preponderance of the evidence standard of proof is used. The Title IX Coordinator may be invited to attend the deliberation by the Chair, but is there only to facilitate procedurally and take notes, not to address the substance of the allegations.

   The Hearing Board will review any pertinent conduct history provided by the Director of Student Rights and Responsibilities. Then the Board will determine the appropriate sanction(s).

   29. Notice of Outcome

   The Chair, in collaboration with the Title IX Coordinator, will prepare a written Notice of Outcome detailing the determination, rationale, the evidence used in support of its determination, and any sanctions.

   At the discretion of the Director of Student Rights and Responsibilities and/or Title IX Coordinator, the Notice of Outcome may be reviewed by legal counsel. The Chair will then share the Notice of Outcome simultaneously with the parties.

   The Notice of Outcome will be in writing and specify the finding on each alleged policy violation; the findings of fact that support the determination; conclusions regarding the application of the relevant policy to the facts at issue; any sanctions issued; and any remedies provided to the Complainant designed to ensure access to the College’s educational program or activity.

   The Notice of Outcome will also include information on when the results are considered by the College to be final, any changes that occur prior to finalization, and the relevant procedures and bases for any available appeal options.

   30. Sanctions

   Factors considered when determining a sanction/responsive action may include, but are not limited to:

   • The nature, severity of, and circumstances surrounding the violation(s)
     
   • The Respondent’s disciplinary history
     
   • Previous allegations or allegations involving similar conduct
     
   • The need for sanctions/responsive actions to bring an end to the discrimination, harassment, and/or retaliation
     
   • The need for sanctions/responsive actions to prevent the future recurrence of discrimination, harassment, and/or retaliation
     
   • The need to remedy the effects of the discrimination, harassment, and/or retaliation on the Complainant and the community
     
   • The impact on the parties
     
   • Institutional precedent for how similar infractions have been addressed
     
   • Any other information deemed relevant by the Hearing Board
     

   The sanctions will be implemented as soon as is feasible, either upon the outcome of any appeal or the expiration of the window to appeal without an appeal being requested.

   The sanctions described in this policy are not exclusive of, and may be in addition to, other actions taken or sanctions imposed by external authorities.

   a. Sanctions

   The following are the range of sanctions that may be imposed upon students or organizations singly or in combination:
   

   • Unilateral No Contact Directive: A mandate to have no avoidable contact with one or more individuals. May include restrictions from being present in another student’s classes, residence hall, or student organizations.
     
   • Educational Sanctions: A directive to complete specified educational programs or projects to better comprehend the misconduct and its effects.
     
   • Mental Health or Substance Abuse Evaluation: A mandate to meet with and engage in either College-sponsored or external counseling to better comprehend the behavior and its effects or contributing factors thereto, such as substance abuse, anger management, or other mental health issues.
     
   • Probation: A written reprimand for violation of institutional policy, providing for more severe disciplinary sanctions in the event that the student or organization is found in violation of any institutional policy, procedure, or directive within a specified period of time. Terms of the probation will be articulated and may include denial of specified social privileges, exclusion from co-curricular activities, exclusion from designated areas of campus, no-contact directives, and/or other measures deemed appropriate.
     
   • Residence Hall Suspension: Termination of a student’s right to live or be present in College-owned housing for a definite period of time.
     
   • Suspension: Termination of student status for a definite period of time not to exceed three years and/or until specific criteria are met. Students who return from suspension are automatically placed on probation through the remainder of their tenure as a student at Luther College.
     
   • Expulsion: Permanent termination of student status and revocation of rights to be on campus for any reason or to attend College-sponsored events.
     
   • Organizational Sanctions: Deactivation, loss of recognition, loss of some or all privileges (including College registration) for a specified period of time.
     
   • Other Actions: In addition to or in place of the above sanctions, the College may assign any other sanctions as deemed appropriate.
     

   In all cases, the Hearing Board and Campus Appeals Board reserve the right to broaden or lessen any range of recommended sanctions to address mitigating circumstances or repeated or egregious behavior.

   31. Withdrawal While Charges Pending

   Should a student decide to not participate in the resolution process, the process may proceed absent their participation to a reasonable resolution. Should a student Respondent permanently withdraw from the College, the resolution process may end, as the College no longer has disciplinary jurisdiction over the withdrawn student. The student who withdraws or leaves while the process is pending may not return to Luther College. A hold will be placed on their ability to be readmitted. They may also be barred from College property and/or events.

   However, the College will continue to address and remedy any systemic issues, variables that may have contributed to the alleged violation(s), and any ongoing effects of the alleged harassment, discrimination, and/or retaliation.

   If the student Respondent takes a temporary leave for a specified period of time (e.g., one semester or term), the resolution process will continue remotely and that student is not permitted to return to the College unless and until all resolution terms have been satisfied.

   During the resolution process, the College may put a hold on a responding student’s record or dean’s disciplinary certification that a disciplinary matter is pending.

   32. Appeals

   1. A decision reached by the Hearing Board may be appealed by either party to the Campus Appeals Board within seven days of the decision. Such appeals shall be in writing, stating the basis for the appeal, and shall be delivered to Corey Landstrom, Vice President and Dean for Student Engagement, at Dahl Centennial Union 266 or via email at [email protected]

   2. Except as required to explain the basis of new information, an appeal shall be limited to a review of the verbatim record of the hearing and supporting documents for one or more of the following purposes:

   a. Deviations from designated procedures within the investigation or adjudication processes, which could have affected the outcome;
   b. A conflict of interest or the bias of the Director of Student Rights and Responsibilities and/or Title IX Coordinator, investigator or member of the Hearing Board sufficient to have affected the outcome;
   c. To determine whether the sanctions imposed were appropriate for the violation of the Policy which the student was found to have committed.
   d. To consider new information or other relevant facts not brought out in the original hearing, sufficient to alter a decision, because such information and/or facts were not known or available to the person appealing at the time of the original hearing. If any of the grounds in the Request for Appeal do not meet the grounds in this Policy, that request will be denied by the Appeals Board Chair and the parties will be notified in writing of the denial and the rationale.

   4. The Campus Appeals Board is comprised of three members including one faculty member, typically the Chair of the Faculty Interest Committee; one student, typically the President of the Luther College Student Senate; and the Vice President and Dean for Student Engagement.

   5. The non-appealing party (if any) must be notified in writing of the appeal, and given an opportunity to provide a written statement challenging or supporting the appeal.

   The Appeals Board Chair will collect any additional information needed and all documentation regarding the approved grounds and the subsequent responses to be shared with the Appeals Board, and the Appeals Board will render a decision in no more than 10 days, barring exigent circumstances. All decisions are by majority vote and apply the preponderance of the evidence standard.

   A Notice of Appeal Outcome will be sent to all parties simultaneously including the decision on each approved ground and rationale for each decision. The Notice of Appeal Outcome will specify the finding on each ground for appeal, any specific instructions for remand or reconsideration and any sanctions. If an appeal is upheld by the Campus Appeals Board, the matter may be returned to the original Hearing Board for re-opening of the case to allow reconsideration of the original determination. If an appeal is upheld with respect to sanctions, the Campus Appeals Board may adjust sanctions or choose to refer the case back to the Hearing Board for consideration of sanctions. If an appeal is not upheld, the matter shall be considered final and binding upon all involved.

   a. Sanctions Status During the Appeal

   Any sanctions imposed as a result of the hearing will be in effect during the appeal process. Supportive measures may be reinstated, subject to the same supportive measure procedures above.

   b. Appeal Considerations

   • Appeals are not intended to provide for a full re-hearing (de novo) of the allegation(s). In most cases, appeals are confined to a review of the written documentation, recording of the original hearing and pertinent documentation regarding the specific grounds for appeal.
     
   • An appeal is not an opportunity for the Campus Appeals Board to substitute their judgment for that of the original Hearing Board merely because they disagree with the finding and/or sanction(s).
     
   • The Campus Appeals Board may consult with the Chair and/or Title IX Coordinator on questions of procedure or rationale, for clarification, if needed. Documentation of all such consultation will be maintained.
     
   • Appeals granted based on new evidence should normally be remanded to the original Investigator(s) and/or Hearing Board for reconsideration. Other appeals may be remanded at the discretion of the Director of Student Rights and Responsibilities and/or Title IX Coordinator or, in limited circumstances, decided on appeal.
     
   • Once an appeal is decided, the outcome is final: further appeals are not permitted, even if a decision or sanction is changed on remand (except in the case of a new hearing). When appeals result in no change to the finding or sanction, that decision is final.
     
   • In rare cases where a procedural or substantive error cannot be cured by the original Hearing Board (as in cases of bias), the appeal may order a new hearing with a new Hearing Board.
     
   • The results of a new hearing can be appealed, once, on any of the available appeal grounds.
     
   • In cases in which the appeal results in reinstatement to the College or resumption of privileges, all reasonable attempts will be made to restore the Respondent to their prior status, recognizing that some opportunities lost may be irreparable in the short term.
     

   33. Long-Term Remedies/Other Actions

   Following the conclusion of the resolution process, and in addition to any sanctions implemented, the Title IX Coordinator and/or Director of Student Rights and Responsibilities may implement additional long-term remedies or actions with respect to the parties and/or the campus community that are intended to stop the sexual misconduct and/or retaliation, remedy the effects, and prevent reoccurrence.

   These remedies/actions may include, but are not limited to:

   • Referral to counseling, college ministries, and health services
     
   • Education to the individual and/or the community
     
   • Permanent alteration of housing assignments
     
   • Permanent priority on classroom registration
     
   • Permanent alteration of work arrangements for student employee
     
   • Provision of campus safety escorts
     
   • Climate surveys
     
   • Policy modification and/or training
     
   • Implementation of long-term contact limitations between the parties
     
   • mplementation of adjustments to academic deadlines, course schedules, etc.
     

   For long-term support or measures parties may be referred to other campus resources such as Case Management or Disability Services. When no policy violation is found, the Director of Student Rights and Responsibilities and/or Title IX Coordinator will address any remedies owed by the College to the Respondent to ensure no effective denial of educational access.

   34. Failure to Comply with Sanctions and/or Interim and Long-term Remedies and/or Responsive Actions

   All Respondents are expected to comply with the assigned sanctions, responsive actions, and/or corrective actions within the timeframe specified by the Hearing Board and Campus Appeals Board.

   Failure to abide by the sanction(s)/action(s) imposed by the date specified, whether by refusal, neglect, or any other reason, may result in additional sanction(s)/action(s), including suspension, expulsion, and/or termination from the College.

   A Respondent will only be eligible for readmission from suspension when compliance is achieved to the satisfaction of the Director of Student Rights and Responsibilities and/or Title IX Coordinator.

   35. Recordkeeping

   Luther College will maintain for a period of at least seven years records of:

   1) Each sexual misconduct investigation including any determination regarding responsibility and any audio or audiovisual recording;
   2) Any disciplinary sanctions imposed on the Respondent;
   3) Any remedies provided to the Complainant designed to restore or preserve equal access to the College’s education program or activity;
   4) Any appeal and the result therefrom;
   5)Any Alternative or Informal Resolution and the result therefrom;
   6) All materials used to train Title IX Coordinators, Investigators, Hearing Board members, Campus Appeals Board members, and any person who facilitates an Informal Resolution process. The College will make these training materials publicly available on the College’s Title IX website; and
   7. Any actions, including any supportive measures, taken in response to a report or formal complaint of sexual misconduct, including:
   a. The basis for all conclusions that the response was not deliberately indifferent;
   b. Any measures designed to restore or preserve equal access to the College’s education program or activity; and
   c. If no supportive measures were provided to the Complainant, document the reasons why such a response was not clearly unreasonable in light of the known circumstances.

   Title IX Team, Investigators, Chairs, Hearing Board Members and Appeal Board Members:

   These individuals receive annual training based on their respective roles on the topics of 1) impartiality, 2) avoiding prejudgment of facts at issue, 3) conflicts of interest and bias, 4) the College’s resolution processes, 5) issues of relevance and evidence, 6) the scope of the College’s educational programs and activities, 7) types of harassment and discrimination; and (8) how to conduct an investigation and hearing process that protects the rights, well-being, and safety of the parties, provides an equitable process for all parties involved, and promotes accountability. The materials used to train these individuals are publicly posted here: https://www.luther.edu/titleix/training-materials/.

   36. Revision of this Policy and Procedures

   This Policy and procedures supersede any previous policy(ies) will be reviewed and updated annually by the Director of Student Rights and Responsibilities in consultation with the Title IX Coordinator. The College reserves the right to make changes to this document as necessary, and once those changes are posted online, they are in effect.

   During the resolution process, the Director of Student Rights and Responsibilities and/or Title IX Coordinator may make minor modifications to procedures in order to preserve the fairness owed the parties. The Director of Student Rights and Responsibilities and/or Title IX Coordinator may also vary procedures materially with notice (on the institutional website, with the appropriate effective date identified) upon determining that changes to law or regulation require policy or procedural alterations not reflected in this Policy and procedures.

   If government laws or regulations change – or court decisions alter – the requirements in a way that impacts this document, this document will be construed to comply with the most recent government regulations or holdings.

   This policy is not a contract and does not create legally enforceable protections based on contract, quasi-contract, or third-party beneficiary status.

   This interim policy and procedures are effective August 14, 2020.

   THE FOLLOWING STATEMENT MUST APPEAR IN ANY VERSION OF THIS MODEL USED BY A LICENSEE:

   ATIXA 2020 ONE POLICY, TWO PROCEDURES MODEL
   USE AND ADAPTATION OF THIS MODEL WITH CITATION TO ATIXA IS PERMITTED
   THROUGH A LIMITED LICENSE TO LUTHER COLLEGE
   ALL OTHER RIGHTS RESERVED. ©2020. ATIXA