RESOLUTION PROCESS FOR ALLEGED VIOLATIONS OF THE POLICY ON EQUAL OPPORTUNITY, HARASSMENT, AND NON-DISCRIMINATION UNDER THE SCOPE OF TITLE IX (KNOWN AS “PROCESS A”)
Moravian College will act on any notice or complaint of an alleged violation of the policy on Equal Opportunity, Harassment, and Non-Discrimination (“the Policy”) that is received by the Title IX Coordinator [or designee herewithin] or any other Official with Authority by applying these procedures, known as “Process A.” The procedures below apply only to qualifying allegations of sexual harassment (including sexual assault, dating violence, domestic violence, and stalking, as defined above) involving students or employees of the College that fall within the scope of Title IX.
If other policies are invoked, such as policies on protected class harassment or discrimination above, please see Appendix B for a description of the procedures applicable to the resolution of such offenses, known as “Process B.”
Process B also applies to sexual harassment (including sexual assault, dating violence, domestic violence, and stalking, as defined above) when jurisdiction falls outside of the scope of Title IX, as determined by the Title IX Coordinator.
The procedures below may be used to address collateral misconduct arising from the investigation of or occurring in conjunction with reported misconduct (e.g., vandalism, physical abuse of another). All other allegations of misconduct unrelated to incidents covered by the Policy will be addressed through procedures described in the Student or Employee Handbooks.
Upon receipt of notice or a complaint to the Title IX Coordinator of an alleged violation of the Policy, the Title IX Coordinator initiates a prompt initial assessment to determine the next steps the College needs to take.
The Title IX Coordinator will initiate at least one of three responses:
- Offering supportive measures because the Complainant does not want to file a formal complaint ; and/or
- Informal Resolution (upon submission of a formal complaint); and/or
- A Formal Grievance Process including an investigation and a hearing (upon submission of a formal complaint).
Moravian College uses the Formal Grievance Process to 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 harassment or discrimination, their potential recurrence, or their effects.
3. Initial Assessment
Following receipt of notice or a complaint of an alleged violation of this Policy, the Title IX Coordinator engages in an initial assessment, typically within one to five business days. The steps in an initial assessment can include:
- If notice is given, the Title IX Coordinator seeks to determine if the person impacted wishes to make a formal complaint, and will assist them to do so, if desired.
- If they do not wish to do so, the Title IX Coordinator determines whether to initiate a complaint because a violence risk assessment indicates a compelling threat to health and/or safety.
- If a formal complaint is received, the Title IX Coordinator assesses its sufficiency and works with the Complainant to make sure it is correctly completed.
- The Title IX Coordinator reaches out to the Complainant to offer supportive measures.
- The Title IX Coordinator works with the Complainant to ensure they are aware of the right to have an Advisor.
- The Title IX Coordinator works with the Complainant to determine whether the Complainant prefers a supportive and remedial response, informal resolution, or a formal grievance process.
- If a supportive and remedial response is preferred, the Title IX Coordinator works with the Complainant to identify their request(s), assesses the request(s), and implements accordingly. No informal resolution or formal grievance process is initiated, though the Complainant can elect to initiate one later, if desired.
- If informal resolution is preferred, the Title IX Coordinator assesses whether the complaint is suitable for informal resolution, which informal modality may serve the situation best, and may seek to determine if the Respondent is also willing to engage in informal resolution.
- If a Formal Grievance Process is preferred, the Title IX Coordinator determines if the misconduct alleged falls within the scope of Title IX:
- If it does, the Title IX Coordinator will initiate the formal investigation and grievance process, directing the investigation to address:
- an incident, and/or
- a pattern of alleged misconduct, and/or
- a culture/climate issue.
- If it does not, the Title IX Coordinator determines that Title IX does not apply, assesses which policies may apply, and refers the matter for resolution under Process B. Please note that dismissing a complaint under Title IX is solely a procedural requirement under Title IX, and does not limit the College’s ability to address a complaint with an appropriate process and remedies.
Violence Risk Assessment
Threat assessment if the process of evaluating the actionability of violence by an individual against another person or group following the issuance of a direct or conditional threat. A Violence Risk Assessment (VRA) is a broader term used to assess any potential violence or danger, regardless of the presence of a vague, conditional, or direct threat. It is not a psychological/mental health assessment or an evaluation for an involuntary behavioral health hospitalization.
While Violence Risk Assessment often begins at the time of notice or during the initial assessment of a reported incident, it is intended to be an ongoing process. The Title IX Coordinator may request that the College’s Threat Assessment Team (TAT) conduct a Violence Risk Assessment (VRA) at any time. VRA may inform climate issues or possible predatory and/or pattern conduct and may aid in critical determinations such as emergency removal/interim actions or appropriateness of negotiated/alternative resolution. College officials with emergency management responsibility, including but not limited to Campus Police or student life emergency on-call personnel, may also enact emergency removal or other interim actions as appropriate.
VRA is conducted independently from the Title IX process, but is informed by it, and the members of the TAT are trained to mitigate any bias and provide the analysis and findings of VRA in a fair and equitable manner. Due to its ongoing nature, Violence Risk Assessment may result in interim actions being added, amended, or removed at any time. Where VRA is required by the Title IX Coordinator, a Respondent refusing to cooperate may result in a charge of failure to comply within the appropriate student or employee conduct process.
Dismissal (Mandatory and Discretionary)
Under 34 CFR 106.45, Moravian College must dismiss a formal complaint or any allegations therein if, at any time during the investigation or hearing, it is determined that:
- The conduct alleged in the formal complaint would not constitute sexual harassment as defined above, even if proved; and/or
- The conduct did not occur in an educational program or activity controlled by Moravian College (including buildings or property controlled by recognized student organizations), and/or Moravian College does not have control of the Respondent; and/or
- The conduct did not occur against a person in the United States; and/or
- At the time of filing a formal complaint, the Complainant is not participating in or attempting to participate in the education program or activity of the College.
Moravian College may dismiss a formal complaint or any allegations therein if, at any time during the investigation or hearing:
- The Complainant notifies the Title IX Coordinator in writing that they would like to withdraw the formal complaint or any allegations therein; or
- The Respondent is no longer enrolled in or employed by Moravian College; or
- Specific circumstances prevent the College from gathering evidence sufficient to reach a determination as to the formal complaint or allegations therein.
Upon any dismissal, Moravian College will promptly send written notice of the dismissal and the rationale for doing so simultaneously to the parties. This dismissal decision is appealable by any party under the procedures for appeal below. The decision not to dismiss is also appealable by any party claiming that a dismissal is required or appropriate. A Complainant who decides to withdraw a complaint may later request to reinstate it or refile it.
Moravian College is obligated to ensure that the grievance process is not abused for retaliatory purposes. The College permits the filing of counterclaims but uses an initial assessment to determine whether the allegations in the counterclaim are made in good faith. Counterclaims by a Respondent may be made in good faith, but are, on occasion, made for purposes of retaliation. Counterclaims made with retaliatory intent will not be permitted and may constitute a violation of this policy.
Counterclaims determined to be reported in good faith will be processed using the grievance procedures below. Investigation of such claims may either take place after resolution of the underlying initial allegation or may be resolved through the same investigation as the underlying allegation, at the discretion of the Title IX Coordinator.
5. Right to an Advisor
The parties may each have an Advisor of their choice present with them for all meetings, interviews, and hearings within the resolution process, if they so choose. The parties may select whoever they wish to serve as their Advisor, as long as the Advisor is eligible (no conflict of interest) and available (time/capacity to fill the role). Moravian College also permits the parties to each include one additional support person to accompany them, as needed throughout the process.
Choosing an Advisor who is also a witness in the process creates potential for bias and conflict of interest. A party who chooses an Advisor who is also a witness can anticipate that issues of potential bias will be explored by the Decision-makers and may impact the weight of their testimony as a witness.
Who Can Serve as an Advisor
The Advisor may be a friend, mentor, family member, attorney, or any other individual a party chooses to advise, support, and/or consult with them throughout the resolution process. The parties may choose Advisors internal or external to the Moravian College community. The parties reserve the right not to have an Advisor in the stages of the process prior to the hearing.
The Title IX Coordinator will also offer to assign an Advisor for any party. If the parties choose an Advisor from the College’s pool, the Advisor will be trained and familiar with the College’s resolution process. Conversely, if the parties choose an Advisor from outside the pool, the Advisor may not have training or familiarity with the College’s process. Moravian College cannot guarantee equal Advisory rights, meaning that if one party selects an Advisor who is an attorney, but the other party does not or cannot afford an attorney, the College is not obligated to provide an attorney.
Role of the Advisor
The parties may be accompanied by their Advisor in all meetings and interviews at which the party is entitled to be present. Advisors help the parties prepare for each meeting and should advise ethically, with integrity, and in good faith. Advisors may request to meet with the Title IX Coordinator/officials conducting interviews/meetings in advance of these interviews or meetings. This allows Advisors to clarify their role, as well as College policy and procedures.
Under Title IX regulations, a form of direct questioning is required during the hearing, but must be conducted by the parties’ Advisors. The parties are not permitted to directly question each other or any witnesses. If a party does not have an Advisor for a hearing, the College will appoint an Advisor for the limited purpose of conducting any questioning of the other party and witnesses.
A party may reject this appointment and choose their own Advisor, but they may not proceed without an Advisor. If the party’s Advisor will not conduct questioning, the College will appoint an Advisor who will do so regardless of the participation or non-participation of the party in the hearing. Extensive questioning of the parties and witnesses may also be conducted by the Decision-makers during the hearing.
Advisor Violations of Moravian College Policy
All Advisors are subject to the same Moravian College policies and procedures, whether they are attorneys or not. Advisors are expected to advise the party without disrupting proceedings. Advisors should not address College officials in meetings or interviews unless invited to (e.g., asking procedural questions). The Advisor may not make a presentation or represent the party during any meeting or proceeding and may not speak on behalf of the party to the Investigator(s) or other Decision-makers except during cross-examination in a hearing.
The parties are expected to ask and respond to questions on their own behalf throughout the investigation process. Although the Advisor generally may not speak on behalf of the party, the Advisor may consult with them, either privately or by conferring or passing notes during any meeting or interview. For longer or more involved discussions, the parties and their Advisors should ask for breaks to allow for private consultation.
Any Advisor who oversteps their role as defined by this policy will first be warned. If the Advisor continues to disrupt or otherwise fails to respect the scope of the Advisor role, the meeting will be ended, or other appropriate measures implemented. Subsequently, the Title IX Coordinator will determine how to address the Advisor’s non-compliance and future role in the process.
Sharing Information with the Advisor
Moravian 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 or other individuals if they wish. Doing so may help the parties participate more meaningfully in the resolution process.
Moravian College also provides a consent form that authorizes the College to share such information directly with their Advisor. The parties must either complete and submit this form to the Title IX Coordinator or provide similar documentation demonstrating consent to a release of information to the Advisor before Moravian College is able to share records with an Advisor.
Privacy of Records Shared with Advisor
Advisors are expected to maintain the privacy of the records shared with them. These records may not be shared with third parties, disclosed publicly, or used for purposes not explicitly authorized by Moravian College. Moravian 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 Moravian College’s privacy expectations.
Moravian College generally expects an Advisor to adjust their schedule to allow them to attend 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. 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.
Expectations of the Parties with Respect to Advisors
A party may elect to change Advisors during the process and is not obligated to use the same Advisor throughout. The parties are expected to inform the Investigator(s) of the identity of their Advisor at least two (2) business days before the date of their first meeting with Investigator(s), or as soon as possible if a more expeditious meeting is necessary or desired.
The parties are expected to provide timely notice to the Title IX Coordinator if they change Advisors at any time. It is assumed that if a party changes Advisors, consent to share information with the previous Advisor is terminated, and a release for the new Advisor must be secured. Parties are expected to inform the Title IX Coordinator of the identity of their hearing Advisor at least five (5) business days before the hearing.
Assistance in Securing an Advisor
A listing of local attorneys and legal services, some of which may be available pro bono or at a reduced cost, is available through the Attorney Referral and Information Service or by calling 610-258-6333.
For representation, Respondents may wish to contact organizations such as:
- FACE (Families Advocating for Campus Equality)
- SAVE (Stop Abusive and Violent Environments)
Complainants may wish to contact organizations such as:
6. Resolution Processes
All Moravian College proceedings, whether formal or informal, are private. All persons present at any time during the resolution process are expected to maintain the privacy of the proceedings in accordance with this policy. Although there is an expectation of privacy around what Investigators share with parties during interviews, the parties have discretion to share their own knowledge and evidence with others if they so choose, with the exception of information the parties agree not to disclose through an informal resolution process as described below. Moravian College also encourages parties to discuss any sharing of information with their Advisors before doing so.
Informal Resolution can include three different approaches:
- When the Title IX Coordinator can remedy the situation by providing supportive measures, without engaging in additional action;
- When the parties agree to resolve the matter through an alternate resolution mechanism, typically before a formal investigation takes place (described in more detail in b. below); or
- When the Respondent accepts responsibility for violating policy, and agrees to accept a sanction to end the resolution process, typically after a formal investigation takes place (described in more detail below).
To initiate Informal Resolution, a Complainant must submit/sign a formal complaint. A Respondent who wishes to initiate Informal Resolution should contact the Title IX Coordinator. It is not necessary to pursue Informal Resolution first in order to pursue a Formal Grievance Process, and any party participating in Informal Resolution can stop the process at any time and begin or resume the Formal Grievance Process.
Prior to implementing Informal Resolution, Moravian College will provide the parties with written notice of the reported misconduct and any sanctions or measures that may result from participating in such a process, including information regarding any records that will be maintained or shared by the College. Moravian College will obtain voluntary, written confirmation that all parties wish to resolve the matter through Informal Resolution before proceeding and will not pressure the parties to participate in Informal Resolution.
Alternate Resolution Mechanisms
Alternate Resolution is an informal process by which the parties reach a mutually agreed upon resolution. Alternative resolution can often be effective at both preventing and/or addressing conduct that may violate College policy, as well as conduct that is concerning and/or inappropriate but is not necessarily unlawful or in violation of institutional policy.
For any alternative resolution process, the willingness of the parties to engage authentically is critical to success. Therefore, all parties must willingly agree to participate and can choose to withdraw at any time. The Respondent’s agreement to undertake alternative resolution shall not constitute, shall not be used as, and shall not be construed as an admission that the Respondent has violated College policy. Likewise, the Complainant’s agreement to undertake alternative resolution shall not constitute, shall not be used as, and shall not be construed as an admission that the Respondent has not violated College policy.
Alternative resolution may result in mutually agreed-upon outcomes including, but not limited to, mediated terms or agreements, accommodations including but not limited to new or continued support measures, reassignments or relocations, and/or educational outcomes including but not limited to training, coaching, or performance monitoring.
In various ways and with different levels of facilitation and contact between the parties, alternative resolution processes can allow for an exchange of perceptions, for the building of common ground, for recognition and repair of harm, for resolution of misunderstanding, and/or for the development of a pathway forward. Resolution options, including but not limited to conflict coaching, shuttle negotiation, facilitated dialogue, mediation, and restorative conferences or circle processes (described below), are often effective choices to both correct behavior and restore relationships in the workplace/ campus community.
- Conflict Coaching involves a trained professional working with the Complainant to build the skills needed to directly address the behavior of concern with the Respondent. Conflict coaching aims to change concerning behavior by creating an awareness of its existence and its impact. Conflict coaching helps individuals build assertiveness and communication skills to engage appropriately in difficult conversations.
- Shuttle Negotiation is an indirect (often written) conversation between parties that is guided by a trained, multipartial facilitator. Parties each independently share their concerns and desired outcomes with the facilitator, who helps them draft an agreement with conditions that best address and resolve the situation. This process iterates until the agreement is acceptable to all parties and meets their respective needs. Shuttle negotiation is particularly useful when the parties do not wish to have direct contact with one another.
- Facilitated Dialogue is a structured conversation between parties that is guided by a trained, multipartial facilitator to understand and resolve concerns. Each party works independently with the facilitator to discuss their perspective of events, concerns, and desired outcomes, before coming together for conversation under agreeable terms, space, and ground rules. Facilitated dialogue can continue for multiple sessions as needed and can result in a written agreement as well.
- Mediation is a structured process where an impartial third party, a mediator trained in communication and negotiation techniques, helps disputing parties resolve a conflict. The mediator does not determine, but instead helps the parties determine their own mutually acceptable resolution. Mediation can continue for multiple sessions as needed and can result in a written agreement as well.
- Restorative Practices provide an opportunity to repair harm specifically when a Respondent is willing to acknowledge their behavior and understand its impact on others. It is important to distinguish that a Respondent acknowledging their behavior is not necessarily the same as a Respondent accepting responsibility for violating institutional policy (as described in c. below).
- Restorative Conferences provide an opportunity for the parties to come together to address concerning behavior in a process that explores harms and needs. Similar to facilitated dialogue, conferences involve a trained, multipartial facilitator who works with the parties to prepare before bringing them together for conversation. Because the Respondent has already taken responsibility for their behavior, the conversation focuses on the harm that resulted and what must be done to repair it. As appropriate, conferences may include supporters of the parties. Restorative conferences can continue for multiple sessions as needed and can also result in a written agreement.
- Restorative Circles provide an opportunity for dialogue and repair of harm much like restorative conferences but includes a broader group of participants. Typically, circles may include members of a group or community who were affected by the harmful behavior or supporters, such as friends or family, of the affected parties. Restorative circles can also continue for multiple sessions and can result in a written agreement.
Alternative resolution is made available at the discretion of the Title IX Coordinator. The Title IX Coordinator may look to the factors below to assess whether Alternate Resolution is appropriate and which form may be most successful for the parties. The Title IX Coordinator may also consider any suggestions or terms that the parties believe would be necessary for their effective participation.
- The parties’ amenability to Alternate Resolution;
- Likelihood of potential resolution, taking into account any power dynamics between the parties;
- The parties’ motivation to participate;
- Civility of the parties;
- Results of a violence risk assessment/ongoing risk analysis;
- Disciplinary history;
- Whether an emergency removal is needed;
- Skill of the Alternate Resolution facilitator with this type of allegation;
- Complaint complexity;
- Emotional investment/capability of the parties;
- Rationality of the parties;
- Goals of the parties;
- Adequate resources to invest in Alternate Resolution (time, staff, etc.)
Employees interested in exploring alternative resolution processes for general interpersonal conflicts should contact Human Resources or Institutional Equity & Compliance for additional information; students or registered student organizations (RSOs) interested in doing so should contact Student Development.
The ultimate determination of whether Alternate Resolution has been successful is to be made by the Title IX Coordinator. Institutionally-imposed sanctions are not imposed through alternative resolution, although the parties may determine and agree to sanction(s), corrective action(s), and/or appropriate remedies. The Title IX Coordinator maintains records of any resolution, and failure to abide by the resolution agreement may result in appropriate responsive/disciplinary actions. Results of complaints resolved by Informal/Alternate Resolution are not appealable.
Alternate Resolution is not typically the primary resolution mechanism used to address reports of violent behavior of any kind or in other cases of serious violations of policy, though it may be made available after the Administrative Resolution process is complete, should the parties and the Title IX Coordinator believe it potentially beneficial.
Respondent Accepts Responsibility for Alleged Violations
The Respondent may accept responsibility for all or part of the alleged policy violations at any point during the resolution process. If the Respondent indicates an intent to accept responsibility for all of the alleged misconduct, the formal process will be paused, and the Title IX Coordinator will determine whether Informal Resolution can be used according to the criteria above.
If Informal Resolution is applicable, the Title IX Coordinator will determine whether all parties and the College are able to agree on responsibility, sanctions/corrective actions, and/or remedies. If so, the Title IX Coordinator implements a finding that the Respondent is in violation of Moravian College policy and implements agreed-upon sanctions, corrective actions, and/or remedies, in coordination with other appropriate administrator(s), as necessary. This result is not subject to appeal once all parties indicate their written assent to the agreed upon terms of resolution.
When a resolution is accomplished, the appropriate sanction/corrective actions are promptly implemented in order to effectively stop the harassment, discrimination, or retaliation; prevent its recurrence; and remedy its effects on the Complainant and campus community. Conversely, when the parties cannot agree on all terms of resolution, the Formal Grievance Process will resume at the same point where it was paused.
At any time throughout Process A, the Title IX Coordinator, with the consent of the parties, may negotiate and implement an agreement to resolve the allegations that satisfies all parties and Moravian College. Negotiated resolutions are not appealable.
7. Formal Grievance Process Pool
The Formal Grievance Process relies on a pool of officials (“the Pool”) to carry out the process. In addition to the Title IX Coordinator/Deputies, the Pool generally includes Civil Rights Investigators (College employees not otherwise affiliated with the College beyond this role), other College officials, and employee volunteers from the College’s faculty and staff. The College may also engage trained external contractors as deemed necessary and/or appropriate for any role in the process. A list of Pool members is maintained at moravian.edu/TitleIX and contact information is available in the Campus Directory.
Members of the Pool are trained annually and fill the following roles at the direction of the Title IX Coordinator:
- To provide appropriate intake of and initial guidance pertaining to complaints
- To act as an Advisor to the parties
- To facilitate alternate resolution processes
- To perform or assist with initial assessment
- To investigate complaints
- To serve as a hearing facilitator (process administrator)
- To serve as a Decision-maker (hearing panel chair or member)
- To serve as an Appellate Officer, appeal board chair or member
The Title IX Coordinator appoints the Pool, which acts with independence and impartiality. Although members of the Pool are typically trained in a variety of skill sets and can rotate amongst the different roles listed above in different cases, the College can also designate permanent roles for certain individuals, using others as substitutes or to provide greater depth of experience when necessary. This process of role assignment may be the result of particular skills, aptitudes, or talents identified in members of the Pool that make them best suited to particular roles.
All Pool members are required to attend annual training, including training for certain roles. The materials used to train the Pool are updated annually and posted at moravian.edu/TitleIX. This training includes, but is not limited to:
- The scope of Moravian College’s Equal Opportunity, Harassment, and Non-Discrimination Policy and Procedures
- Definitions of offenses and how to apply them with consistently, impartially, and in accordance with policy
- Applicable laws, regulations, and federal regulatory guidance
- Reporting, confidentiality, and privacy requirements
- How to identify conflict of interest and implicit bias, and maintain impartiality and objectivity
- How to implement appropriate and situation-specific remedies
- How to investigate in a thorough, reliable, and impartial manner
- How to recognize disparate treatment and impact
- How to uphold fairness, equity, and due process
- How to create an investigation report that fairly summarizes relevant evidence
- How to conduct a grievance process (hearings, appeals, informal resolution)
- How to weigh evidence, conduct questioning, and assess credibility
- How to determine relevance of questions and evidence
- How to deliberate, render findings, and generate evidence-based rationales
- How to determine appropriate sanctions/corrective actions
- How to use technology throughout the process, including at a live hearing
- How to keep appropriate records throughout the grievance process
8. Formal Grievance Process: Notice of Investigation and Allegations
The Title IX Coordinator 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. The NOIA is also copied to the Complainant, who is given advance notice of when the NOIA will be delivered to the Respondent.
The NOIA will include:
- A meaningful summary of all of allegations,
- The identity of the involved parties (if known),
- The precise misconduct being alleged,
- The date and location of the alleged incident(s) (if known),
- The specific policies implicated,
- A description of the applicable procedures,
- A statement of the potential sanctions/corrective actions that could result,
- A statement that the Respondent is presumed not responsible for the reported misconduct unless and until the evidence supports a different determination,
- A statement that determinations of responsibility are made at the conclusion of the process and that the parties will be given an opportunity to inspect and review all directly related and/or relevant evidence obtained during the review and comment period,
- A statement about the College’s policy on retaliation,
- Information about the privacy of the process,
- Information on the need for each party to have an Advisor of their choosing and suggestions for ways to identify an Advisor,
- A statement informing the parties that College 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,
- A link to the College’s VAWA Brochure,
- The name(s) of the Investigator(s), along with a process to identify, in advance of the interview process, any conflict of interest that the Investigator(s) may have, and
- An instruction to preserve any evidence that is directly related to the allegations.
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. Notice will be made in writing and will typically be delivered by email to the parties’ Moravian College-issued email or designated accounts. Once sent, notice will be presumptively delivered. Notice may be delivered in person or by an alternative communication method as necessary.
9. Resolution Timeline
Moravian College aims to be thorough, equitable, and timely, in their completion of any resolution process in order to minimize prolonged impact on all parties. The College often resolves complaints within a semester, unless good cause exists to extend this timeline, including but not limited to the absence of parties and/or witnesses or accommodations for language assistance, disabilities, or health conditions. Should the resolution process be extended, the Title IX Coordinator will provide notice of and rationale for any extensions to the parties as appropriate.
10. Appointment of Investigators
Once the decision to commence a formal investigation is made, the Title IX Coordinator appoints Pool members to conduct the investigation typically using a team of two Investigators, usually within two (2) business days of determining that an investigation should proceed.
11. Ensuring Impartiality
Any individual materially involved in the administration of the resolution process 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 will vet the assigned Investigator(s) 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 will determine whether the concern is reasonable and supportable. If so, another Pool member will be assigned and the impact of the bias or conflict, if any, will be remedied. If potential conflict of interest or bias exists with the Title IX Coordinator, the Vice President for Human Resources should be contacted.
The Formal Grievance Process involves an objective evaluation of all relevant evidence obtained, including evidence that supports that the Respondent engaged in a policy violation (inculpatory) and evidence that supports that the Respondent did not engage in a policy violation (exculpatory). 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 a preponderance of the evidence. It is also presumed that a report is made in good faith until evidence demonstrates otherwise.
12. Investigation Timeline
Investigations are completed expeditiously, often within a few weeks, though some investigations may take months, depending on the nature, extent, and complexity of the allegations, availability of witnesses, police involvement, and other factors. The College will make a good faith effort to complete investigations as promptly as circumstances permit and will communicate regularly with the parties to update them on the progress of the investigation.
13. Delays in the Investigation Process and Interactions with Law Enforcement
Moravian College may undertake a short delay in its investigation (several days to a few weeks) if circumstances require, specifically under a request from law enforcement to temporarily delay the investigation while evidence is collected in a concurrent criminal process. The College will update the parties accordingly and will promptly resume its investigation as soon as feasible. During such a delay, the College will implement supportive measures as deemed appropriate.
College action(s) or processes 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.
14. Steps in the Investigation Process
All investigations are thorough, reliable, impartial, prompt, and fair. Investigations involve interviews with all relevant parties and witnesses; obtaining available, relevant evidence; and identifying sources of expert information, as necessary. All parties have a full and fair opportunity, throughout the investigation process, to suggest witnesses and questions, to provide evidence, to suggest expert witnesses, and to review and respond to all evidence on the record.
The Investigator(s) typically take(s) the following steps, if not already completed (not necessarily in this order):
- Determine the identity and contact information of the Complainant
- Initiate or assist the Title IX Coordinator with any necessary supportive measures
- Identify all policies implicated by the alleged misconduct and notify the parties of all policies implicated
- Assist the Title IX Coordinator with conducting a prompt initial assessment
- Commence the investigation by identifying issues and developing an investigative strategic plan
- Meet with the Complainant to finalize their interview/statement
- Assist the Title IX Coordinator with preparing the initial Notice of Investigation and Allegation (NOIA)
- Provide each party/witness an opportunity to review and verify summary notes of relevant evidence/ testimony from their respective interviews
- Make good faith efforts to notify the parties in advance of any meeting involving the other party
- Provide parties with written notice of the date, time, location, purpose of the meetings they should attend
- Allow each party the opportunity to suggest witnesses and questions they wish the Investigator(s) to ask of the other party and witnesses, and document in the report which questions were asked, with a rationale for any changes or omissions
- Interview all available, relevant witnesses and conduct follow-up interviews as necessary
- Complete the investigation promptly and provide regular status updates throughout the investigation
- Provide the parties with a list of witnesses whose information will be used to render a finding
- Write a comprehensive investigation report summarizing the investigation, witness interviews, and relevant evidence (appendices including relevant physical or documentary evidence will be included)
- Gather, assess, and synthesize evidence, but render no recommendations or findings as part of the report
- Provide the parties with a secured electronic or hard copy of the draft investigation report, an opportunity to inspect and review all of the evidence obtained as part of the investigation that is directly related to the reported misconduct (including evidence upon which the Moravian College does not intend to rely in reaching a determination) for a ten (10) business day review and comment period so that each party may meaningfully respond to the evidence (parties may elect to waive the full ten days)
- The Investigator(s) may elect to respond in writing in the report to the parties’ responses and/or to share the responses between the parties for additional comment
- The Investigator(s) will incorporate relevant elements of the parties’ written responses into the final investigation report, include any additional relevant evidence, make any necessary revisions, and finalize the report. The Investigator(s) should document all rationales for any changes made after the review and comment period
- The Investigator(s) share the report with the Title IX Coordinator and/or legal counsel for review and feedback
- The Investigator(s) incorporate any relevant feedback, and the final report is then shared with all parties/Advisors through secure electronic transmission or hard copy at least ten (10) business days prior to a hearing. The parties are also provided with a file of any directly related evidence not included in the report
15. Role and Participation of Witnesses in the Investigation
Witnesses (as distinguished from the parties) who are employees of Moravian College are strongly encouraged to cooperate with and participate in the College’s investigation and resolution process. Student witnesses and witnesses from outside the campus community are encouraged to cooperation with College investigations and share all information they know relevant to a complaint.
Although in-person interviews are ideal, circumstances may require individuals to be interviewed remotely. Videoconferencing (or similar technologies) may be used for interviews if the Investigator(s) determine a need for remote interviewing. The College will take appropriate steps to reasonably ensure the ability of parties and witnesses to participate and the security/privacy of remote interviews. Though not preferred, if deemed appropriate by the Investigator(s), witnesses may provide written statements in lieu of interviews or choose to respond to written questions. If a witness submits a written statement but does not submit to cross examination at a hearing, their written statement may not be used as evidence.
16. Recording of Interviews
Moravian College typically audio and/or video record interviews to ensure that testimony is captured accurately and can be made easily available for review. In accordance with dual-party state requirements, all involved parties must be made aware of and consent to the audio and/or video recording by the Investigators. No unauthorized audio or video recording of any kind is permitted during investigative interviews or other meetings in this process.
17. Evidentiary Considerations in the Investigation
The investigation does not consider: 1) incidents not directly related to the possible violation, unless they evidence a pattern; or 2) questions and evidence about the Complainant's sexual predisposition or prior sexual behavior, unless offered to prove that someone other than the Respondent committed the alleged conduct, or if the questions and evidence concern prior incidents of the Complainant's sexual behavior with the Respondent and are offered to prove consent. Within these boundaries, the investigation can consider character evidence generally, although it is unlikely to be relevant unless it is fact evidence or relates to a pattern of conduct.
18. Referral for Hearing
Provided that the complaint is not resolved through Informal Resolution, once the final investigation report is shared with the parties, the Title IX Coordinator will refer the matter for a hearing. The hearing will not take place less than ten (10) business days from the conclusion of the investigation (distribution the final investigation report), unless all parties and Decision-makers agree to an expedited timeline.
19. Hearing Decision-maker Composition
Moravian College will designate a three-member panel of Decision-makers from the Pool, at the discretion of the Title IX Coordinator. The panel will typically include one Civil Rights Investigator (Chair), one College faculty member, and one College staff member, but composition may vary at the discretion of the Title IX Coordinator. The Title IX Coordinator may also elect to have an alternate from the Pool sit in throughout the hearing process in the event that a substitute is needed for any reason.
The Decision-makers will not have had any previous involvement with the complaint, and those who have served as Investigators for the complaint will act as witnesses in the hearing. Those who are serving as Advisors for any party may not serve also as Decision-makers for the same complaint. Likewise, the Title IX Coordinator may not serve as a Decision-maker, but may facilitate the hearing process. The hearing will convene at a time determined by the Title IX Coordinator, in consultation with the Decision-makers.
20. Evidentiary Considerations in the Hearing
Any evidence that the Decision-makers determine is relevant and credible may be considered. The hearing does not consider: 1) incidents not directly related to the possible violation, unless they evidence a pattern; or 2) questions and evidence about the Complainant’s sexual predisposition or prior sexual behavior, unless such questions and evidence about the Complainant’s prior sexual behavior are offered to prove that someone other than the Respondent committed the alleged conduct, or if the questions and evidence concern prior incidents of the Complainant’s sexual behavior with the Respondent and are offered to prove consent. Within these boundaries, the investigation can consider character evidence generally, although it is unlikely to be relevant unless it is fact evidence or relates to a pattern of conduct.
After the hearing concludes, Decision-makers enter a closed deliberation and render a determination based on the preponderance of the evidence standard (whether it is more likely than not that the Respondent violated the Policy as alleged). Upon a determination of non-responsibility, the deliberation ends.
Upon a determination of responsibility for any of the allegations, previous disciplinary action of any kind involving the Respondent may be considered by the Decision-makers in determining appropriate sanction(s)/corrective action(s). This information is only considered in this stage of the process and is not shared until then. Prior to the heating, the parties may each submit a written impact statement for consideration by Decision-makers during sanctioning.
21. Notice of Hearing
No less than ten (10) business days prior to the hearing, the Title IX Coordinator (or Chair) will send notice of the hearing to the parties. Once sent (typically emailed), notice will be presumptively delivered.
The notice will contain:
- A description of the alleged violation(s), a list of all policies allegedly violated, a description of the applicable procedures, and a statement of the potential sanctions/corrective actions that could result.
- The time, date, and location of the hearing and a reminder that attendance is mandatory, superseding all other academic/ workplace commitments.
- Information about the option for the live hearing to occur with the parties located in separate rooms using technology that enables the Decision-makers and parties to see and hear a party or witness answering questions. Such a request must be raised with the Title IX Coordinator at least five (5) business days prior to the hearing. The Title IX Coordinator or Chair will then confirm with the parties any technology that will be used to facilitate the hearing.
- A list of all those who will attend the hearing, along with an invitation to object to any Decision-maker on the basis of demonstrated bias. This must be raised with the Title IX Coordinator at least five (5) business days prior to the hearing.
- Information on how the hearing will be recorded and how parties may obtain access to a copy after the hearing.
- A statement that if any party or witness does not appear at the scheduled hearing, the hearing may be held in their absence, and the party’s or witness’s testimony and any statements given prior to the hearing will not be considered by Decision-makers. For a compelling reason, the Title IX Coordinator/ Chair may delay the hearing.
- Notification that the parties may be accompanied by an Advisor of their choice at the hearing. Five (5) days in advance of the hearing, each party must notify the Title IX Coordinator of the name of their intended Advisor. If they do not have an Advisor, the College will appoint one. Under federal regulation, each party must have an Advisor present at the hearing, and the Advisor must ask any questions of the other parties or witnesses.
- An invitation to each party to submit an impact statement to the Title IX Coordinator in advance of the hearing (reviewed by Decision-makers during sanctioning).
- An invitation to contact the Title IX Coordinator to request disability accommodations, language assistance, and/or interpretation services needed at the hearing, at least five (5) business days prior to the hearing.
Hearings that occur near the end of an academic term (assuming the Respondent is still subject to this Policy) will typically be resolved over breaks, where possible.
22. Alternative Hearing Participation Options
If any party or witness prefers not to attend (or cannot attend) the hearing in person, they should contact the Title IX Coordinator or Chair at least five (5) business days prior to the hearing to arrange for remote participation.
23. Pre-Hearing Preparation
The Title IX Coordinator or Chair, after any necessary consultation with the parties and Investigator(s), will provide the names of persons who will be participating in the hearing, all pertinent documentary evidence, and the final investigation report to the parties/Advisors at least ten (10) business days prior to the hearing.
Any witness scheduled to participate in the hearing must have been first interviewed by the Investigator(s), unless all parties and the Chair assent to the witness’s participation in the hearing. The same holds for any evidence that would be newly offered at the hearing. The Chair may delay the hearing and instruct that the investigation needs to be reopened to interview that witness or consider that evidence, unless parties agree to admission at the hearing,
The parties will be given a list of the names of the Decision-makers at least seven (7) business days in advance of the hearing. Objections to any Decision-maker must be raised in writing, detailing the rationale for the objection, and must be submitted to the Title IX Coordinator as soon as possible and no later than five (5) days prior to the hearing. Decision-makers will only be removed if the Title IX Coordinator concludes that their bias or conflict of interest precludes an impartial proceeding.
The Title IX Coordinator will then give the Decision-makers a list of the names of all parties, witnesses, and Advisors at least five (5) business days in advance of the hearing. Any Decision-maker who cannot make an objective determination must recuse themselves from the proceedings.. If a Decision-maker is unsure of whether a bias or conflict of interest exists, they must raise the concern to the Title IX Coordinator as soon as possible.
During the ten (10) business-day period prior to the hearing, the parties have the opportunity for continued review and comment on the final investigation report and available evidence. That review and comment can be shared with the hearing facilitator/Chair at the pre-hearing meeting or at the hearing and will be exchanged between parties by the hearing facilitator/Chair.
24. Pre-Hearing Meetings
The Chair, in consultation with the Title IX Coordinator, may convene a pre-hearing meeting(s) with the parties and/or their Advisors to invite them to submit the questions or topics they wish to ask or discuss at the hearing. This allows the Chair to rule on their relevance in advance and avoid improper evidentiary introduction in the hearing. The Chair may also provide recommendations for more appropriate phrasing. However, this advance review opportunity does not preclude the Advisors from asking a question for the first time at the hearing or from asking for a reconsideration based on any new information or testimony offered at the hearing. The Chair must document and share with the parties their rationale for any exclusion or inclusion at a pre-hearing meeting.
The Chair, only with full agreement of the parties, may decide in advance of the hearing that certain witnesses do not need to be present if their testimony can be adequately summarized by the investigation report and/or by Investigator(s) during the hearing.
At each pre-hearing meeting, the Chair will consider arguments that evidence identified in the final investigation report deemed as relevant is, in fact, not relevant. Similarly, evidence identified as directly related but not relevant by the Investigator(s) may be argued to be relevant. The Chair may rule on these arguments at this time and will exchange those rulings between the parties to assist in preparation for the hearing. The Title IX Coordinator typically attends all pre-hearing meetings and may consult with legal counsel and/or ask counsel to attend pre-hearing meetings. Pre-hearing meetings may be recorded by the Title IX Coordinator/Chair, as deemed appropriate.
25. Hearing Procedures
At the hearing, the Decision-makers have the authority to hear and make determinations on all allegations of discrimination, harassment, and/or retaliation and may also hear and make determinations on any additional alleged policy violations that have occurred in concert with the discrimination, harassment, and/or retaliation, even though those collateral allegations may not specifically fall within this Policy.
Participants at the hearing will include the Chair, two additional panelists, the Title IX Coordinator, hearing facilitator, the Investigator(s), the parties, Advisors to the parties, and anyone providing authorized accommodations or assistive services, as well as any called witnesses. The Chair will allow witnesses to appear at a portion of the hearing in order to respond to specific questions from the Decision-makers and parties, and the witnesses will then be excused.
The Chair or hearing facilitator will answer all questions of procedure. Anyone appearing at the hearing to provide information will respond to questions on their own behalf.
26. Joint Hearings
In hearings involving more than one Respondent or in which two (2) or more Complainants have accused the same Respondent of substantially similar conduct, the default procedure will be to hear the allegations jointly. However, the Title IX Coordinator 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.
27. The Order of the Hearing – Introductions and Explanation of Procedure
The Chair and/or hearing facilitator explains the procedures and introduces the participants. This may include a final opportunity for challenge or recusal of the Decision-makers on the basis of bias or conflict of interest. The Title IX Coordinator will review and decide the challenge. The Respondent will then be given the opportunity to respond to each allegation and may choose to accept or deny responsibility for each.
The Chair and/or hearing facilitator then conducts the hearing according to hearing guidelines. At the hearing, recording, witness logistics, party logistics, curation of documents, separation of the parties, and other administrative elements of the hearing process are managed by a non-voting hearing facilitator, typically the Title IX Coordinator, Deputy Title IX Coordinator or designee. This includes but is not limited to the order of the hearing; logistics of rooms for various parties/witnesses as they wait; flow of parties/witnesses in and out of the hearing space; ensuring recording and/or virtual conferencing technology is working as intended; copying and distributing materials to participants.
28. Investigator Presents the Final Investigation Report
The Investigator(s) will then present a summary of the final investigation report, including items that are contested and those that are not, and will be subject to questioning by the Decision-makers and the parties (through their Advisors). The Investigator(s) will be present during the entire hearing process, except deliberation.
Neither the parties nor the Decision-makers should ask the Investigator(s) their opinions on credibility or recommended findings/determinations, and the Investigators, Advisors, and parties will refrain from discussion of or questions about these assessments. If such information is introduced, the Chair will direct that it be disregarded.
29. Testimony and Questioning
Once the Investigator(s) present their report and are questioned, the parties and witnesses may provide relevant information in turn, beginning with the Complainant, and then in the order determined by the Chair and/or hearing facilitator. The parties/witnesses will submit to questioning by the Decision-makers and then by the parties through their Advisors (known as “cross-examination”).
All questions are subject to a relevance determination by the Chair. The Advisor, who will remain seated during questioning, will state 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 if agreed to by all parties and the Chair), the proceeding will pause to allow the Chair to consider the question (and state it if it has not been stated aloud), and the Chair will determine whether the question will be permitted, disallowed, or rephrased.
The Chair may invite explanations or persuasive statements regarding relevance with the Advisors, if the Chair so chooses. The Chair will then state their decision on the question for the record and advise the party/witness to whom the question was directed, accordingly. The Chair will explain any decision to exclude a question as not relevant, or to reframe it for relevance.
The Chair will limit or disallow questions on the basis that they are irrelevant, unduly repetitious (thus irrelevant), or abusive. The Chair has final say on all questions and determinations of relevance and may consult with legal counsel on any questions of admissibility. The Chair may ask Advisors to frame why a question is or is not relevant from their perspective but will not entertain argument from the Advisors on relevance once the Chair has ruled on a question.
If the parties raise an issue of bias or conflict of interest of an Investigator, the Chair may elect to address those issues, consult with legal counsel, and/or refer them to the Title IX Coordinator, and/or preserve them for appeal. If bias is not an issue at the hearing, the Chair should not permit irrelevant questions that probe for bias.
30. Refusal to Submit to Cross-Examination and Inferences
If a party or witness chooses not to submit to cross-examination at the hearing, either because they do not attend the meeting or they attend but refuse to participate in questioning, then the Decision-makers may not rely on any prior statement made by that party or witness at the hearing (including those contained in the investigation report) in the ultimate determination of responsibility. Evidence provided that is something other than a statement by the party or witness may be considered.
Cross-examination is an all or nothing process, meaning that if any question is refused, no statements of that party or witness are admissible. Only if a party or witness attends the hearing, is willing to submit to cross-examination by Advisors, and answers all questions, will their statements prior to or at the hearing be fully admissible. If a party or witness refuses to participate in cross-examination, then the Decision-makers may not rely on any prior statement made by that party or witness at the hearing (including those contained in the investigation report) in the ultimate determination of responsibility. The Decision-makers must disregard all statements. Evidence provided in form other than a statement by the party or witness may be considered.
Whether a party or witness does or does not answer questions from the Decision-makers, their statements will be admissible as long as they are willing to submit to cross-examination by Advisors, even if no questions are asked of them. If a party or witness chooses not to attend the hearing, the Decision-makers may not draw any inference solely from a party's or witness's absence from the hearing. Likewise, Decision-makers may not draw any inference based solely upon a party or witness refusing to answer cross-examination or other questions.
If charges outside of sexual harassment are considered at the same hearing, the Decision-makers may consider all evidence it deems relevant, may rely on any relevant statement as long as the opportunity for cross-examination is afforded to all parties through their Advisors, and may draw reasonable inferences from any decision by any party or witness not to participate or respond to questions.
If a party’s Advisor of choice refuses to comply with the College’s established rules of decorum for the hearing, the College may require the party to use a different Advisor. If a College-provided Advisor refuses to comply with the rules of decorum, the College may provide that party with a different Advisor to conduct cross-examination on their behalf.
31. Recording Hearings
Hearings (but not deliberations) are recorded by Moravian 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 Decision-makers, the parties, their Advisors, and appropriate administrators of Moravian College will be permitted to listen to the recording in a controlled environment determined by the Title IX Coordinator. No person will be given or be allowed to make a copy of the recording without permission of the Title IX Coordinator.
32. Deliberation, Decision-making, and Standard of Proof
Following the hearing, the Decision-makers deliberate in closed session to determine, using the preponderance of the evidence standard, whether the Respondent is responsible or not responsible for violating the policy(ies) in question. While consensus is preferable, a majority vote will determine the finding. The hearing facilitator may be invited into the deliberation to clarify policy or procedures, but may not to address the substance of the allegations.
When there is a finding of responsibility on one or more of the allegations, the Decision-makers may then consider the previously submitted party impact statements in determining appropriate sanction(s/corrective action(s). The Chair will ensure that each of the parties has an opportunity to review any impact statement submitted by the other party(ies). The Decision-makers may consider the statements, but they are not binding.
The Decision-makers will review any pertinent conduct history provided by the Title IX Coordinator in consultation with Student Development, Human Resources, and/or the Provost and will determine the appropriate sanction(s)/corrective action(s).
The Chair will then prepare a written deliberation statement and deliver it to the Title IX Coordinator, detailing the determination, rationale, the evidence used in support of its determination, the evidence not relied upon in its determination, credibility assessments, and any sanction(s)/corrective action(s). This report is typically several pages in length and must be submitted to the Title IX Coordinator within two (2) business days of the end of deliberations, unless the Title IX Coordinator grants an extension. If an extension is granted, the Title IX Coordinator will notify the parties.
33. Notice of Outcome
Using the deliberation statement, the Title IX Coordinator will prepare a Notice of Outcome, which may be reviewed by College counsel. In as timely a manner as possible, the Title IX Coordinator will then share their letter, including the final determination, rationale, and any applicable sanction(s) simultaneously with the parties and their Advisors. Notification will be made in writing and will typically be emailed to the parties’ Moravian College-issued email or otherwise approved account. Once sent, notice will be presumptively delivered.
The Notice of Outcome will articulate the specific policy(ies) reported to have been violated, including the relevant policy section, and will contain a description of the procedural steps taken by the Moravian College from receipt of notice to the determination. The Notice of Outcome will 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; a statement of, and rationale for, the result of each allegation to the extent Moravian College is permitted to share such information under state or federal law; any sanction(s)/corrective action(s) issued which Moravian College is permitted to share according to state or federal law; and any remedies provided to the Complainant designed to ensure access to the Moravian College’s educational or employment program or activity, to the extent Moravian College is permitted to share such information under state or federal law (this detail is not typically shared with the Respondent unless the remedy directly relates to the Respondent). The Notice of Outcome will also include information on when the results are considered to be final, any changes that occur prior to finalization, and the relevant procedures and bases for an appeal.
34. Rights of the Parties- See Appendix A
35. Sanctions/Corrective Actions
Factors considered when determining sanction(s)/corrective action(s) 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/corrective actions to bring an end to the discrimination, harassment, and/or retaliation
- The need for sanctions/corrective actions to prevent future recurrence
- The need to remedy effects of discrimination, harassment, and/or retaliation on Complainant and/or community
- The impact on the parties
- Any other information deemed relevant by the Decision-makers
The sanctions/corrective actions 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/corrective actions described in this policy are not exclusive of, and may be in addition to other actions taken or sanctions imposed by external authorities.
The sanctioning philosophy and menu of sanctions applicable to students for violation(s) of this Policy is detailed in the College’s Student Code of Conduct.
Employee Sanctions/Corrective Actions
The corrective actions applicable to employees (faculty, staff, administrators) for violation(s) of this Policy is detailed in the College’s Employee Handbook (Section 10.9).
36. Withdrawal or Resignation While Charges Pending
Should a student Respondent permanently withdraw from Moravian College, the resolution process ends, as the College no longer has disciplinary jurisdiction over the withdrawn student. However, Moravian College will continue to address and remedy any systemic issues or concerns that may have contributed to the alleged violation(s), and any ongoing effects of the alleged harassment, discrimination, and/or retaliation. The student who withdraws while the process is pending may not return to Moravian College as a student in any capacity, and Admission will be notified that they cannot be readmitted. They may also be barred from Moravian College property, events, future employment and/or volunteer opportunities.
If a student Respondent takes a leave for a specified period of time (e.g., one semester or term), the resolution process may continue remotely and that student may not be permitted to return to Moravian College unless and until all sanctions have been satisfied. Should a student maintain enrollment but decide not to participate in the resolution process, the process proceeds to a reasonable resolution without their participation.
Should an employee Respondent resign with unresolved allegations pending, the resolution process ends, as Moravian College no longer has disciplinary jurisdiction over the resigned employee. However, Moravian College will continue to address and remedy any systemic issues or concerns that contributed to the alleged violation(s), and any ongoing effects of the alleged harassment or discrimination.
The employee who resigns with unresolved allegations pending is not eligible for rehire with Moravian College in any capacity, and the records retained by the Title IX Coordinator will reflect that status. They may also be barred from Moravian College property, events, volunteer opportunities, and/or the ability to complete coursework and/or enroll as a student in the future. All Moravian College responses to future inquiries regarding employment references for that individual will include that the former employee resigned during a pending disciplinary matter related to this policy.
A single level of appeal is offered in Process A. Any party may file a request for appeal (“Request for Appeal”) in writing to the Title IX Coordinator within five (5) business days of the delivery of the Notice of Outcome. The Request For Appeal must include the ground(s) for appeal (see below), information that supports the stated ground(s), and the requested outcome.
Any Request(s) for Appeal will be forwarded to an Appellate Officer, not previously involved in the resolution process in any capacity, to determine if the request(s) meets the grounds for appeal (a Review for Standing). The Review for Standing does not assess the merits of the appeal, but determines whether the request(s) meet the grounds and is timely filed. In doing so, the Appellate Officer may consult with any parties involved in the original resolution process as necessary to understand the ground(s) for appeal and the supporting information.
Grounds for Appeal
Appeals are limited to the following grounds:
- Procedural irregularity that affected the outcome of the matter;
- New evidence that was not reasonably available at the time the determination was made, that could affect the outcome of the matter;
- The sanction(s)/corrective action(s) are substantially disproportionate to the severity of the violation(s) and/or cumulative conduct record of the Respondent.
- The Title IX Coordinator, Investigator(s), or Decision-makers had a clear conflict of interest or substantiated bias for or against Complainants or Respondents generally or the specific Complainant or Respondent that affected the outcome of the matter.
If any of the grounds in the Request(s) for Appeal do not meet any of the grounds above, the request will be denied by the Appellate Officer and the parties will be notified in writing of the denial and rationale. This decision is final and ends the resolution process. If any of the grounds in the Request(s) for Appeal meet the grounds above, then the Appellate Officer will notify the other party(ies), and they will be given five (5) business days to review and respond before a decision is made. Neither party may submit any new Request(s) for Appeal after this time period.
Appeals may be resolved directly by the Appellate Officer or referred to a three-member Appeal Board appointed by the Title IX Coordinator from the Pool. The Appeal Board members will not have been previously involved in the resolution process in any capacity. The Appellate Officer/Appeal Board will collect any additional information needed, as well as all documentation regarding the approved grounds and any subsequent responses. This information will be shared with the Title IX Coordinator, as well as with the Investigators as appropriate.
Upon review of all relevant information, the Appellate Officer/Appeal Board can choose to:
- Uphold the original outcome;
- Modify the original outcome; or
- Remand the case to the original hearing panel with clear instructions for reconsideration, in light of the granted appeal grounds only.
As in the original process, the preponderance of the evidence standard is applied and while consensus is preferable, a majority vote will determine the outcome. All decisions rendered through the process appeal are final and end the resolution process.
In rare cases where a procedural error cannot be addressed by the original Decision-makers (as in cases of bias), the Appellate Officer/Appeal Board may order a new hearing with new Decision-makers. Unlike the other three options above, the results of a new hearing can be appealed, once, on any of the available appeal grounds, and the appeal process begins again.
Once any appeal decision is finalized, a Notice of Appeal Outcome will be sent to all parties simultaneously including the decision on each approved ground and rationale for each. The Notice of Appeal Outcome will also specify any specific instructions for remand or reconsideration, any sanction(s)/corrective action(s) that may result which the College is permitted to share under state or federal law, and the rationale supporting the each finding to the extent the College is permitted to share under state or federal law. Notification will be made in writing and typically emailed to the parties’ Moravian College-issued email or otherwise approved account. Once sent, notice will be presumptively delivered.
Sanctions Status During the Appeal
Any sanctions imposed as a result of the hearing are stayed during the appeal process. Supportive measures may be reinstated, subject to the same supportive measure procedures above.
The Title IX Coordinator may initiate a new Violence Risk Assessment to determine if it is necessary for an emergency removal to take place pending the outcome of the appeal. This process would be subject to the same emergency appeal procedures detailed above.
If the original sanctions include separation from the College, Moravian College may place holds on official transcripts, diplomas, graduations, and course registration pending the outcome of an appeal. The Respondent may request a stay of these holds from the Title IX Coordinator within two (2) business days of the notice of the sanctions. The request will be evaluated by the Title IX Coordinator or designee, whose determination is final.
- Decisions on appeal are to be deferential to the original decision, making changes to the finding only when there is clear error and to the sanction(s)/corrective action(s) only when there is a compelling justification to do so.
- 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 or record of the original hearing and pertinent documentation regarding the specific grounds for appeal.
- An appeal is not an opportunity for the Appellate Officer/Appeal Board to substitute their judgment for that of the original Decision-makers merely because they disagree with the finding and/or sanction(s)/corrective action(s).
- The Appellate Officer/Appeal Board may consult with the Title IX Coordinator for clarification of procedure or rationale. Documentation of all such consultation will be maintained.
- Appeals granted based on new evidence should normally be remanded to the original hearing panel for reconsideration. Other appeals may be remanded at the discretion of the 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 rare case of a new hearing as described above).
- In cases in which the appeal results in reinstatement to Moravian 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.
38. Long-Term Remedies/Other Actions
Following the conclusion of the resolution process, and in addition to any sanctions/corrective actions implemented, the Title IX Coordinator may implement additional long-term remedies or actions with respect to the parties and/or campus community to stop harassment, discrimination, and/or retaliation; remedy the effects; and prevent reoccurrence.
These remedies/actions may include, but are not limited to:
- Referral to counseling and health services
- Referral to the Employee Assistance Program
- Education to the individual and/or the community
- Permanent alteration of housing assignments
- Permanent alteration of work arrangements for employees
- Provision of campus safety escorts
- Climate surveys
- Policy modification and/or training
- Provision of transportation accommodations
- Implementation of long-term contact limitations between the parties
- Implementation of adjustments to academic deadlines, course schedules, etc.
When no policy violation is found, the Title IX Coordinator will address any remedies owed by the College to the Respondent to ensure no effective denial of educational access. At the discretion of the Title IX Coordinator, certain long-term support or measures may also be provided to the parties even if no policy violation is found. The College will maintain the privacy of any long-term remedies/actions/measures, provided privacy does not impair the ability to provide these services.
39. Failure to Comply with Sanctions and/or Interim and Long-term Remedies and/or Corrective Actions
All Respondents are expected to comply with the assigned sanction(s)/corrective action(s) within the timeframe specified by the final Decision-makers. Failure to abide by the sanction(s)/corrective action(s) imposed by the date specified, whether by refusal, neglect, or any other reason, may result in additional sanction(s)/corrective action(s), including suspension, expulsion, and/or termination from Moravian College and may be noted on a student’s official transcript. A suspension will only be lifted when compliance is achieved to the satisfaction of the Title IX Coordinator.
40. Process A Recordkeeping
Moravian College will maintain any and all records in accordance with state and federal laws and will maintain, for a period of at least seven years, records of:
- Each sexual harassment investigation, including any determination regarding responsibility and any audio or audiovisual recording or transcript required under federal regulation;
- Any disciplinary sanctions imposed on the Respondent;
- Any remedies provided to the Complainant designed to restore or preserve equal access to Moravian College’s education program or activity;
- Any appeal and its outcome;
- Any Informal Resolution and its outcome;
- All materials used to train Title IX Coordinators, Investigators, Decision-makers, and any person who facilitates an Informal Resolution process. Moravian College will make these training materials publicly available on the College’s website; and
- Any actions, including any supportive measures, taken in response to a report or formal complaint of sexual harassment, including:
- The basis for all conclusions that the response was not deliberately indifferent;
- Any measures designed to restore or preserve equal access to Moravian College’s education program or activity; and
- If no supportive measures were provided to the Complainant, the reasons why such a response was not clearly unreasonable in light of the known circumstances.
41. Disabilities Accommodations in the Resolution Process
Moravian College is committed to providing reasonable accommodations and support to qualified students, employees, or others with disabilities to ensure equal access to the College’s resolution process. Anyone needing such accommodations or support should contact the Title IX Coordinator, who will consult with the Accessibility Support Center and/or Human Resources, to determine reasonable accommodation(s) for equitable participation in the process.
42. Revision of this Policy and Procedures
These policies and procedures supersede any previous policy(ies) addressing harassment, sexual misconduct, discrimination, and/or retaliation under Title IX and will be reviewed and updated annually by the Title IX Coordinator. Moravian College reserves the right to make changes to this document at any time, as necessary, and once those changes are posted online, they are in effect.
During the resolution process, the Title IX Coordinator may make minor modifications to procedures that do not materially jeopardize the fairness owed to any party. The Title IX Coordinator may also vary procedures materially with notice (on the institutional website, with the 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 document does not create legally enforceable protections beyond the protection of the background state and federal laws which frame such policies and codes, generally.
This Policy and its procedures are effective August 14, 2020.