Henry, a junior, has been found responsible by the school’s conduct office for cyberstalking and physical and sexual assault against another current student. His sanction is expulsion from the institution. Henry appeals the decision.
He states there is new evidence in his case that could influence the school’s decision to expel him. He states he finally found emails sent among the reporting party, a friend and himself that imply consent and would influence the school to reverse his sanction.
The Guiding Principles and Their Implications
#1 — Response should be timely, appropriate, sensitive, and respectful. Incorporating these principles at every level of response will increase the likelihood that students will report intimate partner violence and other forms of gender based violence.
If the case is heard again on appeal, the student who reported Henry’s behavior should be notified in writing of the request for appeal and the office’s decision following the presentation of the new evidence.
If the case is revisited on appeal, the reporting party should not be compelled to participate in the appeals process, but should be offered the opportunity to respond to the details of the new evidence in writing or in person.
During the period in which a school is reviewing an appeal, campus No Contact Orders should remain in place and reporting parties should continue to be offered safety planning as well as academic and other accommodations.
The Office for Civil Rights recommends that an institution allow at least one level of institutional appeal to be heard by an individual or group who have received specific training in IPV and other forms of gender-based violence.
Each Institution must describe the appellate procedures (if appeals are permitted) early in the process, including:
- Grounds for appeal [see below]
- Standards of review
- The person/entity that will decide appeals
- The applicable, reasonably prompt time frames.
Grounds for Appeal
Parties should not be able to appeal a disciplinary proceeding result simply because they do not agree with the outcome. Appeals must be based on:
- Allegations that the party was denied some substantive or procedural due process right guaranteed to them or other right outlined in these policies, or
- Presentation of information that was unknown or unknowable at the time of the original investigation.
Require that both the reporting party and the responding party shall be simultaneously informed, in writing, of the following:
- The procedures for the reporting party and the responding party to appeal the results of the proceeding
- Any change to the results
- When such results become final
A finding of suspension or expulsion should not be “stayed” pending the outcome of an appeal. Expulsion is a permanent separation from the institution that involves denial of all student privileges, including entrance to the institution premises and matriculation. Henry’s expulsion should continue to be enforced during his appellate process.
- If either suspension or expulsion is the final sanction, these should permanently recorded on a student’s transcript. The entry should indicate that a student was found responsible for IPV, stalking, and/or sexual violence. A transcript entry may be implemented on its own or in combination with another sanction.
- The institution maintains the right to withhold the awarding of a degree otherwise earned until the completion of any imposed sanctions.
- Be ongoing, research-based, and up-to-date
- Include information on trauma-informed and culturally sensitive response
- Be developed and facilitated in coordination with gender violence experts
From the Violence Against Women Act: "Proceedings must be conducted by officials who receive annual training on all forms of interpersonal violence (which includes IPV, stalking, and sexual violence), including on how to conduct an investigation, protect the safety of victims/survivors, and promote accountability."
Campuses should carefully coordinate and plan training sessions for campus security personnel as well as Student Conduct employees, and should design all trainings in close collaboration with experts on gender-based violence issues. Additionally, training coordinators can ease competition for time by working with other campus police "trainers" to infuse gender-based violence issues in other areas of ongoing and pre-scheduled routine training.
Adjudication and investigation professionals need not reinvent the wheel when it comes to annual training. Campus gender violence experts can offer research-based and trauma-informed guidance and training that reflects the actual experiences of student victims/survivors. Local domestic violence services providers often have expertise on these topics as well. See: 'Partner with Local Experts'.
For more information on trauma-informed staff training, review the minimum standards of training outlined in the Prevention & Education section.
#4 — Increase safety for and reduce retaliation toward reporting parties. Campuses should expend great efforts to protect the safety of victim/survivors by training employees in safety planning, adjudicating claims of retaliation in a timely fashion, and highlighting retaliation prohibitions in IPV-related policies.
Any no-contact order between students should stay in place during investigation and appellate processes, and as long as both/all parties are enrolled in the institution and the victim/survivor wishes it to be in place. If the perpetrator is expelled and his behavior toward the victim/survivor is therefore no longer restricted by a school-issued no-contact order, the victim/survivor can seek a civil protective order.
For more information on drafting, implementing, and enforcing campus no-contact orders, visit ‘should be notified in writing of the request for appeal and the office’s decision following the presentation of the new evidence
All involved parties should be informed of the school’s no-retaliation policy, how to report retaliation of any kind, and sanctions for violating the policy.
From OCR: “When a school knows or reasonably should know of possible retaliation by other students or third parties, it must take immediate and appropriate steps to investigate or otherwise determine what occurred. Title IX requires the school to protect the complainant* and witnesses and ensure their safety as necessary..... and [to respond] promptly and appropriately to address continuing or new problems.”
*This section uses the term “complainant” as it is quoted directly from the Office of Civil Rights guidance.