XI. Complaint Resolution

When a formal complaint is filed, the complaint resolution process begins. Complaints may be resolved through either Informal Resolution or a Formal Resolution. The Civil Rights & Title IX Coordinator will provide the complainant and the respondent with a written overview of resolution options and available resources. 

The College will conduct an initial assessment and determine the most appropriate manner of resolution under the policy. The College recognizes that in some circumstances, due to aspects of a particular case, strict compliance with the policy may create unexpected conflicts of interest or raise other concerns about the implementation of the process. The Civil Rights & Title IX Coordinator is empowered to adjust the process, with notice to the parties, as necessary to provide a prompt and equitable process.

Resolution of a formal complaint will typically continue when a complainant separates from the College. If a respondent withdraws, resigns, graduates, retires, or otherwise departs from the College after the filing of a formal complaint and prior to decision, the Civil Rights & Title IX Coordinator will determine whether to: (1) offer to the parties to seek/continue informal resolution; (2) discontinue the complaint process without a finding but with a respondent’s student file marked “withdrew pending disciplinary action” or their employee file marked “no rehire”; (3) continue the formal complaint process to its conclusion; (4) take other action deemed appropriate by the Civil & Rights & Title IX Coordinator.

A. Process Assurances: Complainant and Respondent

In any report, complaint, investigation or resolution under this policy, both a complainant and a respondent can expect:

  1. a prompt and equitable response to reports of Prohibited Conduct;
  2. to receive supportive measures that may be reasonably available and necessary for protection and support;
  3. information about how to access confidential resources on and off campus and other forms of support available through the College and in the community;
  4. written notice of the alleged conduct, potential policy violations at issue, and details about the process;
  5. an adequate, reliable, thorough and impartial process conducted by individuals free from conflict of interest and bias;
  6. a process that includes the presumption that the respondent is not responsible for a policy violation unless and until a determination regarding responsibility is made at the conclusion of the process;
  7. the opportunity for an advisor of choice who may attend all meetings and proceedings related to the report and/or complaint;
  8. timely notice of any meeting at which the party’s presence is required, with sufficient time to prepare for the meeting;
  9. agency and autonomy to decline to participate in an investigation or resolution under the policy, although the College may choose to continue the process even if the complainant and/or respondent does not participate;
  10. to identify witnesses, submit suggested questions in writing during the investigation, and provide evidence during the investigation and resolution; 
  11. timely and equal access to any information that is used in the investigation and resolution;
  12. prompt remedial action if Prohibited Conduct is determined to have occurred;
  13. regular communication about the progress of the process and of the resolution;
  14. timely written notice of the outcome, required remedies, and issued sanctions and rationale;
  15. the opportunity to appeal the outcome (determination as to responsibility) and sanction;
  16. to be free from retaliation;
  17. parties may request interpreters and/or translators which will be selected and provided by the College;
  18. reasonable accommodation for individuals with disabilities can be requested through established College protocol as provided by the Americans with Disabilities Act and/or Section 504 of the Rehabilitation Act; and,
  19. to be free from College-imposed orders restricting parties from discussing the case with others. This does not prohibit the College from issuing no-contact orders or requiring employees to abide by confidentiality laws.

B. Request for Anonymity or No Action

The Civil Rights & Title IX Coordinator will take all reasonable steps to respond, resolve, and remedy a report of Prohibited Conduct consistent with a complainant’s preferences where possible. Where a complainant makes a report but requests that a name or other identifiable information not be shared with the respondent or that no formal action be taken, the College will balance this request with its responsibility to provide a safe and non-discriminatory environment for all Kenyon College community members. 

In considering a complainant’s request to take no action and evaluating whether to proceed, the Civil Rights & Title IX Coordinator will assess and consider:

  • the preferences and concerns of the complainant;
  • the nature and circumstances of the allegation;
  • the severity and impact of the reported conduct;
  • pattern evidence or other similar conduct by respondent;
  • the respective ages of the parties, including whether the complainant is a minor (under the age of 18);
  • whether the respondent has admitted to the conduct;
  • whether the respondent has been the subject of other complaints or reports of Prohibited Conduct under this policy;
  • whether the respondent threatened further sexual violence or other violence against the complainant or others;
  • whether the report indicates that multiple respondents were involved;
  • whether the report indicates that the conduct was perpetrated with a weapon; 
  • whether the respondent is an employee; and,
  • whether the school possesses independent means to obtain relevant evidence (e.g., witnesses, security cameras or personnel, or physical evidence).

Where the College is unable to take action consistent with the request of the complainant, the  Civil Rights & Title IX Coordinator will inform the complainant about the chosen course of action, and implement necessary supportive measures. 

C. Initial Assessment

Upon receipt of a report, the Civil Rights & Title IX Coordinator will conduct an initial assessment to provide an integrated and coordinated response to reports under this policy. In the course of this initial assessment, the Civil Rights & Title IX Coordinator will consider the complainant’s expressed preference regarding supportive measures and the manner of resolution, unless the Coordinator determines that such a course of action would be unreasonable in light of the known circumstances.

As part of the initial assessment, the Civil Rights & Title IX Coordinator will:

  • address immediate physical safety and emotional well-being;
  • if applicable, notify the complainant of the right to contact law enforcement, to decline to contact law enforcement, and to seek medical treatment;
  • if applicable, advise the complainant that even if they decline to contact law enforcement, the College may be required to report the incident to law enforcement under Ohio law (and under most circumstances, the complainant may decline to participate in a law enforcement investigation);
  • inform the complainant of the importance of preservation of evidence (i.e., electronic, forensic, medical, physical, etc.)
  • enter the incident into the College’s daily crime log, if appropriate (without identifying information);
  • evaluate whether to issue a timely warning consistent with the Clery Act;
  • provide the complainant with information about on and off-campus resources;
  • notify the complainant of the range of supportive measures;
  • consider the complainant’s interests with respect to supportive measures;
  • provide the complainant with an explanation of the procedural options under the policy, including Informal Resolution and a Formal Resolution;
  • notify the complainant of the ways they may choose to participate, or decline to participate, in the various steps of the process. This will include notification that the Civil Rights & Title IX Coordinator may, in certain circumstances, proceed without complainant’s participation and that non-participation by the complainant may limit the ability of the College to respond;
  • discuss the complainant’s expressed preference for manner of resolution and any barriers to proceeding;
  • explain the College’s policy prohibiting retaliation; and,
  • if the determination has been made to notify the respondent of the report, provide the respondent with information about resources, supportive measures, and procedural options.

No formal complaint filed by the complainant: If a complainant chooses not to file a formal complaint, the coordinator will determine whether it is appropriate to take proactive steps to address the reported behavior. In this instance, the coordinator will not typically disclose the specifics of any report without the consent of the complainant. Alternatively, as below, the Civil Rights & Title IX Coordinator may elect to file a formal complaint. 

Formal complaint filed: If a complainant decides to file a formal complaint, the Civil Rights & Title IX Coordinator will communicate with the respondent about the complaint, and discuss the above listed information with the respondent. When a formal complaint is initiated, the respondent and complainant will be informed of the nature of the alleged conduct and/or potential charges being investigated as detailed in Section XI.D.

D. Filing a Formal Complaint

A formal complaint is a document filed in writing by a complainant, or signed by the Civil Rights & Title IX Coordinator, that alleges Prohibited Conduct against a respondent and requests that the College officially investigate and resolve the allegation. The formal complaint may be filed with the Civil Rights & Title IX Coordinator in person, by mail, by electronic mail, by in-person delivery, or through the online reporting form and must contain the complainant’s physical or digital signature. In the instances when the Civil Rights & Title IX Coordinator signs a formal complaint, the Civil Rights & Title IX Coordinator is not a complainant or a party during a Formal Resolution, and must comply with requirements for any person involved in the response and/ or resolution to be free from conflicts and bias. 

A formal complaint may be resolved through either an Informal Resolution or a Formal Resolution. Informal Resolution may only be offered after a formal complaint has been filed, so that the parties understand what the Formal Resolution entails and can decide whether to voluntarily attempt informal resolution as an alternative.

The Civil Rights & Title IX Coordinator may choose to dismiss a formal complaint if a respondent is no longer participating in or attempting to participate in the education or program activity of the College, the complainant submits a written request to withdraw the complaint, or specific circumstances prevent the College from gathering evidence sufficient to reach a determination. No matter the reason for the dismissal of a complaint, the parties will be notified in writing of the decision, including the reasoning.

E. Advisor of Choice

Complainants and respondents may be accompanied to any meeting, Informal Resolution session, interview, and/or hearing related to the procedures outlined in this Policy by an advisor of their choice. The advisor of choice may be, but is not required to be, an attorney. If a formal complaint is filed, advisors are invited and strongly encouraged to speak with the Civil Rights &  Title IX Coordinator for an orientation to the College’s policies and procedures, privacy protections, and expectations around participation and decorum. If a formal complaint is addressed through an Informal Resolution (Section XI.F.), the parties are encouraged but not required to have an advisor. If a formal complaint is addressed through a Formal Resolution (Section XI.G.) and a live hearing is held, both the complainant and the respondent must have an advisor for the purpose of conducting cross-examination at the live hearing. If either party does not have an advisor for the live hearing phase of a Formal Resolution, an advisor of the College’s choosing will be assigned at no cost to the party. The advisor’s participation is defined below:

Meetings with the Civil Rights & Title IX Coordinator: Advisors may accompany the complainant or the respondent to any meeting with the Civil Rights & Title IX Coordinator, and are encouraged to ask questions and speak openly and respectfully in those meetings. If a formal complaint is filed, advisors are invited and strongly encouraged to speak with the Civil Rights & Title IX Coordinator (or designee) for an orientation to the College’s policies and procedures, privacy protections, and expectations around participation and decorum. If an advisor also expects to serve as a witness, the advisor should disclose this information to the Civil Rights & Title IX Coordinator as soon as possible.

Informal Resolution Process: Advisors are not required to be present during any phase of the Informal Resolution process, but parties are strongly encouraged to include them. Advisors will be permitted to ask clarifying and procedural questions of the person facilitating the informal resolution process, and to advise the party with whom they are working.

Investigation: Advisors will receive access to the investigative report that contains the report narrative and all submitted evidence produced in the investigation, unless the party they are advising indicates in writing that the advisor should not be able to access the evidence. Advisors are not required to attend the investigation interview/s of their party but they are permitted to attend. Advisors will be permitted to ask clarifying and procedural questions during the interview/s of their party, as long as they are respectful and not disruptive. Advisors may not answer questions or provide information on behalf of their party.

Pre-Hearing Conference: Advisors are required to attend a pre-hearing conference with the Hearing Coordinator and the Hearing Officer to review the College’s live hearing procedures. Advisors are encouraged to ask questions to understand their role at the hearing and the College’s expectations around participation and decorum. If an advisor also expects to serve as a witness, the advisor should disclose this information to the Civil Rights & Title IX Coordinator no later than this conference.

Live Hearing: A live hearing is only required when at least one of the allegations being formally resolved includes one or more forms of Sexual Harassment - Title IX. At the live hearing, each party’s advisor will be responsible for asking relevant questions to the other party or parties and any witnesses. Advisors are encouraged to focus questions on disputed issues so as to assist the Hearing Officer in determining issues of credibility. This questioning will be conducted orally, directly and in real-time in a manner that, in the Hearing Officer’s sole discretion, is not inappropriate, harassing, intimidating, irrelevant, or redundant. The Hearing Officer reserves the right to remove an advisor who questions witnesses in an abusive, intimidating, harassing, or disrespectful manner. In the instance that an advisor is removed, the hearing will be suspended until a later date to permit an alternative advisor to be obtained or assigned.

F. Informal Resolution

The Informal Resolution process may only be pursued after a formal complaint has been filed. Informal Resolution will only occur with the voluntary, and written consent of both parties and the Civil Rights & Title IX Coordinator. Informal Resolution is not permitted to resolve allegations that an employee (staff person or faculty member) engaged in Sexual Harassment — Title IX against a student. 

Prior to initiating an informal resolution, the Civil Rights & Title IX Coordinator will issue each party a written notice disclosing:

  • the allegations;
  • the requirements and procedure of the informal resolution process; and
  • any consequences resulting from participating in the informal resolution process, including the records that will be maintained or could be shared.

At any time either party has the right to withdraw from the Informal Resolution process and resolve the formal complaint through a Formal Resolution. If the parties are not able to resolve the complaint through the Informal Resolution process, the complaint will be resolved through a Formal Resolution unless the complaint is dismissed.

The Civil Rights & Title IX Coordinator retains the discretion to determine the type of Informal Resolution that may be appropriate in a specific case and may refer a complaint to a Formal Resolution at any time. Informal Resolutions will typically be completed within 30 calendar days of the decision to engage in Informal Resolution. Informal Resolution agreements are signed by the parties and the Civil Rights & Title IX Coordinator and are enforced by the College. 

When the respondent is a student, an Informal Resolution will only be recorded in the respondent’s student file in the Dean of Student Development's office and/or on the student’s transcript if the agreed-upon Resolution Agreement sanction includes disciplinary probation, suspension, or dismissal. When the respondent is an employee, a notation of the informal resolution will be made in the employee’s file maintained by the Office of Human Resources and/or the Provost’s Office. 

Violations of an Informal Resolution Agreement will be reviewed by the Civil Rights & Title IX Coordinator and may be referred to a Formal Resolution or referred to the appropriate College official for further review and possible sanctioning. 

G. Formal Resolution

The Formal Resolution may only be pursued after a formal complaint has been filed. The Civil Rights & Title IX Coordinator will identify the potential violations and prepare the initial notification of investigation outlining the charges, which may include allegations of violations of other College policies, to be investigated and assessed. When the charges include violations of other College policies, they will be investigated and resolved at the same time and in accordance with this Policy. At the completion of the investigation and any appeal of the Final Title IX assessment (if applicable), the complaint will be addressed through either the Investigator Resolution (non-Title IX) or the Hearing Resolution (Title IX). Both parties will have the opportunity to appeal the decision regarding responsibility and any sanctions imposed. The College may delay granting a diploma otherwise earned until the completion of all phases of a Formal Resolution, including completion of an appeal and/or any sanctions imposed.

G.1.  Investigation

The parties and their advisors will receive written notice that an investigation has been initiated. The notice of investigation will include:

  • the identities of the parties involved; 
  • the specific section/s of the policy allegedly violated; 
  • the precise conduct alleged to constitute the potential violation/s;
  • the approximate date, time, and location of the alleged incident; 
  • a statement indicating that the respondent is presumed not responsible for the alleged conduct;
  • a statement that the determination of responsibility will be made at the conclusion of a Formal Resolution;
  • a notice that parties have the right to an advisor of their choice;
  • the result of an initial assessment to determine whether the allegations suggest a potential violation of “Sexual Harassment - Title IX,” with an indication that this decision will be reviewed again when the investigators prepare their report;
  • the name of the investigators and the ability to challenge their participation for conflict of interest or actual bias;
  • the appropriate policy language prohibiting a party from knowingly making false statements or knowingly submitting false information; and
  • notice that Retaliation is prohibited. 

The notice shall be provided reasonably in advance of any interview with the investigators, with sufficient time for meaningful preparation. The Civil Rights & Title IX Coordinator, in consultation with the investigators, may amend the charges as part of the investigative process. The Civil Rights & Title IX Coordinator will, if appropriate, issue amended charges to both parties. 

The Civil Rights & Title IX Coordinator will designate two investigators to conduct an adequate, reliable and impartial investigation, one of which will typically be a College employee. The College may engage an external investigator as one or both of the two assigned investigators. In complex situations, the Civil Rights & Title IX Coordinator may engage additional trained investigators to assist in gathering the information that will be considered by the primary investigators. The burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility rests on the College and not the parties. 

The interviews will be recorded by the investigators.

The parties will have an equal opportunity to present witnesses, including expert witnesses, and to submit evidence. The investigators will also gather any available physical evidence, including documents, communications between the parties, and other electronic records as appropriate and available. The parties may submit questions to be asked of parties and witnesses. Investigators will review submitted questions and, in their discretion, may choose which questions are necessary and appropriate to the investigation and conduct any follow-up, as they deem relevant. All parties and witnesses are expected to provide truthful information. Knowingly providing false or misleading information is a violation of College policy and can subject a student or employee to disciplinary action. Making a good faith report to the College that is not later substantiated does not constitute false or misleading information. 

The Civil Rights & Title IX Coordinator may combine multiple complaints that arise out of the same set of facts or circumstances into one investigation. Where multiple complainants or respondents are involved in the same investigation, the parties will only be provided with the appropriate portion(s) of the investigative documents that relate to the complaint(s) in which they are a party.

A person’s medical, counseling/psychological, and similar treatment records are privileged and confidential documents that a party will not be required to disclose. Where a party provides their written permission to share medical, counseling/psychological, and similar treatment records as part of the investigation, only the portion of the records directly related to the allegations raised in the formal complaint will be included in the case file for review by the other party and for use in the investigative process.

Evidence related to the prior sexual history of the complainant is generally not relevant to the determination of a policy violation and will only be considered in very limited circumstances. For example, to prove that someone other than the respondent committed the alleged conduct, or where the existence of consent is at issue, the sexual history between the parties may be relevant to help understand the manner and nature of communications between the parties and the context of the relationship. However, even in the context of a relationship, consent to one sexual act does not, by itself, constitute consent to another sexual act, and consent on one occasion does not, by itself, constitute consent on a subsequent occasion. 

Information regarding other acts by a party will be permitted as relevant where the nature and means of those other acts may affect credibility of the assertions in the current case. It is not required that the party have been found responsible for policy violations related to those other acts for them to be included in the current case. 

If the Civil Rights & Title IX Coordinator determines that reports of other acts by a party may be relevant, the Civil Rights & Title IX Coordinator may, in their discretion, offer the information to the investigators for their consideration to determine whether it may be relevant. The investigators may determine, in their discretion, whether and how to follow up on that information within the scope of their current investigation. It is ultimately the decision-maker’s discretion to determine whether the information is relevant in the current case.

Any party seeking to introduce information about prior sexual history or other acts by a party should bring this information to the attention of the investigators at the earliest opportunity. While the investigators may explore relevant areas of inquiry, the Civil Rights & Title IX Coordinator has the discretion to make the final determination whether evidence of prior sexual history or other misconduct is relevant and should be included in the report.

If, at any time, the respondent agrees to a finding of responsibility to some or all of the charged conduct, the matter may be referred to a Formal Resolution (Section XI.G.) for adjudication, or if all parties agree, referred to Informal Resolution (Section XI.F.). The College will seek to complete the investigation in a reasonable timeframe from the notice of investigation, typically within 20 business days. This time frame may be extended for good cause with written notice to the parties of the delay and the reason for the delay. Good cause may be based on delays occasioned by the complexity of the allegations, the number of witnesses involved, the availability of the parties or witnesses, the effect of a concurrent criminal investigation, any intervening school break or vacation, or other circumstances, all of which will likely extend the length of time it takes to complete the investigation. The Civil Rights & Title IX Coordinator will provide regular updates to all parties regarding the progress of the investigation.

G.2. Review of Evidence

The evidence obtained as part of the investigation that is directly related to the allegations raised in the formal complaint will be made available to the parties and their advisors, including the evidence upon which the College may not rely in reaching a determination regarding responsibility and inculpatory or exculpatory evidence. The parties will have 10 calendar days to review the evidence. The parties will be offered the opportunity to review the evidence and provide a written response that will be submitted to the investigators for the completion of the Investigation Report. 

Due to the privacy of all those involved, evidence shared in an electronic format will not be printable, downloadable or electronically shareable by the parties or their advisors. Exceptions may be made in compliance with Section 504 of the Rehabilitation Act of 1973.

G.3. Investigation Report

Once the parties have reviewed the evidence and have submitted responses, or the time period to submit such responses has passed, the investigators will complete any follow up they deem necessary, and write the investigation report. In cases where Sexual Harassment is being alleged, the investigators will consider whether the conduct alleged in the formal complaint and the Notice of Investigation would constitute “Sexual Harassment - Title IX,”. The investigators will consider the evidence gathered from the complainant during the investigation, and make a recommendation to the Civil Rights & Title IX Coordinator regarding the appropriate resolution process. The Civil Rights & Title IX Coordinator will review the recommendation of the investigators and make the final determination as to whether the conduct alleged , if demonstrated by a preponderance of the evidence, would constitute “Sexual Harassment – Title IX.” This determination is made only considering the information provided by the complainant, regardless of other evidence available in the case.  The Civil Rights & Title IX Coordinator will notify the parties, in writing, of the final assessment and whether or not the complaint will proceed to a hearing or be decided by the investigators. 

The investigation report will include, but is not limited to, the following sections:

  • overview of the complaint made and summary of the investigative methodology;
  • summary of relevant information gathered, including:
  • timeline of incident being investigated;
  • complainant’s account of events;
  • respondent’s account of events;
  • witness accounts;
  • evidence gathered;
  • areas of agreement;
  • areas of disagreement;
  • assessment of whether or not the complaint meets one or more of the required elements of the definition of sexual harassment under Title IX, including rationale; and
  • appendix containing all of the collected evidence.

The investigation report will not include:

  • Information about the complainant’s sexual predisposition or prior sexual behavior, unless:
  • The information is to prove that someone other than the respondent  committed the alleged conduct; or
  • The information concerns specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent
  • Information that is protected by a legally recognized privilege; and
  • A party’s medical, counseling/psychological, and similar treatment records unless the party has given voluntary, written consent.

When no appeal of the Final Title IX Assessment is filed, the parties have 10 calendar days beginning at the conclusion of the 3-day appeal window to submit their written response to the Investigation Report. The response may include an assertion that evidence not summarized in the report, but present in the case file, should be considered as relevant.

In a case where none of the charges include a form of Sexual Harassment, the parties have 10 calendar days from the date the Civil Rights & Title IX Coordinator shares the Investigation Report to submit their written response to the Investigation Report.

In a case with multiple charges, if any of the charges constitute “Sexual Harassment - Title IX,” all the charges in that case will be handled at the same time through the Hearing Resolution process. 

G.4. Final Title IX Assessment and Appeal

Final Title IX Assessment

In cases involving allegations of Sexual Harassment, the investigators will consider the allegations in the formal complaint and Notice of Investigation to make a recommendation to the Civil Rights & Title IX Coordinator as to whether mandatory dismissal is appropriate. A mandatory dismissal is a determination that the information from the complainant, if true, does not constitute Sexual Harassment – Title IX. The recommendation is made based on the information obtained from the complainant, without regard to other evidence in the case. When at least one of the allegations constitutes Sexual Harassment-Title IX, this allegation, as well as any non-Title IX allegations, will advance to a Hearing Resolution to be determined by the Hearing Chair/Panel (see section XI.G.6.).

The Civil Rights & Title IX Coordinator shall consider the recommendation of the investigators as to whether the case is subject to mandatory dismissal and shall make a determination as to whether mandatory dismissal is appropriate. The Coordinator’s decision, called the Final Title IX Assessment, will be shared with the parties and their advisors at the time the Investigative Report is shared. The Final Title IX Assessment may be appealed by either party. Instructions and grounds for the appeal will be shared by the Civil Rights & Title IX Coordinator with the Final Title IX Assessment.

Appeal

Parties have 3 business days after receipt of the investigative report to submit in writing an appeal of the Final Title IX Assessment. The appeal will be considered by an appropriately trained staff member designated by the Civil Rights & Title IX Coordinator. The appeal decision will be communicated in writing to the parties, their advisors, and the Civil Rights & Title IX Coordinator. The decision will also indicate the path for complaint resolution: Hearing Resolution or Investigator Resolution.

From the date the appeal decision letter is shared with the parties, the parties have 10 calendar days to submit a written response to the Investigation Report. The written responses will be provided to the parties and included for consideration by the Hearing Chair/Panel or the investigators in the resolution process.

G.5. Investigator Resolution (Non-Title IX) 

The Investigation Resolution process will be used to resolve cases that do not include a charge of “Sexual Harassment — Title IX.” The investigators will make a determination, by a preponderance of the evidence, whether there is sufficient information to support a finding of responsibility. The investigators’ finding, and the rationale for the finding, will be included in the final investigative report that will be shared with the parties by the Civil Rights & Title IX Coordinator.

The investigators should first evaluate the quality of the evidence. The investigators should consider all of the evidence regardless of who provided it. Any evidence the investigators find to be of high quality should be given more weight than any evidence the investigators find to be of low quality. Quality may, or may not be identical with quantity, and sheer quantity alone should not be the basis for a finding of responsibility. The testimony of a single party or witness may be sufficient to establish a fact.

The investigators will evaluate all admissible, relevant evidence for weight or credibility. Credibility is not based solely on observing demeanor, but also considers detail, interest or bias, corroboration where it would reasonably be expected to exist, the circumstances of the disclosure, and the nature of the relationship. The degree to which any inaccuracy, inconsistency, or implausibility in a narrative provided by a party or witness should affect a determination regarding responsibility is a matter to be decided by the investigators, after having the opportunity to ask questions of parties and witnesses, and to observe how parties and witnesses answer the questions posed by the other party. Corroborating evidence is not required.

The Investigators will not consider or rely on:

  • Information about the complainant’s sexual predisposition or prior sexual behavior, unless:
  • The information is to prove that someone other than the respondent committed the alleged conduct; or
  • The information concerns specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent
  • Information that is protected by a legally recognized privilege; and
  • A party’s medical, counseling/psychological, and similar treatment records unless the party has given voluntary, written consent.

A party’s answers to questions can and should be evaluated by the investigators in context, including taking into account that a party may experience stress while trying to answer questions, or other factors that may affect the party’s ability to recall the specific details of an incident in sequence. 

If the investigators determine by a preponderance of the evidence that there is insufficient information to find the respondent responsible for violating this or other policies, the complainant may appeal this outcome following the procedures set forth in Section XI.I.

If the investigators determine, by a preponderance of the evidence, that there is sufficient information to find the respondent responsible for violating this or other policies, the matter will be referred to an Adjudicator to determine the appropriate sanction. The Civil Rights & Title IX Coordinator will notify the Registrar to place a hold on the respondent’s transcript until the sanction has been issued by the Adjudicator.

Adjudication 

The Adjudicator is determined by the status of the respondent:

  1. For reports against students or student groups, the Adjudicator is typically the Director of the Office of Student Rights and Responsibilities.
  2. For reports against staff, the Adjudicator is typically the Director of Human Resources or, if the Director of Human Resources is unable to serve, the Director of Student Rights and Responsibilities.
  3. For reports against faculty, the Adjudicator is typically the Provost or, if the Provost is unable to serve, the Director of Human Resources.

When the typical or alternate Adjudicator is unable to serve, or is not otherwise designated in this policy, the Civil Rights & Title IX Coordinator will select a trained individual to be the Adjudicator with notice to the parties.

The Adjudicator must be a neutral and impartial decision-maker. The parties will be informed, in writing, of the specific Adjudicator assigned to determine sanction. Within 1 calendar day of receiving the notice of the designated Adjudicator, a party may submit a written request to the Civil Rights & Title IX Coordinator to replace the named Adjudicator, if there are reasonable articulable grounds to establish bias, conflict of interest or an inability to be fair and impartial. The designated Adjudicator will only be replaced if the Civil Rights & Title IX Coordinator determines that their bias precludes impartiality or constitutes conflict. Additionally, an Adjudicator who has reason to believe they cannot make an objective determination must recuse themself from the process.

For a range of possible sanctions and factors considered by the Adjudicator see Section XI.H.

Timeframe for Resolution

The College will seek to complete the adjudication (imposition of sanction) within 10 calendar days of the notice of referral to adjudication, but this time frame may be extended for good cause with written notice to the parties of the delay and the reason for the delay.

Notice of Outcome

The Adjudicator’s written determination of the outcome, the sanction and the rationale for each will be provided to each party and their advisor. The parties will be informed of any sanctions, the date by which the requirements must be satisfied (if applicable), and the consequences of failure to satisfy the requirements.

The outcome letter will also provide each party with their appeal options. If there are any changes to the outcome, both parties will be simultaneously notified.

If the Complainant is deceased as the result of a crime of violence or nonforcible sex offense, the Complainant’s next of kin may send a written request to the College for the report of the results of any disciplinary proceeding conducted by the College against a student who is the Respondent in a case involving such crime or offense. The College will then provide that report to the Complainant’s next of kin with respect to the findings regarding that crime or offense.

G.6. Hearing Resolution (Sexual Harassment —Title IX)

A Hearing Resolution will be used to resolve cases that, after the Final Title IX Assessment, include charges of “Sexual Harassment — Title IX.” If such cases also include other charges, all the charges in that case will be handled at the same time through the Hearing Resolution process. A Hearing Resolution includes a pre-hearing conference, a live hearing, decisions about responsibility and sanctioning by the Hearing Chair or Panel, and an optional appeal process. 

A single Hearing Chair will typically conduct the live hearing. The Civil Rights & Title IX Coordinator will choose a trained, impartial Hearing Chair. In some cases, at the discretion of the Civil Rights & Title IX Coordinator, a 3-person Hearing Panel may be convened to conduct the hearing, whose members are selected by the Civil Rights & Title IX Coordinator. When a 3-person Hearing Panel is convened, one of the panelists will serve in the role of the Hearing Chair and a majority vote is required to make the determination of responsibility. The Hearing Chair and Hearing Panelists cannot be the individual assigned in the role of the Civil Rights & Title IX Coordinator for the case, nor can they have acted in the role of an investigator or served in any other function that would pose a potential conflict of interest.  

Pre-Hearing Conference

Each party will have their own pre-hearing conference. The Civil Rights & Title IX Coordinator will communicate to the parties, their advisors, and the Hearing Chair the date, time, and format for their Pre-Hearing Conference. The Civil Rights & Title IX Coordinator, the Hearing Chair, and the advisor must be in attendance. While the parties are strongly encouraged to attend, they are not required to do so.

During the Pre-Hearing Conference, the advisors must share with the Hearing Chair their list of witnesses they wish to question at the hearing, the identity of any requested witnesses that were not questioned during the investigation, the request for any new evidence to be considered that was not submitted previously to the investigators, and the availability of the advisor and the party for hearing dates. 

Evidence and witnesses may only be presented at the hearing if they were submitted to the investigators and made available to the parties for review, unless they were unavailable at the time of the investigation or the relevance was unknown until the investigative report was submitted. The Hearing Chair will address any requests to present new evidence and new witnesses at the Pre-Hearing Conference. 

The advisor is strongly encouraged to discuss lines of questioning with the Hearing Chair at the Pre-Hearing Conference to obtain guidance from the Hearing Chair on relevancy prior to the hearing. The Hearing Chair will discuss the expectations and guidelines for appropriate behavior and decorum during the hearing. 

After reviewing each party’s witness list, the Hearing Chair may, at their discretion, add names of other witnesses contained in the report for the purpose of appearing at the hearing and submitting to cross-examination. 

After the conclusion of the Pre-Hearing Conferences, the Civil Rights & Title IX Coordinator will provide each party and their advisor with written notice of the date, time, and manner for the hearing, which will typically occur no less than 5 business days after the conclusion of the final pre-hearing conference. 

Witness Agreement to Participate

Prior to the hearing, the Coordinator will contact each witness who spoke with the investigators during the investigation to request whether each witness would be willing to provide testimony at the live hearing if they are requested to do so. Information about whether the witnesses are willing to participate will be provided to the parties, their advisors, and the Hearing Chair prior to the hearing.

In making determinations regarding “Sexual Harassment - Title IX,” the following rules apply:

  • If a party or witness does not submit to cross-examination at the live hearing, the Hearing Chair or Panel will weigh any relevant statements of the party or witness appropriately in reaching a determination of responsibility.
  • Statements must be considered in the context of the other evidence in the record.
  • The Decision-Maker will provide a written determination of assessment of appropriate weight given to statements not subject to cross examination based on standards for weighing credibility found within this policy.

Live Hearing

The live hearing may be conducted with all parties physically present in the same geographic location or, at the College’s discretion, any or all parties, witnesses, and other participants may appear at the live hearing virtually. Regardless of format, the hearing will be recorded. The recording will be the property of Kenyon College, and will be made available to the parties for review and inspection upon their request during the pendency of the process.

Those persons present during the entirety or at designated portions of the hearing include: complainant, complainant’s advisor; respondent, respondent’s advisor; Hearing Chair/Panel; Civil Rights & Title IX Coordinator; witnesses; other appropriate individuals at the discretion of the Civil Rights & Title IX Coordinator (for example, an interpreter).

The Hearing Chair will provide an introduction detailing the purpose of the hearing, have those present identify themselves and their role, remind all parties of the expectation to be candid and honest in their response, and provide a brief overview of the procedure and the anticipated order of the hearing.

The advisors will be responsible for orally asking relevant questions, including those questions which challenge credibility, to the other party or parties and any witnesses directly, in real-time and in a manner that, in the Hearing Chair’s sole discretion, is not inappropriate, harassing, intimidating, irrelevant, or redundant. Cross-examination will never be conducted by a party personally. Only relevant questions may be asked of a party or witness. Relevant questions are those tending to prove or disprove a fact at issue. Questions that are not relevant include:

  • Repetition of the same question;
  • Questions related to information about the complainant’s sexual predisposition or prior sexual behavior, unless:
  • The information is to prove that someone other than the respondent committed the alleged conduct; or
  • The information concerns specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent
  • Questions related to information that is protected by a legally recognized privilege; and
  • Questions related to a party’s medical, counseling/psychological, and similar treatment records unless the party has given voluntary, written consent.

The Hearing Chair/Panel will objectively evaluate all evidence to determine its relevance, materiality, weight and reliability.

Before a complainant, respondent, or witness answers a question by an advisor, the Hearing Chair will first determine whether the question is relevant and briefly explain any decision to exclude a question as not relevant, or request rephrasing of the question. The Hearing Chair is not required to give a lengthy or complicated explanation of a relevancy determination during the hearing. The Hearing Chair may later send to the parties any revisions to the explanation of relevance that was provided during the hearing.  

Decision/Finding/Sanctions 

Decisions regarding responsibility will be made by the Hearing Chair/Panel and communicated to the parties and their advisors in writing within 15 business days from the conclusion of the live hearing. When a 3-person Hearing Panel is convened, one of the panelists will serve in the role of the Hearing Chair and a majority vote is required to make the determination of responsibility. 

The Hearing Chair/Panel should first evaluate the quality of the evidence. The Hearing Chair/Panel should consider all of the evidence regardless of who provided it. Any evidence the Hearing Chair/Panel finds to be of high quality should be given more weight than any evidence the Hearing Chair/Panel finds to be of low quality. Quality may, or may not be identical with quantity, and sheer quantity alone should not be the basis for a finding of responsibility. The testimony of a single party or witness may be sufficient to establish a fact.

The Hearing Chair/Panel will evaluate all admissible, relevant evidence for weight or credibility. Credibility is not based solely on observing demeanor, but also considers detail, interest or bias, corroboration where it would reasonably be expected to exist, the circumstances of the disclosure, and the nature of the relationship. The degree to which any inaccuracy, inconsistency, or implausibility in a narrative provided by a party or witness should affect a determination regarding responsibility is a matter to be decided by the Hearing Chair/Panel, after having the opportunity to ask questions of parties and witnesses, and to observe how parties and witnesses answer the questions posed by the other party. Corroborating evidence is not required.

The Hearing Chair/Panel will not consider or rely on:

  • Information about the complainant’s sexual predisposition or prior sexual behavior, unless:
  • The information is to prove that someone other than the respondent committed the alleged conduct; or
  • The information concerns specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent
  • Information that is protected by a legally recognized privilege; and
  • A party’s medical, counseling/psychological, and similar treatment records unless the party has given voluntary, written consent. 

A party’s answers to questions can and should be evaluated by the Hearing Chair/ Panel in context, including taking into account that a party may experience stress while trying to answer questions, or other factors that may affect the party’s ability to recall the specific details of an incident in sequence. 

The Hearing Chair/Panel will also determine the sanctions. In determining the sanctions, the Hearing Chair/Panel will consult with the appropriate College staff member, who will review the draft written decision. For reports against students or student groups, the Director of the Office of Student Rights and Responsibilities; for reports against staff, the Director of Human Resources; for reports against faculty, the Provost. For a range of possible sanctions see Section XI.H.

The written decision will include the following: 

  • identification of the allegations potentially constituting policy violations; 
  • a description of the procedural steps taken from the receipt of the formal complaint through the determination, including any notifications ot the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, and hearings held;
  • summary of statements made at the hearing, 
  • findings of fact supporting the determination;
  • conclusions regarding the application of the Policy to the facts;
  • a statement and rationale as to the finding for each allegation, including a determination regarding responsibility;
  • any disciplinary sanctions imposed on the respondent; 
  • whether additional remedies will be provided to the complainant designed to restore or preserve the complainant’s equal access to the College’s educational programs or activities; and
  • the opportunity for appeal. 

The written decision will be provided to the parties simultaneously.

When remedies are provided, they will be determined and monitored by the Title IX Coordinator throughout the Complainant’s enrollment, employment, and/or engagement with the College. Availability of a particular remedy may depend on the College’s current relationships with the Complainant or Respondent.

If the Complainant is deceased as the result of a crime of violence or nonforcible sex offense, the Complainant’s next of kin may send a written request to the College for the report of the results of any disciplinary proceeding conducted by the College against a student who is the Respondent in a case involving such crime or offense. The College will then provide that report to the Complainant’s next of kin with respect to the findings regarding that crime or offense.

H. Possible Sanctions

In determining the sanctions, the following factors will be considered, to the extent the information is available in the case file: (1) the respondent’s prior conduct history; (2) how the College has sanctioned similar incidents in the past; (3) the nature and violence of the conduct at issue; (4) the impact of the conduct on the complainant; (5) the impact of the conduct on the community, its members, or its property; (6) whether the respondent has accepted responsibility for their actions; (7) any other mitigating or aggravating circumstances, including the College’s values.

The imposition of sanctions will typically take effect immediately, but may be stayed at the discretion of the Hearing Chair/Panel in consultation with the Title IX Coordinator. A respondent who separates from the College under any circumstance is not eligible for re-admittance or re-employment until they have successfully completed the terms of any sanctions imposed.

Suspensions and Dismissals are recorded on a student’s permanent academic record as “Suspended: date” or “Dismissed:date” and will be noted on the transcript at the time the sanction is imposed. If an appeal reverses the decision, the notation will be removed. If the student is the subject of an investigation, but voluntarily withdraws from Kenyon before completion of the process, “Date of withdrawal: Institutional Action Pending” will appear on the student’s transcript. Upon conclusion of the investigation and appeal process, the notation of withdrawal will be removed. When Suspension or Dismissal is issued, this action will be noted on the student’s transcript in place of the notice of withdrawal pending.

Sanctions for Students and Student Groups

For students, the sanction may include removal from specific courses or activities, removal from College housing, suspension from the College, or dismissal. While sanctions may be of a punitive nature, they are intended to be educational as well. The possible sanctions that may be issued, individually or in combination, for students found responsible for Prohibited Conduct include:

  • Statement of Concern. May be issued to students who are found in the presence of a policy violation, but who are not held formally accountable for that violation.
  • Warning. A warning is notification that a student has committed certain violations and that continuance of such conduct will result in more severe disciplinary action.
  • Educational Sanctions. These include but are not limited to alcohol education, mandatory counseling assessment and adherence to professional counseling recommendations, research paper or project, coordinating a hall or building program with a residential life staff member, group education program, etc.
  • Behavioral Contract. The purpose of such a contract is to allow a student to successfully manage their behavior while remaining an active member of the Kenyon community. Failure to complete the agreed-upon provisions of the contract will result in suspension from the College, unless the student voluntarily withdraws. If suspended or withdrawn, the student must follow the readmission process outlined in the Kenyon College Catalog before they may resume their studies at Kenyon.
  • Administrative Hold on Student Accounts. Enforced most often when students have failed to comply with assigned tasks from a conduct hearing or Title IX investigation. This action precludes students from registering for classes and obtaining such documents as transcripts and diplomas. Once the outstanding sanction has been satisfactorily completed, the hold will be lifted.
  • Disciplinary Service. Service hours expected to be completed in a given area as a way to give back to the campus or local community.
  • Fine/Restitution. A fine or restitution is a monetary penalty for violations such as vandalism or damage to College property or the property of others. All fines must be paid by personal or cashier’s check; they will not be applied to a student’s account.
  • College Restriction. This may include restrictions from certain buildings, events, programs, or activities, as well as restrictions on communicating with the complainant. The Civil Rights & Title IX Coordinator shall be responsible for managing implementation of any imposed restriction.
  • College Housing Restriction. Residence re-assignment, removal from College housing, or restrictions on where a student may live. The Civil Rights & Title IX Coordinator shall be responsible for managing implementation of any imposed restriction.
  • Disciplinary Probation. This sanction means that for a specified period of time (ordinarily no less than the equivalent of one semester) a student is not in good disciplinary standing with the College.
  • Administrative Withdrawal. Withdrawal from a specific course, major, or academic department may be invoked in cases where a student or group of students violates expectations of the academic arena (classroom incivility, disruption, harassment of faculty or other students in the classroom).
  • Deferred Suspension. This involves students who have been held responsible for behavior that warrants suspension but where mitigating circumstances and additional sanctions may allow a student to remain in the community while these sanctions are being completed. Failure to complete any of the additional expectations by the stated deadlines will lead to the immediate implementation of suspension without further hearing. In addition, if a student is found responsible for any further College policy violations, at a minimum, the student will automatically be recommended for suspension for at least one full semester.
  • Suspension. The denial of the opportunity to continue in the College for a specified period of time (ordinarily no less than one semester), or indefinitely until the student’s intervening record can support an application for readmission. While suspended, a student is not allowed to be on campus or to attend any official College event. In the event that additional sanctions are imposed in conjunction with the suspension, these sanctions will most likely be expected to be completed prior to an application for readmission to be considered. Upon return from suspension, the student will be placed on probationary status for one calendar year following completion of suspension. This sanction is noted permanently on the student’s transcript.
  • Dismissal. The denial of the opportunity to continue as a student at the College. A student who has been dismissed is not eligible to apply for readmission. A student who is dismissed is not allowed to be on campus or to be at any official College event at any time. This sanction is noted permanently on the student’s transcript.
  • Organizational Notification. Written or verbal notification to inter/national organization representatives, officers or advisers.
  • Loss of Privileges. Denial of privileges such as removal of services and access to facilities, restriction of use of campus financial accounts and/or student activity fee funding, attendance or participation in activities/programs, loss of theme or division housing privileges.
  • Social Probation. Probationary status during which time the organization is restricted from participating in social events, including hosting as an organization.
  • Probation of Student Organization. Probationary status for a specified period, typically not less than one semester, during which time the organization will be required to fulfill specific conditions before reinstatement to good standing.
  • Suspension of Student Organization. Separation from the College for a specified period, typically not less than one semester. Involves loss of all rights and privileges of student organizations, including the use of College facilities, and probationary status for one year following completion of suspension.
  • Termination of Student Organization. Termination is the most serious of College disciplinary actions for a student organization. It involves permanent separation of a student organization from the College and removal of recognition of the  organization.

For a student employee who is acting within the scope of their employment at the time of the incident, the sanction may include any permissible sanction for students or  employees.

Sanctions for Employees or Employee Groups

For employees, the sanction may include any form of responsive action or progressive discipline as set forth in the Employee Handbook, including training, referral to counseling and/or disciplinary action such as warning, reprimand, withholding of a promotion or pay increase, reassignment, temporary suspension without pay or termination of  employment.

Sanctions for Faculty or Faculty Groups

Appropriate sanctions may range from a warning, a reprimand, relevant training, referral to counseling, salary freeze, removal from certain responsibilities (e.g. supervising employees), paid leave or unpaid leave, non-renewal of contract, reassignment, termination of tenure and/or termination of employment.

Sanctions for Non-students and Non-employees

Appropriate sanctions may include but are not limited to: warning, counseling, training, restricted campus access, restricted participation in College activities and events.

I. Appeal of Finding and/or Sanction

Regardless of whether a complaint is resolved through the Investigator Resolution or the Hearing Resolution, both the complainant and respondent may appeal the outcome, including a finding of responsibility (or no responsibility) and/or the sanction. In a request for an appeal, the burden of proof lies with the party requesting the appeal. Dissatisfaction with the outcome of the investigation is not grounds for appeal. The limited grounds for appeal are as follows:

  • procedural irregularity that affected the outcome of the matter;
  • new evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made, that could affect the outcome of the matter;
  • the Civil Rights & Title IX Coordinator, investigator(s), or Hearing Chair/Panel had a conflict of interest or bias for or against complainants or respondents generally or the individual complainant or respondent that affected the outcome of the matter; or
  • the decision of the investigators under Section XI.G.5., the Hearing Chair/Panel under Section XI.G.6., or the adjudicator under Section XI.G.5. was clearly erroneous based on the evidential record. 

The Appeal Officer for all cases, regardless of the respondent’s classification, is the Vice President for Student Affairs. In the instance when the Vice President for Student Affairs is unable to serve, the alternate Appeal Officer is determined by the classification of the respondent:

  1. For students, the alternate Appeals Officer will be the Provost.
  2. For faculty, the alternate Appeals Officer will be the Director of Human Resources.
  3. For staff, the alternate Appeals Officer will be the Provost.

When the typical or alternate Appeal Officer is unable to serve, or is not otherwise designated in this policy, the Civil Rights & Title IX Coordinator will select a trained individual to be the Appeal Officer with notice to the parties.

The Appeal Officer must be a neutral and impartial decision maker. The parties will be informed, in writing, of the specific Appeals Officer. Within 1 calendar day of receiving the notice of the designated Appeals Officer, the complainant and the respondent may submit a written request to the Civil Rights & Title IX Coordinator to replace the named Appeals Officer if there are reasonable articulable grounds to establish bias, conflict of interest or an inability to be fair and impartial. The designated Appeals Officer will only be replaced if the Civil Rights & Title IX Coordinator determines their bias precludes impartiality or constitutes conflict. Additionally, an Appeals Officer who has reason to believe they cannot make an objective determination must recuse themselves from the process.

A party who chooses to appeal must submit a written appeal to the Civil Rights & Title IX Coordinator within 5 business days of receipt of the decision. The written appeal must include the specific basis for the appeal and any information or argument in support of the appeal. Upon receipt of the appeal, the Civil Rights & Title IX Coordinator will provide the other party notice of the appeal and the opportunity to respond in writing to the appeal. Any response to the appeal must be submitted to the Civil Rights & Title IX Coordinator within 3 business days from the other party’s receipt of the appeal. Appeal responses are shared with the other parties but no reply is permitted.

The Appeals Officer will make a decision regarding the written appeal and, within 10 business days of receipt of all appeal documents, notify the complainant and the respondent of the outcome. The Appeal Officer may affirm the finding(s); alter the finding(s); alter the sanctions; or request that additional steps be taken.

Appeal decisions are final. All appeal deadlines may be extended for good cause by the Civil Rights & Title IX Coordinator. Any extension will be communicated to the parties.