Title IX - Sexual Harassment and Discrimination Student - Policy and Procedures

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  1. Purpose
    1. This policy defines and prohibits discrimination on the basis of sex, including sexual harassment, in education programs and activities; details how to report a violation of this policy; describes Davis Technical College (College) resources and supportive measures to protect those involved in the process; and outlines investigation, disciplinary, and due process procedures for addressing reported violations of this policy. This policy applies to all persons who are (1) employed by, attending, or affiliated with College; (2) participating in any College program or activity, including but not limited to trustees, administrators, faculty, staff, students, independent contractors, volunteers, and guests; and/or (3) visiting a College campus or any property owned or leased by the College.
  2. References
    1. Americans with Disabilities Act (ADA) (as amended)
    2. Campus Sexual Violence Elimination Act (SaVE)—Reauthorization of the Violence against Women Act of 2013 (VAWA)
    3. Family Educational Rights and Privacy Act (FERPA)
    4. Heath Insurance Portability and Accountability Act (HIPAA)
    5. Jeanne Clery Disclosure of Campus Security Police and Campus Crime Statistics Act (Clery Act)
    6. Title VII of the Civil Rights Act of 1964 (Title VII)
    7. Title IX of the Higher Education Amendments Act of 1972 (Title IX)
    8. Utah Code § 53B-27-101 et seq. Campus Advocate Confidentiality Amendments
    9. Utah Code § 53B-28-302 Code of Conduct Violation-Report of Sexual Violence
    10. Utah Code § 53B-28-304 Criminal Retaliation Against a Victim or a Witness
    11. Utah Code § 63G-2 Government Records Access and Management Act (GRAMA)
    12. Utah Code § 63G-7-301 Waivers of Immunity-Exceptions
    13. Utah Code § 76-5-404.1 Sexual Abuse of a Child
    14. Utah Code § 77-36 Cohabitant Abuse Procedures Act
    15. Utah Code § 77-38 Rights of Crime Victims Act
    16. Utah State Board of Regents’ Policy R256 Student Disciplinary Processes
    17. Utah State Board of Regents’ Policy R842 Restrictions on Faculty/Staff Relationships with Students
  3. Definitions
    1. Actual knowledge: Notice of sexual harassment or allegations of sexual harassment to College Title IX Coordinator or any official of College who has authority to institute corrective measures on behalf of College. Imputation of knowledge based solely on vicarious liability or constructive notice is insufficient to constitute actual knowledge. This standard is not met when the only official of College with actual knowledge is the respondent. The mere ability or obligation to report sexual harassment or to inform a student about how to report sexual harassment, or having been trained to do so, does not qualify an individual as one who has authority to institute corrective measures on behalf of the College.
    2. Complainant, victim, or alleged victim: An individual who is alleged to be the victim of conduct that could constitute sexual harassment.
    3. Consent: Consent to engage in a sexual encounter must be given by all participating parties; must be clear, knowing, and voluntary; and may be given only by someone who is 18 years of age or older and is not mentally and/or physically incapacitated. Consent is active, not passive. Consent requires an affirmatively communicated willingness through words and/or actions to participate in sexual activity. Silence, in and of itself, may not be interpreted as consent.
    4. Dating Violence: as defined at 34 U.S.C. 12291(a)(10), dating violence means violence committed by a person (A) who is or has been in a social relationship of a romantic or intimate nature with the victim; and (B) where the existence of such a relationship shall be determined based on a consideration of the following factors: (i) The length of the relationship. (ii) The type of relationship (iii) The frequency of interaction between the persons involved in the relationship
    5. Discrimination: For purposes of this policy, adverse action towards College employees or students in the terms or conditions of employment; College admission or education; access to College programs, services, or activities; or other College benefits or services, on the basis of their inclusion or perceived inclusion (in the case of sexual orientation, gender identity, or gender expression) in the protected classes of sex, pregnancy, pregnancy-related conditions, sexual orientation, gender identity, or gender expression that has the effect of denying or limiting participation in a College program or activity.
    6. Domestic Violence: as defined in 34 U.S.C. 12291(a)(8), domestic violence includes felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction receiving grant monies, or by any other person against an adult or youth (ages 11-24) victim who is protected from that person’s acts under the domestic or family violence laws of the jurisdictions
    7. Formal Complaint: A document filed by a complainant or signed by the Title IX Coordinator alleging sexual harassment against a respondent and requesting that College investigate the allegation of sexual harassment. At the time of filing a formal complaint, a complainant must be participating in or attempting to participate in the education program or activity of College with which the formal complaint is filed. A formal complaint may be filed with the Title IX Coordinator in person, by mail, or by electronic mail, by using the contact information required to be listed for the Title IX Coordinator, and by any additional method designated by the College. As used in this paragraph, the phrase “document filed by a complainant” means a document or electronic submission (such as by electronic mail or through an online portal provided for this purpose by the College) that contains the complainant’s physical or digital signature, or otherwise indicates that the complainant is the person filing the formal complaint.
    8. Incapacitation: An individual who is incapacitated cannot give consent to engage in a sexual encounter. Incapacitation is defined as the physical and/or mental inability to make informed, rational judgments. Factors that could be indications of incapacitation include but are not limited to mental or physical disability; lack of sleep; alcohol; illegal, date-rape, or prescription drug use; unconsciousness; blackout; or involuntary physical restraint. Being intoxicated by drugs or alcohol does not diminish one’s responsibility to obtain consent. The factors to be considered when determining whether consent was given include whether the accused knew, or whether a reasonable person should have known, that the complainant was incapacitated.
    9. Party: Complainant or respondent.
    10. Preponderance of evidence: The evidentiary standard used during a sexual misconduct investigation/review to determine if the allegations occurred and if a College policy violation has occurred. Preponderance of evidence means it is more likely than not, or more than 50 percent in favor, that the misconduct occurred as alleged.
    11. Respondent: Respondent means an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment.
    12. Retaliation: An action, performed directly or through others, that is aimed to dissuade a reasonable person from engaging in a protected activity or is done in retribution for engaging in a protected activity. Action in response to a protected activity is not retaliatory unless (i) it has a materially adverse effect on the working, academic, or other College-related environment of an individual and (ii) it would not have occurred in the absence of (but for) the protected activity. Examples of protected activities include reporting (internally or externally) a complaint of sexual harassment in good faith, assisting others in making such a report, or honestly participating as an investigator, witness, decision maker, or otherwise assisting, in an investigation or proceeding related to suspected sexual harassment.
    13. Sexual Assault: as defined at 20 U.S.C. 1092(f)(6)(A)(v) and the uniform crime reporting system of the Federal Bureau of Investigation, sexual assault means any sexual act directed against another person, without the consent of the victim, including instances where the victim is incapable of giving consent; also, unlawful sexual intercourse, including the following:
      1. Rape - The carnal knowledge of a person, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity.
      2. Sodomy - Oral or anal sexual intercourse with another person, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity
      3. Sexual Assault with an Object - To use an object or instrument to unlawfully penetrate, however slightly, the genital or anal opening of the body of another person, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity
      4. Fondling - The touching of the private body parts of another person for the purpose of sexual gratification without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental or physical incapacity
      5. Incest - Nonforcible sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by Utah law. See Utah Code section 76-7-102.
      6. Statutory Rape - Nonforcible sexual intercourse with a person who is under Utah’s statutory age of consent. See Utah Code section 76-5-401 et seq.
    14. Sexual harassment: conduct on the basis of sex that satisfies one or more of the following:(1) An employee of College conditioning the provision of an aid, benefit, or service of College on an individual’s participation in unwelcome sexual conduct; (2) Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to College education program or activity; or (3) “Sexual assault” as defined in 20 U.S.C. 1092(f)(6)(A)(v), “dating violence” as defined in 34 U.S.C. 12291(a)(10), “domestic violence” as defined in 34 U.S.C. 12291(a)(8), or “stalking” as defined in 34 U.S.C. 12291(a)(30).
  4. Stalking: as defined at 34 U.S.C. 12291(a)(30), stalking means engaging in a course of conduct directed at a specific person that would cause a reasonable person to (A) fear for their safety or the safety of others; or (B) suffer substantial emotional distress
    1. Supportive Measures: Non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the complainant or the respondent before or after the filing of a formal complaint or where no formal complaint has been filed. Such measures are designed to restore or preserve equal access to College’s education program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties or the College’s educational environment, or deter sexual harassment. Supportive measures may include counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, campus escort services, mutual restrictions on contact between the parties, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of the campus, and other similar measures. College must maintain as confidential any supportive measures provided to the complainant or respondent, to the extent that maintaining such confidentiality would not impair the ability of College to provide the supportive measures. The Title IX Coordinator is responsible for coordinating the effective implementation of supportive measures.
    2. Title IX Coordinator: College must designate and authorize at least one employee to coordinate its efforts to comply with its responsibilities under Title 34 of the Code of Federal Regulations, part 106, which employee must be referred to as the “Title IX Coordinator.”
    3. College community members: All persons employed by or affiliated with College in any way and persons participating in any College program or activity, including but not limited to trustees, advisory board members, administrators, faculty, staff, students, independent contractors, volunteers, and guests or visitors to any College campus or any property owned or leased by the College.
  5. Sex Discrimination, Sexual Harassment, and Retaliation Prohibited
    1. Scope of Policy: This policy applies to all employees of College and any persons participating, or attempting to participate, in any College program or activity. To the extent that any other College policies address sex discrimination, sexual harassment, or retaliation, as defined in this policy, this policy and its procedures govern.
    2. The College does not discriminate on the basis of sex in the education program or activity that it operates, as required by Title IX and 34 CFR part 106. The requirement not to discriminate in education programs or activities extends to admission and employment. Inquiries about the application of Title IX and its regulations may be referred to the Title IX Coordinator, to the Department of Education, Office for Civil rights, or both.
    3. The College prohibits sex discrimination, sexual harassment, and retaliation as defined in this policy. Violations of this policy include but are not limited to acts or attempts of dating and relationship violence; domestic violence; discrimination based on sex, pregnancy, pregnancy-related conditions, sexual orientation, gender identity, or gender expression; hostile environment based on sex, pregnancy, pregnancy-related conditions, sexual orientation, gender identity, or gender expression (including intimidation and hazing/bullying); sexual harassment; sexual assault (including nonconsensual sexual contact or nonconsensual sexual intercourse); sexual exploitation (including engaging in sexual trafficking); and stalking.
    4. Consent: All participants in the sexual activity are responsible for ensuring that they have the consent of all involved to engage in sexual activity. Any individual who engages in sexual activity without receiving clear, knowing, and voluntary consent, or in which one of the parties withdraws consent at any point but is forced to participate, has violated this policy. Sexual activity with someone deemed unable to grant clear, knowing, and voluntary consent constitutes a violation of this policy. This includes, but is not limited to, individuals who are:
      1. Mentally and/or physically incapacitated for any reason (such as by mental or physical disability; lack of sleep; alcohol; illegal, date-rape or prescription drug use; unconsciousness; blackout; or involuntary physical restraint);
      2. Under the age of 18; or
      3. Forced to give consent in any way, including but not limited to by coercion, intimidation, duress, deception, threats, implied threats, and/or physical force.
      4. Consent to any one form of sexual activity does not automatically imply consent to any other forms of sexual activity. Past consent to sexual activity does not imply ongoing future consent. The current or past existence of a relationship does not imply consent. Whether an individual has taken advantage of a position of authority over an alleged victim may be a factor in determining consent or coercion.
    5. Sexual Conduct with Subordinate Employees or Students: In addition to the prohibitions outlined in 4.3 and 4.6, employees shall not engage in sexual conduct with subordinate students or employees unless there has been proper disclosure and potential for abuse of power has been removed. Subordinate students and employees cannot consent, as defined in this policy, to sexual conduct amid the potential for abuse of power. The purpose of this restriction is to prohibit the abuse of power by employees and the exploitation of subordinate students or employees.
      1. Subordinate students are College students or applicants whose educational opportunities could be adversely impacted by employees.
      2. For purposes of this section, sexual conduct is any sexual relationship or sharing any sexually explicit or lewd communication, image, or photograph. Sharing sexually explicit or lewd communication, image, or photograph does not include any communication, image, or photograph that faculty shares with students as part of a legitimate academic exercise, such as pedagogical requirements for specific classes such as health, science, art, behavioral science, etc.
      3. For purposes of this section, educational opportunities include admission, receipt of financial aid, assessment of academic performance, or placement in academic opportunities such as internships, assistantships, and graduation.
      4. All employees engaging or intending to engage in sexual conduct with a subordinate student or employee shall immediately disclose the relationship to their direct supervisors and/or the Title IX Coordinator, or be subject to disciplinary action, up to and including termination. Supervisors who receive such reports or who otherwise become aware of such relationships shall promptly report the relationship to the Title IX Coordinator, who shall work with the relevant parties to remove the subordinate relationship to ensure compliance with Utah Code § 63G-7-301 and this policy. If the subordinate relationship cannot be removed or otherwise appropriately managed, the employee shall be subject to discipline, up to and including termination.
    6. Retaliation Prohibited: Neither the College nor any member of the College community may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX or this policy, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this policy.
      1. Intimidation, threats, coercion, or discrimination, including charges against an individual for policy violations that do not involve sex discrimination or sexual harassment, but arise out of the same facts or circumstances as a report or complaint of sex discrimination, or a report or formal complaint of sexual harassment, for the purpose of interfering with any right or privilege secured by Title IX or this part, constitutes retaliation.
      2. Any retaliatory threat or act of violence against victims or witnesses of sexual violence, moreover, is a third-degree felony under Utah Code § 53B-28-304 and may be subject to criminal prosecution.
      3. Complaints alleging retaliation may be filed according to the grievance procedures for sex discrimination under this policy.
    7. Nothing in this policy shall be interpreted as diminishing any party’s rights protected under the United States Constitution or employee rights under Title VII of the Civil Rights Act of 1964 to be free from discrimination on the basis of race, color, religion, sex, and national origin under
  6. Title IX Notification
    1. The College must notify applicants for admission or employment, students, employees, and all unions or professional organizations holding collective bargaining or professional agreements with the College, of
      1. The name or title, office address, electronic mail address, and telephone number of the employee designated as the Title IX Coordinator.
      2. The nondiscrimination policy statement contained in section 4 of this policy, the College’s grievance procedures and grievance process, including how to report or file a complaint of sex discrimination, how to report or file a formal complaint of sexual harassment, and how the College will respond.
      3. The College must prominently display the contact information and policy statement described in 5.1 on its website and in each handbook or catalog that it makes available to applicants for admission and employment, students, employees, or all unions or professional organizations holding collective bargaining or professional agreements with the College
  7. Reporting
    1. How to Report. Any person may report sex discrimination, including sexual harassment (whether or not the person reporting is the person alleged to be the victim of conduct that could constitute sex discrimination or sexual harassment), to the Title IX Coordinator using any of the following methods:
      1. in person at the main Kaysville campus (business hours only)
      2. by mail 550 East 300 South, Kaysville, UT 84037 (anytime);
      3. by telephone (business hours only); 801-593-2522 (students); 801-593-2393 (employees)
      4. by electronic mail, (anytime); TitleIXCoordinator@davistech.edu
      5. by any other means that results in the Title IX Coordinator receiving the person’s oral or written report.
    2. Who Must Report: The following employees are officials with authority to institute corrective measures who must report sexual harassment or other sex discrimination to the Title IX Coordinator:
      1. The president and all employees reporting directly to the president;
      2. All supervisors, when reports concern their direct or indirect subordinates as potential complainants or respondents;
      3. The Vice President of Student Affairs, all employees reporting directly to the Vice President of Student Affairs, and all college Directors when reports concern students as potential complainants or respondents.
      4. Consistent with Utah Code section 62A-4a-403, anyone who reasonably suspects any incident of sexual harassment or abuse involving a minor shall be immediately reported to campus police or the local police department. Employees who become aware of allegations involving a minor shall notify the Title IX Coordinator and their supervisor that they have reported the allegation to the police.
    3. Who May Report: All other faculty, staff, and students who become aware of sex discrimination or harassment are encouraged to report such issues, with the consent of the alleged victim, to the Title IX Coordinator.
    4. Who May Not Report: Licensed mental health counselors and medical professionals working within the scope of their license, or designated advocates authorized by the Title IX Coordinator, generally may not report incidents of sexual harassment except with written consent or in instances of imminent danger or when the victim is a minor or vulnerable adult.
  8. Confidentiality
    1. The College must maintain as confidential any supportive measures provided to the complainant or respondent, to the extent that maintaining such confidentiality would not impair the College’s ability to provide the supportive measures.
    2. The College must keep confidential the identity of any individual who has made a report or complaint of sex discrimination, including any individual who has made a report or filed a formal complaint of sexual harassment, any complainant, any individual who has been reported to be the perpetrator of sex discrimination, any respondent, and any witness, except as may be permitted by the federal Family Educational Rights and Privacy Act, its regulations, or as required by Utah Government Records and Management Act (GRAMA), the federal Health Information Portability and Accountability Act (HIPAA) or other law, or to carry out the purposes of Title IX, including the conduct of any investigation, hearing, or judicial proceeding arising under Title IX.
    3. The College will protect confidential communications to designated College advocates authorized by the Title IX Coordinator, protected under the Utah Campus Advocate Confidentiality Amendments (Utah Code § 53B28-101 et seq.), where disclosure is not required by applicable federal law, including Title IX, Title VII, or the Clery Act, or consented in writing.
    4. Amnesty: An individual who makes a good faith report of sexual harassment or sexual violence, as defined at Utah Code 53B-28-201, that was directed at them or another person will not be sanctioned by the College for a violation related to the use of drugs or alcohol that the College discovers because of the report.
  9. Training
    1. The College shall train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process on the definition of sexual harassment, the scope of the College’s education program or activity, how to conduct an investigation and grievance process including live hearings, appeals, informal resolution processes, and how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias.
      1. Training materials must not rely on sex stereotypes and must promote impartial investigations and adjudications of formal complaints of sexual harassment.
    2. The College will train decision-makers how to determine issues of relevance of questions and evidence, including when questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant, on evidentiary standards, and on live hearing procedures.
    3. The College also must ensure that investigators receive training on issues of relevance to create an investigative report that fairly summarizes relevant evidence.
    4. The College will provide training to the Title IX Coordinator(s), hearing officer(s), and other necessary parties on all technology to be used in Live Hearings.
    5. All materials used to train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process must be made publicly available on the College’s website.
  10. Recordkeeping
    1. The Title IX Office must maintain the following records for a period of seven years:
      1. Each sexual harassment investigation including any determination regarding responsibility and any audio or audiovisual recording or transcript required by this policy, any disciplinary sanctions imposed on the respondent, and any remedies provided to the complainant designed to restore or preserve equal access to College’s education program or activity;
      2. Any appeal and the result;
      3. Any informal resolution and the result; and
      4. All materials used to train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process.
    2. For each report to the Title IX Coordinator of sexual harassment in a College education program or activity against a person in the United States, the Title IX Office must create, and maintain for a period of seven years, records of any actions, including any supportive measures, taken in response to a report or formal complaint of sexual harassment. In each instance, the Title IX Office must document the basis for its conclusion that its response was not deliberately indifferent, and document that it has taken measures designed to restore or preserve equal access to the College’s education program or activity. If the College does not provide a complainant with supportive measures, then the Title IX Office must document the reasons why such a response was not clearly unreasonable in light of the known circumstances. The documentation of certain bases or measures does not limit the College in the future from providing additional explanations or detailing additional measures taken.
  11. Preliminary Review of Reports and Formal Complaints
    1. Scope and Applicability of These Procedures: All reports and formal complaints of sex discrimination, sexual harassment and retaliation, as defined in this policy, are subject to the procedures set forth in this section.
    2. Preliminary Review of Reports of Sexual Harassment:
      1. General Response: Upon receiving a report of sexual harassment, the Title IX Coordinator shall promptly contact the complainant to (1) discuss the availability of supportive measures, (2) consider the complainant’s wishes with respect to supportive measures, (3) inform the complainant of the availability of supportive measures with or without the filing of a formal complaint, and (4) explain the process for filing a formal complaint.
      2. Emergency Removal: The Title IX Coordinator may, if appropriate in their professional judgment, refer the matter to the College’s Behavior Assessment Team (BAT) to assess whether a respondent must be removed from the College’s education programs or activities on an emergency basis, provided that the BAT undertakes an individualized safety and risk analysis, determines that an immediate threat to the physical health or safety of any student or other individual arising from the allegations of sexual harassment justifies removal, and provides the respondent with notice and an opportunity to challenge the decision immediately following the removal.
        1. Non-student Employee Leave: A non-student employee respondent may be placed on administrative leave in accordance with the Disciplinary Sanctions of Personnel Policy.
      3. The Title IX Coordinator must further assess the reported conduct for any Clery obligations, including issuance of a timely warning, and report to campus or local law enforcement when necessary.
    3. Grievance Process General Principles:
      1. Complainants, respondents, and witnesses shall be treated equitably and with respect throughout the grievance proceedings.
        1. 11.3.1.1.College will evaluate all relevant evidence—both inculpatory and exculpatory— objectively and determine credibility without respect to a person’s status as complainant, respondent, or witness.
      2. Deadlines and timeframes provided in this policy may be extended for good cause with written notice to the parties and the reasons for the extension. Good cause may include considerations such as the absence of a party, a party’s advisor, or witness; concurrent law enforcement activity; or the need for language assistance or accommodation of disabilities.
        1. Parties may submit a request for a temporary delay to the Title IX Coordinator. Any request for temporary delay or limited extension should include a good cause statement and the reason(s) for the request. If no good cause exists, the Title IX Coordinator will deny the requesting party’s request in writing.
      3. Any person designated as a Title IX Coordinator, investigator, or decision maker shall be free of conflict of interest or bias for or against complainants or respondents generally or individually.
      4. Respondents, complainants, and witnesses shall not knowingly make materially false statements or knowingly submit materially false information during the grievance process. However, a determination regarding responsibility alone is not sufficient to conclude that any individual proffered a material falsehood.
      5. Complainants and respondents shall have supportive measures made available and be given the opportunity to request modifications necessary for physical and/or emotional safety.
      6. Complainants, respondents, and other participants in the Title IX process may request accommodations necessary under the Americans with Disabilities Act (ADA) through the Title IX Coordinator, who will refer the request to the appropriate ADA Coordinator and then implement approved accommodations.
    4. Formal Complaint: A formal complaint is a document filed by a complainant or signed by the Title IX Coordinator alleging sex discrimination, sexual harassment, or retaliation. A formal complaint may be filed by a complainant who is participating in or attempting to participate in an education program or activity of College at the time of filing the formal complaint.
      1. A formal complaint shall be filed with the Title IX Coordinator in person, by mail, or by electronic mail, by using the contact information posted for the Title IX Coordinator in section 6.1 above.
      2. The formal complaint shall contain written notice of the allegations of sex discrimination, sexual harassment, or retaliation, including a concise statement describing the incident, when and where the misconduct occurred, why the complainant believes it violates College policy, and a proposed resolution. The complainant shall be instructed to provide and preserve all corroborating or potentially relevant evidence in any format, list potential witness names, and sign the statement. From this information, the Title IX Coordinator shall prepare a Notice of Investigation as defined in Section 11.4.1.1.
      3. By filing a formal complaint, the complainant is giving consent for the Title IX Coordinator, designated deputy Coordinators, and/or investigators to discuss the information provided with other persons who may have relevant factual knowledge of the circumstances of the complaint and is authorizing the collection and examination of all records and other documentation relevant to the complaint.
      4. When the Title IX Coordinator signs a formal complaint, the Title IX Coordinator is not a Complainant or otherwise a party under this policy and must comply with the requirements of impartiality under this policy.
      5. Consolidation of Formal Complaints: The College may consolidate formal complaints against more than one respondent, or by more than one complainant against one or more respondents, or by one party against the other party, where the allegations of sexual harassment arise out of the same facts or circumstances.
      6. Dismissal of the Formal Complaint: The College must investigate all allegations in a formal complaint unless the conduct alleged in the formal complaint:
        1. Would not constitute sexual harassment as defined in this policy even if proved;
        2. Did not occur in the College’s education programs or activities; or
        3. Did not occur against a person in the United States.
      7. If the conduct falls within the criteria outlined in 10.4.6, the College must dismiss the formal complaint regarding that conduct for the purposes of Title IX; such dismissal does not preclude action under another provision of College code of conduct or policy.
      8. The College may dismiss the formal complaint or any allegations therein, if at any time during the investigation or hearing:
        1. A Complainant notifies the Title IX Coordinator in writing that the Complainant wants to withdraw the formal complaint or any allegations therein;
        2. The Respondent is no longer enrolled or employed by the College; or
        3. Specific circumstances prevent the College from gathering evidence sufficient to reach a determination as to the formal complaint.
      9. Upon a required or permitted dismissal of the formal complaint, the Title IX Coordinator shall promptly send written notice of the dismissal and the reason(s) therefor simultaneously to the parties.
      10. Any party may appeal the dismissal of a formal complaint in accordance with section 14 of this policy.
  12. Informal Resolution
    1. 12.1. College may offer an informal resolution process only after a formal complaint is filed. Informal resolution may include a limited inquiry into the facts, but typically does not include an investigation. Informal resolution should be flexible enough to meet the needs of each case, and may include mediating an agreement between the parties, separating the parties, referring the parties to counseling programs, conducting targeted preventive educational and training programs, or providing remedies for the individual harmed by the offense.
    2. Participation in the informal resolution process is voluntary; the College may not require either party to engage in informal resolution as a condition of enrollment or employment or enjoyment of any other right, waiver of the right to investigation and adjudication of formal complaints of sexual harassment.
      1. The College is not obligated to offer or facilitate informal resolutions. Because each case is different, the Title IX Coordinator shall determine whether a formal complaint of sexual harassment, discrimination, or retaliation is appropriate for informal resolution.
    3. At any time before reaching a determination regarding responsibility the Title IX Office may facilitate an informal resolution process, such as mediation, that does not involve a full investigation and adjudication, provided that the Title IX Office:
      1. Provides to the parties a written notice disclosing: the allegations, the requirements of the informal resolution process including the circumstances under which it precludes the parties from resuming a formal complaint arising from the same allegations, provided, however, that at any time prior to agreeing to a resolution, any party has the right to withdraw from the informal resolution process and resume the grievance process with respect to the formal complaint, and any consequences resulting from participating in the informal resolution process, including the records that will be maintained or could be shared;
      2. Obtains the parties’ voluntary, written consent to the informal resolution process; and
      3. Does not offer or facilitate an informal resolution process to resolve allegations that an employee sexually harassed a student.
    4. The College endeavors to conclude informal resolution promptly and shall keep a written record of all informal resolution efforts in accordance with section 9.1.3 of this policy.
    5. After concluding informal resolution of a complaint, the Title IX Coordinator shall notify the complainant and respondent of the resolution that was agreed upon.
  13. Formal Investigations
    1. If a Complainant files a formal complaint or the Title IX Coordinator signs a formal complaint, the College shall conduct a thorough, impartial investigation by interviewing witnesses, collecting documentary evidence, and preparing a written report of findings. The College reserves the right to engage an outside investigator to conduct the investigation. Investigations under this policy shall incorporate the following standards:
      1. The burden of proof and the burden of gathering evidence sufficient to reach a determination rests on the College and not on the parties.
        1. The College shall not access, consider, disclose, or otherwise use a party’s records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional’s or paraprofessional’s capacity, or assisting in that capacity, and which are made and maintained in connection with the provision of treatment to the party, unless the College obtains the party’s voluntary, written consent to do so for a grievance process under this policy.
      2. The College shall presume the respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process.
      3. The College will not restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence. This section notwithstanding,
        1. Retaliation is prohibited. Attempts to alter or prevent a witness’s or party’s testimony are forms of prohibited retaliation.
        2. Parties may be directed to cease communications with one another (i.e., a “no contact order”).
        3. Parties’ communications remain subject to state laws protecting against defamation and tortious invasions of privacy, such as intrusion upon seclusion, publication of private facts, and false light claims.
      4. The College shall provide an equal opportunity for the parties to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence.
      5. Investigators or others shall not question the complainant about, or otherwise seek evidence, regarding the complainant’s sexual predisposition or prior sexual conduct with anyone other than the respondent(s).
      6. Parties may choose to be accompanied by an advisor of their choice, who may be an attorney, to any related meeting or proceeding. The advisor may not disrupt the meetings or other proceedings or speak on behalf of the party. Generally, the advisor is limited to listening and quietly conferring with the party. If an advisor is disruptive even after warning, the investigator may exclude them from meetings.
      7. At any time before or during the investigation, the investigator may recommend that the College provide support measures for the parties or witnesses. Any individual’s intentional interference with support measures may be considered retaliatory and a separate violation of this policy. If either party fails to participate in the investigation, the investigator(s) may make findings without the response of that party, potentially leading to an unfavorable outcome for that party, or College may dismiss the case according to section 10.4.6 of this policy.
      8. The College will provide to a party whose participation is expected or invited, written notice of the date, time, location, participants, and purpose of all hearings, investigative interviews, or other meetings, with sufficient time for the party to prepare to participate.
      9. College will provide each party with equal opportunity to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in the formal complaint, including all inculpatory or exculpatory evidence, whether relied upon or not in reaching findings, so that each party can meaningfully respond to the evidence prior to the conclusion of the investigation.
    2. The Title IX Coordinator shall choose the investigator(s), except in cases where the Title IX Coordinator or others involved in the investigation have a conflict of interest, in which case the legal council shall select internal or external impartial investigator(s).
    3. Upon initiating an investigation, the College shall provide the parties with a copy of the formal complaint, a notice of investigation, and a copy of this policy. A notice of investigation shall include statements informing the parties that the Respondent is presumed not responsible for the alleged conduct and that a determination of responsibility is made at the conclusion of the grievance process; that the parties may have an advisor of their choice, who may be, but is not required to be, an attorney, and who may inspect and review evidence; and inform the parties of any provision in the College’s code of conduct that prohibits knowingly making false statements or knowingly submitting false information during a grievance process.
    4. If, at any point during the investigation, the College determines a need to investigate allegations not included in the formal complaint, the College must provide notice of the additional allegations to the parties, if known.
    5. Upon conclusion of the evidence gathering, , investigators will give complainant and respondent and their advisors an equal opportunity to review any evidence obtained as part of the investigation that is directly related to the allegations in the formal complaint, including evidence upon which College does not intend to rely in reaching a determination of responsibility, whether inculpatory or exculpatory, in electronic or hard copy format. The parties may submit a written response and/or information to the investigator within 10 business days of the date of the notice of the opportunity to review the evidence.
    6. The investigator(s) shall prepare a draft report that summarizes the complainant’s allegations and the respondent’s responses, summarizes the relevant evidence and the material witnesses supporting or opposing the allegation(s), and includes recommended or proposed findings. On completing the draft report including any recommended or proposed findings, the investigator(s) shall consider any written response, information, or evidence provided by the parties.
    7. The parties may submit a written response to the draft report to the investigator(s) within 10 business days of the date of the notice of the opportunity to review the draft report and evidence. This is the parties’ final opportunity to submit any additional information or witnesses. In the absence of good cause, investigators shall not consider information discoverable through the exercise of due diligence that is not provided to the investigator(s) at or before this juncture.
    8. The investigator(s) shall prepare a final investigation report that contains a statement of the allegations, the positions/responses of the parties, a summary of relevant evidence and material witnesses the investigator(s) relied on, and recommended findings of fact. In completing the final investigation report, including any recommended or proposed findings, the investigator(s) shall consider any written response, information, or evidence provided by the parties.
      1. A recommended decision of “unsubstantiated” indicates that the investigator believes either that there is insufficient evidence to conclude that the event(s) occurred as alleged, or even if the event(s) occurred, it/they did not constitute sexual harassment or retaliation.
      2. A recommended decision of “inconclusive” means that the investigator believes the evidence provided by both parties did not reach a preponderance of evidence in favor of either party.
      3. A recommended decision of “substantiated” means that the investigator believes the events occurred as alleged by a preponderance of evidence in favor of the complainant.
    9. The Title IX Coordinator, or designee, and the Ombudsman shall review each final investigation report or summary before it is finalized to ensure compliance with this policy.
    10. The final investigation report shall be provided to the parties and their advisors, if any, in an electronic or hard copy format, at least ten days prior to any hearing under this policy, for their review and written response.
    11. The final investigation report shall be submitted to the responsible College administrator designated below with authority to implement actions and/or discipline necessary to resolve the complaint (unless a conflict of interest exists, in which case the legal council will recommend to the President a designee to serve as an alternative responsible College administrator) and the Title IX Coordinator. The final investigation report shall be kept in the investigation file and may be used as evidence in other related proceedings, such as subsequent complaints, disciplinary actions, and/or hearings or appeals.
      Respondent’s Affiliation with the College Responsible College Administrator
      Student Vice President of Student Affairs
      Faculty member Vice President of Instruction
      Executive employee or direct report of a vice president Vice President of the relevant department
      Administration or staff member who is not an executive employee and does not report directly to a vice president Direct report of the vice president or another seniorlevel administrator designated by the vice president of the department in which the respondent is employed
      Vice president or direct report of the College President College President
      Contractor, vendor, or visitor Vice President of Administrative Services
    12. Nothing in this procedure shall be interpreted to alter the status of otherwise at-will employees.
  14. Live Hearings
    1. Upon receipt of the Final Investigation Report, the Title IX Coordinator will have 10 business days to appoint a hearing officer or hearing panel.
    2. Upon appointing a hearing officer or hearing panel (“hearing officer”), the Title IX Coordinator will issue to the parties and the parties’ advisors, in either an electronic or hard copy format, a Notice of Hearing containing dates, deadlines, and/or requirements appropriate for the orderly administration of the live hearing as determined by the hearing officer or panel assigned to the live hearing under this policy.
      1. The notice of hearing will contain a statement informing the parties that the College must, upon either party’s request, provide for a live hearing where the parties are located in separate rooms with technology enabling the hearing officer and the parties to simultaneously see and hear the party or witnesses answering questions.
    3. Required Disclosures:
      1. As outlined in Section 11, the parties and the parties’ advisors received in either an electronic or hardcopy format a copy of the final investigation report and all evidence, exculpatory or inculpatory whether or not the evidence was relied upon to reach the findings in the final investigation report related to the allegations in the formal complaint.
      2. Disclosure of expert testimony. A party shall disclose the identity of any person who may be used at hearing to present expert opinion evidence to the College and other parties no later than five business days prior to the date of the live hearing.
        1. Unless otherwise stipulated, this disclosure shall be accompanied by a written report prepared and signed by the witness or party. The report shall contain the subject matter on which the expert is expected to testify; the substance of the facts and opinions to which the expert is expected to testify; a summary of the grounds for each opinion; and the expert’s qualifications of the witness.
        2. A party seeking to present the testimony of an expert witness at the live hearing shall certify that the individual providing the expert testimony is qualified to offer the opinions.
        3. The hearing officer may exclude expert testimony that is not relevant.
      3. At least seven calendar days before the hearing date, the institution, complainant and respondent must provide each other a list of witnesses and documents that they will be presenting to the hearing officer.
    4. Advisors: Parties may be accompanied to the live hearing by the advisor, who may be, but is not required to be, an attorney.
      1. College will not limit the choice or presence of a party’s advisor, but the hearing officer may limit an advisor’s participation if the advisor becomes unreasonably disruptive to the proceedings.
      2. If an attorney appears on behalf of a party, notice served on the attorney is considered notice to the party.
      3. Advisors may participate in the live hearing by asking the other party and any witnesses all relevant questions and follow-up questions, including those challenging the party’s credibility. 
        1. Cross-examination at the live hearing must be conducted directly, orally, and in real time by a party’s advisor and never by a party personally.
        2. If a party does not have an advisor present at the live hearing, College must provide without fee or charge to that party, an advisor of College’s choice, who may be, but is not required to be, an attorney, to conduct cross-examination on behalf of that party.
    5. The College is not a party to the live hearing, but it shall be the College, not the parties, that bears the burden of producing evidence through the investigative report to the hearing officer.
      1. The College must remain objective and impartial throughout the grievance process, including impartially presenting the investigative report to the hearing officer or hearing panel for determination.
      2. The standard of proof for determining responsibility is preponderance of the evidence.
    6. Hearing Officer or Hearing Panel Responsibilities
      1. The hearing officer cannot be the same person(s) as the Title IX Coordinator or the investigator(s).
      2. The hearing officer shall regulate the course of the live hearing to obtain full disclosure of relevant facts and to afford all parties reasonable opportunity to present their positions.
      3. On the hearing officer’s or own motion or upon objection by a party’s advisor, the hearing officer:
        1. May exclude evidence that is irrelevant or unduly repetitious.
        2. Shall exclude irrelevant questions directed to a party or witness. Before a party or witness answers a cross-examination or other question, the hearing officer must first determine whether the question is relevant and explain any decision to exclude a question as not relevant.
        3. Shall exclude evidence privileged in the courts of Utah, unless the privilege at issues is specifically waived by the party to whom the privilege attaches.
        4. Shall exclude questions or evidence about the complainant(s)’ sexual predisposition or prior sexual behavior as not relevant unless 1) questions or evidence of the complainant(s)’ prior sexual behavior are offered to prove that someone other than respondent(s) committed the conduct alleged by complainant(s), or 2) questions or evidence concern specific incidents of the complainant(s)’ prior sexual behavior with respect to respondent(s) and are offered to prove consent.
        5. May receive documentary evidence in the form of a copy or excerpt if the copy or excerpt contains all pertinent portions of the original document.
      4. The hearing officer may not exclude evidence solely because it is hearsay.
      5. The hearing officer shall afford the parties’ advisors the opportunity to conduct crossexamination.
        1. All relevant evidence, including statements made by a party or witness not subject to cross examination, may be considered for the purpose of determining responsibility. The hearing panel, however, must not draw an inference regarding responsibility based solely on a party’s or witness’s absence from the live hearing or refusal to answer crossexamination or other questions. Moreover, the hearing panel may not render a determination of responsibility against the respondent, when such adverse determination depends on complainant or witness credibility, without first providing the respondent an opportunity at a live hearing to ask relevant questions (through their advisor) of the complainant and any adverse witnesses.
      6. The College shall record the hearing and provide a copy or transcript of the hearing to the parties for inspection and review.
      7. The hearing shall be conducted with all parties physically present in the same geographical location or, upon request by either party or the hearing officer, any or all parties, witnesses, and other participants may appear at the live hearing virtually, with technology enabling participants simultaneously to see and hear each other.
      8. Nothing in this section precludes the hearing officer from taking appropriate measures necessary to preserve the integrity of the hearing.
      9. After the close of the live hearing, the hearing officer or hearing panel will issue a written determination regarding responsibility.
    7. Written Determination
      1. The hearing officer or hearing panel will provide the written determination to the Title IX Coordinator within 30 calendar days after the live hearing concludes. The written determination must include:
        1. 14.7.1.1.Identification of the allegations potentially constituting sexual harassment as defined in this policy.
        2. A description of the procedural steps taken from the receipt of the formal complaint through the determination including any notifications to the parties, interviews with the parties and witnesses, site visits, methods used to gather other evidence, and hearings held.
        3. Findings of fact supporting the determination.
        4. Conclusions regarding the application of College policy to the facts.
        5. Using the criteria established in Section 14 of this policy, a statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility, and disciplinary sanctions the College imposes on the respondent, and whether the institution will provide remedies designed to restore and preserve equal access to the College’s education program or activity to the complainant.
      2. The College’s procedures and permissible bases for the complainant and respondent to appeal.The hearing officer shall provide the written determination to the Title IX Coordinator, the responsible College official, the parties and the parties’ advisors simultaneously.
      3. The determination regarding responsibility and sanctions becomes final either on the date that the recipient provides the parties with the written determination of the result of the appeal, if an appeal is filed, or if an appeal is not filed, the date on which an appeal would no longer be considered timely.
  15. Sanctions and Remedies
    1. Upon making findings of fact and determining responsibility, the hearing officer shall promptly determine the appropriate sanctions and remedies, including offering remedies to the complainant and/or College community, implementing changes in programs and activities, providing training, and imposing any disciplinary sanctions. In consultation with the Title IX Coordinator (and with Human Resources when the respondent is an employee) the hearing officer shall ensure any sanctions and remedies are appropriate to end the prohibited conduct, to prevent further violation of this policy, and remedy the effects of any violation. In determining the appropriate sanction(s), the hearing officer shall be guided by the following considerations:
      1. The severity, persistence, or pervasiveness of the misconduct;
      2. The nature of violence in the misconduct and/or use of weapons, drugs, or alcohol (if applicable);
      3. The impact of the misconduct on the complainant;
      4. The impact or implications of the misconduct on the College community;
      5. Prior misconduct by the respondent, including the respondent’s relevant prior disciplinary history;
      6. Whether the respondent has accepted responsibility for the misconduct;
      7. The maintenance of a safe, nondiscriminatory, and respectful working and learning environment; and
      8. Any other mitigating, aggravating, or compelling factors.
    2. Respondents who are found to have violated this policy may be subject to the following sanctions:
      1. Faculty/Staff Employees: Possible sanctions against faculty and non-faculty employees for violations of this policy include verbal counseling, written warning, probation, reassignment, transfer, demotion, reduction in pay, suspension, termination of employment, and an order of no trespassing on campus and/or in College programs, services, and activities.
      2. Students: Possible sanctions against students for violations of this policy include fines, restitution, interim suspension, suspension, suspension withheld, warning, probation, expulsion, withholding diploma, revocation of certificate or degree, discretionary sanction, organizational sanction, and notation on the student’s transcript consistent with the Family Educational Rights and Privacy Act.
      3. Vendors/Contractors/Visitors: Possible sanctions against vendors, contractors or visitors to campus who are neither students nor employees of the College include banning the individuals from all or part(s) of the College and/or ending business relationships with the vendors and contractors.
    3. Amnesty: Any student who makes a good faith report of sexual harassment or sexual violence, as defined at Utah Code 53B-28-201, that was directed at them or another person will not be sanctioned by the College for a violation related to the use of drugs or alcohol that the College discovers because of the report.
    4. The College complies with all applicable reporting requirements and reserves the right to report findings of criminal misconduct to the police.
  16. Appeals
    1. Any party may appeal a decision regarding responsibility or from the dismissal of any portion of a formal complaint for any of the following reasons
      1. A procedural irregularity that affected the outcome of the hearing.
      2. New evidence that was not reasonably available at the time of the decision or dismissal.
      3. The Title IX Coordinator, the investigators, or the hearing officer had a conflict of interest or bias for or against complainants or respondents generally or the individual complainant or respondent that affected the outcome.
    2. If the respondent has been determined responsible for sexual harassment, any party may simultaneously appeal the decision regarding sanctions for any of the following reasons:
      1. The decision-maker had a conflict of interest or bias for or against complainants or respondents generally or the individual complainant or respondent that affected the outcome.
      2. The sanction is clearly unreasonable in light of the known circumstances.
    3. The Title IX Coordinator must receive written notice of a party’s intent to appeal within 10 calendar days after the hearing officer issues the decision.
    4. Upon receiving an appeal, the Title IX Coordinator must notify the other party within five business days.
    5. The Title IX Coordinator must notify both parties of who will determine the appeal and that person’s contact information within five business days of receiving the appeal.
    6. The person determining the appeal (“appeal officer”) is the cognizant vice president or their designee. The appeal officer must be free of any bias or conflict of interest with respect to any party.
    7. The appeal officer must not be anyone involved in the grievance process before the appeal including the sanctioning administrator.
    8. The parties may submit a written statement to the appeal officer supporting or opposing the decision of the hearing officer.
      1. The appeal officer must receive any written statements within 10 calendar days of the Title IX Coordinator sending the notice to the parties.
    9. The appeal officer will review all written statements, reports, evidence, and recordings and make a written decision.
    10. The appeal officer’s written decision may affirm or modify the hearing officer’s determination and/or the sanction, remand the decision to the hearing officer and/or the sanctioning administrator, order a new investigation, or overturn the determination and/or the sanction.
    11. The appeal officer will simultaneously issue a report to both parties detailing the decision and the rationale for the decision.
    12. The appeal officer’s decision is final.
Policy migration in progress

Davis Tech is in the process of migrating our policies from PDF to HTML format to conform to Title II (ADA) requirements. During this transition period, the latest approved version of the policy is available (below) in pdf format, but may contain ADA Compliance errors.

Printable PDF

Effective Date: 22 September 2022

  • Approvals and Notes