Hearing

General Rules of Hearings

Mohawk Valley Community College will only issue a disciplinary sanction arising from an allegation of covered sexual harassment following the holding of a live hearing, unless the allegations are otherwise resolved through an informal resolution process, or the respondent admits to the charges.

The live hearing may be conducted with all parties physically present in the same geographic location, or, at the request of either party, the Hearing Chairperson must provide for the live hearing to occur with the parties located in separate rooms with technology enabling the decision-maker(s) and parties to simultaneously see and hear the party or the witness answering questions.”

34 C.F.R. § 106.45

At its discretion, Mohawk Valley Community College may delay or adjourn a hearing based on technological errors not within a party’s control.

All proceedings will be recorded through audio recording. That recording or transcript will be made available to the parties for inspection and review.

Continuances or Granting Extensions

Mohawk Valley Community College may determine that multiple sessions or a continuance (i.e. an adjournment for the continuation of the hearing at a later date or time) is needed to complete a hearing. If so, Mohawk Valley Community College will notify all participants and endeavor to accommodate all participants’ schedules and complete the hearing as promptly as practicable.

Participants in the live hearing

Live hearings are not public, and the only individuals permitted to participate in the hearing are as follows:

Complainant and Respondent (The Parties)

  • The parties cannot waive the right to a live hearing. If the hearing is going forward (not withdrawn) it must be a live hearing.  
  • The institution may still proceed with the live hearing in the absence of a party, and may reach a determination of responsibility in their absence, including through any evidence gathered that does not constitute a “statement” by that party. 85 Fed. Reg. 30026, 30361 (May 19, 2020).

Example:  The complainant testifies that the respondent told her “if you sleep with me, you’ll get a good grade.”  Whether or not the respondent allows himself to be cross examined, that statement is admissible because it constitutes the alleged harassment. See, OCR Blog (May 22, 2020), available at https://www2.ed.gov/about/offices/list/ocr/blog/20200522.html

  • Mohawk Valley Community College will not threaten, coerce, intimidate or discriminate against the party in an attempt to secure the party’s participation. See 34 C.F.R. § 106.71; see also 85 Fed. Reg. 30026, 30216 (May 19, 2020).
  • If a party does not submit to cross-examination, the decision-maker cannot rely on any prior statements made by that party in reaching a determination regarding responsibility, but may reach a determination regarding responsibility based on evidence that does not constitute a “statement” by that party.
  • The decision-maker cannot draw an inference about the determination regarding responsibility based solely on a party’s absence from the live hearing or refusal to answer cross examination or other questions. See 34 C.F.R. §106.45(b)(6)(i).

 The Decision-maker

  • The hearing body will consist of a panel of 3 voting decision-makers plus a chairperson who does not vote. If the parties agree to an informal resolution, the decision-maker will be the Title IX Investigator. If the respondent admits to the alleged violations, the Title IX Investigator will be the decision maker.
  • No member of the hearing body will also have served as the Title IX Coordinator, Title IX investigator, or advisor to any party in the case, nor may any member of the hearing body serve on the appeals body in the case.
  • No member of the hearing body will have a conflict of interest or bias in favor of or against complainants or respondents generally, or in favor or against the parties to the particular case.
  • The hearing body will be trained on topics including how to serve impartially, issues of relevance, including how to apply the rape shield protections provided for complainants, and any technology to be used at the hearing.
  • The parties will have an opportunity to raise any objections regarding a decision-maker’s actual or perceived conflicts of interest or bias at the commencement of the live hearing.

Advisor of choice

  • The parties have the right to select an advisor of their choice, who may be, but does not have to be, an attorney.
  • The advisor of choice may accompany the parties to any meeting or hearing they are permitted to attend, but may not speak for the party, except for the purpose of cross-examination.
  • The parties are not permitted to conduct cross-examination; it must be conducted by the advisor. As a result, if a party does not select an advisor, the institution will select an advisor to serve in this role for the limited purpose of conducting the cross-examination at no fee or charge to the party.
  • The advisor is not prohibited from having a conflict of interest or bias in favor of or against complainants or respondents generally, or in favor or against the parties to the particular case.
  • The advisor is not prohibited from being a witness in the matter.
  • If a party does not attend the live hearing, the party’s advisor may appear and conduct cross-examination on their behalf. 85 Fed. Reg. 30026, 30340 (May 19, 2020).
  • If neither a party nor their advisor appear at the hearing, Mohawk Valley Community College will provide an advisor to appear on behalf of the non-appearing party. See, 85 Fed. Reg. 30026, 30339-40 (May 19, 2020).

Witnesses

  • Witnesses cannot be compelled to participate in the live hearing, and have the right not to participate in the hearing free from retaliation. See, 85 Fed. Reg. 30026, 30360 (May 19, 2020).
  • If a witness does not submit to cross-examination, as described below, the decision-maker cannot rely on any statements made by that witness in reaching a determination regarding responsibility, including any statement relayed by the absent witness to a witness or party who testifies at the live hearing. 85 Fed. Reg. 30026, 30347 (May 19, 2020).

Hearing Procedures

 For all live hearings conducted under this Title IX Grievance Process, the procedure will be as follows:

  • The chairperson will open and establish rules and expectations for the hearing;
  • The parties will each be given the opportunity to provide opening statements;
  • The decision-makers will ask questions of the parties and witnesses;
  • Parties will be given the opportunity for live cross-examination after the decision-makers conduct their initial round of questioning; during the parties’ cross-examination, the chairperson or the decision-makers will have the authority to pause cross-examination at any time for the purposes of asking follow up questions or at any time necessary in order to enforce the established rules of decorum.
  • Should a party or the party’s advisor choose not to cross-examine a party or witness, the party shall affirmatively waive cross-examination through oral statement to the chairperson. A party’s waiver of cross-examination does not eliminate the ability of the decision-makers to use statements made by the party.

Live Cross-Examination Procedure

Each party’s advisor will conduct live cross-examination of the other party or parties and witnesses. During this live-cross examination, the advisor will ask the other party or parties and witnesses’ relevant questions and follow-up questions, including those challenging credibility directly, orally, and in real time.

Before any cross-examination question is answered, the chairperson will determine if the question is relevant. (See Addendum A – Relevance Document)   Cross-examination questions that are duplicative of those already asked, including by the decision-makers may be deemed irrelevant if they have been asked and answered.

Review of Transcript

Requests for transcription of the formal hearing may be made and MVCC will hire a professional transcription service (at the student's expense).    Upon completion, the transcription service will provide two copies to MVCC.  MVCC will review the transcript for accuracy before release to the student who requested and paid for the transcription. 

Note: This recording applies only to the hearing and not the preliminary investigative steps. 

Determination Regarding Responsibility

Standard of Proof

Mohawk Valley Community College uses the preponderance of the evidence standard for investigations and determinations regarding responsibility of formal complaints covered under this Policy. This means that the investigation and hearing determines whether it is more likely than not that a violation of the Policy occurred.

General Considerations for Evaluating Testimony and Evidence

While the opportunity for cross-examination is required in all Title IX hearings, determinations regarding responsibility may be based in part, or entirely, on documentary, audiovisual, and digital evidence, as warranted in the reasoned judgment of the decision-makers.

Decision-makers shall not draw inferences regarding a party or witness’ credibility based on the party or witness’ status as a complainant, respondent, or witness, nor shall it base its judgments in stereotypes about how a party or witness would or should act under the circumstances.

Generally, credibility judgments should rest on the demeanor of the party or witness, the plausibility of their testimony, the consistency of their testimony, and its reliability in light of corroborating or conflicting testimony or evidence. Credibility determinations should be based upon a full assessment of all the circumstances surrounding a witness’s testimony.  

Decision makers will afford the highest weight relative to other testimony to first-hand testimony by parties and witnesses regarding their own memory of specific facts that occurred. Both inculpatory and exculpatory (i.e. tending to prove and disprove the allegations) evidence will be weighed in equal fashion.

Except where specifically barred by the Title IX Final Rule, a witness’ testimony regarding third-party knowledge of the facts at issue will be allowed, but will generally be accorded lower weight than testimony regarding direct knowledge of specific facts that occurred.

The Final Rule requires that Mohawk Valley Community College allow parties to call “expert witnesses” for direct and cross examination.  While the expert witness will be allowed to testify and be crossed as required by the Final Rule, the decision-maker will be instructed to afford lower weight to non-factual testimony of the expert relative to fact witnesses, and any expert testimony that is not directed to the specific facts that occurred in the case will be afforded lower weight relative to fact witnesses, regardless of whether the expert witness testimony is the subject of cross examination and regardless of whether all parties present experts as witnesses.

The Final Rule requires that Mohawk Valley Community College allow parties to call character witnesses to testify.  While the character witnesses will be allowed to testify and be crossed as required by the Final Rule, the decision-maker will be instructed to afford very low weight to any non-factual character testimony of any witness.

The Final Rule requires that Mohawk Valley Community College admit and allow testimony regarding polygraph tests (“lie detector tests”) and other procedures that are outside of standard use in academic and non-academic conduct processes. While the processes and testimony about them will be allowed, and will be subject to cross-examination, the decision-maker will be instructed to afford lower weight to testimony about such processes relative to the testimony of fact witnesses.

Where a party or witness’ conduct or statements demonstrate that the party or witness is engaging in retaliatory conduct, including but not limited to witness tampering and intimidation, the Title IX Investigator or Title IX Hearing Committee may draw an adverse inference as to that party or witness’ credibility.

Components of the Determination Regarding Responsibility

The written determination regarding responsibility will be issued simultaneously to all parties through their institution email account, or other reasonable means as necessary. The determination will include:

  1. Identification of the allegations potentially constituting covered sexual harassment;
  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 parties and witnesses, site visits, methods used to gather other evidence, and hearings held;
  3. Findings of fact supporting the determination;
  4. Conclusions regarding which section of the Title IX Grievance Policy the respondent has or has not violated.
  5. For each allegation:
    1. A statement of, and rationale for, a determination regarding responsibility;
    2. A statement of, and rationale for, any disciplinary sanctions Mohawk Valley Community College imposes on the respondent; and
    3. A statement of, and rationale for, whether remedies designed to restore or preserve equal access to Mohawk Valley Community College’s education program or activity will be provided by the recipient to the complainant; and
  6. The recipient’s procedures and the permitted reasons for the complainant and respondent to appeal (described below in “Appeal”).

 Timeline of Determination Regarding Responsibility

If there are no extenuating circumstances, the determination regarding responsibility will be issued by Mohawk Valley Community College within four (4) business days of the completion of the hearing.

Finality

The determination regarding responsibility becomes final either on the date that Mohawk Valley Community College provides the parties with the written determination of the result of any appeal filed consistent with the procedures and timeline outlined in “Appeals,” below, or if an appeal is not filed, the date on which the opportunity to appeal expires.

Appeals

Either party may appeal (1) the dismissal of a formal complaint or any included allegations and/or (2) a determination regarding responsibility. To appeal, a party must submit their written appeal within five (5) business days of being notified of the decision, indicating the grounds for the appeal. Each appeal begins with a written request for appeal, and must be based upon one of the following limited grounds for appeal: 

  • A procedural irregularity existed 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, has been discovered;
  • The Title IX Coordinator, investigator(s), or decision-maker(s) had a conflict of interest or bias for or against an individual party, or for or against complainants or respondents in general, that affected the outcome of the matter; or

The submission of the written request for appeal stays any sanctions for the pendency of the appeal. Supportive measures and remote learning opportunities remain available during the pendency of the appeal.

If a party appeals, Mohawk Valley Community College will as soon as practicable notify the other party in writing of the appeal, however, the time for appeal shall be offered equitably to all parties and shall not be extended for any party solely because the other party filed an appeal.

Appeal requests should be submitted in electronic form using Arial or Times New Roman 12 point font, and single-spaced. Appeals should use footnotes, not endnotes. Appeal requests that do not meet these standards may be returned to the party for correction, but the time for appeal will not be extended unless there is evidence that technical malfunction caused the appeal document not to meet these standards.

Appeal requests will be decided by the Title IX Appeals Committee.  Mohawk Valley Community College will ensure that members of the Title IX Appeals Committee will be free of any conflict of interest and bias, and have not served as investigator(s), Title IX Coordinator(s), or hearing decision-maker(s) in the matter under appeal.

Outcome of appeal requests will be provided by the Title IX Coordinator on behalf of the Title IX Appeals Committee.  

If an Appeal request is granted, the Appeal Hearing Committee will be convened.  Mohawk Valley Community College will ensure that members of the Appeal Hearing Committee will be free of any conflict of interest and bias, and have not served as investigator(s), Title IX Coordinator(s), or hearing decision-maker(s) in the matter under appeal.

The outcome of the Appeal Hearing Committee will be provided to the Title IX Coordinator, who will provide the outcome in writing simultaneously to both parties, and include the Panel’s rationale for the decision.

Retaliation

Mohawk Valley Community College will keep the identity of any individual who has made a report or complaint of sex discrimination confidential, including the identity of any individual who has made a report or filed a Formal Complaint of sexual harassment under this Title IX Grievance Policy, any Complainant, any individual who has been reported to be the perpetrator of sex discrimination, any Respondent, and any witness, except as permitted by the FERPA statute, 20 U.S.C. 1232g, or FERPA regulations, 34 CFR part 99, or as required by law, or to carry out the purposes of 34 CFR part 106, including the conduct of any investigation, hearing, or judicial proceeding under this Title IX Grievance Policy.

No person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX of the Education Amendments of 1972 or its implementing regulations.

No person may intimidate, threaten, coerce, or discriminate against any individual 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 Title IX Grievance Policy.

Any intimidation, threats, coercion, or discrimination, for the purpose of interfering with any right or privilege secured by Title IX or its implementing regulations constitutes retaliation. This includes any charges filed against an individual for code of conduct violations that do not involve sex discrimination or sexual harassment, but that arise from the same facts or circumstances as a report or complaint of sex discrimination or a report or Formal Complaint of sexual harassment. Please see Mohawk Valley Community College’s Amnesty Policy. https://www.mvcc.edu/title-ix/

Complaints alleging retaliation may be filed according to the Mohawk Valley Community College’s grievance procedures for sex discrimination may be brought to the attention of the Title IX Coordinator and corrective action will be taken.

The following flowchart outlines the appeal process. The appeal process below is for students only.  If the Respondent is an employee and is found responsible, the College will address any findings in accordance with College policy and procedures as well as the applicable collective bargaining agreement, if any. 

Appeals

(Days noted below are business days)  
5 days Respondent and Reporter must request the appeal within five (5) business days following the meeting with the Investigator where the written decision is communicated.
Days Actions to be taken
4 Investigator notifies Title IX Coordinator of Request for Appeal
6 The Disciplinary Appeals Committee or the Title IX Appeals Committee will render the decision regarding an appeal.
  Appeal is scheduled
10 Date, time, and location of appeal is communicated in writing to the appealing individual
14 Appeal hearing held by three (3)-person panel.   The three (3)-person panel applies to students.   For employees, the President will appoint a neutral Cabinet  member to conduct an independent review
16 Decision of appeal panel or independent reviewer is communicated to the Investigator and Title IX Coordinator
18 Decision of the appeal hearing or independent review  is communicated to appealing Respondent/Reporter by the Title IX Investigator in writing

 

If disciplinary action is necessary, it will be taken according to Board of Trustees Policies, collective bargaining agreements, Civil Service Law, the Student Disciplinary or Title IX procedures as appropriate. 

In the case of sexual violence, if a Respondent is a student and is found responsible, the automatic sanction is expulsion and a permanent notation will be placed on the transcript noting the same. f the Respondent withdraws prior to the conclusion of an investigation that involves sexual violence, a permanent notation will be placed on the transcript and will indicate that the student withdrew pending the outcome of a Title IX investigation.