Notice of Allegations
The Title IX Coordinator or Investigator will draft and provide the Notice of Allegations to any party to the allegations of sexual harassment. Such notice will occur as soon as practicable after the institution receives a Formal Complaint of the allegations, if there are no extenuating circumstances.
The parties will be notified by their institutional email accounts if they are a student or employee and by other reasonable means if they are neither.
The institution will provide sufficient time for the parties to review the Notice of Allegations and prepare a response before any initial interview.
The Title IX Coordinator or designee may determine that the Formal Complaint must be dismissed on the mandatory grounds identified above, and will issue a Notice of Dismissal. If such a determination is made, any party to the allegations of sexual harassment identified in the Formal Complaint will receive the Notice of Dismissal in conjunction with, or in separate correspondence after, the Notice of Allegations.
Contents of Notice
The Notice of Allegations will include the following:
- Notice of the institutions Title IX Grievance Process and a hyperlink to a copy of the process.
- Provision of seven (7) days to provide a response before any initial interview.
- Notice of the allegations potentially constituting covered sexual harassment, and sufficient details known at the time the Notice is issued, such as the identities of the parties involved in the incident, if known, including the complainant; the conduct allegedly constituting covered sexual harassment; and the date and location of the alleged incident, if known.
- A statement that the respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the grievance process.
- A statement that the parties may have an advisor of their choice, who may be, but is not required to be, an attorney, as required under 34 C.F.R. § 106.45(b)(5)(iv);
- A statement that before the conclusion of the investigation, the parties may inspect and review evidence obtained as part of the investigation that is directly related to the allegations raised in the Formal Complaint, including the evidence upon which the institution does not intend to rely in reaching a determination regarding responsibility, and evidence that both tends to prove or disprove the allegations, whether obtained from a party or other source, as required under 34 C.F.R. § 106.45(b)(5)(vi);
- A statement that illustrates the prohibition of knowingly submitting false information during the grievance process (Code of Conduct Regulation CR4).
If, in the course of an investigation, the institution decides to investigate allegations about the complainant or respondent that are not included in the Notice of Allegations and are otherwise covered "sexual harassment” falling within the Title IX Grievance Policy, the institution will notify the parties whose identities are known of the additional allegations by their institutional email accounts or other reasonable means.
The parties will be provided sufficient time to review the additional allegations to prepare a response before any initial interview regarding those additional charges.
Advisor of Choice and Participation of Advisor of Choice
Mohawk Valley Community College will provide the parties equal access to advisors and support persons; any restrictions on advisor participation will be applied equally.
Students participating as Complainant or Respondent in this process may be accompanied by an Advisor of Choice to any meeting or hearing to which they are required or are eligible to attend. The Advisor of Choice is not an advocate. Except where explicitly stated by this Policy, as consistent with the Final Rule, Advisors of Choice shall not participate directly in the process as per standard policy and practice of Mohawk Valley Community College.
Mohawk Valley Community College will not intentionally schedule meetings or hearings on dates where the Advisors of Choice for all parties are not available, provided that the Advisors act reasonably in providing available dates and work collegially to find dates and times that meet all schedules.
Mohawk Valley Community College’s obligations to investigate and adjudicate in a prompt timeframe under Title IX and other college policies apply to matters governed under this Policy, and Mohawk Valley Community College cannot agree to extensive delays solely to accommodate the schedule of an Advisor of Choice. The determination of what is reasonable shall be made by the Title IX Coordinator or designee. Mohawk Valley Community College will not be obligated to delay a meeting or hearing under this process more than five (5) days due to the unavailability of an Advisor of Choice, and may offer the party the opportunity to obtain a different Advisor of Choice or utilize one provided by Mohawk Valley Community College.
Notice of Meetings and Interviews
Mohawk Valley Community College will provide, to a party whose participation is invited or expected, written notice of the date, time, location, participants, and purpose of all hearings, investigative interviews, or other meetings with a party, with sufficient time for the party to prepare to participate.
Each party may request a one-time delay in the Grievance Process of up to five (5) days for good cause (granted or denied in the sole judgment of the decision-maker provided that the requestor provides reasonable notice and the delay does not overly inconvenience other parties.
The decision-maker shall have sole judgment to grant further pauses in the process.
General Rules of Investigations
The Title IX Investigator, provided by the Title IX Coordinator will perform an investigation under a reasonably prompt timeframe of the conduct alleged to constitute covered sexual harassment after issuing the Notice of Allegations.
Mohawk Valley Community College and not the parties, has the burden of proof and the burden of gathering evidence, i.e. the responsibility of showing a violation of this Policy has occurred. This burden does not rest with either party, and either party may decide not to share their account of what occurred or may decide not to participate in an investigation or hearing. This does not shift the burden of proof away from Mohawk Valley Community College and does not indicate responsibility.
Mohawk Valley Community College cannot access, consider, or disclose medical records without a written waiver from the party (or parent, if applicable) to whom the records belong or of whom the records include information. Mohawk Valley Community College will provide an equal opportunity for each of the parties to present witnesses, including factual and expert witnesses, and other inculpatory and exculpatory evidence (i.e., evidence that tends to prove and disprove the allegations), as described below.
Inspection and Review of Evidence
Prior to the completion of the investigation, the parties will have an equal opportunity to inspect and review all of the evidence obtained through the investigation. The purpose of the inspection and review process is to allow each party the equal opportunity to meaningfully respond to the evidence prior to conclusion of the investigation.
The Department also takes no position on nondisclosure agreements that comply with these final regulations. The Department, however, will not impose a uniform approach for recipients and would like recipients to have discretion in this regard. A recipient may choose to share records in a manner that will prevent either party from copying, saving, or disseminating the records, but the Department will not require the recipient to do so.”
Evidence that will be available for inspection and review by the parties will be any evidence that is directly related to the allegations raised in the Formal Complaint. It will include:
- Evidence that is relevant, even if that evidence does not end up being relied upon by the institution in making a determination regarding responsibility;
- Inculpatory or exculpatory evidence (i.e. evidence that tends to prove or disprove the allegations) that is directly related to the allegations, whether obtained from a party or other source.
The institution will send the evidence made available for each party and each party’s advisor, if any, to inspect and review through an electronic format or a hard copy. The Institution is not under an obligation to use any specific process or technology to provide the evidence and shall have the sole discretion in terms of determining format and any restrictions or limitations on access.
The institution will provide the parties up to ten days to provide a response, after
which the investigator will not be required to accept a late submission. Prior to
completion of the investigative report, the Investigator must send to each party and
the party's advisor, if any, the evidence subject to inspection and review in an electronic
format or a hard copy, and the parties must have at least 10 days to submit a written
response, which the investigator will consider prior to completion of the investigative
report. The recipient must make all such evidence subject to the parties' inspection
and review available at any hearing to give each party equal opportunity to refer
to such evidence during the hearing, including for purposes of cross-examination;
Investigator has 10 additional business days to generate the final report or, alternatively, may provide the parties with written notice extending the investigation for days and explaining the reason for the extension.
Any evidence subject to inspection and review will be available at any hearing, including for purposes of cross-examination.
The parties and their advisors must sign an agreement not to disseminate any of the evidence subject to inspection and review or use such evidence for any purpose unrelated to the Title IX grievance process. See, 85 Fed. Reg. 30026, 30435 (May 19, 2020).
Inclusion of Evidence Not Directly Related to the Allegations
Evidence obtained in the investigation that is determined in the reasoned judgment of the investigator not to be directly related to the allegations in the Formal Complaint will not be disclosed, or may be appropriately redacted before the parties’ inspection to avoid disclosure of personally identifiable information of a student. Any evidence obtained in the investigation that is kept from disclosure or appropriately redacted will be documented in a “privilege log” that may be reviewed by the parties and their advisors, if any. See, 85 Fed. Reg. 30026, 30438 (May 19, 2020).
The Title IX Investigator designated by the Title IX Coordinator will create an Investigative Report that fairly summarizes relevant evidence, will and provide that Report to the parties at least 10 days prior the hearing in an electronic format or a hard copy for each party’s review and written response.
The Investigative Report is not intended to catalog all evidence obtained by the investigator, but only to provide a fair summary of that evidence.
Only relevant evidence (including both inculpatory and exculpatory – i.e. tending to prove and disprove the allegations - relevant evidence) will be referenced in the Investigative Report.
The investigator may redact irrelevant information from the Investigative Report when that information is contained in documents or evidence that is/are otherwise relevant. See, 85 Fed. Reg. 30026, 30304 (May 19, 2020).