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Dec 7, 2022
Title IX Sexual Harassment ...
Interim Resolution Process for Alleged Violations of the Policy on Sexual Harassment
College Hall B18
The Institution will act on any formal or informal notice/complaint of violation of the Policy that is received by the Title IX Coordinator or any other Official with Authority.
The procedures below, known as the Title IX Procedures apply only to qualifying allegations of sexual harassment (including sexual assault, dating violence, domestic violence, and stalking, as defined above) involving students, staff, teachers, administrators, or faculty members.
The procedures below may be used to address collateral misconduct arising from the investigation of or occurring in conjunction with alleged sexual harassment (e.g., vandalism, physical abuse of another). All other allegations of misconduct unrelated to allegations of sexual harassment as defined under the Policy will be addressed through procedures described in other applicable University and Clerc Center policies and procedures.
Upon receipt of a complaint or notice to the Title IX Coordinator of an alleged incident of sexual harassment under this Policy, the Title IX Coordinator initiates a prompt initial assessment to determine the next steps the Gallaudet or the Clerc Center needs to take.
The Title IX Coordinator will initiate at least one of three responses:
1) Offering only supportive measures because the Complainant does not want to file a formal complaint; and/or
2) An informal resolution (upon submission of a formal complaint); and/or
3) A Formal Grievance Process including an investigation and a hearing (upon submission of a formal complaint).
The Institution uses the Formal Grievance Process to determine whether or not the Policy has been violated. If so, the Institution will promptly implement effective remedies designed to ensure that it is not deliberately indifferent to sexual harassment or retaliation, their potential recurrence, or their effects.
Following receipt of notice or a complaint of an alleged incident of sexual harassment under this Policy, the Title IX Coordinator engages in an initial assessment, typically within one to five business days. The steps in an initial assessment can include:
Dismissal (Mandatory and Discretionary)
Gallaudet University or the Clerc Center must dismiss a formal complaint or any allegations therein if, at any time during the investigation or hearing, it is determined that:
Gallaudet University or the Clerc Center may dismiss a formal complaint or any allegations therein if, at any time during the investigation or hearing:
Upon any dismissal, Gallaudet University or the Clerc Center will promptly send written notice of the dismissal and the rationale for doing so simultaneously to the parties.
This dismissal decision is appealable by any party under the procedures for appeal below. A Complainant who asks to withdraw a complaint may later request to reinstate it or refile it.
Gallaudet University and the Clerc Center are obligated to ensure that the grievance process is not abused for retaliatory purposes. Gallaudet University and the Clerc Center permit the filing of counterclaims but uses an initial assessment, described above, to assess whether the allegations in the counterclaim are made in good faith. Counterclaims by a Respondent may be made in good faith, but are, on occasion, also made for purposes of retaliation. Counterclaims made with retaliatory intent will not be permitted.
Counterclaims determined to have been reported in good faith will be processed using the grievance procedures below. Investigation of such claims may take place after resolution of the underlying initial allegation, in which case a delay may occur.
Counterclaims may also be resolved through the same investigation as the underlying allegation, at the discretion of the Title IX Coordinator. When counterclaims are not made in good faith, they will be considered retaliatory and may constitute a violation of this policy.
Right to an Advisor
The parties may each have an Advisor of their choice present with them for all meetings, interviews, and hearings within the resolution process, if they so choose. The parties may select whoever they wish to serve as their Advisor as long as the Advisor is eligible and available.
Choosing an Advisor who is also a witness in the process creates potential for bias and conflict-of-interest. A party who chooses an Advisor who is also a witness can anticipate that issues of potential bias will be explored by the hearing Decision-maker(s).
a. Who Can Serve as an Advisor
The Advisor may be a friend, mentor, family member, attorney, or any other individual a party chooses to advise, support, and/or consult with them throughout the resolution process. The parties may choose Advisors from inside or outside of the Gallaudet University/Clerc Center community.
The Title IX Coordinator will also offer to assign an Advisor from a pool of available Institution employees for any party if the party so chooses.
If the parties choose an Advisor from outside the pool of those identified by the Institution, the Advisor may not have been trained by the Gallaudet or the Clerc Center and may not be familiar with the Institution’s policies and procedures
Parties also have the right to choose not to have an Advisor in the initial stages of the resolution process, prior to a hearing.
b. Advisor’s Role in Meetings and Interviews
The parties may be accompanied by their Advisor in all meetings and interviews at which the party is entitled to be present, including intake and interviews. Advisors should help the parties prepare for each meeting and are expected to advise ethically, with integrity, and in good faith.
The Institution cannot guarantee equal Advisory rights, meaning that if one party selects an Advisor who is an attorney, but the other party does not or cannot afford an attorney, the Institution is not obligated to provide an attorney.
c. Advisors in Hearings/University or Clerc Center-Appointed Advisor
Under U.S. Department of Education regulations under Title IX, a form of indirect questioning is required during the hearing, but must be conducted by the parties’ Advisors. The parties are not permitted to directly question each other or any witnesses. If a party does not have an Advisor for a hearing, the Institution will appoint a trained Advisor for the limited purpose of conducting any questioning of the other party and witnesses.
A party may reject this appointment and choose their own Advisor, but they may not proceed without an Advisor. If the party’s Advisor will not conduct questioning, Gallaudet University or the Clerc Center will appoint an Advisor who will do so thoroughly, regardless of the participation or non-participation of the advised party in the hearing itself. Extensive questioning of the parties and witnesses will also be conducted by the Decision-maker(s) during the hearing.
d. Advisor Violations of Gallaudet or the Clerc Center Policies
All Advisors are subject to the same Gallaudet or the Clerc Center policies and procedures, whether they are attorneys or not. Advisors are expected to advise their advisees without disrupting proceedings. Advisors should not address Gallaudet or the Clerc Center officials in a meeting or interview unless invited to (e.g., asking procedural questions). The Advisor may not make a presentation or represent their advisee during any meeting or proceeding and may not speak on behalf of the advisee to the Investigator(s) or other Decision-maker(s) except during a hearing proceeding, during cross-examination.
The parties are expected to ask and respond to questions on their own behalf throughout the investigation phase of the resolution process. Although the Advisor generally may not speak on behalf of their advisee, the Advisor may consult with their advisee, either privately as needed, or by conferring or passing notes during any resolution process meeting or interview. For longer or more involved discussions, the parties and their Advisors should ask for breaks to allow for private consultation.
Any Advisor who oversteps their role as defined by this policy will be warned only once. If the Advisor continues to disrupt or otherwise fails to respect the limits of the Advisor role, the meeting will be ended, or other appropriate measures implemented. Subsequently, the Title IX Coordinator will determine how to address the Advisor’s non-compliance and future role.
e. Sharing Information with the Advisor
The Institution expects that the parties may wish to have the Gallaudet or the Clerc Center share documentation and evidence related to the allegations with their Advisors. Parties may share this information directly with their Advisor or other individuals if they wish. Doing so may help the parties participate more meaningfully in the resolution process.
The Institution also provides a consent form that authorizes the Gallaudet or the Clerc Center to share such information directly with their Advisor. The parties must either complete and submit this form to the Title IX Coordinator or provide similar documentation demonstrating consent to a release of information to the Advisor before Gallaudet or the Clerc Center is able to share records with an Advisor.
f. Privacy of Records Shared with Advisor
Advisors are expected to maintain the privacy of the records shared with them. These records may not be shared with third parties, disclosed publicly, or used for purposes not explicitly authorized by Gallaudet University or the Clerc Center. Gallaudet or the Clerc Center may seek to restrict the role of any Advisor who does not respect the sensitive nature of the process or who fails to abide by Gallaudet or the Clerc Center’s privacy expectations.
g. Expectations of an Advisor
The Institution generally expects an Advisor to adjust their schedule to allow them to attend Gallaudet or the Clerc Center meetings when planned, but may change scheduled meetings to accommodate an Advisor’s inability to attend, if doing so does not cause an unreasonable delay.
The Institution may also make reasonable provisions to allow an Advisor who cannot attend in person to attend a meeting by telephone, video conferencing, or other similar technologies as may be convenient and available.
h. Expectations of the Parties with Respect to Advisors
A party may elect to change Advisors during the process and is not obligated to use the same Advisor throughout. The parties are expected to inform the Investigator(s) of the identity of their Advisor at least two (2) business days before the date of their first meeting with Investigators (or as soon as possible if a more expeditious meeting is necessary or desired).
The parties are expected to provide timely notice to the Title IX Coordinator if they change Advisors at any time. It is assumed that if a party changes Advisors, consent to share information with the previous Advisor is terminated, and a release for the new Advisor must be secured. Parties are expected to inform the Title IX Coordinator of the identity of their hearing Advisor at least two (2) business days before the hearing.
Resolution proceedings are private. All persons present at any time during the resolution process are expected to maintain the privacy of the proceedings in accordance with Gallaudet University or Clerc Center policy. Although there is an expectation of privacy around what Investigators share with parties during interviews, the parties have discretion to discuss the allegations under investigation with others if they so choose, with the exception of information the parties agree not to disclose related to Informal Resolution, discussed below. Gallaudet University and the Clerc Center encourage parties to discuss any sharing of information with their Advisors before doing so.
a. Informal Resolution
Informal Resolution can include two different approaches:
To initiate Informal Resolution, a Complainant needs to submit a formal complaint, as defined above. A Respondent who wishes to initiate Informal Resolution should contact the Title IX Coordinator.
It is not necessary to pursue Informal Resolution first in order to pursue a Formal Grievance Process, and any party participating in Informal Resolution can stop the process at any time and begin or resume the Formal Grievance Process.
Prior to implementing Informal Resolution, Gallaudet University or the Clerc Center will provide the parties with written notice of the reported misconduct and any sanctions or measures that may result from participating in such a process, including information regarding any records that will be maintained or shared by Gallaudet University or the Clerc Center.
Gallaudet University or the Clerc Center will obtain voluntary, written confirmation that all parties wish to resolve the matter through Informal Resolution before proceeding and will not pressure the parties to participate in Informal Resolution.
b. Alternate Resolution Mechanism
Alternate Resolution is an informal mechanism, including mediation, restorative practices, or other appropriate practices by which the parties reach a mutually agreed upon resolution of an allegation. All parties must consent to the use of an Alternate Resolution mechanism.
The Title IX Coordinator may look to the following factors to assess whether Alternate Resolution is appropriate, or which form of Alternate Resolution may be most successful for the parties:
The ultimate determination of whether Alternate Resolution is available or successful is to be made by the Title IX Coordinator. The Title IX Coordinator maintains records of any resolution that is reached, and failure to abide by the resolution agreement may result in appropriate responsive/disciplinary actions. Results of complaints resolved by Informal Resolution or Alternate Resolution are not appealable.
c. Respondent Accepts Responsibility for Alleged Violations
The Respondent may accept responsibility for all or part of the alleged policy violations at any point during the resolution process. If the Respondent indicates an intent to accept responsibility for all of the alleged misconduct, the formal process will be paused, and the Title IX Coordinator will determine whether Informal Resolution can be used according to the criteria above.
If Informal Resolution is applicable, the Title IX Coordinator will determine whether all parties and Gallaudet University or the Clerc Center are able to agree on responsibility, sanctions, and/or remedies. If so, the Title IX Coordinator implements the accepted finding that the Respondent is in violation of Gallaudet University or the Clerc Center policy and implements agreed-upon sanctions and/or remedies, in coordination with other appropriate administrator(s), as necessary.
This result is not subject to appeal once all parties indicate their written assent to all agreed upon terms of resolution. When the parties cannot agree on all terms of resolution, the Formal Grievance Process will resume at the same point where it was paused.
When a resolution is accomplished, the appropriate sanction or responsive actions are promptly implemented in order to effectively stop the sexual harassment or retaliation, prevent its recurrence, and remedy the effects of the discriminatory conduct, both on the Complainant and the community.
Grievance Process Pool
The Formal Grievance Process relies on a pool of administrators, faculty, teachers and/or staff (“the Pool”) to carry out the process. Members of the Pool are announced in an annual distribution of this policy to all students, parents/guardians of students, employees, prospective students, and prospective employees.
The list of Pool members and a description of the Pool will be listed on the Title IX website at a later date.
1. Pool Member Roles
Members of the Pool are trained annually, and can serve in in the following roles, at the direction of the Title IX Coordinator:
2. Pool Member Appointment
The Title IX Coordinator, in consultation with the Title IX Team, appoints the Pool , which acts with independence and impartiality. Although members of the Pool are typically trained in a variety of skill sets and can rotate amongst the different roles listed above in different cases, the Institution can also designate permanent roles for individuals in the Pool, using others as substitutes or to provide greater depth of experience when necessary. This process of role assignment may be the result of particular skills, aptitudes, or talents identified in members of the Pool that make them best suited to particular roles.
3. Pool Member Training
The Pool members receive annual training. This training includes, but is not limited to:
Specific training is also provided for Appeal Decision-makers and Chairs. All Pool members are required to attend these trainings annually. The materials used to train all members of the Pool are publicly posted on the Title IX website.
Formal Grievance Process: Notice of Investigation and Allegations
The Title IX Coordinator or designee will provide written notice of the investigation and allegations (the “NOIA”) to the Respondent upon commencement of the Formal Grievance Process. This facilitates the Respondent’s ability to prepare for the interview and to identify and choose an Advisor to accompany them. The NOIA is also copied to the Complainant, who is to be given advance notice of when the NOIA will be delivered to the Respondent.
The NOIA will include:
Amendments and updates to the NOIA may be made as the investigation progresses and more information becomes available regarding the addition or dismissal of various charges
Notice will be made in writing and may be delivered by one or more of the following methods: in person or emailed to the parties’ Gallaudet-issued email or designated accounts. Once emailed, and/or received in-person, notice will be presumptively delivered
The Institution will make a good faith effort to complete the resolution process, whether informal resolution or through the formal grievance process, within a sixty-to-ninety (60-90) business day time period, including appeal, which can be extended as necessary for appropriate cause by the Title IX Coordinator, who will provide notice and rationale for any extensions or delays to the parties as appropriate, as well as an estimate of how much additional time will be needed to complete the process.
Appointment of Investigators
Once the decision to commence a formal investigation is made, the Title IX Coordinator appoints one or more individuals to conduct the investigation within two (2) business days of determining that an investigation should proceed.
Any individual materially involved in the administration of the resolution process [including the Title IX Coordinator, Investigator(s), and Decision-maker(s)] may neither have nor demonstrate a conflict of interest or bias for a party generally, or for a specific Complainant or Respondent.
The Title IX Coordinator will vet the assigned Investigator(s) to ensure impartiality by ensuring there are no actual or apparent conflicts of interest or disqualifying biases. The parties may, at any time during the resolution process, raise a concern regarding bias or conflict of interest, and the Title IX Coordinator will determine whether the concern is reasonable and supportable. If so, another Investigator will be assigned and the impact of the bias or conflict, if any, will be remedied. If the source of the conflict of interest or bias is the Title IX Coordinator, concerns should be raised with the Executive Director, Human Resources.
The Formal Grievance Process involves an objective evaluation of all relevant evidence obtained, including evidence that supports that the Respondent engaged in a policy violation and evidence that supports that the Respondent did not engage in a policy violation. Credibility determinations may not be based solely on an individual’s status or participation as a Complainant, Respondent, or witness.
The Institution operates with the presumption that the Respondent is not responsible for the reported misconduct unless and until the Respondent is determined to be responsible for a policy violation by the applicable standard of proof.
Investigations are completed expeditiously, normally within thirty (30) business days, though some investigations may take weeks or even months, depending on the nature, extent, and complexity of the allegations, availability of witnesses, police involvement, etc.
The Institution will make a good faith effort to complete investigations as promptly as circumstances permit and will communicate regularly with the parties to update them on the progress and timing of the investigation.
Delays in the Investigation Process and Interactions with Law Enforcement
The Institution may undertake a short delay in its investigation (several days to a few weeks) if circumstances require. Such circumstances include but are not limited to: a request from law enforcement to temporarily delay the investigation, the need for language assistance, the absence of parties and/or witnesses, and/or accommodations for disabilities or health conditions.
The Institution will communicate in writing the anticipated duration of the delay and reason to the parties and provide the parties with status updates if necessary. The Institution will promptly resume its investigation and resolution process as soon as feasible. During such a delay, the Institution will implement supportive measures as deemed appropriate.
The Institution’s action(s) or processes are not typically altered or precluded on the grounds that civil or criminal charges involving the underlying incident(s) have been filed or that criminal charges have been dismissed or reduced.
Steps in the Investigation Process
All investigations are thorough, reliable, impartial, prompt, and fair. Investigations involve interviews with all available, relevant parties and witnesses; obtaining available, relevant evidence; and identifying sources of expert information, as necessary.
All parties have a full and fair opportunity, through the investigation process, to suggest witnesses and questions, to provide evidence and expert witnesses, and to fully review and respond to all evidence on the record.
The Investigator(s) typically take(s) the following steps, if not already completed (not necessarily in this order):
Role and Participation of Witnesses in the Investigation
Witnesses (as distinguished from the parties) who are employees of the Gallaudet or the Clerc Center are expected to cooperate with and participate in the Gallaudet or the Clerc Center’s investigation and resolution process. Student witnesses and witnesses from outside the Gallaudet or the Clerc Center community are encouraged to cooperate with Gallaudet or the Clerc Center investigations and to share what they know about a complaint.
Although in-person interviews for parties and all potential witnesses are ideal, circumstances (e.g., study abroad, summer break) may require individuals to be interviewed remotely. Skype, Zoom, FaceTime, WebEx, or similar technologies may be used for interviews if the Investigator(s) determine that timeliness or efficiency dictate a need for remote interviewing. The Institution will take appropriate steps to reasonably ensure the security/privacy of remote interviews.
Witnesses may also provide written or video statements in lieu of interviews or choose to respond to written questions, if deemed appropriate by the Investigator(s), though not preferred. If a witness submits a written or video statement but does not intend to be and is not present for cross examination at a hearing, their written statement may not be used as evidence.
Recording of Interviews
No unauthorized audio or video recording of any kind is permitted during investigation meetings. If Investigator(s) elect to audio and/or video record interviews, all involved parties must be made aware of audio and/or video recording.
In an investigation process where there is a need to protect all parties in bilingualism translation errors, video recording may support the investigator’s ability to transcribe parties’ statements with more accuracy. Parties must review the transcript of the translations and approve the final interpretations.
Evidentiary Considerations in the Investigation
The investigation does not consider: 1) incidents not directly related to the possible violation, unless they evidence a pattern; 2) questions and evidence about the Complainant’s sexual predisposition or prior sexual behavior, unless such questions and evidence about the Complainant’s prior sexual behavior are offered to prove that someone other than the Respondent committed the conduct alleged by the Complainant, or if the questions and evidence concern specific incidents of the Complainant’s prior sexual behavior with respect to the Respondent and are offered to prove consent.
Referral for Hearing
Provided that the complaint is not resolved through Informal Resolution, once the final investigation report is shared with the parties, the Title IX Coordinator will refer the matter for a hearing.
The hearing cannot be less than ten (10) business days from the conclusion of the investigation –when the final investigation report is transmitted to the parties and the Decision-maker–unless all parties and the Decision-maker agree to an expedited timeline.
The Title IX Coordinator will select an appropriate Decision-maker(s) from the Pool depending on whether the Respondent is an employee or a student.
Hearing Decision-maker Composition
The Institution will designate a single Decision-maker or a three-member panel from the Pool, at the discretion of the Title IX Coordinator. The single Decision-maker will also Chair the hearing. With a panel, one of the three members will be appointed Chair by the Title IX Coordinator.
The Decision-maker(s) will not have had any previous involvement with the investigation. The Title IX Coordinator may elect to have an alternate from the Pool sit in throughout the hearing process in the event that a substitute is needed for any reason.
Those who have served as Investigators will be witnesses in the hearing and therefore may not serve as Decision-makers. Those who are serving as Advisors for any party may not serve as Decision-makers in that matter.
The Title IX Coordinator will not serve as a Decision-maker or Chair in the matter but may serve as an administrative facilitator of the hearing if necessary, and if their previous role(s) in the matter do not create a conflict of interest. Otherwise, a designee may fulfill this role. The hearing will convene at a time determined by the Chair or designee.
Evidentiary Considerations in the Hearing
Any evidence that the Decision-maker(s) determine(s) is relevant and credible may be considered. The hearing does not consider: 1) incidents not directly related to the possible violation, unless they evidence a pattern; 2) questions and evidence about the Complainant’s sexual predisposition or prior sexual behavior, unless such questions and evidence about the Complainant’s prior sexual behavior are offered to prove that someone other than the Respondent committed the conduct alleged by the Complainant, or if the questions and evidence concern specific incidents of the Complainant’s prior sexual behavior with respect to the Respondent and are offered to prove consent.
Previous disciplinary action of any kind involving the Respondent may be considered in determining an appropriate sanction upon a determination of responsibility. This information is only considered at the sanction stage of the process and is not shared with the Decision-maker(s) until then.
The parties may each submit a written impact statement prior to the hearing for the consideration of the Decision-maker(s) at the sanction stage of the process when a determination of responsibility is reached.
After post-hearing deliberation, the Decision-maker(s) renders a determination based on the preponderance of the evidence; whether it is more likely than not that the Respondent violated the Policy as alleged.
Notice of Hearing
No less than ten (10) business days prior to the hearing, the Title IX Coordinator or the Chair will send notice of the hearing to the parties. Once emailed, and/or received in-person, notice will be presumptively delivered.
The notice will contain:
Hearings for possible violations that occur near or after the end of an academic term (assuming the Respondent is still subject to this Policy) and are unable to be resolved prior to the end of term will typically be held immediately after the end of the term or during the summer/winter break, as needed, to meet the resolution timeline followed by Gallaudet or the Clerc Center and remain within the 60-90 business day goal for resolution.
In these cases, if the Respondent is a graduating student, a hold may be placed on graduation and/or official transcripts until the matter is fully resolved (including any appeal). A student facing charges under this Policy is not in good standing to graduate.
Alternative Hearing Participation Options
If a party or parties cannot attend the hearing in person, the party should request alternative arrangements from the Title IX Coordinator or the Chair at least five (5) business days prior to the hearing. The Title IX Coordinator or Chair has the sole discretion to grant or deny the request.
The Title IX Coordinator or the Chair can arrange to use technology to allow remote testimony without compromising the fairness of the hearing. Remote options may also be needed for witnesses who cannot appear in person. Any witness who cannot attend in person should let the Title IX Coordinator or the Chair know at least five (5) business days prior to the hearing so that the request for remote testimony may be considered and appropriate arrangements can be made.
The Title IX Coordinator can make arrangements to use technology to allow remote testimony in such instances where the University campus is not open for normal business (such as when the University is open for online learning only) or during the summer/winter break.
The Title IX Coordinator will provide to the Parties the names of persons who will be participating in the hearing, and ensure that the Parties have received a copy of all evidence directly related to the allegations, and the final investigation report at least ten (10) business days prior to the hearing.
Any witness scheduled to participate in the hearing must have been first interviewed by the Investigator(s) or have proffered a written or video statement or answered written questions unless all parties and the Chair assent to the witness’s participation in the hearing. The same holds for any evidence that is first offered at the hearing. If the parties and Chair do not assent to the admission of evidence newly offered at the hearing, the Chair may delay the hearing and instruct that the investigation needs to be re-opened to consider that evidence.
The parties will be given a list of the names of the Decision-maker(s) at least five (5) business days in advance of the hearing. All objections to any Decision-maker must be raised in writing, detailing the rationale for the objection, and must be submitted to the Title IX Coordinator as soon as possible and no later than two (2) days prior to the hearing. Decision-makers will only be removed if the Title IX Coordinator concludes that their bias or conflict of interest precludes an impartial hearing of the allegation(s).
The Title IX Coordinator will give the Decision-maker(s) a list of the names of all parties, witnesses, and Advisors at least five (5) business days in advance of the hearing. Any Decision-maker who cannot make an objective determination must recuse themselves from the proceedings when notified of the identity of the parties, witnesses, and Advisors in advance of the hearing. If a Decision-maker is unsure of whether they have a bias or conflict of interest, they must raise the concern to the Title IX Coordinator as soon as possible.
During the ten (10) business day period prior to the hearing, the parties have the opportunity for continued review and comment on the final investigation report. That review and comment can be shared with the Chair at the pre-hearing meeting or at the hearing and will be exchanged between each party by the Chair.
The Chair may convene a pre-hearing meeting(s) with the parties and/or their Advisors to invite them to submit the questions or topics they (the parties and/or their Advisors) wish to ask or discuss at the hearing, so that the Chair can rule on their relevance ahead of time to avoid any improper evidentiary introduction in the hearing or provide recommendations for more appropriate phrasing. However, this advance review opportunity does not preclude the Advisors from asking a question for the first time at the hearing or from asking for a reconsideration based on any new information or testimony offered at the hearing. The Chair must document and share with each party their rationale for any exclusion at a pre-hearing meeting.
At each pre-hearing meeting with a party and their Advisor, the Chair will consider arguments that evidence identified in the final investigation report as relevant is, in fact, not relevant. Similarly, evidence identified as directly related but not relevant by the Investigator(s) may be argued to be relevant.
The Chair may rule on these arguments pre-hearing and will exchange those rulings between the parties prior to the hearing to assist in preparation for the hearing. The Chair may consult with legal counsel and/or the Title IX Coordinator or ask either or both to attend pre-hearing meetings.
The pre-hearing meeting(s) may be recorded. In investigation process where there is a need to protect all parties in bilingualism translation errors, video recording may support the investigator’s ability to transcribe parties’ statements with more accuracy. Parties must review the transcript of the translations and approve the final interpretations.
At the hearing, the Decision-maker(s) has the authority to hear and make determinations on all allegations of sexual harassment and/or retaliation and may also hear and make determinations on any additional alleged policy violations that have occurred in concert with the sexual harassment and/or retaliation, even though those collateral allegations may not specifically fall within the Policy.
Participants at the hearing will include the Chair, any additional Decision-makers, the Investigator(s) who conducted the investigation, the parties, Advisors to the parties, any called witnesses and anyone providing authorized accommodations or assistive services.
The Chair will answer all questions of procedure. Anyone appearing at the hearing to provide information will respond to questions on their own behalf.
The Chair will allow witnesses who have relevant information to appear at a portion of the hearing in order to respond to specific questions from the Decision-maker(s) and the parties and will then be excused.
In hearings involving more than one Respondent or in which two (2) or more Complainants have accused the same individual of substantially similar conduct, the default procedure will be to hear the allegations jointly.
However, the Title IX Coordinator may permit the investigation and/or hearings pertinent to each Respondent to be conducted separately if there is a compelling reason to do so. In joint hearings, separate determinations of responsibility will be made for each Respondent with respect to each alleged policy violation.
The Order of the Hearing – Introductions and Explanation of Procedure
The Chair explains the procedures and introduces the participants. This may include a final opportunity for challenge or recusal of the Decision-maker(s) on the basis of bias or conflict of interest. The Chair will rule on any such challenge unless the Chair is the individual who is the subject of the challenge, in which case the Title IX Coordinator will review and decide the challenge.
At the hearing, recording, witness logistics, party logistics, curation of documents, separation of the parties, and other administrative elements of the hearing process are managed by the hearing Chair. The hearing Chair may attend to: logistics of rooms for various parties/witnesses as they wait; flow of parties/witnesses in and out of the hearing space; ensuring recording and/or virtual conferencing technology is working as intended; copying and distributing materials to participants, as appropriate, etc.
Investigator Presents the Final Investigation Report
The Investigator(s) will then present a summary of the final investigation report, including items that are contested and those that are not, and will be subject to questioning by the Decision-maker(s) and the parties (through their Advisors). The Investigator(s) will be present during the entire hearing process, but not during deliberations.
Neither the parties nor the Decision-maker(s) should ask the Investigator(s) their opinions on credibility, recommended findings, or determinations, and the Investigators, Advisors, and parties will refrain from discussion of or questions about these assessments. If such information is introduced, the Chair will direct that it be disregarded.
Testimony and Questioning
Once the Investigator(s) present their report and are questioned, the parties and witnesses may provide relevant information in turn, beginning with the Complainant, and then in the order determined by the Chair. The parties/witnesses will submit to questioning by the Decision-maker(s) and then by the parties through their Advisors (“cross-examination”).
All questions are subject to a relevance determination by the Chair. The Advisor, who will remain seated during questioning, will pose the proposed question orally, electronically, or in writing (orally is the default, but other means of submission may be permitted by the Chair upon request if agreed to by all parties and the Chair), the proceeding will pause to allow the Chair to consider it (and state it if it has not been stated aloud), and the Chair will determine whether the question will be permitted, disallowed, or rephrased.
The Chair may invite explanations or persuasive statements regarding relevance with the Advisors, if the Chair so chooses. The Chair will then state their decision on the question for the record and advise the party/witness to whom the question was directed, accordingly. The Chair will explain any decision to exclude a question as not relevant, or to reframe it for relevance.
The Chair will limit or disallow questions on the basis that they are irrelevant, unduly repetitious (and thus irrelevant), or abusive. The Chair has final say on all questions and determinations of relevance. The Chair may consult with legal counsel on any questions of admissibility. The Chair may ask Advisors to frame why a question is or is not relevant from their perspective but will not entertain argument from the Advisors on relevance once the Chair has ruled on a question.
If the parties raise an issue of bias or conflict of interest of an Investigator or Decision-maker at the hearing, the Chair may elect to address those issues, consult with legal counsel, and/or refer them to the Title IX Coordinator, and/or preserve them for appeal. If bias by an Investigator or the Title IX Coordinator has not been raised as an issue by the parties, the Chair should not permit irrelevant questions that probe for bias on the part of an Investigator or the Title IX Coordinator.
Refusal to Submit to Cross-Examination and Inferences
If a party or witness chooses not to submit to cross-examination at the hearing, either because they do not attend the hearing, or because they attend but refuse to participate in some or all questioning, then the Decision-maker(s) may rely on any relevant information available through the investigation and hearing in making the ultimate determination of responsibility. Evidence provided that is something other than a statement by the party or witness may also be considered.
The Decision-maker(s) may not draw any inference solely from a party’s or witness’s absence from the hearing or refusal to answer cross-examination or other questions.
Hearings (but not deliberations) are recorded by the Institution for purposes of review in the event of an appeal. The parties may not record the proceedings and no other unauthorized recordings are permitted.
The Decision-maker(s), the parties, their Advisors, and appropriate administrators of the Institution will be permitted to watch/listen to the recording in a controlled environment determined by the Title IX Coordinator. No person will be given or be allowed to make a copy of the recording without permission of the Title IX Coordinator.
Deliberation, Decision-making, and Standard of Proof
The Decision-maker(s) will deliberate in closed session to determine whether the Respondent is responsible or not responsible for the policy violation(s) in question. If a panel is used, a simple majority vote is required to determine the finding. The preponderance of the evidence standard of proof is used.
When there is a finding of responsibility on one or more of the allegations, the Decision-maker(s) may then consider the previously submitted party impact statements in determining appropriate sanction(s).
The Chair will ensure that each of the parties has an opportunity to review any impact statement submitted by the other party(ies). The Decision-maker(s) may – at their discretion – consider the statements, but they are not binding.
The Decision-maker(s) will review the statements and any pertinent conduct history provided by the appropriate administrator and will determine the appropriate sanction(s) in consultation with other appropriate administrators, as required.
The Chair will then prepare a written deliberation statement and deliver it to the Title IX Coordinator, detailing the determination, rationale, the evidence used in support of its determination, the evidence not relied upon in its determination, credibility assessments, and any sanctions.
This report must be submitted to the Title IX Coordinator within five (5) business days of the end of deliberations, unless the Title IX Coordinator grants an extension. If an extension is granted, the Title IX Coordinator will notify the parties.
Notice of Outcome
Using the deliberation statement, the Title IX Coordinator will work with the Chair to prepare a Notice of Outcome. The Title IX Coordinator will then share the letter, including the final determination, rationale, and any applicable sanction(s) with the parties and their Advisors within 7 business days of receiving the Decision-maker(s)’ deliberation statement.
The Notice of Outcome will then be shared with the parties simultaneously. Notification will be made in writing and may be delivered by one or more of the following methods: in person, or emailed to the parties’ University-issued email or otherwise approved account. Once emailed and/or received in-person, notice will be presumptively delivered.
The Notice of Outcome will articulate the specific policy(ies) reported to have been violated, including the relevant policy section, and will contain a description of the procedural steps taken by Gallaudet or the Clerc Center from the receipt of the misconduct report to the determination, including any and all notifications to the parties, interviews with parties and witnesses, site visits, methods used to obtain evidence, and hearings held.
The Notice of Outcome will specify the finding on each alleged policy violation; the findings of fact that support the determination; conclusions regarding the application of the relevant policy to the facts at issue; a statement of, and rationale for, the result of each allegation; any sanctions issued; and any remedies provided to the Complainant designed to ensure access to the Gallaudet or the Clerc Center’s educational or employment program or activity, to the extent Gallaudet or the Clerc Center is permitted to share such information under state or federal law (this detail is not typically shared with the Respondent unless the remedy directly relates to the Respondent).
The Notice of Outcome will also include information on when the results are considered by Gallaudet or the Clerc Center to be final, any changes that occur prior to finalization, and the relevant procedures and bases for any available appeal options.
Sanctions and Remedies
Not all forms of sexual harassment will be deemed to be equally serious offenses, and the University reserves the right to impose different sanctions, ranging from verbal warning to expulsion, depending on the severity of the offense. The Institution will consider the concerns and rights of both the complainant and the respondent. The disciplinary action should be consistent with the severity of the offense. Sanctions may include educational, restorative, rehabilitative and/or punitive components. Attempts to commit acts prohibited by the Sexual Harassment Policy may be disciplined to the same extent as completed violations.
The following sanctions may be imposed for violations of the Sexual Harassment Policy. The panel may impose other sanctions instead of or in addition to those specified below, as deemed appropriate.
The following sanctions may be imposed for violations of the Sexual Harassment Policy. The panel may impose other sanctions instead of or in addition to those specified below, as deemed appropriate. Faculty may have additional processes available to them before sanctions become effective.
Sanctions or corrective actions may also be imposed in accordance with relevant policies and/or procedures and other requirements set forth in the Administrations and Operations Manual, Faculty Handbook, Supervisor’s Handbook, and other policies or handbooks that may be developed over time, or contracts.
It should be noted that compliance with the Violence Against Women’s Act (VAWA) or the Clery Act does not violate the Family Educational Rights and Privacy Act (FERPA). The University can disclose to student complainants the final determination of any investigation or disciplinary process involving a “sex offense”, including any sanction that is imposed against the respondent.
Withdrawal or Resignation While Charges Pending
Students: If a student has an allegation pending for violation of the Policy, the Gallaudet University or the Clerc Center may place a hold on a student’s ability to graduate and/or to receive an official transcript/diploma.
Should a student decide to not participate in the resolution process, the process proceeds absent their participation to a reasonable resolution. Should a student Respondent permanently withdraw from Gallaudet University or the Clerc Center, the resolution process ends, as the Gallaudet University or the Clerc Center no longer has disciplinary jurisdiction over the withdrawn student.
However, Gallaudet University or the Clerc Center will continue to address and remedy any systemic issues, variables that may have contributed to the alleged violation(s), and any ongoing effects of the alleged sexual harassment and/or retaliation. The student who withdraws or leaves while the process is pending may not return to the Gallaudet University or the Clerc Center. Such exclusion applies to all campuses of Gallaudet University and/or the Clerc Center. A hold will be placed on their ability to be readmitted. They may also be barred from the Institution’s property and/or events.
If the student Respondent only withdraws or takes a leave for a specified period of time (e.g., one semester or term), the resolution process may continue remotely and that student is not permitted to return to Gallaudet University or the Clerc Center unless and until all sanctions have been satisfied.
Employees: Should an employee Respondent resign with unresolved allegations pending, the resolution process ends, as Gallaudet University or the Clerc Center no longer has disciplinary jurisdiction over the resigned employee.
However, Gallaudet University and the Clerc Center will continue to address and remedy any systemic issues, variables that contributed to the alleged violation(s), and any ongoing effects of the alleged harassment or retaliation.
The employee who resigns with unresolved allegations pending is not eligible for rehire with Gallaudet University or the Clerc Center, and the records retained by the Title IX Coordinator will reflect that status.
All Gallaudet University and the Clerc Center responses to future inquiries regarding employment references for that individual will include that the former employee resigned during a pending disciplinary matter.
Both parties have equal rights to an impartial appeal and to participate equally in the appeal process, even if the party is not the appealing party. Either party may appeal the outcome determination and/or the sanctions imposed to an appeal officer identified by the Title IX Coordinator. Appeal officers are specially trained in their roles related to the adjudication of sexual harassment allegations, and receive annual training on the Sexual Harassment Policy and Procedures as well as on topics relevant to the adjudication of sexual harassment allegations. The appeal officer selected to review an appeal will vary based upon the respondent’s role/relationship with the University. The Provost (and the FAC Committee, if applicable – refer to the Title IX Faculty Procedures for Severe Sanctions in the Faculty Handbook) will handle faculty appeals; the appropriate staff divisional senior administrator or Provost (or their designee) will handle staff appeals; and the Dean of Student Affairs (or their designee) will handle student appeals. The appeal officer must be impartial and free from bias or conflict of interest; otherwise they must rescue themselves from the appeal process. In such instances the Title IX Coordinator will identify an alternate appeal officer.
The purpose of the appeal is not to initiate a review of substantive issues of fact, or a new determination of whether a violation of University rules has occurred. Dissatisfaction with the outcome determination is not grounds for appeal. In any request for an appeal, the burden of proof lies with the party requesting the appeal. The appeal to the appeals officer (or their designee) must be in writing or video, and submitted within seven (7) business days of the date of the Notice of Outcome based on the following grounds listed below. This review is not a review of the merits of the appeal, but solely a determination as to whether the request meets the grounds and is timely filed.
Appeals are limited to the following grounds:
The review of the appeal will be narrowly tailored to the above stated appeal grounds. The appeal must provide a rationale for the appeal and adequate information, including documentation, in support of the grounds for appeal. The appeals officer will provide a copy of the written appeal and any supporting documentation to the other party, and the other party may submit a written response on the appeal within seven business days of the date the appeal information was received. A copy of other party’s response will be sent to the appealing party as well.
The appeals officer will consider the merits of an appeal only on the basis of the four available grounds of appeal. The appeals officer will first consider whether an appeal was timely filed and if so, whether the appeal is properly framed on the three appeal grounds. If the appeal officer determines that the appeal does not properly fit within one of the four grounds, the appeal will be denied.
Except as required to explain the basis of new evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made or the sanction was clearly inappropriate and/or disproportionate to the conduct for which the person was found responsible, the review of the appeal will be limited to the written investigation report with all supporting documents and the recording from the hearing. The appeals officer may consult with the Title IX Coordinator, investigator, and/or Hearing Chair in making the appeal determination. The appeal officer has the authority to determine the relevance, strength, and value of the information provided, and/or the appropriateness of the sanction(s) issued. The Appeal Officer will render a decision in no more than 7 business days, barring exigent circumstances. All decisions apply the preponderance of the evidence standard.
A Notice of Appeal Outcome will be sent to all parties simultaneously including the decision on each approved ground and rationale for each decision. The Notice of Appeal Outcome will specify the finding on each ground for appeal, any specific instructions for remand or reconsideration, any sanctions that may result which the Gallaudet University or the Clerc Center is permitted to share according to state or federal law, and the rationale supporting the essential findings to the extent Gallaudet University or the Clerc Center is permitted to share under D.C. or federal law.
Notification will be made in writing and may be delivered by one or more of the following methods: in person or emailed to the parties’ Gallaudet-issued email or otherwise approved account. Once emailed and/or received in-person, notice will be presumptively delivered.
Sanctions Status During the Appeal
Any sanctions imposed as a result of the hearing are stayed during the appeal process. Supportive measures may be reinstated, subject to the same supportive measure procedures above. If any of the sanctions are to be implemented immediately post-hearing, but pre-appeal, then emergency removal procedures (detailed above) for a hearing on the justification for doing so must be permitted within 48 hours of implementation.
Gallaudet or the Clerc Center may still place holds on official transcripts, diplomas, graduations, and course registration pending the outcome of an appeal when the original sanctions included separation.
Long-Term Remedies/Other Actions
Following the conclusion of the resolution process, and in addition to any sanctions implemented, the Title IX Coordinator may implement additional long-term remedies or actions with respect to the parties and/or the campus community that are intended to stop the sexual harassment and/or retaliation, remedy the effects, and prevent reoccurrence.
These remedies/actions may include, but are not limited to:
At the discretion of the Title IX Coordinator, certain long-term support or measures may also be provided to the parties even if no policy violation is found. When no policy violation is found, the Title IX Coordinator will address any remedies owed by the Institution to the Respondent to ensure no effective denial of educational access. The Institution will maintain the privacy of any long-term remedies/actions/measures, provided privacy does not impair the Institution’s ability to provide these services.
Failure to Comply with Sanctions and/or Interim and Long-term Remedies and/or Responsive Actions
All Respondents are expected to comply with the assigned sanctions, responsive actions, and/or corrective actions within the timeframe specified by the final Decision-maker(s) (including the Appeal Officer).
Failure to abide by the sanction(s)/action(s) imposed by the date specified, whether by refusal, neglect, or any other reason, may result in additional sanction(s)/action(s), including suspension, expulsion, and/or termination from Gallaudet University or the Clerc Center.
A suspension will only be lifted when compliance is achieved to the satisfaction of the Title IX Coordinator.
The Institution will maintain for a period of at least seven years records of:
The Institution will also maintain any and all records in accordance with D.C. and federal laws.
Disabilities Accommodations in the Resolution Process
The Institution are committed to providing reasonable accommodations and support to qualified students, employees, or others with disabilities to ensure equal access to the Institution’s resolution process.
Anyone needing such accommodations or support should contact the Office of Students with Disabilities (OSWD) or the Equal Opportunity Programs (EOP) Office who will review the request and, in consultation with the person requesting the accommodation and the Title IX Coordinator, determine which accommodations are appropriate and necessary for full participation in the process.
Revision of this Policy and Procedures
This Policy and procedures supersede any previous policy(ies) addressing harassment, sexual misconduct and/or retaliation under Title IX and will be reviewed and updated annually by the Title IX Coordinator. Gallaudet University and the Clerc Center reserve the right to make changes to this document as necessary, and once those changes are posted online, they are in effect.
During the resolution process, the Title IX Coordinator may make minor modifications to procedures that do not materially jeopardize the fairness owed to any party, such as to accommodate summer schedules. The Title IX Coordinator may also vary procedures materially with notice (on the institutional website, with the appropriate effective date identified) upon determining that changes to law or regulation require policy or procedural alterations not reflected in this Policy and procedures.
If government laws or regulations change – or court decisions alter – the requirements in a way that impacts this document, this document will be construed to comply with the most recent government regulations or holdings.
This document does not create legally enforceable protections beyond the protection of the background state and federal laws which frame such policies and codes, generally.
This Policy and procedures are effective August 14, 2020.
Approved by: Gallaudet University Administration
THE SEXUAL HARASSMENT POLICY WAS DEVELOPED IN PART FROM THE USE AND ADAPTATION OF THE ATIXA 2020 INTERIM MODEL SEXUAL HARASSMENT POLICIES AND PROCEDURES WITH CITATION TO ATIXA IS PERMITTED THROUGH A LIMITED LICENSE TO GALLAUDET UNIVERSITY AND THE CLERC CENTER. ALL OTHER RIGHTS RESERVED. ©2020. ATIXA.
SOME MATERIAL WAS ALSO DEVELOPED IN PART FROM THE USE AND ADAPTION OF THE SUNY STUDENT CONDUCT INSTITUTE MODEL TITLE IX POLICY FOR MEMBERS OF THE STUDENT CONDUCT INSTITUTE, WHICH GALLAUDET UNIVERSITY IS A MEMBER. ©2020 THE STATE UNIVERSITY OF NEW YORK
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