Investigation
VII. Investigation
A. Informal Resolutions:
With the voluntary, informed, and written Consent of both parties, informal resolution may be attempted at any point prior to reaching a determination of responsibility in cases alleging violations of this policy.
1. Prior to any attempted informal resolution, both parties shall receive a written notice disclosing the allegations, the requirements of the informal resolution process including the preclusion of the parties from resuming a Formal Complaint arising from the same allegations, and any consequences resulting from participating in the informal resolution process, including the records that will be maintained or could be shared.
2. The University will not require as a condition of enrollment or continuing enrollment, or employment or continuing employment, or enjoyment of any other right, waiver of the right to an investigation and adjudication of Formal Complaints.
3. The University will not require the parties to participate in informal resolution, and may not offer informal resolution unless a Formal Complaint is filed.
4. All facilitators of informal resolutions will be properly trained.
5. At any time prior to agreeing to a resolution, any party has the right to withdraw from informal resolution and resume the grievance process with respect to the Formal Complaint.
6. The University will not allow an informal resolution process to resolve allegations that an employee sexually harassed a student.
B. Complaint:
1. Absent good cause, within 5 business days of the Title IX Coordinator's receipt of a report of Sexual Discrimination or Sexual Harassment, the Title IX Coordinator shall notify the Complainant and request a meeting. The Title IX Coordinator should provide written notice to the Complainant of his/her rights with regard to this process in advance of the interview with sufficient time to prepare for meaningful participation.
2. The Title IX Coordinator shall attempt to get a Formal Complaint from the Complainant.
a. Formal Complaint:
A Formal Complaint should include information related to the circumstances giving rise to the complaint, the dates of the alleged occurrences, names of witnesses, a request that the University investigate the allegation, and the Complainant’s physical or digital signature. A Formal Complaint may be filed with the Title IX Coordinator in person, by mail, or by electronic mail.
b. In the Absence of a Formal Complaint:
When the Complainant chooses not to provide a Formal Complaint but the Title IX Coordinator determines an investigation to be necessary, the Title IX Coordinator will sign and file a complaint alleging Sexual Discrimination and/or Harassment against a Respondent and requesting that the University investigate the allegation. When a Title IX Coordinator signs a Formal Complaint, such action is not taken on behalf of a Complainant, and the Title IX Coordinator does not become a party. The Title IX Coordinator must comply with requirements to be free from conflicts and bias.
3. Both before and during the pendency of the investigations, the Title IX Coordinator shall consult with the Complainant and Respondent and consider what, if any, Supportive
Measures may be necessary. (See Section III V.)
4. If the Title IX Coordinator determines that there is a need for an investigation, the Title IX Coordinator shall follow the procedures set forth in this policy to investigate and adjudicate the complaint.
5. All complaints will be documented in a complaint tracking document that includes names when available, regardless of whether an investigation is initiated. This document will be kept confidential by the Title IX Coordinator and information therein will only be shared with appropriate University personnel on a need-to-know basis.
C. Evaluating the Need for an Investigation:
1. When the Title IX Coordinator knows or reasonably should know of possible Sexual Harassment, immediate and appropriate steps must be taken to investigate or otherwise determine what occurred.
2. When a Complainant requests that no investigation into a particular incident be conducted or disciplinary action taken, the Title IX Coordinator will weigh that request against its obligation to provide a safe, non-discriminatory environment for all students, including the Complainant. (See Section VI.)
3. When a complaint is brought via hearsay, rumor, or other third-party sources, the Title IX Coordinator will conduct a preliminary inquiry to evaluate the complaint and to determine reasonable cause (i.e. determine if an investigation is warranted).
a. The Title IX Coordinator will consider only information that a reasonable person would find reliable and is Relevant.
b. The Title IX Coordinator will use substantial evidence standard in inquiries, which is less than a preponderance of the evidence and demands only that a given inference is reasonable and plausible, not necessarily the most probable.
c. Inquiries will be documented as part of the case file, regardless of whether an investigation is initiated.
4. When the Title IX Coordinator evaluates a complaint and does not find an allegation of Sexual Discrimination and/or Harassment that is so severe, perverse, and objectionably offensive so as to deny access to the Complainant to Cumberland’s educational programs or activities, the Title IX Coordinator will terminate all Title IX grievance procedures and promptly send written notice of the dismissal and reason(s) therefor simultaneously to the parties. The University may still pursue disciplinary action outside of Title IX procedures. Minimal requirements for dismissal include:
a. The conduct alleged in the Formal Complaint would not constitute Sexual Harassment as defined in Section III. S. even if proved;
b. The conduct alleged in the Formal Complaint did not occur in the recipient’s education program or activity;
c. The conduct alleged in the Formal Complaint did not occur against a person in the United States.
Any party can appeal the dismissal of the complaint directly to the Provost and Vice President for Academic Affairs by submitting a written appeal within three business days of receiving the notification of dismissal. The Provost and Vice President for Academic Affairs will determine if the facts warrant a Title IX investigation and will respond to the party in writing within three business days. The decision of the Provost and Vice President for Academic Affairs on this matter shall be final.
D. Cumberland will conduct an adequate, reliable and impartial investigation in a timely manner (See Section XV.), providing the Respondent and Complainant equitable rights during the investigative process.
E. All complaints of Sexual Discrimination and/or Harassment shall be presented to the Title IX Coordinator for investigation and appropriate disposition. A Deputy Title IX Coordinator must always inform the Title IX Coordinator of the receipt of a complaint.
F. Complaints involving Sexual Discrimination and/or Harassment will be investigated by the Title IX Coordinator, a Deputy Title IX Coordinator, or a qualified, sufficiently trained investigator appointed by the Title IX Coordinator.
G. Investigators shall receive training that satisfies the requirements of Title IX of the Education Amendments of 1972, the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, and the federal regulations implementing those statutes, as amended.
H. The Title IX Coordinator shall notify the President that an investigation is being initiated. When employees of the University are involved, the Provost, Vice President of Academic Affairs will also be notified.
I. During the course of the investigation, Cumberland will endeavor to gather sufficient evidence to reach a fair and impartial determination as to whether Sexual Discrimination or Sexual Harassment occurred and, if so, whether a hostile environment has been created that must be redressed.
J. Investigation:
1. The timeframe for conducting the investigation will vary based on the complexity of the investigation and the severity and extent of the alleged conduct (see Section XV.). The Title IX Coordinator should inform the parties of the status of the investigation on a periodic basis.
2. The burden of collecting evidence and proving a violation of policy is on the University, not on either party.
3. The Title IX Coordinator shall provide written notice to the Complainant and Respondent of the extent to which the University will allow an Advisor to advise the student in an investigation or student disciplinary proceeding. (See Section III. B.)
4. Both parties will be provided with a pre-investigation notice with sufficient details and with sufficient time to prepare a response before any initial interview, including:
a. the identities of the parties involved
b. the date, time, and location of the alleged incident
c. the specific violation alleged, and the range of sanctions that may apply for such violations
d. the conduct allegedly constituting the violation
e. any relevant Supportive Measures and the date such measures go into effect
f. informational notices regarding the equal rights of the parties, including the rights to:
i. Testify in-person
ii. Identify and have considered the testimony of a reasonable number of other witnesses
iii. Identify and have considered written evidence
iv. Similar and timely access to written statements and other evidence considered in the determination of the complaint
v. Equal access to review and comment upon any evidence or information independently developed by the investigator
vi. An Advisor as permitted under the policies outlined in Section III. B.
vii. Receive written notice of the determination of the complaint
viii. Appeal as outlined in Section X.
ix. Receive written notice of the outcome of an appeal, including any changes that were made to the previous determination
g. informational notices regarding this policy, including:
i. Access to this policy in its completion
ii. Retaliation is strictly prohibited and may be grounds for disciplinary measures, up to and including termination or expulsion.
iii. Confidentiality will be weighed under the polices outlined in Section VI.
iv. The University presumes the Respondent is not responsible for the reported Sexual Discrimination and/or Harassment unless and until the evidence supports a different determination.
v. Knowingly making false statements, including knowingly submitting false information during the resolution process, is strictly prohibited.
vi. The University reports Clery violations (Sexual Assault, Domestic Violence, Dating Violence, and Stalking) in ways compliant with the Clery Act.
5. The investigator shall inform all individuals interviewed during the investigation that retaliation is strictly prohibited and may be grounds for disciplinary measures, up to and including termination or expulsion. The investigator shall advise all interviewees that they should contact the investigator immediately if they believe they are being retaliated against.
6. Prior to all meetings and interviews a party is invited to, the party will receive written notice detailing the purpose of the meeting/interview; the date, time, and location of the meeting; and a list of all other participants in the meeting/interview.
7. The investigation shall include interviews with both the Complainant and Respondent, unless either declines an in-person interview.
a. The Complainant and Respondent shall be provided with the same opportunities to have others present during an interview, including the opportunity to be accompanied by the Advisor of their choice to any related meeting or proceeding.
b. The University will not limit the choice of Advisor for either the Complainant or Respondent; however, Advisors will be limited to an advising role only and may not otherwise participate in interview proceedings.
c. The Respondent will be notified in writing of the complaint before the investigator’s initial interview with the Respondent (see Section VII. K. 4.).
8. The Formal Complaint from the Complainant, or Title IX Coordinator will become part of the investigation report if necessary and will be kept in the case file.
9. A summary of the Respondent’s response to the complaint as taken by the investigator will be provided in writing for review by the Respondent. The Respondent will be asked to propose any changes necessary, with both the original document and the proposed changes being logged as the official statement. The statement, after reviewed by the Respondent, will become part of the investigation report if necessary and will be kept in the case file. No parts of this statement will be available for copy.
10. When either party declines an in-person interview, the refusal to participate will be noted in the case file, and the University will proceed based on the information available, including making final determinations
11. No audio or video recording of any kind is permitted during investigation meetings.
12. The investigator is expected to request a list of relevant witnesses and evidence from the Complainant and Respondent and take such into consideration.
a. Both the Complainant and the Respondent are permitted to provide other relevant evidence to the investigator. Evidence includes any facts or information presented in support of an assertion and may include text messages, email exchanges, timelines, receipts, photographs, etc. The investigator may also consider additional documents, items or other relevant information.
b. Any documentation shared by the Complainant or the Respondent with the investigator will be provided to the other party via the Title IX Coordinator’s periodic updates.
c. The Complainant and the Respondent both have the right to propose questions to one another. Questions deemed by the investigator as inappropriate will not be asked, and the requesting party (Complainant or Respondent) will be notified of why those questions were not asked.
d. The Complainant and the Respondent both have the right to propose questions to witnesses. Questions deemed by the investigator as inappropriate will not be asked, and the requesting party (Complainant or Respondent) will be notified of why those questions were not asked.
13. The investigation shall include interviews with relevant witnesses identified by the Complainant and Respondent and any other potential, Relevant witness made known to the investigator via other means. However, the investigator 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 school obtains that party’s voluntary, written Consent to do so.
14. The investigation shall include the gathering and reviewing of any documentary, electronic, physical, or other type of relevant evidence.
15. Evidence of a prior consensual dating or sexual relationship between the parties by itself does not imply Consent or preclude a finding of Sexual Discrimination and/or Harassment. Where the parties have a prior sexual relationship, and the existence of Consent is at issue, the sexual history between the parties may be Relevant to help understand the manner and nature of communications between the parties and the context of the relationship, which may have bearing on whether Consent was sought and given during the incident in question. However, this does not assume that the prior sexual history was consensual and this should be a factor in considering relevance.
16. The investigation shall not consider any evidence about the Complainant’s prior sexual conduct with anyone other than the Respondent. An individual’s character or reputation with respect to other sexual activity is not Relevant and will not be considered as evidence. Similarly, an individual’s prior or subsequent sexual activity is typically not Relevant and will only be considered as evidence under limited circumstances. For example, prior sexual history may be Relevant to explain the presence of a physical injury or to help resolve other questions raised by the report. The investigator will determine the relevance of this information.
17. Information that does not directly relate to the facts at issue, but instead reflects upon the reputation, personality, qualities, or habits of an individual is character evidence and is not relevant.
18. Evidence of occurrences of prohibited conduct so distinctive and so closely resembling either party’s version of the alleged encounter as to tend to prove a material fact (“pattern evidence”) may be considered. Where there is evidence of a pattern of similar prohibited conduct, either before or after the conduct in question, regardless of whether there has been a prior finding of a policy violation, this information may be deemed Relevant to the determination of policy violation or assigning of a sanction. Instances will be rare and the determination of relevance will be based on an assessment of whether the previous or subsequent incident was substantially similar to the conduct cited in the report or indicates a pattern of behavior and substantial conformity with that pattern.
19. No parties involved in the investigation will be required by Cumberland to sign a non-disclosure agreement, but all parties should recognize that the integrity of the investigation process can be harmed when witnesses discuss the case with one another. This may impact the University’s ability to reach a fair, impartial conclusion. Witnesses are recommended to seek advice from Advisors or confidential support services. All parties involved in an investigation should remember that all proceedings are private, and all persons are expected to maintain the privacy of the proceedings. While there is an expectation of privacy around what is discussed, the parties have discretion to share their own experiences with others if they so choose.
K. Notices required by this policy be will be sent via the student’s or employee’s official Cumberland email account. A notice sent to a student organization will be sent to the organization’s president and Advisor at those individuals’ Cumberland email address. Students and employees have the responsibility to regularly check their University-issued email accounts. Notices to third parties will be sent via the contact information available to the Title IX Coordinator. The requirement to provide notice will be satisfied when sent as indicated, and any period for response will begin on the date the email is sent.
L. Some instances of Sexual Discrimination and/or Harassment may also constitute criminal conduct. In such instances, the Complainant is also encouraged to file a report with local law enforcement and, if requested, the University will assist the Complainant in doing so to the extent the University is able. The pendency of a criminal investigation, however, does not relieve the University of its obligation to investigate Sexual Discrimination and/or Harassment.
NOTE: The standards for finding a violation of criminal law are different from the standards for finding a violation of this policy (i.e., “beyond a reasonable doubt” in criminal cases versus “Preponderance of Evidence” for purposes of this policy). As a result, the outcome of any criminal proceeding is not necessarily determinative of whether a violation of this policy has occurred.