3-39 Sexual and Gender-Based Misconduct Policy

Attachments are included in the PDF file.

• Effective date of this revision: January 27, 2025
• Contact for More Information: Office of Civil Rights and Institutional Equity

BACKGROUND 

Central Michigan University is committed to equal educational and employment opportunity and to the elimination of all forms of prohibited discrimination. Furthermore, CMU is committed to maintaining respectful, safe, and non- threatening educational, working, and living environments. As such, CMU is firmly devoted to maintaining its longstanding commitment to a campus environment free from Sexual and Gender-Based Misconduct, including sexual and gender-based harassment and sexual assault.

PURPOSE

CMU strives to cultivate a healthy and diverse community that recognizes the value of each individual and helps foster safety, civility and respect for all people.  As part of this effort, CMU will strive to eradicate Sexual and Gender-Based Misconduct through primary prevention and on-going awareness programs, education, training, clear policies, and serious consequences for acts of Sexual and Gender-Based Misconduct. Sexual and Gender-Based Misconduct will not be tolerated by CMU and is expressly prohibited.

Members of the CMU Community have the right to be free from sexual and gender-based discrimination, harassment, violence, and all other forms of prohibited conduct described in this Policy. All members of the Community are expected to conduct themselves in a manner that does not infringe upon the rights of others. This Policy has been developed to reaffirm these principles and to provide accountability for conduct that violates this Policy.

The Sexual and Gender-Based Misconduct Policy (the “Policy”) provides information regarding how CMU will proceed once it becomes aware of allegations of Sexual and Gender-Based Misconduct or Title IX of the Education Amendments of 1972 (“Title IX”), which is a federal law that protects people from discrimination based on sex in education programs or activities that receive federal financial assistance in order to assist in the prevention or the recurrence of Sexual and Gender-Based Misconduct, remedy its effects, promote safety, and deter individuals from similar future behavior.

DEFINITIONS

Actual Knowledge means notice of Covered Behavior, including Title IX sexual harassment or allegations of sexual harassment to CMU’s Title IX Coordinator or any designated official who has authority to institute corrective measures.

Advisor means a person chosen by a party or provided by the institution who accompanies the Complainant or Respondent throughout the duration of a Sexual and Gender-Based Misconduct claim to provide them with support and advice. The Advisor’s role is to support and advise the party, and the Advisor cannot actively participate in the process on their advisee’s behalf, except at a hearing for a Title IX Complaint. In a Title IX hearing, the Advisor’s role is limited to cross- examination of the other Party and witnesses only.  The Advisor cannot make opening or closing statements, ask questions of their own advisees, object to questions, or engage in advocacy other than to cross-examine the other Party or Witnesses.  In a non-Title IX hearing, the Advisor’s role is limited to providing support and advice to their advisee only, and the Advisor may not actively participate in the hearing.

Appeal Officer means the person who receives and reviews an appeal.

Campus means CMU-owned or CMU-leased property, streets, and pathways contiguous to University property, or in the immediate vicinity of CMU property. It also includes the property, facilities, and leased premises of organizations recognized by CMU, including CMU Housing and CMU-Recognized Housing.

Campus Security Authority (CSA) means a designated University official who has an obligation under the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act to report certain crimes and sexual misconduct.

Clery Act means the federal Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, a federal statute requiring colleges and universities participating in federal financial aid programs to maintain and disclose campus crime statistics and security information. Defines Campus Security Authorities and the grievance process requirements for sexual assault, intimate partner violence and stalking.

CMU or the University means Central Michigan University.

CMU Housing means housing owned or operated by CMU, such as residence halls and apartments.

CMUPD means the Central Michigan University Police Department.

CMU-Recognized Housing means housing not owned by CMU but where recognized student organizations dwell, including recognized fraternity and sorority chapter dwellings.

Coercion means the improper use of pressure to compel another individual to initiate or continue sexual activity against the individual’s will. Coercion may include intimidation, manipulation, threats and blackmail. Words or conduct may constitute coercion if they wrongfully impair another individual’s freedom of will and ability to choose whether to engage in sexual activity.

Complainant means a person allegedly subjected to either Covered Behavior or Retaliation or an individual who is alleged to be the victim of conduct that could constitute sexual harassment.

Confidential means a category of information that, when disclosed to someone on a specific list of individuals, may only be shared if there is an imminent threat of harm to self or others.

Confidential Resources means:

• an employee whose communications are privileged or confidential under Federal or State law. The employee’s confidential status, for purposes of this Policy, is only with respect to information received while the employee is functioning within the scope of their duties to which privilege or confidentiality applies; or
• a CMU employee who has been designated as confidential under this Policy for the purpose of providing services to persons related to sex and gender-based discrimination, harassment, or retaliation.  If the employee also has a duty not associated with providing these services, the employee’s confidential status only applies with respect to information received about sex and gender-based discrimination, harassment, or retaliation in connection with providing these services; or
• A CMU employee who is conducting an Institutional Review Board-approved human-subjects research study designed to gather information about sex and gender-based discrimination, harassment, or retaliation. The employee’s confidential status only applies with respect to information received while conducting the study.

Confidential Resource include: 

• CMU Counseling Center;
• CMU Sexual Aggression Peer Advocates (SAPA);
• Carls Center for Clinical Care and Education;
• CMU Psychological Training and Consultation Center;
• CMU Center for Community Counseling and Development;
• healthcare providers, including medical professionals at CMU's University Health Services, providing related health care services;
• CMU Ombuds Office.

Consent means affirmative, conscious decision by a participant to engage in sexual activity. Consent must be freely and voluntarily given with knowledge of the nature of the act or transaction involved. CMU will consider the following when evaluating whether the Complainant has given Consent:

• Level of mutual understanding of the nature and scope of the act to which the individual Consented and a willingness to do the same thing, at the same time, in the same way;
• Whether Consent was obtained through the use of force, coercion, threats, or intimidation, or by taking advantage of the Incapacitation of another individual;
• Whether communication regarding Consent used mutually understandable words and/or actions that indicated an unambiguous willingness to engage in sexual activity. If there is no evidence of clear communication or outward demonstration, CMU will find that Consent was not given.
• Whether Complainant withdrew Consent; and/or
• Whether, once withdrawn, the sexual activity ceased immediately and/or all parties received mutually expressed or clearly stated Consent before continuing further sexual activity.
• CMU will not consider Consent to one form of sexual contact as Consent to all forms of sexual contact, nor will it consider Consent to sexual activity with one person as Consent to activity with any other person. Each participant in a sexual encounter must Consent to each form of sexual contact with each participant.
• Even in the context of a current or previous intimate relationship, CMU will evaluate whether each party Consented to each instance of sexual contact each time.
• Complainant need not resist the sexual advance or request to demonstrate lack of Consent; however, CMU will view Complainant’s resistance as a clear demonstration of non-Consent.

Contact means any direct or indirect verbal, written, electronic, or third-party messages, any physical touch or non-verbal gesture.

Dating Violence means violence, or threat of violence, by a person who has been in a romantic or intimate relationship with the Complainant.  Whether there was such a relationship will be gauged by the length, type, and frequency of interaction.

Domestic Violence and Intimate Partner Violence means a felony or misdemeanor crime of violence committed by a current or former spouse or intimate partner of the Complainant, by a person with whom the Complainant shares a child in common, by a person who is cohabitating with or has cohabitated with the Complainant as a spouse, by a person similarly situated to a spouse of the Complainant under the domestic or family violence laws of the applicable jurisdiction, or by any other person against a Complainant who is protected from that person’s acts under the domestic or family violence laws of the applicable jurisdiction.  To constitute Domestic Violence or Intimate Partner Violence under this Policy, the relationship between the Respondent and the Complainant must be more than just two people living together as roommates.

Designated Official means a CMU employee who is obligated by this policy to share knowledge, notice, and/or reports of sex-based discrimination, harassment, and/or retaliation with the Title IX Coordinator.  All CMU employees except those designated as Confidential Resources are considered Mandatory Reporters.

Determination means a written report prepared at the end of an investigation into an alleged violation of this Policy that includes a conclusion as to whether or not a violation of this Policy occurred, the rationale for the conclusion, and any imposed sanction(s).

Elliot-Larsen Civil Rights Act means the Michigan law that prohibits discrimination on the basis of “religion, race, color, national origin, age, sex, height, weight, familial status, or marital status” in employment, housing, education, and access to public accommodations.

Employee means a member of the University Community who is receiving compensation for services.

Force means the use or threat of physical violence, restraint, or intimidation to overcome an individual’s choice whether to participate in sexual activity.

Formal Complaint means a written statement endorsed by a Complainant or the Title IX Coordinator alleging sexual harassment or other Covered Behavior against a Respondent requesting an investigation of the alleged behavior.

Gender-Based Harassment means acts of verbal, nonverbal, or physical aggression or contact, intimidation, threats, abuse or hostility based on sex or sex-stereotyping, even if those acts do not involve conduct of a sexual nature; sexual harassment based on gender, gender identity, gender expression, or sexual orientation.

Grievance Process means the process that CMU uses to assess a report and resolve a Formal Complaint.

Hearing Officer means the person assigned by the Title IX Coordinator to preside over a hearing and who has decision-making authority within the grievance process.

Incapacitation means a state in which an individual cannot make the informed and rational decision to engage in Sexual Activity because the individual lacks conscious knowledge of the nature of the act (e.g., cannot understand the who, what, when, where, why, or how of the sexual interaction) and/or is physically helpless.

• An Incapacitated person is unable to give Consent. An individual is Incapacitated when asleep, unconscious, or otherwise unaware that sexual activity is occurring. This includes an individual incapable of giving consent because of their age or their temporary or permanent mental incapacity. Incapacitation may result from the use of alcohol and/or other drugs.
• Because the impact of alcohol and drugs varies from person to person, CMU will not find an individual Incapacitated solely based on that person’s consumption of alcohol or other drugs, impairment, inebriation, or intoxication. Instead, it will conduct a case-by-case evaluation to assess how the consumption of alcohol and/or drugs impacts an individual’s decision-making ability, awareness of consequences, ability to make informed judgments, or capacity to appreciate the nature and the quality of the behavior.
• In any claim, CMU will evaluate whether Respondent knew or should have known that Complainant was Incapacitated when viewed from the position of a sober, reasonable person.
• CMU will not accept being intoxicated or impaired by drugs or alcohol as an excuse for Covered Behavior; nor will it consider intoxication or such impairment to diminish a Respondent’s responsibility to obtain Consent.

Intimate Partner means a person who is, or has been involved in, a sexual, dating, domestic, or other intimate relationship with the initiating individual within the past twelve (12) months.

Intimate Parts means the breasts, genitals, buttocks, groin, mouth, or any other part of the body that is touched in a sexual manner.

Intimidation means to unlawfully place another person in reasonable fear of bodily harm through the use of threatening words and/or other conduct, but without displaying a weapon or subjecting the person to an actual physical attack.

Investigator means the person or persons assigned by the Title IX Coordinator to investigate an alleged violation of this Policy.

Mandated Reporter means an individual designated by the Michigan Child Protection Law as one who must report suspected child abuse or neglect.

No Contact Order means an order issued by a CMU official that requires that an individual have no contact with a person or persons.

OCRIE means the Central Michigan University Office of Civil Rights and Institutional Equity.

Party means either the Complainant(s) or Respondent(s) in an investigation or action relating to a complaint of Sexual and Gender-Based Misconduct.

Private or Privacy means a category of information related to a Report of Sexual and Gender-Based Misconduct that may be shared with a small circle of individuals who have a need to know.

Report means information about an allegation of Sexual and Gender-Based Misconduct shared with OCRIE or a Designated Official.

Respondent means a person accused of violating this Policy or an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment or other covered behavior.

Retaliation means acts, words, or attempts to take adverse action against the Complainant, Respondent, or any individual or group of individuals because of their good faith Complaint or participation in an investigation and/or resolution of a Complaint. Retaliation may be committed by any individual or group of individuals.

• retaliation may take many forms, including threats, intimidation, pressuring, continued abuse, violence, other forms of harm to others.
• retaliation may also occur by moving someone to a less desirable workspace, altering work hours, removing or limiting privileges. All forms of Retaliation are prohibited under this Policy as well as under state and federal law.

Sanctioning Official means the person who imposes a sanction(s). 

Sexual and Gender-Based Misconduct or Covered Behavior means the following activities, as defined herein and in the Definition section of this Policy:  Dating Violence; Domestic or Intimate Partner Violence; Gender-Based Harassment; Sexual Assault; Sexual Exploitation; Sexual Harassment; Stalking; Retaliation; and other covered behaviors and actions where such behavior is based on an individual’s sex, gender, or gender identity.

Sexual Assault means touching of a sexual nature without Consent, including, but not limited to, any of the following acts:  

• penetration, no matter how slight, of a person’s vagina or anus with any body part or object without the Complainant’s Consent;
• penetration, no matter how slight, of a person’s mouth by another person’s sex organ without the Complainant’s Consent;
• intentional touching, without the Complainant’s Consent, of a person’s intimate body parts, or any material, such as clothing, covering the immediate area of a person’s intimate body parts, including, but not limited to, that person’s breasts, buttock, groin, or mouth, for the purposes of sexual arousal or gratification, a sexual purpose, or in a sexual manner.

Sexual Exploitation means conduct involving a person taking, or attempting to take, non-consensual or abusive sexual advantage of a Complainant when such conduct would not otherwise be defined as sexual harassment or sexual assault including, but not limited to:

• benefiting, promoting, or earning money from the prostitution of another individual;
• producing, distributing, receiving, or possessing an image of child pornography, regardless of whether or not the image is physical or digital;
• engaging in sexual voyeurism or knowingly allowing another individual to engage in sexual voyeurism, either in person or through electronic means;
• producing, distributing, receiving, possessing, or taking pictures or otherwise creating a record or recording of a sexual nature without the Complainant’s Consent or exceeding the boundaries of that Consent;
• distributing, or otherwise making available, materials, whether physical or digital, of a sexual nature beyond the Consent of all of the individuals depicted in the materials;
• exposing one's genitals or inducing another to expose their own genitals in non-consensual circumstances;
• knowingly exposing another individual to a sexually transmitted disease or virus without their knowledge;
• sex-based bullying; or inducing incapacitation for the purpose of making another person vulnerable to non-consensual sexual activity.

Sexual Harassment means any unwelcome sexual advance, request for sexual favors, or other unwelcome verbal, electronic or physical conduct of a sexual nature when the conduct does not constitute Title IX Sexual Harassment, and when:

• submission to or rejection of such conduct is made, either explicitly or implicitly, a term or condition of an individual’s employment, evaluation of academic work, or participation in any aspect of a University program or activity (e.g., quid pro quo);
• submission to or rejection of such conduct by an individual is used as the basis for decisions affecting the individual (e.g., quid pro quo); or
• such conduct has the purpose or effect of unreasonably interfering with an individual’s work or academic performance; i.e., it is sufficiently serious, pervasive or persistent as to create an intimidating, hostile, humiliating, demeaning, or sexually offensive working, academic, residential, or social environment under both a subjective and an objective standard.
• a single isolated incident of Sexual Harassment may jeopardize equal access to a program or activity if it is sufficiently severe. The more severe the conduct, the less need there is to show a repetitive series of incidents to be found responsible for a Policy violation, particularly if the Behavior is physical. Examples of conduct that may constitute Sexual Harassment are listed in the Procedures.

Stalking means a course of conduct, typically two or more incidents, directed at a specific Complainant that would cause a reasonable person to fear for that person’s own or someone else’s safety or to suffer substantial emotional distress.  Substantial emotional distress means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.

Student means a person who has enrolled at CMU, either full-time or part-time, pursuing undergraduate, graduate, or non- enrolled for a particular term. Students also include people who have been admitted to CMU and who, before their first attendance, participate in activities intended only for prospective students (e.g., orientation, leadership activities, band, or other camps, athletic training, and practices).

Supportive Measures means those support services, accommodations, and interventions available to a Complainant, a Respondent, or University Community Members experiencing the effects of Sexual and Gender-Based Misconduct that aim to mitigate the effects of the alleged misconduct and otherwise promote the safety of University Community Members.

Title IX Coordinator means the person designated by CMU to receive all Reports of Sexual and Gender-Based Misconduct and oversee CMU’s centralized review and resolution of those Reports in compliance with the law and this Policy and who advises the CMU Community about the Grievance Procedures and courses of action in the broader community. The Title IX Coordinator has the responsibility for taking steps to ensure compliance with CMU’s policies regarding allegations of Sexual and Gender-Based Misconduct. The Title IX Coordinator may designate someone (Designee) to assist with carrying out these responsibilities. The contact information for the Title IX Coordinator can be found in Supplemental Appendix A.

Title IX Sexual Harassment means conduct on the basis of sex that satisfies one or more of the following: 

1. A CMU employee conditioning the provision of an aid, benefit, or service of the University on an individual’s participation in unwelcome sexual conduct;
   
2. Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity; or
3. ‘‘Sexual assault’’ as defined in 20   U.S.C. 1092(f)(6)(A)(v), ‘‘dating violence’’ as defined in 34 U.S.C. 12291(a)(10), ‘‘domestic violence’’ as defined in 34 U.S.C. 12291(a)(8), or ‘‘stalking’’ as defined in 34 U.S.C. 12291(a)(30). The University’s definition of Sexual and Gender-Based Misconduct is broader than the behavior covered solely by Title IX.

For Title IX to apply, the incident must be reported while the Parties are all associated with the University (as current students or employees) and must have occurred on property owned or operated by the University, in the United States.

University Community Members means CMU students, faculty, staff, administrators, board members, consultants, vendors, and certain third parties including, but not limited to, guests, contractors, consultants, and their employees.

POLICY

Under Title IX of the Education Amendments Act of 1972, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.” Title IX applies to all of CMU’s programs and activities and requires that CMU not discriminate on such bases. Title IX prohibits retaliation against any individual who files a good faith complaint or participates in an investigation under Title IX. This Policy meets and, in some areas, exceeds the scope of Title IX and its implementing regulations.

In addition, CMU’s response to sexual assault, dating violence, domestic and intimate partner violence, and stalking are governed by the Clery Act and Section 304 of the Violence Against Women Reauthorization Act of 2013 (VAWA).

CMU prohibits all forms of sexual and gender‐based harassment and violence, dating violence, domestic and intimate partner violence, and stalking prohibited by Title IX, VAWA, Title VII of the Civil Rights Act of 1964, and other applicable statutes, including the Elliott Larsen Civil Rights Act. This Policy prohibits a broad continuum of behaviors, some of which are not prohibited under Title IX or other law. Their inclusion in this Policy reflects CMU’s standards and expectations for a respectful working and learning environment.

CMU will investigate and is committed to resolving all complaints of Sexual and Gender-Based Misconduct in a prompt, fair, and impartial manner. CMU will treat all individuals involved with dignity and respect. All processes are driven by objective fact-finding and approached from a neutral standpoint.

Scope

This Policy applies to any CMU Community Member engaging in Sexual and Gender-Based Misconduct and any CMU Community member being subjected to Sexual and Gender-Based Misconduct.  Title IX processes and procedures will apply, as explained in this Policy, when the Covered Behavior constitutes Title IX sexual harassment and when the Complainant and Respondent are both members of the CMU Community.  In all other cases, CMU will investigate and respond to allegations of sexual or gender-based misconduct using the non-Title IX processes and procedures as outlined in the Policy.

Jurisdiction

The Policy applies to all Sexual and Gender-Based Misconduct that takes place on-campus and off-­­­campus if the Sexual and Gender-Based Misconduct affects a University Community Member’s participation in a CMU activity or otherwise affects the interests of the University. This includes, but is not limited to, if the Sexual and Gender-Based Misconduct occurs:

1. in the context of a CMU education program or activity, regardless of location; including, but not limited to, service-learning activities, study abroad placements, student internship programs, the workplace, and work-related events;
2. at a location where either Party involved in a particular claim is a member of the CMU community;
3. outside the context of a CMU education program or activity when the Sexual and Gender-Based Misconduct has continuing adverse effects on campus or in an off-campus education program or activity;
4. Online and/or social media conduct may also violate this Policy if it meets the definition of Sexual and Gender-Based Misconduct. Online postings are in the public sphere and are not private. These postings may subject an individual to allegations of Sexual and Gender-Based Misconduct or other misconduct. CMU does not regularly search for this information, but it may take action if and when such information is brought to its attention. CMU will view any Report of online Sexual and Gender-Based Misconduct with all parties’ free speech rights in mind;

For a matter to fall under the definition of Title IX Sexual Harassment, all of the following criteria must be met:

• Is experienced in the United States.
• Occurs in a University Program or Activity.
• Is a matter regarding which the University has Actual Knowledge.
• Is conduct on the basis of sex in which:
  • An Employee conditions the provision of a University aid, benefit, or service on an individual’s participation in unwelcome sexual conduct;
  • A Student, Employee, or third party engages in unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies another person equal access to a University Program or Activity; or
  • A Student, Employee, or Third Party engages in: Stalking (defined above); Dating Violence (defined above); Domestic Violence (defined above); or the following statutorily defined behaviors:
    • Rape: The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.
    • Sex Offenses of Fondling, Incest or Statutory Rape:  Any sexual act directed against another person, without the consent of the victim, including instances where the victim is incapable of giving consent.
      • Fondling - The touching of the private body parts of another person for the purpose of sexual gratification, without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because of his/her temporary or permanent mental incapacity.
      • Incest - Sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.
      • Statutory Rape - Sexual intercourse with a person who is under the statutory age of consent.

If at any point, the University determines that the matter does not meet the definition of Title IX Sexual Harassment, the matter may continue to be addressed under this Policy as a non-Title IX Covered Behavior.

Conversely, if the University is investigating reported Sexual and Gender-Based Misconduct and receives information that indicates the behavior at issue meets the definition of Title IX Sexual Harassment, the matter will continue as such.

Covered Behavior

CMU will treat actual or attempted Sexual and Gender-Based Misconduct as if those attempts had been completed.  When CMU evaluates responsibility for alleged Sexual and Gender-Based Misconduct, it considers the existence or non-existence of Coercion, Consent, Force, and/or Incapacitation.

Covered Behavior includes:

1. Dating Violence;
2. Domestic Violence and Intimate Partner Violence;
3. Gender-Based Harassment;                              
4. Sexual Assault;
5. Sexual Exploitation;
6. Sexual Harassment;
7. Title IX Sexual Harassment; and
8. Retaliation.

Privacy and Confidentiality

CMU is committed to protecting the Privacy of all individuals involved in a Report of Sexual and Gender-Based Misconduct. All CMU employees who are involved in a Report, including the Title IX Coordinator, Investigators, Hearing Officers, and Sanction Officials shall receive specific instruction and training about respecting and safeguarding private information. Throughout the Grievance Process, every effort will be made to protect the privacy interests of all individuals involved in a manner consistent with the need for a thorough review. Privacy and Confidentiality have distinct meanings under this Policy, which are defined below.

Notwithstanding the foregoing, CMU will not require a University Community Member to abide by any nondisclosure agreement, in writing or otherwise, that would prevent the disclosure of information received during that member’s involvement in a process under this Policy.

The Title IX Coordinator or OCRIE may disclose information received under the following circumstances:

• to the extent provided by this Policy;
• to the extent necessary to:
  • eliminate the alleged Sexual and Gender-Based Misconduct;
  • remedy the effects of the alleged Sexual and Gender-Based Misconduct;
  • complete an investigation under this Policy; or
  • complete any sanctioning processes under this Policy.
• to the extent required by law, including, but not limited to:
  • the Michigan Freedom of Information Act;
  • the Michigan Bullard-Plawecki Employee Right to Know Act;
  • the Family Educational Rights and Privacy Act (“FERPA”);
  • a valid subpoena, search warrant or other lawfully issued court order; or a valid order to respond to any inquiry or complaint from, or filed with, a governmental administrative agency.

CMU may have reporting obligations to insurance providers or other external entities for business purposes, including the obligation to provide certain statistics related to Reports or Formal Complaints.

CMU has state of Michigan reporting obligations under Michigan’s State School Aid Act, including the obligation to provide certain statistics related to complaints of sexual and gender-based misconduct.

CMU has federal reporting obligations under the Clery Act, including the obligation to provide statistics to the CMUPD of certain reported crimes.  As proscribed by the Clery Act, CMU will not include the name of a Complainant, Third Party Complainant, Respondent, witness, or other identifying information in publicly available reports or timely warnings.

CMU may need to report an incident to local law enforcement under certain circumstances including, but not limited to, an incident where there is a clear and imminent danger, an incident involving a weapon, an incident involving a minor, or an incident warranting the undertaking of security or safety measures for the protection of the Complainant or of University Community Members.

Privacy

Private information may only be shared with those CMU employees who are directly involved in the resolution of a Report under this Policy and who need to know the information in order to resolve the Report. While not bound by legal privilege or other mandated confidentiality, these individuals will be discreet and respect the privacy of all individuals involved in the process.  The private nature of information provided to the Title IX Coordinator and OCRIE will be accorded the utmost respect.

Confidentiality

Unless there is an imminent threat of harm to self or others, certain information that is shared with designated campus or community professionals may not be revealed to any other individual without express permission from the individual disclosing the information or about whom the information pertains. Designated campus and community professionals that may hold legally privileged conversations recognized by law include medical providers, mental health providers, ordained clergy/pastoral counselors, and rape crisis counselors.

Confidential Resources are licensed or specially trained professionals who, by law, may not share information without the consent of the individual seeking assistance.

Contact information for Confidential Resources available to University Members on-Campus is listed in Supplemental Appendix B.

Entities providing confidential counseling, advocacy, physical health, mental health, legal, or immigration resources may also be available off-Campus.  See Supplemental Appendices A and B for contact information.

CMU makes no warranties, either express or implied, regarding confidentiality or with respect to any other aspect of services offered by resources off-Campus.

There is no expectation that a concern or allegation of Sexual or Gender-Based Misconduct brought to a Confidential Resource will be reported to the Title IX Coordinator, or designee.

Confidential Resources may, under limited circumstances, share information with third parties including, but not limited to, law enforcement, Child Protective Services, or the Title IX Coordinator.  Possible circumstances include in order to comply with a generally applicable law including, but not limited to:

• The Michigan Child Protection Law;
• Section 946 of the Michigan Mental Health Code regarding threats of physical violence against third persons;
• a valid subpoena, search warrant, or other lawfully issued court order;
• a valid order to respond to any inquiry or complaint from, or filed with, a governmental administrative agency; or
• when an act of a Sexual and Gender-Based Misconduct occurs during the delivery of support services.

Medical and counseling records of a Complainant or Respondent are privileged, confidential records that individuals are not required to disclose. However, these records may contain related and material information. During the Grievance Process, a Party may voluntarily choose to share such records with the Investigator. Any records provided by a Party become part of the file, and any information that relates to the current claim will be made available for review by the opposing Party and Advisor, with personal identifiers and non-related information removed as set forth in the Procedures. The Party who provided the records for review is presumed to have consented to such disclosure. The reviewing Party and Advisor agree to keep any such information Confidential unless its disclosure during the hearing or hearing preparation is necessary to make a good faith argument in support of their position.

Reporting Options

Reports can be made to the Title IX Coordinator, or designee, in person, by mail, by telephone, or by electronic mail, or by any other means that results in the Title IX Coordinator receiving the person’s verbal or written report.  A Report may be made at any time (including during non-business hours).

The Title IX Coordinator can be reached at:

Physical and Mailing Address:

103 W. Preston St.

Bovee University Center, 306

Mount Pleasant, Michigan 48859

Phone:

989-774-3253

Electronic Mail:

TITLEIX@cmich.edu

All individuals are encouraged to promptly report conduct that may violate this Policy to the Title IX Coordinator, or designee. Individuals are also encouraged to report conduct that may violate criminal law to both the Title IX Coordinator and local law enforcement. These processes are not mutually exclusive. See Supplemental Appendix A for contact information for reporting a Complaint.

Any Report is presumed to be credible and the Respondent is presumed not responsible. CMU will quickly assess every report of Sexual and Gender-Based Misconduct for risk of harm to the Complainant, Respondent, or to the broader campus community and will take steps necessary to address those risks.  In cases of Title IX Sexual Harassment, the Title IX Coordinator will contact the Complainant to provide Supportive Measures, and CMU will conduct an individualized safety and risk analysis to determine whether an Emergency Removal is necessary.

Amnesty Considerations. Individuals who submit a report or Formal Complaint in good faith, as well as those who are identified as witnesses, will not be subject to CMU disciplinary action for their own consumption of alcohol or drugs at or near the time of the incident, provided that any such violations did not and do not place the health or safety of any other person at risk. CMU may, however, initiate an educational discussion or pursue other non-disciplinary, educational remedies regarding alcohol or drug use. Such Amnesty will also apply to collateral consequences related to a student’s status as a Residence Life Paraprofessional, Student-Athlete, or other position with privileges at CMU. CMU will not ask about or investigate the citizenship status of any individual who submits a report or Formal Complaint.

Complainant Reporting

When reporting to OCRIE or law enforcement, Complainants do not need to know whether they wish to request any course of action, nor how to label what happened. Deciding how to proceed can be a process that unfolds over time. Before or during the decision-making process, Complainants and other reporting persons are encouraged to seek support and information from a Confidential Resource.

Complainants are encouraged to preserve any physical evidence related to the Report.

A Complainant may contact the Title IX Coordinator, CMUPD, or other appropriate authorities for assistance with filing a criminal complaint or a civil protective order and for information on a forensic exam and preserving evidence. Additional information about preserving physical evidence can be found in Appendix A and B.

A Complainant has the right to notify, or decline to notify, law enforcement. In the context of sexual assault, intimate partner violence, and stalking, federal law mandates that it is an adult Complainant’s option to notify or decline to notify law enforcement.

Required Reporting

When Designated Officials are notified of Sexual and Gender-Based Misconduct, they must immediately report the information to the Title IX Coordinator or designee. The Designated Official will keep all information they receive Private.

Designated Officials are not required to report allegations of Sexual and Gender-Based Misconduct to the Title IX Coordinator, or designee, when:

• the Designated Official learns about the allegation during a public awareness or activism event or other public forum at which University Community Members disclose experiences with Sexual and Gender-Based Misconduct. Examples of these types of events or forums include, but are not limited to, Take Back the Night and protests;
• the disclosure is made during the course of a research project approved by CMU’s Institutional Review Board; or

• the disclosure is made during a class assignment or in-class discussion and the course has been approved for the exception by the Title IX Coordinator.  The course syllabus must clearly state, in language approved by the Title IX Coordinator, that concerns, or allegations of Sexual and Gender-Based Misconduct disclosed in writing assignments or during in-class discussion will not trigger a report to the Title IX Coordinator.

Anyone with information regarding suspected child abuse or neglect must immediately report known or suspected mental or physical abuse or neglect of a child made known to them in their professional or official capacity directly to Michigan’s Department of Health and Human Services by calling 855-444-3911 (24/7 toll-free number). You must submit a written report to the Department of Health and Human Services within 72 hours of the initial verbal report. Reporters must also inform OCRIE.  For purposes of this requirement, a “child” is anyone age 17 or younger.

Timeframes for Reporting

There is no time limit for reporting Sexual and Gender-Based Misconduct; however, all individuals are encouraged to report the behavior as soon as possible in order to maximize CMU’s ability to respond promptly and effectively. If the Respondent is not a member of the CMU Community at the time of the report, CMU will still provide Supportive Measures to Complainants; however, its ability to investigate and/or take action may be limited. CMU will assist a Complainant in identifying external reporting options.

If a Complainant chooses not to file a Formal Complaint at the time of the Report, they may file a Formal Complaint at a later date.

Complainant Agency and Autonomy Not to Proceed

Where a Complainant requests that their name or other identifiable information not be shared with Respondent, that no investigation occur, or that no formal action be taken, CMU will balance this request with its obligations to provide a safe and non-discriminatory environment for all CMU Community members, including the Complainant. CMU will also remain true to principles of fundamental fairness that require notice and an opportunity to respond before action is taken against a Respondent.

In assessing threats, CMU may consult with appropriate offices in order to undertake an individualized safety and risk analysis (including the Threat Assessment Group, the CARE Team, or other offices) and may consider the following in evaluating a Complainant’s requests for confidentiality, that no investigation occur, or that no formal action be taken:

1. the nature and scope of the alleged conduct, including whether the reported Sexual and Gender-Based Misconduct involves the use of a weapon;
2. the Complainant’s wish to pursue disciplinary action;
3. the respective ages and roles of the Complainant and Respondent;
4. the risk posed to any individual or to the campus community by not proceeding, including the risk of additional violence;
5. whether there have been other reports of misconduct by the Respondent;
6. whether the Respondent threatened further sexual violence or other violence against the Complainant or others;
7. whether the report reveals a pattern of misconduct (e.g., via illicit use of drugs or alcohol) at a given location or by a particular group such that there is an increased risk of future acts of sexual violence under similar circumstances;
8. whether CMU possesses other means to obtain relevant evidence (e.g., security cameras, personnel, or physical evidence);
9. considerations of fundamental fairness and rights of the Parties with respect to the Respondent should the course of action include disciplinary action against the Respondent; and
10. CMU’s obligation to provide a safe and non-discriminatory environment.

Where CMU determines that action should be taken that is inconsistent with Complainant’s request not to proceed, the Title IX Coordinator will inform the Complainant about CMU’s chosen course of action. As part of providing Supportive Measures, CMU may pursue steps to limit the effects of the alleged Sexual and Gender-Based Misconduct and prevent its recurrence in ways that do not involve disciplinary action against a Respondent or disclosing the identity of the Complainant. See Supportive Measures section.

Formal Complaint

The Complainant may initiate a Formal Complaint at any time during or after an initial Report by contacting OCRIE and submitting the Complaint in writing.

The Title IX Coordinator may sign a Formal Complaint related to Sexual and Gender-Based Misconduct of which they have been made aware. In doing so, the Title IX Coordinator does not become a Complainant or a Party for the case.

Supportive Provision

Supportive provisions are available to both the Complainant and the Respondent.  A Formal Complaint does not need to be filed for supportive provisions to be requested or provided.

Advisor

Complainant(s) and Respondent(s) may each have an Advisor of their choice present at any meeting related to the Report or Formal Complaint of Sexual and Gender-Based Misconduct.

Upon special request to the Title IX Coordinator, the Complainant(s) or Respondent(s) may request more than one Advisor to be present. The decision to grant this request is at the sole discretion of the Title IX Coordinator and will be granted equitably to all parties.

During investigative meetings, the Advisor is both silent and non-participating entities who are there solely to observe and provide support.

If the case alleges Title IX Harassment and proceeds to a hearing the Advisor is then responsible for asking questions on behalf of the Party. In a hearing for a Title IX harassment allegation, an Advisor is required.  If a Party does not have an Advisor, the University will provide one, to be chosen by the University, at no charge. The procedure for selecting an Advisor is explained in detail in the Grievance Process.  The Advisor’s role is limited to asking questions only; they may not engage in any other form of advocacy on behalf of a Party at the hearing. The support person is not permitted to ask questions or otherwise advocate on behalf of the Party at the hearing.

An Advisor may be but does not have to be, an attorney. Advisors should make themselves available for meetings throughout the process.

The Advisor will be required to review and conform to the University’s policies and procedures, privacy protections, and expected rules of participation and decorum. Refusal to comply with the University’s policies and procedures may, in the University’s sole discretion, result in the Advisor/support person’s removal.  The University shall determine what constitutes appropriate behavior on the part of a support person and Advisor.  The Advisor is strongly discouraged from acting as fact witnesses or otherwise participating in any other way in the Grievance Process. Repeated violations of the rules shall be grounds for the removal, in CMU’s sole discretion, of a support person or Advisor.  If an Advisor is removed, a replacement Advisor will be provided by CMU.

Supportive Measures

As part of its assessment, CMU may provide Supportive Measures to either the Complainant, the Respondent, or to both Parties based on information gathered from a Report or investigation. The Title IX Coordinator, or designee, has the discretion to implement these measures as they see fit.

Supportive Measures are designed to protect the Parties involved. They are not sanctions. Supportive Measures are non-disciplinary, non-punitive measures available to either Party regardless of whether the Complainant chooses to pursue an investigation.

Supportive Measures may include, but are not limited to:

• Changing CMU housing assignment;
• Public safety escort on campus;
• Changing academic assignments or schedule, including the ability to take an “incomplete,” drop a course without penalty, or transfer sections (with the agreement of the appropriate faculty);
• Changing work schedule or job assignment;
• Referral for support services, such as tutoring or counseling;
• Instituting a mutual no contact-order; or
• Any other remedy that can be tailored to the individuals involved in order to achieve the goals of this Policy.

Emergency Removal

While evaluating the need for Supportive Measures, CMU may consider whether Emergency Removal of the Respondent is necessary. After conducting an individualized safety and risk analysis, CMU may remove a Respondent from a CMU program or activity on an emergency basis, if it determines that a Respondent poses an immediate threat to the physical health or safety of any individual arising from the allegations of Sexual and Gender-Based Misconduct that justifies removal.

The Emergency Removal will remain in place pending the results of an investigation or until the physical threat to health or safety has concluded.

If the University institutes Emergency Removal, Respondent will receive notice and an opportunity to challenge (appeal) the decision immediately following their removal. Additional information on appealing an Emergency Removal is in the Appeal Procedures section.

For students, Emergency Removal will constitute a temporary suspension.  Employees will be placed on Administrative Leave.

For Employees, Administrative Leave may also be warranted when circumstances suggest the presence of Respondent would significantly hinder the investigation.

Supportive Measures shall, in all cases, be non-disciplinary in nature.  Selection of Supportive Measures and whether to implement Emergency Removal will vary depending on the facts of each case. CMU may consider several factors, including, but not limited to:

1. the specific needs expressed by the Complainant and/or Respondent;
2. the age of the Parties involved;
3. the severity or pervasiveness of the allegations;
4. any continuing effects on either Party or the Campus Community;
5. whether the Complainant and Respondent share the same residence building, dining hall, class, transportation, or job location;
6. overall safety of the campus community;
7. whether judicial measures have been taken to protect the Complainant (e.g., civil protection orders);

While Supportive Measures are in place, the Title IX Coordinator, or designee, in consultation with other CMU administrators, may maintain contact with the Parties so that all safety, emotional, and physical well-being concerns can be reasonably addressed.

Supportive Measures will be kept private to the extent that maintaining that privacy does not impair CMU’s ability to provide assistance.

Evidentiary Standard

CMU will determine responsibility for violation of Policy using the preponderance of the evidence standard.

The preponderance of the evidence means that, in reaching its determination, the decision maker has concluded that it is more likely than not that the Covered Behavior did or did not occur.

First Amendment Protections

Nothing in this Policy is intended to limit constitutionally protected First Amendment Rights or restrict any other Constitutional rights.

First Amendment free speech rights protect speech on matters of public interest. They do not protect illegal activity, sexual harassment as defined by this Policy, destruction of property, or material and substantial disruption of classes or campus activities.

Accountability

CMU Community: For students, failure to follow this Policy could lead to sanctions, up to and including expulsion. For administrators, faculty, and staff, failure to follow this Policy could lead to disciplinary action up to and including dismissal consistent with Human Resources and Faculty Personnel Services policies and any applicable bargaining agreements. For third parties, such as a Contractor, Guest, Volunteer, etc., failure to follow this Policy could lead to disciplinary action up to and including relationship termination.

Federal and State Law: Federal and state funding is premised on compliance with the laws and guidance referenced in this Policy. The University could lose Federal or state funding for failure to comply.

Individuals who were subjected to Sexual Harassment that meets this definition and criteria under Title IX, and who believe the University’s response was deliberately indifferent and/or failed to meet procedural requirements, have a right to contact the Executive Director for Office of Civil Rights (OCR). Additionally, Employees have a right to contact the Equal Employment Opportunity Commission (EEOC) regarding their rights under Title VII. See Supplemental Appendix A for contact information.

Additional Information

Nondiscrimination

All rights and responsibilities under this Policy extend to all University Community Members regardless of age, color, disability, ethnicity, familial status, gender, gender expression, gender identity, genetic information, height, marital status, national origin, political persuasion, pregnancy, childbirth, or related medical conditions, race, religion, sex, sex-based stereotypes, sexual orientation, transgender status, veteran status, weight, or any other status as protected by CMU’s Nondiscrimination Statement.

Other forms of prohibited discrimination and/or harassment, including age, color, disability, ethnicity, familial status, gender, gender expression, gender identity, genetic information, height, marital status, national origin, political persuasion, pregnancy, childbirth or related medical conditions, race, religion, sex, sex-based stereotypes, sexual orientation, transgender status, veteran status, or weight are governed by CMU’s Equal Opportunity and Affirmative Action Protocol, which is located at Administrative Policies, Procedures and Guidelines.

Coordination with Law Enforcement

CMU encourages Complainants and Respondents to pursue their legal rights regarding criminal claims of Covered Behavior that may also violate federal or state law. CMU will offer assistance to involved parties so they may file criminal reports and/or cooperate with law enforcement agencies.

CMU’s Sexual and Gender-Based Misconduct Policy, Procedures, definitions, and burden of proof may differ from Michigan or federal criminal law. Neither law enforcement’s determination of whether to prosecute a Respondent, nor the outcome of any criminal prosecution, determine whether a violation of this Policy has occurred. Proceedings under this Policy may be carried out prior to, simultaneously with, or following civil or criminal proceedings off-campus.

At the request of law enforcement, CMU may defer its Grievance Process until after the initial stages of a criminal investigation. If CMU delays, for this reason, it will communicate with both Parties regarding Supportive Measures, rights, and procedural options under this Policy to assure safety and well-being during the criminal investigation. CMU will promptly resume the Grievance Process under this Policy as soon as it is informed that law enforcement has completed its initial investigation.

Training Requirements

Individuals involved in the resolution of Sexual and Gender-Based Misconduct must complete all legally required training.  These individuals include, but are not limited to:

1. The Title IX Coordinator and their designees;
2. Investigators;
3. Hearing Officers;
4. Appeals Officers;
5. Sanctioning Officials.

OCRIE will post all training material on a CMU web page so it is accessible to the public.

CMU shall offer primary prevention and awareness programs regarding topics related to Sexual and Gender-Based Misconduct to new students, faculty, and staff as appropriate.

All employees are required to complete training regarding prevention and awareness related to Sex and Gender-Based Misconduct, upon new hire or upon change of positions that alters their status as a confidential employee or mandatory reporter under this policy and annually thereafter.

Employees who fail to complete this training requirement as outlined above, may be subject to disciplinary action for failure to comply.

CMU shall offer ongoing programs focusing on increasing awareness or understanding of topics related to Sexual and Gender-Based Misconduct throughout the year.

Contact Information

Contact information for filing complaints both with CMU’s Title IX Coordinator and externally (law enforcement and/or State or Federal Complaint Offices) can be found in Supplemental Appendix A.

Contact information for resources can be found in Supplemental Appendix B.

Record Retention

CMU will retain related records in compliance with CMU’s Record Retention Policy and all applicable federal and state laws.

Withdrawals, Resignations, and Graduation

In cases alleging Title IX Sexual and Gender-Based Misconduct, if a Respondent ceases enrollment or employment with CMU before the final conclusion of all processes under this Policy or its Procedures, CMU will dismiss the Title IX Formal Complaint.  However, CMU may continue investigating the claim of misconduct under any applicable non-Title IX sections of this Policy.  In cases of non-Title IX Sexual or Gender-Based Misconduct, if a Respondent ceases enrollment or employment with CMU before the final conclusion of all processes under this Policy or its Procedures, CMU will continue those processes, to the extent it is able, whether or not the Respondent elects to continue participation.

GRIEVANCE PROCESS AND PROCEDURES:

When responding to a Report of Sexual and Gender-Based Misconduct, CMU will undertake a Grievance Process. The Grievance Process will include assessment (including Supportive Measures or Emergency Removal) and informal resolution or formal resolution (investigation, hearing, finding, appeal of finding, sanction, and appeal of sanction.)

The Grievance Process will ensure the following basic rights for all participants:

1. Equitable treatment of the parties.
2. Objective evaluation of the evidence.
3. No CMU conflicts of interest or bias by Investigators, Hearing Officers, or any other decision makers.
4. Presumption of “not responsible” for Respondent.
5. The burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility rests on the investigator.
6. Reasonably prompt timeframes for all steps in the process, including disciplinary sanctions and remedies.
7. The preponderance of the evidence standard used in all cases.
8. Appeal opportunities are provided to both parties.
9. Supportive Measures are offered to both parties.
10. Restrictions on the use of privileged information.

CMU will support and assist any Complainant or Respondent in understanding how to navigate the Grievance Process and Procedures. There are several options available to resolve a Report or Formal Complaint of Sexual and Gender-Based Misconduct. These options include both informal and formal resolutions processes. Upon receipt of a report, CMU will conduct a Title IX assessment to determine the applicable standard for investigation and review. In a Title IX proceeding under this Policy, after a Formal Complaint is signed, and in consultation with, and if both parties agree, CMU may pursue Informal Resolution or Formal Resolution (which includes a thorough review and investigation).  In non-Title IX proceedings, CMU will consult with both parties and obtain their agreement to pursue Informal Resolutions or Formal Resolution (which includes a thorough review and investigation but does not require a Formal Complaint.

All efforts will be made to complete this process in a timely manner by balancing principles of thoroughness and fundamental fairness with promptness.  All parties involved are entitled to periodic status updates on the progress of the investigation and resolution of all complaints and subsequent appeals. For non-Title IX claims of sexual or gender-based misconduct ONLY, while an investigation is pending, CMU may delay the issuance of a degree for a Respondent.

Investigation

Inclusion of Other CMU Units

Individuals from other CMU departments that participate in an investigation under this Policy will have completed all required training.  OCRIE may invite other CMU departments or offices to participate in its investigation if OCRIE determines that the investigation may lead to violations of other CMU policies outside of its jurisdiction. OCRIE may invite other CMU departments or offices to participate in its investigation if required by the terms of an applicable collective bargaining agreement.

The following CMU units are often included in investigations under this Policy:

• Office of Faculty Personnel Services if the Respondent is a faculty member;
• Office of Human Resources - Employee Relations if the Respondent is a staff member; and
• Office of Student Conduct if the Respondent is a student.
• If the Respondent holds multiple roles at the University, OCRIE will determine which departments may be included based on the relevant facts of the case.

Conflicts of Interest

If the Complainant or the Respondent believes that the Investigator or Hearing Officer assigned to the Formal Complaint has a conflict of interest or is impermissibly biased in the matter, the Complainant or the Respondent may request an alternate staff member. This request must be made in writing to the Title IX Coordinator within five (5) business days of when the Complainant or Respondent knew or should have known of the alleged conflict of interest or impermissible bias. The written request must contain sufficient information and details to establish that the Investigator or Hearing Officer has a conflict of interest or impermissible bias. The Title IX Coordinator will grant or deny this request in writing. The decision to grant or deny a conflict of interest request is not grounds for appeal.

An Investigator or Hearing Officer may seek to be recused from an investigation if the Investigator or Hearing Officer believes there may be a conflict of interest that prevents them from being unbiased in carrying out the investigation.

A request by an Investigator or Hearing Officer to recuse themselves must be made in writing to the Title IX Coordinator and state the basis for the request.  The Title IX Coordinator will grant or deny this request in writing.

It is within the Title IX Coordinator’s discretion to:

• appoint an alternative Investigator or Hearing Officer;
• direct the Investigator or Hearing Officer to fairly address the conflict of interest or impermissible bias during the investigation or Hearing (should one occur); or
• reject the request on the grounds that no conflict of interest or impermissible bias was demonstrated.

In the event that the Title IX Coordinator has a conflict of interest or is impermissibly biased, the University’s General Counsel, or designee, may retain a neutral, outside third party that will serve in the role of the Title IX Coordinator with respect to that specific investigation.  The University’s General Counsel, or designee, will notify the Title IX Coordinator of the actions taken in the matter and any conclusions therein so that the Title IX Coordinator may carry out its duties, including but not limited to aggregate reporting and/or other required files per federal and/or state regulations and CMU policy and procedures.

In the event that a complaint is filed against the Title IX Coordinator, or any OCRIE staff member, the University’s General Counsel, or designee, may retain a neutral, outside third party that will serve in the role of the Title IX Coordinator with respect to that specific investigation.  The University’s General Counsel, or designee, will notify the Title IX Coordinator of the actions taken in the matter and any conclusions therein so that the Title IX Coordinator may carry out its duties, including but not limited to aggregate reporting and/or other required files per federal and/or state regulations and CMU policy and procedures.

In the event that a complaint is filed against the University President or any member of the University’s Board of Trustees, the Title IX Coordinator, or designee, may retain a neutral, outside third party that will serve in the role of the Title IX Coordinator with respect to that specific investigation.  The neutral, outside third party will notify the Title IX Coordinator of the actions taken in the matter and any conclusions therein so that the Title IX Coordinator may carry out its duties, including but not limited to  aggregate reporting and/or maintaining required files per federal and/or state regulations and CMU policy and procedures.

Investigatory Powers

In order to carry out its obligations under this Policy and its Procedures, OCRIE may determine the scope of the investigation by interviewing people, inspecting documentary evidence, determining whether a complaint will be pursued as a Title IX or non-Title IX case, and reviewing other evidence that may otherwise be available to it.  The Title IX Coordinator will not serve as an Investigator. 

Unless either party indicates an unwillingness to participate in the investigatory process, OCRIE will separately interview the Complainant, Respondent, and any witnesses. It is within OCRIE’s discretion to interview a Complainant, Respondent, or any witness, multiple times.

Within five (5) business days of being interviewed by OCRIE, the Complainant or the Respondent may supplement their oral statement with a written statement provided to the OCRIE Investigator, may submit a list of possible witnesses they believe have relevant information to the investigation; or may provide OCRIE with evidence, documentary or otherwise, that the person deems relevant to the investigation.

Within five (5) business days of being interviewed, any witnesses interviewed by OCRIE may provide OCRIE with a written statement or evidence, documentary or otherwise, that the person deems relevant to the investigation.

It is within the Investigator’s discretion to determine what documentary evidence it will consider.  OCRIE will not return any evidence it receives or collects.  OCRIE is permitted to independently, and on its own volition, retrieve any and all evidence available to it. OCRIE is permitted to independently, and on its own volition, interview any and all witnesses available to it.

Timely participation is key.  If a party to the investigation does not respond to OCRIE’s requests for participation, OCRIE will move forward with the investigation to provide a fundamentally fair investigation and process.

OCRIE’s decision about the scope of the investigation is not subject to appeal.

OCRIE may engage external Investigators if circumstances warrant.

Investigatory Process

Initiating an Investigation

Upon the direction of the Title IX Coordinator, or designee, OCRIE will undertake a prompt and equitable investigation of an alleged violation of this Policy.

Formal Complaint

OCRIE will request that the Complainant prepare a Complaint, if not already prepared.  If OCRIE is investigating an allegation of a violation of this Policy without a Complainant’s active participation, OCRIE will draft the Complaint.  OCRIE may draft a Complaint on behalf of a Complainant and have the Complainant or Title IX Coordinator, as appropriate, endorse it.

Title IX Coordinator has the ability to consolidate Formal complaints and will notify the parties upon consolidation.

Dismissal of Title IX Complainants and Allegations

CMU must dismiss (mandatory dismissal) Title IX Formal Complaints or Title IX allegations at any time during the grievance process if any of the following conditions are met:

1. The conduct alleged in the Formal Complaint would not constitute Title IX Sexual Harassment as defined in the Policy;
2. The conduct did not occur in an educational program or activity controlled by CMU;
3. The conduct did not occur against a person in the United States; and/or

CMU may dismiss (discretionary dismissal) a Title IX Formal Complaint or any Title IX allegations if, any time during the grievance process, any of the following conditions are met:

1. The Complainant notifies the Title IX Coordinator, in writing, that they would like to withdraw the Formal Complaint or any allegations (the Complainant may elect to refile a Formal Complaint or allegations at a later time);
2. The Respondent is no longer enrolled in or employed by CMU; and/or
3. Specific circumstances prevent CMU from gathering evidence sufficient to reach a determination as to the Formal Complaint or allegations.

Upon any dismissal (mandatory or discretionary), OCRIE will promptly send written notice of the dismissal and the rationale for the dismissal simultaneously to the parties.

The dismissal decision is appealable by any party.  Information about appealing a dismissal decision is in the Appeals section.

Dismissal of a Title IX Formal Complaint or Title IX allegations does not preclude OCRIE from continuing to investigate the allegations as non-Title IX violations of this Policy.

Parties' Rights

During any process defined under this Policy or its Procedures, both the Complainant and the Respondent have the right to:

• have an Advisor of their choosing accompany the Party during any stage of the process;
• meet with a representative of OCRIE to discuss resources, supportive measures, and the investigatory process available;
• participate or decline to participate in the process. However, even if a Party declines to participate, CMU may, in some instances, continue to investigate the matter and issue a Determination based on available information in accordance with this Policy and its Procedures;
• consult with any of the resources otherwise available at any time.  A list of confidential and non-confidential resources can be found in Supplemental Appendices A and B;
• be treated with sensitivity, dignity, and respect;
• request Supportive Measures;
• be kept up to date regarding the status of the Complaint; and
• not have the Party’s irrelevant past sexual history discussed during this process.

Notice to Respondent

After receiving a Complaint endorsed by Complainant or Title IX Coordinator and the determination by the Title IX Coordinator, or designee, that OCRIE will undertake an investigation of an alleged violation of this Policy, OCRIE will provide, or cause to be provided, written notice to Respondent:

• of the general nature of the allegations, including sufficient details so that the Respondent will be able to prepare a response, including, if known, identities of the parties; conduct allegedly constituting the Covered Behavior and the date and location of the incident(s) giving rise to the complaint;
• a statement that the Respondent is presumed not responsible and that a determination as to responsibility will be made at the conclusion of the grievance process;
• a statement that either party may have an Advisor present of their choice, who may or may not be an attorney, for the duration of the grievance process;
• a statement that either party may examine any and all evidence that is collected during the investigation, whether or not CMU intends to use that evidence in reaching a decision;
• a statement that all parties and witnesses are prohibited from giving false statements to Investigators or knowingly submitting false materials or information during the grievance process;
• a request to meet with the Investigator; and
• notice that if Respondent does not elect to participate in the investigation, OCRIE will carry out its investigation based on available information and that the Respondent may still be subject to sanction pursuant to this Policy and its Procedures.

Any notices to faculty or staff will also comport with any requirements of the applicable collective bargaining agreement, if any, regarding notice of investigations that may lead to discipline.

Notification of the Formal Complaint may also be provided to:

• if the Respondent is faculty or staff, a copy of the written notice may be provided to:
  • the division leader for the Respondent’s division or the Provost;
  • the administrative head of the appropriate personnel office; and
  • The University’s President, the University’s General Counsel, and/or the University’s Board of Trustees in accordance with CMU policy.
• if the Respondent is a senior officer or an employee in the President's Division, a copy of the written notice will be sent to the University’s President, the University’s General Counsel, and/or the University’s Board of Trustees in accordance with CMU policy;
• if the Respondent is the President, a copy of the written notice will be sent to the Chair of the Board of Trustees and the General Counsel;
• if the Respondent is a student, a copy of the written notice will be sent to the Office of Student Conduct; and
• if the Respondent is a Contractor, Guest, Volunteer, etc., a copy of the written notice may be sent to other appropriate individuals.
• If the Respondent is a member of the University’s Board of Trustees, a copy of the written notice will be sent to the Chair or Vice-Chair of the University’s Board of Trustees, the University’s President, and the University’s General Counsel.

Additional notifications may be made to other appropriate people as required under state and/or federal laws or CMU policy.

Informal Resolutions

At times, the Formal Complaints may be able to be resolved through an Informal Resolution. The Title IX Coordinator, or designee, will determine which matters may be considered for Informal Resolution. The final decision regarding pursuing an Informal Resolution rests with the Title IX Coordinator, or designee, in order to ensure that any safety concerns of the parties and university community are adequately addressed, and that the elimination of the sexual and gender-based misconduct can be met.

The Complainant’s expressed desire regarding the resolution method employed and actions taken by the University will be taken into consideration, where possible.  Both Parties must agree to the Informal Resolution process, and either Party can withdraw from the Informal Resolution process at any time before an Informal Resolution is reached.

Participation by the parties in the Informal Resolution is voluntary.   The Informal Resolution will be documented. At any time, the Title IX Coordinator can end the Informal Resolution and begin the Investigation.  Informal Resolution is not subject to appeal by any party.

Informal Resolutions can include, but are not limited to:

• placing a Respondent on notice that, if such behavior has occurred or is occurring, such conduct should cease immediately;
• The taking of responsibility and assigning of sanction(s);
• education and/or training for a Respondent and/or department;
• supportive measures for Complainant;
• mediation or other informal communication between the Complainant and Respondent;
• messaging to the campus community;
• events and/or trainings offered to the campus community or particular departments; and/or
• referral and/or collaboration with another University department in order to address the allegations and eliminate any potential sexual and gender-based misconduct.

Investigation and Investigative Report

Upon the conclusion of OCRIE’s investigation into an allegation of a violation of this Policy, OCRIE will produce an investigative report to each Party (and that party’s Advisor, for Title IX cases) for review containing an overview of the investigation undertaken and a summary of all evidence and statements reviewed and considered.

OCRIE will provide simultaneous written notice to each Party (and that party’s Advisor, for Title IX cases) that the draft Investigative Report is available.  OCRIE will make the draft Investigative Report available for at least ten (10) calendar days for review and response to the evidence. 

 If there is significant, substantive, new information and/or evidence provided to OCRIE after the review and response is complete, and the parties have each had an opportunity to submit comment, questions, and/or new information, the Investigator will make a determination regarding whether a revised draft Investigative Report will be issued for an additional review and response period of at least ten (10) calendar days.  It is expected that both parties will provide all relevant evidence and information to the Investigator prior to the Investigative Report being drafted. 

After the review and response period, OCRIE will provide the final Investigative Report ten (10) calendar days to each Party (and that party’s Advisor, for Title IX cases) prior to any hearing.

OCRIE will send to each Party (and that party’s Advisor, for Title IX cases) the draft and final Investigative Report, in either hard or electronic copy.

Modification

The investigation may be modified in certain circumstances, including but not limited to, if Respondent admits to all or part of the conduct, if both parties leave the University, or if the investigation is referred to an outside third-party Investigator.

Hearing

Prior to the Hearing, a Notice of Hearing will be issued to the Parties.  The Notice of Hearing will contain a date and location for the Hearing and the identity of the Hearing Officer.

After providing each Party (and advisors, as necessary) with the Investigative Report, CMU will schedule a live Hearing, at which a Hearing Officer will preside over the hearing and will permit each Party or the Party’s Advisor (for non-Title IX Hearings and Title IX Hearings, respectively) to ask the other Party, as well as any witnesses, all relevant cross-examination questions and follow-up questions, including those that challenge credibility.

All Hearings will be run in a manner that ensures fair process for both the Complainant and Respondent, and both parties will have the opportunity, either themselves or through their Advisors (for non-Title IX and Title IX Hearings, respectively), to ask questions.

The Hearing Officer is responsible for maintaining an orderly, fair, impartial, and respectful Hearing. The Hearing Officer has broad authority to respond to disruptive or harassing behaviors, including adjourning the Hearing or excluding any offending person.  All Hearings are closed to the public. A sole recording or transcript of the Hearing will be made by OCRIE.  All other recordings of the Hearing are prohibited.  OCRIE will make the recording or transcript available to the parties for inspection and review.  Copies will not be provided to the parties.

The Title IX Coordinator will assign the person who will act as the Hearing Officer for the Hearing. The Hearing Officer may be a staff member of OCRIE or a neutral, outside third party. The Hearing Officer cannot be the Title IX Coordinator or the Investigator of the matter.

The Hearing Officer and the Investigator will be present at the Hearing. Other OCRIE representatives, such as the Title IX Coordinator, or designee, may be present as determined by the Title IX Coordinator.

The scope of the Hearing will be to allow solely for cross-examination of the Parties and any witnesses.  For Title IX Hearings, this cross-examination shall be conducted by Advisors.  For non-Title IX Hearings, the cross-examination shall be conducted by the Parties.

The Hearing Officer will determine the method for questioning at the Hearing.  The methods of cross-examination questioning may include, but are not limited to, in-person, via video conferencing, or other method identified by the Hearing Officer that enables real-time questioning. Title IX Hearings shall be held so that the Parties can see each other.

If a Complainant, Respondent, or witness declines to participate in the process or Hearing, the Hearing Officer will still proceed with a Title IX Hearing and may still proceed with the non-Title IX Hearing.  Further consequences for a Party’s or witness’ refusal to participate in a Title IX Sexual and Gender-Based Misconduct hearing is described below.

During the Hearing:

• The Hearing Officer is responsible for maintaining an orderly, fair, impartial, and respectful Hearing.
• The Hearing Officer has broad authority to respond to disruptive or harassing behaviors, including adjourning the Hearing or excluding any offending person.
• The Hearing Officer may ask questions.
• The Hearing Officer will make determinations whether specific questions are allowed.
  • Only relevant Cross-Examination or other questions shall be permitted to be asked of a Party or witness.
  • Relevance will be determined by the Hearing Officer after each question is asked of a Party or Witness.
• The Hearing Officer will explain any decision to exclude a question as not relevant.
• The Hearing Officer may allow new evidence at the Hearing only under exceptional circumstances.

Questions and evidence about a Party’s sexual predisposition or prior sexual history are irrelevant and cannot be asked unless they are offered to prove someone other than Respondent committed the misconduct, or to show specific incidents of prior sexual behavior with the respondent and are offered to prove consent.

The decisions made by the Hearing Officer during the Hearing are final and not subject to objection or other form of in-Hearing appeal by any Party or their Advisors. OCRIE will not return any evidence it receives or collects at the Hearing. OCRIE is permitted to independently, and on its own volition, retrieve any and all information available to it.

At the conclusion of the Hearing the Hearing Officer will summarize the Hearing in writing and will include the summary in the Determination.  The Hearing Officer will make a determination of responsibility that will be included in the Determination.

For Hearings that include allegations of Title IX Sexual Harassment, the following additional provisions will apply:

• If a party does not have an Advisor present for the hearing, CMU will provide that party a list of pre-approved, non-biased Advisors, from which the party shall select an Advisor of that party’s choice. If the Advisor is removed (for reasons provided above) or the Advisor does not make themselves available at the time of the Hearing, CMU will provide the Party with an Advisor of CMU’s choice to continue the cross-examination.
• The Hearing Officer cannot draw an inference about the responsibility determination based solely on a party’s or witness’s absence from the Hearing or refusal to submit to cross-examination or other questions.
• Any cross-examinations taking place at the Hearing will be conducted directly, orally, and in real-time by the Party’s Advisor of choice.
• Cross-examinations will never be permitted by either party; only by Advisors.

Determination

Each Determination will contain, at a minimum:

• an overview of the investigation undertaken;
• a summary of all evidence and statements reviewed and considered;
• a summary of the Hearing;
• findings of fact based on the available evidence and statements;
• a finding of credibility, if determined;
• a conclusion as to whether or not a violation of this Policy occurred, or if insufficient evidence exists to make such a conclusion;
• the rationale and analysis in support of the findings and conclusion;
• the actions to restore or preserve equal access to CMU’s education program or activity to the complainant and/or to eliminate the Covered Behavior, prevent its recurrence, and remedy its effects (i.e., sanctions); and
• notice of any appeal rights.

OCRIE will issue a Determination simultaneously to the Complainant, Respondent, the Sanctioning Official; and any other CMU Official the Title IX Coordinator, or designee, deems appropriate.

The decision to modify the procedure will be made by the Title IX Coordinator, or designee.  If the procedure is modified, written notice of the modification will be provided to the Complainant and/or Respondent.

Sanctions

Generally, if a Respondent is found to have violated this Policy, CMU will initiate the appropriate sanctioning process to restore or preserve equal access to CMU’s education program or activity to the complainant and/or to eliminate the misconduct, prevent its recurrence, and deter individuals for similar future behaviors.

The Sanctioning Official shall be responsible for implementing any sanctions or otherwise ensuring any sanctions are implemented.

For non-Title IX cases only, even if a Respondent is found not to have violated this Policy, CMU may direct in writing that the Respondent, in the Respondent’s role as a University Community Member, cease behavior that, if continued or accumulated, would constitute Sexual and Gender-Based Misconduct.

The terms and conditions of the sanction will be contained in the Determination.  The Complainant and the Respondent must be afforded equitable rights under any process used to determine an appropriate sanction.

If the Respondent is a Student, the Director of the Office of Student Conduct, or designee, shall serve as the Sanctioning Official.

The Sanctioning Official may issue any sanction listed below or that is otherwise generally available under CMU’s Code of Student Rights, Responsibilities and Disciplinary Procedures, as may be amended from time to time.

• Reprimand: A written reprimand, including the possibility of more severe disciplinary sanctions in the event of the finding of a subsequent violation of CMU regulations within a stated period of time.
• Removal from CMU Housing: Cancellation of a housing agreement or lease and required vacation of CMU Housing.
• Campus Restrictions: Limitations on the times, places, or activities where a Respondent may be present or otherwise participate in.
• Educational Programs: Participation in educational programs, such as training, workshops, seminars, or other educational activities.
• Revocation of CMU Privileges: Revocation of CMU privileges, such as participation in extra-curricular activities, for a definite or indefinite period of time.
• Disciplinary Probation: Subjection to a period of critical examination and evaluation of behavior.
• No Contact Orders: Prohibition on all forms of contact with certain people.
• Suspension: Exclusion from classes and other privileges or activities as set forth for a definite period of time.
• Dismissal: Permanent termination of student status.

If the Respondent is a Faculty or Staff member, possible sanctions include:

• Written Reprimand:  Written documentation of a failure to abide by CMU policy or procedures maintained in the employee’s personnel file.
• Educational Programs:  Participation in educational programs, such as training, workshops, seminars, or other educational activities.
• Revocation of CMU Privileges:  Revocation of CMU privileges, such as participation in extra-curricular or volunteer activities, for a definite or indefinite period of time.
• Campus Restrictions:  Limitations on the times and/or places where a Respondent may be present on campus.
• No Contact Orders:  Prohibition on all forms of contact with certain people.
• Suspension: Exclusion from work, with or without pay, and other related activities as set forth for a definite period of time.
• Termination:  Permanent separation of the employment relationship.

If the Respondent is a Contractor, Guest, Volunteer, etc., possible sanctions include:

• Trespass Warning:  Notice that future visits to campus may result in a ticket for trespassing.
• Campus Restrictions:  Limitations on the times and/or places where a Respondent may be present on campus.
• No Contact Orders:  Prohibition on all forms of contact with certain people while on campus.
• Relationship Termination: Termination of the relationship (e.g., contractual, volunteer, sponsorship, athletic booster, donor, etc.) between the Respondent and CMU.

Pendency During Appeals

Either party may appeal a Determination, an emergency removal, a dismissal of a Formal Complaint, or a dismissal of any specific allegations contained in a Formal Complaint. Appeals are permitted only for the following reasons:

1. There was a procedural irregularity that affected the outcome;
2. The Title IX Coordinator, Investigator, or Hearing Officer had a conflict of interest or bias for or against either Party, or for or against the Parties in the Decision that is the subject of the appeal; or
3. New evidence is discovered that was not reasonably available at the time of the Determination or dismissal, that could affect the outcome.
   1. Evidence that was known to a Complainant or Respondent prior to the Determination or Dismissal for a Formal Complaint being made available to the parties, but withheld by that individual during the investigation, and was not raised in a Hearing does not constitute new information.
   2. A Party’s claim that they did not know about specific evidence contained within the Determination or Dismissal of a Formal Complaint or that they did not have an opportunity to respond to certain information within the Determination, including the analysis of the evidence or any statements adduced at a Hearing does not constitute the discovery of new information or evidence.

All appeals must be submitted in writing to the Title IX Coordinator within five (5) business days of the issuance of the Determination, emergency removal, or Dismissal of a Formal Complaint that is being appealed.

The individual filing an appeal must establish in their written appeal, by a preponderance of the evidence, sufficient information to show that, if taken as true, their appeal satisfies at least one of the reasons for appeal listed above.

An appeal may not be based on a conclusion of OCRIE that a complaint should be dismissed because the conduct or communication complained of is protected by the First Amendment of the United States Constitution.

The following are not grounds for appeal by any party:

•  The issuance of supportive measures other than emergency removal or administrative leave;
• The determination whether or not to grant a good cause extension of time;
• The decisions about what evidence to consider or witnesses to interview are not subject to appeal;
• The determination of the scope of an investigation;
• The documentation available for review;
• The scope of the Hearing;
• The decisions made by the Hearing Officer at the Hearing; or
• Finalized and signed Informal Resolutions.

Appeal of the findings and conclusion of a Determination, Emergency Removal, or Dismissal of a Formal Complaint

An appeal of the conclusion as to whether or not a violation of this Policy occurred, or if insufficient evidence exists to make such a conclusion, an Emergency Removal, or the Dismissal of a Formal Complaint will be reviewed by the President or desingee.

After reviewing a written appeal, the President, or designee, shall make an initial determination regarding whether the content of the written appeal, if taken as true, establishes by a preponderance of the evidence sufficient grounds for an appeal.

If there are insufficient grounds for an appeal, the President, or designee, shall provide the Complainant, the Respondent, and the Title IX Coordinator with concurrent written notice that the appeal has been denied and dismissed.

If there are sufficient grounds for an appeal, the President, or designee, shall provide the Complainant, the Respondent, and the Title IX Coordinator, or designee, with concurrent written notice that the appeal has been granted and for OCRIE to re-open and proceed with its investigation in light of the new evidence, which may include additional interviews of the Complainant, Respondent, or witnesses.

There is no appeal of the appeal review.

Appeal of the Sanction

If the Respondent is a Student, the grounds for an appeal of a sanction are only that the terms or conditions of the sanction are fundamentally inappropriate or disproportionate based on the Determination.  Either Party (the Complainant or the Respondent) may submit an appeal.

An appeal, if any, from the Sanctioning Official’s decision regarding the appropriate sanctions is limited only to the terms and conditions of any sanction and may not be used as a collateral attack on the findings and conclusions contained within the Determination.

An appeal of the sanction will be reviewed by the Associate Vice President for Student Affairs.

After receiving a written appeal, the Associate Vice President for Student Affairs, or designee, shall decide one of the following:

• an affirmation of the sanction; or
• a rejection of the sanction and the imposition of an alternative sanction that is appropriate given the circumstances and nature of the violation of this Policy.

The Associate Vice President for Student Affairs, or designee, shall simultaneously send the appeal decision to the Complainant, the Respondent, the Sanctioning Office, and the Title IX Coordinator, or designee. The appeal decision of the Associate Vice President of Student Affairs, or designee, is final.

If the Respondent is a Faculty or Staff member, the grounds for an appeal of a sanction are determined by the terms of the collective bargaining agreement or employee handbook covering the terms and conditions of the Respondent’s employment.

An appeal, if any, from the Sanctioning Official’s decision regarding the appropriate sanctions and interventions is limited only to the terms and conditions of any sanctions or interventions and may not be used as a collateral attack of the findings and conclusions contained within the Determination.

The procedures by which a Complainant or a Respondent may appeal a sanction are determined by the terms of the collective bargaining agreement, employee handbook, or contract covering the terms and conditions of the Respondent’s employment.

The appeal procedures, if any, will be simultaneously communicated in writing to the Complainant, the Respondent, and the Title IX Coordinator, or designee. All appeals must be carried out in a prompt and equitable manner, including equal opportunity for both the Complainant and the Respondent to challenge a sanction. All appeals must be carried out in a manner consistent with, and not in contravention of, this Policy and its Procedures.

The outcome of any appeal will be simultaneously communicated in writing to the Complainant, the Respondent, and the Title IX Coordinator, or designee.

Final Notifications

Upon exhaustion of an appeal, or if no appeals are filed in a timely manner, and upon notification to the Title IX Coordinator, or designee, of the status of the appeals, the Title IX Coordinator, or designee, shall provide simultaneous written notice to the Complainant and Respondent that the Determination , including sanction, if any, are final.

Central Michigan University reserves the right to make exceptions to, modify or eliminate this policy and or its content. This document supersedes all pervious policies, procedures or guidelines relative to this subject.