29 Title IX Compliance
Approved by Board of Trustees
Effective Date: September 15, 2020
Responsible Division: President
Responsible Office: Institutional Equity and Compliance
Responsible Officer: Assistant to the President for Institutional Equity and Compliance
A. Middle Tennessee State University (MTSU or University) does not discriminate on the basis of sex in the education program or activity that it operates, including admission and employment, and is required by Title IX of the Education Amendments of 1972 and 34 C.F.R. Part 106 (collectively “Title IX”) not to discriminate in such a manner. Inquiries about the application of Title IX to MTSU may be referred to the Title IX Coordinator (see Section III, below), to the U.S. Department of Education Assistant Secretary for Civil Rights, or both. As required by applicable law, no student, employee, or applicant for admission or employment will be excluded, on the basis of sex, from participation in, be denied the benefit of, or be subjected to discrimination in any MTSU education program or activity.
B. MTSU will not use or distribute a publication stating that it treats applicants, students, or employees differently on the basis of sex except as such treatment is permitted by Title IX.
C. MTSU will not restrict any rights protected from government action by the First Amendment of the U.S. Constitution, deprive a person of any rights that would otherwise be protected from government action under the Due Process Clauses of the Fifth and Fourteenth Amendments of the U.S. Constitution, or restrict any other rights guaranteed against government action by the U.S. Constitution or State of Tennessee Constitution. Any action taken to address an allegation of harassment under this policy shall not infringe on rights protected under the U.S. Constitution, including the First Amendment, Fifth Amendment, and Fourteenth Amendment.
D. Notifications. MTSU will notify applicants for admission and employment, students, employees, and any professional organizations holding professional agreements with MTSU of the requirements of this policy, including notice of the grievance policy specified below, how to report or file a Formal Complaint of Sexual Harassment, and how MTSU will respond to such complaints. MTSU will prominently display the contact information for the Title IX Coordinator listed in Section III, its Title IX policies and procedures, and its training materials as required by Title IX on its website and in any handbook or catalog that it makes available to such individuals and organizations.
A. This policy applies when MTSU has actual knowledge of allegations of Sexual Harassment in any of MTSU's educational programs or activities against persons present in the United States.
B. When a person alleges both sex discrimination and Sexual Harassment committed against a person while in the United States, MTSU will follow its rules, procedures, and processes for responding to a Formal Complaint of Sexual Harassment. If the Formal Complaint is dismissed at any point in the process, MTSU will follow its rules, procedures, and processes used for sex discrimination allegations.
C. Allegations of discrimination, Sexual Harassment, or other sexual misconduct outside the scope of this policy may be addressed under other MTSU policies, including but not limited to Policy 26 Discrimination and Harassment Based on Protected Categories Other Than Sex, Policy 27 Misconduct, Discrimination, and Harassment Based on Sex Including Pregnancy, Sexual Orientation, and Gender Identity/Expression, and Policy 540 Student Conduct.
III. Title IX Coordinator
A. Contact Information: The Title IX Coordinator for MTSU is:
Institutional Equity and Compliance
116 Cope Administration Building
1301 East Main Street
Murfreesboro, TN 37132
The Title IX Coordinator will ensure that applicants for admission and employment, students, employees, and any professional organizations holding professional agreements with MTSU are provided with the contact information for the Title IX Coordinator listed above.
B. Responsibilities. The Title IX Coordinator shall coordinate MTSU’s efforts to comply with this policy and Title IX.
A. Actual Knowledge. Notice of Sexual Harassment or allegations of Sexual Harassment to any of the following:
1. Title IX Coordinator.
2. Any official who has authority to institute corrective measures on behalf of MTSU. The Actual Knowledge standard is not met when the only official of MTSU with actual knowledge is also the Respondent.
These individuals may become aware of Sexual Harassment if they witness Sexual Harassment; hear about Sexual Harassment or Sexual Harassment allegations from a Complainant (i.e., a person alleged to be the victim) or a third party (e.g., the Complainant’s parent, friend, or peer); receive a written or verbal complaint about Sexual Harassment or Sexual Harassment allegations; or by any other means.
B. Complainant. An individual who is alleged to be the victim of conduct that could constitute Sexual Harassment. Complainant does not mean the Title IX Coordinator when the Title IX Coordinator signs a Formal Complaint or is not otherwise an alleged victim of Sexual Harassment.
C. Conflict of Interest. The standard for a conflict of interest as set forth in this policy shall be determined based on the criteria analogous to and no less protective than those set forth in T.C.A. § 4-5-303.
D. Consent. An informed decision, freely given, made through mutually understandable words or actions that indicate a willingness to participate in mutually agreed upon sexual activity. Consent cannot be given by an individual who is asleep, unconscious, or mentally or physically incapacitated, either through the effect of drugs or alcohol or for any other reason, or is under duress, threat, coercion, or force. Past consent does not imply future consent. Silence or an absence of resistance does not imply consent. Consent can be withdrawn at any time.
E. Deliberately Indifferent. A response that is clearly unreasonable in light of the known circumstances.
F. Education Program or Activity. Locations, events, or circumstances over which MTSU exercises substantial control over both the Respondent and the context in which the alleged Sexual Harassment occurred, and also includes any building owned or controlled by a student organization that is officially recognized by MTSU. Conduct that occurs outside of MTSU’s Program or Activity as defined in this policy may be subject to other applicable University policy.
G. Formal Complaint. A document filed by a Complainant or signed by the Title IX Coordinator alleging Sexual Harassment against a Respondent and requesting that MTSU investigate the allegation of Sexual Harassment. As used in this paragraph, the phrase “document filed by a Complainant” means a document or electronic submission (such as by electronic mail or through MTSU’s online reporting portal) that contains the Complainant’s physical or digital signature, or otherwise indicates that the Complainant is the person filing the Formal Complaint. Where the Title IX Coordinator signs a Formal Complaint, the Title IX Coordinator is not a Complainant or otherwise a party under these procedures and must comply with the requirements of this policy.
H. Hearing Officer. The person who is the decision-maker with respect to the determination of responsibility after a live hearing. Hearing Officer may also mean a committee that is the decision-maker with respect to the determination of responsibility after a live hearing. A Hearing Officer cannot be the same person(s) as the Title IX Coordinator or the Investigator(s).
I. Party. Either Complainant or Respondent. References to the plural “parties” includes Complainant and Respondent.
J. Respondent. An individual who has been reported to be the perpetrator of conduct that could constitute Sexual Harassment.
K. Sexual Harassment. Conduct on the basis of sex that satisfies one (1) or more of the following:
1. An employee conditioning the provision of an aid, benefit, or service of MTSU 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 MTSU’s education program or activity; or
3. Any of the following offenses:
a. Sexual Assault. An offense classified as a forcible or nonforcible sex offense under the uniform crime reporting system of the Federal Bureau of Investigation.
(1) Forcible Sex Offenses. Any sexual act directed against the Complainant, without the consent of the Complainant including instances where the Complainant is incapable of giving consent. Forcible sex offenses include:
i. Rape (Excluding statutory rape). The carnal knowledge of the Complainant, without the consent of the Complainant, including instances where the Complainant is incapable of giving consent because of their age or because of their temporary or permanent mental or physical incapacity.
ii. Sodomy. Oral or anal sexual intercourse with the Complainant, without the consent of the Complainant, including instances where the Complainant is incapable of giving consent because of their age or because of their temporary or permanent mental or physical incapacity.
iii. Sexual Assault with an Object. To use an object or instrument to unlawfully penetrate, however slightly, the genital or anal opening of the body of the Complainant, without the consent of the Complainant including instances where the Complainant is incapable of giving consent because of their age or because of their temporary or permanent mental or physical incapacity. An “object” or “instrument” as defined in this section is anything used by the offender other than the offender’s genitalia (e.g., a finger or bottle).
iv. Fondling. The touching of the private body parts of the Complainant for the purpose of sexual gratification, without the consent of the Complainant, including instances where the Complainant is incapable of giving consent because of their age or because of their temporary or permanent mental or physical incapacity.
(2) Nonforcible Sex Offenses. Nonforcible sex offenses include:
i. Incest. Nonforcible sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.
ii. Statutory Rape. Nonforcible sexual intercourse with a person who is under the statutory age of consent.
b. Dating Violence. Violence committed by a person:
(1) who is, or has been, in a social relationship of a romantic or intimate nature with the Complainant; and
(2) where the existence of such a relationship shall be determined based on a consideration of the following factors:
i. The length of the relationship.
ii. The type of relationship.
iii. The frequency of interaction between the persons involved in the relationship.
c. Domestic Violence. 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 or intimate partner, by a person similarly situated to a spouse of the Complainant under the laws of the State of Tennessee, or by any other person against an adult or youth Complainant who is protected from that person's acts under the domestic or family violence laws of the State of Tennessee; or
d. Stalking. Engaging in a course of conduct directed at a specific person that would cause a reasonable person to:
(1) fear for their safety or the safety of others; or
(2) suffer substantial emotional distress.
L. Supportive Measures. Non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the Complainant or the Respondent before or after the filing of a Formal Complaint or where no Formal Complaint has been filed. Such measures are designed to restore or preserve equal access to MTSU’s education program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties and/or the educational environment, or deter Sexual Harassment.
Examples of Supportive Measures include, but are not limited to:
1. Ensuring, when possible, that the complainant and respondent do not attend the same classes;
2. Moving the complainant or respondent to a different residence hall or different work space;
3. Providing access to counseling services;
4. Providing or assisting in providing medical services;
5. Providing assistance for academic modifications, such as extra time to complete course work or modifications to courses or assignments, where possible;
6. Leaves of absence when possible and appropriate; and
7. Mutual no contact orders.
The Title IX Coordinator is responsible for coordinating the effective implementation of Supportive Measures.
M. Written Notice. Notice to a student or employee to their official MTSU email account as well as a hard copy letter sent via first class USPS mail to their local address on file with the University. A notice sent to a recognized MTSU organization will be sent to the organization’s president at their MTSU email address and his/her local address. Students and employees have the responsibility to regularly check their University-issued email accounts and to ensure that the local address on file with MTSU is current.
Written notice to individuals or entities that are not affiliated with the University will be sent to the email address and/or USPS mail address on file with the University, if any.
When notice is sent pursuant to this section by United States mail or courier service, the notice is effective on the date that the notice is mailed or delivered to the courier service. When notice is hand delivered to the student from the institution, notice is effective on the date that the notice is delivered to the student or employee to whom the notice is addressed. When notice is sent by email, the notice is effective on the date that the email is sent to the student’s or employee’s institution-provided email account.
V. Reports and Formal Complaints of Sexual Harassment
A. Making a Report to the Title IX Coordinator. Any person may report sex discrimination, including Sexual Harassment (whether or not the person reporting is the person alleged to be the victim of conduct that could constitute sex discrimination or Sexual Harassment), in person, by mail, by telephone, or by electronic mail, MTSU’s online reporting portal, using the contact information listed for the Title IX Coordinator, or by any other means that results in the Title IX Coordinator receiving the person’s verbal or written report. Such a report may be made at any time (including during non-business hours) by using the telephone number, online reporting portal, or electronic mail address, or by mail to the office address, listed for the Title IX Coordinator.
The following MTSU employees are required to report sex discrimination, including Sexual Harassment, of which they are aware, to the Title IX Coordinator.
1. Title IX Deputy Coordinators;
2. University Police;
3. Residence hall/housing area coordinators, resident directors, and resident assistants;
4. President, Provost, Vice Provosts, Associate Vice Provosts, Assistant Vice Provosts, Vice Presidents, Associate Vice Presidents, Assistant Vice Presidents;
5. Deans, Associate Deans, Assistant Deans, Directors, Associate Directors, Assistant Directors, Department Chairs/Heads;
6. Faculty and graduate assistants;
7. Advising managers;
8. Advisors for student organizations;
9. Athletic coaches and trainers;
10. Athletic Director, Associate Athletic Director(s), and Assistant Athletic Directors; and
11. Campus Security Authorities.
B. Response to Actual Knowledge of Sexual Harassment. If MTSU has actual knowledge of Sexual Harassment in an education program or activity committed against a person while in the United States, MTSU will respond promptly in a manner that is not deliberately indifferent and follow its Grievance Process.
C. With or without a Formal Complaint, after receiving actual knowledge of Sexual Harassment, the Title IX Coordinator will:
1. Promptly contact the Complainant to discuss the availability of Supportive Measures;
2. Consider the Complainant’s wishes with respect to Supportive Measures;
3. Inform the Complainant of the availability of Supportive Measures, with or without the filing of a Formal Complaint; and
4. Explain to the Complainant the process for filing a Formal Complaint.
a. A Formal Complaint may be filed with the Title IX Coordinator in person, by mail, through MTSU’s online reporting portal, or by electronic mail, by using the contact information set forth in Section III.
b. At the time of filing a Formal Complaint, a Complainant must be participating in, or attempting to participate in, the education program or activity of MTSU.
c. In response to a Formal Complaint, MTSU will follow the Grievance Process set forth in Section VI.
D. MTSU’s Response to a Report of Sexual Harassment. MTSU’s response to receiving actual knowledge of Sexual Harassment will treat Complainants and Respondents equitably by offering Supportive Measures to a Complainant, and by following the Grievance Process set forth in Section VI, before the imposition of any disciplinary sanctions or other actions that are not Supportive Measures, against a Respondent.
E. Interim Suspension of Student. Notwithstanding the above, MTSU may remove a Respondent from MTSU’s education program or activity on an emergency basis, with or without a Grievance Process pending, provided that MTSU undertakes an individualized safety and risk analysis, and determines that an immediate threat to the physical health or safety of any student or other individual arising from the allegations of Sexual Harassment justifies removal, and provides the Respondent with written notice and an opportunity to challenge the decision immediately following the removal. The procedure for the immediate removal of a student on an emergency basis is set forth in Policy 540 Student Conduct.
F. Administrative Leave of Employee. MTSU may place an employee Respondent on administrative leave during the pendency of the Grievance Process set forth in Section VI.
VI. Grievance Procedures
A. Purpose. The grievance procedures set forth below are intended to provide for the prompt and equitable resolution of a Formal Complaint by any student or employee alleging any action that would be prohibited by this policy.
B. Notification of Grievance Procedures. MTSU will provide notice to applicants for admission and employment, students, employees, and any professional organizations holding professional agreements with MTSU of these grievance procedures and Grievance Process, including how to report or file a complaint of sex discrimination, how to report or file a Formal Complaint of Sexual Harassment, and how MTSU will respond.
C. Basic Requirements. The following shall be required during MTSU’s Grievance Process:
1. Equitable Treatment. MTSU will apply its grievance procedures and requirements equally to both parties. During any proceeding under this policy, MTSU will treat Complainants and Respondents equitably by providing remedies to a Complainant where a determination of responsibility for Sexual Harassment has been made against the Respondent, and by following the Grievance Process set forth below before the imposition of any disciplinary sanctions or other actions that are not Supportive Measures against a Respondent. Remedies must be designed to restore or preserve equal access to the education program or activity. Such remedies may be disciplinary or punitive in nature and need not avoid burdening the Respondent and may include the same individualized services set forth in Section IV.L. as Supportive Measures.
2. Presumption of Non-Responsibility. Throughout the Grievance Process set forth in this policy, the Respondent is presumed not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the Grievance Process.
3. Objective Evaluation. Any grievance pursuant to these procedures will include an objective evaluation of all relevant evidence, including both inculpatory and exculpatory evidence. Credibility determinations may not be based on a person’s status as a Complainant, Respondent, or witness.
4. Conflicts of Interest Prohibited. The Title IX Coordinator, Investigator(s), Hearing Officer, decision-maker on appeal, or any person designated to facilitate an informal resolution process, shall be free from any conflict of interest or bias for or against Complainants or Respondents generally or an individual Complainant or Respondent. The intent of this provision is to provide protections analogous to, and no less protective than, the conflict of interest provisions of T.C.A. § 4-5-303.
If any party believes that any of these individuals has a conflict of interest, that party must submit a written explanation of the reason for that belief to the Assistant Vice President for Human Resource Services (HRS). The explanation must be submitted within three (3) business days, absent good cause, of the time when the party knew or should have known the facts that would give rise to the alleged conflict of interest. The Assistant Vice President for HRS will determine if the facts warrant the appointment of a different Title IX Coordinator, Investigator, Hearing Officer, decision-maker on appeal, or informal resolution facilitator and will respond to the requesting party in writing within three (3) business days, absent good cause. The decision of the Assistant Vice President for HRS shall be final.
a. MTSU will provide annual training that satisfies the requirements of Title IX and will be developed or conducted consistent with the requirements of state law, including, but not limited to, T.C.A. § 4-5-324. Training materials must not rely on sex stereotypes and must promote impartial investigations and adjudications of Formal Complaints of Sexual Harassment.
b. The Title IX Coordinator, Investigators, Hearing Officers, decision-makers on appeal, and any person who facilitates an informal resolution process will be trained on the following matters:
(1) The definition of Sexual Harassment;
(2) The scope of MTSU’s education program or activity;
(3) How to conduct an investigation and Grievance Process including hearings, appeals, and informal resolution processes, as applicable;
(4) How to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias;
c. Hearing Officers will receive annual training on the matters listed above as well as:
(1) Any technology to be used at a live hearing; and
(2) Issues of relevance of questions and evidence, including when questions and evidence about the Complainant’s sexual predisposition or prior sexual behavior are not relevant, as set forth in Section XI.A.8.
d. Investigators will receive additional training on issues of relevance to create an Investigative Report that fairly summarizes relevant evidence, as set forth in Section X.
e. All materials used to train Title IX Coordinators, Investigators, Hearing Officers, decision-makers on appeal, and any person who facilitates an informal resolution process will be publicly available on MTSU’s website.
D. Time Frames. MTSU will endeavor to complete the Grievance Process set forth herein within one hundred twenty (120) days of the filing of the Formal Complaint (not including appeal or time periods spent attempting informal resolution). This time frame and others set forth in this policy are guideposts and may be extended for good cause. Good cause may include considerations such as the absence of a party, a party’s advisor, or a witness; concurrent law enforcement activity; or the need for language assistance or accommodation of disabilities. The Complainant and Respondent shall be promptly notified of the need for any delay.
E. Available Sanctions and Remedies. The possible disciplinary sanctions and remedies that MTSU may implement following any determination of responsibility will vary based on the status of the Respondent:
1. Administrative and Classified Employees: Policy 851 Disciplinary Policy for Administrative and Classified Personnel, Section IV.
2. Faculty: Policy 204 Tenure, Section VIII. G and H.
3. Students: Policy 540 Student Conduct, Section VI.
F. Standard of Evidence. The standard of evidence to be used to determine responsibility is the preponderance of the evidence standard.
G. Privileged Materials. Neither the University nor any party will be required or allowed to rely upon, or otherwise use questions or evidence that constitute or seek disclosure of, information protected under a legally recognized privilege unless the person holding such privilege has waived the privilege.
VII. Notice of Allegations
A. Upon receipt of a Formal Complaint, the Title IX Coordinator or Investigator will provide the following written notices to the parties who are known:
1. Notice of MTSU’s Grievance Process including any informal resolution process.
2. Notice of the allegations of conduct potentially constituting Sexual Harassment, including sufficient details known at the time. This notice shall be provided with sufficient time to prepare a response before any initial interview.
Sufficient details include:
a. The identities of the parties involved in the incident, if known.
b. The conduct allegedly constituting Sexual Harassment.
c. The date and location of the alleged incident, if known.
3. A statement that the Respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the Grievance Process.
4. Notice to the parties that they may have an advisor of their choice, who may be, but is not required to be, an attorney and the extent to which MTSU will allow the advisor to participate in an investigation or hearing under this Policy (See Section X.E.).
5. Notice that the parties may inspect and review evidence as set forth in Section X.G.
6. Notice to the parties that knowingly making false statements or knowingly submitting false information during the Grievance Process is prohibited. (See Policy 540 Student Conduct, Section IV.A.11. Unacceptable Conduct in Disciplinary Proceedings; Policy 10 Ethics and Code of Conduct; Policy 204 Tenure, Section VIII.G.; Policy 851 Disciplinary Policy for Administrative and Classified Personnel, Section IV.B.)
B. If, in the course of an investigation, MTSU decides to investigate allegations about the Complainant or Respondent that are not included in the original written notice discussed above, MTSU will provide written notice of the additional allegations to the parties whose identities are known.
VIII. Dismissal of a Formal Complaint
A. Mandatory Dismissal. MTSU must dismiss the Formal Complaint with regard to any alleged conduct that:
1. would not constitute Sexual Harassment under this policy, even if proved;
2. did not occur in MTSU’s education program or activity; or
3. did not occur against a person present in the United States at the time of the alleged conduct.
If appropriate, the Title IX Coordinator will forward allegations of misconduct dismissed under this section to the appropriate administrative office for review and, if appropriate, additional action under other University rules and procedures may be taken.
B. Permissive Dismissal. MTSU may dismiss the Formal Complaint or any allegations therein, if at any time during the investigation or hearing:
1. Complainant notifies the Title IX Coordinator in writing that the Complainant would like to withdraw the Formal Complaint or any allegations therein;
2. Respondent is no longer enrolled or employed by MTSU; or
3. Specific circumstances prevent MTSU from gathering evidence sufficient to reach a determination as to the Formal Complaint or allegations therein.
C. Following a mandatory or permissive dismissal set forth above, the Title IX Coordinator must promptly send written notice of the dismissal and reason(s) therefor simultaneously to the parties.
IX. Consolidation of Formal Complaints
MTSU may consolidate Formal Complaints as to allegations of Sexual Harassment against more than one Respondent, or by more than one Complainant against one or more Respondents, or by one party against the other party, where the allegations of Sexual Harassment arise out of the same facts or circumstances.
X. Investigation of a Formal Complaint
MTSU will investigate, to the extent necessary or possible, the allegations in a Formal Complaint. When investigating a Formal Complaint and throughout the Grievance Process, the investigator will observe the following requirements:
A. Burden of Proof. The burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility rests on MTSU and not on the parties;
B. Prohibition on Use of Privileged Documents. MTSU may not access, consider, disclose, or otherwise use a party’s records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional’s or paraprofessional’s capacity, or assisting in that capacity, and which are made and maintained in connection with the provision of treatment to the party, unless MTSU obtains that party’s voluntary, written consent to do so for a Grievance Process under this section.
C. MTSU will provide an equal opportunity for the parties to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence.
D. MTSU will not restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence.
E. Use of an Advisor. The parties are permitted to have others present during any Grievance Proceeding, including the opportunity to be accompanied to any related meeting or proceeding by the advisor of their choice, who may be, but is not required to be, an attorney. MTSU does not place any limits on the choice or presence of advisor for either the Complainant or Respondent in any meeting or Grievance Proceeding. Except for participation in cross-examination as set forth in Section XI.A.6., the advisor’s role in any other meeting or proceeding shall be limited to an advisor role only and the advisor may not otherwise participate in the meeting or proceedings.
F. Notice to Parties. The Investigator will provide to a party whose participation is invited or expected written notice of the date, time, location, participants, and purpose of all hearings, investigative interviews, or other meetings with a party, with sufficient time for the party to prepare to participate.
G. Access to Evidence. MTSU will allow both parties an equal opportunity to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in a Formal Complaint, including the evidence upon which MTSU does not intend to rely in reaching a determination regarding responsibility and inculpatory or exculpatory evidence, whether obtained from a party or other source, so that each party can meaningfully respond to the evidence prior to conclusion of the investigation.
Prior to completion of the Investigative Report, the Investigator will send to each party and the party’s advisor (if any), the evidence subject to inspection and review in an electronic format or a hard copy. The parties will have ten (10) business days to submit a written response, which the Investigator will consider prior to completion of the Investigative Report. MTSU must make all such evidence subject to the parties’ inspection and review available at any hearing to give each party equal opportunity to refer to such evidence during the hearing, including for purposes of cross-examination.
H. Final Investigative Report. The Investigator will create an Investigative Report that fairly summarizes relevant evidence. At least ten (10) days prior to a hearing or other time of determination regarding responsibility, the Investigator will send to each party and the party’s advisor (if any), the Investigative Report in an electronic format or a hard copy, for their review and written response.
A. Hearing Procedures. At least ten (10) days after the completion of the Investigative Report and distribution to the parties and their advisors (if any), MTSU will convene a live hearing for any Formal Complaint not dismissed pursuant to this policy. The Hearing Officer maintains authority to set the procedures and control the conduct of the hearing provided that the Hearing Officer must observe the procedures required by this policy, Title IX, and other applicable MTSU rules or policies.
1. Location of Hearing. Live hearings pursuant to this section may be conducted with all parties physically present in the same geographic location or, at MTSU’s discretion, any or all parties, witnesses, and other participants may appear at the live hearing virtually, with technology enabling participants simultaneously to see and hear each other.
2. Availability of Evidence. The Hearing Officer will make all evidence that was subject to review and inspection during the investigation phase available to the parties during the hearing. The parties will have equal opportunity to refer to that evidence, including for purposes of cross-examination.
3. Extensions of Time. The Hearing Officer may allow a temporary delay of the Grievance Process or the limited extension of time frames for good cause with written notice to the Complainant and the Respondent of the delay or extension and the reasons for the action. Good cause may include but is not limited to considerations such as the absence of a party, a party’s advisor, or a witness, concurrent law enforcement activity, or the need for language assistance or accommodation of disabilities.
4. Separation of Parties. At the request of either party, the Hearing Officer will provide for the live hearing to occur with the parties located in separate rooms with technology enabling the Hearing Officer and parties to simultaneously see and hear the party or the witness answering questions.
5. At least seventy-two (72) hours prior to a live hearing, MTSU will provide both parties with written notice of the following:
a. The time, place, and date of the hearing, and electronic access information, if applicable;
b. The name of each witness MTSU expects to present at the hearing and those MTSU may present if the need arises;
c. The right to request a copy of the investigative file; and
d. The right to request copies of all documents, copies of all electronically stored information, and access to tangible evidence that MTSU has in its possession, custody, or control and may use to support claims or defenses.
6. Cross-examination. Each party’s advisor will be permitted to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility. Cross-examination at the live hearing must be conducted directly, orally, and in real time by the party’s advisor and never by a party personally. If a party does not have an advisor present at the live hearing, MTSU will provide an advisor of its choice to conduct cross-examination on behalf of that party without fee or charge to that party.
7. Relevance. Only relevant questions may be asked of a party or witness on either direct or cross-examination. Before a Complainant, Respondent, or witness answers a question, the Hearing Officer must first determine whether the question is relevant. The Hearing Officer must explain any decision to exclude a question as not relevant.
8. Complainant’s Prior Sexual Behavior. Questions and evidence about the Complainant’s sexual predisposition or prior sexual behavior are not relevant, except as follows:
a. If such questions and evidence about the Complainant’s prior sexual behavior are offered to prove that someone other than the Respondent committed the conduct alleged by the Complainant; or
b. If the questions and evidence concern specific incidents of the Complainant’s prior sexual behavior with respect to the Respondent and are offered to prove consent.
9. Exclusion of all evidence not subject to cross-examination. If a party or witness does not submit to cross-examination at the live hearing, the Hearing Officer must not rely on any statement of that party or witness in reaching a determination regarding responsibility; the Hearing Officer cannot draw an inference about the determination regarding responsibility based solely on a party’s or witness’s absence from the live hearing or refusal to answer cross-examination or other questions.
10. Recording of Hearing. MTSU will create an audio or audiovisual recording or transcript of any live hearing and make it available to the parties for inspection and review.
B. Determination Regarding Responsibility
1. The Hearing Officer must issue a written determination regarding responsibility under the standard of evidence set forth in Section VI.F.
2. The written determination must include the following:
a. Identification of the allegations potentially constituting Sexual Harassment;
b. A description of the procedural steps taken from the receipt of the Formal Complaint through the determination, including any notifications to the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, and hearings held;
c. Findings of fact supporting the determination;
d. Conclusions regarding the application of MTSU’s rule, policy, and, if applicable, code of conduct to the facts;
e. A statement of, and rationale for, the result as to each allegation, including:
(1) A determination regarding responsibility;
(2) Any disciplinary sanctions MTSU imposes on the Respondent;
(3) Whether remedies designed to restore or preserve equal access to MTSU’s education program or activity will be provided by MTSU to the Complainant; and
f. The procedures and permissible bases for the Complainant and Respondent to appeal.
3. The Hearing Officer will provide the written determination to the parties simultaneously. The determination regarding responsibility becomes final either on the date that MTSU provides the parties with the written determination of the result of the appeal, if an appeal is filed, or if an appeal is not filed, the date on which an appeal would no longer be considered timely.
4. If remedies were provided in the written determination, the Title IX Coordinator is responsible for effective implementation of any remedies.
A. Availability of Appeal. Both parties may appeal the following:
1. A determination regarding responsibility; or
2. The dismissal of a Formal Complaint or any allegations therein.
B. Decision-maker on Appeal. The appeal will be decided by the President or their designee.
C. Bases for Appeal. The bases of appeal shall be as follows:
1. Procedural irregularity that affected the outcome of the matter;
2. New evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made that could affect the outcome of the matter; and
3. The Title IX Coordinator, Investigator(s), or Hearing Officer had a conflict of interest or bias for or against Complainants or Respondents generally or the individual Complainant or Respondent that affected the outcome of the matter.
D. Timeframe for Appeal. A party wishing to appeal a determination regarding responsibility or the dismissal of a Formal Complaint or any allegations therein must file a written appeal with the Title IX Coordinator within ten (10) business days of the date of the determination or the dismissal. The written appeal must identify the basis or bases for the appeal and explain with specificity the facts supporting the basis or bases of the appeal.
E. In the event of an appeal filed by the other party, the non-appealing party will be permitted to submit a written statement in support of the outcome within ten (10) business days after the Title IX Coordinator notifies the party of filing of the written appeal.
F. Appeal Procedure. For any appeal made under this policy, the Title IX Coordinator or designee will:
1. Notify the other party in writing when an appeal is filed and implement appeal procedures equally for both parties;
2. Ensure that the decision-maker for the appeal is not the same person as any Investigator(s) or the Hearing Officer that reached the determination regarding responsibility or dismissal, the Investigator(s), or the Title IX Coordinator;
3. Ensure that the decision-maker for the appeal meets the requirements of Section VI.C.4. and 5. regarding training, bias, and conflicts of interest; and
4. The decision-maker for appeal will:
a. Give both parties a reasonable, equal opportunity to submit a written appeal statement in support of, or challenging, the outcome;
b. Issue a written decision describing the result of the appeal and the rationale for the result; and
c. Provide the written decision simultaneously to both parties.
XIII. Informal Resolution
At any time prior to reaching a determination regarding responsibility on a Formal Complaint, with the voluntary, written consent of the parties, MTSU may facilitate an informal resolution process that does not involve a full investigation and adjudication.
A. Prior to initiating an informal resolution process, the Title IX Coordinator or designee will provide to the parties a written notice disclosing:
1. the allegations;
2. the requirements of the informal resolution process including the circumstances under which it precludes the parties from resuming a Formal Complaint arising from the same allegations;
3. that at any time prior to agreeing to a resolution, any party has the right to withdraw from the informal resolution process and resume the Grievance Process with respect to the Formal Complaint; and
4. any consequences resulting from participating in the informal resolution process, including the records that will be maintained or could be shared.
B. Informal resolution is not available to resolve allegations that an employee sexually harassed a student.
C. Absent good cause or agreement by the parties, any attempt to informally resolve the Formal Complaint must be completed within twenty (20) business days following the initiation of the informal resolution process, at which time investigation/adjudication will resume.
D. MTSU will ensure that an individual designated to facilitate an informal resolution process does not have a conflict of interest or bias for or against Complainants or Respondents generally or an individual Complainant or Respondent. The intent of this provision is to provide protections analogous to, and no less protective than, the conflict of interest provisions of T.C.A. § 4-5-303.
A. The procedures set forth in Policy 27 Misconduct, Discrimination, and Harassment Based on Sex Including Pregnancy, Sexual Orientation, and Gender Identity/Expression apply to complaints alleging retaliation, which includes:
1. Intimidation, threats, coercion, or discrimination against any individual for the purpose of interfering with any right or privilege secured by Title IX or because the individual has made a report or complaint, testified, assisted, or participated, or refused to participate, in any manner in an investigation, proceeding, or hearing under this policy is strictly prohibited.
2. Intimidation, threats, coercion, or discrimination, including charges against an individual for code of conduct violations that do not involve sex discrimination or Sexual Harassment, but arise out of the same facts or circumstances as a report or complaint of sex discrimination, or a report or Formal Complaint of Sexual Harassment, for the purpose of interfering with any right or privilege secured by Title IX.
B. The exercise of rights protected under the First Amendment does not constitute retaliation prohibited by this policy.
C. Charging an individual with a code of conduct violation for making a materially false statement in bad faith in the course of a grievance proceeding under this Policy does not constitute retaliation prohibited by this policy, provided, however, that a determination regarding responsibility, alone, is not sufficient to conclude that any party made a materially false statement in bad faith.
MTSU will maintain the confidentiality of the identity of any individual who has made a report or complaint of sex discrimination, including any individual who has made a report or filed a Formal Complaint of Sexual Harassment, any Complainant, any individual who has been reported to be the perpetrator of sex discrimination, any Respondent, and any witness, except as may be permitted by the FERPA statute, 20 U.S.C. 1232g, or FERPA regulations, 34 CFR part 99, or as required by law, or to carry out the purposes of Title IX, including the conduct of any investigation, hearing, or judicial proceeding arising thereunder.
MTSU will keep confidential any Supportive Measures provided to the Complainant or Respondent, to the extent that maintaining such confidentiality does not impair MTSU’s ability to provide the Supportive Measures.
A. The recordkeeping requirements in this policy supersede the record keeping requirements set forth in Policy 129 Records Retention and Disposal of Records.
B. MTSU will retain the following records for a period of seven (7) years:
1. Each Sexual Harassment investigation, including any determination regarding responsibility and any recording or transcript of any live hearing, any disciplinary sanctions imposed on the Respondent, and any remedies provided to the Complainant designed to restore or preserve equal access to MTSU’s education program or activity;
2. Any appeal and the result therefrom;
3. Any informal resolution and the result therefrom;
4. All materials used to train Title IX Coordinators, Investigators, Hearing Officers, decision-makers on appeal, and any person who facilitates an informal resolution process, will be publicly available on MTSU’s website.
5. For each response to actual knowledge of Sexual Harassment, MTSU must create, and maintain for a period of seven (7) years, records of any actions, including any Supportive Measures, taken in response to a report or Formal Complaint of Sexual Harassment.
a. In each instance, MTSU must document the basis for its conclusion that its response was not deliberately indifferent, and document that it has taken measures designed to restore or preserve equal access to MTSU’s education program or activity.
b. If MTSU does not provide a Complainant with Supportive Measures, then it must document the reasons why such a response was not clearly unreasonable in light of the known circumstances.
c. The documentation of certain bases or measures does not limit MTSU in the future from providing additional explanations or detailing additional measures taken.
Last Reviewed: September 2020.
References: MTSU Policies 10 Ethics and Code of Conduct; 26 Discrimination and Harassment Based on Protected Categories Other Than Sex; 27 Misconduct, Discrimination, and Harassment Based on Sex Including Pregnancy, Sexual Orientation, and Gender Identity/Expression; 129 Records Retention and Destruction of Records; 204 Tenure; 540 Student Conduct; 851 Disciplinary Policy for Administrative and Classified Employees; Title IX; 34 C.F.R. Part 109; T.C.A. §§ 4-5-303., 4-5-324.