Procedures for Resolution of Complaints Against Students
This policy prohibits sexual misconduct of all forms, including sexual harassment, sexual assault, sexual exploitation, indecent exposure, intimate-partner violence, dating violence and domestic violence, retaliation, stalking, and other misconduct that is sex or gender based, or in the context of an intimate partner relationship including: bullying and intimidation, physical assault, and discrimination.
The Sexual Assault and Harassment Policy applies to all members of the College community, including students, employees, volunteers, independent contractors, visitors, or any individuals regularly or temporarily employed, studying, living, visiting, conducting business or having any official capacity at the College. The College has jurisdiction over complaints based on Title IX and may take disciplinary action against a respondent who is a current student or employee. The policy’s full scope is described in the Sexual Assault and Harassment Policy. For a full description of policy intent, privacy/confidentiality issues, definitions of prohibited conduct and related definitions (i.e., consent), resources, reporting options, the roles of the Title coordinator and Title IX deputies, and policy timeframes, please see the full policy.
These specific procedures apply to complaints against students. Swarthmore, Haverford, and Bryn Mawr Colleges are part of the Tri-College Consortium. Swarthmore students may also cross-register with the University of Pennsylvania. Swarthmore students, when studying or visiting the campuses of Haverford, Bryn Mawr, or the University of Pennsylvania, or when attending a College-related event for one of these four institutions, are subject to this policy as well as the policies of the visited institution. Students from either Haverford, Bryn Mawr, or the University of Pennsylvania who are enrolled in Swarthmore College classes are also protected by and subject to standards of this policy and any potential violations may be adjudicated under this policy and/or through their home institution. Procedures for complaints against staff and instructional staff, including faculty, are set forth in the Procedures for Resolution of Complaints Against Staff and Instructional Staff, including Faculty.
II. Procedural options
As outlined in the Reporting section of the Sexual Assault and Harassment Policy, an individual who wishes to make a report of sexual misconduct is encouraged to make a report directly to the Title IX coordinator. In every report of sexual misconduct, the Title IX coordinator, through the coordinated efforts of the assessment team, when the Title IX coordinator deems appropriate, will conduct the Title IX assessment. At the conclusion of the Title IX assessment, in consideration of the complainant’s wishes and the safety of the campus community, the report may be referred for remedies-based resolution and/or investigation to determine if there is sufficient information to proceed with a student conduct resolution. Remedies-based resolution does not involve disciplinary action against a respondent. Student conduct resolution is a sanctions-based approach that may involve discipline up to and including expulsion.
III. Title IX assessment
Although a report may come in through many sources, the College is committed to ensuring that all reports of sexual misconduct are referred to the Title IX coordinator, which ensures consistent application of the Sexual Assault and Harassment Policy to all individuals and allows the College to respond promptly and equitably to eliminate harassment, prevent its recurrence, and eliminate its effects. The Title IX coordinator may enlist the Title IX assessment team to assist in the review, investigation, and/or resolution of the report. Members of this interdepartmental team include the Title IX coordinator, deputy Title IX coordinators, associate dean of students, and public safety. Depending on the relationship of the complainant and the respondent to the College (student, staff, faculty, or other) and the nature of the report, additional team members may include human resources, the Provost’s office, and others as may be necessary. The members of this team oversee the resolution of the reported harassment or misconduct through the College’s resolution procedures.
Upon receipt of a report, the Title IX coordinator and, when applicable, the coordinated efforts of the Title IX assessment team, will provide resources and support information and will conduct an initial Title IX assessment. The first step of the assessment will typically include a preliminary meeting between the complainant and the Title IX coordinator or a member of the assessment team. The purpose of the preliminary meeting is to gain a basic understanding of the nature and circumstances of the report; it is not intended to be a full investigation interview. At this meeting, the complainant will be provided with information about resources, procedural options, and interim remedies.
During this initial review, the Title IX assessment team member(s) will make a reasonable assessment of the safety of the individual and of the campus community and will determine whether the College has sufficient information to determine the appropriate course of action.
The Title IX assessment team will also consider the interest of the complainant and the complainant’s expressed preference for the manner of resolution. Where possible and as warranted by an assessment of the facts and circumstances, the College will seek action consistent with the complainant’s request.
During the Title IX assessment, the Title IX coordinator or designee(s) will:
- assess the nature and circumstances of the allegation;
- address immediate physical safety and emotional well-being of the complainant and the College community;
- notify the complainant of the range of interim measures and remedies, including options for changes in living, academic, transportation, working situations;
- provide the complainant with information about on- and off-campus resources, including support options and visa and immigration assistance;
- provide information about their student financial aid options;
- obtain the complainant’s expressed preference for the manner of resolution and assess any barriers to proceeding;
- provide the complainant with an explanation of the limitations on the College’s response should the complainant choose to remain anonymous;
- provide information about a sexual assault and harassment policy case manager and information about an adviser of their choice;
- provide contact information for off-campus legal resources;
- determine if concerns exist for discrimination or harassment based on other protected classes;
- explain the College’s policies for confidentiality and prohibiting retaliation, as described in the Sexual Assault and Harassment Policy;
- explain the difference between confidential and non-confidential resources;
- assess the reported conduct for the need for a timely warning notice under federal law;
- determine if pattern of evidence or other similar conduct by respondent exists;
- determine if any issues of academic freedom exist, which may be reviewed by the Provost or designee;
- enter non-identifying information about the report into the College’s daily crime log
- provide the complainant with a written explanation of the complainant’s rights and options, whether the incident occurred on or off campus including:
- the right to report, or decline to report, the incident to law enforcement if the conduct is potentially criminal in nature. The college is available to assist in this process;
- the right to obtain a Protection from Abuse (PFA) Order from local authorities or request Contact Restrictions from the College;
- the right and importance of seeking medical treatment to address physical health and to preserve evidence;
- the right to file a complaint through the applicable internal complaint resolution process;
- the right to receive an explanation of the internal complaint resolution process and the preponderance of the evidence standard of proof used to resolve the complaint (“more likely than not”);
- the right to be provided a prompt, fair, and impartial investigation and resolution; and
- the right to receive an explanation of the potential remedies for victims, potential remedies for the college community, and possible sanctions against respondents.
The Title IX assessment team will take all reasonable steps to respond to a complaint consistent with a complainant’s request for confidentiality, but must balance that request with its responsibility to provide a safe and non-discriminatory environment for all College community members and afford a respondent fundamental fairness.
In the event that a complainant does not wish to proceed with formal action or requests confidentiality or that a name or other identifiable information not be shared with the respondent, the Title IX coordinator, in consultation with the Title IX assessment team, as applicable, will decide, based on the available information, whether it can honor the request and whether additional steps are required. In making this decision, the Title IX assessment team will include but is not limited to the following factors: whether the complainant has requested confidentiality; whether the complainant wants to participate in additional steps; the severity and impact of the sexual misconduct; the respective ages of the parties, including whether the complainant is a minor under the age of 18; whether the College can undertake any action without the participation of the complainant; whether the respondent has a pattern of committing sexual misconduct; the existence of independent evidence; the extent of prior remedial methods taken with the respondent; and any legal obligation to proceed based on the nature of the conduct. The College’s ability to respond may be limited by a request for confidentiality. The Complainant will be notified if the College determines that it cannot honor such a request.
At the conclusion of the Title IX assessment, the Title IX coordinator, in collaboration as appropriate with the Title IX assessment team, will determine whether to refer the report for remedies-based resolution and/or for further investigation. An investigation does not necessarily initiate a student conduct hearing. Even if a student conduct hearing is not pursued, the College has the discretion to take interim measures that ensure campus safety.
The Title IX coordinator or a member of the Title IX assessment team will discuss the determination with the complainant and provide information to assist in understanding available resources and procedural options, which will be communicated to the complainant in writing.
The respondent will be notified in writing when the College seeks action that would impact a respondent, such as protective measures that restrict the respondent’s movement on campus, the decision to invite the respondent to participate in remedies-based resolution, and/or the initiation of an investigation.
The College will inform the complainant and the respondent that retaliation is prohibited by law under the Violence Against Women Act (VAWA) and College policy and that the College will take strong responsive action to protect the safety of any individual. If the College has determined that retaliation has occurred, it will not be tolerated and will result in disciplinary action.
The Title IX coordinator will document each report or request for assistance in resolving a case involving charges of sexual misconduct, whether by the complainant or a third party, and will review and retain copies of all reports generated as a result of investigations. These records will be kept confidential to the extent permitted by law.
IV. Interim measures
Upon receipt of a report of sexual misconduct, the College may offer and/or impose actions, referred to as interim measures, to immediately address the reported behavior. The College will maintain consistent contact with the parties to ensure that all safety and emotional and physical well-being concerns are being addressed. The College will maintain the privacy of the individuals who have requested interim measures and the College will, to the best of its ability, keep interim measures confidential. Interim measures may be imposed regardless of whether a criminal or College complaint has been filed or a student conduct process has been initiated. To request interim measures, contact the Title IX coordinator or victim advocate. In general, all interim measures that require action by the College are implemented through the Title IX Coordinator. The confidential advocate can also assist with referrals to medical assistance, counseling, campus resources, and provide detailed information about interim measures available.
B. Range of interim measures
The College, at its discretion, will implement interim measures with potential remedies that may be applied to the complainant and/or the respondent, as appropriate. Interim measures may include, but are not limited to, the following:
- Public Safety escort to ensure safe movement on campus;
- referral to medical or EMS services;
- counseling services;
- assistance with identifying off-campus resources;
- assistance with transportation, parking, and/or travel needs;
- Contact restrictions;
- assistance in obtaining a Protection from Abuse order (PFA);
- academic assistance, including academic support services, tutoring, alternative course completion options, rescheduling of exams and assignments, changing class schedules, transferring course sections or withdrawing from a course without penalty;
- change of work schedules, job assignments, and worksite location;
- change of student’s College-owned housing; and assistance from College support resource staff in completing housing relocation;
- the option to restrict an individual’s or organization’s access to certain College facilities or activities pending resolution of the matter;
- voluntary leave of absence;
- College-imposed leave; and/or
- any other remedy that can be tailored to the involved individuals to achieve the goals of this policy.
C. College-imposed interim suspension or leave
If either the president or the dean of students decides at any point that the safety of a student or of any member of the College community is at stake, an interim suspension may be imposed on a student who is suspected of violating the Student Code of Conduct, including the Sexual Assault and Harassment Policy, (as outlined in the Student Handbook), any rules, regulations, or procedures of the College, or otherwise poses a risk of safety to the campus, until the time student conduct resolution, disciplinary action, or a hearing can be completed. This action assumes no determination of responsibility, and the student conduct process will occur expeditiously.
D. Failure to comply with interim restrictions
The College expects students to comply with directives related to interim restrictions under this policy. Allegations of failure to comply with interim restrictions may result in an administrative hearing within the Sexual Assault and Harassment Policy, Procedures for Resolution of Complaints Against Students. In such cases the student conduct administrator or their designee will conduct an administrative hearing.
Remedies-based resolutions are non-adjudication approaches designed to address the behavior of concern without taking disciplinary action against a respondent. Where the Title IX assessment concludes that remedies-based resolution may be appropriate, the College will take immediate and corrective action through the imposition of individual and community remedies designed to maximize the complainant’s access to the educational and extracurricular activities at the College.
Examples of potential remedies include some of the interim measures referenced above in section IV: Interim Measures. Other potential remedies include targeted or broad-based educational programming or training, communication with the respondent by the Title IX coordinator or a College administrator, or appropriate forms of restorative justice. Depending on the form of remedies-based resolution used, it may be possible for a complainant to maintain anonymity.
The College will not compel a complainant or respondent to engage in mediation, to directly communicate with one another, or to participate in any particular form of remedies-based resolution. Mediation, even if voluntary, may not be used in cases involving sexual assault. The decision to pursue remedies-based resolution, which may occur at any time, will be made when the College has sufficient information about the nature and scope of the conduct. Participation in remedies-based resolution is voluntary, and the complainant and/or respondent can request to end their own participation in remedies-based resolution at any time. The Title IX coordinator may determine that additional remedies-based steps are appropriate without the participation of the complainant and/or respondent. The Title IX coordinator will maintain records of all reports and conduct referred for remedies-based resolution.
After a Title IX assessment, if the Title IX coordinator deems it appropriate, a formal investigation can be initiated by the College or requested by the complainant. The initiation of an investigation does not necessarily mean that a student conduct hearing is inevitable or that a complainant must pursue the student conduct process. In matters initiated by the complainant, it is the prerogative of the complainant to decide whether to participate in the student conduct process, even after an investigation has begun or has been concluded.
The College has designated the Title IX investigator and associate director of investigations in Public Safety to investigate these reports. This specially qualified investigator receives annual training with an emphasis on these complex and sensitive cases. The College may also choose to include or assign another trained investigator of its choosing at its discretion.
The investigator will conduct a thorough, impartial, and unbiased investigation. All individuals will be treated with appropriate compassion and respect and in a manner considerate of individual privacy concerns. An investigation may include multiple meetings with the investigator. An investigation will typically include interviews of the complainant, respondent, any witnesses provided by either party or discovered during the investigation, and any other individuals who may have relevant information about the reported incident and/or the parties involved. With the permission of the complainant, the investigator will gather any available physical or medical evidence and/or documentation. The investigator will seek to obtain relevant communications between the parties, including electronic records, voicemail messages, and/or letters. The complainant and respondent will have an equal opportunity to participate in the investigation with advisors of their choice, provide statements, submit additional information, and/or identify witnesses who may have relevant information. It is not the burden of the complainant, respondent, witnesses, or other community members to investigate these matters. The investigator is solely responsible for all aspects of the investigation.
Once an investigation is initiated, it will typically be completed within 30 (thirty) days, but this time frame may be extended depending on the complexity of the circumstances of each case. During the investigation process, all those interviewed will have an opportunity to review their interview summaries for accuracy. At the conclusion of the investigation, the investigator will prepare a summary report which may be shared with the complainant and respondent. The report will be a summary of the facts ascertained during the investigation and will not make a finding of responsibility or assessment of credibility, though it may include facts bearing on credibility.
The final report, which includes the summary report, interview summaries, written statements, and any other information the College deems relevant, will be forwarded to the Title IX coordinator and the College administrator responsible for initiating disciplinary resolution proceedings. Upon receipt of the investigative report, the College will notify all parties that the investigation is complete and provide information about next steps in the process.
VII. Student conduct resolution process for sexual misconduct complaints
Student conduct resolution of complaints based on the Sexual Assault and Harassment Policy will occur through the use of an administrative hearing or the use of an external adjudicator.
A. Administrative hearing
Administrative hearings, conducted by the student conduct administrator or their designee, can be used to adjudicate allegations of violations of this policy. An administrative hearing will be used if all parties agree or in cases of failure to comply with restrictions under this policy.
While a complaint under this policy will typically be resolved by an external adjudicator, a complainant or respondent may request resolution through an administrative hearing, to be conducted by the student conduct administrator or their designee. The student conduct administrator will meet with the complainant and respondent to determine responsibility and render a decision as to what sanctions, if applicable, may be implemented. Both parties must agree to resolution by administrative hearing. The investigative report will serve as the primary evidence in making a determination of responsibility. Both parties must have notice, the opportunity to review the investigative report in advance, and the opportunity to present relevant information to the student conduct administrator.
An administrative hearing is particularly appropriate when the respondent has admitted to the sexual misconduct and there is no discernible dispute in the relevant facts of the investigation report; however, at the discretion of the student conduct administrator, it may also be used when the facts are in dispute. In reaching a determination as to whether the Sexual Assault and Harassment Policy has been violated, the student conduct administrator will reach a determination by a preponderance of the evidence—that is, whether the conduct was more likely than not to have occurred as alleged. Depending upon the nature and severity of the allegations, the student conduct administrator may decline to handle the matter administratively and refer the case to an external adjudicator at any time.
In cases when there are reports of failure to comply with contact restrictions related to this policy, the student conduct administrator or their designee will conduct an administrative hearing.
B. External adjudicator
The College can retain an external adjudicator, who will convene a hearing. The external adjudicator will be a neutral party outside of the College, usually an attorney or seasoned student conduct administrator, who is trained and experienced in dispute resolution, the dynamics of sexual misconduct, and is trained in the College’s policies and procedures. The external adjudicator is supported by the student conduct administrator who will be present during the hearing, to serve as a resource for the external adjudicator on issues of policy and procedure, and to see that policy and procedure are appropriately followed throughout the hearing.
If the external adjudicator determines, by a preponderance of the evidence, that the respondent has violated the Sexual Assault and Harassment Policy, the student conduct administrator, in consultation with the external adjudicator, will determine the appropriate sanction.
C. Pre-hearing procedures for student sexual misconduct resolution process
1. Threshold determination
If a complaint has been filed by the complainant or the College has determined that a disciplinary process is appropriate, an investigation will be conducted as set forth above. Upon completion of the investigative report, the Title IX Coordinator, in consultation with the student conduct administrator, will review the investigative report and make a threshold determination as to whether the allegations, if proven, would provide sufficient information upon which an adjudicator could find a violation of this sexual misconduct policy. The student conduct administrator is typically the associate dean and director of student conduct, although another dean may serve as the designee. If the Title IX coordinator determines that this threshold has been reached, the student conduct administrator will issue a written notice of charge in order for the student conduct resolution process for sexual misconduct complaints to proceed to a hearing.
If the Title IX coordinator determines that this threshold has not been reached, the complainant and respondent will be notified in writing. The parties will have the opportunity to seek review by the dean of students by filing a written request for review within two (2) business days of the notice of the decision. The dean of students may affirm the threshold finding of the Title IX coordinator, reverse the finding of the Title IX coordinator, or remand the matter for additional investigation, as warranted. The dean of students will render a decision in writing, to both parties, within five (5) business days of receipt of the request for review. The decision of the dean of students is final.
2. Initiation of charges
The College is responsible for investigating allegations of sexual misconduct, determining if a threshold has been reached, and initiating charges. If the Title IX coordinator makes the threshold determination to proceed with a hearing, the student conduct administrator will issue a letter to both parties, typically within five (5) business days, indicating that a formal charge has been issued by the College.
Both the complainant and the respondent will be given notice of the specific charges and the opportunity to be heard before a final determination of the case is reached.
3. Group infractions
When members of a student group, organization, or team of individuals acting collusively operate in concert in violation of the Sexual Assault and Harassment Policy, they may be charged as a group or as individuals and a hearing may proceed against the group as joint respondents or against one or more involved individuals as appropriate given available information and the circumstances.
4. Sexual Assault and Harassment Policy Case Manager and Adviser
Sexual Assault and Harassment Policy Case Manager. In the Sexual Assault and Harassment Procedures, the complainant and respondent will each be assigned a separate College-appointed, trained Sexual Assault and Harassment Policy (SAHP) case manager who can help a complainant/respondent navigate through the Sexual Assault and Harassment Policy and specifically these procedures. At the discretion of the complainant/respondent, the SAHP case manager may receive access to case materials and accompany the student to any meeting/hearing related to these procedures. The SAHP case manager is expected to be a silent and non-participating observer, except to ask for a short break if the complainant/respondent requires some time for composure or to collect thoughts. The SAHP case manager may communicate with the complainant/respondent during proceedings in a non-disruptive manner. The SAHP case manager may not delay, disrupt, or otherwise take action to interfere with the integrity of the meeting/hearing. The SAHP case manager may be required to leave the meeting/hearing if disruptive.
Adviser. The complainant and respondent have the option to be assisted by an adviser of their choice. The adviser cannot be a witness in the proceedings. At the discretion of the complainant or respondent, the adviser may accompany the complainant or respondent to any meeting/hearing related to these procedures. The adviser is expected to be a silent and non-participating observer, except to ask for a short break if the complainant/respondent requires some time for composure or to collect thoughts. The adviser may communicate with the complainant/respondent during proceedings in a non-disruptive manner. The adviser may not delay, disrupt, or otherwise take action to interfere with the integrity of the meeting/hearing. The adviser may be required to leave the meeting/hearing if disruptive.
To serve as an adviser, the individual may be required to meet with the Title IX coordinator, student conduct administrator, or designee in advance of any participation in the proceedings.
If the adviser is an attorney or other retained person, the adviser must be retained at the initiative and expense of the complainant/respondent. If the adviser is an attorney, the College’s attorney may also attend any meeting/hearing. An attorney’s participation in the meeting or hearing will be governed by these restrictions and parameters.
Absent extenuating circumstances, witnesses and others involved in an investigation or hearing are not entitled to have a SAHP case manager or adviser.
5. Outside agreements
The College will generally not recognize or enforce agreements between the parties reached outside of these procedures.
6. Pre-hearing meeting with complainant and respondent
When a hearing is deemed necessary based on the review of the investigation report, the student conduct administrator will contact the complainant and the respondent to schedule separate meetings with each party. At this pre-hearing meeting, each party will receive an explanation of the hearing process and have the opportunity to ask any questions before the hearing occurs.
7. Notice of hearing
Once each party has met with the student conduct administrator, a notice of hearing is sent to the complainant and the respondent. The notice of hearing provides each party with a statement of the policy violation(s) that are alleged to have taken place and a summary of the facts underlying the allegations. In addition, the notice provides the parties with the designated manner of adjudication (administrative hearing or external adjudicator), the name of the adjudicator, and the date, time, and place of the hearing.
In general, the hearing will be scheduled approximately fifteen (15) business days after the notice of hearing is sent. Under extenuating circumstances, this time frame may be extended or shortened.
8. Challenging External Adjudicator Selection
The complainant and the respondent may submit a written request to the student conduct administrator to contest the external adjudicator, if there are reasonable articulable grounds to suspect bias, conflict of interest, or an inability to be fair and impartial. This challenge must be raised within four (4) business days of receipt of the notice of hearing. All objections must be raised prior to the commencement of the hearing. The student conduct administrator will make the determination whether to seek an alternative external adjudicator.
9. Pre-hearing review of documents
The complainant and the respondent will each have the opportunity to review the investigative report at least ten (10) business days prior to the hearing. Any written responses by the complainant or respondent to the investigative packet must be provided to the investigator at least seven (7) business days prior to the hearing. All hearing materials, including the investigative packet and any written responses, subject to the privacy limitations imposed by state and federal law, will be shared with the parties at least five (5) business days prior to the hearing, unless extenuating circumstances warrant a different schedule. The investigative report will include summary report, interview summaries, written statements, and any other documentary information. All information and/or materials the parties wish to include in the investigative report or have considered at the adjudication hearing, must be provided to the investigator during the investigation.
Witnesses will only be called to participate in the hearing at the request of the adjudicator. During the investigation, the complainant and respondent will have been asked to identify witnesses. The investigator may also identify witnesses during the course of the investigation. Witnesses must have observed the acts in question or have information relevant to the incident and cannot be participating solely to speak about an individual’s character.
The complainant and the respondent will have the opportunity to provide written statements throughout the process.
The student conduct administrator will review the investigation report, any witness statements, and any other documentary evidence to determine whether the information contained therein is relevant and material to the determination of responsibility given the nature of the allegation. In general, the student conduct administrator may redact information that is irrelevant, more prejudicial than probative, or immaterial. The student conduct administrator may also redact statements of personal opinion, rather than direct observations or reasonable inferences from the facts, and statements as to general reputation for any character trait, including honesty.
In cases where an external adjudicator will hear the case, the student conduct administrator may forego redaction of investigative materials to allow the external adjudicator to determine the relevance and/or weight to give to any information.
13. Prior sexual history and/or pattern behavior
Prior sexual history of a complainant. In general, any information or questioning about the prior sexual history of the complainant with other individuals is precluded and will not be admitted as evidence at a hearing. Where there is a current or ongoing relationship between the complainant and the respondent, and the respondent alleges consent, the prior sexual history between the parties may be relevant to assess the manner and nature of communications between the parties. However, as noted in other sections of the Sexual Assault and Harassment Policy, the mere fact of a current or previous dating or sexual relationship, by itself, is not sufficient to constitute consent and does not preclude a finding of a violation of the Sexual Assault and Harassment Policy.
Pattern behavior by a respondent. Where there is information of a pattern of behavior or conduct similar in nature by the respondent, either prior to or subsequent to the conduct in question, regardless of whether there has been a finding of responsibility, this information may be relevant and probative to a determination of responsibility and/or assignment of a sanction. The relevant and probative value of this information will be evaluated based on its reliability and its substantial similarity to the present allegation, indicating a pattern of behavior by the respondent that makes the information probative of whether the respondent acted in conformity with this pattern on the occasion being adjudicated. This evaluation will be made by the student conduct administrator and/or external adjudicator. Should the information be permitted at the hearing, appropriate notice will be provided to the parties.
Information regarding the pattern of behavior by the respondent may include:
- previous, concurrent, and/or subsequent reports of similar acts of sexual misconduct,
- any prior violation(s) of the Sexual Assault and Harassment Policy.
If a complainant or any witness has information regarding pattern behavior by the respondent, and they wish to have such information considered in the hearing, the information should be provided to the investigator at the earliest opportunity. If this information was not previously submitted during the investigation, it must be provided in writing to the student conduct administrator no later than five (5) business days after the notice of the charge has been made. This information must include:
- a description of the similar behavior;
- a summary of the relevance of the described behavior; and
- if not provided during the investigation, a brief explanation of why this information was not shared at that time.
14. Request to reschedule hearing
Either party can request to have a hearing rescheduled. Absent extenuating circumstances, requests to reschedule must be submitted to the student conduct administrator at least three (3) business days prior to the hearing. A request to reschedule a hearing must be supported by a compelling reason. The student conduct administrator may also reschedule the hearing, without a request by the parties, when there is reasonable cause to do so. The student conduct administrator will notify the parties of any changes to the scheduled hearing.
15. Consolidation of hearings
The student conduct administrator has the discretion to consolidate multiple reports against a respondent in one hearing if the evidence related to each incident would be relevant and probative in reaching a determination on the other incident and not unfairly prejudicial to the Respondent.
D. Hearing with an external adjudicator
1. Attendance at hearing
If a party misses a hearing for any non-emergency or non-compelling reason, the hearing may be held in the individual’s absence at the discretion of the student conduct administrator.
If a respondent chooses to withdraw from the College prior to the conclusion of an investigation or student conduct resolution under the Sexual Assault and Harassment Policy, for non-medical or non-disability-related reasons, the student must go through the re-entry process coordinated by the Dean’s Office and, except where the dean in her/his sole discretion finds exceptional circumstances, the case must be heard prior to the student’s readmission to the College.
A complainant or respondent may request participation by other suitable means that would not require physical proximity to the other party. This can include, but is not limited to, partitioning a hearing room or using technology, video or conference call from an alternative location, to facilitate participation. Any proposed alternative must be reviewed in advance to ensure that it is consistent with the goals of a fair and equitable process.
2. Participants in hearing procedures
The hearing is closed, meaning it is not open to the public. Besides the external adjudicator and the student conduct administrator, other persons allowed to be present at the hearing under this Policy include: the complainant, the respondent, any individuals serving as advisers or Sexual Assault and Harassment Policy case manager, the College’s attorney where appropriate, and any individuals who are witnesses. Witnesses may only be present for their own testimony.
3. Participant integrity
Parties and other individuals who offer information at a hearing are expected to respond honestly and to the best of their knowledge. A complainant, respondent, or witness who intentionally provides false or misleading information may be subject to discipline under the Student Code of Conduct.
4. Safeguarding of privacy
All participants involved in a hearing are expected to keep private the investigative report and any information learned at the hearing. Consistent with the Family Educational Rights and Privacy Act (FERPA) regulations, the participants may not share any copies of documents presented at the hearing. All documentation provided during the hearing must be returned to the College at the conclusion of the hearing and/or any appeals. Any breach of this duty is subject to disciplinary action by the College. Nothing in this paragraph precludes disclosure of the outcome of the hearing.
5. Hearing procedures
A hearing is intended to provide a full and fair opportunity for the complainant and respondent to present their account of events and for the adjudicator to determine the facts of the case, and make a determination regarding the alleged violations of the Sexual Assault and Harassment Policy.
The student sexual misconduct process is an administrative process and it is not subject to the same standards as a court of law. Rules of evidence ordinarily found in legal proceedings shall not be applied, nor shall any deviations from any of these prescribed procedures alone invalidate a decision, unless significant prejudice to a complainant, respondent, or the College may result.
The external adjudicator is expected to review all information pertinent to the incident in question. Absent extenuating circumstances, the investigative report will be made available for the external adjudicator to review at least five (5) business days prior to the hearing.
During the hearing
i. A hearing will be called to order by the student conduct administrator, who will explain the hearing process, make introductions of hearing attendees, and will provide an opportunity for all parties to ask procedural questions prior to initial statements and the presentation of information.
ii. Generally, the investigator will provide a summary of the investigation. The external adjudicator and the complainant or respondent, through the external adjudicator, may make brief inquiries of the investigator at the conclusion of the summary.
iii. The complainant may present a brief opening statement. The external adjudicator and the respondent, through the external adjudicator, may pose questions to the complainant.
iv. The respondent may present a brief opening statement. The external adjudicator and the complainant, through the external adjudicator, may pose questions to the respondent.
v. The external adjudicator will identify and call relevant witnesses. The external adjudicator will question each witness and provide the complainant or respondent an opportunity to pose questions through the external adjudicator.
vi. The external adjudicator may call back any participant for additional questions or clarifications.
vii. The complainant may present a brief closing statement.
viii. The respondent may present a brief closing statement.
ix. At the conclusion of the hearing and regardless of participation, the complainant and respondent may submit a written impact statement to the student conduct administrator that will only be considered at the sanctioning phase, should the respondent be found in violation of the Sexual Assault and Harassment Policy.
6. Questioning by external adjudicator
It is the responsibility of the external adjudicator to assure that the information necessary to make an informed decision is presented. The external adjudicator may play an active role in questioning both parties and witnesses involved in the case. At times, the external adjudicator may need to ask difficult or sensitive questions in order to understand areas of factual dispute or gain a full understanding of the context. The external adjudicator reserves the right to recall any party or witness for further questions and to seek additional information necessary to make a decision.
At no time will the complainant or the respondent be permitted to directly question one another. Any questions from the complainant or respondent to any participant must be submitted through the external adjudicator.
After all of the information has been presented, the parties will be dismissed from the hearing room so that the external adjudicator may deliberate. The student conduct administrator may remain for deliberations to offer clarifications about policy or provide any other appropriate information requested by the external adjudicator. The external adjudicator will make a decision, determining if there were any violations of the Sexual Assault and Harassment Policy.
The findings of the external adjudicator will be reduced to writing by the external adjudicator and/or student conduct administrator. The findings will detail the findings of fact and determination of responsibility, making reference to the evidence that led to the finding.
8. Preponderance of the evidence
The external adjudicator will determine a respondent’s responsibility by a preponderance of the evidence. This means that the external adjudicator will decide whether it is “more likely than not,” based upon the information provided at the hearing, that the respondent is responsible for the alleged violation(s).
If the external adjudicator finds a student, group, or organization responsible for a violation of the Sexual Assault and Harassment Policy, the student conduct administrator, in consultation with the external adjudicator, will determine the appropriate sanction.
The sanctions may include remedial or corrective actions as warranted. The following list of sanctions is illustrative rather than exhaustive, and the College reserves the right to impose other reasonable sanctions or to combine sanctions as it deems appropriate:
Warning—A written notification that a violation of the Sexual Assault and Harassment Policy occurred and that any further responsible finding of misconduct may result in more severe disciplinary action. Warnings are typically recorded for internal purposes only and are not considered part of a student’s permanent student conduct record. Though disclosed with a student’s signed consent, a student who receives a warning is still considered in good standing at the College.
Probation—A written notification that indicates a serious and active response to a violation of the Sexual Assault and Harassment Policy. Probation is for a designated period of time and includes the probability of more severe sanctions, if found responsible for additional violations of the Student Code of Conduct or Sexual Assault and Harassment Policy, including suspension or expulsion from the College. Notification of probation is considered a change in status and will normally be sent to parents.
Loss of privileges—Denial of the use of certain College facilities or the right to participate in certain activities, events, programs or to exercise certain privileges for a designated period of time. This includes Contact Restrictions.
Restitution—A student may be required to make payment to an individual or to the College related to the misconduct for damage, destruction, defacement, theft, or unauthorized use of property.
Fines—Swarthmore reserves the right to impose fines, as appropriate, in addition to requiring payment for costs resulting from or associated with the offenses.
Relocation or removal from (College-operated) housing, —Relocation is the reassignment of a student from one living space to another. Removal from housing is the removal of a student from all College-operated housing. Relocation and removal from housing are typically accompanied by the loss of privileges regarding the visitation to specific residential areas for a specified period of time. The College may take such action for remedial rather than disciplinary purposes.
Educational requirements/referrals—The College reserves the right to impose counseling or substance assessments or other required educational sanctions.
Suspension—The separation of a student from the College for a specified period of time, after which the student is eligible to return. Conditions for re-enrollment may be required and will be included in the notification of suspension.
During the period of suspension, the student may not participate in College academic or extracurricular activities; may be barred from all property owned or operated by the College; and depending on the severity of the charge, the student might not be allowed to progress toward completion of their Swarthmore degree by taking courses at other institutions while suspended. Students who are suspended may not be on campus without specific, written permission of the dean of students or designee.
Suspension is for a designated period of time and includes the probability of more severe sanctions, including expulsion, if found responsible for additional violations of the Student Code of Conduct or Sexual Assault and Harassment Policy. Notification of suspension will normally be sent to parents, as it results in a change of status.
Expulsion—Expulsion is the permanent separation of the student from the College. Students who have been expelled may not be on campus without specific, written permission from the dean of students or designee. Notification of expulsion will normally be sent to parents, as it results in a change of status.
If the College has determined that the respondent has engaged in the same or similar conduct and/or has been found in violation of the Sexual Assault and Harassment Policy in the past, the sanction may be expulsion.
The student conduct administrator may broaden or lessen any range of recommended sanctions based on significant mitigating circumstances or egregiously offensive behavior. The student conduct administrator will not deviate from the range of recommended outcomes unless compelling justification exists to do so. The student conduct administrator may issue a single sanction or a combination of sanctions.
In considering the appropriate sanction within the recommended outcomes, student conduct administrator will consider the following factors:
(1) the respondent’s prior discipline history;
(2) how the College has sanctioned similar incidents in the past;
(3) the nature and violence of the conduct at issue;
(4) the impact of the conduct on the complainant, and their desired sanctions, if known;
(5) the impact of the conduct on the community, its members, or its property;
(6) whether the respondent has accepted responsibility;
(7) whether the respondent is reasonably likely to engage in the conduct in the future;
(8) the need to deter similar conduct by others;
(9) any other mitigating or aggravating circumstances, including the College’s values.
The student conduct administrator should also consider other remedial actions that may be taken to address and resolve any incident of discrimination or harassment and to prevent the recurrence of any discrimination, including strategies to protect the complainant and any witnesses from retaliation; provide counseling for the complainant; other steps to address any impact on the complainant, any witnesses, and the broader student body; and any other necessary steps reasonably calculated to prevent future occurrences of harassment.
If a sanction includes suspension, the respondent is subject to the readmission process as described in the Student Handbook. Prior to readmission, the complainant will be notified by the Title IX coordinator or their designee.
10. Notice of outcome
The student conduct administrator will communicate the finding to the respondent and the complainant simultaneously. The notice will be in writing and will include notification of appeal options. Generally, the outcome of the hearing will be final and communicated to the parties within five (5) business days from the date the hearing is concluded.
The respondent will be informed of any sanctions, the date by which the requirements must be satisfied (if applicable), and the consequences of failure to satisfy the requirements. The complainant will be informed of any sanctions that directly relate to the complainant.
The imposition of sanctions will take effect immediately and will not be stayed pending the resolution of the appeal.
11. Recording of proceedings
The College will not audio or video record the student conduct proceedings or deliberations, nor is any other individual permitted to record the proceedings.
Either party may appeal the determination of responsibility or sanction(s) in writing to the dean of students or designee. The appeal must be filed within three (3) business days of receiving the written notice of outcome.
Dissatisfaction with the outcome of the hearing is not grounds for appeal. The limited grounds for appeal are as follows:
- new evidence that could affect the finding of the hearing and that was unavailable at the time of the hearing;
- procedural error(s) that had a material impact on the fairness of the hearing;
- the sanctions imposed were grossly disproportionate to the violation committed.
The appeal shall consist of a plain, concise, and complete written statement outlining the grounds for the appeal. Upon receipt of an appeal, the dean of students will notify both parties. Each party has an opportunity to respond in writing to the appeal. Any response to the appeal must be submitted within two (2) business days from receipt of the appeal.
The appeal consideration will be conducted in an impartial manner by the dean of students. In any request for an appeal, the burden of proof lies with the party requesting the appeal, as the original determination and sanction are presumed to have been decided reasonably and appropriately. The appeal is not a new review of the underlying matter. The dean of students shall consider the merits of an appeal only on the basis of the three (3) grounds for appeal and supporting information provided in the written request for appeal and the record of the original hearing. The dean of students can affirm the original findings, alter the findings, and/or alter the sanctions, depending on the basis of the requested appeal.
If the appeal is granted based on procedural error(s) that materially affected the outcome of the hearing, the dean of students will return the case to the external adjudicator for additional review or forward the case for a new hearing, which may be heard by an alternate external adjudicator if the dean of students finds that to be appropriate.
In the case of new and relevant information, the dean of students can recommend that the case be returned to the original adjudicator to assess the weight and effect of the new information and render a determination after considering the new facts.
Absent extenuating circumstances, the dean of students will simultaneously and in writing communicate the result of the appeal to the complainant and respondent within five (5) business days from the date of the submission of all appeal documents by both parties. Appeal decisions are final.
The Title IX coordinator will retain records of all reports and complaints, regardless of whether the matter is resolved by Title IX assessment, remedies-based resolution, or judicial resolution. Complaints resolved by Title IX assessment or remedies-based resolution are not part of a student’s conduct file or academic record.
Affirmative findings of responsibility in matters resolved through student conduct resolution are part of a student’s conduct record. Such records shall be used in reviewing any further conduct or in developing sanctions and shall remain a part of a student’s conduct record.
The conduct files of students who have been suspended or expelled from the College are maintained in the dean of students office for no fewer than seven (7) years after their departure from the College. Further questions about record retention should be directed to the dean of students.
Medical and law schools and some governmental agencies may require disclosure by the College of any student conduct findings. Students who transfer to other schools or participate in off-campus study programs may also be required to provide such information.
At the beginning of each academic year, the director of student conduct will produce a summary of case dispositions summarizing the outcome of all cases that were heard the previous academic year, without revealing the identity of any of the participants in the proceedings.
This Policy is thoroughly reviewed on an annual basis.
The Policy may be updated at any time. The most up to date and current version can be found on the Title IX Coordinator website.