Procedures for Resolution of Complaints Against Students

2018-2019

Scope | Procedural options | Title IX assessment | Interim measures | Remedies-based resolution | Sexual Assault and Harassment Policy Case Manager and Advisor | Investigation | Student conduct resolution for sexual misconduct complaints

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.

 

  1. Scope

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 IX 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.  

 

  1. 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.

 

  1. Title IX outreach and 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.

A. Title IX outreach

Upon receipt of a report, the Title IX coordinator or designee will provide resources and support information by contacting the potential complainant and offering a preliminary meeting between the potential complainant and the Title IX coordinator or designee (often a deputy Title IX coordinator).  The preliminary meeting is optional and the potential complainant may decline the offer of assistance. The purpose of the preliminary meeting is to gain a basic understanding of the nature and circumstances of the report and assess the need for any interim measures; it is not intended to be a full investigation interview. At this meeting, the potential complainant will be provided with information about resources, procedural options, and interim measures.

During the Title IX outreach, the Title IX coordinator or designee(s) will provide the complainant with a written explanation of the complainant’s rights and options, whether the incident occurred on or off campus including, as applicable:

  • 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 request interim measures, 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 counseling;

  • 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;

  • 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 advisor of their choice;

  • 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 resolution-based remedies.

B. Title IX assessment

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.

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. In the absence of the engagement of a complainant, the Title IX coordinator may deem it necessary to take additional steps to make this assessment for 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;

  • determine if concerns exist for discrimination or harassment based on other protected classes;

  • 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, if necessary pursuant to federal law.

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 participate, does not want the process to proceed and/or requests that 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 assess 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 matter to an investigation.

 

 

  1. Interim measures

  1. Overview

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 private. 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. An investigation does not necessarily initiate a student conduct adjudication. Even if a student conduct adjudication is not pursued, the College has the discretion to take interim measures that ensure campus safety or modify any existing interim measures, with appropriate notice provided to all parties.

The Title IX coordinator or a member of the Title IX assessment team will discuss the determination of interim measures 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.

  1. 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 and reasonable within a small campus community. Interim measures may include, but are not limited to:

  • 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 (PFA) Order;

  • 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.

These actions 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.

  1. 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 a student conduct resolution, disciplinary action, or an adjudication 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 adjudication 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 adjudication.

 

 

  1. Remedies-based resolution

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 designed to help the accountable party repair harm and rebuild trust. 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.

 

VI. Sexual Assault and Harassment Policy Case Manager and Advisor, and Witness Coordinator

Case Manager.

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 related 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 related to these procedures.  The SAHP case manager may communicate with the complainant/respondent during proceedings in a non-disruptive manner and may ask for short breaks if the complainant/respondent requires some time for composure or to collect thoughts. The SAHP case manager may not delay, disrupt, or otherwise take action to interfere with the integrity of the meeting except as permitted within these procedures. The SAHP case manager may be required to leave the meeting if disruptive.

 

Advisor.

The complainant and respondent have the option to be assisted by an advisor of their choice. The advisor may be any person: friend, mental health professional, certified victim’s advocate, attorney, an individual at the College, etc. The advisor cannot be an identified witness or have any conflicting role in the process or with a party. (see Witness in VIII, C, 10) in the proceedings. The College’s duty is to the complainant/respondent, not the advisor. All communication is made directly with the complainant/respondent, who can share information with their advisor, at their discretion. At the discretion of the complainant or respondent, the advisor may accompany the complainant or respondent to any meeting related to these procedures. The advisor 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 advisor may communicate with the complainant/respondent during proceedings in a non-disruptive manner. The advisor may be required to leave the meeting if disruptive. The advisor may not delay, disrupt, or otherwise take action to interfere with the integrity of the process.

To serve as an advisor, the individual may be required to meet with the Title IX coordinator, student conduct administrator, the College’s legal counsel, or designee in advance of any participation in the proceedings.

If the advisor is an attorney or other retained person, the advisor must be retained at the initiative and expense of the complainant/respondent. If the advisor is an attorney, the College’s attorney may also attend any meeting. An attorney’s participation in any meeting will be governed by these restrictions and parameters. 

 

Witness Coordinator.

Witnesses and others involved in an investigation and adjudication process are provided a witness coordinator, typically the Title IX Project Manager. The witness coordinator will meet with witnesses to discuss their role as a witness within the SAHP.

 

VII. Investigation

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. At that time, the complainant/respondent and investigator will receive written notification of the initiation of a formal investigation. The initiation of an investigation does not necessarily mean that a student conduct adjudication 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 will designate a trained investigator(s) to investigate these reports.  All investigators will receive annual training with an emphasis on these complex and sensitive cases.

The investigator will conduct a thorough, impartial, and unbiased investigation. All individuals will be treated with 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.  Interviews will typically take no longer than two hours on one day. Should additional time be needed, the investigator and affected party will mutually agree on either rescheduling for another day or extending the length of the interview past two hours. During any interviews with the complainant, respondent, or witnesses, if any deviation from College policy or procedure is suspected, the respective case manager or witness coordinator will have the ability to call for a short break in the proceedings to convene with the investigator to ensure that the proceedings comply with College policy and procedure.

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 their case managers, and/or 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.

 

 

VIII.  Student conduct resolution process for sexual misconduct complaints

The student conduct resolution process for sexual misconduct complaints 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 will not apply. Student conduct resolution of complaints based on the Sexual Assault and Harassment Policy will occur through the use of an administrative adjudication or the use of an external adjudicator.

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 an adjudication may proceed against the group as joint respondents or against one or more involved individuals as appropriate given available information and the circumstances.

 

A. External adjudicator

The College can retain an external adjudicator to adjudicate allegations of violations of this policy. 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 across identities, 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 adjudication, to serve as a resource for the external adjudicator on issues of policy and procedure.  Should the student conduct administrator recognize any deviation from College policy or procedure, the student conduct administrator will have the ability to call for a short break in the proceedings to convene with the external adjudicator to ensure that the proceedings comply with College policy and procedure.

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.

 

B. Administrative Adjudication

While a complaint under this policy will typically be resolved by an external adjudicator, a complainant or respondent may request resolution through an administrative adjudication, to be conducted by the student conduct administrator (or their designee) if all parties agree or in cases of failure to comply with restrictions under this policy. The student conduct administrator will meet separately 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 adjudication. 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 adjudication 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 adjudication.

 

C. Pre-adjudication procedures for student sexual misconduct resolution process

1.  Threshold determination

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 regarding the allegation(s).  The determination will consider whether the investigative report contains enough information for an adjudicator to make a determination whether or not there was a violation of the Sexual Assault and Harassment Policy based on the preponderance of the evidence.  If the Title IX coordinator, in consultation with the student conduct administrator, 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 adjudication.

If the Title IX coordinator, in consultation with the student conduct administrator, determines that this threshold is not 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, reverse the finding, or remand the matter for additional investigation, if necessary. 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 allegations and adjudication process

The College is responsible for investigating allegations of sexual misconduct, determining if a threshold has been reached, and initiating allegations s. If the Title IX coordinator, in consultation with the student conduct administrator, makes the threshold determination to proceed with an adjudication, the student conduct administrator will issue a letter to both parties, typically within five (5) business days, indicating that a formal allegation  has been issued by the College. This allegation letter will provide a statement of the policy violation(s) that are alleged to have taken place and a brief description of the facts underlying the allegations.

In general, adjudication meetings will commence approximately fifteen (15) business days after the initiation of allegations. Under extenuating circumstances, this time frame may be extended or shortened.

3. Pre-adjudication meeting with complainant and respondent

At the time of initiation of allegations, both the complainant and respondent are provided the opportunity to have a pre-adjudication meeting with the student conduct administrator or designee.  At this pre-adjudication meeting, each party will receive an explanation of the adjudication process and have the opportunity to ask any questions.

4. Outside agreements

The College will generally not recognize or enforce agreements between the parties reached outside of these procedures.

5. Notice of adjudication

During or after a pre-adjudication meeting with each party, a notice of adjudication will be sent to the complainant and the respondent. The notice of adjudication provides the parties with the designated manner of adjudication (administrative adjudication or external adjudicator), the name of the adjudicator, and timeframe of the adjudication meetings.

6. Challenging External Adjudicator Selection

The complainant and the respondent may submit a written request to the student conduct administrator to contest the external adjudicator.  Such written request must present reasonable, articulable grounds to suspect bias, conflict of interest, or an inability to be fair and impartial on the part of the external adjudicator. This challenge must be raised within four (4) business days of receipt of the notice of adjudication. All objections must be raised prior to the commencement of the adjudication. The student conduct administrator will make the determination within two (2) business days whether to seek an alternative external adjudicator.

7. 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 commencement of adjudication meetings. Any written responses by the complainant or respondent to the investigative packet must be provided to the investigator at least five (5) business days prior to commencement of adjudication meetings. All 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 and the adjudicator at least four (4) business days prior to commencement of adjudication meetings, unless extenuating circumstances warrant a different schedule. The investigative report will include the 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, must be provided to the investigator during the investigation (See Investigation, section VII).

8. Witnesses

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 may opt to contact assigned case managers as process resources at any point in the process Witnesses must have observed the acts in question or have information relevant to the incident and cannot participate  solely to speak about an individual’s character. After reviewing the case packet, including all witness information, the adjudicator will ask the student conduct administrator to notify relevant witnesses at least one business day before the adjudication, that they may be asked to attend. The names of retained witnesses will be confirmed with parties at least one business day before adjudication as well. .

9. Relevance

The student conduct administrator will review the investigation report  and associated materials to determine whether the information relevant l to the determination of responsibility. 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, and statements as to general reputation for any character trait, including honesty.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.

 9a. 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 during an adjudication. 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.

9b. 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 pattern behavior by the respondent be included in the adjudication,, prior 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, 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 allegation 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.

 

11. Consolidation of adjudication

The student conduct administrator has the discretion to consolidate multiple reports against a respondent in one adjudication 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.

12. Request to reschedule adjudication meeting

Either party can request to reschedule their adjudication meeting. Absent extenuating circumstances, requests to reschedule must be submitted to the student conduct administrator at least three (3) business days prior to the scheduled meeting. A request to reschedule must be supported by a compelling reason. The student conduct administrator may also reschedule the adjudication meetings, 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 adjudication meetings.

D. Meeting with external adjudicator

After reviewing the investigation report, the external adjudicator will have an opportunity to meet with the investigator, complainant, and respondent.  The adjudicator may also request to meet with identified witnesses, as described above.  The meetings are not designed to reinvestigate the facts collected in the investigation report, but instead to assist the adjudicator in making a determination based on the evidence collected during the investigation. These meetings allow the adjudicator to ask questions they may have, to allow the complainant and respondent to make any statements they deem appropriate, and evaluate the credibility of the parties and witnesses. 

 

1. Complainant and Respondent participation in the adjudication

The complainant and respondent will meet separately with the adjudicator. During their designated time with the adjudicator, a complainant or respondent may request to participate remotely in their own adjudication meeting.  Any proposed alternative must be reviewed in advance by the student conduct administrator to ensure that it is consistent with the goals of a fair and equitable process.

During all other meetings, the complainant and respondent will have the opportunity to listen remotely to the adjudication meetings of the other party, the investigator, and any witnesses. The student conduct administrator will work with each party’s case manager to arrange the space and technological needs.

If a party misses the adjudication meeting for any non-emergency or non-compelling reason, the adjudication may proceed 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 readmission process coordinated by the Dean’s Office and the case must typically be adjudicated prior to the student’s readmission to the College.

2. Participants in adjudication meetings

Adjudication meetings are closed and not open to the public. The adjudicator will meet with the complainant and respondent individually along with their respective advisor and/or case manager. The adjudicator may also choose to meet with witnesses individually. The student conduct administrator will attend all meetings, and the College’s attorney may also be present.   

3. Duration of Adjudication Meeting

 

4.  Participant integrity

Parties and other individuals who offer information at adjudication meetings 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.

5. Safeguarding of privacy

All participants involved in an adjudication are expected to keep private the investigative report and any information learned during the process. Consistent with the Family Educational Rights and Privacy Act (FERPA) regulations, the participants may not share any copies of documents presented during the adjudication. All documentation provided during the adjudication meeting must be returned to the College at the conclusion of the meeting 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 adjudication.

6.  Adjudication Meeting Agenda

i. The student conduct administrator will begin the meeting and explain the process and introduce meeting attendees.  Prior to beginning the adjudication, the student conduct administrator will meet with all parties to answer any procedural questions.

ii.  Generally, the investigator will provide a summary of the investigation. The adjudicator, and the complainant or respondent, through the adjudicator, may make brief inquiries of the investigator at the conclusion of the summary.

iii. The complainant may meet with the adjudicator. The adjudicator and the respondent, through the adjudicator, may pose questions to the complainant.

iv. The respondent may meet with the adjudicator. The adjudicator and the complainant, through the adjudicator, may pose questions to the respondent.

v. The adjudicator may meet with relevant witnesses. The adjudicator will question called witness and provide the complainant or respondent an opportunity to pose questions through the adjudicator.

vi. The adjudicator may call back any participant for additional questions or clarifications. 

vii. The adjudicator may meet with the complainant for follow up questions.

viii. The adjudicator may meet with the respondent for follow up questions.

ix.  At the conclusion of the adjudication meeting, 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 responsible of violating the Sexual Assault and Harassment Policy.   

7. Questioning by adjudicator at adjudication meetings

At times, the 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. Complainants and respondents may submit questions for the other party to the student conduct administrator for the adjudicator’s consideration.  At no time will the complainant or the respondent be permitted to directly question one another or any other participant.  The adjudicator may need to recall any party or witness for further questions and to seek additional information necessary to make a decision.

8. Deliberation

After the adjudicator has met with all relevant parties, the adjudicator will conclude the adjudication and move to deliberation. The student conduct administrator will support  deliberations to offer clarifications about policy or provide any other appropriate information requested by the adjudicator. The adjudicator will make a decision, using a preponderance of the evidence standard, to determine if there were any violations of the Sexual Assault and Harassment Policy.

The adjudicator will provide the student conduct administrator a written summary of the findings, which will be included in the outcome letter. The summary will detail the findings of facts and determination of responsibility.

9. Preponderance of the evidence

The adjudicator will determine a respondent’s responsibility by a preponderance of the evidence. This means that the adjudicator will decide whether it is “more likely than not,” based upon the information provided in the investigation report and through the adjudication meeting, that the respondent is responsible for the alleged violation(s). A not responsible finding means that the evidence presented did not meet the standard necessary to determine responsibility.

10. Sanctions

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. Sanctions can only be made against a respondent after a finding of responsibility is reached.

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 or guardians. As a result of a change in status, a student who is placed on probation is not considered to be in good standing at the College during their period of probation.

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. Suspended students are required to comply with the College’s re-admission process prior to being eligible for re-enrollment.

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 guardians or parents, as it results in a change of status. As a result of a change in status, a student who is suspended is not considered to be in good standing at the College during their period of suspension.

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 guardians or parents, as it results in a change of status.

Expulsion may be particularly appropriate 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.

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, denial of ability to represent the College in official capacity, and/or organizational sanctions. 

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.

Educational requirements/referrals—The College reserves the right to impose counseling or substance assessments or other required educational sanctions.

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, the student conduct administrator will consider the following factors together with any impact statements provided from the complainant and/or respondent:

(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.

(10) the respondent’s optional good faith participation in restorative / remedies based educational options during the report, complaint and investigation portions of the resolution process

The student conduct administrator may take remedial actions and/or additional steps 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 and/or retaliation., 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. 

110. Notice of outcome

The student conduct administrator will communicate the finding to the respondent and the complainant at the same time. The notice will be in writing and will include notification of appeal options. Generally, the outcome of the adjudication will be final and communicated to the parties within five (5) business days from the date of the conclusion of the adjudication meeting.

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.

121. 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.

E. Appeals   

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 five (5) business days of receiving the written notice of outcome.

Dissatisfaction with the outcome of the adjudication is not grounds for appeal. The limited grounds for appeal are as follows:

• new evidence that could affect the finding of the adjudication and that was unavailable at the time of investigation;

• procedural error(s) that had a material impact on the fairness of the adjudication;

• 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 adjudication. 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 adjudication, the dean of students may return the case to the external adjudicator for additional review or forward the case for a new adjudication, 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 three (3) business days from the date of the submission of all appeal documents by both parties. Appeal decisions are final.

F. Records

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 adjudicated 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 adjudicated the previous academic year, without revealing the identity of any of the participants in the proceedings.