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Office of Equity and Access
Title IX

Sexual Misconduct  vs. Title IX Grievance: Comparing Policy & Process 

The purpose of this information is to provide a broad overview of the impact the Title IX Regulations issued by the US Department of Education and effective August 14, 2021 have on Stony Brook University's process where the Title IX Grievance Policy and Procedure  applies.  The regulations were published in the federal register and are available for your review.  On April 6, 2020, President Biden ordered a 100 day review of all Title IX guidance and  regulations.   If you have any questions, please contact our office at oea@stonybrook.edu.

Step 1.  Review Inquiry, Report or Complaint

 

Sexual Misconduct Process

Title IX Regulations

Reporting

 Anonymous Reporting
Responsible Employee Reporting
Third Party Reporting
Deputy Title IX Coordinators
Constructive vs. Actual Notice		 Formal signed complaint required unless TIXC determines investigation is necessary.

Physical Jurisdiction

 All programs or university related events - Conduct that may impact academic interests of or the safety and security of other members of the University Community. On-campus premises,  premises that SBU has “substantial control over”, or activity occurring withing the SBU hardware, software and internet network. 

Covered Conduct

 EEOC definition of  sexual harassment – severe OR pervasive and the subjective standard.
Detailed definitions of sexual violence.		 New narrower definition of sexual assault – severe AND pervasive and the objectively offensive.

Response Required

 Constructive Notice
Investigate & Take Action
2012:  Once university knows or should know SBU must take steps to understand and respond appropriately to prevent recurrence and remedy its discriminatory effects 
2017: Where university knows or should know they must take steps to respond appropriately. 		Actual Notice
Deliberate Indifference Standard.
2020: When the university knows of an incident of sexual misconduct they must not respond with deliberate indifference.   Must take prompt and equitable steps to resolve the allegations and respond including providing supporting supportive measures designed to preserve access to educational program.  

Steps 2 & 3: Initial Complainant Interview & Comprehensive Investigation

 

Sexual Misconduct Process

Title IX Regulations

Notice of Allegation

 OEA contacts complainant and respondent for interviews as soon as practicable. Notice must be provided to both parties 3 days prior to meeting.

Supportive / Interim Measures

 Interim & Supportive measures available without or without formal complaint. Supportive measures with or without formal complaint.  
Must not be punitive.
Emergency Removal available when deemed necessary and must consider impact on educational progress.

Mediation / Informal Resolution

 NOT PERMITTED 
2012: Not permitted in sexual misconduct cases.
2017: Permitted in some cases with TIXC approval.  Not permitted in sexual violence cases. 		PERMITTED
2020: Permitted when agreed upon by both parties through informed written consent.

Evidentiary Review / Investigative Report

 Review of investigative report 5 days prior to hearing with opportunity to submit additional evidence following this review. Review of relevant evidence whether or not it will be relied upon prior to conclusion of the investigation.  All evidence from the parties must be submitted prior to this review.  
Parties must sign agreement not to disseminate any information. And have 10 days to review the evidence and respond.  

Advisors

 Advisor of choice permitted to assist but not participate during meetings and at hearing. Advisors required at hearing for all parties.  Advisors will cross examine opposing party.

Steps 4 & 5: Determination & Hearing Process

 

Sexual Misconduct Process

Title IX Regulations

Live Hearing

 Required and recorded. Required and must be recorded. 
Right to live hearing cannot be waived.

Evidence At Hearing

 Investigative report is submitted as evidence including other testimony and evidence submitted by the parties.
Lie detector test information is irrelevant. 		Any statements from parties who do not submit to cross examination must be excluded.  
Lie detector evidence allowable.

Witnesses

 Cross examination of witnesses is conducted by the parties. 
Cross examination of parties is conducted by the hearing officer.
Witnesses must have direct knowledge of relevant events.
Character statements allowable only for determination of sanction.		 Advisors engage in relevant cross examination of all witnesses including parties.  
Character witnesses allowable.
Expert witnesses allowable.

Relevance

 Questions regarding prior sexual behavior and predisposition irrelevant and unallowable.
Questions regarding mental health are irrelevant and unallowable.		 Questions regarding prior sexual history and behavior are allowable if asked to prove someone else committed the conduct or to prove consent.
Questions regarding undisclosed medical records, including mental health, are allowable if that party has given written consent and it tends to prove a material fact.

Appeals

 3 basis of appeal – procedural error, new evidence, disproportionate sanction. Additional basis required – bias of TIXC or decision maker(s).