Interim Policy and Procedure for Equal Opportunity and Nondiscrimination
Interim Policy and Procedure for Equal Opportunity and Nondiscrimination
Prohibiting sexual misconduct, harassment, bias, discrimination and retaliation. This policy is for all students, employees and third parties.
1. Rationale for Policy
The College of St. Scholastica (referred to herein as ‘The College’) is committed to providing a workplace and educational environment, as well as other benefits, programs, and activities that are free from bias, discrimination, harassment, and retaliation. To ensure compliance with federal and state civil rights laws and regulations, and to affirm its commitment to promoting the goals of fairness and equity in all aspects of the educational program or activity, The College has developed internal policies and procedures that provide a prompt, fair, and impartial process for those involved in an allegation of discrimination or harassment on the basis of protected class status, and for allegations of retaliation.
2. Applicable scope
The core purpose of this policy is the prohibition of all forms of bias and discrimination which includes retaliation and harassment on the basis of sex as well as other forms of harassment which involves exclusion from activities within the educational program such as admission, athletics, or employment, Sexual harassment under this policy encompasses sexual assault, stalking, sexual exploitation, dating violence or domestic violence.
- Advisor means a person chosen by a party or appointed by the institution to accompany the party to meetings related to the resolution process, to advise the party on that process, and to conduct indirect questioning for the party at the hearing, if any.
- Bias incident means a single act or multiple acts of verbal, written, electronic, or physical expressions of disrespectful conduct, hate, intimidation, and/or hostility against an individual or group or their property because of the individual or group’s actual or perceived status of being in a category protected under this Policy.
- Complainant means an individual who is alleged to be the victim of conduct that could constitute harassment or discrimination based on a protected class; or retaliation for engaging in a protected activity.
- Complaint (formal) means a document submitted or signed by a Complainant or signed by the Title IX Coordinator alleging harassment or discrimination based on a protected class or retaliation for engaging in a protected activity against a Respondent and requesting that The College investigate the allegation.
- Confidential Resource means an employee who is not a Mandated Reporter of notice of harassment, discrimination, and/or retaliation (irrespective of Clery Act Campus Security Authority status). Exceptions of confidentiality include actual not perceived suspected harm to self or others and state laws for reporting abuse of children and vulnerable populations (elderly, persons with disabilities).
Day means a business day when The College is in normal operation.
- Discrimination means words or conduct directed toward an individual because of a person or group’s protected characteristic(s) and which has the intent or effect of unreasonably interfering with the individual’s work, living or learning environment; has the intent or effect of creating an intimidating, hostile or offensive working, living, or learning environment (“hostile environment”); or otherwise adversely affects an individual’s employment, living, or learning opportunities.
- Education program or activity means locations, events, or circumstances where The College of St. Scholastica exercises substantial control over both the Respondent and the context in which the sexual or otherwise harassment or discrimination occurs and also includes any building owned or controlled by a student organization/athletic team that is officially recognized by The College of St. Scholastica.
- Final Determination: A conclusion by the Preponderance of the Evidence standard, or more likely than not that the alleged conduct did or did not violate policy.
- Finding: A conclusion by Preponderance of Evidence standard, or more likely than not that the conduct did or did not occur as alleged.
Formal Grievance Process means a method of formal resolution designated by The College to address conduct that falls within the policies included below.
- GEVA or Gender Equity anti-Violence Allies: Survivor advocates affiliated with community sexual assault agency, Program for Aid to Victims of Sexual Assault (PAVSA).
- Grievance Process Pool includes any investigators, hearing officers, appeal officers, and Advisors who may perform any or all of these roles (though not at the same time or with respect to the same case).
- Hearing Decision-maker panel refers to those who have decision-making and sanctioning authority within The College’s Formal Grievance process.
- Informal Resolution Process means a voluntary and mutually agreed upon process to resolve any complaints of discrimination, harassment and bias.
- Investigator means the person or persons charged by The College of St. Scholastica with gathering facts about an alleged violation of this Policy, assessing relevance and credibility, synthesizing the evidence, and compiling this information into an investigation report and file of directly related evidence.
- Mandated Reporter means an employee of The College who is obligated by policy to share knowledge, notice, and/or reports of harassment, discrimination, and/or retaliation with the Title IX Coordinator. This does not include obligations of professionals required to report abuse of a minor.
- Notice means that an employee, student, or third-party informs the Title IX Coordinator or other Official with Authority of the alleged occurrence of harassing, discriminatory, and/or retaliatory conduct.
- Official with Authority (OWA) means an employee of The College explicitly vested with the responsibility to implement corrective measures for harassment, discrimination, and/or retaliation on behalf of The College.
- Parties include the Complainant(s) and Respondent(s), collectively.
- Process A means the Resolution Process detailed for Title IX complaints.
- Process B means the Resolution Process for cases of harassment, discrimination, and/or bias that do not qualify for resolution using Process A.
- Recipient means a postsecondary education program that is overseeing the report and complaint process. This policy defines the Recipient as The College of St. Scholastica or ‘The College.’
- Remedies are post-finding actions directed to the Complainant and/or the community as mechanisms to address safety, prevent recurrence, and restore access to The College’s educational program.
- Respondent means an individual who has been reported to be the perpetrator of conduct that could constitute harassment or discrimination based on a protected class; or retaliation for engaging in a protected activity.
- Resolution means the result of an informal or Formal Grievance Process.
- Sanction means a consequence imposed by The College on a Respondent who is found to have violated this policy.
- Sexual Harassment is the umbrella category including the offenses of sexual harassment, sexual assault, stalking, dating violence, and domestic violence.
- Student is defined as any individual who has accepted an offer of admission, or who is registered or enrolled for credit or non-credit bearing coursework, and who maintains an ongoing relationship with The College of St. Scholastica.
- Title IX Coordinator is an official that is designated by The College of St. Scholastica to ensure compliance with Title IX and The College’s Title IX program. References to the Coordinator throughout this policy may also encompass a designee of the Coordinator for specific tasks.
- Title IX Team refers to the Title IX Coordinator, Deputies, Investigators, Decision Makers, and College-appointed Advisors.
4. Independence and conflict-of-interest
The Title IX Coordinator manages the Title IX Team and acts with independence and authority free from bias and conflicts of interest. The members of the Title IX Team are vetted and trained to ensure they are not biased for or against any party in a specific case, or for or against Complainants and/or Respondents, generally.
To raise any concern involving bias or conflict of interest by the Title IX Coordinator, contact Steve Lyons, Vice President of Student Affairs at email@example.com or 218-723-6779 or Dr. Barbara McDonald, President at firstname.lastname@example.org or 218-723-6033. Concerns of bias or a potential conflict of interest by any other Title IX Team member should be raised with the Title IX Coordinator.
5. Administrative contact information
The Title IX Coordinator and Deputies
Oversees implementation of The College’s Equal Opportunity, Harassment, Bias and Discrimination Policy. The Title IX Coordinator has the primary responsibility for coordinating The College’s efforts related to the intake, investigation, resolution, and implementation of supportive measures to stop, remediate, and prevent discrimination, harassment, and retaliation prohibited under this policy.
Complaints or notice of alleged policy violations, or inquiries about or concerns regarding this policy and procedures, may be made internally to:
Melissa Watschke MSW, LICSW
Title IX Coordinator
Duluth Campus Tower 2605
1200 Kenwood Avenue
Title IX Deputy of Athletics
Burns Wellness Center 258
Dr. Kelly Durick-Eder,
Title IX Deputy of Employee Equity
Additional team members
Investigators will be assigned in a two-member team to investigate any complaints of harassment or discrimination. Investigators are specifically trained in the investigatory process including how to conduct a fair, prompt, impartial fact-finding process.
Decision-Makers Panel A three-member panel at the Dean or Director level will serve on a decision-making team. Decision-makers are specifically trained in the decision-making process. A Decision-making Chair will be appointed. The Decision-making chair will also serve as the hearing chair with regard to Process A.
Appeals Decision-Makers A three-member team who is at the Vice-President level or higher who is specifically trained to manage and determine harassment and discrimination of protected classes.
Title IX Core Team serves as an advisory to Title IX with regard to policy, procedures, and training
opportunities to ensure The College maintains compliance, prevents recurrence, and offers an equitable, person-centered experience to all parties involved.
Officials with Authority The College has determined that the following administrators are Officials with Authority who are required to address and correct harassment, discrimination, and/or retaliation and may also accept notice or complaints on behalf of The College: The President of the College, Vice Presidents, Title IX Coordinator, Human Resources, Deans and Athletic Director.
Mandated Reporters All employees are Mandated Reporters of any knowledge they have that a member of the community is experiencing bias, harassment, discrimination, and/or retaliation. Student employees are required to report any disclosures that occur while within their employment.
Generally, disclosures in climate surveys, classroom writing assignments or discussions, human subjects research, or at events such as “Take Back the Night” marches or speak-outs do not provide notice that must be reported to the Coordinator by employees, unless the Complainant clearly indicates that they desire a report to be made or a seek a specific response from The College.
Failure of a Mandated Reporter to report an incident of harassment or discrimination of which they become aware is a violation of college policy and can be subject to disciplinary action for failure to comply.
The College acknowledges the following employees who operate as confidential employees within their assigned duties at The College as dictated by federal and state statutes:
- Counseling Services- Location Tower 2150 Main Campus; 218-723-6085
- Student Health Services – Location Somers 42 Main Campus; 218-723-6282
- Athletic trainers (student athletes only) Burns Wellness Center 139B 218-723-5918
- Gender Equity anti-Violence Allies (GEVAs) email@example.com
- Fall Semester 2020 Counseling and GEVAs Services will be offered via virtual environments
- Employee Assistance Program is available to help free of charge and may be consulted on an emergency basis during normal business hours.
Phone: 1-866-326-7194 EAP
All of the above-listed individuals will maintain confidentiality when acting under the scope of their licensure, professional ethics, and/or professional credentials, except in extreme cases of immediacy of threat or danger or abuse of a minor/elder/individual with a disability, or when required to disclose by law or court order. College employees who are confidential will timely submit anonymous statistical information for Clery Act purposes unless they believe it would be harmful to their client or patient.
Office for Civil Rights Chicago Regional Office
U.S. Department of Education
John C. Kluczynski Federal Building
230 S. Dearborn Street, 37th Floor
Chicago, IL 60604
For complaints involving employees: Equal Employment Opportunity Commission (EEOC)
Minneapolis Area Office Equal Employment Opportunity Commission
330 South Second Avenue, Suite 720
Minneapolis, MN 55401-2224
ASL Video Phone: 844-234-5122
Minnesota Office of Human Rights
540 Fairview Avenue North
St. Paul, MN 55104
6. Notice/reports of discrimination, harassment and/or retaliation
Notice or reports of discrimination, harassment, and/or retaliation may be made using any of the following options, at any time:
- File a complaint with, or give verbal notice to, the Title IX Coordinator, Melissa Watschke, Deputies Stacy Deadrick or Kelly Durick-Eder, or Officials with Authority including the President, Vice Presidents, Deans, and Athletic Director
- Report online: Title IX, Harassment, Bias, Discrimination Report Form found on the Title IX website
- By Telephone to the Title IX Coordinator at 218-625-4444
- By email at TitleIX@css.edu
A Formal Complaint means a document filed/signed by the Complainant or signed by the Title IX Coordinator alleging a policy violation by a Respondent and requesting that The College investigate the allegation(s). A complaint may be filed with the Title IX Coordinator in person, by mail, or by electronic mail, by using the contact information in the section immediately above. As used in this paragraph, the phrase “document filed by a Complainant” means a document or electronic submission (such as by electronic mail or through an online portal provided for this purpose by The College) that contains the Complainant’s physical or digital signature, or otherwise indicates that the Complainant is the person filing the complaint.
If notice is submitted in a form that does not meet this standard, the Title IX Coordinator will contact the Complainant to ensure that it is filed correctly.
7. Supportive measures
The College will offer and implement appropriate and reasonable supportive measures to the parties upon notice of alleged harassment, discrimination, and/or retaliation.
Supportive measures are non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the parties to restore or preserve access to The College’s education program or activity, including measures designed to protect the safety of all parties or The College’s educational environment, and/or deter harassment, discrimination, and/or retaliation.
The Title IX Coordinator promptly makes supportive measures available to the parties upon receiving notice or a complaint. Supportive measures may be offered as the result of such disclosures without formal College action.
The College will maintain the privacy of the supportive measures, provided that privacy does not impair The College’s ability to provide the supportive measures. The College will act to ensure as minimal an academic impact on the parties as possible. The College will implement measures in a way that does not unreasonably burden the other party.
These actions may include, but are not limited to:
- Referral to counseling, medical, and/or other healthcare services
- Referral to The College’s Employee Assistance Program
- Referral to community-based service providers
- Visa and immigration assistance
- Student financial aid counseling
- Education to the community or community subgroup(s)
- Altering campus housing assignment(s)
- Altering work arrangements for employees or student-employees
- Safety planning
- Providing campus safety escorts
- Providing transportation accommodations
- Implementing contact limitations (no contact orders) between the parties
- Academic support, extensions of deadlines, or other course/program-related adjustments
- Changing an individual’s student or employee status or job responsibilities.
- Changing an individual’s work or course schedule or job assignment.
- Timely warnings
- Class schedule modifications, withdrawals, or leaves of absence
- Increased security and monitoring of certain areas of the campus
- Any other actions deemed appropriate by the Title IX Coordinator
- Violations of no contact orders will be referred to appropriate student or employee conduct processes for enforcement.
8. Emergency removal
The College can act to remove a Respondent entirely or partially from its education program or activities on an emergency basis when an individualized safety and risk analysis has determined that an immediate threat to the physical health or safety of any student or other individual justifies removal. This risk analysis is performed by the Title IX Coordinator in conjunction with the Threat Assessment Team using its standard objective violence risk assessment procedures.
In all cases in which an emergency removal is imposed, the student, employee will be given notice of the action and the option to request to meet with the Title IX Coordinator prior to such action/removal being imposed, or as soon thereafter as reasonably possible, to show cause why the action/removal should not be implemented or should be modified.
This meeting is not a hearing on the merits of the allegation(s), but rather is an administrative process intended to determine solely whether the emergency removal is appropriate. When this meeting is not requested in a timely manner, objections to the emergency removal will be deemed waived. The Title IX Coordinator has sole discretion under this policy to implement or stay an emergency removal and to determine the conditions and duration. Violation of an emergency removal under this policy will be grounds for discipline, which may include expulsion or termination.
The College will implement the least restrictive emergency actions possible in light of the circumstances and safety concerns. As determined by the Title IX Coordinator, these actions could include, but are not limited to: removing a student from a residence hall or changing locations; temporarily re-assigning an employee, restricting a student’s or employee’s access to or use of facilities or equipment, authorizing an administrative leave, and suspending a student’s participation in extracurricular activities, student employment, student organizational leadership, or intercollegiate/intramural athletics.
At the discretion of the Title IX Coordinator, alternative coursework options may be pursued to ensure as minimal an academic impact as possible on the parties.
All allegations are acted upon promptly by The College once it has received notice or a formal complaint. Complaints can take 60-90 business days to resolve, typically. There are always exceptions and extenuating circumstances that can cause a resolution to take longer, but The College will avoid all undue delays within its control.
Any time the general timeframes for resolution outlined in The College’s procedures will be delayed, The College will provide written notice to the parties of the delay, the cause of the delay, and an estimate of the anticipated additional time that will be needed as a result of the delay.
Every effort is made by The College to preserve the privacy of reports. The College will not share the identity of any individual who has made a report or complaint of harassment, discrimination, or retaliation; any Complainant, any individual who has been reported to be the perpetrator of sex discrimination, any Respondent, or any witness, except as permitted by the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. 1232g; FERPA regulations, 34 CFR part 99; or as required by law; or to carry out the purposes of 34 CFR Part 106, including the conducting of any investigation, hearing, or grievance proceeding arising under these policies and procedures.
The College reserves the right to designate which College officials have a legitimate educational interest in being informed about incidents that fall within this policy, pursuant to the Family Educational Rights and Privacy Act (FERPA).
Only a small group of officials who need to know given the circumstances of the complaint will typically be told about the complaint, including but not limited to: Office of Equity, Diversity and Inclusion, Residential Life, Athletic, Chief Operating Officer, Vice President for Academic Affairs and/or respective Deans, Campus Security, and the Threat Assessment Team. Information will be shared as necessary with Deputies, Investigators, Hearing Panel members/Decision-makers, witnesses, and the parties. The circle of people with this knowledge will be kept as tight as possible to preserve the parties’ rights and privacy.
Following FERPA guidelines, The College may contact parents/guardians to inform them of situations in which there is a significant and articulable health and/or safety risk but may consult with the student first before doing so.
11. Jurisdiction of The College of St. Scholastica
This policy applies to the education program and activities of The College, to conduct that takes place on the campus or on property owned or controlled by The College, at college-sponsored events, or in buildings owned or controlled by The College’s recognized student organizations. The Respondent must be a member of The College’s community in order for its policies to apply.
This policy can also be applicable to the effects of off-campus misconduct that effectively deprive someone of access to The College’s educational program. The College may also extend jurisdiction to off-campus and/or to online conduct when the Title IX Coordinator determines that the conduct affects a substantial College interest.
Regardless of where the conduct occurred, The College will address notice/complaints to determine whether the conduct occurred in the context of its employment or educational program or activity and/or has continuing effects on campus or in an off-campus sponsored program or activity. A substantial interest of The College includes:
- Any action that constitutes a criminal offense as defined by law. This includes, but is not limited to, single or repeat violations of any local, state, or federal law;
- Any situation in which it is determined that the Respondent poses an immediate threat to the physical health or safety of any student or other individual;
- Any situation that significantly impinges upon the rights, property, or achievements of oneself or others or significantly breaches the peace and/or causes social disorder; and/or
- Any situation that is detrimental to the educational interests or mission of The College.
If the Respondent is unknown or is not a member of The College community, the Title IX Coordinator will assist the Complainant in identifying appropriate campus and local resources and support options and/or, when criminal conduct is alleged, in contacting local or campus law enforcement if the individual would like to file a police report.
When the Respondent is not a member of The College’s community, supportive measures, remedies, and resources may be accessible to the Complainant by contacting the Title IX Coordinator. In addition, The College may take other actions as appropriate to protect the Complainant against third parties, such as barring individuals from College property and/or events.
All vendors serving The College through third-party contracts are subject to the policies and procedures of their employers.
When the Respondent is enrolled in or employed by another institution, the Title IX Coordinator can assist the Complainant in liaising with the appropriate individual at that institution, as it may be possible to allege violations through that institution’s policies.
Similarly, the Title IX Coordinator may be able to advocate for a student or employee Complainant who experiences discrimination in an externship, study abroad program, or other environment external to The College where sexual harassment or nondiscrimination policies and procedures of the facilitating or host organization may give recourse to the Complainant.
12. Time limits on reporting
There is no time limitation on providing notice/complaints to the Title IX Coordinator. However, if the Respondent is no longer subject to The College’s jurisdiction and/or significant time has passed, the ability to investigate, respond, and provide remedies may be more limited or impossible.
Acting on notice/complaints significantly impacted by the passage of time (including, but not limited to, the rescission or revision of policy) is at the discretion of the Title IX Coordinator, who may document allegations for future reference, offer supportive measures and/or remedies, and/or engage in informal or formal action, as appropriate.
When notice/complaint is affected by significant time delay, The College will typically apply the policy in place at the time of the alleged misconduct and the procedures in place at the time of notice/complaint.
13. Online harassment and misconduct
The policies of The College are written and interpreted broadly to include online and cyber manifestations of any of the behaviors prohibited below, when those behaviors occur in or have an effect on The College’s education program and activities or use College networks, technology, or equipment.
While The College may not control websites, social media, and other venues in which harassing communications are made, when such communications are reported to The College, it will engage in a variety of means to address and mitigate the effects.
Communications covered in this policy are only media and communications in The College’s control (e.g., College networks, websites, or between The College’s email accounts) Supportive measures for Complainants will be provided, but protected speech cannot legally be subjected to discipline outside of The College’s control.
Off-campus harassing speech by employees, whether online or in person, may be regulated by The College only when such speech is made in an employee’s official or work-related capacity.
14. Policy on nondiscrimination
The College of St. Scholastica is committed to fostering an environment of mutual respect among its students, employees, as well as others who participate in the college’s programs and activities. As part of this commitment, The College seeks to protect the rights of all members of the college community and any other persons participating in college programs or having dealings with the college, and prohibits discrimination and harassment on the basis of sex (including pregnancy), gender identity or expression, race, color, religion or religious creed, sexual orientation, national origin, ancestry, disability, age, genetic information, marital status, veteran status, familial status, status with regard to public assistance or any other category protected by law (“protected class status”) or any other protected category under applicable local, state, or federal law, including protections for those opposing discrimination or participating in any grievance process on campus, with the Equal Employment Opportunity Commission, or other human rights agencies.
This policy covers nondiscrimination in both employment and access to educational opportunities. Therefore, any member of The College community whose acts deny, deprive, or limit the educational or employment or residential and/or social access, benefits, and/or opportunities of any member of The College community, guest, or visitor on the basis of that person’s actual or perceived membership in the protected classes listed above is in violation of The College policy on nondiscrimination.
15. Policy on disability discrimination and accommodation
The College is committed to full compliance with the Americans With Disabilities Act of 1990 (ADA), as amended, and Section 504 of the Rehabilitation Act of 1973, which prohibit discrimination against qualified persons with disabilities, as well as other federal and state laws and regulations pertaining to individuals with disabilities.
Under the ADA and its amendments, a person has a disability if they have a physical or mental impairment that substantially limits a major life activity. The ADA also protects individuals who have a record of a substantially limiting impairment or who are regarded as disabled by The College, regardless of whether they currently have a disability. A substantial impairment is one that significantly limits or restricts a major life activity such as hearing, seeing, speaking, breathing, learning, performing manual tasks, walking, or caring for oneself.
Students with disabilities
The College of St. Scholastica is committed to providing qualified students with disabilities with reasonable accommodations and support needed to ensure equal access to the academic programs, facilities, and activities of The College.
All accommodations are made on an individualized basis. A student requesting any accommodation should first submit the Online Questionnaire. Upon submission, the Center for Equal Access will follow up with the student to discuss the next steps in the process including a meeting to discuss reasonable accommodations in the academic and residential environments.
Employees with disabilities
Pursuant to the ADA, The College will provide reasonable accommodation(s) to all qualified employees with known disabilities when their disability affects the performance of their essential job functions, except when doing so would be unduly disruptive or would result in undue hardship to The College.
An employee with a disability is responsible for submitting a request for an accommodation to Rachelle Wakefield in Human Resources and providing necessary documentation. Human Resources designee will work with the employee’s supervisor to identify which essential functions of the position are affected by the employee’s disability and what reasonable accommodations could enable the employee to perform those duties.
16. Policy on discriminatory harassment
Students, staff, administrators, and faculty are entitled to an employment and educational environment that is free of discriminatory harassment. The College’s harassment policy is not meant to inhibit or prohibit educational content or discussions inside or outside of the classroom that include germane but controversial or sensitive subject matters protected by academic freedom.
The sections below describe the specific forms of legally prohibited harassment that are also prohibited under The College policy. When speech or conduct is protected by academic freedom and/or the First Amendment, it will not be considered a violation of college policy, though supportive measures will be offered to those impacted.
Discriminatory harassment constitutes a form of discrimination that is prohibited by college policy. Discriminatory harassment is defined as unwelcome conduct by any member or group of the community on the basis of actual or perceived membership in a class protected by policy or law.
The College of St. Scholastica does not tolerate discriminatory harassment of any employee, student, visitor, or guest. The College will act to remedy all forms of harassment when reported, whether or not the harassment rises to the level of creating a “hostile environment.”
A hostile environment is one that unreasonably interferes with, limits, or effectively denies an individual’s educational or employment access, benefits, or opportunities. This discriminatory effect results from harassing verbal, written, graphic, or physical conduct that is severe or pervasive and objectively offensive.
When discriminatory harassment rises to the level of creating a hostile environment, The College may also impose sanctions on the Respondent(s) through application of the appropriate grievance process below.
The College reserves the right to address offensive conduct, bias and/or harassment that 1) does not rise to the level of creating a hostile environment, or 2) that is of a generic nature and not based on a protected status. Addressing such conduct will not result in the imposition of discipline under this college policy, but may be addressed through respectful conversation, remedial actions, education, and/or other informal resolution mechanisms.
For assistance with informal resolution techniques and approaches, employees should contact the Title IX Coordinator for more information.
The Department of Education’s Office for Civil Rights (OCR), the Equal Employment Opportunity Commission (EEOC), and the State of Minnesota regard Sexual Harassment, a specific form of discriminatory harassment, as an unlawful discriminatory practice.
The College has adopted the following definition of Sexual Harassment in order to address the unique environment of an academic community, which consists not only of employer and employees, but of students as well.
Acts of sexual harassment may be committed by any person upon any other person, regardless of the sex, sexual orientation, and/or gender identity of those involved.
Sexual Harassment, as an umbrella category, includes the offenses or attempted offenses of sexual harassment, sexual assault, domestic violence, dating violence, and stalking, and is defined as:
Conduct on the basis of sex that satisfies one or more of the following:
Quid Pro Quo:
- an employee of The College,
- conditions the provision of an aid, benefit, or service of The College,
- on an individual’s participation in unwelcome sexual conduct; and/or
- unwelcome conduct,
- determined by a reasonable person,
- to be so severe, and
- pervasive, and,
- objectively offensive,
- that it effectively denies a person equal access to The College’s education program or activity.
Sexual assault, defined as:
- Sex Offenses, Forcible:
- Any sexual act directed against another person,
- without the consent of the Complainant,
- including instances where the victim is incapable of giving consent.
- Forcible rape:Penetration,
- no matter how slight,
- of the vagina or anus with any body part or object, or
- oral penetration by a sex organ of another person,
- without the consent of the Complainant.
- Forcible sodomy:
- Oral or anal sexual intercourse with another person,
- and/or against that person’s will (non-consensually), or
- not forcibly or against the person’s will in instances in which the Complainant is incapable of giving consent because the Complainant is under the age of 16; or because of temporary or permanent mental or physical incapacity.
- Sexual assault with an object:
- The use of an object or instrument to penetrate,
- however slightly,
- the genital or anal opening of the body of another person,
- and/or against that person’s will (non-consensually),
- or not forcibly or against the person’s will in instances in which the Complainant is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity.
- Forcible fondling:
- The touching of the private body parts of another person (buttocks, groin, breasts),
- for the purpose of sexual gratification,
- and/or against that person’s will (non-consensually),
- or not forcibly or against the person’s will in instances in which the Complainant is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity.
- Sex offenses, non-forcible:
- Non-forcible sexual intercourse,
- between persons who are related to each other,
- within the degrees wherein marriage is prohibited by Minnesota law.
- Statutory rape:
- Non-forcible sexual intercourse,
- with a person who is under the statutory age of consent of sixteen (16).
Dating violence, defined as:
- on the basis of sex,
- committed by a person,
- who is in or has been in a social relationship of a romantic or intimate nature with the Complainant.
- The existence of such a relationship shall be determined based on the Complainant’s statement and with consideration of the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship. For the purposes of this definition—
- Dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse.
- Dating violence does not include acts covered under the definition of domestic violence.
Domestic violence, defined as:
- on the basis of sex,
- committed by a current or former spouse or intimate partner of the Complainant,
- by a person with whom the Complainant shares a child in common, or
- by a person who is cohabitating with, or has cohabitated with, the Complainant as a spouse or intimate partner, or
- by a person similarly situated to a spouse of the Complainant under the domestic or family violence laws in the State of Minnesota or
- by any other person against an adult or youth Complainant who is protected from that person’s acts under the domestic or family violence laws in the State of Minnesota.
*To categorize an incident as Domestic Violence, the relationship between the Respondent and the Complainant must be more than just two people living together as roommates. The people cohabitating must be current or former spouses or have an intimate relationship.
Stalking, defined as:
- engaging in a course of conduct,
- on the basis of sex,
- directed at a specific person, that
- would cause a reasonable person to fear for the person’s safety, or
- the safety of others; or
- Suffer substantial emotional distress.
- For the purposes of this definition —
- Course of conduct means two or more acts, including, but not limited to, acts in which the Respondent directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates to or about a person, or interferes with a person’s property.
- Reasonable person means a reasonable person under similar circumstances and with similar identities to the Complainant.
- Substantial emotional distress means significant mental suffering or anguish that may but does not necessarily require medical or other professional treatment or counseling.
17. Consensual Relations Policy
In order to protect the integrity of the academic, living and work environment, the College’s Consensual Relations Policy outlines limitations on consensual romantic or sexual relationships between faculty, staff and students at the College. When individuals involved in a consensual romantic or sexual relationship are in positions of unequal power at the College, there is the potential for a conflict of interest, favoritism, exploitation and sexual or gender- based misconduct. See the College’s Consensual Relations Policy.
The College reserves the right to impose any level of sanction, ranging from a reprimand up to and including suspension or expulsion/termination, for any offense under this policy, through the appropriate process for resolution.
As used in the offenses above, the following definitions and understandings apply:
Force is the use of physical violence and/or physical imposition to gain sexual access. Force also includes threats, intimidation (implied threats), and coercion that is intended to overcome resistance or produce consent (e.g., “Have sex with me or I’ll hit you,” “Okay, don’t hit me, I’ll do what you want.”).
Sexual activity that is forced is, by definition, non-consensual, but non-consensual sexual activity is not necessarily forced. Silence or the absence of resistance alone is not consent. Consent is not demonstrated by the absence of resistance. While resistance is not required or necessary, it is a clear demonstration of non-consent.
Coercion refers to intimidation that would compel an individual to do something against their will by the use of psychological pressure, physical force, or threats of severely damaging consequences, relentless requests. When someone makes clear that they do not want to engage in certain sexual activity, that they want to stop, or that they do not want to go past a certain point of sexual interaction, continued pressure beyond that point can be coercive.
- knowing, and
- voluntary, and
- clear permission
- by word or action
- to engage in sexual activity.
Since individuals may experience the same interaction in different ways, it is the responsibility of each party to determine that the other has consented before engaging in the activity.
For consent to be valid, there must be a clear expression in words or actions that the other individual consented to that specific sexual conduct. Reasonable reciprocation can be implied. For example, if someone kisses you, you can kiss them back (if you want to) without the need to explicitly obtain their consent to being kissed back.
Consent can also be withdrawn once given, as long as the withdrawal is clearly communicated verbally or nonverbally. If consent is withdrawn, that sexual activity should cease.
Consent to some sexual contact (such as kissing or fondling) cannot be presumed to be consent for other sexual activity (such as intercourse). A current or previous intimate relationship is not sufficient to constitute consent.
Proof of consent or non-consent is not a burden placed on either party involved in an incident. Instead, the burden remains on The College to determine whether its policy has been violated. The existence of consent is based on the totality of the circumstances evaluated from the perspective of a reasonable person in the same or similar circumstances, including the context in which the alleged incident occurred and any similar, previous patterns that may be evidenced.
A person cannot consent if they are unable to understand what is happening or is disoriented, helpless, asleep, or unconscious, for any reason, including by alcohol or other drugs. As stated above, a Respondent violates this policy if they engage in sexual activity with someone who is incapable of giving consent.
Incapacitation occurs when someone cannot make rational, reasonable decisions because they lack the capacity to give knowing/informed consent (e.g., to understand the “who, what, when, where, why, or how” of their sexual interaction). Incapacitation is determined through consideration of all relevant indicators of an individual’s state and is not synonymous with intoxication, impairment, blackout, and/or being drunk.
This policy also covers a person whose incapacity results from a temporary or permanent physical or mental health condition, involuntary physical restraint, and/or the consumption of incapacitating drugs.
19. Other civil rights offenses
In addition to the forms of sexual harassment described above, which fall within the coverage of Title IX; The College additionally prohibits the following offenses or attempted offenses as forms of discrimination outside of Title IX when the act is based upon the Complainant’s actual or perceived membership in a protected class.
- Defined as: taking non-consensual or abusive sexual advantage of another for their own benefit or for the benefit of anyone other than the person being exploited, and that conduct does not otherwise constitute sexual harassment under this policy. Examples of Sexual Exploitation include, but are not limited to:
- Sexual voyeurism (such as observing or allowing others to observe a person undressing or using the bathroom or engaging in sexual acts, without the consent of the person being observed)
- Invasion of sexual privacy.
- Taking pictures, video, or audio recording of another in a sexual act, or in any other sexually-related activity when there is a reasonable expectation of privacy during the activity, without the consent of all involved in the activity, or exceeding the boundaries of consent (such as allowing another person to hide in a closet and observe sexual activity, or disseminating sexual pictures without the photographed person’s consent), including the making or posting of revenge pornography
- Prostituting another person
- Engaging in sexual activity with another person while knowingly infected with human immunodeficiency virus (HIV) or a sexually-transmitted disease (STD) or infection (STI), without informing the other person of the infection
- Causing or attempting to cause the incapacitation of another person (through alcohol, drugs, or any other means) for the purpose of compromising that person’s ability to give consent to sexual activity, or for the purpose of making that person vulnerable to non-consensual sexual activity
- Misappropriation of another person’s identity on apps, websites, or other venues designed for dating or sexual connections
- Forcing a person to take an action against that person’s will by threatening to show, post, or share information, video, audio, or an image that depicts the person’s nudity or sexual activity
- Knowingly soliciting a minor for sexual activity
- Engaging in sex trafficking
- Creation, possession, or dissemination or child pornography
- Threatening or causing physical harm, extreme verbal, emotional, or psychological abuse, or other conduct which threatens or endangers the health or safety of any person;
Discrimination is defined as actions that deprive, limit, or deny other members of the community of educational or employment access, benefits, or opportunities;
Intimidation is defined as implied threats or acts that cause an unreasonable fear of harm in another;
Hazing is defined as acts likely to cause physical or psychological harm or social ostracism to any person within The College community, when related to the admission, initiation, pledging, joining, or any other group-affiliation activity;
Bullying is defined as repeated and/or severe, aggressive behavior likely to intimidate or intentionally hurt, control, or diminish another person, physically and/or mentally that is not speech or conduct otherwise protected by the First Amendment.
Harassment is defined as an action or behavior that
- Has the intent or effect of unreasonably interfering with the individual’s work, living or learning environment
- Has the intent or effect of creating an intimidating, hostile or offensive working, living or learning environment (“hostile environment”)
- Otherwise adversely affects an individual’s employment, living, or learning opportunities.
- Causes another person to experience a reasonable fear that he or she will experience unauthorized social exclusion, humiliation, intimidation, or the unlawful use of physical force
Bias incident is defined as a single act or multiple acts of verbal, written, electronic, or physical expressions of disrespectful conduct, hate, intimidation, and/or hostility against an individual or group or their property because of the individual or group’s actual or perceived status of being in a category protected under this Policy.
Violation of any other The College policies may constitute a Civil Rights Offense when a violation is motivated by actual or perceived membership in a protected class, and the result is a discriminatory limitation or denial of employment or educational access, benefits, or opportunities.
Sanctions for the above-listed Civil Rights Offenses range from reprimand through expulsion or termination.
It is prohibited for The College or any member of The College’s community to take materially adverse action by intimidating, threatening, coercing, harassing, or discriminating against any individual for the purpose of interfering with any right or privilege secured by law or policy, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this policy and procedure.
Acts of alleged retaliation should be reported immediately to the Title IX Coordinator and will be promptly investigated. The College is prepared to take appropriate steps to protect individuals who fear that they may be subjected to retaliation.
Charges against an individual for code of conduct violations that do not involve sex discrimination or sexual harassment but arise out of the same facts or circumstances as a report or complaint of sex discrimination, or a report or complaint of sexual harassment, for the purpose of interfering with any right or privilege secured by Title IX, constitutes retaliation.
The exercise of rights protected under the First Amendment does not constitute retaliation.
Charging an individual with a code of conduct violation for making a materially false statement in bad faith in the course of a grievance proceeding under this policy and procedure does not constitute retaliation, provided that a determination regarding responsibility, alone, is not sufficient to conclude that any party has made a materially false statement in bad faith.
21. When a complainant does not wish to proceed
If a Complainant does not wish for their name to be shared, does not wish for an investigation to take place, or does not want a formal complaint to be pursued, they may make such a request to the Title IX Coordinator, who will evaluate that request in light of the duty to ensure the safety of the campus and to comply with state or federal law.
The Title IX Coordinator has ultimate discretion over whether The College proceeds when the Complainant does not wish to do so, and the Title IX Coordinator may sign a formal complaint to initiate a grievance process upon completion of an appropriate violence risk assessment.
When the Title IX Coordinator executes the written complaint, they do not become the Complainant. The Complainant is the individual who is alleged to be the victim of conduct that could constitute a violation of this policy.
If the Complainant elects to take no action, they can change that decision if they decide to pursue a formal complaint at a later date. The goal is to provide the Complainant with as much control over the process as possible, while balancing The College’s obligation to protect its community.
In cases in which the Complainant requests confidentiality/no formal action and the circumstances allow The College to honor that request, The College will offer informal resolution options (see below), supportive measures, and remedies to the Complainant and the community, but will not otherwise pursue formal action.
22. Federal timely warning obligations
Parties reporting sexual assault, domestic violence, dating violence, and/or stalking should be aware that under the Clery Act, The College must issue timely warnings for incidents reported to them that pose a serious or continuing threat of bodily harm or danger to members of the campus community.
The College will ensure that a Complainant’s name and other identifying information is not disclosed, while still providing enough information for community members to make safety decisions in light of the potential danger.
23. False allegations and evidence
Deliberately false and/or malicious accusations under this policy, as opposed to allegations which, even if erroneous, are made in good faith, are a serious offense and will be subject to appropriate disciplinary action. Witnesses and parties knowingly providing false evidence, tampering with or destroying evidence after being directed to preserve such evidence, or deliberately misleading an official conducting an investigation can be subject to discipline under The College policy.
24. Amnesty for complainants and witnesses
It is in the best interests of The College community that Complainants choose to report misconduct to The College officials, that witnesses come forward to share what they know, and that all parties be forthcoming during the process. The College maintains a policy of offering parties and witnesses amnesty from minor policy violations – such as underage consumption of alcohol or the use of illicit drugs – related to the incident.
Amnesty does not apply to more serious allegations such as physical abuse of another or illicit drug distribution. The decision not to offer amnesty to a Respondent is based on neither sex nor gender, but on the fact that collateral misconduct is typically addressed for all students within a progressive discipline system, and the rationale for amnesty – the incentive to report serious misconduct – is rarely applicable to Respondent with respect to a Complainant.
25. State and federal statistical reporting obligations
Minnesota law Minn. Stat. 135A.15 and Federal Clery Act requires institutions to collect and report:
- All “primary crimes,” which include homicide, sexual assault, robbery, aggravated assault, burglary, motor vehicle theft, and arson;
- Hate crimes, which include any bias motivated primary crime as well as any bias motivated larceny or theft, simple assault, intimidation, or destruction/damage/vandalism of property;
- VAWA-based crimes, which include sexual assault, domestic violence, dating violence, and stalking; and
- Arrests and referrals for disciplinary action for weapons-related law violations, liquor-related law violations, and drug abuse-related law violations.
All personally identifiable information is kept private, but statistical information must be passed along to Campus Security Director and Safety and Security Manager regarding the type of incident and its general location (on or off-campus or in the surrounding area, but no addresses are given) for publication in the Annual Security Report and daily campus crime log to be distributed to United States Department of Education and the Minnesota Office of Higher Education.
Data collected for purposes of submitting annual reports containing those statistics shall only be disclosed to the victim, persons whose work assignments reasonably require access i.e. Campus Security, and, at the victim’s request, police conducting a criminal investigation.
Deputy Title IX Coordinator for Athletics
Title IX Deputy of Employee Equity
For the purpose of this policy, privacy and confidentiality have distinct meanings. Privacy means that information related to a complaint will be shared with a limited number of College employees who “need to know” in order to assist in the assessment, investigation, and resolution of the report. All employees who are involved in The College’s response to notice under this policy receive specific training and guidance about sharing and safeguarding private information in accordance with state and federal law. The privacy of student education records will be protected in accordance with the Family Educational Rights and Privacy Act (“FERPA”), as outlined in The College’s FERPA policy. The privacy of employee records will be protected in accordance with Human Resources policies. Confidentiality exists in the context of laws that protect certain relationships, including those who provide services related to medical and clinical care, mental health providers and counselors. The law creates a privilege between certain health care providers, mental health care providers, attorneys, clergy, spouses, and others, with their patients, clients, parishioners, and spouses. The College has designated individuals who have the ability to have privileged communications as Confidential Resources. When information is shared by a Complainant with a Confidential Resource, the Confidential Resource cannot reveal the information to any third party except when an applicable law or a court order requires or permits disclosure of such information. For example, information may be disclosed when: (i) the individual gives written consent for its disclosure; (ii) there is a concern that the individual will likely cause serious physical harm to self or others; or (iii) the information concerns conduct involving suspected abuse or neglect of a minor under the age of 18, elders, or individuals with disabilities. Non-identifiable information may be shared by Confidential Resources for statistical tracking purposes as required by the federal Clery Act. Other information may be shared as required by law.
This definition of hostile environment is based on
Federal Register / Vol. 59, No. 47 / Thursday, March 10, 1994: Department of Education Office for Civil Rights, Racial Incidents and Harassment Against Students At Educational The College Investigative Guidance
Unwelcomeness is subjective and determined by the Complainant (except when the Complainant is below the age of consent). Severity, pervasiveness, and objective offensiveness are evaluated based on the totality of the circumstances from the perspective of a reasonable person in the same or similar circumstances (“in the shoes of the Complainant”), including the context in which the alleged incident occurred and any similar, previous patterns that may be evidenced.
The Minnesota state definition of consent §609.341 Subd. 4 is “words or overt actions by a person indicating a freely given present agreement to perform a particular sexual act with the actor” which is applicable to criminal prosecutions for sex offenses in Minnesota but may differ from the definition used on campus to address policy violations.
VAWA is the Violence Against Women Act, enacted in 1994 codified in part at 42 U.S.C. sections 13701 through 14040.