Grievance And Disciplinary Policy And Procedures
When an incident of Prohibited Conduct is reported, this policy will be utilized to eliminate, prevent, and address sex discrimination and its effects; as well as provide a prompt and fair investigation and resolution of Prohibited Conduct cases. FXUA must promptly investigate and resolve any cases of sex discrimination, regardless of whether a report is made with FXUA under this policy.
FXUA’s investigation into the Prohibited Conduct is different from any law enforcement investigation. A law enforcement investigation does not relieve FXUA of its obligation to investigate and resolve the incident and its effects. All reports will be reviewed by FXUA on a case-by-case basis, in the totality of the circumstances.
The Title IX Coordinator is responsible for overseeing the prompt, fair, and impartial investigation and resolution of all Prohibited Conduct incidents reported to the university. Any question regarding the interpretation and application of this policy shall be referred to the Title IX & Clery Act Compliance Coordinator. The Title IX & Clery Act Compliance Coordinator may designate a Title IX Deputy Coordinator to serve as the Title IX Coordinator for any procedures outlined in this policy.
The university will provide any individual who has been a victim of Prohibited Conduct with any available resources and inform them of the community resources available to him/her. The procedures included in this policy are intended to afford a prompt and fair response to all known incidents of Prohibited Conduct, maintain the privacy of all parties involved consistent with the applicable legal requirements, and impose sanctions on violators of this policy in accordance with the egregiousness of the Prohibited Conduct and its effects on the victim.
FXUA may determine it is necessary to enact Interim (meaning temporary) Measures at any time during the investigation. Interim Measures are intended to eliminate the Prohibited Conduct, prevent the recurrence of Prohibited Conduct, and remedy the effects of such conduct while the investigation and other procedures are taking place. These measures may be both remedial or protective and are designed to address the safety and well-being of all parties involved in the incident and the FXUA community, and to provide for the continued access to educational opportunities.
These measures are available regardless of what an individual chooses to do under this policy. Upon receiving a report of alleged Prohibited Conduct, the reporting individual will be provided with a written explanation of Interim Measures available, report and complaint options, and on- and off-campus resources. If the victim requests an Interim Measure that is not already being provided or is not listed below, the Title IX & Clery Act Compliance Coordinator will consider the request and determine whether it is appropriate on a case-by-case basis. The Title IX & Clery Act Compliance Coordinator has the discretion to impose or modify any Interim Measures and is available to meet with any parties involved to address any concerns or questions about the measures.
FXUA will maintain the privacy of all parties involved to the extent that it is practical to do so. The Respondent and other parties will be informed of Interim Measures to the extent necessary to ensure that the measures are complied with. The violation of any Interim Measures will be considered a violation of this policy and are subject to disciplinary action under the Sexual Misconduct Policy. The Title IX & Clery Act Compliance Coordinator will address the violation of any Interim Measures.
Interim Measures include, but are not limited to:
- No contact orders;
- Academic accommodations;
- Changes in supervisor or work location;
- Social restrictions;
- An escort to ensure safe movement between classes;
- Increased campus security;
- Increased monitoring or supervision;
- Assistance in arranging for alternative FXUA student employment;
- Change in work schedule; and
- Change in academic class schedule.
FXUA will provide Interim Measures to third parties (third parties are anyone who has been effected by the Prohibited Conduct but are not the victim or the Respondent) as appropriate and available. The availability of measures for third parties will be determined based on the role of the third party, the actions of the Respondent, and the nature of the relationship between the third party and FXUA.
When a Professional Counselor requests any of the above measures, or any other measure, on behalf of an individual without disclosing that Prohibited Conduct has occurred and is the basis of the request, then the Title IX & Clery Act Compliance Coordinator will consider those requests within the framework of general FXUA policies and with the acknowledgment that counselors can seek assistance for victims of trauma without being required to disclose any information.
Because Interim Measures are intended to protect and support all parties involved in the student conduct process and the university community, any Interim Measures put in place during the sexual misconduct proceeding may be continued regardless of a finding of responsibility against the responder or other party.
Interim Measures should be requested in writing; this includes through email. The university may choose to implement Interim Measures even if a party does not request any Interim Measures.
No Contact Orders
A no contact order is a bilateral order that mandates none of the parties listed in the order may communicate with each other. Prohibited communication includes in-person communication, electronic communication of any kind, and communications through third parties. Other restrictions may be included on a case-by-case basis, such as a minimum distance requirement. The no contact order is in effect both on- and off-campus.
If a No Contact Order is issued it will remain in effect until it is determined to no longer be necessary. The termination of the No Contact Order is at the discretion of the university.
A No Contact Order is not a disciplinary sanction. However, failure to abide by a No Contact Order will be addressed immediately by the university and may result in further interim measures, which could include removal from or restriction on campus or other remedies, and may result in disciplinary sanctions and a conduct record.
Generally, the following steps will be taken if a No Contact Order is violated:
A Written Warning will be issued to the violating party.
A Written Final Warning will be issued to the violating party.
The violating party will be suspended until the completion of the investigation.
The Title IX & Clery Act Compliance Coordinator will review a report of alleged Prohibited Conduct within one (1) day of the report being submitted to a Title IX Coordinator.
After reviewing the report, the Title IX Coordinator will make an initial determination as to whether the alleged conduct, if true, would constitute a violation of the Sexual Misconduct Policy. The Title IX Coordinator will make an initial determination within two (2) days of receiving the report.
If the initial determination is that the allegations, if true, would be a violation of the Sexual Misconduct Policy, the Title IX Coordinator will send a Notice of Investigation to the relevant parties within one (1) day of making the initial determination.
If the Title IX Coordinator’s determination is that the alleged conduct would not be a violation of the Sexual Misconduct Policy, then the Title IX Coordinator will inform all parties involved within one (1) day of the initial determination. The adversely effected party may appeal for reconsideration. Any such appeal must be submitted to the Title IX & Clery Act Compliance Coordinator in writing within three (3) days of the parties being informed and must meet the requirements of an appeal. For more information about the appeals process, refer to pages 30-31.
A Violence Prevention and Evaluation Committee (VPE Committee) is required under Virginia state law1. If a report alleges an act of sexual violence the Title IX & Clery Act Compliance Coordinator will promptly forward all known information about the incident to the VPE Committee after the Initial Review of the report/complaint. For more information about the VPE Committee, refer to pages 31-33.
1.Virginia Code § 23.1- 805, accessible here: https://law.lis.virginia.gov/vacodeupdates/title23.1/section23.1-805/.
and Virginia Code § 23.1- 806, accessible here: https://law.lis.virginia.gov/vacodeupdates/title23.1/section23.1-806/.
If the initial determination is that the allegations, if true, would be a violation of the Sexual Misconduct Policy, the Title IX Coordinator will send a Notice of Investigation to the relevant parties within one (1) day of making the initial determination.
The Notice of Investigation will inform the parties that the university will be conducting an investigation into the incident, and contain the following information:
- What the allegations are;
- Information about an advisor;
- Request to schedule a meeting;
- Information on submitting a written statement and the names of individuals with information about the incident;
- Reminders about interim measures if any have been put in place; and
- Any other information that is relevant.
The Notice of Investigation will contain a request for a meeting. The Title IX Coordinator will meet with each person individually unless the individual brings an advisor. The meeting is meant to gather information about the incident, inform the individual about their options, and what, if any, interim measures need to be put in place that have not already been put in place. An individual is not required to meet with the Title IX Coordinator, however, it is in their best interest to do so, so as to provide a more complete picture of the alleged incident. An individual will not be penalized for not scheduling a meeting with the Title IX Coordinator, however, a notation will be made in the investigative file that the individual choose not to meet with the Title IX Coordinator. The meeting will be conducted in a trauma-sensitive manner, as appropriate.
During this meeting, the Title IX Coordinator will, as appropriate:
- Provide a copy of the Sexual Misconduct Policy, in writing.
- Provide information on how to file a report with local law enforcement.
- Provide a copy of their rights, in writing.
- Provide information on how to obtain a civil protection order.
- Explain the potential outcomes of the investigation and grievance procedure process.
- Explain the next steps of the investigation and grievance procedure process.
- Discuss potential interim measures that could be provided during the investigation and grievance procedure process. Interim measures will be put in place as appropriate and reasonably available.
- Provide information about campus and community resources, in writing.
- Discuss retaliation and how to report it.
- Discuss privacy standards and concerns. Parties are free to share their own experiences regarding the report/complaint. Parties are not free to share any information they learn through the investigative process. However, sharing any information regarding the incident can potentially compromise the integrity of the investigation and grievance procedure, thus it is advisable that parties limit the number of people with whom they share information and confide in. Parties will be informed that sharing information could be construed as retaliation.
Following the initial meetings, the Title IX Coordinator will determine whether it is appropriate to implement any Interim Measures not already in place and that have not been requested by an individual, or to revise any Interim Measures that are already in place. Any changes will be communicated to the affected parties.
An Informal Resolution is a voluntary alternative approach designed to address Prohibited Conduct and its effects without taking disciplinary action against the Respondent. An Informal Resolution does not result in a finding of Responsibility.
A victim, or reporter, may request, in writing, for an Informal Resolution. This request should be submitted after a report has been made to FXUA. The Title IX & Clery Act Compliance Coordinator will review the request and all other known information about the alleged incident, consider the severity of the alleged Prohibited Conduct, and the potential risks to others in the FXUA community to determine if an Informal Resolution is appropriate.
An Informal Resolution is not available for any incident of Prohibited Conduct that involves sexual violence or physical violence of any kind.
An Informal Resolution may be appropriate if:
- The victim or reporter requests it;
- The Respondent agrees to the Informal Resolution;
- Both parties are students;
- The Title IX & Clery Act Compliance Coordinator determines that an Informal Resolution is an appropriate method for resolving the incident; and
- The incident does not involve allegations of sexual violence or physical violence.
If an Informal Resolution is deemed appropriate, the mediator will consult with the individual that has requested the Informal Resolution so as to determine their desired outcome. Once the desired outcome is clear, the mediator (who will be designated by the Title IX & Clery Act Compliance Coordinator) will inform the Respondent and gather additional information as required. Interim Measures may be enacted, as appropriate, during the Informal Resolution process.
The mediator will aid the parties in finding a mutually agreeable outcome. If an agreement is reached between the parties, it will be put into writing and signed by both parties and the mediator. The incident will be considered resolved if both parties find the outcome agreeable and the Title IX & Clery Act Compliance Coordinator approves of the final outcome.
The Informal Resolution process can be terminated by either party at any point before reaching a written, signed agreement. The Title IX & Clery Act Compliance Coordinator may terminate the Informal Resolution process at any point before an express agreement is reached, and initiate the investigative process instead. In the event that the Informal Resolution process is terminated, all disclosures and statements made during the Informal Resolution process may be considered in the investigative process.
If the Initial Determination is that the alleged Prohibited Conduct, if true, would be a violation of the Sexual Misconduct Policy, then the Title IX & Clery Act Compliance Coordinator will appoint an Investigator to assist in conducting the investigation. The name and contact information of the Investigator will be shared with all parties. Title IX Investigators (Investigator) conduct thorough and impartial investigations into the facts of a case which includes interviewing the victim, Respondent, witnesses or others who may have relevant information, and collecting any other evidence deemed relevant to a case. The Investigator may be the Title IX Coordinator, Deputy Title IX Coordinator, or any other individual that is qualified.
If the Respondent acknowledges responsibility for the alleged incident of Prohibited Conduct, then there will be no further investigation. Instead, the process will move forward towards completing the Final Report.
The Investigator must remain neutral at all times. If a party has a basis to believe that an Investigator has a personal bias, a conflict of interest, or is otherwise unable to be fair or impartial to the party, they must promptly notify the Title IX & Clery Act Compliance Coordinator and the Associate Vice President of Institutional Effectiveness & Quality Assurance in writing and beforethe conclusion of the investigation. While the notification must occur before the conclusion of the investigation, the notification can occur at any time before the conclusion. The party must include the basis for their belief in this notification. The Title IX & Clery Act Compliance Coordinator and the Associate Vice President of Institutional Effectiveness & Quality Assurance will evaluate and respond to the information submitted by the party.
An investigation into the alleged Prohibited Conduct is to determine if a violation of the Sexual Misconduct Policy has occurred, the extent of any risk of ongoing or repeated harm, whether additional protective measures need to be enacted, and if changes of policy, practices, and training should be evaluated and implemented.
Investigative Process & Procedures
If the Title IX & Clery Act Compliance Coordinator determines that the alleged conduct, if true, would constitute a violation of the Sexual Misconduct Policy then the Investigator will promptly begin their investigation. The Investigator has the discretion to determine what is and is not relevant, and what should be included in the Investigative File and Report.
The Investigator will contact all parties to conduct separate interviews. To facilitate the scheduling of these interviews, the Investigator will be provided with the class schedules of parties, as applicable. To ensure a prompt and equitable investigation, all parties are expected to adhere to deadlines set by the Investigator.
The Investigator will take steps such as:
- Interviewing all parties;
- Interviewing any witnesses;
- Reviewing law enforcement investigation documents where available;
- Reviewing student and personnel files;
- Gathering and reviewing any other relevant documents or evidence; and
- Visiting, inspecting, and taking photographs of relevant sites.
The Investigator will review all of the material information available and make a recommendation that will be included in the Investigative File and Report.
All parties will be provided with at least two (2) days’ notice of interviews, meetings, or other proceedings. The notice will include, as applicable, the date, time, and location of the interview, meeting, or proceeding. If a party makes a request to meet within forty-eight (48) hours of the meeting, a notice will not be sent out but a confirmation of the meeting time and place will be.
Failure to Appear
If a party fails to attend any interview, meeting, or proceeding and the party was provided with proper notice of the meeting, absent any extenuating circumstances or prior request, then a notation of this absence will be made and the investigation will proceed so as to determine the resolution of the incident.
All parties will have an equal opportunity to provide information and present evidence related and material to the incident.
Information that is not permitted as evidence:
- An individual’s manner of dress, style, or attire.
- Character assessments.
- Information from a third party investigator.
- Information regarding an individual’s prior, or current, sexual history unless the individual makes a specific claim about his/her sexual history.
Information that is permitted as evidence:
- Evidence that the reporter has previously been disciplined for falsely filing complaints alleging that a violation of the Sexual Misconduct Policy has occurred.
- Evidence that shows the Respondent has previously been convicted in a criminal proceeding or found responsible by the university for Prohibited Conduct.
- Evidence that shows the Respondent has previously had complaints filed against her/him but was not found to be responsible for the Prohibited Conduct, provided that the Investigators are able to verify that the information is reliable and trustworthy, and that the previous conduct is sufficient and substantially similar enough to the conduct at issue in the current report to suggest a pattern of behavior.
As stated above, the university will provide any disability-related accommodations as appropriate. In addition to these accommodations, parties may request accommodations in connection with the investigation. These request must be submitted in writing to the Title IX & Clery Act Compliance Coordinator. The Title IX & Clery Act Compliance Coordinator will determine if these requests will be granted and his/her decision is final. The Title IX & Clery Act Compliance Coordinator may also determine that accommodations may be necessary even when they have not been requested, in this situation these accommodations will be discussed with the effected party.
As soon as is practical, the Investigator will turn over the Investigative File and Report to the Title IX & Clery Act Compliance Coordinator. The Investigative File and Report will include all evidence and documentation regarding the incident. The Investigative File and Report will also include the Final Sanctions form, which includes the recommended sanctions, as well as the rationale for the findings and recommended sanctions, as appropriate.
Within seven (7) days of receiving the Investigative File and Report the Title IX & Clery Act Compliance Coordinator, or their designee, will make a Final Determination as to whether the Respondent is Responsible for the alleged Prohibited Conduct and determine the appropriate sanctions, as applicable. The Title IX & Clery Act Compliance Coordinator will review all of the information contained within the Investigative File and Report, and apply a preponderance of the evidence standard, in the totality of the circumstances.
If the Title IX & Clery Act Compliance Coordinator has any questions or concerns regarding the materials contained within the Investigative File and Report, the Title IX & Clery Act Compliance Coordinator may reach out to the Investigator or any of the involved parties for clarification. In this situation, all correspondence and information obtained from these questions or any clarification sought will be documented in an addendum to the Investigative File and Report.
Within one (1) day of the Final Determination, the Title IX Coordinator will provide all parties with a copy of the Final Report. All parties will be provided with the Final Report at approximately the same time.
The Final Report will include, but is not limited to:
- The findings of fact for each alleged violation;
- Application of the Preponderance of the Evidence Standard to the findings of fact;
- Determination of whether the Respondent is responsible for the Prohibited Conduct and the rationale for that determination;
- The sanction(s) imposed on the Respondent if a finding of Responsibility is found and the rationale of the sanctions imposed;
- Any protective measures or additional remedies that will be put in place to remedy the effect of the conduct;
- The Interim Measures that were put in place during the investigation and whether those Interim Measures will be continued or discontinued;
- Information on how to file an appeal; and
- Any other relevant and material information.
Any individual included in a Prohibited Conduct proceeding may bring an advisor for support to any interview, meeting, or other proceeding under this policy. If an individual chooses to hire an advisor, they do so at their own expense. If a chosen advisor is a FXUA employee there is no cost; however, an employee may refuse to be an advisor if they so choose. An individual may choose anyone to be their advisor, however, there are some restrictions.
To be an individual’s advisor, the advisor cannot:
- Have any firsthand knowledge of the incident;
- Be a Title IX Coordinator or Deputy Title IX Coordinator; or
- Be involved in the proceedings in any capacity.
An advisor must maintain complete confidentiality regarding any and all communications exchanged and information learned about the incident or parties. Timelines and deadlines will not be altered to accommodate an advisor’s schedule. If an advisor becomes disruptive or disrespectful during any interview, meeting, or proceeding, they may be asked to leave. If the advisor will not leave when asked, they will be removed.
During the proceedings the advisor may:
- Consult with the advisee he/she is there to support; and
- Offer feedback on an advisee’s written statements.
During the proceedings the advisor cannot:
- Participate by asking or answering questions;
- Make statements to the Investigator;
- Interview any witnesses; or
- Have any kind of speaking role except to speak directly to their advisee.
If it is determined that the alleged Prohibited Conduct has occurred and finds the Respondent responsible for the Prohibited Conduct, the Title IX Coordinator may impose any sanction, or combination of sanction(s), that is fair and proportionate to the violation. To determine the appropriateness of a sanction, the following factors may be taken into consideration:
- The nature of the Prohibited Conduct;
- Any record of past violations by the Respondent;
- Any past accusations of Prohibited Conduct against the Respondent;
- Whether the sanction will bring an end to the violation in question;
- Whether the sanction will reasonably prevent a recurrence of a similar violation;
- Whether the sanction will remedy the effects of the violation on the victim and the FXUA community; and
- Any other aggravating, mitigating, or relevant factors.
Any sanction imposed on the Respondent will be described and included in the written decision of the Final Report. The failure to abide by, or complete, any sanction(s) imposed will result in additional sanction(s) that are unable to be appealed by the Respondent. This includes any failure to comply with the directions of a FXUA official that is acting within their role as a FXUA official.
Any of the following sanction(s), or combinations of sanction(s), may be imposed for any Prohibited Conduct violation. Disciplinary action other than those outlined below may be taken as the situation warrants. Sanctions are intended to eliminate, prevent, and address sex discrimination and its effects, and to remedy the effects of the Prohibited Conduct on the effected individual and the FXUA community.
Sanctions for Prohibited Conduct (Excluding Sexual Assault)
- Written Statement. A written statement that he/she has violated institutional rules and an acknowledgment that the continuation or repetition of inappropriate conduct will be cause for more severe disciplinary action.
- No Contact Order: Prohibition of contact between a Respondent and victim including, but not limited to, in person and/or via third party, phone, text, or any form of social media. The No Contact Order may be indefinitely or for a specific period of time. The length of the No Contact Order will be detailed in the Final Report.
- Change of Office Area: Requires the relocation of the Respondent from one office area to another. The victim will only be relocated if they request to be relocated instead of having the Respondent relocated.
- Change of Academic Schedule: The Respondent’s academic schedule is changed so as to avoid, or minimize, contact with the victim. The victim’s academic schedule will only be changed if they request to have their schedule changed instead of having the Respondent’s schedule changed.
- Trespass Order: The Respondent is prohibited from visiting or returning to part or all of any designated area of campus and any FXUA functions or activities. If the individual returns, he/she is subject to arrest.
- Temporary Trespass Order: The Respondent is prohibited from visiting or returning to part or all of any designated area of campus and any FXUA functions or activities for a specific period of time. If the individual returns before the end of that specific period of time, he/she is subject to arrest and further disciplinary action. The specific period of time will be detailed in the Final Report.
- Revocation of Honors or Awards: The Respondent is stripped of any honors or awards they have received from FXUA. This may include their degree.
- Evaluation by Health or Mental Health Professional: A requirement that the Respondent be evaluated by a health or mental health professional and comply with any treatment recommendations prior to returning to FXUA (if a period of suspension is imposed) or as a condition of continued enrollment/employment at FXUA (if a period of suspension is not imposed).
- Education: The Respondent must complete educational training.
- Community Restitution: The assignment of service hours and/or participation in educational programs or projects either on-campus or in the community.
- Loss of Privileges: Restricting use of or loss of campus privileges.
- Disciplinary Probation: Indicates the Respondent is not in “good standing” with FXUA for a period not exceeding one academic year. Note: This may result in exclusion from participation in privileged or extracurricular FXUA activities. The terms of the probation will be included in the Final Report.
- Suspension: Suspension from all classes, including on-line, work, and other privileges or activities for a designated period of time.
- Expulsion: Termination of Respondent’s student status at FXUA.
- Termination of Employment: Termination of Respondent’s employee status with FXUA.
Minimum Sanction(s) for Sexual Assault
- Suspension: Suspension from all classes, including on-line, work and other privileges or activities, or from FXUA for a designated period of time; or
- Expulsion: Termination of Respondent student status at FXUA; or
- Termination of Employment: Termination of Respondent employee status with FXUA.
Any sanction(s) imposed will take effect five days after the release of the Final Report to all parties. If an appeal of the Final Report is filed, any sanction(s) imposed will not take effect until the appeal is finalized.
However, if it is determined that it is necessary to protect the welfare of the victim or the FXUA community, then the sanction(s) may take effect immediately and continue to remain in effect until the appeal is resolved. If it is determined that the sanction(s) should take effect immediately then an Addendum will be added to the Final Report to reflect this decision and all parties will be immediately notified. If it has been determined that the appropriate sanction is expulsion or termination of employment, these sanctions may not take effect until the end of the appeal process. Other FXUA officials may be informed of the Final Report and the imposed sanctions so that the sanctions can be properly implemented. Regardless of any determination as to whether the sanction(s) should take immediate effect, the Title IX & Clery Act Compliance Coordinator may implement any temporary measures deemed appropriate until the appeal process is concluded or until the sanctions take effect.
If the matter is appealed, the appointed Appeals Officer may suspend the enacted sanction(s) by the Title IX & Clery Act Compliance Coordinator; or allow the Respondent to attend work, classes, or other activities on a supervised or monitored basis; or make any other modifications deemed advisable until the appeal process is concluded.
If the sanction imposed is expulsion or termination of employment, the President of the university, or his designee, will review the expulsion regardless of whether the Final Report is appealed.
Under Virginia state law, a Respondent suspended for, expelled for, or withdrawn from FXUA while under investigation for a violation of this policy that involves sexual violence will have a hold or prominent notation on their academic transcript indicating said suspension, expulsion, or withdrawal2
The notation will be removed when:
- The Respondent is found “Not Responsible” for an act prohibited by the Sexual Misconduct Policy;
- It is determined that the Prohibited Conduct did not occur or was not a violation of the Sexual Misconduct Policy; or
- The Respondent
- Has completed the term of suspension and any conditions thereof, and
- Has been determined by FXUA to be in good standing pursuant to all applicable FXUA academic and non-academic standards.
FXUA will notify each Respondent that any such suspension, expulsion, or withdrawal will be documented on the Respondent’s academic transcript and the conditions on which the notation will be removed.
All appeal decisions are final.
The victim or Respondent may file an appeal of the decision stated within the Final Report. The appeal must be filed within five (5) days of the Final Report becoming available to the parties. If an appeal is filed, the Title IX & Clery Act Compliance Coordinator will designate an individual as the Appeals Officer. The Appeals Officer will not be an individual that has participated in any proceeding surrounding the original complaint. The Appeal Officer will be reviewed for any potential conflicts.
The appeal must be in writing (this includes email) and addressed to the Title IX Coordinator. The individual who submits the appeal is the “Appellant.” The burden rests upon the Appellant to establish that the Final Determination or investigative process was flawed. The Appellant must include the grounds of their appeal within the written appeal.
The only permissible grounds for an appeal are:
- New Material Information. The discovery of significant or relevant information that was otherwise unknown or unavailable during the investigation and that may have substantially affected or altered the Final Determination had the information been available and known.
- Substantially Disproportionate Sanction. The sanction appears to be substantially disproportionate to the Prohibited Conduct: that the sanction is too lenient and/or severe based on the facts of the case.
- Substantial Procedural Error. A specific procedural or interpretational error of FXUA policies occurred that effected the investigation, determination, or sanction to the extent that the Appellant was denied a fair process.
Merely disagreeing with the Final Determination contained in the Final Report is not a valid or proper basis for an appeal.
Once the Appellant has filed their request for an appeal, the Appeals Officer will review the appeal to ensure it meets one of the permissible grounds for an appeal. The Appeals Officer will determine if the appeal falls within permissible grounds within two (2) days of the appeal being filed. If the Appeals Officer decides that the appeal falls within permissible grounds, the Appeals Officer will notify the other party in writing within one (1) day of this decision. The other party may submit a written response within three (3) days of receiving the notification. The response must respond to the specific grounds contained in the appeal.
The Appeals Officer will review all materials and reach a conclusion of the appeal within five (5) days of all appeal deadlines. The Appeals Officer will provide both parties with the Appeal Outcome within one (1) day of reaching a conclusion.
The Appeal Outcome may include, but is not limited to:
- Findings for each ground which the Appellant appealed;
- Any alterations to sanction(s);
- The rationale for the appeal conclusion.
If the sanctions in the Final Report are upheld, or new sanctions implemented, they will take effect three (3) days after the parties are informed of the Appeal Outcome.
The Appeals Officer will not be the same individual who made the Final Determination contained within the Final Report. The Appeals Officer will also be reviewed for any potential conflicts.
An appeal is only available to the victim and the Respondent.
2.Virginia Code § 23.1-900. Accessible here: http://law.lis.virginia.gov/vacodeupdates/title23.1/section23.1-900/
If any administrator that is designated to participate in the investigation or other proceeding under this policy has a conflict of interest that would prohibit the administrator from providing fair and impartial oversight, then the administrator will remove themselves and another administrator will be appointed. The Title IX & Clery Act Compliance Coordinator will review any administrator participating in any investigation, adjudication, or other proceeding to determine if there are any potential conflicts. If the Title IX & Clery Act Compliance Coordinator has a conflict of interest, then the Associate Vice President of Institutional Effectiveness & Quality Assurance will appoint another administrator to oversee the proceedings.
FXUA will make every reasonable effort to ensure that the investigation and resolution of a report occur in a timely manner. Typically, the investigation and resolution, including any potential appeal, will not exceed sixty (60) days of the receipt of the report. This timeframe is not rigid and may be extended for good cause. Good cause may exist if additional time is required to maintain the integrity of the investigation, ensure the completeness of the investigation, to comply with a request from local law enforcement to temporarily delay proceedings to gather evidence for a criminal investigation, or for other legitimate purposes.
Throughout this period, the parties will receive status updates from the Title IX & Clery Act Compliance Coordinator. All parties will be notified, in writing, if the timeframe is extended for good cause. This notification will include the projected length of the delay and the cause of the delay.
A Violence Prevention and Evaluation Committee (VPE Committee) is required under Virginia state law3. If a report or complaint alleges an act of sexual violence the Title IX Coordinator will promptly forward all known information about the incident to the VPE Committee.
The VPE Committee will assess all reports of sexual violence. The VPE Committee will convene within seventy-two (72) hours after receiving a report of sexual violence from the Title IX & Clery Act Compliance Coordinator. The VPE Committee will convene again, as necessary, when more information becomes available so as to reassess the situation. The VPE Committee can convene in person, by telephone, or through video conference. The VPE Committee will consist of (a) the Title IX & Clery Act Compliance Coordinator or a Title IX Coordinator, (b) a law enforcement representative, and (c) a Student Affairs representative.
- Safety Assessment
Upon a preliminary decision that a Respondent poses a threat of violence to themselves or others, exhibits significantly disruptive behavior or a need for assistance, then the VPE Committee may obtain the Respondent’s criminal records and health records in accordance with Virginia state law4. The VPE Committee will review the information available in the totality of the circumstances and will use the Risk Factors listed below to come to a preliminary decision.
- Whether the Respondent has a history of:
- Violent behavior;
- Prior arrests;
- Prior reports or complaints related to Prohibited Conduct;
- Failing to comply with No Contact Orders;
- Failing to comply with other FXUA protective measures; or
- Failing to comply with judicial orders (including protective orders).
- Whether the Respondent has threatened to commit violence or any form of Prohibited Conduct;
- Whether the Prohibited Conduct involved multiple Respondents;
- Whether the Prohibited Conduct involved multiple victims;
- Whether the Prohibited Conduct involved physical violence;
- Whether the report reveals a pattern of sexual violence (a pattern from the Respondent, an organization or group, location, or recurring event or activity);
- Whether the Prohibited Conduct was aided by the use of drugs, alcohol, or other intoxicants;
- Whether the Prohibited Conduct was perpetrated while the victim was unconscious, physically helpless, or otherwise unaware that the Prohibited Conduct was occurring;
- Whether the victim(s) is/are (or was at the time of the Prohibited Conduct) under the age of 18 years old; and
- Whether any other aggravating circumstances or predatory behavior are present.
- Whether the Respondent has a history of:
- Disclosure to Law Enforcement
Virginia state law requires the VPE Committee to disclose information about alleged Prohibited Conduct in certain circumstances. These circumstances are detailed below:<
- If the VPE Committee comes to the conclusion, based on the consideration of all of the Risk Factors, that the disclosure of known information surrounding the report of alleged Prohibited Conduct is necessary to protect the health and safety of the victim or other individuals then the VPE Committee shall immediately disclose all available information to the law-enforcement agency that has jurisdiction to investigate the alleged act of sexual violence.
- If the VPE Committee is unable to come to a general consensus, based on the consideration of all of the Risk Factors, then the law enforcement representative’s decision will be the final determining factor on whether the disclosure of known information surrounding the report of alleged Prohibited Conduct is necessary to protect the health and safety of the victim or other individuals. If the law enforcement representative determines that the disclosure is necessary, then the law enforcement representative shall immediately disclose all available information to the law-enforcement agency that has jurisdiction to investigate the alleged act of sexual violence.
- If the alleged act of sexual violence constitutes a felony violation of Virginia law, the VPE Committee’s law enforcement representative shall consult with the attorney of the Commonwealth, or other prosecutor, responsible for prosecuting the alleged act of sexual violence. The law enforcement representative will provide the prosecutor with all of the information the VPE Committee received without disclosing any personally identifiable information, unless it has been disclosed pursuant to circumstance (b).
3.Virginia Code § 23.1- 805, accessible here: http://law.lis.virginia.gov/vacodeupdates/title23.1/section23.1-805/.
and Virginia Code § 23.1- 806, accessible here: http://law.lis.virginia.gov/vacodeupdates/title23.1/section23.1-806/.
4.Virginia Code § 19.2-389, accessible here: http://law.lis.virginia.gov/vacode/19.2-389/; Virginia Code § 19.2-389.1, accessible here: http://law.lis.virginia.gov/vacode/19.2-389.1/; Virginia Code § 32.1-127.1:03, accessible here: http://law.lis.virginia.gov/vacode/32.1-127.1:03/.