Sex and Gender-Based Misconduct Policy (Title IX)
This policy applies to all Excelsior University staff, faculty, and students.
Statement of Policy
In accordance with Title IX of the Education Amendments of 1972 (“Title IX”) and Article 129-B of the New York Education Law, Excelsior University seeks to provide a safe
environment for employees and students and to ensure that no student, faculty, or staff member is excluded from participation in or denied the benefits of the University’s
program or activities on the basis of sex or gender. Accordingly, the University strictly prohibits sexual and gender-based misconduct, which includes, but is not limited to, the following offenses: (1) sexual assault, (2) domestic violence, (3) dating violence, (4) stalking, and (5) sexual harassment.
Though Excelsior is a nontraditional University community and its students learn at a distance rather than on a campus, the University is always mindful of issues of personal safety. Nontraditional students are not immune to incidents of violence. Everyone in the Excelsior University community should be educated about the issues of sexual assault, domestic violence, dating violence, stalking and sexual harassment with the goal of becoming knowledgeable and responsible for their own security and personal safety, as well as the security and personal safety of the students and colleagues with whom we work and interact.
Upon learning of a possible violation of this Policy, the University will take immediate action to address the facts presented, offer resources to any victims, and take action against any individual within the jurisdiction of the University who has been found responsible after the process established in this Policy.
The University prohibits retaliation against any individual for reporting an incident of sexual misconduct or for participating in any investigation or proceeding related to any such report.
This Policy applies to all students, faculty and staff, as well as to visitors, guests, vendors, contractors and other third parties. A third party cannot be a complainant under this Policy. Under certain circumstances, conduct and behavior at off-campus activities and programs may be regulated by this Policy. The University may take action pursuant to this Policy with respect to any behavior regardless of where and in what context it occurs if the conduct has an impact or effect on or poses a risk to the work or learning environment of persons covered by this Policy. Therefore, this Policy may be violated even if the prohibited conduct occurs off-campus or during an individual’s off-duty time.
This Policy applies regardless of the Complainant or Respondent’s sexual orientation, sex, gender identity or expression, age, race, color, creed, familial status, pregnancy, predisposing genetic characteristics, military status, domestic violence victim status, criminal conviction, national origin, religion, disability or other status protected by law. Reasonable accommodations will be provided to individuals with disabilities when necessary to allow them to fully utilize this Policy (e.g. to make a report, file a complaint, participate in investigatory interviews, and exercise other procedural rights).
This information is provided to assist in the prevention of violence in any form, while meeting requirements of state and federal law.
II Policy and Procedure Summary
This Policy prohibits all forms of sex and gender related misconduct, referred to here as “Sexual misconduct”. A person who has experienced Sexual misconduct has several options:
- A report to a Confidential Resource. A confidential resource provides emotional and/or medical services and maintains confidentiality. A report to a confidential resource does not result in a University investigation or any other action to respond to the incident.
- A report to a Responsible Employee. Certain personnel at the University have the responsibility to receive reports of sexual misconduct and to take action based on those reports. A responsible employee will forward the information about the incident to the Title IX Coordinator. The Title IX Coordinator will discuss options with the reporting person. The assistance the Title IX Coordinator can facilitate includes the following:
- Supportive Measures. Supportive measures are intended to support the individual who experienced sexual misconduct to continue in their involvement in the University's program and activities. Supportive measures include no contact orders; academic accommodations; or other academic, residential or work accommodations.
- Informal Resolution. An informal resolution is a resolution that the parties (i.e., the person making the allegations and the accused person) agree upon to address the situation. Not all incidents are appropriate for informal resolution, and no party may be forced to accept an informal resolution. This is a voluntary process.
- Grievance Process. A grievance process includes an investigation and adjudication process. The outcome of a grievance process is either that the person accused of Sexual Misconduct is found either responsible or not responsible for having committed a violation of this Policy. A violation results in appropriate sanctions and other remedies to address the violation.
Additionally, the person who experienced a crime has the option to pursue criminal charges:
- A report to Law Enforcement. If an incident involves criminal conduct, the victim may make a complaint to law enforcement.
The options for reporting above are not mutually exclusive, and an individual may pursue one option but not the other. An individual may obtain the services of a confidential resource and decide at that time or a later time to report to the University. An individual may report to the University and also make a report to law enforcement or may make a report to only the University or only to law enforcement.
Even Excelsior offices and employees who cannot guarantee confidentiality will maintain your privacy to the greatest extent possible. The information you provide to a nonconfidential resource will be relayed only as necessary for the Title IX Coordinator to investigate and/or seek a resolution.
If a Complainant discloses an incident to a University employee who is responsible for responding to or reporting a violation of this Policy but wishes to maintain confidentiality or does not consent to the institution’s request to initiate an investigation, the Title IX Coordinator must weigh the request against the University’s obligation to provide a safe, non-discriminatory environment for all members of its community. The University shall assist with academic, transportation, employment, and other reasonable and available accommodations regardless of reporting choices.
A person seeking to understand their options pursuant to this Policy should reach out to the Title IX Coordinator at 844-427-4356.
III. Definitions, General;
- Advisor of Choice. An advisor of choice is a person selected by the Complainant or Respondent to advise and accompany the Complainant or Respondent throughout the investigation and adjudication process. An advisor of choice may be any person, including an attorney. The institution does not appoint or pay for an advisor of choice. An advisor of choice’s role is limited to the functions further described in this policy.
- Affirmative Consent. Affirmative consent is a knowing, voluntary, and mutual decision among all participants to engage in sexual activity. Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity. Silence or lack of resistance, in and of itself, does not demonstrate consent. The definition of affirmative consent does not vary based upon a participant’s sex, sexual orientation, gender identity, or gender expression.
- Coercion. Coercion is a threat, undue pressure, or intimidation to engage in sexual activity. Coercion is more than an effort to persuade, seduce, entice, or attract another person to engage in sexual activity. A person’s words or conduct are sufficient to constitute coercion if they deprive another individual of the ability to freely choose whether or not to engage in sexual activity.
- Complainant. The term Complainant refers to the person who allegedly experienced the sexual misconduct in violation of the policy whether or not a formal complaint is filed. In some cases, the Title IX Coordinator may file a formal complaint and thereby initiate an investigation and adjudication process pursuant to this policy. In that instance, the Title IX Coordinator is not the “Complainant”; the complainant remains the person who allegedly experienced the sexual misconduct.
- Consent. As used in this policy, term “consent” always refers to “affirmative consent” (defined above).
Consent is free and informed permission. Consent given verbally is evidenced by affirmative agreement to engage in specific sexual activity. Consent through action is active participation in the specific sexual activity. Past consent to sexual activity cannot be presumed to be consent to engage in the same sexual activity in the future. Consent can be withdrawn at any time, and, if so, the sexual activity must cease. Consent to some sexual activity (e.g., kissing, fondling) cannot be presumed consent for other sexual activity (e.g., intercourse). Consent to engage in sexual activity with one person does not constitute consent to engage in sexual activity with another.
Certain conditions prevent a person from being able to consent. Consent cannot be given when a person is incapacitated, which occurs when an individual lacks the ability to knowingly choose to participate in sexual activity. A person cannot consent if they are unaware of the who, what, when and how of a sexual interaction. Incapacitation may be caused by the lack of consciousness or being asleep, being involuntarily restrained, or if an individual otherwise cannot consent. Depending on the degree of intoxication, someone who is under the influence of alcohol or drugs or other intoxicants may be incapacitated and therefore unable to consent.
A person who has been drinking or using drugs is still responsible for ensuring that the person has the other person’s affirmative consent and/or appreciating the other person’s incapacity to consent. This means that, even if the accused was drunk or high and, as a result, did not realize that the other person was not consenting to or was unable to consent to sexual activity, the person who committed the non-consensual act is still responsible for having violated this policy. Consent cannot be given when it is the result of any coercion, intimidation, force or threat of harm.
- Formal Complaint. A formal complaint refers to a written complaint filed in accordance with the grievance process below. A formal complaint is necessary to initiate an investigation and adjudication process.
- Institution Advisor. A Complainant or Respondent who does not opt to be accompanied by an advisor of choice at a hearing is entitled to be appointed an advisor by Excelsior at no charge to the party. This advisor is referred to as an “institution advisor” who may be, but need not be, an attorney. An institution advisor’s role is limited to asking cross-examination questions of the other party during a hearing. An institution advisor does not represent a party in any legal sense. The party is responsible for formulating the cross-examination questions the institution advisor will pose during the hearing.
- Party. A Complainant or Respondent may be referred to as a Party, or collectively, the Parties.
- Reporting Party. The term Reporting Party refers to the person who made the report. This may or may not be the same as the Complainant, a witness, or a bystander.
- Respondent. The term Respondent refers to the person alleged to have committed a violation of this policy.
- Sexual Misconduct. Sexual misconduct is an umbrella term used in this policy to more conveniently refer to any form of conduct prohibited by this policy.
IV. Definitions, Conduct Violations:
This policy sets forth conduct expectations for our community and provides a process for the reporting, investigation and adjudication of alleged violations. This policy applies to alleged conduct violative of Title IX (i.e., “Title IX Category” violations) and also applies to a broader range of contexts and behaviors inconsistent with Excelsior’s commitment to equal opportunity (i.e., “College Category” violations). Conduct that does not fall within the jurisdiction of this Policy will be investigated and adjudicated as provided for in other appropriate University policies.
The designation of conduct or allegations as either “Title IX Category” or “College Category” is not a function of the seriousness of the alleged conduct but rather a function of the scope and coverage of Title IX versus Excelsior’s broader jurisdiction to prohibit and discipline a larger scope of inappropriate behavior.
A. Title IX Category Violations
Title IX of the Education Amendments of 1972 provides: “No person in the United States shall, on the basis of sex, be excluded from participation, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
In accordance with Title IX as interpreted by the Department of Education, Excelsior recognizes the following as conduct violations within the meaning of Title IX, provided that the context and circumstances of the conduct fall within the scope of Title IX, including but not limited to that the complainant was in the United States at the time of the alleged conduct, that the complainant be participating in or seeking to participate in Excelsior’s education program or activity at the time of the complaint, and that the conduct occurred in the context of Excelsior’s education program or activity:
- Sexual harassment. “Sexual harassment” means conduct on the basis of sex that satisfies one or more of the following:a. An employee of Excelsior conditioning the provision of an aid, benefit, or service of Excelsior on an individual’s participation in unwelcome sexual conduct (commonly referred to as a “quid pro quo”);b. Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to Excelsior’s education program or activity (commonly referred to as a sexually or gender-based “hostile environment”).
- Sexual assault. “Sexual assault” includes any sexual act directed against another person, forcibly and/or against that person's will; or not forcibly or against the person's will where the victim is incapable of giving affirmative consent. Sexual assault consists of the following specific acts and definitions:
- Non-Consensual Intercourse. The 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 victim.
- Non-Consensual Sexual Contact. The touching of the private body parts (genital area, anus, groin, inner thigh, buttocks or breast ) of another person for the purpose of sexual gratification, forcibly and/or against that person's will; or, not forcibly or against the person's will where the victim is incapable of giving consent because of their youth or because of their temporary or permanent mental or physical incapacity.
- Non-forcible sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.
- Statutory Rape. Non-forcible sexual intercourse with a person who is under the statutory age of consent. The statutory age of consent in New York is 17.
- Dating violence. “Dating violence’’ means violence committed by a person: (1) who is or has been in a social relationship of a romantic or intimate nature with the victim; and (2) where the existence of such a relationship shall be determined based on a consideration of the following factors: (i) The length of the relationship. (ii) The type of relationship. (iii) The frequency of interaction between the persons involved in the relationship.
- Domestic violence. “Domestic violence” means violence committed by a current or former spouse or intimate partner of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction where Excelsior is located, or by any other person against an adult or youth victim who is protected from that person’s acts under the domestic or family violence laws of the jurisdiction.
- Stalking. “Stalking” is engaging in a course of conduct on the basis of sex directed at a specific person that would cause a reasonable person to: (1) fear for the person’s safety or the safety of others; or (2) suffer substantial emotional distress. Stalking that does not occur on the basis of sex may be addressed as a College Category Violation as described below.
B. College Category Violations
Excelsior prohibits the following behavior. For purpose of University Category violations, the below conduct is prohibited even if the conduct occurs off-campus, outside the States, the Complainant is not participating or seeking to participate in Excelsior’s education program or activity, or otherwise in circumstances over which Excelsior does not have influence or control, including but not limited to during University academic breaks. Excelsior retains discretion to not respond to, investigate or adjudicate circumstances in which no University interest is implicated.
- Sexual harassment. “Sexual harassment” means unwelcome, offensive conduct that occurs on the basis of sex, sexual orientation, self-identified or perceived sex, gender, gender expression, gender identity, gender-stereotyping or the status of being transgender, but that does not constitute sexual harassment as a Title IX Category Violation as defined above. Sexual harassment can be verbal, written, visual, electronic or physical.
The fact that a person was personally offended by a statement or incident does not alone constitute a violation. Instead, the determination is based on a “reasonable person” standard and takes into account the totality of the circumstances. Excelsior considers the context of a communication or incident, the relationship of the individuals involved in the communication or incident, whether an incident was an isolated incident or part of a broader pattern or course of offensive conduct, the seriousness of the incident, the intent of the individual who engaged in the allegedly offensive conduct, and its effect or impact on the individual and the learning or working community.
- Sexual assault. “Sexual assault” includes any sexual act directed against another person, forcibly and/or against that person's will; or not forcibly or against the person's will where the victim is incapable of giving affirmative consent, but that does not constitute sexual assault as a Title IX Category Violation as defined above because of the context in which it occurs (for example because the complainant was not in the United States at the time of the alleged conduct, because the complainant was not participating in or seeking to participate in Excelsior’s education program or activity at the time of the complaint, or because the conduct did not occur in the context of Excelsior’s education program or activity). Sexual assault consists of the following specific acts:
- Non-Consensual Intercourse. The 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 affirmative consent of the victim.
- Non-Consensual Sexual Contact. The touching of the private body parts (genital area, anus, groin, inner thigh, buttocks or breast ) of another person, over or under clothing, for the purpose of sexual gratification, forcibly and/or against that person's will; or, not forcibly or against the person's will where the victim is incapable of giving affirmative consent because of their youth or because of their temporary or permanent mental or physical incapacity.
- Non-forcible sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.
- Statutory Rape. Non-forcible sexual intercourse with a person who is under the statutory age of consent.
- Dating violence. “Dating violence’’ means violence committed by a person: (1) who is or has been in a social relationship of a romantic or intimate nature with the victim; and (2) where the existence of such a relationship shall be determined based on a consideration of the following factors:
a. the length of the relationship;
b. the type of relationship; and
c. the frequency of interaction between the persons involved in the relationship; but that does not constitute dating violence as a Title IX Category Violation as defined above because of the context in which it occurs (for example, because the complainant was not in the United States at the time of the alleged conduct, because the complainant was not participating in or seeking to participate in Excelsior’s education program or activity at the time of the complaint, or because the conduct did not occur in the context of Excelsior’s education program or activity).
- Domestic violence. “Domestic violence” means violence committed by a current or former spouse or intimate partner of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction where Excelsior is located, or by any other person against an adult or youth victim who is protected from that person’s acts under the domestic or family violence laws of the jurisdiction, if the conduct does not constitute domestic violence as a Title IX Category Violation as defined above because of the context in which it occurs (for example because the complainant was not in the United States at the time of the alleged conduct, because the complainant was not participating in or seeking to participate in Excelsior’s education program or activity at the time of the complaint, or because the conduct did not occur in the context of Excelsior’s education program or activity).
- Stalking. “Stalking” is engaging in a course of conduct directed at a specific person that would cause a reasonable person to: (1) fear for the person’s safety or the safety of others; or (2) suffer substantial emotional distress, but that does not constitute stalking as a Title IX Category Violation as defined above because of basis on which it occurs or the context in which it occurs (for example because the complainant was not in the United States at the time of the alleged conduct, because the complainant was not participating in or seeking to participate in Excelsior’s education program or activity at the time of the complaint, or because the conduct did not occur in the context of Excelsior’s education program or activity).
- Sexual Exploitation. Sexual exploitation occurs when, without affirmative consent, a person takes sexual advantage of another in a manner that does not constitute another violation under this Policy. Examples of sexual exploitation include, but are not limited to: prostitution, acts of incest, observing or recording (whether by video, still photo or audio tape) of a sexual or other private activity (such as consensual sexual activity, undressing or showering) without the affirmative consent of all involved; taking intimate pictures of another, but then distributing the pictures to others without the photographed person’s affirmative consent; engaging in voyeurism, engaging in consensual sexual activity with another person while knowingly infected with human immunodeficiency virus (HIV) or other sexually transmitted disease (STD) without informing the other person of such infection; or exposing one’s genitals in non-consensual circumstances.
- Retaliation. Retaliation is an adverse act perpetrated to “get back” at a person because the person reported sexual misconduct, filed a complaint, or participated in an investigation or proceeding conducted pursuant to this policy by Excelsior or by an external agency. An act of retaliation may be anything that would tend to discourage an individual from reporting sexual misconduct, pursuing an informal or formal complaint, or from participating in an investigation or adjudication as a party or a witness. A person who acts in good faith is protected from retaliation. The fact that a statement is not determined to be proven or established following investigation and adjudication does not mean that the statement lacked good-faith; a person may provide inaccurate information believing it is accurate, which is still good-faith. If a person who makes a statement knowing that it is false, the person has acted without good faith.
V. Confidential and Non-Confidential Resources
A. Excelsior encourages any person who has experienced sexual assault or other forms of sexual misconduct to talk to someone about what happened, so she or he can get the support needed. There are a variety of confidential resources available to members of Excelsior community. Some of these resources maintain near complete confidentiality; talking to them is sometimes called a “privileged communication.”
B. A confidential resource does not reveal the information shared with them without the disclosing person’s consent. (There may be instances where a confidential resource must disclose information in a criminal or civil court proceeding, but those are very limited circumstances.) A list of confidential resources is provided below, but usually confidential resources are counselors and healthcare providers. The only University employees who can offer confidentiality are those listed as confidential resources below.
C. A non-confidential resource is a person who is permitted to share information with others with a need to know. A University employee who is a non-confidential resource will disclose to as few individuals as possible, but a non-confidential resource does not have the ability to promise that they will not tell others within Excelsior about the information that has been shared with them. A “Responsible Employee” is a non-confidential resource who, at a minimum, shares all information with the Title IX Coordinator/Affirmative Action Officer.
D. A list of Confidential Resources and other resources that are available to members of Excelsior community can be found in Appendix “A”.
VI. Reporting and Formal Complaint Process
A Responsible Employee is an individual designated by Excelsior to respond on Excelsior’s behalf to allegations of violations of this Policy. A Responsible Employee is a Non-Confidential Resource. The following are Responsible Employees available to receive a report of sexual misconduct:
- Title IX Coordinator
- Vice President of Human Resources
An individual who reports an incident to a University employee or office other than one of the Responsible Employees and offices listed above risks that the information may not be acted upon by Excelsior. Therefore, a person who wishes for Excelsior to take action is strongly encouraged to report to one of the offices listed above.
A. Supportive Measures
Once a report is made under this Policy, the complainant will be contacted by the Title IX Coordinator and offered individualized support as more fully described below. A report that triggers supportive measures need not be a formal complaint, and it may be made by a third-party (i.e., someone other than the complainant). Once the respondent is informed of a report or a formal complaint, the respondent will be contacted by the Title IX Coordinator and offered individualized support as more fully described below.
Supportive measures are intended to restore or preserve, to the extent practicable, equal access to Excelsior’s educational programs and activities and protect the safety of all parties without unreasonably burdening the other party or parties. As required by federal regulation, these supportive measures will be non-disciplinary and non-punitive to the parties.
Supportive measures could include, but are not limited to:
- Changes or adjustment in academics such as the extension of deadlines or other course-related adjustments or allowing a withdrawal from a course without penalty;
- Changes to transportation and campus working situations if those changes are requested by a party and reasonably available;
- Mutual “No Contact” orders and, possibly, in rare cases, such as when legal restraining orders or orders of protection have been issued, one-way no contact orders;
- Access to campus escorts or other reasonable security or monitoring measures;
- Counseling services through Excelsior’s student assistance program; and
- Interim removal of a student from Excelsior will only be done pursuant to the protocol discussed below.
The Title IX Coordinator is responsible for coordinating the implementation of supportive measures, including coordinating with the various University departments and offices that may be involved. Supportive measures will be offered free of charge.
If a party’s request for a supportive measure is denied, the party will be afforded an opportunity to have the denial promptly reviewed to assess whether the supportive measure is reasonable under the circumstances. In addition, each party will, upon request, be afforded the opportunity for a prompt review of the need for supportive measures that have been implemented, including the potential modification of these measures, to the extent that the party is affected by the measure(s) being reviewed. Each party will be allowed to submit evidence in support of, or in opposition to, the request to the extent the supportive measures under review affects that party. Information about how to request a review will be included in a written communication that will outline the supportive measures offered and any that were requested by the party but denied.
B. Interim Measures
In certain cases, interim measures may be put in place before the investigation is completed and/or pending completion of the investigation and hearing, to ensure the safety of all parties and to ensure the integrity of the process. Excelsior will review the facts and circumstances of each case, as well as the Complainant’s wishes, in deciding whether and what steps are reasonable and appropriate.
If interim measures are put in place, the Title IX Coordinator shall maintain confidentiality about such measures to the extent that maintaining confidentiality would not impair the ability to provide such measures and shall communicate the measures to all affected parties as may be necessary. Implementing interim measure(s) does not imply a future finding of responsibility but is meant to create a safer environment. Examples of interim measures may include (but are not limited to) contact restrictions through the issuance of a no-contact order or the transfer of the Complainant or Respondent to separate locations. In cases involving third parties (vendors, contingent employees, clients and consultants), examples of interim measures may include (but are not limited to) the temporary reassignment of the third-party employee or a temporary suspension of services.
Upon request, the Complainant or Respondent may request a prompt review of the need for and terms of any interim measures and accommodations imposed or requested that directly affects them, including the potential addition, modification or elimination of those measures. Such a request may be made by submitting a written request for review to the Title IX Coordinator, providing the basis for that request and any evidence in support of the request. Upon receipt of such a request, the Title IX Coordinator will inform the other party of the request and allow the other party to respond, including submitting evidence if desired. The Title IX Coordinator may, the Title IX Coordinator’s discretion, modify or suspend the interim measures or accommodations on a temporary basis while the parties are submitting their information and responses. The Title IX Coordinator will respond to any such requests as soon as possible, but generally no later than one calendar week of the request and the parties’ submission of any evidence.
When a student is determined to present a continuing threat to the health and safety of the campus community, such student is subject to interim suspension pending the outcome of any proceedings under this policy. Both the Complainant and Respondent will, upon written request, be afforded an opportunity for a review of the need for and terms of an interim suspension, including potential modification, by submitting a written request to the Title IX Coordinator, providing the basis for that request and any evidence in support.
C. Emergency Procedures to Address Sexual and Other Types of Violence
- Ensure the victim’s safety. If the victim is in danger, dial 911 for the police. It is important that you and the victim be safe and that you not place yourself in a dangerous situation.
- Seek immediate medical treatment. In the case of sexual assault, it is important not to encourage the victim to wash, bathe, or change clothes before seeking medical attention in order to protect valuable evidence, should the victim decide to report the assault and prosecute the assailant. A medical examination does not commit them to pressing charges.
- Staff members should help to arrange the transport of the victim to the hospital as soon as possible. Not all injuries are immediately apparent. A medical evaluation is necessary to evaluate internal injuries, sexually transmitted disease, pregnancy, and to gather information for the police. The mode of transportation depends on the victim’s condition and preference.
- With the victim’s consent, referral to the emergency room and rape crisis intervention, as appropriate.
- Students and employees are encouraged to report all incidents of assault or other violence to Excelsior in order to receive help in accessing support services and in prosecuting the alleged offender. However, the decision whether or not to report the incident and whether or not to press charges must be made by the victim and respected by all members of Excelsior. If the victim does not give permission to disclose identity, with the sole exception of the threat to personal safety, the identity of the victim cannot be given. Reporting information can include only time, place, manner, and current condition of the victim. All information must be devoid of all demographics about the victim and other identifying information.
- When a University staff member is informed of an assault or other violent incident, the staff member will seek the victim’s consent to notify the Title IX Coordinator. The staff member will not disclose either the name or other identifying information without the victim’s consent. University staff members are encouraged to consult their supervisors and/or the Office of Human Resources when they have concerns or doubts regarding the safety and well-being of a victim or other person, in order to take steps to ensure the safety of the victim and others. In rare cases, this consultation may need to occur even without the victim’s consent.
D. Disability Accommodation
A Complainant or Respondent with a disability who requires accommodation in the complaint, investigation, hearing or any other phase of the process is responsible for disclosing the need for accommodation to the Title IX Coordinator.
The health and safety of every student at Excelsior is of utmost importance. Excelsior recognizes that students who have been drinking and/or using drugs (whether such use is voluntary or involuntary) at the time that violence, including but not limited to domestic violence, dating violence, stalking, or sexual assault occurs may be hesitant to report such incidents due to fear of potential consequences for their own conduct. Excelsior strongly encourages students to report domestic violence, dating violence, stalking, or sexual assault to institution officials. A bystander acting in good faith or a complainant acting in good faith that discloses any incident of domestic violence, dating violence, stalking, or sexual assault to Excelsior’s officials or law enforcement will not be subject to Excelsior’s code of conduct action (including but not limited to action under this policy) for violations of alcohol and/or drug use policies occurring at or near the time of the commission of the domestic violence, dating violence, stalking, or sexual assault. Excelsior reserves the right to provide amnesty in additional circumstances.
F. Grievance Process
b. Filing a Formal Complaint.
A formal complaint is necessary to initiate Excelsior’s grievance process, meaning an investigation and adjudication process. A formal complaint must be in written form and must be signed by the complainant. A third-party or anyone other than the victim of the misconduct may not file a formal complaint. However, a formal complaint may be filed by a parent or guardian of a minor person.
A formal complaint is a document filed by a complainant or signed by Excelsior’s Title IX Coordinator alleging sexual misconduct against a respondent and requesting that Excelsior investigate the allegation. The respondent may be either a student or an employee or a visitor, independent contractor, intern, or volunteer of Excelsior. A formal complaint may be filed with the Title IX Coordinator in person, by mail, or by electronic mail. Contact information for the Title IX Coordinator can be found:
https://www.excelsior.edu/about/transparency/title-ix/. In order to qualify as a formal complaint, the document must contain the complainant’s physical or electronic signature, or otherwise indicate that the complainant is the person filing the formal complaint.
If a complainant declines to sign a formal complaint or does not wish to participate in the complaint and adjudication process, or the complainant’s identity is unknown, and the Title IX Coordinator determines there is sufficient cause to file a formal complaint, the Title IX Coordinator may file a formal complaint. In such cases, the Title IX Coordinator is not considered to be a complainant or other party under this Policy.
The Title IX Coordinator will consider the wishes of the complainant not to proceed with the investigation and adjudication process. However, the Title IX Coordinator may file a formal complaint if the Title IX Coordinator determines that the allegations are such that it would be unreasonable not to proceed despite the wishes of the complainant.
In making this determination, the Title IX Coordinator will consider, among other factors:
- the risk that the alleged perpetrator will commit additional acts of sexual misconduct or other violence, which may be assessed by evaluating:
- whether there have been other complaints about the same alleged perpetrator;
- whether the alleged perpetrator has a history of arrests or records from a prior school indicating a history of violence;
- whether the alleged perpetrator threatened further sexual violence or other violence against the victim or others;
- whether the sexual violence was committed by multiple perpetrators whether the sexual violence was perpetrated with a weapon;
- whether the victim is a minor;
- whether Excelsior possesses other means to obtain relevant evidence of the prohibited conduct (e.g., security cameras or personnel, physical evidence);
- whether the victim’s report reveals a pattern of perpetration (e.g., via illicit use of drugs or alcohol) at a given location or by a particular group.
Additionally, where the respondent is not enrolled at Excelsior and is not employed by Excelsior, Excelsior may decline to process the complaint through the Grievance Process. Excelsior may take the steps it deems appropriate under the circumstances.
The Student Bill of Rights is attached as Appendix “B”.
Additional rights and protections that are afforded students who report sexual misconduct are outlined in Appendix “C”.
c. Mandatory Dismissal of Title IX Category Charges
The Title IX Coordinator will review a formal complaint filed by a Complainant. In order to comply with Title IX regulations, the Title IX Coordinator must “dismiss” the Title IX Category violation(s) if it is apparent that the allegations are not within the scope of Title IX, including that the conduct alleged:
- would not constitute sexual misconduct even if proven,
- did not occur in Excelsior’s education program or activity, or
- did not occur against a person in the United States.
Notice of dismissal of the Title IX Category violation(s) will be in writing and issued to both the Complainant and Respondent. The Title IX Coordinator may determine at any point in the process that facts have emerged that require the dismissal of a Title IX Category violation. A decision to dismiss a Title IX Category violation is immediately appealable by the complainant.
Even if Title IX Category violations are subject to dismissal, Excelsior may continue to process the allegations as University Category violations, assuming that the allegations, if true, would constitute University Category violations.
d. Discretionary Dismissal of Title IX Category Charges
The Title IX Coordinator may, but is not required to, dismiss formal complaints in the following circumstances:
- When the complainant withdraws a formal complaint;
- When the respondent is no longer enrolled in or employed by Excelsior; and
- Where specific circumstances prevent Excelsior from gathering evidence (such as where a complainant refuses to cooperate but does not withdraw a formal complaint).
The decision to dismiss or not to dismiss a charge under these circumstances will depend on the totality of the situation.
VII. Informal Resolutions Policy
A. Informal Resolution Process
An Informal Resolution Process is a voluntary process in which a trained facilitator assists the parties in resolving the allegations made by a complainant. An Informal Resolution prioritizes educational and conciliatory approaches over more adversarial contestation of the facts. One objective of the Informal Resolution is to provide to the parties an opportunity to hear each other’s’ concerns and address them as collaboratively and usefully for the parties as possible, with the assistance of the facilitator.
The intent of an Informal Resolution Process is for the parties to undertake a facilitated discussion regarding the matters at issue related to the allegations to see if they can reach agreement on a resolution that leaves both parties feeling satisfied with that resolution.
The Informal Resolution Process is not available if the respondent in a sexual misconduct complaint is a faculty or staff member of Excelsior and the complainant is a student. The Informal Resolution Process is also not available in a complaint involving more than two parties unless (1) all parties consent to use the Informal Resolution Process, (2) there is an understanding among all parties about what happens when the right of any party to stop the Informal Resolution process and return or proceed to the formal grievance and hearing process is invoked, and (3) there is an understanding among all parties about whether some parties, but not all, can agree to a resolution.
Supportive measures are available to both parties in the same manner as they would be if the formal complaint were proceeding under the formal grievance and hearing process.
B Steps Prior to the Informal Resolution Process
The Title IX Coordinator will offer the Informal Resolution Process to the parties after a formal complaint is filed by a complainant. Both parties must consent to use the Informal Resolution process. Either party in an Informal Resolution process may terminate it at any time and the complaint will proceed to the formal grievance and hearing process. In some instances, as detailed below, the facilitator in the Informal Resolution process may terminate the process as well.
A written notice will be given to both parties before entering an Informal Resolution Process, and both parties must consent to the process in writing. No party should feel intimidated, coerced or threatened to participate in an Informal Resolution Process, or to withdraw from an Informal Resolution Process.
If both parties consent to participate in the Informal Resolution process, Excelsior will assign a facilitator who will act in an independent, impartial manner to facilitate a resolution between the parties. The facilitator will be trained on how to perform the role. The facilitator will also be screened to ensure that such person is free from conflicts of interest and bias.
C. How the Process Works
The facilitator will schedule one or more meetings with the parties. The facilitator will assist the parties in communicating information and opinions to the facilitator and each other regarding the allegations in an effort to find common ground and a resolution of the allegations that is satisfactory to both parties. The facilitator may meet separately with each party to explore the party’s views about the allegations and desired outcome from the process. Either party can elect to have any meeting occur so that the parties are in different rooms and the facilitator “shuttles” between the parties.
Informal Resolution may be appropriate if the parties are willing to openly exchange views and reach a resolution acceptable to both parties. The parties to this process should have a clear understanding of the allegations in the complaint and the issues that are in dispute since the investigation phase of the formal grievance and hearing process will not occur if an Informal Resolution is reached.
If an Informal Resolution Process does not result in an agreed-upon resolution, the complaint returns to the formal grievance and hearing process outlined in this Policy. Any investigation of the allegations in the complaint will resume and the formal grievance process will proceed from there. Excelsior encourages terms of resolution that meets the parties’ needs and may include a disciplinary sanction. In unusual circumstances, the Title IX Coordinator may determine that the parties’ agreed upon resolution cannot be approved by Excelsior.
Excelsior and the facilitator will maintain confidentiality concerning the Informal Resolution process. The parties and any support persons may not disclose information shared by the other party during the process in the hearing. This confidentiality protection does not apply to information that is learned outside the Informal Resolution process through the investigation or otherwise (but not learned through a violation of the confidentiality agreement).
VIII. Investigation Procedures
A. Appointment of Investigator
Where a formal complaint has been filed, and in the absence of an informal resolution, Excelsior will appoint an investigator to conduct an investigation into the allegations in the formal complaint.
Excelsior may appoint any qualified investigator, who may be a person internal or external to Excelsior. Excelsior also may appoint more than one investigator in Excelsior’s sole discretion. The investigation is an impartial fact-finding process.
The appointed investigator may not have a conflict of interest and either the complainant or the respondent may object to the appointment of a specific investigator if there is a good faith basis for believing that such a conflict exists. Excelsior retains the right to continue with the appointed investigator, or to select a new investigator.
B. Temporary Delay Due to Concurrent Law Enforcement Investigation
Excelsior’s investigation may be temporarily delayed where there is a concurrent law enforcement investigation, if necessary, to avoid interference with the law enforcement investigation. Any such delay shall not exceed ten (10) days unless the law enforcement agency requests and justifies a longer delay.
C. Notice of Investigation
The Complainant and Respondent shall receive a notice of investigation referencing the violation(s) of this policy alleged to have been committed and the range of possible disciplinary sanctions and remedies following any determination of responsibility. The notice of investigation will include, to the extent known:
- the identities of the involved parties;
- the date, time, location and factual allegations concerning the alleged violation;
- the policy provisions allegedly violated;
- a description of the investigation and adjudication process;
- potential sanctions;
- the right to an advisor of their choice, who may be, but is not required to be, an attorney;
- their right to inspect and review evidence in accordance with this policy;
- notice that knowingly making false statements or knowingly submitting false information is prohibited under this Policy; and
- that the Respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the process
If, in the course of the investigation, Excelsior decides to investigate allegations that are not included in the notice initially provided to the parties, the Title IX Coordinator or designee will provide notice of the additional allegations to the parties.
D. Meetings and Interviews to Gather Information
The Complainant and Respondent will be provided with advance written notice of the date, time, location, participants, and purpose of any meeting or interview in which they are invited to or expected to participate. The Complainant and Respondent have a right to be accompanied by an advisor of their choice, who may be an attorney. Excelsior does not appoint an advisor for a party during the investigation phase of the process.
The Complainant and the Respondent will be given an equal opportunity to present information. This includes the opportunity to present fact or expert witnesses and other evidence that the party believes tends to prove or disprove the allegations. However, at all times, the burden of gathering evidence remains with Excelsior. The investigator may decline to interview any witness or to gather information the investigator finds to be not relevant or otherwise excludable (e.g., sexual history of the complainant with a person other than the respondent, materials subject to a recognized privilege, medical records in the absence of a release by the subject of the records, etc.). The investigator will determine the order and method of investigation.
Both the Complainant and the Respondent shall have the right to have their own prior sexual history with persons other than the other party or their own mental health diagnosis and/or treatment excluded from the investigation and adjudication process under this policy.
No unauthorized audio or video recording of any kind is permitted during investigation meetings or interviews. If the investigator elects to audio and/or video record interviews, all involved parties involved in the meeting or interview will be made aware that audio and/or video recording is occurring.
E. Opportunity for Inspection and Review of Evidence
The Complainant and Respondent will be provided an equal opportunity to inspect and review any evidence obtained in the investigation directly related to the allegations gathered in the investigation and regardless of whether the information will be relied on in reaching a determination. Prior to the conclusion of the investigative report, the Complainant and Respondent, and each party’s advisor of choice, if any, will be provided a copy (which may be sent in hard copy or electronic format or made available through an electronic file sharing platform) of the evidence, subject to redaction permitted and/or required by law. The Complainant and Respondent will be provided with at least ten (10) days to submit a written response, which the investigator will consider prior to completion of the investigative report. The investigator will determine if additional investigation is necessary and, if so, will complete any additional investigative steps.
F. Investigative Report
At the conclusion of the investigation, the investigator will complete a written investigative report that fairly summarizes the relevant evidence. The investigator need not include information in the investigative report that the investigator determines not relevant or otherwise excludable. The investigator will submit the investigative report to the Title IX Coordinator.
At least ten (10) days prior to a hearing to determine whether there is responsibility for the allegations, the Complainant and Respondent, and each party’s advisor if any, will be provided a copy of the investigative report (which may be sent in hard copy or electronic format or made available through an electronic file sharing platform), subject to redaction permitted and/or required by law.
G. Consolidation of Cases
The Title IX Coordinator may determine that cases where the allegations arise out the same set of facts should be consolidated for purpose of the investigation and/or adjudication. Instances where consolidation of complaints may occur include but are not limited to cross-complaints filed by the parties against each other, multiple complaints by a single complainant against a respondent, or multiple complaints by a single complainant against multiple respondents.
H. Investigation Time frame
Excelsior will endeavor to complete an investigation within a reasonably prompt time frame (generally sixty (60) days from receipt of the formal complaint). An investigation may be extended for good cause, such as witness unavailability, breaks in the academic schedule, or other similar circumstances. The investigator will endeavor to keep the parties apprised of the status of the investigation where practicable.
IX. Hearing Procedures
A hearing before a Hearing Officer designated by the Title IX Coordinator will be convened not less than ten days after the parties have been provided access to the final investigative report, for the purpose of determining whether the Respondent is responsible or not responsible for the charge(s). The Hearing Officer may be a member of the campus community or may be external to Excelsior, as determined by the Title IX Coordinator.
The Title IX Coordinator will notify the parties in writing of the date, time, and location of the hearing, the name of the Hearing Officer, and how to challenge participation by the Hearing Officer for bias or conflict of interest. Bias or conflict of interest will be judged by an objective standard (whether a reasonable person would conclude the decision maker is biased or has a conflict of interest).
Participants in the hearing will include the Hearing Officer, the Complainant and the Respondent, their respective advisors, the investigator(s) who conducted the investigation, and witnesses (solely during their own testimony). Hearings are private. Observers or additional support personnel, other than the parties’ advisors, are not allowed unless deemed necessary by the Title IX Coordinator for purposes such as accommodation of a disability. Cell phones and recording devices may not be used by the parties or their advisors in the hearing room(s.
Hearings may be conducted with all parties physically present in the same location or, at the Title IX Coordinator’s discretion, any or all parties, witnesses, and other participants may appear at the live hearing virtually, with technology enabling the Hearing Officer and the parties to simultaneously see and hear any party or witness providing information or answering questions. If either party so requests, the hearing will be conducted with the parties located in separate rooms using technology as described in the preceding sentence.
The Title IX Coordinator may postpone the hearing for good cause as determined by the Title IX Coordinator. Good cause may include, without limitation, unavailability of one or more participants due to unanticipated events or circumstances, the timing of academic breaks or holidays, or other extenuating circumstances.
B. Procedural Matters
The Hearing Officer is in charge of organizing the presentation of information to be considered at the hearing.
Formal rules of evidence will not apply. Except as otherwise expressly prohibited by this Policy, any information that the Hearing Officer determines is relevant may be considered, including hearsay, history and information indicating a pattern of behavior, and character evidence. All evidence previously made available to the parties for inspection and review prior to completion of the investigative report will be made available at the hearing to give each party equal opportunity to refer to such evidence during the hearing, including for purposes of questioning. No party may seek to introduce at the hearing any evidence not previously made available during the investigation phase, other than the investigative report itself and any responses to the investigative report submitted by the parties.
The Hearing Officer will address any concerns regarding the consideration of information prior to and/or during the hearing and may exclude irrelevant information. Subject to the terms of this Policy, the Hearing Officer will have discretionary authority to determine all questions of procedure, to determine whether particular questions, evidence or information will be accepted or considered, to call breaks or temporary adjournments of the hearing, and/or to recall parties or witnesses for additional questions as the Hearing Officer deems necessary or appropriate. The Hearing Officer may impose additional ground rules as the Hearing Officer may deem necessary or appropriate for the orderly and efficient conduct of the hearing, which will apply equally to both parties.
The Complainant and the Respondent may each have present with them during the hearing an advisor of their choice (at the party’s expense, if the advisor is a paid advisor). If a party does not have an advisor present at the hearing, Excelsior will provide, without fee or charge to that party, an advisor of Excelsior’s choice for the limited purpose of conducting questioning on behalf of that party as provided in this Policy.
Except with respect to questioning, the advisor’s role is limited to consulting with their advisee, and the advisor may not present evidence, address the Hearing Officer during the hearing, object to any aspect of the proceeding, or disrupt the hearing in any way, and any consultation with the advisee while the hearing is in progress must be done in a quiet non-disruptive manner or in writing. The advisor may consult with the advisee verbally outside the hearing during breaks, when such breaks are granted. An advisor’s questioning of the other party and any witnesses must be conducted in a respectful, non-intimidating and non-abusive manner. If the Hearing Officer determines that an advisor is not adhering to these or other ground rules, the advisor may be required to leave the hearing, and the hearing will proceed without an opportunity for the party to obtain a replacement advisor; provided, however, that Excelsior will assign an advisor of Excelsior’s choosing, without charge, for the purpose of conducting questioning on behalf of the party as provided below.
Witnesses are not permitted to bring an advisor or other person to the hearing, absent an approved disability accommodation. The Hearing Officer may be advised by and/or consult with Excelsior’s legal counsel as the Hearing Officer deems necessary or appropriate.
D. Questioning Procedures
The Hearing Officer will permit each party’s advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility; provided that questions that seek disclosure of information protected under a legally recognized privilege will not be permitted unless the person or entity holding the privilege has waived the privilege in writing. Questioning must be conducted by the party’s advisor in a respectful, non-intimidating and non-abusive manner, and never by a party personally. If a party does not have an advisor present at the hearing, the Title IX Coordinator will arrange for Excelsior to provide without fee or charge to that party, an advisor of Excelsior’s choice to conduct cross-examination on behalf of that party.
Only relevant questions may be asked by a party’s advisor to a party or witness. Before the party or witness answers a question posed by an advisor, the Hearing Officer will first determine whether the question is relevant and explain any decision to exclude a question as not relevant. The advisor posing the question may request that the Hearing Officer reconsider any decision to exclude a question and the Hearing Officer, after soliciting the other party’s advisor’s opinion, will render a final determination. Such decisions by the Hearing Officer are final and not subject to further objection or reconsideration during the hearing.
Questions and evidence about the Complainant’s sexual predisposition or prior sexual behavior are not relevant, other than questions and evidence about the Complainant’s prior sexual behavior that (a) are offered to prove that someone other than the Respondent committed the alleged misconduct, or (b) concern specific incidents of the Complainant’s prior sexual behavior with respect to the Respondent and are offered to prove consent.
If a party or witness does not submit to cross-examination at the hearing by a party’s advisor as described above, the Hearing Officer may not rely on any statement of that party or witness, during the hearing or otherwise, in reaching a determination regarding responsibility. The Hearing Officer will not draw an inference as to responsibility based solely on a party’s or witness’s absence from the hearing or refusal to answer cross-examination questions.
E. Hearing Determinations
Following conclusion of the hearing, the Hearing Officer will deliberate and render a determination as to whether the Respondent is responsible or not responsible for the alleged violation(s).
The Hearing Officer will use “preponderance of the evidence” as the standard of proof to determine whether each alleged violation of the Policy occurred. “Preponderance of the evidence” means that the Hearing Officer must determine whether, based on the evidence presented, it is more likely than not that the Respondent engaged in the conduct charged.
If the Hearing Officer determines that the Respondent is responsible for one or more violations, the Complainant and Respondent will be invited by the Title IX Coordinator to submit a personal impact statement that will be provided to the Hearing Officer for consideration in determining appropriate sanctions. The Title IX Coordinator will set the time frame for the submission of personal impact statements which normally will be no less than ten (10) days.
In addition to the impact statement(s), if any, factors considered when determining sanctions may include:
- the nature and severity of, and circumstances surrounding, the violation(s);
- the Respondent’s state of mind at the time of the violation(s) (intentional, knowing, bias-motivated, reckless, negligent, etc.);
- the Respondent’s previous disciplinary history for conduct that occurred prior to the violations at issue;
- the need for sanctions to bring an end to the conduct; and/or to prevent the future recurrence of similar conduct;
- the need to remedy the effects of the conduct on the Complainant and/or the community;
- the impact of potential sanctions on the Respondent;
- sanctions imposed by Excelsior in other matters involving comparable conduct; and
- any other lawful factors deemed relevant by the Hearing Officer.
The following are the sanctions that may be imposed upon students or organizations singly or in combination:
- Warning: A formal statement that the behavior was unacceptable and that further infractions of any University policy, procedure, or directive may result in more severe disciplinary action.
- Probation: A written reprimand for violation of the Policy, providing for more severe disciplinary sanctions in the event that the Respondent is found in violation of any University policy, procedure, or directive within a specified period of time. Terms of the probation will be specified and may include denial of specified privileges, exclusion from extracurricular activities, no-contact orders, and/or other measures deemed appropriate.
- Suspension: Cessation of student status for a definite period of time and/or until specific criteria are met.
- Expulsion: Permanent termination of student status.
- Withholding Degree and/or Diploma: Excelsior may withhold a student's degree and/or diploma for a specified period of time and/or deny a student participation in commencement activities.
- Other Actions: In addition to or in place of the above sanctions, the Hearing Officer may assign any other sanctions as deemed appropriate, including but not limited to the following:
- Mandated counseling so the Respondent has the opportunity to gain more insight into their behavior.
- A “no contact" directive (including but not limited to continuation of a no contact directive imposed as a supportive measure) prohibiting contact with one or more identified persons, in person or through telephonic, electronic, written or other means. A no contact directive may include additional restrictions and terms.
- Requiring the Respondent to write a letter of apology.
- Requiring unpaid service to the campus or local community stated in terms of type and hours of service.
- Restitution for damage to or misappropriation of property, or for personal injury, and other related costs.
- Monetary fines.
- For those crimes of violence that Excelsior is required by federal law to include in its Annual Security Report, the transcripts of suspended or expelled students found responsible after a hearing and appeal, if any, will include the notation “Suspended after a finding of responsibility for a code of conduct violation” or “Expelled after a finding of responsibility for a code of conduct violation”. Transcript notations for suspensions may be removed at the discretion of the Provost, but no earlier than one year after the conclusion of the suspension. Transcript notations for expulsion may not be removed.
- If a Respondent who is a student withdraws from Excelsior while charges are pending, and declines to complete the disciplinary process, Excelsior shall make a notation on the transcript of such student that they "withdrew with conduct charges pending."
Excelsior employees who are found to have violated this Policy will be subject to disciplinary action, up to and including termination of employment. Excelsior will also take appropriate remedial measures to address violations of this Policy by individuals who are neither students nor employees of Excelsior.
F. Notice of Outcome
The Hearing Officer will issue a written determination including the following information:
- A description of the charges that were adjudicated;
- A description of the procedural steps taken from the submission of the formal complaint through the determination, including notifications to the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, and hearings held;
- Findings of fact supporting the determination;
- Conclusions regarding the application of the Policy to the facts;
- A statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility, any disciplinary sanctions to be imposed on the Respondent, and whether remedies designed to restore or preserve equal access to Excelsior’s educational programs or activities will be provided to the Complainant; and
- The procedures and permissible bases for the Complainant and Respondent to appeal.
The Title IX Coordinator will provide the written determination to the parties simultaneously.
A respondent or complainant may appeal: (1) a determination regarding responsibility, and (2) Excelsior’s dismissal of a formal complaint or any allegations therein.
If a party wishes to appeal a determination regarding responsibility or the dismissal of a formal complaint, the party must submit written notice to the Title IX Coordinator of the party’s intent to appeal within 10 days of receiving the written notification of the appealable decision.
A respondent or complainant may appeal on only the following bases:
- Procedural irregularity that affected the determination regarding responsibility or dismissal of the matter;
- New evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made that could affect the determination regarding responsibility or dismissal of the matter;
- The penalty or sanction imposed is excessive and/or disproportionate to the violation; and
- The Title IX Coordinator, investigator(s), or decision-maker(s) had a conflict of interest or bias for or against complainants or respondents generally or the individual complainant or respondent that affected the determination regarding responsibility or dismissal of the matter. The professional experience of an individual need not disqualify the person from the ability to serve impartially. Furthermore, bias is not demonstrated by working in complainants’ or respondents’ rights organization.
When a party submits a written notice of its intent to appeal to the Title IX Coordinator within 10 days of the appealable decision, Excelsior will notify the other party in writing and implement appeal procedures equally for both parties. If no written notice of either party’s intent to appeal is sent, then the written determination becomes final after the time period to file an appeal (10 days) has expired.
Each party will be given a reasonable, equal opportunity to submit a written statement in support of, or challenging, the outcome. Each party will have at least 10 days to submit its written statement. If a party needs additional time, it can request such additional time from the decision-maker for the appeal. Such requests will be granted on a case-by-case basis. If the decision-maker for the appeal grants a request for additional time to submit a written statement, all parties will be granted the additional time.
The decision-maker for the appeal will not be the same person as the decision-maker(s) that reached the determination regarding responsibility or dismissal, the investigator(s), or the Title IX Coordinator.
The decision-maker for the appeal will issue a written decision describing the result of the appeal and the rationale for the result. This decision will be provided to both parties simultaneously and in writing.
Once the appeal decision has been sent to the parties, the appeal decision is final.
XI. Application to Faculty and Staff
One or more of Excelsior’s personnel policies or faculty and staff handbook policies may overlap with this policy in a particular situation. This policy applies to any situation where a student is the complainant or respondent. In all other situations, Excelsior reserves the right to apply this policy or another applicable Excelsior policy or process. Excelsior will apply this policy to any situation where Excelsior determines that Title IX requires the application of this policy.
XII. Academic Freedom
Excelsior is an academic institution at which academic freedom possessed by those who are teaching/conducting research and their students is necessary and valued. Excelsior will not construe this policy to prevent or penalize a statement, opinion, theory, or idea offered within the bounds of legitimate, relevant, and responsible teaching, learning, working, or discussion.
XIII. Clery Act Compliance
Excelsior is required to include for statistical reporting purposes the occurrence of certain incidents in its Annual Security Report (ASR). Neither the names of individuals involved in incidents nor the specific details of the incidents are reported or disclosed in ASRs. In the case of an emergency or ongoing dangerous situation, Excelsior will issue a timely warning to the campus, except in those circumstances where issuing such a warning may compromise current law enforcement efforts or when the warning itself could potentially identify the complainant. In such circumstances, the name of the alleged perpetrator may be disclosed to the community, but the name of the victim/Complainant will not be disclosed.
XIV. Coordination with Other Policies
A particular situation may potentially invoke one or more University policies or processes. Excelsior reserves the right to determine the most applicable policy or process and to utilize that policy or process.
XV. Designation of Authority
Any Excelsior administrator or official empowered by this policy, may delegate their authority to any other appropriate University official. Delegation of authority may be necessary to avoid conflicts of interest or where time constraints or other obligations prevent a University official named in this policy from fulfilling their designated role.
XVI. Protecting Against Sexual Assault and Other Violence
On traditional university campuses, occurrences of sexual assault and other violence are frequently associated with alcohol, and many victims know their assailants. Students who study at a distance from Excelsior University should be aware of personal safety and wary of potentially dangerous situations in their daily lives.
Excelsior University is committed to making certain that its offices located in Albany, New York, are secure and safe environments for employees and visitors. With this in mind, Excelsior has established the following policies and practices:
- The possession, abuse, or distribution of illicit drugs and/or alcohol by students and employees on Excelsior property or as part of any Excelsior University activities is strictly prohibited.
- All visitors to Excelsior University buildings, including students, must sign in at the reception desk at the main entrance. Staff meet visitors at the main reception desk and escort them to the appropriate destinations.
- During evening hours and when Excelsior is officially closed, all entrances to Excelsior buildings remain locked. Only employees with prior authorization are admitted to the buildings during these times.
- Excelsior University provides security personnel for regular evening work hours (Monday-Thursday from 4:30-8:30 pm).
- The Office of Human Resources and the Office of Technology and Facilities Services provides employees with periodic reminders about personal safety and security issues.
Many Excelsior University students take traditional classroom courses through accredited colleges and universities to fulfill Excelsior degree requirements. These students should visit those institution’s Web sites or campus security offices to find out about the safety programs at those schools. (See Campus Security Report)
- Many universities have “blue light” systems that aid in expediting calls concerning emergencies or criminal incidents. Such “blue light” call boxes are traditionally placed in areas of high pedestrian traffic on campus.
- Services are available on many university campuses to escort students to their cars during evening hours.
- Universities may have personal safety workshops, which you can attend while a student on that campus.
- View national Campus Crime Statistics at the following Web site: http://ope.ed.gov/security.
Students and employees are encouraged to take a proactive approach to crime prevention and become responsible for their own security.
- Make it a practice to avoid walking in poorly-lit areas, whether a city street, local college campus, public library, or shopping mall parking lot.
- When walking in any parking lot, especially at night, students should have their car keys ready.
- Students should be watchful of alcohol consumption and its effects on their behavior and the behaviors of others.
- Students should pay attention to their own emotions. If they feel threatened or uncomfortable in any situation, they should leave immediately and seek safety.
- Policy Enforcement
The person responsible for the implementation of this policy internally is:
Anita Burns, Title IX Coordinator
Inquiries and complaints may be made externally to:
Office for Civil Rights (OCR)
U.S. Department of Education
400 Maryland Avenue, SW
Washington, DC 20202-1100
Customer Service Hotline #: 800-421-3481
Facsimile: 202-453-6012 TDD#: 877-521-2172
ComPsych: Student Assistance Program
Victims if sexual assault or other acts of violence are encouraged to seek prompt medical attention—several hospitals are located in the Albany area. For individuals not local to the Albany area, students should seek medical attention at local hospital emergency rooms. To gain assistance in getting to an emergency room, a victim can call 911. Medical staff will collect evidence, check for injuries, address pregnancy concerns and the possibility of exposure to sexually transmitted infections. Communications with medical staff are confidential. Medical staff will not report the incident to Excelsior.
Seeking medical attention will in no way obligate a victim to file a complaint or press criminal charges. Conversely, electing not to seek medical attention or to contact police will not impact Excelsior’s investigation process.
Albany Medical Center
43 New Scotland Avenue
Albany, NY 12208
St. Peter’s Hospital
315 S Manning Blvd
Albany, NY 12208
1101 Nott Street
Schenectady, NY 12308
Guilderland Police Department
Albany Police Department
Crime Victim and Sexual Violence Center
112 State Street, Room 1118
Albany, NY 12207
NYS Domestic and Sexual Violence Hotline
1-800-942-6906, English & español/Multi-language Accessibility. Deaf or Hard of Hearing: 711
In NYC: 1-800-621-HOPE (4673) or dial 311 TTY: 1-800-810-7444
For a listing of domestic violence hotlines by county, go to the New York State Domestic Violence Directory.
National Domestic Violence and Crime Victims Hotlines:
Safe Horizon’s Domestic Violence Hotline:
Safe Horizon’s Crime Victims Hotline:
Safe Horizon’s Rape, Sexual Assault & Incest Hotline:
212.227.3000 or call NYC’s 311
TDD phone number for all hotlines:
Stalking Resource Center
APPENDIX“B” – STUDENT BILL OF RIGHTS
All students have the right to:
- Make a report to local law enforcement and/or state police;
- Have disclosures of domestic violence, dating violence, stalking, and sexual assault treated seriously;
- Make a decision about whether or not to disclose a crime or violation and participate in the judicial or conduct process and/or criminal justice process free from pressure by the institution;
- Participate in a process that is fair, impartial, and provides adequate notice and a meaningful opportunity to be heard;
- Be treated with dignity and to receive from the institution courteous, fair, and respectful health care and counseling services, where available;
- Be free from any suggestion that the complainant is at fault when these crimes and violations are committed, or should have acted in a different manner to avoid such crimes or violations;
- Describe the incident to as few institution representatives as practicable and not be required to unnecessarily repeat a description of the incident;
- Be protected from retaliation by the institution, any student, the accused and/or the Respondent, and/or their friends, family and acquaintances within the jurisdiction of the institution;
- Access to at least one level of appeal of a determination;
- Be accompanied by an advisor of choice who may assist and advise a complainant, accused, or respondent throughout the judicial or conduct process including during all meetings and hearings related to such process; and
- Exercise civil rights and practice of religion without interference by the investigative, criminal justice, or judicial or conduct process of the institution.
Excelsior will provide students with written information about resources, including intervention, mental health counseling, legal services, and medical services, visa and immigration assistance, student financial aid, and other services, which shall include information on whether such resources are available at no cost or for a fee. Complainants will be provided information on sexually transmitted infections, sexual assault forensic examinations, and resources available through the New York state office of victim services, established pursuant to section six hundred twenty-two of the executive law. Students will be provided information explaining the scope of confidentiality protections.
ADDITIONAL RIGHTS REGARDING A REPORT OF SEXUAL MISCONDUCT
Anyone reporting an incident of sexual assault, domestic or dating violence, or stalking has the right to:
- Notify campus security authorities, as identified in the annual Campus Security Report, local law enforcement, or the New York State Police;
- Emergency access to a Title IX Coordinator or other appropriate official trained in interviewing victims of sexual assault who shall be available upon the first instance of disclosure by a reporting individual and who can provide information, including:
- Options to proceed, including the right to report to Excelsior officials, local law enforcement, and/or the New York State Police, or choose not to report; to report the incident to Excelsior; to be protected by Excelsior from retaliation for reporting an incident; and to receive assistance and resources from Excelsior;
- Where applicable, the importance of preserving evidence and obtaining a sexual assault forensic examination as soon as possible;
- That the criminal justice process utilizes different standards of proof and evidence than Excelsior’s misconduct procedures and that any questions about whether a specific incident violated the penal law should be addressed to law enforcement or to the district attorney;
- Whether the person they are reporting to is authorized to offer confidentiality or privacy; and
- Any other reporting options.
- Disclose the incident confidentially to Excelsior representatives, who may offer confidentiality pursuant to applicable laws and can assist in obtaining services for Complainants.
- Disclose the incident confidentially and obtain services from the state or local government.
- File a report of sexual assault, domestic violence, dating violence, and/or stalking and consult with the Title IX Coordinator and other appropriate University personnel for information and assistance. Reports shall be investigated in accordance with University policy. A Complainant’s identity shall remain private if that is what the Complainant wishes. However, privacy is not the same as confidentiality and private information can be shared as necessary to implement and fulfill Excelsior’s obligations under the law and its policies and procedures.
- If the accused is an Excelsior employee, disclose the incident to Human Resources or request a confidential or private employee assist in reporting to Human Resources.
- Receive assistance from appropriate University representatives if interested in initiating legal proceedings in family court or civil court. Such assistance consists of facilitation in contacting appropriate local agencies who can provide direct assistance with court proceedings.
- Withdraw a complaint or involvement from Excelsior process at any time, with the understanding that in appropriate cases, Excelsior may nonetheless be required to continue investigating and appropriately resolving cases even if the reporting individual does not wish the case to continue.
Reporting Individuals will be protected from retaliation for reporting an incident.