/Institutions/Barnes-Jewish-College-Goldfarb-School-of-Nursing/json/2023-2024/Student-Handbook-2023-2024-local.json

/Institutions/Barnes-Jewish-College-Goldfarb-School-of-Nursing/json/2023-2024/Student-Handbook-2023-2024.json

Adjudication

A. Hearing Process

The default process for adjudicating Formal Complaints is the hearing process specified in this Section XVII.A. The hearing process will be used to adjudicate all Formal Complaints unless both parties timely consent to administrative adjudication as specified in Section XVI above.

1. Hearing Officer

   After selection of the hearing process as the form of administrative adjudication, the Title IX Coordinator will promptly appoint a hearing officer who will oversee the hearing process and render a determination of responsibility for the allegations in the Formal Complaint, at the conclusion of the hearing process. The Title IX Coordinator will see that the hearing officer is provided a copy of the investigation report and a copy of all evidence transmitted to the parties by the investigator as specified in Section XV.D.2.

2. Hearing Notice and Response to the Investigation Report
   After the hearing officer is appointed by the Title IX Coordinator, the hearing officer will promptly transmit written notice to the parties notifying the parties of the hearing officer’s appointment; setting a deadline for the parties to submit any written response to the investigation report; setting a date for the pre-hearing conference; setting a date and time for the hearing; and providing a copy of Goldfarb’s Hearing Procedures. Neither the pre-hearing conference, nor the hearing itself, may be held any earlier than ten (10) days from the date of transmittal of the written notice specified in this Section XVII.A.2.
   A party’s written response to the investigation report must include:
   • To the extent the party disagrees with the investigation report, any argument or commentary regarding such disagreement;
   • Any argument that evidence should be categorically excluded from consideration at the hearing based on privilege, relevancy, undue prejudice, the prohibition on the use of sexual history specified in Section XXII, or for any other reason;
   • A list of any witnesses that the party contends should be compelled to attend the hearing pursuant to an attendance notice issued by the hearing officer;
   • A list of any witnesses that the party intends to bring to the hearing without an attendance notice issued by the hearing officer;
   • Any objection that the party has to Goldfarb’s Hearing Procedures;
   • Any request that the parties be separated physically during the pre-hearing conference and/or hearing;
   • Any other accommodations that the party seeks with respect to the pre-hearing conference and/or hearing;
   • The name and contact information of the advisor who will accompany the party at the pre-hearing conference and hearing;
   • If the party does not have an advisor who will accompany the party at the hearing, a request that Goldfarb provide an advisor for purposes of conducting questioning as specified in XX.
   A party’s written response to the investigation report may also include:
   • Argument regarding whether any of the allegations in the Formal Complaint are supported by a preponderance of the evidence; and
   • Argument regarding whether any of the allegations in the Formal Complaint constitute Sexual Harassment.
3. Pre-Hearing Conference

   Prior to the hearing, the hearing officer will conduct a pre-hearing conference with the parties and their advisors. The pre-hearing conference will be conducted live, with simultaneous and contemporaneous participation by the parties and their advisors. By default, the pre-hearing conference will be conducted with the hearing officer, the parties, the advisors, and other necessary Goldfarb personnel together in the same physical location. However, upon request of either party, the parties will be separated into different rooms with technology enabling the parties to participate simultaneously and contemporaneously by video and audio.

   In the hearing officer’s discretion, the pre-hearing conference may be conducted virtually, by use of video and audio technology, where all participants participate simultaneously and contemporaneously by use of such technology.

   During the pre-hearing conference, the hearing officer will discuss the hearing procedures with the parties; address matters raised in the parties’ written responses to the investigation report, as the hearing officer deems appropriate; discuss whether any stipulations may be made to expedite the hearing; discuss the witnesses the parties have requested be served with notices of attendance and/or witnesses the parties plan to bring to the hearing without a notice of attendance; and resolve any other matters that the hearing officer determines, in the hearing officer’s discretion, should be resolved before the hearing.

4. Issuance of Notices of Attendance

   After the pre-hearing conference, the hearing officer will transmit notices of attendance to any College employee (including administrator, faculty, or staff) or student whose attendance is required at the hearing as a witness. The notice will advise the subject of their duty to appear for the hearing at the specified date and time and advise the subject to contact the hearing officer immediately if there is a material and unavoidable conflict.

   The subject of an attendance notice should notify any manager, faculty member, coach, or other supervisor, as necessary, if attendance at the hearing will conflict with job duties, classes, or other obligations. All such managers, faculty members, coaches, and other supervisors are required to excuse the subject of the obligation, or provide some other accommodation, so that the subject may attend the hearing as specified in the notice.

   The failure to abide by a notice of attendance is a violation of this policy.

   Goldfarb has no authority to compel the attendance of any witness who is not a College employee or a student, and a notice of attendance will not be issued to any such individual.

5. Hearing
   After the pre-hearing conference, the hearing officer will convene and conduct a hearing pursuant to Goldfarb’s Hearing Procedures. The hearing will be audio recorded. The audio recording will be made available to the parties for inspection and review on reasonable notice, including for use in preparing any subsequent appeal.
   The hearing will be conducted live, with simultaneous and contemporaneous participation by the parties and their advisors. By default, the hearing will be conducted with the hearing officer, the parties, the advisors, witnesses, and other necessary Goldfarb personnel together in the same physical location. However, upon request of either party, the parties will be separated into different rooms with technology enabling the parties to participate simultaneously and contemporaneously by video and audio.
   In the hearing officer’s discretion, the hearing may be conducted virtually, by use of video and audio technology, where all participants participate simultaneously and contemporaneously by use of such technology.
   While the Hearing Procedures and rulings from the hearing officer will govern the particulars of the hearing, each hearing will include, at a minimum:
   • Opportunity for each party to address the hearing officer directly and to respond to questions posed by the hearing officer;
   • Opportunity for each party’s advisor to ask directly, orally, and in real time, relevant questions, and follow up questions, of the other party and any witnesses, including questions that support or challenge credibility;
   • Opportunity for each party to raise contemporaneous objections to testimonial or non-testimonial evidence and to have such objections ruled on by the hearing officer and a reason for the ruling provided;
   • Opportunity for each party to submit evidence that the party did not present during the investigation due to mistake, inadvertence, surprise, or excusable neglect;
   • Opportunity for each party to make a brief closing argument.

   Except as otherwise permitted by the hearing officer, the hearing will be closed to all persons except the parties, their advisors, the investigator, the hearing officer, the Title IX Coordinator, and other necessary Goldfarb personnel. With the exception of the investigator and the parties, witnesses will be sequestered until such time as their testimony is complete.

   During the hearing, the parties and their advisors will have access to the investigation report and evidence that was transmitted to them pursuant to Section XVII.D.2.

   While a party has the right to attend and participate in the hearing with an advisor, a party and/or advisor who materially and repeatedly violates the rules of the hearing in such a way as to be materially disruptive, may be barred from further participation and/or have their participation limited, as the case may be, in the discretion of the hearing officer.

   Subject to the minimum requirements specified in this Section XVII.A.5, the hearing officer will have sole discretion to determine the manner and particulars of any given hearing, including with respect to the length of the hearing, the order of the hearing, and questions of admissibility. The hearing officer will independently and contemporaneously screen questions for relevance in addition to resolving any contemporaneous objections raised by the parties and will explain the rational for any evidentiary rulings.

   The hearing officer will have discretion to modify the Hearing Procedures, when good cause exists to do so, and provided the minimal requirements specified in this Section XVII.A.5 are met.

   The hearing is not a formal judicial proceeding and strict rules of evidence do not apply. Nonetheless, in conducting the hearing and resolving evidentiary issues, the hearing officer may, in the hearing officer’s discretion, utilize principles and procedures similar to those specified in the Federal Rules of Civil Procedure and/or Federal Rules of Evidence to the extent such principles and procedures do not conflict with any explicit provision of this policy.

6. Subjection To Questioning

   In the event that any party or witness refuses to attend the hearing, or attends but refuses to submit to questioning by the parties’ advisors, the statements of that party or witness, as the case may be, whether given during the investigation or during the hearing, will not be considered by the hearing officer in reaching a determination of responsibility.

   Notwithstanding the foregoing, the hearing officer may consider the testimony of any party or witness, whether given during the investigation or during the hearing, if the parties jointly stipulate that the testimony may be considered or in the case where neither party requested attendance of the witness at the hearing.

   In applying this Section XVII.A.6, the hearing officer will not draw an inference about the determination regarding responsibility based solely on a party or a witness’s absence from the live hearing and/or refusal to submit to questioning by the parties’ advisors.

7. Deliberation and Determination

   After the hearing is complete, the hearing officer will objectively evaluate all relevant evidence collected during the investigation, including both inculpatory and exculpatory evidence, together with testimony and non-testimony evidence received at the hearing, and ensure that any credibility determinations made are not based on a person’s status as a Complainant, Respondent, or witness. The hearing officer will take care to exclude from consideration any evidence that was ruled inadmissible at the pre-hearing conference, during the hearing, or by operation of Section XVII.A.6. The hearing officer will resolve disputed facts using a preponderance of the evidence (i.e., “more likely than not”) standard and reach a determination regarding whether the facts that are supported by a preponderance of the evidence constitute one or more violations of the policy as alleged in the Formal Complaint.

8. Discipline and Remedies

   In the event the hearing officer determines that the Respondent is responsible for violating this policy, the hearing officer will, prior to issuing a written decision, consult with an appropriate Goldfarb official with disciplinary authority over the Respondent and such official will determine any discipline to be imposed. The hearing officer will also, prior to issuing a written decision, consult with the Title IX Coordinator who will determine whether and to what extent ongoing support measures or other remedies will be provided to the Complainant.

9. Written Decision
   After reaching a determination and consulting with the appropriate Goldfarb official and Title IX Coordinator as required by Section XVII.A.8, the hearing officer will prepare a written decision that will include:
   • Identification of the allegations potentially constituting Sexual Harassment made in the Formal Complaint;
   • A description of the procedural steps taken by Goldfarb upon receipt of the Formal Complaint, through issuance of the written decision, including notification to the parties, interviews with the parties and witnesses, site visits, methods used to gather non-testimonial evidence, and the date, location, and people who were present at or presented testimony at the hearing.
   • Articulate findings of fact, made under a preponderance of the evidence standard, that support the determination;
   • A statement of, and rationale for, each allegation that constitutes a separate potential incident of Sexual Harassment, including a determination regarding responsibility for each separate potential incident;
   • The discipline determined by the appropriate Goldfarb official as referenced in Section XIV.A.8 and any ongoing support measures or other remedies as determined by the Title IX Coordinator;
   • A description of Goldfarb’s process and grounds for appeal, as specified in Section XIX.

   The hearing officer’s written determination will be transmitted to the parties. Transmittal of the written determination to the parties concludes the hearing process, subject to any right of appeal as specified in Section XIX.

   Although the length of each adjudication by hearing will vary depending on the totality of the circumstances, Goldfarb strives to issue the hearing officer’s written determination within fourteen (14) days of the conclusion of the hearing.

B. Administrative Adjudication (Optional)

In lieu of the hearing process, the parties may consent to have a Formal Complaint resolved by administrative adjudication as a form of informal resolution. Administrative adjudication is voluntary and must be consented to in writing by both parties and approved by the Title IX Coordinator as specified in Section XVI.

If administrative adjudication is selected, the Title IX Coordinator will appoint an administrative officer. The Title IX Coordinator will see that the administrative officer is provided a copy of the investigation report and a copy of all the evidence transmitted to the parties by the investigator as specified in Section XV.D.2

The administrative officer will promptly send written notice to the parties notifying the parties of the administrative officer’s appointment; setting a deadline for the parties to submit any written response to the investigation report; and setting a date and time for each party to meet with the administrative officer separately. The administrative officer’s meetings with the parties will not be held any earlier than ten (10) days from the date of transmittal of the written notice specified in this paragraph.

A party’s written response to the investigation report must include:

• To the extent the party disagrees with the investigation report, any argument or commentary regarding such disagreement;
• Any argument that a particular piece or class of evidence should be categorically excluded from consideration at the hearing based on privilege, relevancy, undue prejudice, the prohibition on the use of sexual history specified in Section XXII, or for any other reason;
• Argument regarding whether any of the allegations in the Formal Complaint are supported by a preponderance of the evidence;
• Argument regarding whether any of the allegations in the Formal Complaint constitute Sexual Harassment.

After reviewing the parties’ written responses, the administrative officer will meet separately with each party to provide the party with an opportunity make any oral argument or commentary the party wishes to make and for the administrative officer to ask questions concerning the party’s written response, the investigative report, and/or the evidence collected during the investigation.

After meeting with each party, the administrative officer will objectively revaluate all relevant evidence, including both inculpatory and exculpatory evidence and ensure that any credibility determinations made are not based on a person’s status as a Complainant, Respondent, or witness. The administrative officer will take care to exclude from consideration any evidence that the administrative officer determines should be ruled inadmissible based on the objections and arguments raised by the parties in their respective written responses to the investigation report. The administrative officer will resolve disputed facts using a preponderance of the evidence (i.e., “more likely than not”) standard and reach a determination regarding whether the facts that are supported by a preponderance of the evidence constitute one or more violations of the policy as alleged in the Formal Complaint.

Thereafter, the administrative officer will consult with any Goldfarb official and the Title IX Coordinator, in the manner specified in Section XVII.A.7 and will prepare and transmit a written decision in the manner as specified in Section XVII.A.8 which shall serve as a resolution for purposes of informal resolution.

Transmittal of the administrative officer’s written determination concludes the administrative adjudication, subject to any right of appeal as specified in Section XIX.

Although the length of each administrative adjudication will vary depending on the totality of the circumstances, Goldfarb strives to issue the administrative officer’s written determination within twenty-one (21) days of the transmittal of the initiating written notice specified in this Section XVII.B.