Title IX Policy for Faculty

1. Notice of Non-Discrimination
2. Statement of Institutional Values
3. Scope of this Policy
4. Statement of Privacy and Confidentiality
5. Terminology
6. Rights Afforded to Parties
7. Prohibited Conduct (As Defined By Title IX)
8. Confidential & Support Resources
9. Reporting Sexual Harassment
10. Requesting Confidentiality/No Further Action
11. Investigation Process
12. Adjudication Hearing
13. Liability Information for Employees
14. Services and Resources

I. Notice of Non-Discrimination

Skidmore College does not discriminate on the basis of sex in its educational, co-curricular, athletic, or other programs or in the context of admissions or employment. Sex discrimination is prohibited by Title IX of the Education Amendments of 1972, a federal law that provides that:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.

Skidmore College, as an educational community, will promptly and equitably respond to all reports of sexual and gender-based misconduct in order to eliminate the misconduct, prevent its recurrence, and address its effects on any individual or the community

Please note that the scope of this Policy is limited to  forms of sexual harassment (including, but not limited to, sexual assault, domestic violence, dating violence, and stalking) as defined in the 2020 final Title IX regulations, 34 CFR Part 106, as released on May 6, 2020 by the United States Department of Education.

Other forms of sexual harassment or discrimination, including acts of sexual harassment (including but not limited to sexual assault, domestic violence, dating violence, and stalking) not in the jurisdiction of Title IX, are addressed in different policies.

While several College policies govern sexual and gender-based misconduct, it is not the responsibility of a Complainant to determine which policy will apply to address an incident of sexual and gender-based misconduct. When any report of any sexual and gender-based misconduct is communicated to the Title IX Coordinator or designee, the report will be reviewed by the Title IX Coordinator or designee. If the report aligns with the definition and jurisdiction of Title IX as defined by the 2020 regulations, the procedures of this policy will be applied. If it does not, then the report will be referred to the appropriate personnel for review under the appropriate faculty policy. To illustrate this, a diagram has been provided in Section III.

Inquiries or complaints about the application of Title IX may be directed to the College’s Title IX Coordinator and/or to the U.S. Department of Education’s Office for Civil Rights.

Skidmore College’s Title IX Coordinator oversees compliance with all aspects of the Title IX policy. The Title IX Coordinator reports directly to the President of the College, and questions about this policy should be directed to the Title IX Coordinator. Anyone wishing to make a report relating to sexual and gender-based misconduct can report to the appropriate individual(s), listed below (updated July 14, 2020):

Reports Alleging Sexual & Gender-Based Misconduct Involving a Skidmore Student, Faculty, or Staff Member:

Joel Aure
Title IX Coordinator
Case Center 311
815 North Broadway
Saratoga Springs, NY 12866
518-580-5708
jaure@skidmore.edu

Campus Safety
Jonsson Tower (ground floor)
815 North Broadway
Saratoga Springs, NY 12866
518-580-5566
campus-safety@skidmore.edu   

*For emergencies or immediate assistance on-campus, please call Campus Safety at x5566*

Reports Alleging Sexual & Gender-Based Misconduct Involving a Skidmore Faculty Member:

Janet Casey
Associate Dean of the Faculty for Diversity and Faculty Affairs
Palamountain 416
(518) 580-5705
jcasey@skidmore.edu

Reports Alleging Sexual & Gender-Based Misconduct Involving a Skidmore Faculty/Staff Member:

Jude Klein
Assistant Director for Employment, Compliance and Workforce Diversity
Barrett Center
518-580-5819
jsklein@skidmore.edu

Off Campus:

Saratoga Springs Police Department
518-584-1800 

Office of Civil Rights
New York Office for Civil Rights
U.S. Department of Education 32 Old Slip, 26th Floor
New York, NY 10005-2500
Telephone: 646-428-3900
FAX: 646-428-3843
TDD: 800-877-8339
Email: OCR.NewYork@ed.gov

 

II. Statement of Institutional Values

Skidmore College is committed to promoting a campus environment where sexual harassment, sexual assault, domestic violence, dating violence, stalking and exploitation are not tolerated, and where every member of the community shares in the responsibility of preventing and addressing sexual and gender based misconduct. The College also is committed to providing survivors and all community members affected by sexual and relationship violence support and avenues of redress as appropriate.  Sexual harassment, sexual assault, domestic violence, dating violence, and stalking are violations of Skidmore College policy and crimes as defined by the State of New York and the Violence Against Women Act.

 

III. Scope of this Policy

All members of the Skidmore College community have an obligation to act responsibly in the realm of sexuality, gender, and relationships, to recognize and challenge any sexual and gender-based misconduct, and to adhere to College policies and local, state, and federal law.

This policy applies specifically to sexual harassment as defined by Title IX occurring on Skidmore College property or at other locations at which the College exercises substantial control over the alleged Respondent(s) and context in which the sexual harassment occurs, and also includes such conduct occurring at any building owned or controlled by a recognized student organization.

When used in this policy, “Complainant” refers to the individual who is identified as the target of the alleged Title IX Sexual Harassment.  “Respondent” refers to the individual alleged to have engaged in Title IX Sexual Harassment.  A “Third Party” refers to any other participant in the process, including a witness or an individual who makes a report on behalf of a Complainant.

This Policy identifies the rights, options and resources afforded Complainants, Respondents and Third Parties when involved in a Title IX Sexual Harassment.

Title IX Sexual Harassment can be committed by any member of the Skidmore College community, including students, staff, and faculty.  Under Title IX, the College has jurisdiction over a Respondent who is a current student or employee.  This policy applies to address and resolve reports against a current Faculty member.

For information about complaints against other Skidmore community members, please visit www.skidmore.edu/sgbm.

As long as the College has jurisdiction over the Respondent, there is no time limit to invoking this policy in cases of alleged Title IX Sexual Harassment under Title IX. Nevertheless, persons are encouraged to report alleged sexual harassment as soon as possible in order to maximize the College’s ability to respond promptly and effectively.

Complaints against a third party not under the jurisdiction of this Policy will be resolved under appropriate College policies, depending on the identity of the third party and the third party’s relationship with the College. Complaints against a third party may not be able to be resolved through the College process.  Regardless, all appropriate support resources and measures are still available to the Complainant, and every effort will be made to assist the Complainant in filing a complaint against the Respondent through the appropriate channels (i.e., police, current workplace, current institution they attend, etc.).

Skidmore College strongly encourages reports of any sexual and gender-based misconduct, including Title IX Sexual Harassment, regardless of who engaged in the conduct.  Even if the College does not have jurisdiction over the Respondent, the College will take prompt action to provide for the safety and well-being of the Complainant and the broader campus community and will take all steps feasible to address and remedy the conduct.

Complaints that relate to conduct that occurred prior to adoption of this policy will be evaluated for a policy violation using the behavioral standards and definitions under the policy that was in place at the time the incident allegedly occurred, and the allegations of the complaint will be investigated and adjudicated using the procedures in the policy that is in effect at the time the complaint is made. The policies and procedures are updated regularly to comply with federal and state law.

The following chart illustrates the policy or policies that may be applied to a complaint specific to whether the Respondent is a student, faculty, or staff member. For questions about this, please contact the Title IX Coordinator at jaure@skidmore.edu:

Figure 1- Policy Jurisdiction Flowchart

 

IV. Statement of Privacy and Confidentiality

To the extent possible, those handling complaints will endeavor to maintain the confidentiality of all parties involved in the informal and formal process.  This confidentiality extends to those seeking assistance, to those filing a complaint, to Respondents, and to those serving as witnesses; confidentiality also extends to those creating or reviewing any documents related to the complaint.  Information about the complaint is therefore provided only to those individuals within the College who have a need to know that information in order to investigate and/or resolve the complaint.  This requirement of confidentiality does not mean that the details of the complaint will be withheld from the Respondent.

Nevertheless, the College cannot guarantee absolute confidentiality. In order to ensure compliance with College policies and federal and state laws, the College may be required to disclose information about a complaint to agencies or to individuals not involved in the complaint. Moreover, when the complaint involves alleged acts of a criminal nature, the College may be required by law to notify law enforcement authorities. The College may also publicly divulge details of the outcome if one of the parties discloses selective portions of the proceedings or if the Complainant or Respondent contests the findings or results of the College’s investigation in the course of a lawsuit.

The Employee Assistance Program (EAP) can provide advice and support to individuals who believe they are experiencing sexual harassment, who have been accused of sexual harassment or who are otherwise involved in a sexual harassment complaint. All information shared with these individuals will remain confidential to the extent permitted by law and college policy. Discussions with representatives from EAP will not be considered a report to the College regarding the problematic behavior and will not, without additional action by the Complainant, result in intervention or corrective action.

 

V. Terminology

Complainant: An individual who is alleged to be the victim of conduct that could constitute sexual harassment

Respondent: An individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment

Advisor of Choice: Both the Complainant and Respondent may elect to be accompanied by an advisor of their choosing to any meetings, hearings, conferences, and interviews pertaining to the investigation or adjudication of the Title IX complaint. In most of these instances, the advisor’s role is limited to observing, consulting with, and providing support to the party.

An Advisor of Choice may not speak or communicate on behalf of the Complainant or Respondent except during the live hearing conducted to adjudicate the allegations to the extent provided in this policy. Outside of the hearing, this includes but is not limited to in-person meetings, phone conversations, email, or any other forms of electronic or written communication with College personnel.

Parties have the right to consult with and engage an attorney as their Advisor of Choice, at their own expense with an exception noted below. As with any other Advisor of Choice, an attorney will not be permitted to speak or communicate on behalf of the student they are advising as described in the paragraph above except during the hearing.

As described more fully below, at the hearing, each party’s Advisor of Choice is permitted to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility. All cross-examination questions must be asked in a respectful, non-intimidating and non-abusive fashion.  Such cross-examination at the live hearing must be conducted directly, orally, and in real time by the party’s advisor of choice and never by a party personally. If a party does not have an advisor present at the hearing to conduct cross-examination, the College will provide without fee or charge to that party, an advisor of the College’s choice, who may be, but is not required to be, an attorney, to conduct cross-examination on behalf of that party.

Any Advisor of Choice who fails to comply with this policy may be asked to leave any such meeting or conversation and is expected to comply with this request. Continued failure to adhere to this policy may result in the Advisor of Choice no longer being allowed to participate in this role.  If an Advisor of Choice fails to comply with this policy’s requirement to conduct cross-examination in a respectful, non-intimidating and non-abusive manner or otherwise violates the policy’s rules with respect to the advisor’s role during the hearing, the Advisor may be required to leave the hearing. In that event, the party will be required to obtain a new advisor to conduct cross-examination or, alternatively, the College will provide an advisor for that purpose as described above at a later time.

Formal Complaint: a document filed by a complainant or signed by the Title IX Coordinator alleging sexual harassment against a respondent and requesting that the College investigate the allegation of sexual harassment. At the time of filing a formal complaint, a complainant must be participating in or attempting to participate in an education program or activity of the College.

A formal complaint may be filed with the Title IX Coordinator or designee in person, by mail, or by electronic mail, by using the contact information for the Title IX Coordinator set forth above. As used in this paragraph, the phrase “document filed by a complainant” means a document or electronic submission (such as by electronic mail or through the [reference online portal] that contains the complainant’s physical or digital signature, or otherwise indicates that the complainant is the person filing the formal complaint. Where the Title IX Coordinator signs a formal complaint, the Title IX Coordinator is not a complainant or otherwise a party and must comply with the relevant Title IX requirements.

Supportive Measures: non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the Complainant or the Respondent before or after the filing of a formal complaint or where no formal complaint has been filed. Such measures are designed to restore or preserve equal access to the College’s education program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties or the College’s educational environment, or deter sexual harassment.

The College will maintain as confidential any supportive measures provided to the Complainant or Respondent, to the extent that maintaining such confidentiality would not impair the ability of the College to provide the supportive measures. The Title IX Coordinator is responsible for coordinating the effective implementation of supportive measures and can be contacted to review the available supportive measures.

Witness: A person or bystander who observes or has information about conduct that is in violation of the Title IX policy. Witnesses must have observed the conduct in question or otherwise have information relevant to the incident.

Investigator: The individual(s) charged with investigating a complaint under this policy. The Investigator(s) will typically be a combination of any of the following: the Assistant Director of Equity and Workforce Diversity or designee, a member of Campus Safety, and/or external investigators designated by the College. Investigators attend, at a minimum, annual Title IX investigator training.

Hearing Administrator: This individual will oversee the scheduling, logistics, and overall execution of the live hearing, including time-keeping and any technology needs related to the recording or accessibility. The Hearing Administrator will not have any role in the determining the relevance or allowance of evidence or testimony. The Title IX Coordinator or appropriate designee will fulfill this role.

Hearing Panel:

The decision about whether there has been a violation of the Title IX Policy will be made by a Hearing Panel. They receive specific training regarding subjects including the dynamics of sexual and gender-based misconduct, the factors relevant to a determination of credibility, the appropriate manner in which to receive and evaluate sensitive information and evidence, including the evaluation of cross-examination questions, the manner of deliberation, and the application of the preponderance of the evidence standard as well as the College’s policies and procedures. The panel will consist of a lead panelist to evaluate questions posed and other evidentiary considerations and two other panelists from the Faculty Advisory Board. All three panelists will determine the outcome and, if applicable, appropriate sanctions. 

Parties will have the opportunity to state whether there is a panelist they feel should not participate in the hearing due to bias or any other reason that would prevent them from making a fair assessment of the information. Any such requests for recusal should be directed to the Title IX Coordinator.

Incapacitation: a state where someone cannot make rational, reasonable decisions because they lack the capacity to give knowing consent (e.g., to understand the “who, what, when, where, why or how” of their sexual interaction).

Incapacitation may occur because of the individual’s age.  Under New York law, the age of consent is 17 years of age and, therefore, a person under the age of 17 lacks the capacity to provide affirmative consent.

Incapacitation can also occur because of an individual’s physical or mental condition or disability that impairs the individual’s ability to provide consent. Incapacitation as a result of a physical or mental condition includes, but is not limited to, being: (i) asleep or in a state of unconsciousness; (ii) physically helpless; or (iii) involuntarily restrained.  Depending on the degree of intoxication, someone who is under the influence of alcohol or drugs may be incapacitated and unable to consent to sexual activity.  Being drunk or intoxicated, however, does not necessarily render someone incapacitated.  The impact of alcohol or drugs varies from person to person.

Whether sexual activity with an incapacitated person constitutes gender-based misconduct depends on whether the Respondent knew or should have known of the Complainant’s incapacitation. The question of what a Respondent knew or should have known is objectively based on what a reasonable person in the place of the Respondent, sober and exercising good judgment, would have known about the condition of the Complainant.

Appeal Panel: These individuals are responsible for reviewing and determining the outcome of any appeal submitted by any of the parties. The panel will consist of the Dean of Faculty and at least one member from the Faculty Advisory Board.

 

VI. Rights Afforded to Parties

Throughout the process, Complainant, Respondents, and Witnesses will be afforded the following rights:

The Complainant will have the right to:

• Have an advisor present as an observer during the complaint process;
• Have an advisor present at the hearing to cross-examine parties and witnesses;
• Be granted confidentiality throughout the process (as described above);
• Withdraw the complaint at any time during the process (with the understanding that the College may be required to pursue the complaint despite the withdrawal );
• Review and sign their own statement and receive a copy;
• File the complaint with a federal, state, or local agency designated to hear/investigate EEO complaints;
• 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 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 accompanied by an advisor of choice who may assist and advise a Complainant or Respondent throughout the process including during all meetings and panels related to such process; and
• Be protected from retaliation by the institution, employee, any student, Respondent, and/or their friends, family and acquaintances within the jurisdiction of the institution;
• Have a meeting with the Title IX Coordinator or official managing the process;
• Review a copy of the final report and investigation materials;
• Be notified of the outcome
• Access to at least one level of appeal of a determination; and
• Exercise civil rights and practice of religion without interference by the investigative, criminal justice, or conduct process of the institution

The Respondent will have the right to:

• Be presumed not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process
• Have an advisor present as an observer during the complaint process;
• Have an advisor present at the hearing to cross-examine parties and witnesses;
• Receive a copy of the written complaint;
• Be granted confidentiality, to the extent possible, throughout the process (as described above);
• Respond to the complaint;
• Review and sign their own statement and receive a copy;
• 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 accompanied by an advisor of choice who may assist and advise a Complainant or Respondent throughout the process including during all meetings and panels related to such process; and
• Be protected from retaliation by the institution, any student, employee, the Complainant, and/or their friends, family and acquaintances within the jurisdiction of the institution;
• Have a meeting with the Title IX Coordinator or official managing the process
• Review a copy of the final report and investigation materials;
• Be notified of the outcome
• Access to at least one level of appeal of a determination; and
• Exercise civil rights and practice of religion without interference by the investigative, criminal justice, or conduct process of the institution.

Witnesses to the complaint (other than the Complainant or Respondent) will have the right to

• Have a representative (not an attorney) present as an observer during the complaint process;
• Be granted confidentiality, to the extent possible, throughout the process (as described in Section IV above);
• Review and sign their own statements and receive copies; and
• Exercise civil rights and practice of religion without interference by the investigative, criminal justice, or conduct process of the institution.

 

VII. Prohibited Conduct (As Defined By Title IX)

The definition of sexual harassment in Title IX is a specific term determined by the Department of Education. Included within the Department’s definition of sexual harassment are the Department’s formal definitions for sexual assault, domestic violence, dating violence, and stalking in accordance with the Violence Against Women Act (VAWA). Sexual and gender-based misconduct may vary in its severity and consists of a range of behaviors. The following descriptions represent sexual behaviors and gender-based misconduct that violate Skidmore’s community standards and values of respect, civility, and personal integrity as well as Title IX. These behaviors are serious violations and represent a threat to the safety of the Skidmore Community. Other forms of sexual behaviors and gender-based misconduct involving faculty that violate Skidmore’s community standards and values are addressed in part six of the Faculty Handbook.

For purposes of this Policy, Title IX Sexual Harassment includes the following forms of misconduct occurring on Skidmore College property or at other locations within the United States at which the College exercises substantial control over the alleged Respondent(s) and context in which the sexual harassment occurs, and also includes such conduct occurring at any building owned or controlled by a recognized student organization.  It is the policy of Skidmore College to hold individuals accountable for all acts that violate this policy:

Sexual Harassment:
Conduct on the basis of sex that aligns with one or more of the following conditions as defined by Title IX:

1. An employee of the College conditioning the provision of an aid, benefit, or service of the College on an individual’s participation in unwelcome sexual conduct;
2. Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the College’s education program or activity; or
3. Sexual Assault, Dating Violence, Domestic Violence, and Stalking as defined below as required by the United States Department of Education:

Sexual Assault
Any sexual act directed against another person, without consent of the victim, including instances where the victim is incapable of giving consent described as follows:

• Rape is 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.
• Fondling is the touching of the private body parts of another person for the purpose of sexual gratification, without the consent of the victim, including instances where the victim is incapable of giving consent because of their age or because of their temporary or permanent mental incapacity.
• Incest is sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.
• Statutory Rape is sexual intercourse with a person who is under the statutory age of consent

This definition aligns with the definition of Rape, Fondling, Incest or Statutory Rape as used in the FBI’s UCR program as required by the Department of Education under Title IX.

Dating Violence
Violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim. The existence of such a relationship shall be determined based on the Complainant’s statement and with consideration of the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship. For the purposes of this definition—

• Dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse.
• Dating violence does not include acts covered under the definition of domestic violence.

Domestic Violence

A felony or misdemeanor crime of 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 in which the crime of violence occurred;
• 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 in which the crime of violence occurred.

Please note that in order for an alleged Domestic Violence incident to be investigated under the policy, the relationship between the Complainant and Respondent must be more than just two people living together as roommates. The people cohabitating must be current or former spouses or have a relationship or status as described above.

Stalking
Engaging in a course of conduct directed at a specific person that would cause a reasonable person to:

• Fear for the person’s safety or the safety of others; or
• Suffer substantial emotional distress.

For the purposes of this definition:

• Course of conduct means two or more acts, including, but not limited to, acts in which the stalker directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates to or about a person, or interferes with a person’s property.
• Reasonable person means a reasonable person under similar circumstances and with similar identities to the Complainant.
• Substantial emotional distress means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.

Stalking as defined above may not always be “on the basis of sex” (for example when an individual stalks an athlete due to celebrity worship rather than sex), but when stalking is “on the basis of sex” (for example, when the stalker desires to date the victim) stalking constitutes “sexual harassment” for purposes of this policy.  Stalking that does not constitute sexual harassment because it is not “on the basis of sex” may be addressed under other applicable College policies.

Retaliation
In addition to prohibiting Title IX Sexual Harassment, this Policy also prohibits Retaliation based on an individual who reports, or complains about an alleged violation of, or who otherwise participate in good faith in, the procedures set forth in this Policy. Neither the College nor any other person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX or this policy, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this policy. Intimidation, threats, coercion, or discrimination, including charges against an individual for Faculty Handbook violations that do not involve sex discrimination or sexual harassment, but arise out of the same facts or circumstances as a report or complaint of sex discrimination, or a report or formal complaint of sexual harassment, that are undertaken for the purpose of interfering with any right or privilege secured by Title IX or this policy, constitutes retaliation.

The College will keep confidential the identity of any individual who has made a report or complaint of sex discrimination, including any individual who has made a report or filed a Formal Complaint of sexual harassment, any complainant, any individual who has been reported to be the perpetrator of sex discrimination, any respondent, and any witness, except as may be permitted by the federal Family Educational Rights and Privacy Act and its implementing regulations (FERPA) or as required by law, or to carry out this policy, including the conduct of any investigation, hearing, or judicial proceeding arising thereunder. Complaints alleging retaliation related to a Title IX matter may be filed according to the grievance procedures for sexual harassment as described in this policy.

It is the policy of Skidmore College to hold individuals accountable for all acts that violate this Policy and other forms of sexual, and/or gender-based misconduct covered by other College policies.

Note on Other Policy Violations
After reviewing the report, the Title IX Coordinator and the Chief Human Resources Officer or their designee will determine whether other alleged policy violations in addition to the Title IX charges should be applied. This will be reflected in the formal complaint and will be provided to both the Complainant and Respondent.

Furthermore, the Chief Human Resources Officer or designee will bring the complaint to the attention of the Dean of Faculty’s office and, in accordance with the Faculty Handbook or other applicable employee policies, may determine that other policy violation charges should be applied to other parties as well.

If any charges are addressed in and added to the Formal Complaint during the investigation, both parties will be notified and will have an opportunity to address them as well as the original charges prior to the Adjudication Hearing. Subsequent or unrelated allegations involving the Complainant and Respondent will be addressed separately under the appropriate policy.

B: Affirmative Consent

Affirmative consent is the basis of this policy because affirmative consent maintains the value that all persons have the right to feel respected, acknowledged, and safe during sexual activity. 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 consent does not vary based upon a participant’s sex, sexual orientation, gender identity, or gender expression.

• Consent can be communicated verbally or by action(s). In whatever way consent is communicated, it must be mutually understandable.
• Consent is mutually understandable when a reasonable person would consider the words and/or actions that you and your partner(s) have expressed to demonstrate a desire to do the same thing, at the same time, in the same way, with one another.
• In the absence of mutually understandable words or actions, the initiators of sexual contact are responsible for making sure they have obtained affirmative consent from their partner(s). The initiators must fully understand what their partner(s) wants and does not want sexually.
• Consent to any sexual act or prior consensual sexual activity between or with any party does not necessarily constitute consent to any other sexual act. Each new sexual act requires new consent. Affirmative consent has time boundaries.
• Consent is required regardless of whether the person initiating the act is under the influence of drugs and/or alcohol.
• Consent may be initially given but withdrawn at any time.
• 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. 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, drugs, or other intoxicants may be incapacitated and therefore unable to consent (See “Incapacitation” in the Terminology section above).
• The existence of a dating/romantic relationship between the persons involved or the fact of a previous sexual relationship does not automatically establish affirmative consent for future sexual activity.
• Consent is not the absence of resistance.
• Silence is an inactive behavior, and affirmative consent is an active behavior. Therefore, silence alone (absent a non-verbal action clearly demonstrating consent) is not considered affirmative consent. Silent and inactive behavior may indicate that something is wrong and the potential for sexual misconduct exists. If a partner is inactive (for example, silent or physically still) sexual activity must stop until both partners have communicated clearly with each other about what, if any, sexual activity is mutually desired.
• Affirmative consent can never be given by minors (under the age of 17 in New York State), mentally disabled individuals, or by incapacitated persons. A person who is unconscious, unaware, or otherwise physically helpless cannot give affirmative consent to sexual activity.
• Affirmative consent cannot result from force, or threat of harm, coercion, fraud, intimidation, or incapacitation. The use of force to obtain sexual access or to induce consent violates this policy whether the force is physical in nature, violent, or involving threats, intimidation, or coercion.
  • Physical force includes but is not limited to: hitting, kicking, and restraining. Physical force means someone is acting on you physically and exerting control over you through violence.
  • Intimidation is an implied threat. It is not as clear or explicit as an overt threat.
  • Coercion is the use of pressure to compel another individual to initiate or continue sexual activity against an individual’s will. Coercion can include a wide range of behaviors, including intimidation, manipulation, threats, and blackmail. A person’s words or conduct are sufficient to constitute coercion if they wrongfully impair another individual’s freedom of will and ability to choose whether or not to engage in sexual activity. Coercion is evaluated based on the intensity, frequency, and duration of the comments or actions. Examples of coercion include threatening to “out” someone based on sexual orientation, gender identity, or gender expression, and threatening to harm oneself if the other party does not engage in the sexual activity.
• Threatening someone to obtain consent for a sexual act is a violation of this policy. Threats exist where a reasonable person would have been compelled by the words or actions of another to give permission to sexual activity to which they otherwise would not have consented.
• When consent is withdrawn or can no longer be given, sexual activity must stop.

VIII. Confidential & Support Resources

Skidmore College is committed to creating an environment for individuals to report incidents of sexual harassment. Members of the Skidmore community are strongly encouraged to seek support and information from available reporting sources. Immediate reporting is essential for the protection of students. All sources will provide the Complainant with information about obtaining support, resources, and the process associated with making a report or a formal complaint with the College and/or with a law enforcement agency.

The College will endeavor to respect the wishes of the Complainant regarding how and if to move forward; however, in some circumstances, the College will have to move forward. Under these circumstances, the College will weigh the request for confidentiality or that no further action be taken against the certain factors, including but not limited to those described below in the section of this policy entitled “Requesting Confidentiality/No Further Action.”

All individuals shall have the right to emergency access to the Title IX Coordinator, Campus Safety or other trained official who shall be available upon the first instance of disclosure by a Complainant to provide information regarding options to proceed and, where applicable, the importance of preserving evidence and obtaining a sexual assault forensic examination as soon as possible, as well as other pertinent information.

To Speak with Someone Confidentially:

Confidential resources are those individuals who, by law and/or College policy, are obligated to maintain confidentiality of the allegations of sexual or gender-based misconduct. These individuals are not required to re-disclose information shared with them other than in very extreme and unusual circumstances involving evidence of a serious and imminent threat to the individual making the report or to an identifiable third party. Confidential resources include:

Employee Assistance Program
518-793-9768
https://www.skidmore.edu/benefits/eap.php

Supportive Measures

Regardless of whether the Complainant wishes to pursue a Formal Complaint, the College will consider the information provided and take such prompt and effective action as is reasonably possible under the circumstances to support and protect the parties involved and protect the College community. Additionally, the College may choose to impose other measures at its discretion to restore or preserve equal access to its education programs or activities without unreasonably burdening the other party, including measures designed to ensure the safety of all parties, the broader College community, and/or the integrity of the process, and/or to deter sexual harassment, once again after an individualized analysis as required by Title IX.

The Title IX Coordinator is responsible for coordinating the effective implementation of supportive measures and can be contacted to review all available supportive measures. Please note that supportive measures are available at the request of either the Complainant or Respondent, with or without the filing of a Formal Complaint.  

All individuals are encouraged to report concerns about failure of another individual to abide by any requirement applied by a supportive measure. The College will take immediate and responsive action to enforce a previously implemented measure.

The College will maintain as confidential any supportive measures provided to the Complainant or Respondent, to the extent that maintaining such confidentiality would not impair the College’s ability to provide the supportive measures.

While any supportive measure is in place, a party impacted by the supportive measure has the right to request that the supportive measure be reviewed for modification or rescission. Reviews will be conducted promptly, and modifications will be made as warranted. Requests must be submitted, in writing, to the Title IX Coordinator and should include the basis and any evidence in support of the request.

College-Imposed Interim Suspension or Administrative Leave

• The College reserves the right to remove a Respondent from the College on an emergency basis if an individualized safety and risk analysis determines that there is an immediate threat to the physical health or safety of any student or other individual arising from the allegations of Title IX related sexual harassment to justify the removal. Neither an interim suspension nor an administrative leave assumes a determination of responsibility.
• If such a suspension were to take place, the Respondent would be provided notice and an opportunity to challenge the decision immediately following the suspension.
• Interim suspensions under this policy are imposed after an individualized safety and risk analysis and in consultation with the Title IX Coordinator, Dean of Faculty and the Chief Human Resources Officer.
• For faculty and staff as well as student-employees, the College reserves the right to administer an administrative leave consistent with existing policies outside of the scope of Title IX.
• Any employee who is placed on an interim suspension or administrative leave can challenge this decision immediately after the removal by submitting an appeal to the Vice President of Finance and Administration.

 

IX. Reporting Sexual Harassment

Reporting to the College

Any Skidmore College community member can report an incident of sexual harassment or any sexual and gender-based misconduct to the Title IX Coordinator or Campus Safety at any time. For reports specifically alleging Title IX Sexual Harassment by a faculty member, individuals can also report this to Associate Dean of the Faculty for Diversity and Faculty Affairs in the Dean of Faculty’s office in addition. Any Skidmore employee, who is not a Confidential Resource, is required to report any information they receive about an incident of sexual harassment to the Title IX Coordinator.

If the Respondent is currently a Skidmore student, faculty, or staff member, any person may file a Formal Complaint of sexual and gender-based misconduct with the Title IX Coordinator or designee.

Reporting to Law Enforcement

It is the Complainant’s decision whether or not to file a criminal report. To report to local law enforcement, Complainants should contact the Saratoga Springs Police Department at 518-584-1800.

Violation of Law and College Sanction/Discipline

While sexual harassment under Title IX may constitute both a violation of College policy and criminal activity, the standards for finding a violation of criminal law are different from the standards for finding a violation of this policy, and criminal investigations or reports are not determinative of whether sexual harassment as defined by Title IX has occurred under the College’s policy. In other words, conduct may constitute sexual harassment under the College’s policy even if it is not a crime or law enforcement agencies lack sufficient evidence of a crime and therefore decline or are unable to prosecute.

The filing of a report of sexual or gender-based misconduct with the College is independent of any criminal investigation or proceedings (except that the College’s investigation may be delayed temporarily while the criminal investigators gather evidence), and the College will not necessarily wait for the conclusion of any criminal investigation or proceedings to commence its own investigation and provide supportive measures to the Complainant and protect the College community as necessary.

Timely Warning
If a report of sexual harassment or sex or gender-based misconduct under this policy or other policies discloses information indicating a serious or continuing threat to the Skidmore community, the College may issue a campus wide timely warning (which can take the form of campus flyers and/or an email/text communication to campus community) to protect the health or safety of the community. The College will make every effort to ensure that a Complainant’s name and other identifying information are not disclosed, while still providing enough information for community members to make safety decisions in light of the danger.

At no time will the College release the name of the Complainant to the general public without the express consent of the Complainant. The release of the Respondent’s name to the general public is guided by Family Educational Rights and Privacy Act (FERPA) and the Clery Act.

All College proceedings are conducted in compliance with the applicable requirements of FERPA, the Clery Act, Title IX, the Violence Against Women Act (“VAWA”), New York’s Enough Is Enough law, and other state and federal laws. No information shall be released from such proceedings except as required or permitted by law and College policy.

Order of Protection
Complainants have the right to be assisted by Campus Safety or other official reporting resources in obtaining a court ordered order of protection or, if outside of New York State, an equivalent protective or restraining order. An order of protection can only be issued by a judge if a criminal complaint is made.

If the College receives an order of protection, a copy of the order will be shared with the Complainant or Respondent. Either party will have an opportunity to meet or speak with a College representative, or other appropriate individual, who can explain the order and answer questions about it, including information from the order about the Respondent’s responsibility to stay away from the protected person or persons. Consequences for violating these orders may include, but are not limited to, arrest, additional conduct charges, and/or interim suspension.

In the event of a violation of the order of protection, Complainants may receive assistance from Campus Safety in contacting local law enforcement and affecting an arrest.

Additional Information on Obtaining an Order of Protection:
An Order of Protection is a legal document in which a Judge orders someone to follow specific conditions of behavior – that is, tells someone things that they must or must not do.

Police can make immediate arrests if they have good reason to believe those conditions have been violated. The point of an Order of Protection is to maintain peace and provide protection until all the facts have been gathered and the case is heard in Court. The Order remains in effect as written until it is changed or terminated by the Court, or until it expires in accordance with its terms.

Note: Representatives from Wellspring may assist members of the Skidmore community in obtaining orders of protection from Family Court. Likewise, Campus Safety will assist community members with obtaining orders from the Criminal Court via the police.

Orders of Protection may be enforceable on campus and in other jurisdictions in accordance with their terms, including out of state. This becomes particularly important if the requesting party anticipates problems when they are home or elsewhere during class breaks. Most orders are entered into a nationwide database so police will be able to confirm the existence of an order, even if you don’t have a hardcopy with you. More information on the NYS Order of Protection Alert System can be found here: https://oop.nyalert.gov/OOP/Default.aspx.

 

X. Requesting Confidentiality/No Further Action

Requesting Confidentiality and No Further Action from the College:
How the College Will Weigh the Request and Respond

Prior to filing a Formal Complaint, a Complainant can request that, even though the College has received actual notice of an incident, no further action be taken by the College and that the incident remains private. The Title IX Coordinator and/or designee will review the information received and decide if that option is available. If this option is available, the incident will remain private and no disciplinary action by the College will be taken, but the College will offer supportive measures to the Complainant. The incident will be kept on file with the Title IX Coordinator and may be considered in the event that a future pattern emerges. The College’s response to the incident may be re-evaluated if a pattern does emerge. If the Title IX Coordinator or designee has information indicating that the College has a duty to respond to the behavior, regardless of the Complainant’s participation in the process, the Title IX Coordinator may move forward with filing a Formal Complaint

In the event that a Complainant does not wish to proceed with an investigation or adjudication process, the Title IX Coordinator or designee will determine, based on the available information, including any investigative report, whether the investigation or conduct proceedings should nonetheless go forward.

When weighing an individual’s request for confidentiality or that no investigation or discipline be pursued, the Title IX Coordinator or designee will consider a range of factors, including, but not limited to, the following:

• The increased risk that the Respondent will commit additional acts of Title IX Sexual Harassment, other forms of sexual and gender-based misconduct or other violence, such as:
  • Whether there have been other sexual and gender-based misconduct complaints about the same Respondent;
  • Whether the Respondent has a history of arrests or records from a prior school indicating a history of violence;
  • Whether the Respondent threatened further sexual and gender-based misconduct or other violence against the Complainant or others;
• Whether the sexual violence was committed by multiple perpetrators;
• Whether the misconduct was perpetrated with a weapon;
• Whether the victim is a minor;
• Whether the Respondent has admitted to the conduct;
• The extent of prior remedial methods or disciplinary action taken with the Respondent;
• Whether the College possesses other means to obtain relevant evidence of the misconduct (e.g., security cameras or personnel, physical evidence);
• Whether the Complainant’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.
• Whether the incident represents escalation in unlawful conduct on behalf of the Respondent from previously noted behavior; and
• Whether the incident occurred in the workplace (the College will generally be required to investigate allegations of workplace sexual harassment).

The presence of one or more of these factors could lead the College to investigate and, if appropriate, pursue disciplinary action. If none of these factors is present, the College will likely respect the Complainant’s request for confidentiality under this Policy. However, in situations where there is sexual harassment by any Skidmore community member against an employee, the College reserves the right to investigate and take appropriate disciplinary measures in accordance with its Anti-Harassment Policy pertaining to employees or other relevant policies.

The College will take all reasonable steps to investigate and respond to the complaint consistent with the request for confidentiality or request not to pursue an investigation, but its ability to do so may be limited based on the nature of the request by the Complainant. The College will assess any barriers to proceeding, including retaliation, and will inform the Complainant that Title IX prohibits retaliation and the College will take strong responsive action to protect the Complainant. Where the College is unable to take action consistent with the request of the Complainant, the Title IX Coordinator or designee will communicate with the Complainant about the College’s chosen course of action, which may include the Title IX Coordinator filing a Formal Complaint and the College choosing to pursue action against a Respondent on its own behalf. Alternatively, the course of action may also include steps to limit the effects of the alleged misconduct and prevent its recurrence that do not involve formal disciplinary action against a Respondent or revealing the identity of the Complainant.

If the College determines that it cannot maintain a Complainant’s confidentiality, the College will inform the Complainant prior to starting an investigation.

The College may not require a Complainant or Respondent to participate in any investigation or disciplinary proceeding under this Policy. Because the College is under a continuing obligation to address the issue of sexual and gender-based misconduct campus-wide, reports of sexual and gender-based misconduct (including non-identifying reports) will also prompt the College to consider broader remedial action – such as increased monitoring, supervision or security at locations where the reported sexual and gender-based misconduct occurred; increasing education and prevention efforts, including to targeted population groups; conducting climate assessments/victimization surveys; and/or revisiting its policies and practices.

If the College determines that it can respect a Complainant’s request for confidentiality, the College may nevertheless implement Supportive Measures as necessary to protect the Complainant. If the College honors the request for confidentiality, the Complainant must understand that the College’s ability to meaningfully investigate the incident and pursue disciplinary action against the Respondent may be limited.

XI. Investigation Process

Filing a Formal Complaint

After receiving or filing a Formal Complaint, the Title IX Coordinator will determine how to proceed. The options for next steps include:

1. Move forward with a Formal Complaint process under this Policy:
   Information collected in the Formal Complaint gives reasonable cause to believe a violation of this policy may have occurred and warrants further investigation. A full investigation will begin.
2. Refer the complaint to the proper office if the Title IX policy does not have jurisdiction.
   If one or more allegations alleged in the Formal Complaint:
   • Would not constitute Title IX sexual harassment as defined in this policy even if proved;
   • Did not occur in the College’s education program or activity; OR
   • Did not occur against a person in the United States,
     
     Then the College is required to dismiss those allegations for purposes of sexual harassment under Title IX and this policy, but may refer the allegations  to the appropriate office for a review under any applicable policy as previously noted.
     
     In the event a complaint is dismissed under Title IX, both the Complainant and Respondent may appeal this dismissal in order to have the complaint reinstated under the Title IX process. Appeals should be sent to the Title IX Coordinator, who will refer the matter to the appropriate official(s) for review. Please review the Appeals section below for potential grounds, though there is no restrictions on the rationale a party can provide for why they feel the complaint should be reinstated under Title IX.

The Title IX Coordinator also may (but is not necessarily required to) dismiss a Formal Complaint or any of its allegations if at any time during the investigation or hearing (a) the Complainant notifies the Title IX Coordinator in writing that the Complainant would like to withdraw the Formal Complaint or any specific allegation; (b) the Respondent is no longer enrolled or employed by the College; or (c) specific circumstances prevent the College from gathering evidence sufficient to reach a determination as to the Formal Complaint or its allegations.

Please note that the filing of a Formal Complaint or the initiation of an investigation under this policy is not a presumption that the Respondent is responsible for the alleged conduct.

In accordance with the 2020 Title IX regulations, throughout the process, the Respondent is presumed not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the process.

Full Investigation

In all cases of alleged sexual harassment as defined under this policy, the College will respond to the report in a prompt, impartial, procedurally fair, and effective manner. Upon submission of a Formal Complaint, the College will strive to complete the investigation and adjudication processes (excluding appeal process) within sixty (60) calendar days  This time frame and other time frames in this policy may be extended due to various circumstances, including but not limited to, unavailability of one or more parties or advisors due to unanticipated events or circumstances, the timing of academic breaks or holidays, concurrent law enforcement activity, or other extenuating circumstances.  Delays due to concurrent law enforcement activity will not exceed ten (10) calendar days except when law enforcement authorities specifically request and justify a longer delay. The parties will be notified of the reasons for such extensions.

Throughout the investigation and adjudication process, a Complainant and Respondent may be accompanied by their Advisor of Choice to all meetings, investigation interviews, and/or hearings pertaining to the complaint. 

Please keep in mind that an Advisor of Choice is not permitted to speak on behalf of the party they are supporting, as described on page 9 under the definition of Advisor of Choice, other than at the hearing.

Investigation Process:
An investigation into whether a violation of this policy has occurred will begin after a Formal Complaint has been filed.

The Title IX Coordinator or designee will then reach out to the parties to provide them Written Notice of the Formal Complaint, including (to the extent known) the identities of the involved parties; the date, time, and location of the alleged misconduct; the factual allegations then known allegedly constituting a violation; the policy provisions allegedly violated; potential sanctions; their 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 College 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.

This information will be provided in sufficient detail and with sufficient time to prepare a response before any initial interview.  If, in the course of the investigation, the College 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 and the parties will be given an opportunity to respond to those allegations.

Throughout the investigation and adjudication, the College assumes the responsibility for gathering evidence, and it is not on the parties to conduct their own investigation. Parties will also maintain the following rights throughout the investigation:

• An equal opportunity to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence;
• Not be restricted to discuss the allegations under investigation or to gather and present relevant evidence;
• The same opportunities to have others present during any proceeding, including the opportunity to be accompanied to any related meeting or proceeding by their Advisor of Choice, who may be, but is not required to be, an attorney,
• Not limit the choice or presence of advisor for either the Complainant or Respondent in any meeting or proceeding;
• Written notice of the date, time, location, participants, and purpose of all hearings, investigative interviews, or other meetings, with sufficient time for the party to prepare to participate;
• Equal opportunity to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in a Formal Complaint, including the evidence upon which the College does not intend to rely in reaching a determination regarding responsibility and inculpatory or exculpatory evidence whether obtained from a party or other source, so that each party can meaningfully respond to the evidence prior to conclusion of the investigation;
• Access to the evidence prior to completion of the investigative report for inspection and review in an electronic format or a hard copy;
• A minimum of 10 days to submit a written response to the investigative report, which the investigator will consider prior to completion of the investigative report;
• Access to all such evidence (along with their advisor) subject to the parties’ inspection and review as described above at any hearing to give each party equal opportunity to refer to such evidence during the hearing, including for purposes of cross-examination; and
• An investigative report that fairly summarizes relevant evidence, that will be provided to the parties and their advisors a minimum of 10 days prior to a hearing in an electronic format or a hard copy, for their review and written response.

Please note that any evidence, including a party or witness interview, that was reasonably available during the investigation but was not provided during the investigative stage will NOT be permitted to be introduced at the hearing. Any proposed exception will be reviewed by the appropriate personnel and determined on a case-by case basis.

Once the investigation report is final, it is turned over to the Title IX Coordinator or Hearing Administrator to begin the adjudication process along with any responses from the Complainant and Respondent.

 

XII. Adjudication Hearing

Once the final investigation report is complete and responses have been collected (or the time to submit responses has expired), the Hearing Administrator will provide the report and responses to the Hearing Panel to review. The Hearing Panel consists of one lead panelist and two other panelists from the Faculty Advisor Board.  The Hearing Panel may include a member external to the College as determined by the Title IX Coordinator or employee outside of the Faculty Advisory Board in emergency or special circumstances and in consultation with the Dean of Faculty’s office.

The Complainant and Respondent have a right to petition in writing that a panelist be removed on the basis of knowledge of one or more of the participants in the case that may impair – or may be perceived to impair – their ability to review and determine a case impartially, or on the basis of any other conflict of interest or bias for or against complainants or respondents generally or the Complainant(s) or Respondent(s) in the case. A panelist is/are also encouraged to remove themselves from the process if they have any knowledge of circumstances or information that may impair – or may be perceived to impair – their ability to review and determine a case impartially, and to recuse themselves if their participation might compromise the integrity of the adjudication process.

The Complainant and Respondent will be informed in writing of the date and time of the hearing no later than 10 days before it takes place. Requests to alter the date/time of the hearing must be submitted to Title IX Coordinator within 48 hours of the time the parties are informed of the proposed date and time of the hearing. If a party or their advisor is not available during the proposed hearing date/time, they can request for it to be rescheduled, but a hearing will only be delayed up to 5 business day due to party/advisor availability. If the party’s advisor is not available within the five business days referenced, then the party must either find a new advisor or have one assigned to them by the College. Request for exceptions due to special circumstances will be reviewed and addressed on a case-by-case basis.

The Complainant and Respondent may be accompanied by one Advisor of Choice to conduct cross-examination during the hearing.

Any temporary delay of the hearing or overall grievance process or necessary extension of timeframes may be requested. Any such request will be reviewed for its appropriateness, and if a delay or extension is implemented, the Title IX Coordinator will provide a written notice to the parties for the reasons for such an action.

Pursuant to applicable Title IX regulations, at the live hearing the parties are provided the following rights and procedures:

• After each panelist has an opportunity to pose questions to a party or witness, the Hearing Panel 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 holding the privilege has waived the privilege.
• Such cross-examination must be conducted directly, orally, and in real time by the party’s Advisor of Choice and never by a party personally.
• At the request of either party, parties may be located in separate rooms with technology enabling the Hearing Panel and parties to simultaneously see and hear the party or the witness answering questions.
• Only relevant cross-examination questions may be asked of a party or witness
• Before a Complainant, Respondent, or witness answers a cross-examination question, the Hearing Panel will first determine whether the question is relevant and explain any decision to exclude a question as not relevant.
• If a party does not have an advisor present at the hearing, the College will provide without fee or charge to that party, an advisor of the College’s choice, who may be, but is not required to be, an attorney, to conduct cross-examination on behalf of that party.
• Questions and evidence about the Complainant’s sexual predisposition or prior sexual behavior are not relevant, unless such questions and evidence about the Complainant’s prior sexual behavior:
• Are offered to prove that someone other than the Respondent committed the conduct alleged by the Complainant, or
• 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 live hearing or does not attend the hearing, the Hearing Panel must not rely on any statement of that party or witness in reaching a determination regarding responsibility. The Hearing Panel will not draw an inference about the determination regarding responsibility based solely on a party’s or witness’s absence from the live hearing or refusal to answer cross-examination or other questions.
• Live hearings may be conducted with all parties physically present in the same geographic location or, at the College’s discretion, any or all parties, witnesses, and other participants may appear at the hearing virtually, with technology enabling participants simultaneously to see and hear each other.
• The College will create an audio recording and/or transcript, of the hearing and make it available to the parties for inspection and review. No other party or participant is permitted record the hearing. Any party, witness or employee who creates an unauthorized recording of the hearing will be charged with a policy violation under the applicable policy. Advisors who record on behalf of a party will be expelled from the process, and charges of a policy violation will be applied to the party who was advised by that advisor under the appropriate policy.

Formal rules of evidence will not apply at the hearing. Except as otherwise expressly prohibited by this policy, any information that the Hearing Panel determine[s] is relevant may be considered, including hearsay, history and information indicating a pattern of behavior, and character evidence.  The Hearing Panel 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 Panel 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 Panel deems necessary or appropriate.  The Hearing Panel may impose additional ground rules as the Hearing Panel may deem necessary or appropriate for the orderly and efficient conduct of the hearing, which will apply equally to both parties.

Following conclusion of the hearing, the parties and their advisors will depart and the Hearing Panel will determine whether or not the Respondent violated the Title IX policy as alleged in the Formal Complaint by finding either: “Responsible” or “Not Responsible” with respect to each allegation using the Preponderance of the Evidence standard. A preponderance of the evidence exists when a reasonable person, after a careful balancing of available information, would conclude that it is “more likely than not” a violation has occurred and the Respondent is responsible for the violation.

Determination Regarding Responsibility

The Hearing Panel will issue a written determination. The written determination will include the following:

1. Identification of the allegations potentially constituting sexual harassment
2. A description of the procedural steps taken from the receipt of the Formal Complaint through the determination, including any notifications to the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, and hearings held;
3. Findings of fact supporting the determination;
4. Conclusions regarding the application of the College’s Title IX policy and Faculty Handbook to the facts;
5. A statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility, any disciplinary sanctions the College imposes on the Respondent, and whether remedies designed to restore or preserve equal access to the College will be provided to the Complainant; and
6. The College’s procedures and permissible bases for the Complainant and Respondent to appeal.

The Hearing Administrator will provide the written determination to the parties simultaneously within five business days after the hearing, or as soon thereafter as practicable.

The Title IX Coordinator is responsible for coordinating effective implementation of any remedies.

Sanctions

Sanction may include discussion, recommendation for counseling or mentoring, monitoring of the situation, support for self-help as well as more serious disciplinary actions. These may include (but are not limited to) a letter in the personnel file for a period of time, permanent letter in the personnel file, withholding of salary increases or stipends, removal from the classroom, suspension (with or without pay) or separation from the College.

Special Procedures and Rights

Legally Recognized Privilege
The Investigator(s) and the Hearing Panel will not require, allow, rely upon, or otherwise use questions or evidence that constitute, or seek disclosure of, information protected under a legally recognized privilege, unless the person holding such privilege has waived the privilege.

Student Complainant Rights
For any student Complainant, there may be additional rights and considerations, such as the Alcohol/Drug Amnesty Policy, afforded them through the NY state law, the Student Handbook, and other relevant policies. Any such right and considerations will be communicated to the student Complainant at the onset of the process by the Title IX Coordinator.

Appeal Process

Both parties can appeal, in writing, the determination as well as an earlier dismissal of a Formal Complaint or any allegations therein, within 5 business days of the relevant determination, on the following bases:

1. Procedural irregularity that affected the outcome of the matter; and/or
2. New evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made, that could affect the outcome of the matter; and/or
3. The Title IX Coordinator, investigator(s), or a hearing panelist had a conflict of interest or bias for or against complainants or respondents generally or the individual Complainant or Respondent that affected the outcome of the matter.
4. Sanctions are disproportionate to the nature or severity of the violation or violations, taking into account the totality of the circumstances.

To File an Appeal:

• Submit a written appeal within five (5) business days of the written outcome being made available to the Title IX Coordinator, Hearing Administrator, or designee.
• Written appeals will be submitted to the other party for their response, which must be submitted within two (2) business days.

To Respond to an Appeal:

• Parties will be notified of the other party’s appeal once it has been received by the Title IX Coordinator or designee.
• All parties will have access to all the written appeals and responses submitted by all parties after the submission deadlines have ended.

If an appeal is filed, the Hearing Administrator will notify the other party in writing when an appeal is filed and implement appeal procedures equally for both parties. An Appeal Panel will be convened, consisting of Dean of Faculty and another panelist. The Appeal Panelists will not include any of the Hearing Panel from the hearing nor the investigator or Title IX Coordinator.

 If a party submits an appeal, the other party will have an opportunity to submit a response as provided for above. That response will be shared with the party who appealed but will not be subject to an additional response. After review, the Appeals Panel will issue a written decision describing the result of the appeal and the rationale for the result, providing the written decision simultaneously to both parties.

The Appeal Panel will review the appeal and render adecision within 10 business days after receiving the written appeal and any responses from the Hearing Administrator, or as soon as practicable thereafter. The decision of the Appeal Panel is final, subject to any further proceedings ordered by the Appeal Panel.

Nothing in this Policy is intended to limit the rights that Faculty have under the Faculty Handbook.

In the event that an appeal is filed to contest the dismissal of a Formal Complaint or any allegations therein, the Appeal Panel or appropriate official(s) may uphold the dismissal or direct the reinstatement of the Formal Complaint or one or more allegations therein. 

 

XIII. Liability Information for Employees

Skidmore College provides liability protection for employees for their work on behalf of the College, including their work as a panelist, investigator, advisor, advocate, or other relevant role throughout the Title IX process.  The liability insurance provided is the Educators' Legal Liability and General Liability policies. The Educators’ Legal Liability protects against claims for “wrongful acts”, such as harassment or discrimination. General Liability insurance protects against claims for bodily injury or property damage. Both policies are placed with United Educators.

For more information, please contact the Office of Risk Management at 518-580-5812.

 

XIV. Services and Resources

On-Campus Resources

• Title IX Coordinator
  Joel Aure: 518-580-5708
• Campus Safety: 518-580-5566
• Associate Dean of the Faculty for Diversity and Faculty Affairs
  Janet Casey: 518 580-5705
• Interim Director of Human Resources
  Sarah Delaney Vero: 518-580-5800

*indicates availability 24 hours a day/7 days a week

Off-Campus Confidential Reporting Sources

• Employee Assistance Program
  518-793-9768
• Wellspring Advocate (Confidential, Not affiliated with Skidmore College)
  A victim advocate from Wellspring (formerly Domestic Violence and Rape Crisis Services of Saratoga County) is on campus and accessible to individuals during set times
  • See https://www.skidmore.edu/sgbm/key-resources.php for exact times and contact information.
• *Saratoga Hospital Emergency Room: 518-583-8313
• Saratoga Planned Parenthood/Schenectady Planned Parenthood: 518-584-0041 or 518-374-5353
• *NYS Sexual Violence Hotline:
  • English: 1-800-942-6906
  • Spanish: 1-800-942-6908
  • English TTY: 1-800-818-0656
  • Spanish TTY: 1-800-780-7660

Off-Campus Reporting Sources

• *Saratoga Springs Police Department: 518-584-1800
• *New York State Police Hotline: 1-844-845-7269 (dedicated 24-hour hotline for sexual assaults occurring on a New York State college campus)
• Office of Civil Rights
  New York Office
  Office for Civil Rights
  U.S. Department of Education
  32 Old Slip, 26th Floor New York, NY 10005-2500
  Telephone: 646-428-3900
  FAX: 646-428-3843
  TDD: 800-877-8339
  Email: OCR.NewYork@ed.gov

*indicates availability 24 hours a day/7 days a week

Policy revised in August 2020.