University of Massachusetts Amherst, Title IX Policy Hearing Procedures

Rev. November 30, 2022

These Hearing Procedures (“Procedures”) govern the hearing process for the formal resolution of Formal Complaints of Sexual Harassment, as set forth in the university’s Title IX Policy and Grievance Procedures (“Policy”). These Procedures apply to Hearings convened per the Policy when the parties were unable to reach an Informal Resolution per Policy Sec. XIII.A. Informal Resolution and the Formal Complaint was not dismissed by the university.

I. PRE-HEARING STEPS:

A. Selection of Hearing Panel:

The hearing will be presided over by a Hearing Panel selected by the university.

1. The university’s Hearing Panel is comprised of three individuals; two hearing panelists and a presiding Hearing Chair.
    
2. The Hearing Chair is responsible for the orderly presentation of evidence and testimony by parties and witnesses. The Chair will determine the relevance of questions and explain to the party’s advisor asking cross-examination questions any decision to exclude a question as not relevant.
    
3. Hearing Chairs and Panelists receive annual training regarding the university’s policies and procedures; the handling of sexual misconduct cases; how to conduct a hearing; issues of relevance, including when questions and evidence about the Complainant’s sexual predisposition or prior sexual behavior are not relevant; how to serve impartially by, among other things, avoiding prejudgment of the facts at issue, conflicts of interest, and bias; and other relevant issues.
    
4. The Hearing Panel will be impartial and free from actual bias or conflict of interest. The Title IX Coordinator will provide the parties with the name of the Hearing Panel no later than ten (10) business days in advance of the hearing.
    
5. Objections to the Hearing Panel must be raised in writing, detailing the rationale for the objection, and must be submitted to the Title IX Coordinator as soon as possible and no later than two business days prior to the hearing.
    
6. The Title IX Coordinator will give the Hearing Panel a list of the names of all parties, witnesses, and advisors in advance of the hearing. The Hearing Panel will notify the Title IX Coordinator of potential bias or conflict of interest.

B. Designation of Procedural Advisor:

Each Hearing Panel will be assigned a Procedural Advisor(s) who will support the Hearing Panel, facilitate the live hearings, and ensure the hearing procedures are followed. The Procedural Advisor (s) will be present at the live hearing. In addition, the Procedural Advisor will be available to the Panel, at their request, to assist in addressing any procedural questions that may arise during any pre-hearing conferences and during their deliberations. The Procedural Advisor (s) will not participate in the evaluation of information and/or the determination of a finding.

C. Notice of Hearing:

The university will provide the Respondent(s), Complainant(s), identified advisor(s), and witness(es) written notification of the hearing at least ten (10) business days prior to the date of the hearing.

1. The written notification will contain the following information:

          a.   The specific alleged policy violation(s),
          b.   the investigative report,
          c.   the time, place, and manner of the hearing,
          d.   the Title IX Hearing Panel procedures,
          e.   a deadline for parties to identify an advisor,
          f.   notification that if a party does not identify an advisor for the hearing, that the university will provide a party with an advisor to conduct cross-examination.

D. Witnesses:

The Hearing Panel will identify any witnesses that they wish to hear from at the hearing based on a review of the Final Investigative Report.

1. The Complainant and Respondent may each request the presence of any additional witnesses at the hearing, which will be determined based on relevance by the Hearing Panel.
    
2. The university cannot compel the attendance of any witness. Typically, only witnesses who were identified and interviewed as part of the investigation may be called at the hearing.
    
3. Under very limited circumstances, the Complainant, Respondent or Hearing Panel may identify a witness with relevant information who has not previously been interviewed. In such a case, the Hearing Panel will determine whether the new witness’s participation at the hearing is relevant and appropriate under the circumstances and if so, may allow the witness to participate in the hearing or refer the matter to the Investigator for additional investigation.

E. Identification of Hearing Advisor.

Parties may have one advisor for all matters leading up to a hearing and a different advisor for the hearing, but no more than one advisor per party may attend the hearing. Irrespective of whether a party plans to change advisors for the hearing or retain the same advisor, all parties must inform the Title IX Coordinator at least two (2) business days before the hearing who the party’s advisor at the hearing will be. If a party does not have an advisor for the hearing, the Title IX Coordinator will appoint an advisor for the hearing, at no cost to the party, to ask cross-examination questions on behalf of the party.

F. Pre-Hearing Procedures.

The Hearing Panel and/or Title IX Coordinator may establish additional pre-hearing procedures relating to issues such as scheduling, hearing procedures, structure, advance determination of the relevance of certain topics, and other procedural matters. The Hearing Panel will communicate with the parties prior to the hearing with respect to these issues and establish reasonable, equitable deadlines for party participation/input.

1. The Hearing Panel may invite the parties to submit the questions or topics the parties wish to ask or discuss at the hearing so that the Hearing Panel can rule on their relevance ahead of time. This advance review opportunity does not preclude advisors from asking a question for the first time at the hearing or from asking for a reconsideration based on any new information or testimony offered at the hearing.
    
2. The Hearing Panel may rule on these arguments pre-hearing and will share those rulings with the parties prior to the hearing to assist in preparation for the hearing. The Hearing Panel may consult with the Title IX Coordinator in making these determinations prior to the hearing.

G. Request to Postpone Hearing:

Permission to postpone a hearing may be granted provided that the request to do so is based on a compelling emergency and, where possible, such request is provided to the Hearing Panel and Title IX Coordinator at least 48 hours prior to the time of the hearing.

1. For rescheduled hearings, the ten (10) business day notice is not required.

II. PROCEDURE ON HEARING PROCEEDINGS

A. Allowed Parties:

Hearings under these Procedures will be open only to the Complaint(s), Reporting Party(ies), Respondent(s), Hearing Panel, Witness(es), Advisor(s) and Procedural Advisor(s). Others will be permitted at the discretion of the Title IX Hearing Panel in consultation with the Procedural Advisor(s).

B. Location of Hearing – Virtual Participation:

The university may conduct live in-person hearings or live virtual hearings via university technology infrastructure.

1. The hearing may be conducted with all parties physically present in the same geographic location. i.e. conference rooms or other physical space that can house the Hearing Panel, procedural advisor, parties, advisors, and witnesses. 
   
    a.    At the advanced request of either the respondent or complainant, the hearing will occur with parties located in a separate geographic location with technology enabling participants simultaneously to see and hear each other.
    
2. The hearing may be conducted virtually, where parties, witnesses and other participants will appear at the hearing virtually with technology enabling participants simultaneously to see and hear each other.

C. Hearing Guidelines: Decorum

The Hearing Panel has wide discretion over matters of decorum at the hearing, including the authority to excuse from the hearing process participants who are unwilling to observe rules of decorum.

1. If a party’s advisor does not abide by the university’s rules of decorum (including, but not limited to, those listed below), the advisor may be subject to removal and the university will appoint a new advisor for a party for the remainder of the hearing.
    
2. The parties and their advisors will remain seated at all times during the hearing, including during cross-examination.
    
3. The following behaviors will not be tolerated during the hearing:
   
    a.    yelling, verbal abuse, disruptive behavior, interrupting or talking over one another, name-calling, or using profane or vulgar language (except where such language is relevant).
    
4. Any participant in the hearing who is not currently involved in questioning should refrain from disrupting the hearing, making gestures, facial expressions, audible comments, or the like, as manifestations of approval or disapproval during any testimony.
    
5. When cross-examining a party or witness, advisors shall not repeat, characterize, express an opinion about, editorialize, or otherwise state any response to the answer given by the party or witness except to ask a follow-up question to elicit relevant evidence.

D. Advisors:

While the advisor may be present, the advisor may not speak or otherwise participate in the hearing except for purposes of conducting cross-examination when directed to do so by the Hearing Panel. Other than cross-examination, the advisor may not address the Hearing Panel and must comport themselves in a manner that is not disruptive to the hearing or meetings.

E. Presence and Participation at Hearing:

1. If any party or witness fails to appear at the hearing after proper notice, the hearing may proceed in their absence.
    
2. Any party or witness may choose not to offer evidence and/or answer questions at the hearing, either because they did not attend the hearing or because they attended but refused to participate in some or all of the questioning.
    
3. The Hearing Panel can only rely on whatever relevant evidence is available through the investigation and hearing in making the ultimate determination of responsibility. The Hearing Panel may not draw any inference solely from a party’s or witness’s absence from the hearing or refusal to submit to cross-examination or answer other questions.
    
4. The Complainant or Respondent is not required to participate in person at the hearing in order for the hearing to proceed.
    
5. A Complainant or Respondent may request alternative testimony options that would not require physical proximity to the other party, including testifying via a remote electronic method. This request should be made no fewer than five business days prior to the hearing.
    
6. If, despite being notified of the date, time, manner, and location of the hearing, the Respondent or Complainant is not in attendance, the hearing will proceed. In doing so, the Hearing Panel will consider the available testimony and evidence. In the absence of clear evidence that emergency circumstances beyond the control of the Complainant or Respondent prevented such person from being present, the final determination of the Hearing Panel will stand.
    
7. If a party or witness participates in the hearing and answers questions posed by a party through their advisor but refuses to answer questions posed by the Hearing Panel, the Hearing Panel can still rely on that party’s or witness’s statements when making their determination.
    
8. “Statements” for purposes of this section means factual assertions made by a party or witness that do not themselves constitute the alleged harassment. Statements might include factual assertions made during an interview or conversation, written by the individual making the assertions (including those found in a Formal Complaint), and memorialized in the writing of another (e.g. in an investigative report, police report, or medical record).
    
9. If a party does not appear for the hearing, their advisor may still appear for the purpose of asking cross-examination questions of the other party and witnesses. If the non-participating party’s selected advisor also does not appear for the hearing, the university will appoint an advisor to participate in the hearing for the purpose of asking cross-examination questions of the other party on behalf of the non- participating party.

F: Hearing Format:

The Hearing Panel has wide discretion to designate the hearing format.

1. Subject to the discretion of the Hearing Panel, hearings will ordinarily begin with introductory remarks by the Hearing Panel, followed by the Hearing Panel asking relevant initial questions of the parties as deemed appropriate by the Hearing Panel.
   
   a.    During this portion of the hearing, an advisor may confer privately and in a non-disruptive manner with their advisee, but they are not allowed to make opening statements or otherwise address the Hearing Panel or anyone else present at the hearing.
    
2. After the Hearing Panel has asked their initial questions of the parties, the Hearing Panel will permit each party’s advisor to ask the other party relevant questions and follow-up questions. The Hearing Panel may ask follow-up questions as necessary.
    
3. Subject to the discretion of the Hearing Panel, questioning of witnesses will generally follow a similar process.
    
4. Cross-examination of the parties and witnesses by advisors will be conducted directly, orally, and in real-time by the party’s advisor of choice and never by the party personally.
    
5. The Hearing Panel may order a break or recess at any time during the hearing for a variety of reasons including, but not limited to, to confer as a panel or to allow either party time to confer with their advisor, and/or to examine the evidence.

G. Questioning at the Hearing.

The parties’ advisors, and not the parties themselves, will be permitted to ask the other party and any witnesses relevant questions and follow-up questions. The questioning will be conducted directly, orally, and in real-time by the advisor. If a party does not have an advisor present at the hearing, the university will provide, without fee or charge, an advisor of the university’s choice to conduct the cross- examination questioning on behalf of that party.

H. Relevance.

Only relevant cross-examination and other questions may be asked of a party or witness. Before a Complainant, Respondent, or witness answers a cross-examination or other question; the Hearing Chair will first determine whether the question is relevant and explain any decision to exclude a question as not relevant. Advisors are not permitted to object to the Hearing Chair’s decisions regarding relevance during a hearing. In general, the Hearing Panel will not consider statements of personal opinion or statements as to any party’s general reputation for any character trait as relevant.

I. Prior Sexual History or Disposition.

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: 1) prove that someone other than the respondent committed the conduct alleged by the complainant; or 2) if the questions and evidence concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent.

J. Hearing Record:

A recording of the hearing will be made by the University and the recording will be made available to both parties. All other recordings or streaming are prohibited and would be adjudicated in accordance with other applicable University policies and regulations.

III. POST-HEARING PROCESS

A. Deliberations and Determination Regarding Responsibility.

After the hearing, the Hearing Panel deliberates and determines by the preponderance of the evidence as to whether the Respondent(s) violated the Policy. The Hearing Panel will create a written determination that includes:

1. identification of the allegations constituting sexual harassment as defined by the Policy,
    
2. a description of 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. finding of facts supporting the determination;
    
4. conclusions regarding the application of the Policy to the facts; and
    
5. a statement of, and rationale for, the result as to each allegation., including a determination regarding responsibility, any disciplinary sanctions the university imposes on a respondent, and a statement as to whether remedies are designed to restore or preserve equal access to the University’s education program or activity will be provided to the Complainant, and the procedures, deadlines, and permissible bases for the Complainant and Respondent to appeal this determination.

B. Sanctions:

If the Hearing Panel determines that the Respondent is responsible for violating the Policy, the Hearing Panel will review its drafted determination and will consult with the relevant Disciplinary Authority, i.e. university administrator(s) who have appointing or other authority over the Respondent, as to applicable sanctions, if any.

1. University Disciplinary Authorities are as follows:
   
   a.   Staff - Vice Chancellor for Human Resources and Vice Chancellor for the respondent’s administrative area
   b.   Faculty- Provost/Vice Chancellor for Academic Affairs 
   c.   Students- Student Conduct and Community Standards Office
    
2. In determining the appropriate sanction(s) and/or remedies, the Disciplinary Authority may consider a number of factors, including:
   
   a.   the nature of the conduct at issue;
   b.   the impact of the conduct on the Complainant;
   c.   the impact on, or implications of the conduct for, the university community;
   d.   prior misconduct by the Respondent, including the Respondent’s relevant prior discipline history, both at the university or elsewhere, and any criminal convictions, if such information is available and known;
   e.   any expression of remorse or acceptance of responsibility by a Respondent;
   f.   maintenance of a safe and respectful environment conducive to learning;
   g.   protection of the university community;
   h.   the necessity of any specific action in order to eliminate the Sexual Harassment, prevent its recurrence and remedy its effects on the Complainant or other university community members; and, 
   i.    any mitigating, aggravating, or compelling circumstances in order to reach a just and appropriate resolution in each case.
    
3. The Disciplinary Authority may also consider restorative outcomes that, taking into account the safety of the university community as a whole, allow a Respondent to develop insight about their responsibility for the behavior, learn about the impact of the behavior on the Complainant and the community, and identify how to prevent or change the behavior. A combination of sanctions may be issued.
    
4. Sanction(s) for students may include, but are not limited to: restriction(s) from specified University education program or activity, attend required training; and/or University Probation, Suspension Deferred, Suspension, or Expulsion from the University.
    
5. Sanction(s) for employees may include, but are not limited to: restriction from specified University education program or activity, attend required trainings; and/or the application of progressive discipline.

C. Transmittal of Determination.

Regardless of their participation in the Formal Complaint and Hearing process, the Title IX Coordinator will provide the Complainant and Respondent the written notice of outcome issued by the Hearing Panel simultaneously.

D. Imposition of Remedial Measures and Sanctions.

The university will not impose sanctions for student or employee respondents until such time as the Policy’s Appeal process, Section XV, is complete either by operation of filing deadlines or decision by the Appeals Board.

IV. PROCEDURE REVIEW

A.

These procedures are maintained by the Office of Equal Opportunity and Access and the Title IX Coordinator who will periodically review and update these procedures and will evaluate, among other things, any changes in legal requirements.