Fair Grievance Process Hearing
The Title IX grievance process includes the investigation and the following.
Notice of Complaint, Advisor, Evidence, and Supportive Measures
Ohlone will give both parties written notice of the allegations upon Ohlone receiving a Title IX formal complaint, an equal opportunity to select an advisor of the party’s choice, (who may be, but is not required to be, an attorney), and an equal opportunity to submit and review evidence throughout the investigation. Ohlone will discuss and offer supportive measures to each party. Additional details for the notice and these items are covered in the summary of the investigation here: (State law claims have similar requirements summarized at those links).
Objective Evaluation of Evidence by Trained Person
Ohlone will use trained Title IX personnel to objectively evaluate all relevant evidence, inculpatory and exculpatory, without prejudgment of the facts at issue and free from conflicts of interest or bias for or against either party. The evaluator will avoid credibility determinations based on a person’s status as a complainant, respondent, or witness.
Privacy and Consents
Ohlone will protect each party’s privacy by requiring a party’s voluntary, written consent before accessing, considering, disclosing, or using the party’s medical, psychiatric, psychological, or similar treatment records that are made or maintained in connection with providing treatment to a party.
Written Consent for Informal Process
Ohlone will obtain the parties’ voluntary, written consent before using any kind of “informal resolution” process, such as mediation or restorative justice. (See Item B. above on this webpage).
Reasonably Prompt Timeframes
Ohlone provides for reasonably prompt time frames for each step of the process.
Presumption of Innocence
Ohlone will apply a presumption that the respondent is not responsible during the grievance process, requiring that Ohlone bear the burden of proof and ensure that standard of evidence is applied correctly. It is presumed that the respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process.
Clear and Convincing Evidence Standard
Ohlone will use a clear and convincing evidence standard for formal Title IX complaints against students and against employees, including faculty. This same standard of evidence will be applied to all Title IX formal complaints of sexual harassment. This standard means a fact is highly probable to be true, such as it is highly probable that sexual harassment or sexual violence occurred. One court summarized this standard as: “Clear and convincing evidence requires greater proof than preponderance of the evidence. To meet this higher standard, a party must present sufficient evidence to produce “in the ultimate factfinder an abiding conviction that the truth of its factual contentions are [sic] highly probable.” Sophanthavong v. Palmateer, 378 F.3d 859, 866-67 (9th Cir. 2004).] (If the complaint does not meet Title IX requirements or if the complaint also meets the state law definition of sexual harassment or misconduct, Ohlone will use a preponderance of the evidence standard. The preponderance of the evidence standard is met if Ohlone determines that it is more likely than not that the alleged misconduct occurred, based on the facts available at the time of the decision. Educ. Code 67386(a)(3) and 66281.8(b)(4)(A)(ix).)
Separate decision maker
Ohlone will use a decision-maker(s) who is not the same person(s) as the investigator or the Title IX Coordinator.
Consolidation of Formal Complaints
Ohlone may consolidate formal complaints as to allegations of sexual harassment against more than one respondent, or by more than one complainant against one or more respondents, or by one party against the other party, where the allegations of sexual harassment arise out of the same or similar facts or circumstances. Where a grievance process involves more than one complainant or more than one respondent, references in this section to the singular “party,” “complainant,” or “respondent” include the plural, as applicable. Ohlone may consolidate investigations, hearings, and processes involving the same parties or involving the same or similar facts or circumstances.
Live Hearing and Cross-Examination
Ohlone will hold a live hearing on a Title IX formal complaint and allow cross examination by each party’s adviser, but not by the parties personally. (For a state law proceeding, Ohlone decides whether a hearing is necessary to determine whether any sexual violence more likely than not occurred. In making this decision, Ohlone may consider whether the parties elected to participate in the investigation and whether each party had the opportunity to suggest questions to be asked of the other party or witnesses, or both, during the investigation. In a state proceeding, Ohlone prohibits questions of either party or of any witness that are repetitive, irrelevant, or harassing. Educ. Code § 66281.8(b)(4)(A)(vii-viii).)
- At the live hearing, the decision-maker(s) 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.
- 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. (Note: For a state law proceeding, state law states a party’s advisor cannot conduct cross-examination of either party or a witness. Educ. Code § 66281.8(b)(4)(A)(viii)(I).)
- At the request of either party, Ohlone will provide for the entire live hearing (including cross-examination) to occur with the parties located in separate rooms with technology enabling the decision-maker and parties to simultaneously see and hear each other and the person answering questions. (Note: For a state law proceeding, state law states either party or any witness may request to answer the questions by video from a remote location. Educ. Code § 66281.8(b)(4)(A)(viii)(II).)
- Only relevant cross-examination and other questions may be asked of a party or witness.
- A party may object to a question as lacking relevance.
- The decision-maker may also question relevance of any question.
- Before a complainant, respondent, or witness answers a cross-examination or other question, the decision-maker must first determine whether the question is relevant and explain to the party’s advisor asking questions any decision to exclude a question as not relevant.
- Note: For a state law proceeding:
- Student parties shall have the opportunity to submit written questions to the hearing officer in advance of the hearing. At the hearing, the other party shall have an opportunity to note an objection to the questions posed. Ohlone may limit such objections to written form, and neither the hearing officer nor Ohlone are obligated to respond, other than to include any objection in the record. The hearing officer shall have the authority and obligation to discard or rephrase any question that the hearing officer deems to be repetitive, irrelevant, or harassing. In making these determinations, the hearing officer is not bound by, but may take guidance from, the formal rules of evidence.
- Student Sexual Misconduct Not Subject to Title IX (Live Hearing and Indirect Cross-examination)
- In cases of student sexual misconduct that are not subject to Title IX, when an accused student is subject to severe disciplinary sanctions, and the credibility of witnesses was central to the investigative findings, Ohlone student discipline procedures must provide the following:
- (1) An opportunity for the accused student to cross-examine witnesses indirectly at a live hearing, either in person or by videoconference; and
- (2) A live hearing conducted by a neutral decision-maker other than the investigator.
- “Indirect” cross-examination shall be conducted as follows:
- (1) Any question to the witness shall be asked by a neutral party appointed by the district for the sole purpose of asking questions. The neutral party shall not be the accused student, the accused student’s representative, or a member of the hearing panel; and
- (2) The accused student may submit written questions before and during the cross-examination, including any follow-up questions. The neutral party asking questions shall not exclude any questions unless there is an objection to the question by the hearing panel. Nothing in 5 CCR § 59337 shall prohibit a district from providing a live hearing or neutral decision-maker for other student discipline proceedings, including for other forms of discrimination. Authority: Cal. Code Regs., tit. 5, § 59337.
- In cases of student sexual misconduct that are not subject to Title IX, when an accused student is subject to severe disciplinary sanctions, and the credibility of witnesses was central to the investigative findings, Ohlone student discipline procedures must provide the following:
- Generally, the parties may not introduce evidence, including witness testimony, at the hearing that the party did not identify during the investigation and that was available at the time of the investigation.
- However, the hearing officer has discretion to accept for good cause, or exclude, such new evidence offered at the hearing. (Educ. Code § 66281.8(b)(4)(A)(viii)(III-IV).)
- If a party does not have an advisor present at the live Title IX hearing, Ohlone will provide, without fee or charge to that party, an advisor of Ohlone’s choice who may be, but is not required to be, an attorney to conduct cross-examination on behalf of that party.
- If a party or witness does not submit to cross-examination at the live hearing, the decision-maker(s) must not rely on any statement of that party or witness in reaching a determination regarding responsibility; provided, however, that the decision-maker(s) cannot 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 Ohlone’s discretion, any or all parties, witnesses, and other participants may appear at the live hearing virtually with technology enabling the participants to simultaneously see and hear each other.
- Ohlone will create an audio or audiovisual recording, or a transcript, of any live hearing and will make it available to the parties to inspect and review.
Limits on Prior Sexual History (Rape Shield Protection)
a. For Title IX proceedings, Ohlone will protect all complainants from being inappropriately asked about the complainant’s sexual predisposition or prior sexual history or behavior because such questions and evidence are not relevant, unless offered to prove that someone other than the respondent committed the alleged misconduct or unless concerning specific incidents of the complainant’s prior sexual behavior with respondent and are being offered to prove consent.
b. For state law proceedings:
(I) The investigator or hearing office shall not consider the past sexual history of a complainant or respondent except in the limited circumstances permitted by this clause.
(II) The investigator or hearing officer shall not consider prior or subsequent sexual history between the complainant and anyone other than the respondent for any reason unless directly relevant to prove that physical injuries alleged to have been inflicted by the respondent were inflicted by another individual.
(III) (ia) The investigator or hearing officer shall not consider the existence of a dating relationship or prior or subsequent consensual sexual relations between the complainant and the respondent unless the evidence is relevant to how the parties communicated consent in prior or subsequent consensual sexual relations.
(ib) Where the investigator or hearing officer allows consideration of evidence about a dating relationship or prior or subsequent consensual sexual relations between the complainant and the respondent pursuant to sub- subclause (ia), the mere fact that the complainant and respondent engaged in other consensual sexual relations with one another is never sufficient, by itself, to establish that the conduct in question was consensual.
(IV) Before allowing the consideration of any evidence proffered pursuant to this subdivision, the investigator or hearing officer shall provide a written explanation to the parties as to why consideration of the evidence is consistent with this clause. (Educ. Code § 66281.8(b)(4)(A)(vi).)
Ohlone’s grievance process will not require, allow, use or rely on 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. A party is to object to any questions seeking privileged information and to any attempted use of privileged documents to alert the decision-maker to the claim of privilege, so the decision-maker can consider and rule on the objection.
The decision-maker will issue a written decision regarding responsibility using the standard of clear and convincing evidence for a Title IX formal complaint. (If the complaint does not meet Title IX requirements or if the complaint also meets the state law definition of sexual harassment or misconduct, Ohlone will use a preponderance of the evidence standard. Educ. Code 67386(a)(3).) The written determination must include:
(A) Identification of the allegations potentially constituting sexual harassment as defined in 34 CFR § 106.30;
(B) 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;
(C) Findings of fact supporting the determination;
(D) Conclusions regarding the application of Ohlone’s code of conduct to the facts;
(E) A statement of, and rationale for, (1) the result as to each allegation, including a determination regarding responsibility (conclusions about whether the alleged conduct occurred and the rationale for the result as to each allegation to explain how and why the decision-maker reached conclusions), (2) any disciplinary sanctions Ohlone will impose on the respondent, and (3) whether remedies designed to restore or preserve equal access to Ohlone’s education program or activity will be provided by Ohlone to the complainant; and
(F) Ohlone’s procedures and permissible bases for the complainant and respondent to appeal.
Ohlone or the decision-maker will send the parties the written determination simultaneously, along with information about how to file an appeal.
The decision-maker’s determination regarding responsibility becomes final either:
- if an appeal is filed, on the date that Ohlone provides the parties with the written determination of the result of the appeal, or
- if an appeal is not filed, the date on which an appeal would no longer be considered timely.
For State law proceedings:
- State law provides for a grievance procedure that provides for prompt and equitable resolution of sexual harassment complaints filed by a student against an employee or another student. The state grievance procedure includes the investigation and adjudication of alleged misconduct, which is not an adversarial process between the complainant, the respondent, and the witnesses, but rather is a process for a college to comply with their obligations under existing law. The complainant does not have the burden to prove, nor does the respondent have the burden to disprove, the underlying allegation(s) of misconduct. (Educ. Code § 66281.8(b)(4)(A).)
- The process includes reasonable and equitable evidentiary guidelines, and may include page or word limitations on party submissions. (Educ. Code § 66281.8(b)(4)(A)(v).)
- Under the state law, Ohlone does not have to provide separate grievance procedures for student sexual harassment complaints, but may use student disciplinary procedures or other separate procedures to resolve sexual harassment complaints. Any procedures used to investigate complaints of sexual harassment, including disciplinary procedures, shall afford a complainant and a respondent a prompt and equitable resolution. If Ohlone relies on existing procedures, the Title IX officer or designated employee shall review procedures to ensure that they comply with the requirements. Educ. Code § 66281.8(c).
- If on or after the date of implementation, any provision of the act that adds this section 66281.8 conflicts with federal law, that state provision shall be rendered inoperative for the duration of the conflict and without affecting the whole. Educ. Code § 66281.8(f).
- Any case law interpreting procedural requirements or process that is due to student complainants or respondents when adjudicating complaints of sexual or gender-based violence, including dating or domestic violence, at postsecondary educational institutions in the State of California shall have no retroactive effect, and any case law that conflicts with the provisions of the act that adds this section 66281.8 shall be superseded as of this statute’s effective date of 1/1/2021. Educ. Code § 66281.8(g)(1-2).
- Ohlone will provide written notice to the parties of the outcome of the complaint, including whether a policy violation was found to have occurred, the basis for that determination, including factual findings, and any discipline imposed. Ohlone will provide assurance that Ohlone will take steps to prevent recurrence of any harassment and to correct its discriminatory effects on the complainant and others, if appropriate. Educ Code § 66281.8(b)(4)(A)(xiv-xv).
Remedies and Disciplinary Sanctions
a. Ohlone will effectively implement remedies for a complainant if a respondent is found responsible for sexual harassment.
i. The Title IX Coordinator is responsible for effective implementation of any remedies.
ii. Remedies must be designed to maintain or restore the complainant’s equal access to the education program or activity and may include supportive measures. However, remedies after a respondent is found responsible need not be non-disciplinary or non-punitive and need not avoid burdening the respondent.
iii. Possible remedies Ohlone may provide a complainant include: changes in classes, changes in on-campus work location or schedule, counseling, no-contact and/or stay-away directives issued to respondent, academic support (e.g., tutoring), review and revision of policies, increased monitoring, supervision or security at locations where sexual misconduct is reported to occur, and increased education and prevention efforts, including to targeted populations, and any other supportive measures being implemented or continued.
b. Possible disciplinary sanctions Ohlone might impose on a respondent, following a determination of responsibility include: any sanction authorized by law or listed in the Student Code of Conduct, including but not limited to removal from class for the day of the removal and the next class meeting in accordance with California Education Code Section 76032, written or verbal reprimand, probation with loss of privileges, probation without loss of privileges, restitution, withdrawal of consent to remain on campus, short-term or long-term suspension, and expulsion.
Ohlone will treat complainants equitably by providing remedies any time a respondent is found responsible, and treat respondents equitably by not imposing disciplinary sanctions or other actions that are not supportive measures, without following the grievance process.
Ohlone will offer both parties an equal opportunity to appeal (A) from a decision-maker’s determination regarding responsibility and (B) from Ohlone’s dismissal of a Title IX formal complaint or any allegations therein. (See Item B. above on this webpage regarding Dismissal).
a. Information on how either party may file an appeal will be sent with the written decision. (State law also allows either party to appeal the outcome of the grievance proceeding. Ohlone’s grievance procedure limits the grounds for an appeal to the same appeal grounds or bases as for a Title IX appeal. This limitation applies equally to all parties. The nonappealing party shall have an opportunity to respond to the appeal. Educ. Code § 66281.8(b)(4)(A)(xx).)
b. The appeal must be in writing, must describe the basis for the appeal, and must be received by email or hand delivery by the Title IX Coordinator, the other parties, and the hearing decision-maker by 5 p.m. on the 7th day after Ohlone or the hearing decision-maker emails the written decision to the parties (or after the date of the Dismissal Notice).
c. Ohlone will offer each party an appeal from a determination regarding responsibility, and the dismissal of a formal complaint or any allegations therein, on the following bases for an appeal: (1) procedural irregularity that affected the outcome of the matter, (2) newly discovered evidence that was not reasonably available at the time the determination of responsibility or dismissal was made and that could affect the outcome of the matter, and/or (3) Title IX personnel (Coordinator, investigator, or decision-maker) 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.
d. As to all appeals, Ohlone will:
(1) Notify the other party in writing when an appeal is filed and implement appeal procedures equally for both parties;
(2) Ensure that the decision-maker(s) for the appeal is not the same person as the decision-maker(s) that reached the determination regarding responsibility or dismissal, the investigator(s), or the Title IX Coordinator;
(3) Ensure that the decision-maker(s) for the appeal complies with the standards set forth in 34 CFR 106.45(b)(1)(iii) [not have a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent and also have received required training];
(4) Give both parties a reasonable, equal opportunity to submit a written statement (brief or letter) in support of, or challenging, the outcome. The written brief or letter may be provided or filed by email by the deadline to the Title IX Coordinator, the appealing party(ies), and the appeal decision-maker. (The written brief or letter is also required to be mailed to each of these, but does not have to be received by the deadline so long as the emailed brief or letter is received by the deadline).
(5) Issue a written decision describing the result of the appeal and the rationale for the result; and
(6) Provide the written decision simultaneously to both parties.
e. The appeal will be decided by the administrator assigned by the President, and will be based on and limited to a review of the decision-maker’s decision, the recording or transcript of the grievance hearing, and exhibits (documents, photos, videos, and similar evidence) that were admitted at the grievance hearing before the decision-maker, unless the appealing party alleges that newly discovered evidence exists that was not reasonably available at the time the determination of responsibility or dismissal was made and that could affect the outcome of the matter, and the appeal decision-maker finds that ground valid, in which case the appeal decision-maker can consider the newly discovered evidence that was not reasonably available at the time the determination of responsibility or dismissal was made and the appeal decision-maker can determine whether that newly discovered evidence affects the outcome of the matter on appeal.
Ohlone will protect any individual, (including complainants, respondents, and witnesses), from retaliation for reporting sexual harassment or participating (or refusing to participate) in any Title IX grievance process as follows. Ohlone will not take action against an individual who refuses to participate or testify in an investigation, proceeding, or hearing. (34 CFR 106.71(a).)
a. It is unlawful for Ohlone or a person to intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX, or because the individual has made a report or complaint, testified, assisted, or participated, or refused to participate in any manner in a Title IX investigation, proceeding, or hearing.
b. Retaliation includes intimidation, threats, coercion, or discrimination, including charges against an individual for code of conduct 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, for the purpose of interfering with any right or privilege secured by Title IX or 34 CFR Part 106.
c. Ohlone must 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 FERPA statute, 20 U.S.C. 1232g, or FERPA regulations, 34 CFR part 99, or as required by law, or to carry out the purposes of 34 CFR Part 106, including the conduct of any investigation, hearing, or judicial proceeding arising thereunder.
d. Complaints alleging retaliation may be filed according to Ohlone’s prompt and equitable grievance procedures for sex discrimination or harassment (the process summarized in this list on this webpage).
e. The exercise of rights protected under the First Amendment does not constitute retaliation.
f. Charging an individual with a code of conduct violation for making a materially false statement in bad faith in the course of a Title IX grievance proceeding does not constitute retaliation; however, a determination regarding responsibility, alone, is not sufficient to conclude that any party made a materially false statement in bad faith.
g. State Non-Retaliation Protection: Under California law, an individual who participates as a complainant or witness in an investigation of an incident of sexual harassment, sexual assault, domestic violence, dating violence, or stalking will not be subject to disciplinary sanctions for a violation of Ohlone’s student conduct policy at or near the time of the incident, unless Ohlone determines that the violation was egregious, including, but not limited to, an action that places the health or safety of any other person at risk or involves plagiarism, cheating, or academic dishonesty. (Educ. Code 67386(b)(10) and 66281.8(b)(3)(A).)
Ohlone will document and keep records of all sexual harassment reports, investigations, and documents for seven years.
Ohlone must maintain for a period of seven years records of:
(A) Each sexual harassment investigation including:
- any determination regarding responsibility,
- any audio or audiovisual recording or transcript for the fair grievance process hearing,
- any disciplinary sanctions imposed on the respondent, and
- any remedies provided to the complainant designed to restore or preserve equal access to Ohlone’s education program or activity;
(B) Any appeal and the result therefrom;
(C) Any informal resolution and the result therefrom; and
(D) All materials used to train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process. Ohlone will make these training materials publicly available on its website.
For each response to sexual harassment required under 34 CFR § 106.44, Ohlone must create, and maintain for a period of seven years:
- Records of any actions, including any supportive measures, taken in response to a report or formal complaint of sexual harassment. In each instance, Ohlone must:
- document the basis for its conclusion that its response was not deliberately indifferent, and
- document that it has taken measures designed to restore or preserve equal access to Ohlone’s education program or activity.
- If Ohlone does not provide a complainant with supportive measures, then Ohlone must document the reasons why such a response was not clearly unreasonable in light of the known circumstances.
- The documentation of certain bases or measures does not limit Ohlone in the future from providing additional explanations or detailing additional measures taken.