Title IX Investigations of Formal Complaint
Ohlone will promptly investigate a Title IX formal complaint regardless of whether a complainant reports the concern to the police. Ohlone will not wait for the conclusion of a criminal proceeding and will conduct its own investigation, usually within 240 days.
Ohlone’s investigation will be prompt, thorough, reliable, and impartial, including the opportunity for both parties to present witnesses and other evidence.
Notice, Advisor, and Evidence
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. (For a state law claim, Ohlone will provide the student parties with notice if Ohlone is conducting a formal investigation, which shall include the allegations and the alleged Ohlone policy violations under review. Any new allegations that arise during the course of the investigation that could subject either party to new or additional sanctions shall be subject to the same notice requirements. Educ. Code § 66281.8(b)(4)(A)(xvi). Each student party has the opportunity to have a support person or adviser accompany the student party during any stage of the process. Educ. Code § 66281.8(b)(4)(A)(xvii). Ohlone will advise student parties of their right to consult with an attorney, at their own expense, at any stage of the process if they wish to do so. An attorney may serve as a support person or adviser. Educ. Code § 66281.8(b)(4)(A)(xviii).)
Upon receipt of a formal complaint, Ohlone must provide the following written Notice to the parties who are known:
- Notice of Ohlone’s grievance process, including any informal resolution process. (See Item C. and D. here.
- Notice of the allegations of sexual harassment potentially constituting sexual harassment as defined in 34 CFR § 106.30, including sufficient details known at the time and with sufficient time to prepare a response before any initial interview. Sufficient details include the identities of the parties involved in the incident, if known, the conduct allegedly constituting sexual harassment under 34 CFR § 106.30, and the date and location of the alleged incident, if known.
- The written notice must include a statement that the respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the grievance process hearing.
- The written notice must inform the parties that:
- they may have an advisor of their choice, who may be, but is not required to be, an attorney, under 34 CFR 106.45(b)(5)(iv) and
- may inspect and review evidence under 34 CFR 106.45 (b)(5)(vi).
- If a party does not have an advisor by the time of the live fair grievance process 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. 34 CFR 106.45(b)(6)(i).
- The written notice must inform the parties of any provision in Ohlone’s code of conduct that prohibits knowingly making false statements or knowingly submitting false information during the grievance process. Page 4 of Ohlone’s Code of Conduct prohibits (or allows discipline) for “Knowingly furnishing false information to any College official, faculty member or College office.” This allows discipline for knowingly making false statements or knowingly submitting false information during the Title IX grievance process hearing described on this webpage.
If, in the course of an investigation, Ohlone decides to investigate allegations about the complainant or respondent that are not included in the notice provided pursuant to 34 CFR 106.45(b)(2)(i)(B) [the written notice described above], Ohlone must provide notice of the additional allegations to the parties whose identities are known. (For a state law claim, if any new allegations arise during the course of the investigation that could subject either party to new or additional sanctions, Ohlone will provide the student parties with notice of the allegations and the alleged Ohlone policy violations under review. Educ. Code § 66281.8(b)(4)(A)(xvi).)
Ohlone will discuss and provide supportive measures to complainants and respondents. Supportive measures may include counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, arranging campus escort services, mutual restrictions on contact between the parties, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of the campus, and other similar measures.
(For a state law claim, Ohlone will provide each party with notice of counseling resources Ohlone has developed and maintained for student parties in school misconduct matters involving sexual harassment. Educ. Code § 66281.8(b)(4)(A)(xix).)
When investigating a Title IX formal complaint and throughout the grievance process, Ohlone will:
- Ensure that the burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility rest on Ohlone and not on the parties.
- 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. Educ. Code 67386(a)(3).)
- Ohlone cannot access, consider, disclose, or otherwise use a party’s records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional’s or paraprofessional’s capacity, or assisting in that capacity, and which are made and maintained in connection with the provision of treatment to the party, unless Ohlone obtains that party’s voluntary, written consent to do so for a grievance process under 34 CFR § 106.45.
- (If a party is not an “eligible student,” as defined in 34 CFR 99.3 [Eligible student means a student who has reached 18 years of age or is attending an institution of postsecondary education], then Ohlone must obtain the voluntary, written consent of a “parent,” as defined in 34 CFR 99.3);
- Provide an equal opportunity for the parties to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence;
- Not restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence (No confidentiality admonition can be given. (34 CFR 106.45(b)(5)(iii));
- Provide the parties with the same opportunities to have others present during any grievance proceeding, including the opportunity to be accompanied to any related meeting or proceeding by the advisor of their choice, who may be, but is not required to be, an attorney, and not limit the choice or presence of advisor for either the complainant or respondent in any meeting or grievance proceeding; however, Ohlone may establish restrictions regarding the extent to which the advisor may participate in the proceedings, as long as the restrictions apply equally to both parties;
- Provide, to a party whose participation is invited or expected, 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;
- Provide both parties an 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 Ohlone 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.
- Prior to completion of the investigative report, Ohlone must send to each party and the party’s advisor, if any, the evidence subject to inspection and review in an electronic format or a hard copy, and
- the parties must have at least 10 days to submit a written response,
- the investigator will consider the party’s written response prior to completion of the investigative report.
- Ohlone must make all such evidence subject to the parties’ inspection and review available at any hearing to give each party equal opportunity to refer to such evidence during the hearing, including for purposes of cross-examination; and
- Create an investigative report that fairly summarizes relevant evidence and, at least 10 days prior to a hearing (if a hearing is required under 34 CFR Part 106 or otherwise provided) or other time of determination regarding responsibility, send to each party and the party’s advisor, if any, the investigative report in an electronic format or a hard copy, for their review and written response. To allow the parties 10 calendar days to submit a written response to the preliminary investigation report, which the investigator then needs to consider before completing the investigation report, the investigator will usually provide the preliminary investigation report to the parties between 60 and 70 days after the investigation starts.
Investigation Under State Law
Regardless of whether or not a complaint has been filed under Ohlone’s grievance procedures, if Ohlone knows, or reasonably should know, about possible sexual harassment involving individuals subject to Ohlone’s policies at the time, Ohlone shall promptly investigate to determine whether the alleged conduct more likely than not occurred, or otherwise respond if Ohlone determines that an investigation is not required. If Ohlone determines that the alleged conduct more likely than not occurred, it shall immediately take reasonable steps to end the harassment, address the hostile environment, if one has been created, prevent its recurrence, and address its effects. Ohlone shall be presumed to know of sexual harassment if a responsible employee knew, or, in the exercise of reasonable care, should have known, about the sexual harassment. Ohlone may rebut this presumption of knowledge if it shows all of the following:
- Ohlone provides training and requires all nonconfidential responsible employees to report sexual harassment.
- Each nonconfidential responsible employee with actual or constructive knowledge of the conduct in question was provided training and direction to report sexual harassment.
- Each nonconfidential responsible employee with actual or constructive knowledge of the conduct in question failed to report it. (Educ. Code § 66281.8(b)(3)(C)(i).)
Ohlone will ensure trauma-informed and impartial investigation of complaints. Student parties shall be given an opportunity to identify witnesses and other evidence to assist Ohlone in determining whether a policy violation has occurred. Student parties shall be informed that any evidence available but not disclosed during the investigation might not be considered at a subsequent hearing. (Educ. Code § 66281.8(b)(4)(A)(iv).)
Ohlone’s investigator will comply with limits on prior sexual history (Rape Shield Protection). (Educ. Code § 66281.8(b)(4)(A)(vi).) 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).)
Each party has the opportunity to suggest questions to be asked of the other party or witnesses, or both, during the investigation. 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).)
Each student party has the opportunity to have a support person or adviser accompany the student party during any stage of the process. Educ. Code § 66281.8(b)(4)(A)(xvii). Ohlone will advise student parties of their right to consult with an attorney, at their own expense, at any stage of the process if they wish to do so. An attorney may serve as a support person or adviser. Educ. Code § 66281.8(b)(4)(A)(xviii).
For State law proceedings, 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).