Procedures for Responding to Discrimination and Non-Sex-Based Harassment Reports and Complaints Involving Student Respondents

Adopted: August 14, 2020
Last Revised: August 1, 2024

These Procedures for Responding to Discrimination and Non-Sex-Based Harassment Reports and Complaints Involving Student Respondents apply to both Duke University and Duke Health (Duke) and are maintained and revised by Duke’s Office for Institutional Equity.

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I. Overview

Duke is committed to encouraging and sustaining a learning, working, and living community that is free from harassment,  discrimination, and related misconduct. The Office for Institutional Equity (OIE), has developed these Procedures for Responding to Discrimination and Non-Sex-Based Harassment Reports and Complaints Involving Student Respondents (“Student Procedures”).

These Procedures are compliant with Duke’s obligations under applicable federal law including but not limited to Title IX of the Education Amendments Act of 1972 and its regulations. Duke’s Title IX Coordinator is:

Cynthia Clinton
Assistant Vice President, Harassment and Discrimination Prevention and Compliance Title IX Coordinator
Office for Institutional Equity Smith Warehouse | Bay 8, 1st Floor
919-668-6214 | cynthia.clinton@duke.edu

The Title IX Coordinator can also be contacted at TitleIX@duke.edu.

Individuals with disabilities may request reasonable accommodations during the investigative process. OIE will consult with Duke Access and Accommodation Services to determine what accommodations might be appropriate based on documentation provided by the individual to OIE or to Duke Access and Accommodation Services directly regarding the nature of the disability and its impact on the individual’s ability to participate in the proceedings.

Parties have the right to (and are strongly encouraged to seek) counseling and support available through support services such as Counseling & Psychological Services (CAPS), DukeReach, or other Duke and local resources.

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II. Definitions

These Procedures incorporate the definitions set forth in the Policy on Prohibited Discrimination, Harassment, and Related Misconduct (“Policy”). 

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III. Scope and Applicability

These Procedures outline reporting, investigation, and report resolution procedures in cases where it is alleged that a Duke student is alleged to have engaged in Prohibited Conduct as defined in  Policy.

Complaints of Sex-Based Harassment involving students are not addressed by these Procedures. Those complaints are addressed under the Procedures for  Responding to Sex-Based Harassment Reports and Complaints Involving Student Complainants or Student Respondents.

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IV. Timelines

These Procedures include designated timelines for each major stage herein. The Office of Institutional Equity (OIE) has authority to extend such timelines for a reasonable period of time on a case-by-case basis for good cause. In the case of such an extension, OIE will notify the affected parties of the extension, including the reason(s) for the extension. Examples of good cause may include, but are not limited to, the complexity of the case, delays due to holiday or academic breaks, the unavailability of parties or witnesses, and inclement weather or other unforeseen circumstances.

Generally, OIE will complete the initial assessment of a request for an investigation within 10 business days; the investigation and determination of a Complaint within 90 business days from the Notice of Investigation; and any appeal within 20 business days. Generally, the Alternative Resolution process will be completed within 30 business days.

The phrase “business days” refers to those days ordinarily recognized by the Duke administrative calendar as workdays. Unless otherwise indicated as “calendar days,” all timeframes in these Procedures refer to business days.

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V. How to Make a Report

Any person wishing to report Discrimination, Harassment, or Related Misconduct by a student can make a report by contacting OIE:

Office for Institutional Equity (OIE)
114 S. Buchanan Boulevard, Bay #8
Box 90012
Durham, NC 27708
919-684-8222 | TitleIX@duke.edu
Report an Incident to OIE

When making a report, an individual should identify the Complainant, the Respondent, and the specific allegations of the Prohibited Conduct. A report may be made either orally or in writing.

Making a report means that OIE (or designee, with oversight by OIE) will contact the Complainant to offer resources and support, and to identify the appropriate action to respond to the report as outlined in these procedures.

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VI. Initial Response to Report

A. Outreach to Complainant or Reporting Party

Once a report is received, OIE (or designee) will promptly contact the Complainant (or if the Complainant is unknown, the person who reported the conduct) with a written explanation of the following:

• The availability of Supportive Measures (and other resources) regardless of whether they choose to request or participate in a University or law enforcement investigation;
• How to contact confidential Duke resources;
• The Complainant’s right to request an Investigation under these Procedures;
• The option for an educational response or Alternative Resolution, where appropriate, under these Procedures;
• That OIE may, under limited circumstances, initiate an investigation without a Complainant’s request;
• The Complainant’s right to an advisor of the Complainant’s choosing;
• Duke’s prohibition of Retaliation and how to report; and
• The opportunity to meet with OIE staff (or designee) in person to discuss the Complainant’s resources, rights, and options.

B. Supportive Measures

As referenced above, OIE (or designee) will coordinate Supportive Measures for a Complainant, as appropriate, upon receiving a report. Supportive Measures may vary depending on what OIE deems to be reasonable, but generally may include, but are not limited to counseling; extensions of deadlines and other course-related adjustments; campus escort services; increased security and monitoring of certain areas of the campus; restrictions on contact applied to Complainant(s) and/or Respondent(s); leaves of absence; changes in class, work, housing, or extracurricular or any other activity, regardless of whether there is or is not a comparable alternative; and training and education programs related to Prohibited Conduct.

Supportive measures cannot unreasonably burden either party and must be designed to protect the safety of the parties or Duke’s educational environment or to provide support during these Procedures. Supportive measures cannot be imposed for punitive or disciplinary reasons.

Supportive measures are also available for Respondents. A Complainant or Respondent may request modification or reversal of the decision to provide, deny, modify, or terminate Supportive Measures applicable to them. Such request may be made to oie-help@duke.edu.

C. Intake and Review of Report

Simultaneous to above outreach to the Complainant or other reporting party, OIE will review the report to determine (i) whether the report includes a request for an investigation; and (ii) whether any emergency action might be necessary. A review may include a meeting with the Complainant.  This review may also include consultation as necessary with the Office of the Dean of Students, the Graduate School, and/or other administrative offices and degree programs as appropriate.

Request for Investigation. If the report includes a request from a Complainant for an investigation, OIE will proceed to Section VII of these Procedures.

No Request for Investigation. If the report does not include a request from a Complainant for an investigation, and if OIE determines that the reported conduct, even if proven, would not constitute Prohibited Conduct within the scope of these Procedures, OIE will, as appropriate:

1. Resolve the matter through an educational response;
2.  Address the report under another set of procedures;
3. Refer the matter to the Office of Student Conduct and Community Standards or other appropriate office or administrator; or
4. Take no further action, if the reported conduct would not constitute a violation of any Duke policy.

In any of these instances, OIE will notify the Complainant (or reporting party) of the action or referral.

If the report does not include a request for an investigation, and if OIE determines that the reported conduct, if proven, could constitute Prohibited Conduct within the scope of these Procedures, OIE will evaluate whether OIE should initiate an investigation even without a request from the Complainant. (See Section VII, below.)

Request for Confidentiality/Limited Action. A Complainant may request that OIE not reveal the complainant’s identity in responding to a report. A complainant may also request that Duke take limited or no action in response to a report. OIE will explain the extent to which confidentiality may be maintained. Duke will attempt to preserve the confidentiality of the complainant and/or respect a request for limited or no action in response to a report except when, in Duke’s judgment, doing so would jeopardize the safety of members of the Duke community (including the complainant) or where Duke is required by law to disclose the information (such as in response to a legal process).

D. Emergency Removal / Administrative Leave

Where there is an imminent and serious threat to the health or safety of any students or other individuals arising from a report of Prohibited Conduct, Duke can remove a student from part or all of Duke’s education programs or activities and issue any necessary related no-trespass and no-contact orders. The process for such removal is set forth in the Duke Community Standard.

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VII. Actions Related to a Request for Investigation (i.e., Complaint)

A. How to Request an Investigation

A Complainant has the option to request that Duke investigate and make a determination about alleged Prohibited Conduct (i.e., make a Complaint). Such a request may be oral or written, as long as it objectively can be understood as a request for an investigation and determination.

B. Assessment of Request for Investigation (i.e., Complaint)

When a Complainant requests an investigation and determination of allegations of Prohibited Conduct (i.e., initiates a Complaint), OIE will promptly review and evaluate appropriate next steps under these Procedures. Specifically, OIE will evaluate the following: 

1. Whether the Complaint alleges conduct that, if proven, would constitute Prohibited Conduct;
2. Whether the Complaint identifies a Respondent and/or provides sufficient information from which OIE can take reasonable steps to identify the Respondent; and
3. Whether the person alleged to have engaged in the conduct was participating in Duke’s education program or activity at the time of the alleged conduct.

If OIE determines that these criteria are met, OIE will notify the Complainant that the Complaint has been accepted for investigation under these Procedures. This notification will be provided to the Complainant in writing and no more than 10 business days after the Complaint is made.

If OIE determines that these criteria are not met, OIE may dismiss the Complaint under these Procedures, as provided below in Section VIII.

C. Initiation of an Investigation by OIE

OIE may initiate an investigation where the Complainant chooses not do so if OIE determines that the conduct as alleged presents an imminent and serious threat to the health or safety of the Complainant or other person, or that the conduct as alleged prevents Duke from ensuring equal access on the basis of protected status to its education programs or activities.

To make this fact-specific determination, OIE will consider, at a minimum, the following factors:

1. The Complainant’s request not to proceed with initiation of an investigation;
2. The Complainant’s reasonable safety concerns, if any, regarding the initiation of an investigation;
3. The risk that additional acts of Prohibited Conduct will occur if a Complaint is not initiated;
4. The severity of the alleged conduct, including whether the conduct, if established, would require the removal of a Respondent from campus or imposition of another disciplinary sanction to end the Prohibited Conduct and prevent is recurrence;
5. The age and relationship of the parties;
6. The scope of the alleged conduct, including information suggesting a pattern, ongoing conduct, or conduct alleged to have impacted multiple individuals;
7. The availability of evidence to assist a decisionmaker in determining whether the conduct occurred; and
8. Whether Duke can end the alleged Prohibited Conduct and prevent its recurrence without initiating an investigation.

If OIE decides to initiate an investigation, OIE will notify the Complainant prior to doing so and appropriately address any reasonable concerns about the Complainant’s safety or the safety of others, including by providing Supportive Measures.

OIE’s consideration of the above factors and determination as to whether to initiate an investigation will take no longer than 10 business days from OIE’s receipt of the Complainant’s request not to proceed with the initiation of an investigation or, in cases where a Complainant is not responsive, 10 business days from OIE’s last communication with the Complainant.

Regardless of whether an investigation is initiated by a Complainant or by the Title IX Coordinator, OIE will take appropriate prompt and effective steps designed, to the extent possible under the circumstances, to prevent further Sex-Based Harassment from continuing or recurring within Duke’s education program or activity.

D. Written Notice of Allegations

When a Complaint is accepted for investigation or initiated by OIE, OIE will send both parties a written Notice of Allegations that contains the following:

1. Sufficient information for the parties to respond to the allegations, including (i) identities of the parties involved in the incident(s); (ii) the conduct allegedly constituting Prohibited Conduct; and (iii) the date(s) and location(s) of the alleged incident(s), to the extent that information is available;
2. Information about these Procedures, including Alternative Resolution;
3. Notice of Duke’s prohibition of Retaliation against the Complainant, the Respondent, and witnesses and how to report acts of Retaliation;
4. A statement that the Respondent is presumed not responsible for the alleged Prohibited Conduct unless and until a determination regarding responsibility is made at the conclusion of the grievance process;
5. Notice that each party may have an advisor of their choice;
6. Notice that each party is entitled to an equal opportunity to access the relevant and not otherwise impermissible evidence;[1]
7. Notice that Duke prohibits knowingly making false statements and knowingly submitting false information during the grievance process; and
8. Information about the availability of support and assistance through Duke resources (including confidential resources) and the opportunity to meet with Duke staff in person to discuss resources, rights, and options.

Generally, this Notice of Allegations will be provided to the parties within 10 days of OIE’s acceptance of the Complaint (or initiation of an investigation by OIE). However, if OIE has reasonable concerns for the safety of any person as a result of providing the Notice, OIE may reasonable delay providing written notice of the allegations in order to address the safety concern appropriately. Such reasonable concerns must be based on individualized safety and risk analysis.

If, during the course of an investigation, OIE decides to investigate additional allegations about the Complainant or Respondent relating to the same facts or circumstances but not included in the earlier written notice, OIE will provide an amended Notice of Allegations to the parties.

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VIII. Dismissal

At any point prior to a determination of whether a Respondent has violated the Policy, OIE has discretion to dismiss a Complaint under the following circumstances:

1. OIE is unable to identify the Respondent after taking reasonable steps to do so;
2. The Respondent is not participating in Duke’s education program or activity;
3. The Complainant voluntarily withdraws any or all of the allegations in the Complaint, OIE declines to initiate a Complaint, and OIE determines that, without the withdrawn allegations, the conduct that remains alleged in the Complaint, if any, would not constitute Prohibited Conduct even if proven; or
4. After making reasonable efforts to clarify the allegations with the Complainant, OIE determines the conduct alleged in the Complaint, even if proven, would not constitute Prohibited Conduct.

OIE will promptly notify the Complainant in writing of the basis for the dismissal. If the dismissal occurs after the Respondent has been notified of the allegations, OIE will notify the Respondent in writing simultaneously. Either party may appeal the dismissal as explained in Section XIII.

If neither party appeals or the dismissal is upheld, OIE may take any of the following steps as appropriate:

1. Resolve the matter with an educational response;
2. Address the Complaint under another set of procedures;
3. Refer the matter to the Office of Student Conduct and Community Standards or other appropriate office or administrator; or
4. Take no further action, if the reported conduct would not constitute a violation of any Duke policy.

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VI. Advisors

The Complainant and Respondent have access to trained Student Process Advisors, upon request, to guide them through the process, or an advisor of their choice. The Complainant and Respondent may consult with anyone they wish (including an attorney) during any stage of this process. An advisor may accompany the Complainant/Respondent to any meeting with OIE staff or designee, a facilitator for Alternative Resolution, or the investigator, or to a hearing. In any such meeting or hearing, a party’s advisor has an exclusively non-speaking role. An advisor may not present evidence, argue, or assert any right on behalf of the party. An advisor’s role is limited to quietly conferring with the Complainant/Respondent through written correspondence or whisper.

OIE (including any official acting on behalf of OIE, such as the Hearing Officer) has the right at all times to determine what constitutes appropriate behavior on the part of an advisor and to take appropriate steps to ensure compliance with the Policy and Procedures, including by placing limitations on the advisor’s ability to participate in future meetings and proceedings.

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X. Informal Process

Educational Response.  OIE may undertake an education response to a report when:

1. Offensive protected status-based conduct, even if proven, would not constitute a Policy violation; or
2. The conduct, if proven, would violate the Policy but the Complainant does not wish to pursue an investigation, and OIE or the Title IX Coordinator after considering the factors in Section VII has determined not to initiate an investigation.

OIE reserves the right to determine whether an educational response is appropriate in a specific case.

Examples of educational responses include but are not limited to educational conversations, coaching, educational sessions, and training. 

An educational response will generally be completed within 30 days of OIE’s receipt of the report. Educational sessions and training may take longer to resolve due to scheduling.

An educational response does not equate to a finding of a violation of the Policy.

Alternative Resolution. Either party may request, or OIE, in its discretion, may offer the parties the opportunity to resolve a report using the Alternative Resolution process.  Alternative Resolution is a voluntary, non-punitive, remedies-based process that provides an alternative to an investigation or determination. Alternative Resolution is typically a facilitated process between the Complainant and the Respondent that seeks to identify and meet the needs of the Complainant while providing an opportunity for the Respondent to acknowledge harm and seek to repair the harm (to the extent possible) experienced by the Complainant. Remedies may include appropriate and reasonable educational, restorative, and/or accountability-focused measures as agreed to by the parties and approved by OIE.

Process. Either party may request the Alternative Resolution process by informing OIE or the Title IX Coordinator of the request at any point prior to a determination, including before a complaint is filed. OIE reserves the right to determine whether Alternative Resolution is appropriate in a specific case. Circumstances when OIE may decline to allow Alternative Resolution may include, but are not limited to, when OIE determines that the alleged conduct would present a future risk of harm to others.

Consent and Notice. Before OIE commences the Alternative Resolution process, both parties must provide informed consent in writing. In addition, where both parties and OIE determine that Alternative Resolution is worth exploring, OIE will provide the parties with a written notice disclosing:

1. the allegations;
2. the requirements of the Alternative Resolution process, including the circumstances that may preclude resuming an investigation and/or determination;
3. the parties’ right to withdraw from the process prior to a resolution being agreed upon;
4. the potential terms that may be requested or offered in an Alternative Resolution, including notice that an Alternative Resolution agreement is binding only on the parties; and
5. any consequences resulting from participating or withdrawing from the process, including the records that may be maintained by the University.

The Alternative Resolution process generally will be completed within 30 business days of the written notice.

Facilitator. When an Alternative Resolution process is initiated, OIE will designate a trained Facilitator to work with the parties to attempt to facilitate an Alternative Resolution agreement. The Facilitator will be impartial and free of any conflict of interest or bias for or against complainants or respondents generally or an individual Complainant or Respondent. The facilitator will have specific and relevant training on the Alternative Resolution process and on how to serve impartially, including by avoiding conflicts of interest and bias. A Complainant or a Respondent who has concerns that the assigned Facilitator cannot conduct a fair and unbiased process (e.g., has a personal connection with one of the parties) may report those concerns to the Title IX Coordinator, who will assess the circumstances and determine whether a different Facilitator should be assigned to the matter.

No Agreement Reached. At any time prior to reaching a resolution, either party may withdraw or OIE may end the Alternative Resolution process and resume the formal grievance process.

If either party withdraws from the Alternative Resolution process, information disclosed during the process that is related to the Complaint will not be included in the investigation or hearing on the Complaint. Information disclosed during the Alternative Resolution that is not related to the Complaint may be reported to OIE.

Agreement Reached. If an Alternative Resolution agreement is signed and agreed to by the Complainant, Respondent, and Title IX Coordinator (in cases involving Sex-Based Discrimination or Harassment), the resolution is binding and the parties are precluded from resuming or starting the formal grievance process for allegations related to the Complaint. Agreements may not be appealed. Information disclosed during the process that is not related to the Complaint may be reported to OIE. Any violation of the terms of an Alternative Resolution agreement may result in disciplinary action or a further claim of Prohibited Conduct. If a subsequent Complaint regarding the Respondent’s continued conduct is filed, the terms of the prior Alternative Resolution agreement may be considered during sanctioning if the Respondent is found responsible.

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XI. Investigation Process

An investigation affords both the Complainant and the Respondent an opportunity to submit evidence and to identify witnesses who may have information related to the allegations in the Complaint.

Investigator. When an investigation is initiated, OIE will designate an investigator who will be responsible for gathering evidence related to the allegations. The investigator will be impartial and free of any conflict of interest or bias for or against complainants or respondents generally or an individual Complainant or Respondent. The investigator will have specific and relevant training and experience on the following: (i) how to conduct an investigation; (ii) these Procedures; (iii) issues of relevance related to evidence, including the types of evidence that are impermissible under these Procedures; (iv) the definitions in the Policy; and (v) how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias.

A Complainant or a Respondent who has concerns that the assigned investigator cannot conduct a fair and unbiased investigation (e.g., has a personal connection with one of the parties or witnesses, etc.) may report those concerns to OIE. OIE will assess the circumstances and determine whether a different investigator should be assigned to the matter.

Interviews. The investigator will meet with the Complainant and Respondent to review the OIE process. The investigator will also meet with the parties and witnesses to gather information relevant to the allegations and ask questions to adequately assess credibility.  Where the investigator deems it necessary, they may interview an individual more than once. Before any interview, the individual being interviewed will be informed in writing of the date, time, location, participants, and purpose of the interview. Such notice will be provided with sufficient time for the individual to prepare for the interview.

Evidence. Each party will be given the opportunity to identify witnesses and to provide other relevant information, such as documents, communications, photographs, and other evidence. All parties are expected to share any relevant information and/or any information that is requested by the investigator.

The investigator will review all information identified or provided by the parties, as well as any other evidence gathered, and will determine the relevance of the information. Evidence obtained as part of the investigation that is relevant and not otherwise impermissible will be shared with the parties for their review and response, as described below.[1]

The following evidence, even if relevant, is not permissible under these Procedures and therefore will not be considered, disclosed, or otherwise used in the grievance process (except for the threshold determination of whether it is permissible):

• Evidence that is protected under a privilege recognized by Federal or State law (e.g., the privilege between an attorney and client), unless the person to whom the privilege is owed has voluntarily waived the privilege;
• Evidence that is provided to a confidential employee, unless the person to whom the confidentiality is owed has voluntarily waived the confidentiality;
• A party’s or witness’s records that are made or maintained by a physician, psychologist, or other recognized professional or paraprofessional in connection with the provision of treatment to the party or witness, unless the party or witness provides voluntary, written consent for use in the grievance process;
• Evidence that relates to the Complainant’s sexual interests; and
• Evidence that relates to the Complainant’s prior sexual conduct, unless evidence about the Complainant’s prior sexual conduct is offered to prove that someone other than the Respondent committed the alleged conduct or is evidence about specific incidents of the Complainant’s prior sexual conduct with the Respondent that is offered to prove consent to the alleged Sex-Based Harassment. The fact of prior consensual sexual conduct between the parties does not by itself demonstrate or imply that Complainant’s consent to the alleged conduct or preclude determination that Sex-Based Harassment occurred.

Draft Investigative Report. After all known, available, and relevant evidence is gathered, the investigator will prepare a draft investigative report. The investigator will make available to each party, and the party’s advisor, if any, the draft investigative report. The investigator will also make available to the parties, and their advisors, if any, all evidence that was gathered during the investigation that is relevant to the allegations and not otherwise impermissible. Access to the draft investigative report and evidence will be provided within 90 business days of the Notice of Allegations.

The parties will have 10 business days to review the evidence and the draft investigative report and submit a written response. This is the parties’ opportunity to provide any comments, feedback, additional documents, evidence, requests for additional investigation, names of additional witnesses, or any other information they wish considered for inclusion in the final investigative report. The investigator will review the feedback to the report, conduct any additional interviews (as the investigator deems appropriate), and make changes/additions to the report as determined by the investigator. The parties’ feedback will be attached to the final investigation report.

Any party providing new evidence in their response to the draft investigative report must identify whether that evidence was previously available to them, and if not, why it was not available and/or why it was not previously provided.

Privacy of Information and Evidence.  Duke will take reasonable steps to protect the privacy of the parties and witnesses during the investigation process.  These steps will not restrict the ability of the parties to obtain and present evidence, including by speaking to witnesses; consulting with their family members, confidential resources, or advisors; or otherwise preparing for or participating in the process.  The parties cannot engage in retaliation, including against witnesses.  

Except in limited circumstances, parties are prohibited from disclosing information and evidence that they obtain solely through this process.

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XII. Determination

Final Investigative Report. After the time has run for both parties to provide any written response to the evidence and draft investigative report, the investigator will review and evaluate all relevant and not otherwise impermissible evidence and determine, by a preponderance of the evidence, whether the Respondent has violated the Policy. A preponderance of the evidence standard means that, based on the information acquired during the investigation, it is more likely than not the Respondent engaged in the alleged conduct.

Remedies and Sanctions. In the event the investigator finds the Respondent responsible for a violation of the Policy, OIE will consult with a representative appointed by the Vice President/Vice Provost of Student Affairs to determine appropriate remedies and sanctions. Remedies are designed to restore or preserve equal access to Duke’s education program or activity.

Sanctions for a finding of responsibility for Student Respondents include: withdrawal of privileges, restitution, mental health/medical assessment/treatment, fine, exclusion, educational projects/initiatives, community service, degree revocation, admonition, formal warning, disciplinary probation, suspension, expulsion, and/o rother restrictions on access to Duke programs and activities. In determining (a) sanction(s), the sanction decision-maker will consider whether the nature of the conduct at issue warrants removal from the University, either permanent (expulsion) or temporary (suspension). Other factors pertinent to the determination of what sanction applies include, but are not limited to, the nature of the conduct at issue, prior disciplinary history of the respondent (shared with the appropriate University official only upon a finding of responsibility for the allegation), previous University response to similar conduct, and University interests (e.g., in providing a safe environment for all).

Written Notification Regarding Outcome and (if appropriate) Sanctions/Remedies. After a determination regarding responsibility and, if applicable, a determination regarding appropriate remedies and/or sanction has been made, the Complainant and Respondent will receive a simultaneous written notification including the decision regarding responsibility.  and, as applicable, remedies and sanctions. The written notification will accompany access to the final investigative report. In cases where no additional investigation is warranted, the written notification and final investigation report will be provided within 20 business days of the parties’ written response to the draft investigation report and will include the rationale for the determination and the procedures and permissible bases for the Complainant and Respondent to appeal

The determination regarding responsibility becomes final either on the date OIE provides the parties with the written determination of the result of any appeal, or, if no party appeals, the date on which an appeal would no longer be considered timely.

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XIII. Appeals

A Respondent and Complainant both have the right to appeal (i) OIE’s decision to dismiss a Complaint; and (ii) the Investigator’s decision regarding responsibility.

The three available grounds for appeal are:

1. New information that would change the outcome and was not reasonably available at the time of the dismissal/determination;
2. The Title IX Coordinator or investigator had a conflict of interest or bias for or against complainants or respondents generally or the individual Complainant or Respondent specifically that would change the outcome of the matter; and/or
3. Procedural irregularity that would change the outcome of the matter.

An appeal is not a re-hearing of the case or decision. OIE may summarily deny an appeal if it is not based on one of the enumerated grounds for appeal.

A. Appeal of Dismissal of Complaint

A party wishing to appeal OIE’s decision to dismiss a Complaint of Prohibited Conduct must file a written appeal statement within five (5) business days of the date the decision to dismiss is communicated to the parties. The appeal statement must articulate one of the above-enumerated grounds for appeal and should be emailed to oie-help@duke.edu.  Before deciding the appeal, OIE will notify both parties of the appeal, including notice of the allegations if notice was not previously provided to the Respondent, and provide the parties a reasonable and equal opportunity to submit a statement in support of, or challenging, the dismissal.

The Vice President for Institutional Equity or designee will decide the appeal. Within 20 business days of receipt of each party’s statement in support of or challenging the dismissal, the Vice President for Institutional Equity or designee will notify the parties of the result of the appeal and the rationale for the result.

B. Appeal of Determination of Responsibility

A party wishing to appeal an investigator’s determination of responsibility must file a written appeal statement within five (5) business days of the date the final investigative report was shared with the parties.  Appeals are limited to five (5) pages (12-point font, 1-inch margin).  The appeal statement must articulate one of the above-enumerated grounds and should be emailed to oie-help@duke.edu.

An Appellate Officer will decide the appeal.

Appellate Officer. If the appeal is based on one of the above enumerated grounds for appeal, OIE will appoint an Appellate Officer. The Appellate Officer’s role is limited to reviewing the underlying record of the investigation and hearing, the appealing party’s (“Appellant”) written appeal statement, any response to that statement by the other party (“Appellee”), and information presented at a meeting of the Appellate Officer, if convened. The Appellate Officer will have specific and relevant training on the appeals process and on how to serve impartially, including by avoiding conflicts of interest and bias.

Bias and Conflict of Interest. OIE will notify the Appellant and Appellee of the name of the Appellate Officer, who will be impartial and free from bias or conflict of interest, including bias for or against a specific Complainant or Respondent or for or against complainants and respondents generally. If the Appellate Officer has concerns that they cannot conduct a fair or unbiased review, they shall report those concerns to OIE and a different Appellate Officer will be assigned.

A Complainant or a Respondent who has concerns that the assigned Appellate Officer cannot conduct a fair and unbiased determination may report those concerns to the Title IX Coordinator, who will assess the circumstances and determine whether a different Appellate Officer should be assigned to the matter. A party’s concerns, including rationale, must be made within two (2) business days of the notification of the name of the Appellate Officer. At its discretion, OIE will determine whether an Appellate Officer should be replaced. Reasonable delay of an appeal may occur if a replacement Appellate Officer cannot be immediately identified.

Response to Appeal. OIE will provide written notice to the Appellee that an appeal has been submitted and will give the Appellee an opportunity to review the appeal statement. The Appellee may submit a written response to the appeal (“response”). The response is due 5 business days from the date OIE provides written notice of the appeal to the Appellee and is limited to five pages (12-point font, 1-inch margins). OIE will provide the Appellant an opportunity to review the response, though no additional opportunity to respond in writing will be provided to the Appellant.

Exceptions. The Appellant and Appellee may submit to the Appellate Officer requests for exceptions to page limits or deadlines. Exceptions must be requested in advance of any deadline with justification for such request(s) by sending an email to the Appellate Officer.

Meetings. On their own or at the request of the Appellant or Appellee, the Appellate Officer may convene a meeting to give the parties an opportunity to amplify the reason(s) for the appeal or the response. The Appellate Officer has full discretion to set the terms and length of the meeting. If a meeting is convened, the Appellant and Appellee may bring an advisor of their choice to the meeting. The advisor’s role is limited to quietly conferring with their advisee, and may not address the Appellate Officer. In the event an appeal alleges a procedural error, the Appellate Officer may request that OIE staff and/or the Hearing Officer attend a meeting to gather more information about the alleged procedural error.

Written Decision. The Appellate Officer will provide written notification of the final decision to the Appellant and Appellee simultaneously.

The Appellate Officer will notify the parties of its decision regarding an appeal in writing within 20 business days from receipt of the appeal response or any scheduled meeting. The decision of the appellate officer will be final and no subsequent appeals are permitted.

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