Adopted: August 14, 20201
The Duke Title IX Sexual Harassment Grievance Procedures applies to both Duke University and Duke Health and is maintained and revised by Duke’s Office for Institutional Equity.
1. This policy is adapted in part and replaces the Student Sexual Misconduct Policy and Procedures: Duke's Commitment to Title IX.
Duke is committed to encouraging and sustaining a learning and living community that is free from harassment, violence, and prohibited discrimination. In that regard and consistent with federal law, Duke has developed these procedures (“Title IX Grievance Procedures” or “Procedures”) for resolving Formal Complaints of Title IX Sexual Harassment as that term is defined in Duke’s Policy on Prohibited Discrimination, Harassment, and Related Misconduct (the “Policy”).
Duke's Title IX Coordinator is:
Assistant Vice President for Harassment & Discrimination Prevention and Compliance
Title IX Coordinator
Office for Institutional Equity
Smith Warehouse | Bay 9, 1st Floor
919-684-6214 | Email Cynthia Clinton
The Title IX Office may also be contacted at TitleIX@duke.edu
II. Scope and Applicability
These Procedures apply to Formal Complaints of Title IX Sexual Harassment made after August 14, 2020 and regarding conduct directed toward a person in the United States, occurring in Duke’s programs or activities, and allegedly perpetrated by any member of the Duke community as a Respondent. Members of the Duke community include, but are not limited to, full and part-time students and employees, including faculty members, physicians, staff, undergraduate students, graduate and professional students, doctoral students, post-doctoral scholars and fellows, medical residents, house staff, student employees, and temporary and contract employees. These Procedures may also apply to third parties as Respondents who are within Duke’s programs and activities, including applicants for admission and employment, visitors, visiting scholars, conference attendees, patients, employees of Duke contractors, and program participants.
These Procedures incorporate the definitions set forth in the Policy.
Duke identifies designated timelines throughout these Procedures. Generally, Duke will complete its process from Formal Complaint through the Investigation Report in 90 business days, and from the Investigation Report through the Hearing Officer’s Written Notification of outcome in an additional 60 business days thereafter. In the event of an appeal, it will generally take 20 business days from the filing of an appeal statement (and response, if any) through a decision from the appellate decision maker.
In extenuating circumstances, the Office of Institutional Equity (OIE) has authority to extend such timelines. 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 extenuating circumstances include the complexity of the case, delays due to holiday or Duke breaks, the unavailability of parties or witnesses, and inclement weather or other unforeseen circumstances. Unless otherwise indicated as “calendar days,” all timeframes in these Procedures refer to business days. The phrase “business days” refers to those days ordinarily recognized by the Duke University administrative calendar as workdays.
V. Intake Process for Reports of Title IX Sexual Harassment
For allegations involving an undergraduate, graduate, or professional Student, reports of Title IX Sexual Harassment should be reported as follows:
For allegations not involving an undergraduate, graduate, or professional Student, reports of Title IX Sexual Harassment should be reported as follows:
Once a report of Title IX Sexual Harassment is made, OIE, in consultation as necessary with the Human Resources Office (for Employees), the Office of the Provost (for Faculty), and the Office of Student Conduct (for Students), shall review the report to determine next steps.
If the allegations reported would not constitute Title IX Sexual Harassment within the scope of these Procedures, OIE will, as appropriate: (1) address the report under another set of procedures; (2) refer the matter to the Office of Student Conduct, Human Resources Staff and Labor Relations, or other appropriate Duke office or administrator; or (3) take no further action, if the reported conduct would not constitute a violation of any Duke policy. In these instances, OIE will notify the Complainant of the action or referral.
After receiving a report of Prohibited Conduct, including conduct that would constitute Title IX Sexual Harassment, OIE (or designee, with oversight by OIE) will promptly contact the Complainant and
- Discuss the availability of Supportive Measures;
- Explain that Supportive Measures are available with or without the filing of a Formal Complaint;
- Inform the Complainant of the process for filing a Formal Complaint; and
- Inform the Complainant that even if they decide not to file a Formal Complaint, the Title IX Coordinator may do so.
OIE will also ensure that the Complainant receives a written explanation of available resources and options, including the following:
- Support and assistance available through Duke resources, including the Complainant’s option to seek Supportive Measures regardless of whether they choose to participate in a Duke or law enforcement investigation;
- The Complainant’s option to seek medical treatment and information on preserving potentially key forensic and other evidence;
- The process for filing a Formal Complaint of Title IX Sexual Harassment, if appropriate;
- Duke’s procedural options including investigative and informal resolution;
- The Complainant’s right to an advisor of the Complainant’s choosing;
- Duke’s prohibition of Retaliation against the Complainant, the Respondent, the witnesses, and any reporting parties, along with a statement that Duke will take prompt action when Retaliation is reported (and how to report); and
- The opportunity to meet with the Title IX Coordinator (or designee) in person to discuss the Complainant’s resources, rights, and options.
VI. Actions Related to the Filing of a Formal Complaint
A Complainant has the option to file a Formal Complaint alleging Title IX Sexual Harassment by a Respondent and requesting that Duke investigate those allegations. The Title IX Coordinator may also decide to file a Formal Complaint of Title IX Sexual Harassment where the Complainant chooses not do so if the failure to file a Formal Complaint would constitute deliberate indifference to Sexual Harassment in the Title IX Coordinator’s judgment, or if the allegations would have a negative impact on campus safety and/or security.
A Formal Complaint must be filed before an Investigation or Alternative Resolution under these Procedures can commence.
When OIE receives a Formal Complaint of Title IX Sexual Harassment, OIE will evaluate the allegations in the Formal Complaint to determine whether the following conditions are satisfied:
- The conduct is alleged to have been perpetrated against a person in the United States;
- The conduct is alleged to have taken place within Duke’s programs and activities; and
- At the time of the filing or signing of the Formal Complaint, the Complainant is participating in or attempting to participate in Dukes’s programs or activities.
If OIE determines that all of the above conditions are satisfied, Duke will address the Formal Complaint of Title IX Sexual Harassment under these Procedures. Duke may include allegations of other Prohibited Conduct, in addition to Title IX Sexual Harassment, in the Formal Complaint or address them under another set of procedures.
If OIE determines that not all of the conditions are satisfied, Duke will dismiss the Formal Complaint for Title IX purposes, and, as appropriate: (1) address the Formal Complaint under another set of procedures; (2) refer the matter to the Office of Student Conduct, Human Resources Staff and Labor Relations, or other appropriate Duke office or administrator; or (3) take no further action, if the reported conduct would not constitute a violation of any Duke policy. If OIE determines that a Formal Complaint of Title IX Sexual Harassment will not be adjudicated under these Procedures, either party may appeal that decision as explained below.
If OIE determines that all of the conditions are satisfied, or if the Title IX Coordinator signs a Formal Complaint of Title IX Sexual Harassment within the scope of these Procedures, OIE will send both parties a written Notice of Allegations that contains the following:
- Notice that the Alternative and Formal Resolution processes comply with the requirements of Title IX;
- Notice of the allegations potentially constituting Title IX Sexual Harassment, providing sufficient detail for a response to be prepared before any initial interview, including (1) identities of the parties, if known; (2) the conduct allegedly constituting Title IX Sexual Harassment; and (3) the date and location of the alleged conduct;
- A statement that the Respondent is presumed not responsible for the alleged Title IX Sexual Harassment until a determination regarding responsibility is made at the conclusion of the grievance process;
- Notice that each party may have an advisor of their choice who may be, but is not required to be, an attorney, and who, along with the party, may inspect and review evidence directly to the allegations that is gathered in the investigation;
- Information regarding the availability of support and assistance through Duke resources and the opportunity to meet with the Title IX Coordinator (or their designee) in person to discuss resources, rights, and options;
- Notice of Duke’s prohibition of Retaliation against the Complainant, the Respondent, and witnesses; that Duke will respond promptly when Retaliation is reported; and how to report acts of Retaliation; and
- Notice that Duke prohibits knowingly making false statements and knowingly submitting false information during the grievance process.
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.
After issuance of the written Notice of Allegations, the matter will proceed to either the Alternative Resolution process or Investigative Resolution process, as described below.
Duke may, in its sole discretion, dismiss a Formal Complaint at any time during the investigation or hearing process if:
- The Complainant notifies the Title IX Coordinator in writing that the Complainant would like to withdraw the Formal Complaint or any allegations therein;
- The Respondent is not, or is no longer, enrolled or employed by Duke;
- Specific circumstances prevent Duke from gathering evidence sufficient to reach a determination as to the formal complaint or the allegations.
If OIE determines that a Formal Complaint of Title IX Sexual Harassment should be dismissed for any of these reasons, either party may appeal that decision as explained below.
The Complainant and a Respondent may each have an advisor of their choice to provide support and guidance. An advisor may accompany the Complainant/Respondent to any meeting with OIE staff or designee, including a facilitator for Alternative Resolution or the investigator(s), and/or to a hearing. At any such meeting, a party’s advisor has an exclusively non-speaking role and may not otherwise present evidence, argue, or assert any right on behalf of the party. An advisor may not also be a witness.
At the hearing, an advisor may not speak for the party they are advising or address any other participant or the hearing officer except as necessary to conduct cross-examination as explained below in Section X. An advisor’s role is otherwise limited to quietly conferring with the Complainant/Respondent through written correspondence or whisper. If a party does not select an advisor of choice for the hearing, Duke will provide a Title IX Hearing Advisor trained to ask cross-examination questions, but such advisor will be provided only for the hearing portion of the process. The parties will not be provided a Title IX Hearing Advisor during the investigation, Alternative Resolution, or appeal process.
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 meetings and proceedings. Advisors will be asked to sign and comply with the Title IX Sexual Harassment Grievance Procedures Rules of Decorum.
VIII. Alternative Resolution
Alternative Resolution is a voluntary, non-punitive, remedies-based process that provides an alternative to an investigation or hearing. Alternative Resolution is typically a spectrum of facilitated, or structured, and adaptable processes 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 accountability-focused measures as agreed to by the parties and approved by the Title IX Coordinator (or designee).
Alternative Resolution is not available in cases involving a Student Complainant and Employee Respondent.
- A Formal Complaint is required to initiate the Alternative Resolution process under these grievance procedures.
- Either party may request the Alternative Resolution process by informing the Title IX Coordinator (or designee) of the request at any time prior to the Hearing.
- OIE reserves the right to determine whether Alternative Resolution is appropriate in a specific case.
- If both parties and OIE determine that Alternative Resolution is appropriate, OIE will provide the parties with written notice disclosing:
- the allegations; the requirements of the Alternative Resolution process, including the circumstances that may preclude resuming a formal complaint;
- the parties’ right to withdraw from the process prior to a resolution being reached; and
- any consequences resulting from participating in or withdrawing from the process, including the records that may be maintained by OIE.
- Before OIE commences the Alternative Resolution process, both parties must consent in writing.
- OIE will assign the case to a trained Facilitator to work with the parties to attempt to facilitate an Alternative Resolution agreement. 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.
- The Facilitator will hold an initial meeting with the parties separately to discuss the resolution mechanism that best suits the parties’ needs.
- The parties may have any advisor of their choosing present during any Alternative Resolution meeting.
- The Complainant will not be required to meet directly with the Respondent to resolve the complaint, unless the Complainant desires to do so.
- If the parties reach an agreement, both parties must sign the agreement, which must be approved by the Title IX Coordinator (or designee).
The Alternative Resolution process generally will be completed within 30 business days of receipt of the parties’ written consent to participate in the process. Duke, at its discretion, may extend the timeframe for good cause.
C. Resolution Outcomes
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 Formal Complaint will not be included in the investigation or hearing on the Formal Complaint. Information disclosed during the Alternative Resolution that is not related to the Formal 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 (or designee), the resolution is binding and the parties are precluded from resuming or starting the formal grievance process for allegations related to the Formal Complaint. Information disclosed during the process that is not related to the Formal Complaint may be reported to OIE. 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.
Violation of the terms of an Alternative Resolution agreement may result in disciplinary action.
Duke will retain a copy of the Alternative Resolution agreement for a period of seven (7) years.
Agreements reached in the Alternative Resolution process may not be appealed.
IX. Formal Resolution
A. The Investigation
An investigation affords both the Complainant and the Respondent an opportunity to submit information and other evidence and to identify witnesses.
When a formal resolution is initiated, OIE will designate an investigator who will be responsible for gathering evidence directly related to the allegations raised in a Formal Complaint of Title IX Sexual Harassment. The investigator must be impartial, free of any actual conflict of interest, and have specific and relevant training and experience. Specifically, the investigator will be trained on (1) issues of relevance; (2) the definitions in the Policy; (3) the scope of Duke’s education program or activity; (4) how to conduct an investigation; and (5) 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 review (e.g., has a personal connection with one of the parties or witnesses, etc.) may report those concerns to the Title IX Coordinator, who will assess the circumstances and determine whether a different investigator should be assigned to the matter.
Interviews. The investigator will interview the Complainant and Respondent to review the disciplinary process and to gather facts relevant to the Formal Complaint. The investigator will also interview witnesses identified by the parties as likely to have relevant information about the Formal Complaint. Where the investigator deems 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 they obtain and will determine the relevance of the information received during the investigation. Evidence obtained as part of the investigation that is directly related to the allegations in the Formal Complaint will be shared with the parties for their review and comment, as described below.
OIE, the investigator, or the Hearing Officer, as appropriate, may exclude and/or redact certain evidence that will not be shared with the parties:
- Information that is not directly related to the allegations in the Formal Complaint; and
- Sensitive personally-identifying information (e.g., social security numbers, contact information, etc.).
Draft Investigation Report. After all known, available, and relevant evidence is gathered, the investigator will prepare a draft investigation report. The investigator will make available to each party, and the party ’s advisor, if any, the draft investigation 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 directly related to the allegations of the Formal Complaint subject to the limitations above.
The parties will have ten (10) days to inspect and review the evidence and the draft investigation 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 investigation report. The investigator will review the feedback to the report, interview additional relevant witnesses (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 investigation 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. Generally, only information that is provided to, or otherwise obtained by, the investigator prior to the completion of the final investigation report may be considered by the Hearing Officer as part of the determination of whether a Policy violation occurred. Any information not provided to the investigator prior to the final investigation report will not be allowed during the hearing unless the party offering the evidence can clearly demonstrate that such information was not reasonably available to the parties at the time of the investigation or that the evidence has significant relevance to a material fact at issue in the investigation.
Final Investigation Report. After the time has run for both parties to provide any written response to the evidence and draft investigation report, the investigator will complete a final investigation report.
The investigator’s report will then be shared with the Complainant, Respondent, and their advisors. The parties will have five business days to respond in writing to the final investigation report. The Complainant and Respondent must also submit in writing at that time the names of any witnesses they wish to testify and a summary of information each witness would provide through their testimony. Names of witnesses provided by the parties will be shared with the other party. After the five-business-day deadline, the Complainant and Respondent may not provide any additional written information for the hearing packet (defined below) or hearing, unless that information was not reasonably available prior to the closing of the five-business-day window. The Hearing Officer determines whether to grant exceptions to this five-business-day deadline in consultation with the Title IX Coordinator.
The investigator will determine what, if any, final changes or additions are made to the final investigation report based upon its review of the report and feedback as described above from the Complainant and Respondent.
The matter will then be referred to a Hearing Officer.
X. Hearing Procedures
The Hearing Officer will be selected by Duke, and will receive annual training on the following: 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. The Hearing Officer will also be trained on any technology that might be used during a hearing.
Notice. Both the Complainant and the Respondent will be notified in writing of the date and time of the hearing and the name of the Hearing Officer at least five (5) business days in advance of the hearing, with the hearing to occur no fewer than ten (10) business days after the parties are provided the Final Investigation report. The Hearing Officer will receive the names of the Complainant and the Respondent at the same time.
Bias and Conflict of Interest. The Hearing Officer must 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 Hearing Officer has concerns that they cannot conduct a fair or unbiased review, the Hearing Officer shall report those concerns to OIE and a different Hearing Officer will be assigned.
A Complainant and/or Respondent may challenge the participation of the Hearing Officer because of perceived conflict of interest, bias, or prejudice. Such challenges, including rationale, must be made within 48 hours of notification of the name of the Hearing Officer. At its discretion, OIE will determine whether such a conflict of interest exists and whether a Hearing Officer should be replaced. Postponement of a hearing may occur if a replacement Hearing Officer cannot be immediately identified.
Advisors. Both parties must be accompanied by an advisor to the hearing. If a party does not have an advisor for the hearing, Duke will provide an advisor for that party. Each party’s advisor must conduct any cross-examination of the other party and any witnesses. Apart from conducting cross-examination, an advisors’ participation is limited to conferring with the party at intervals set by the Hearing Officer.
Participation of the Parties and Witnesses. A party or witness who elects to participate in the process is expected, although not required, to participate in all aspects of the process (e.g., a witness who chooses to participate in the investigation is expected to make themselves available for a hearing if requested to do so).2
Consistent with the prohibition on Retaliation, intimidation, threats of violence, and other conduct intended to cause a party or witness to not appear for a hearing are expressly prohibited.
Witnesses. Names of witnesses provided by the parties will be shared with the other party. The Hearing Officer may, at their discretion, exclude witnesses or witness testimony the Hearing Officer considers irrelevant or duplicative.
Electronic Devices. A Respondent, Complainant, advisor, and/or witness may not have electronic devices that capture or facilitate communication (e.g., computer, cell phone, audio/video recorder, etc.) in their possession while participating in the hearing unless authorized by the Hearing Officer. OIE will make an audio recording of the hearing to be made available to the parties for review. Reasonable care will be taken to create a quality audio recording and minimize technical problems; however, technical problems that result in no recording or an inaudible one are not a valid basis for appeal.
Hearing Location and Use of Technology. The hearing will be live, with all questioning conducted in real time. Upon request of any party, the parties may be located in separate rooms (or at separate locations) with technology enabling the Hearing Officer and the parties to simultaneously see and hear the party or witness answering questions. Any party may request that the hearing may be conducted entirely virtually through the use of remote technology so long as the parties and Hearing Officer are able to hear and see one another in real time.
Pre-Hearing Procedures and Ground Rules. The Hearing Officer and/or OIE may establish pre-hearing procedures relating to issues such as scheduling, hearing procedures, witness and advisor participation and identification, structure, advance determination of the relevance of certain topics, and other procedural matters. The Hearing Officer will communicate with the parties prior to the hearing with respect to these issues and establish reasonable, equitable deadlines for party participation/input.
The Hearing Officer also 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.
Hearing Procedure. The Hearing Officer has general authority and wide discretion over the conduct of the hearing (e.g., they may set time frames for witness testimony and may limit opening/closing statements or their length, etc.). Although the Hearing Officer has discretion to modify it, the general course of procedure for a hearing is as follows:
- Respondent’s statement accepting or denying responsibility;
- Opening Statement from the Complainant;
- Opening Statement from the Respondent;
- Questioning of the Complainant by the Hearing Officer;
- Cross-examination of the Complainant by the Respondent’s advisor;
- Questioning of the Respondent by the Hearing Officer;
- Cross-examination of the Respondent by the Complainant’s advisor;
- Hearing Officer questioning of other material witnesses (if applicable);
- Cross-examination of other material witnesses by the parties’ advisors;
- Closing comments from the Complainant; and,
- Closing comments from the Respondent.
The Complainant or Respondent may not question each other or other witnesses directly; they must conduct the cross-examination through their advisors. Before a party or witness answers a cross-examination or other question, the Hearing Officer will first determine whether the question is relevant. The Hearing Officer may exclude irrelevant information and/or questions. The Hearing Officer will explain any decision to exclude a question or information as not relevant. The Hearing Officer’s determination on relevance is not subject to objection or argument at the hearing.
The evidence directly related to the allegations that is collected as part of the investigative process will be made available at the hearing to give each party equal opportunity to refer to such evidence during the hearing, including for purposes of cross-examination.
Presumption of Non-Responsibility. The Respondent is presumed to be not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the hearing.
Determination of Responsibility and Standard of Evidence. Following the hearing, the Hearing Officer will consider all of the relevant 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 and the hearing, it is more likely than not the Respondent engaged in the alleged conduct.
Remedies and Sanctions. In the event the Hearing Officer finds the Respondent responsible for a violation of Duke’s policies, appropriate remedies and sanctions will be determined by the appropriate Duke official, as described below. Remedies are designed to restore or preserve equal access to Duke’s Education Program or Activity. Remedies may be disciplinary or punitive.
For Student Respondents, a Duke representative appointed by the Vice President/Vice Provost of Student Affairs will determine appropriate remedies and sanctions in consultation with OIE.
For Employee and Faculty Respondents, the Respondent’s Dean, Chair, or other Supervisor Designee as determined in Duke’s discretion will determine appropriate remedies and sanctions in consultation with OIE.
Upon a finding of responsibility, the Complainant will be provided with remedies designed to restore access to Duke’s educational and employment programs and activities.
Sanctions for a finding of responsibility for Student Respondents include, but are not limited to: withdrawal of privileges, restitution, mental health/medical assessment/treatment, fine, exclusion, educational projects/initiatives, community service, admonition, formal warning, disciplinary probation, suspension, expulsion, and/ other 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 Duke, 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 Duke official only upon a finding of responsibility for the allegation), previous Duke response to similar conduct, and Duke’s interests (e.g., in providing a safe environment for all).
Sanctions for finding of responsibility for Employee and Faculty Respondents include, but are not limited to, progressive disciplinary action; prohibition from various academic or managerial responsibilities involving the complainant or others; letter of reprimand placed in a respondent’s personnel file; restrictions on a respondent’s access to Duke programs or facilities; limitations on merit pay or other salary increases for a specific period; or demotion, suspension, or dismissal/termination from Duke, or a recommendation that a separate process required to impose such action be commenced.
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 include the following:
- Identification of the allegations potentially constituting Prohibited Conduct;
- A description of the procedural steps taken from the receipt of the Formal Complaint of Title IX Sexual Harassment, or report of other Prohibited Conduct (if applicable), 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;
- Findings of fact supporting the determination;
- Conclusions regarding the application of Duke’s code of conduct to the facts;
- A statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility, any disciplinary sanctions Duke imposes on the Respondent, and whether remedies designed to restore or preserve equal access to Duke’s education program or activity will be provided by Duke to the Complainant; and
- Duke’s procedures and permissible bases for the Complainant and Respondent to appeal.
The written notification of outcome becomes final five (5) business days after it is sent to the Parties, unless an appeal is filed on or before that day.
2. Consistent with the August 10, 2021, order of the United States District Court for District of Massachusetts in Victim Rights Law Center et al. v. Cardona, No. 20-11104-WGY, this procedure was amended on August 19, 2021, to remove the provisions regarding “Statements.” The revisions to the “Participation of Parties and Witnesses” section of the Policy will apply to any hearing held pursuant to this procedure on or after August 19, 2021.
A Respondent and Complainant both have the right to appeal (1) OIE’s decision to dismiss a Formal Complaint of Sexual Harassment; and (2) the Hearing Officer’s decision regarding responsibility.
A party wishing to appeal OIE’s decision to dismiss a Formal Complaint of Sexual Harassment must file a written appeal statement within five (5) business days of the date the decision to dismiss is communicated to the parties. A dismissal of a Formal Complaint will be decided by the Vice President for Institutional Equity.
A party wishing to appeal the Hearing Officer’s decision must file a written appeal statement within five (5) business days of the date the written decisions is sent to the parties. Appeals are limited to five (5) pages (12-point font, 1-inch margins). The appeal statement must identify the ground(s) for appeal upon which the appeal is being made. The three available grounds for appeal are:
- New information not reasonably available at the time of the decision/hearing that could affect the outcome of the matter;
- The Title IX Coordinator, investigator, Hearing Officer, or sanction decision-maker had a conflict of interest or bias for or against complainants or respondents generally or the individual Complainant or Respondent specifically that affected the outcome of the matter; and/or
- Procedural error(s) that affected the outcome of the matter.
An appeal is not a re-hearing of the case. Duke may summarily deny an appeal if it is not based on one of the enumerated grounds for appeal.
Appellate Officer. If Duke does not summarily deny the appeal of a Hearing Officer’s decision regarding responsibility, Duke 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.
Conflict of interest. Duke will notify the Appellant and Appellee of the name of the appellate officer. The Appellant and/or Appellee may challenge the participation of an appellate officer because of an actual conflict of interest, bias, or prejudice. Such challenges, including rationale, must be submitted in writing to Duke no later than 48 hours after notification of the name of the appellate officer. Duke will determine whether such a conflict of interest exists and whether an appellate officer should be replaced.
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 five (5) business days from the date the appellate officer provides written notice of the appeal to the Appellee and is limited to five (5) 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. Requests for exceptions must be submitted to the appellate officer in advance of any deadline via e-mail with justification for such request(s).
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 appellate officer will invite both the Appellant and Appellee, who may bring an advisor of their choice to the meeting. The parties will not be provided with a Title IX Hearing Advisor during the appeals process.
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 (a) staff member(s) in OIE, and/or Hearing Officer attend the meeting to gather more information about the alleged procedural error.
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 (a) staff member(s) in OIE, and/or Hearing Officer attend the meeting to gather more information about the alleged procedural error.
Written Decision. OIE will provide written notification of the final decision to the Appellant and Appellee simultaneously.
The appellate officer will typically notify the parties of its decision regarding an appeal in writing within 20 business days from receipt of the appeal statement. If the decision will take longer, the parties will be informed. The decision of the appellate officer will be final and no subsequent appeals are permitted.
Duke will keep confidential the identity of any individual who has made a report or complaint of sex discrimination, including any individual who has made a report or filed a Formal Complaint of Title IX Sexual Harassment, any Complainant, any individual who has been reported to be the perpetrator of sex discrimination, any Respondent, and any witness, except as disclosure may be permitted by the Family Educational Rights and Privacy Act (FERPA), 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.
XIII. Records Retention
Duke shall retain for a period of seven years after the date of case closure: the official file relating to Alternative Resolution, including the parties’ signed agreement, an investigative resolution, including any investigation, hearing, sanctioning, and/or appeals processes involving allegations of Title IX Sexual Harassment. In cases in which a Respondent was found to have violated the Policy and was expelled or terminated, Duke may retain such official case files indefinitely.