Staff Policy D-602.07
Institutional Effectiveness Criterion: Operations

Title IX Policy Prohibiting Sex Discrimination

INTRODUCTION

Statement Of Nondiscrimination

Northwestern Michigan College (NMC) does not discriminate and prohibits discrimination against any individual based on any category protected under applicable Federal, State, or local laws.

Accordingly, NMC does not discriminate, and strictly prohibits unlawful discrimination on the basis of age, color, creed, disability, gender identity/expression, handicap, height, marital or familial status, national origin, political affiliation, race, religion, sex, sexual orientation, service in the military, veteran's status, weight, or any other legally protected status under federal, state, or local law. When brought to the attention of NMC, sex discrimination will be appropriately addressed by NMC according to the procedures below, and discrimination on the basis of any other protected category will be addressed in accordance with the applicable policy and/or collective bargaining agreement.

Title IX of the Education Amendments of 1972

NMC does not discriminate in its admissions practices, in its employment practices, or in its educational programs or activities on the basis of sex. As a recipient of federal financial assistance for education activities, NMC is required by Title IX of the Education Amendments of 1972 to ensure that all of its education programs and activities do not discriminate on the basis of sex. Discrimination on the basis of sex includes discrimination on the basis of sex stereotypes, gender identity, gender expression, sexual orientation, and pregnancy or related conditions.

NMC has obligations under Title IX to provide certain supports and modifications to people experiencing pregnancy or related conditions in order to ensure their equal access to NMC’s program or activity. For example, NMC must treat pregnancy or related conditions in the same manner and under the same policies as any other temporary medical conditions and must allow voluntary leaves of absence. Students, employees, or applicants should contact the Title IX Coordinator for more information. Employees or applicants may also contact Human Resources for more information, as additional workplace laws and policies may apply.

Pregnancy or related conditions include pregnancy, childbirth, termination of pregnancy, lactation; medical conditions related to pregnancy, childbirth, termination of pregnancy, or lactation; and recovery from pregnancy, childbirth, termination of pregnancy, lactation, or related medical conditions.

NMC also prohibits retaliation against any person opposing sex discrimination or participating in any sex discrimination investigation or complaint process, whether internal or external to the institution. Sex-based harassment, sexual assault, dating and domestic violence, and stalking are forms of sex discrimination, which are prohibited under Title IX and by NMC policy.

Application of Section 504/Americans with Disabilities Act to this Policy

In both practice and policy, NMC adheres to the requirements of the Americans with Disabilities Act of 1990, as amended in 2008 (ADAAA); Sections 504 and 508 of the Rehabilitation Act of 1973, as amended; and all other federal and state laws and regulations prohibiting discrimination on the basis of disability. NMC is committed to providing individuals with disabilities equal access and opportunity, and strives in its policies and practices to provide for the full participation of individuals with disabilities in all aspects of NMC life.

Parties may request reasonable accommodations for disclosed disabilities through Human Resources (employees) or Disability Support Services (students) at any point relating to the implementation of this policy, including making a disclosure or report, and initiating a resolution procedure. Accommodations will be granted if they are appropriate and do not fundamentally alter the process. Human Resources and Disability Support Services will not affirmatively provide disability accommodations that have not been specifically requested by the parties, even where the parties may be receiving accommodations in other NMC programs and activities.

Purpose of this Policy

This policy identifies and defines conduct prohibited under this policy and the process that will be used to respond to allegations of Prohibited Conduct.

NMC will act on all notices of allegations of sex discrimination or retaliation. It will take necessary measures to end conduct that is in violation of this policy, prevent its recurrence, and remedy its effect on individuals and the community. Within any process related to this policy, NMC provides reasonable accommodations to persons with disabilities and reasonable religious accommodations, when that accommodation is consistent with State and Federal laws.

Situations involving other conduct that may be in violation of other NMC student or employee conduct policies should be reported to Student Life for matters involving students, or Human Resources for matters involving employees.

To Whom this Policy Applies

This policy applies to all students and employees. For the purpose of this policy, employees include individuals employed by NMC directly as well as individuals . This policy also applies to all other individuals participating in or benefitting from NMC programs or activities, including NMC-sponsored events that take place off-campus.

This policy may also apply to off-campus conduct outside of a College program or activity if the TIX Coordinator determines that the off-campus conduct effectively deprives an individual of access to NMC programs or activities. NMC may also extend jurisdiction to online conduct when the Title IX Coordinator determines that the conduct affects a substantial NMC interest. Regardless of where the conduct occurred, NMC will review complaints to determine whether the conduct occurred in the context of an educational program or activity and/or has continuing effects on campus or in an off-campus sponsored program or activity. A substantial NMC interest includes:

Any action that could contribute to a hostile education environment or otherwise interfere with a student’s access to education;
Any action that constitutes a criminal offense as defined by law. This includes, but is not limited to, single or repeat violations of any local, state, or federal law;
Any situation in which it is determined that the Respondent poses an immediate threat to the physical health or safety of any student or other individual;
Any situation that significantly impinges upon the rights, property, or achievements of oneself or others or significantly breaches the peace and/or causes social disorder; and/or
Any situation that is detrimental to the educational interests or mission of NMC.

Members of the NMC community are expected to provide truthful information in any report, meeting, or proceeding under this policy.

Any respondent who is not a NMC student, faculty member, or staff member is generally considered a third party. NMC’s ability to take appropriate corrective action against a third party may be limited and will depend on the nature of the third party’s relationship, if any, to NMC. When appropriate, the Title IX Coordinator will refer such allegations against third-party respondents to the appropriate agency.

The status of a party may impact which resources and remedies are available to them, as described in this policy.

What is Prohibited by this Policy

This policy prohibits sex discrimination, including sex-based harassment, and retaliation as defined below. These acts shall also be referred to as Prohibited Conduct under this policy:

Discrimination on the Basis of Sex:

Discrimination is defined as treating members of a protected category less favorably because of their actual or perceived membership in that category or as having a policy or practice that adversely impacts the members of one protected category more than others.

Discrimination on the basis of sex includes discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.

Sex-Based Harassment:

Sex-based harassment is a form of sex discrimination and means sexual harassment and other harassment on the basis of sex, including on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity. Sex-based harassment includes the following:

Quid pro quo harassment: An employee, agent, or other person authorized by NMC to provide an aid, benefit, or service under NMC’s education program or activity explicitly or impliedly conditioning the provision of such an aid, benefit, or service on a person’s participation in unwelcome sexual conduct.
Hostile environment harassment: Unwelcome sex-based conduct that, based on the totality of the circumstances, is subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from NMC’s education program or activity (i.e., creates a hostile environment). Whether a hostile environment has been created is a fact-specific inquiry that includes consideration of the following:
- The degree to which the conduct affected the complainant’s ability to access NMC’s education program or activity;
- The type, frequency, and duration of the conduct;
- The parties’ ages, roles within NMC’s education program or activity, previous interactions, and other factors about a party that may be relevant to evaluating the effects of the conduct;
- The location of the conduct and the context in which the conduct occurred; and
- Other sex-based harassment in NMC’s education program or activity.
Sexual assault: an offense classified as a forcible or nonforcible sex offense under the uniform crime reporting system of the Federal Bureau of Investigation. Specifically, this includes:

Rape—The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.

Fondling—The touching of the private body parts of another person for the purpose of sexual gratification, without the consent of the victim, including instances where the victim is incapable of giving consent because of their age or because of their temporary or permanent mental incapacity.

Incest—Sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.

Statutory Rape—Sexual intercourse with a person who is under the statutory age of consent.

Dating violence: violence committed by a person:
- Who is or has been in a social relationship of a romantic or intimate nature with the victim; and
- Where the existence of such a relationship shall be determined based on a consideration of the following factors:
  - The length of the relationship;
  - The type of relationship; and
  - The frequency of interaction between the persons involved in the relationship.

Emotional and psychological abuse do not constitute violence for the purposes of this definition.

Domestic violence: felony or misdemeanor crimes of violence committed by a person who:
- Is a current or former spouse or intimate partner of the victim under the family or domestic violence laws of the jurisdiction of NMC, or a person similarly situated to a spouse of the victim;
- Is cohabitating, or has cohabitated, with the victim as a spouse or intimate partner;
- Shares a child in common with the victim; or
- Commits acts against a youth or adult victim who is protected from those acts under the family or domestic violence laws of the jurisdiction.

Emotional and psychological abuse do not constitute violence for the purposes of this definition.

Stalking: Engaging in a course of conduct, on the basis of sex, directed at a specific person that would cause a reasonable person to fear for the person’s safety or the safety of others; or suffer substantial emotional distress.
Sexual coercion: The application of unreasonable pressure, including emotionally or physically manipulative actions or statements, or direct or implied threats, in order to compel the person to engage in sexual activity.
Sexual exploitation: The abuse or exploitation of another person’s sexuality without consent, for the perpetrators own advantage or benefit, or for the benefit or advantage of anyone other than the individual being exploited. Sexual exploitation includes, without limitation, causing or attempting to cause the incapacitation of another person in order to gain a sexual advantage over that person; causing the prostitution of another person; electronically recording, photographing, or transmitting intimate or sexual utterances, sounds or images of another person; allowing third parties to observe sexual acts; engaging in voyeurism; distributing intimate or sexual information about another person; and/or knowingly transmitting a sexually transmitted infection, including HIV, to another person.

Retaliation:

Retaliation is any materially adverse action taken against an individual because they were involved in the disclosure, reporting, investigation, or resolution of a report of Prohibited Conduct. Retaliation includes threats, intimidation, harassment, coercion, discrimination, violence, or any other conduct against any person by NMC, a student, or an employee or other person authorized by NMC to provide aid, benefit, or service under NMC’s education program or activity, for the purpose of interfering with any right or privilege secured by this policy or by law, including Title IX or its regulations. Adverse action does not include perceived or petty slights, or trivial annoyances.

The prohibition against retaliation applies to any individuals who participate (or refuse to participate) in any manner in an investigation, proceeding, or hearing, and to any student who refuses to participate in an investigation, proceeding, or hearing.

Retaliation may occur even where there is a finding of “not responsible” under this policy. Good faith actions lawfully pursued in response to a report of Prohibited Conduct are not Retaliation.

Delegation of Duties Under this Policy

Obligations in this policy assigned to a particular title, such as the Title IX Coordinator, may be designated as appropriate by NMC, including to external professionals.

Academic Freedom

NMC is dedicated to an uncompromising standard of academic excellence and an unwavering commitment to academic freedom, freedom of inquiry, and freedom of expression in the search for truth. This policy and procedures are not intended to inhibit or restrict free expression or exchange of ideas, abridge academic freedom, or prohibit educational content or discussions inside or outside of the classroom that includes germane but controversial or sensitive subject matters protected by academic freedom.

Members of the NMC community are free to express their views on any academic subject — regardless of whether those viewpoints are provocative or controversial. Before proceeding with or continuing an investigation of any report of harassment or retaliation that involves an individual’s speech or other communication, NMC will take care to distinguish between protected speech and hostile environment harassment. The Title IX Coordinator will take action as needed to restore or preserve a person’s access to NMC’s education program or activity.

Title IX Coordinator of the Office of Equal Opportunity and Title IX

NMC is committed to promoting a diverse, equitable, and inclusive working and learning environment free from sex discrimination. The Title IX Coordinator is charged with monitoring NMC’s compliance with Title IX, providing Title IX education and training, and coordinating NMC’s investigation, response, and resolution of all reports of Prohibited Conduct under this policy. The Title IX Coordinator acts with independence and authority and oversees all resolutions under this policy free from bias and conflicts of interest. The Title IX Coordinator is available to meet with any Student, Employee, or other individual to discuss this policy or the accompanying procedures and can be contacted at:

Troy Kierczynski, Vice President for Finance and Administration

Title IX Coordinator

(231) 995–1147

tkierczynski@nmc.edu

Conflicts of Interest or Bias

Any individual carrying out any part of this policy shall be free from any actual conflict of interest or demonstrated bias that would impact the handling of a matter. Should the Title IX Coordinator have a conflict of interest, the Title IX Coordinator is to immediately notify the Dean of Students, who will reassign the role of Title IX Coordinator for purposes of carrying out the handling and finalization of the matter at issue. Should any Title IX investigator, Decisionmaker, or appeals officer have a conflict of interest, the investigator, Decisionmaker, or appeals officer is to notify the Title IX Coordinator upon discovery of the conflict so that the Title IX Coordinator may reassign the role as appropriate. This policy will note where parties have the opportunity to challenge the participation of any individual implementing this policy based on actual conflict of interest or demonstrated bias.

Crime and Incident Disclosure Obligations

The Clery Act is a federal law applicable to postsecondary institutions requiring crime and incident disclosure. It requires, among other things, that NMC report the number of incidents of certain crimes, including some of the Prohibited Conduct in this policy, that occurs on any of NMC’s campuses. The Clery Act also requires NMC to issue timely warnings to the community in certain circumstances. Michigan law also requires an annual report about Title IX matters.

In these required disclosures and reports, NMC will ensure that a complainant’s name and other identifying information is not disclosed. The Title IX Coordinator will refer information to the College’s designated Clery reporting officer when appropriate for a determination about Clery-related actions, such as disclosing crime statistics or sending campus notifications.

Consensual Relationship and Conflicts of Interest

No employee shall participate in a romantic or sexual relationship with a student about whom the employee makes academic, employment, or other decisions. For more information, please see the Conflict of Interest Policy.

B. REPORTING SEX DISCRIMINATION, INCLUDING SEX-BASED HARASSMENT

Employee Reporting Obligations

NMC believes it is important to be proactive in taking reasonable steps to identify and prevent incidents of sex discrimination. All employees, with limited exceptions as identified by NMC, are required to promptly provide to the Title IX Coordinator all complaints or reports of sex discrimination, including sex-based harassment, to the Title IX Coordinator and share all information reported or made available to the employee. If an employee in a supervisory capacity has direct knowledge of an incident of sexual harassment or sex discrimination on the part of, or directed toward, any employee of NMC, that supervisor is required to bring the matter to the attention of the Title IX Coordinator.

NMC also encourages employees who themselves experience sex discrimination to bring their concerns to the Title IX Coordinator, though they are not required to do so.

When providing this information to the Title IX Coordinator, the employee must include their own name and contact information, and all known details about an incident, which may include, if known, the dates, times, locations, names of involved individuals and the nature of the incident.

Aside from this reporting obligation, employees will, to the fullest extent possible, maintain the privacy of an individual’s information, consistent with FERPA.

In addition, certain employees of NMC are considered by law to be mandatory reporters of child abuse. These NMC employees are required by law to report incidents of abuse in accordance with Michigan law. A full description of the mandatory abuse reporting obligation and those covered by that obligation can be found at the following links:

How to Make a Report to NMC

All complaints of violations of this policy will be taken seriously and in good faith. The Title IX Coordinator will provide information and guidance regarding how to file a complaint with NMC and/or local law enforcement, as well as information and assistance about what course of action may best support the individual(s) involved and how best to address the complaint.

Every reasonable effort will be made to maintain the privacy of those making a report to the extent possible. In all cases, NMC will give consideration to the party bringing forward a report with respect to how the matter is pursued. NMC may, when necessary to protect the community, initiate an investigation or take other responsive actions to a report, even when the person identifying a concern chooses not to participate in a resolution process and/or requests that NMC not initiate an investigation.

Employees, students, guests, or visitors who believe that this policy has been violated should promptly contact the Title IX Coordinator or file a Red Flag Incident Report using the following link:

https://cm.maxient.com/reportingform.php?NorthwesternMichiganCollege

There is no defined timeline for making a report of sex discrimination, however, NMC encourages the prompt reporting of a complaint as the ability of NMC to pursue the complaint to conclusion may be hindered by the passage of time.

Amnesty

All student parties will receive amnesty for minor infractions (e.g. alcohol/drug violations) that are secondary to incidents of Prohibited Conduct.

Privacy and Confidentiality

NMC values the privacy of its students, employees, and community members. Individuals should be able to seek the assistance they need and access this policy without fear that the information they provide will be shared more broadly.

All activities under these procedures shall be conducted with the privacy interests of those involved. While NMC will take all reasonable steps to protect the privacy of individuals involved in a complaint covered by this policy, it may be necessary to disclose some information to individuals or offices on campus in order to address a complaint or provide for the physical safety of an individual or the campus. Thus, NMC cannot, and does not, guarantee that all information related to complaints will be kept confidential.

In order to maintain the privacy of evidence gathered as part of any resolution process, access to materials arising from the procedures in this policy will be provided only by a secure method and parties and advisors are not permitted to make copies of any documents shared or make use of the outside of the processes described in this policy. Parties may request to review a hard copy of materials, and NMC will make that available in a supervised or monitored setting. Inappropriately sharing materials provided during this process may constitute retaliation under this policy.

Individuals may speak confidentially with a Confidential Resource. Confidential Resources (e.g., licensed mental health care providers, physicians, clergy) may not report to Title IX Coordinator any identifying information about conduct that may violate NMC’s policies against sex discrimination without the written consent of the individual who supplied the information, unless required by law. Such disclosures will not be reported to the Title IX Coordinator or initiate any process under this policy.

NMC has some employees who are not required to report information about sex discrimination to the Title IX Coordinator. They are privileged and confidential employees whose communications are privileged or confidential under Federal or State law. The employee must be hired for and functioning within the scope of their duties to which the privilege or confidentiality applies. For example, physicians, clergy, and mental health counselors are all confidential employees. Disclosures made to these employees means that information cannot be disclosed to anyone internal or external to NMC without the expressed permission from the individual disclosing the information.

Note that state law requires professional counselors to report: (i) when a patient is likely to engage in conduct that would result in serious harm to the patient or others; (ii) if there is reasonable cause to suspect that a minor has been sexually abused.

A list of resources may be found in Section I of this policy.

Reporting to the Police

Some Prohibited Conduct may constitute a violation of both the law and NMC policy. NMC encourages students to report alleged crimes promptly to local law enforcement agencies. All persons have the right to file with law enforcement, as well as the right to decline to file with law enforcement. The decision not to file shall not be considered as evidence that there was not a violation of NMC policy.

Criminal investigations may be useful in the gathering of relevant evidence, particularly forensic evidence. The standards for finding a violation of criminal law are different from the standards for finding a violation of this policy. Conduct may constitute Prohibited Conduct under this policy even if law enforcement agencies lack sufficient evidence of a crime and decline to prosecute.

Proceedings under this policy may be carried out prior to, simultaneously with, or following civil or criminal proceedings off campus. However, when a complaint is made to NMC as well as to law enforcement, NMC may delay its process if a law enforcement agency requests that NMC delay its process for a reasonable amount of time to allow law enforcement to gather evidence of criminal misconduct. Criminal or legal proceedings are separate from the processes in this policy and do not determine whether this policy has been violated.

All investigations and hearings under this policy will be thorough, reliable and impartial, and will seek to collect evidence and names of witnesses to gather information that is directly or substantially relevant to whether the alleged policy violation occurred, and will not be based on the grounds that civil or criminal charges involving the same incident have been filed or that charges have been dismissed or reduced.

In the case of an emergency, where the physical well-being of a member of the NMC community or the safety of NMC as an institution is threatened, any individual with such knowledge should promptly dial 9-1-1 and notify NMC Security at (231) 995-1111. NMC may take any immediate steps as may be necessary and appropriate under the circumstances to ensure the well-being of the NMC community and NMC as an institution.

C. RESPONDING TO A REPORT

The following process will be used following the receipt of a report of sex discrimination.

Initial Contact

Following receipt of a report alleging a potential violation of this policy, the Title IX Coordinator will contact the complainant to meet with the Dean of Students (student complainant) or Associate Vice President of Human Resources (employee complainant) for an initial intake and assessment meeting, and will provide the following:

An invitation to meet to offer assistance and explain their rights, resources, and options under this policy;
Access to this policy;
Information regarding available campus and community resources for counseling, health care, mental health, or victim advocacy. Upon request, information regarding legal assistance, visa and immigration assistance, student financial aid and other available services may be provided;
The availability of supportive measures, regardless of whether a complaint is filed and/or any resolution is initiated;
The options for resolution (no action, prevention, informal resolution, investigation) and how to initiate such resolution processes;
The right to notify law enforcement as well as the right not to notify law enforcement;
The importance of preserving evidence and, in the case of potential criminal misconduct, how to get assistance from local law enforcement in preserving evidence;
The right to one (1) advisor of choice during NMC proceedings under this policy including the initial meeting with the Title IX Coordinator
A statement that retaliation for filing a complaint, or participating in the complaint process, is prohibited.
Information on how to initiate an investigation or informal resolution process.

Initial Intake and Assessment

The initial intake and assessment process seeks to gather information about the nature and circumstances of the report to determine whether this policy applies to the report and, if so, which resolution process may be appropriate, as well as which section of the resolution procedures apply based on the conduct and the status of the parties. The Title IX Coordinator may also determine that the provision of supportive measures only is the appropriate response under the policy. The initial assessment is not a finding of fact or responsibility. If the individual bringing forward the complaint is not the actual complainant, the Title IX Coordinator will limit communication to general information on policies and processes.

Should the complainant wish to initiate a resolution process, the Title IX Coordinator will determine whether this policy applies and, if so, the appropriate process under this policy. The Title IX Coordinator will communicate to the complainant this determination.

If the information provided does not suggest a potential violation of this policy, the Title IX Coordinator will provide the complainant written notice that the matter is being referred for handling under a different policy, and/or to another appropriate office for handling.

Requests for Confidentiality or No Further Action

When a complainant requests that NMC not use their name as part of any resolution process, or that NMC not take any further action, NMC will generally try to honor those requests. However, there are certain instances in which NMC has a broader obligation to the community and may need to act against the wishes of the complainant. In such circumstances, the Title IX Coordinator will notify the complainant in writing of the need to take action. The factors the Title IX Coordinator will consider when determining whether to act against the wishes of a complainant include:

The complainant’s request not to proceed with initiation of a complaint;
The complainant’s reasonable safety concerns regarding initiation of a complaint;
The risk that additional acts of Prohibited Conduct would occur if a complaint is not initiated;
The severity of the alleged Prohibited Conduct, including whether the discrimination, if established, would require the removal of a respondent from campus or imposition of another disciplinary sanction to end the discrimination and prevent its recurrence;
The age and relationship of the parties, including whether the respondent is an employee of NMC as defined by this policy;
The scope of the alleged discrimination, including information suggesting a pattern, ongoing sex discrimination, or sex discrimination alleged to have impacted multiple individuals;
The availability of evidence to assist a Decisionmaker in determining whether sex discrimination occurred; and
Whether NMC could end the alleged sex discrimination and prevent its recurrence without initiating its resolution procedures under this policy.
Whether the conduct as alleged presents an imminent and serious threat to the health or safety of the complainant or other persons, or that the conduct as alleged prevents NMC from ensuring equal access on the basis of sex to its education program or activity.

Emergency Removal

For sex discrimination and sex-based harassment, NMC retains the authority to remove a respondent from NMC’s program or activity on an emergency basis, where NMC (1) undertakes an individualized safety and risk analysis, (2) determines that an immediate and serious threat to the health or safety of a complainant or any student, employee, or other individual arising from the allegations of sex discrimination justifies a removal, and (3) NMC provides the respondent with notice of and an opportunity to challenge the decision immediately following the removal.

The respondent may challenge the decision immediately following the removal, by notifying the Title IX Coordinator in writing. NMC will designate an impartial individual, not otherwise involved in the case, to consider the challenge to the removal and determine if the emergency removal was reasonable.

For all other Prohibited Conduct, NMC may defer to its interim suspension policies for students and administrative leave for employees.

Administrative Leave

NMC retains the authority to place an employee respondent on administrative leave during a pending complaint process under this policy, with or without pay as appropriate. Administrative leave may be a supportive measure, emergency removal, or consistent with applicable law and CBAs. Administrative leave implemented as a supportive measure or as emergency removal is subject to the procedural provisions above, including the right to challenge the decision to implement that measure.

Dismissal of a Complaint

Before dismissing a complaint, NMC will make reasonable efforts to clarify the allegations with the complainant.

NMC may dismiss a complaint if:

NMC is unable to identify the respondent after taking reasonable steps to do so;
The respondent is not participating in NMC's education program or activity and is not an NMC employee as defined under this policy;
The complainant voluntarily withdraws their complaint in writing and the Title IX Coordinator declines to initiate a complaint;
The complainant voluntarily withdraws some but not all allegations in a complaint in writing, and NMC determines that the conduct that remains alleged in the complaint would not constitute Prohibited Conduct under this policy; or
NMC determines the conduct alleged in the complaint, even if proven, would not constitute Prohibited Conduct under this policy.

Upon dismissal, NMC 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, then NMC will notify the parties simultaneously in writing. If a dismissal of one or more allegations changes the appropriate decisionmaking process under these procedures, the Title IX Coordinator will include that information in the notification.

NMC will notify the complainant that a dismissal may be appealed on the basis outlined in the Appeals section. If dismissal occurs after the respondent has been notified of the allegations, then NMC will also notify the respondent that the dismissal may be appealed on the same bases. If a dismissal is appealed, NMC will follow the procedures outlined in the Appeals section of these procedures.

When a complaint is dismissed, NMC will, at a minimum:

Offer supportive measures to the complainant as appropriate;
If the respondent has been notified of the allegations, offer supportive measures to the respondent as appropriate; and,
Take other prompt and effective steps, as appropriate, through the Title IX Coordinator to ensure that sex discrimination does not continue or recur within NMC's education program or activity.

A complainant who decides to withdraw a complaint or any portion of it may later request to reinstate it or refile it.

Referrals for Other Misconduct

NMC has the discretion to refer complaints of misconduct not covered by this policy for handling under any other applicable NMC policy or code. As part of any such referral for further handling, NMC may use evidence already gathered through any process covered by this policy.

Should there be a conflict between the provision of this policy and other NMC policies, procedures, rules, regulations, or terms or conditions of employment, the provisions of this policy will govern unless specifically stated otherwise.

This policy and these procedures are separate from NMC’s student disciplinary processes, by which NMC may bring a discipline charge against a student for violating NMC’s Student Rights and Responsibilities Policy, which can be found at the following link:

https://www.nmc.edu/about/policies/board-staff/D-602.01.html

Consolidation of Cases

NMC may consolidate complaints under this policy as appropriate: for example, if there are multiple complaints where the allegations of Prohibited Conduct arise out of the same facts or circumstances, or there are multiple complaints with overlapping parties.

NMC also reserves the right to use this policy to adjudicate other allegations and conduct charges as defined by policies outside of the scope of this policy in instances when the conduct is associated with an alleged issue of Prohibited Conduct under this policy. The Title IX Coordinator will address these consolidated complaints in collaboration and coordination with other appropriate offices, such as Student Life and Human Resources. Allegations of a violation of a separate policy are not required to be handled using the procedural requirements set forth in this policy.

Student Withdrawal or Employee Resignation while Matters are Pending

If a student or employee respondent permanently withdraws or resigns from NMC with unresolved allegations pending, NMC will consider whether and how to proceed with the resolution process. NMC will continue to address and remedy any systemic issues or concerns that may have contributed to the alleged violation(s) and any ongoing effects of the alleged Prohibited Conduct.

A student respondent who withdraws or ceases enrollment while the process is pending may not return to NMC without first resolving any pending matters. Such exclusion applies to all NMC campuses and programs. NMC reserves the right to place a judicial hold on a student account, requiring a student to resolve a judicial matter before registering for future programs and activities. They may also be barred from NMC property or events. If a student respondent withdraws or takes a leave for a specified period of time (e.g., one semester or term), the resolution process may continue remotely and that student is not permitted to return to NMC unless and until the matter is fully resolved.

An employee respondent who resigns with unresolved allegations pending is not eligible for rehire with NMC and the records retained by the Title IX Coordinator and Human Resources will reflect that status.

D. OPTIONS FOR RESOLUTION

There are multiple ways to resolve a complaint or report of sex discrimination. Whenever possible, NMC will utilize the resolution method chosen by the complainant. During the resolution of a complaint, the Title IX Coordinator will determine whether to implement reasonable supportive measures designed to assist all parties (complainants and respondents) and community members in maintaining access to and participation in NMC programs, services and activities during the resolution of the complaint.

This section includes information on support-based resolution, informal resolution, and investigation and decisionmaking procedures.

Support-Based Resolution

A support-based resolution is an option for a complainant who does not wish NMC to take any further steps to address their concern, and when the Title IX Coordinator determines that another form of resolution, or further action, is not required. Some types of support that may be appropriate include: adjustments or changes to class schedules; moving from one residence hall room to another; adjusted deadlines for projects or assignments; adjustments to work schedule or arrangements; escorts to and around campus; and/or counseling.

A support-based resolution does not preclude later use of another form of resolution, for example if new information becomes available to NMC and the Title IX Coordinator determines there is need for additional steps to be taken, or the complainant later decides to pursue a Resolution Agreement or investigation, or investigation and hearing.

Informal Resolution

Informal resolution is an alternative to the investigation and decisionmaking procedures where the parties each voluntarily agree to resolve the complaint in a way that does not include an investigation and does not include any finding of responsibility. Informal resolution is a voluntary, structured interaction between or among affected parties that balances support and accountability. If NMC offers informal resolution to the parties, and they voluntarily consent to engage in that process, the Title IX Coordinator must still take other prompt and effective steps as needed to ensure that sex discrimination does not continue or recur within the education program or activity. Parties and the Title IX Coordinator may agree to pause or exit the investigation and decisionmaking resolution procedures to explore informal resolution.

Any party may design the proposed agreement between the parties. The Title IX Coordinator must approve of the use of the informal resolution process, and approve the final agreement between the parties. Informal resolution may be initiated at any time prior to the release of the final determination. Because informal resolution does not involve an investigation, there is not any determination made as to whether a respondent violated this policy.

The Title IX Coordinator has the discretion to determine that informal resolution is not an appropriate way to address the reported conduct, and that the matter must instead be resolved through investigation and decisionmaking

Initiating the Informal Resolution Process

Prior to the initiation of informal resolution, the Title IX Coordinator will provide the Parties written notice that includes:

The specific allegation and the specific conduct that is alleged to have occurred;
The requirements of the informal resolution process;
Any consequences resulting from participating in the informal resolution process, including the records that will be maintained or could be shared, and whether NMC could disclose such information for use in a future NMC resolution process, including an investigation and resolution process arising from the same or different allegations, as may be appropriate;
Notice that an agreement resulting from the informal resolution process is binding only on the parties and is not subject to appeal;
Notice that once the Agreement is finalized and signed by the Parties, they cannot initiate or continue an investigation procedure arising from the same allegations;
A statement indicating that the decision to participate in the informal resolution process does not presume that the conduct at issue has occurred;
A statement that the respondent is presumed not responsible for violating this policy, unless respondent admits to violations of this policy;
An explanation that all parties may be accompanied by an advisor of their choice, who may be a parent, colleague, friend, or attorney;
A statement that any party has the right to withdraw from the informal resolution process and initiate or resume resolution procedures at any time before agreeing to a resolution;
The date and time of the initial meeting with staff or the Title IX Coordinator, with a minimum of 3 days’ notice;
Information regarding supportive measures, which are available equally to the parties; and
The potential terms that may be requested or offered in an informal resolution

Facilitating an Agreement

If all parties are willing to explore informal resolution, the Title IX Coordinator or their designee will then meet separately with each party to discuss the informal resolution process and facilitate an agreement. If an agreement cannot be reached, either because the parties do not agree, determine they no longer wish to participate in the informal resolution process, or the Title IX Coordinator does not believe that the terms of the agreement or continuing the informal resolution process is appropriate, the Title IX Coordinator may decide that the reported conduct will instead be addressed through the investigation and decisionmaking process. The Title IX Coordinator will inform the parties of such a decision in writing.

Informal resolution processes are managed by facilitators who do not have a conflict of interest or bias in favor of or against complainants or respondents generally or regarding the specific parties in the matter. The Title IX Coordinator may serve as the facilitator, subject to these restrictions. The investigator or Decisionmaker for the matter may not facilitate an informal resolution in that same matter.

Any party may craft or create the terms of their agreement and will be asked for their suggestions or ideas. Examples of agreements may include but are not limited to:

an agreement that the respondent will change classes or housing assignments;
an agreement that the parties will not communicate or otherwise engage with one another;
an agreement that the parties will not contact one another;
completion of a training or educational project by the respondent;
completion of a community service project by the respondent;
an agreement to engage in a restorative justice process or facilitated dialogue; and/or
discipline agreed upon by all parties.

In order to facilitate informal resolution, information shared by any party will not be used in any related resolution process of the same complaint under this policy. No evidence concerning the allegations obtained within the informal resolution process may be disseminated to any outside person, provided that any party to the informal resolution process may generally discuss the allegations under investigation with a parent, advisor, or other source of emotional support, or with an advocacy organization. An admission of responsibility made during an informal resolution process, however, may not be incorporated into the investigation and adjudication proceeding.

Finalizing the Resolution Agreement

Once the final terms of the resolution agreement have been agreed upon by all parties, in writing, and approved by the Title IX Coordinator, the matter will be considered closed, and no further action will be taken. Once signed, no appeal is permitted. The informal resolution process is generally expected to be completed within thirty (30) days and may be extended by the Title IX Coordinator as appropriate. All parties will be notified, in writing, of any extension and the reason for the extension.

Records of an informal resolution process can be shared with other offices as appropriate.

Any violations of the terms of the Resolution Agreement may result in disciplinary action.

Investigation & Decisionmaking Resolution

This policy includes two types of investigation and decisionmaking procedures:

All Prohibited Conduct matters except for sex-based harassment involving a student as a party,
Sex-based harassment involving a student as a party.

The following information applies to both types of the investigation and decision-making procedures.

Acceptance of Responsibility

If a respondent accepts responsibility for all or part of the Prohibited Conduct alleged, the Title IX Coordinator or designated sanctioning officer will issue an appropriate sanction or responsive action as to those violation(s) and continue processing any remaining allegations of Prohibited Conduct, if any.

Assignment of the Investigator and/or Decisionmaker

NMC will assign a trained investigator and/or Decisionmaker to conduct an adequate, reliable, and impartial investigation and determination, if applicable, in a reasonably prompt timeframe. NMC reserves the right to utilize internal or external investigators, Decisionmakers, or hearing officers.

All parties have the option to participate in the investigation and/or hearing, and each have the same rights during the resolution process including the right to an advisor, to submit relevant witness names and evidence, and to review the evidence gathered by the investigator prior to the investigator providing the final report to the Decisionmaker. In cases where there is a hearing, all parties have the same rights at the hearing, including the right to review any evidence that will be considered by the Decisionmaker prior to the hearing.

The investigator will establish deadlines for submission of names of relevant witnesses and submission of evidence and communicate those deadlines to the parties in writing.

Conflict of Interest or Bias

After a Notice of Investigation is issued to all parties, any party may object to the participation of the Title IX Coordinator or designated investigator on the grounds of a demonstrated bias or actual conflict of interest. All parties will have three (3) days from the date of the Notice of Investigation to object to the selection of the investigator or the Title IX Coordinator. Objections to the Title IX Coordinator are to be made, in writing, to the Dean of Students. Objections to the appointment of the investigator are to be made in writing, to the Title IX Coordinator. All objections will be considered, and changes made as appropriate. If the objection is substantiated as to either the Title IX Coordinator or the Investigator, that individual shall be replaced. Any change will be communicated in writing.

Timeline

In those cases that do not include a hearing, NMC strives to complete the investigation process within ninety (90) days from the date of the Notice of Investigation. In those cases that include a hearing, NMC strives to complete the investigation process within sixty (60) days from the date of the Notice of Investigation, and complete the hearing within sixty (60) days of the Notice of Hearing.

The timeline for any part of the resolution process may be extended for good cause by the Title IX Coordinator. All parties shall be notified, in writing, of any extension to the timeline that is granted, the reason for the extension, and the new anticipated date of conclusion of the investigation and/or hearing. Good cause reasons for extension may include ensuring availability of witnesses and other participants and ensuring participants have sufficient time to review materials.

NMC shall not unreasonably deny a student party’s request for an extension of a deadline related to a complaint during periods of examinations or school closures.

The investigator and/or Title IX Coordinator shall provide the parties with periodic status updates, in writing.

Burden and Standard of Review

NMC has the burden of conducting an investigation that gathers sufficient evidence to determine whether Prohibited Conduct occurred. This burden does not rest with any party, and any party may decide to limit their participation in part or all of the process, or to decline to participate. This does not shift the burden of proof away from NMC and does not indicate responsibility. The standard of proof used in any investigation and decisionmaking process is the preponderance of the evidence standard, which means more likely than not.

Written Notice of Meetings

NMC will provide to a party or witness whose participation is invited or expected, written notice of the date, time, location, participants, and purpose of all meetings or proceedings with sufficient time to prepare to participate.

Evidence Gathering

Interviews

The investigator will interview all parties and relevant witnesses and gather relevant documentary evidence provided by the parties and any identified witnesses. Interviews may be conducted in person, or via video conference. When a party meets with an investigator, the investigator will ask questions related to the allegations in the complaint and a party is given the opportunity to speak to the allegations and related events. Parties may identify fact witnesses and provide evidence that is relevant to the allegations and not otherwise impermissible. This will include inculpatory evidence (that tends to show it more likely that someone committed a violation) and exculpatory evidence (that tends to show it less likely that someone committed a violation). The investigator ultimately determines whom to interview to determine the facts relevant to the complaint.

Impermissible Evidence

The following types of evidence, and questions seeking that evidence, are impermissible. This means this information will not be accessed or considered, except by NMC to determine whether one of the exceptions listed below applies. This information will not be disclosed or otherwise used, regardless of relevance:

Evidence that is protected under a privilege recognized by Federal or State law, unless the person to whom the privilege or confidentiality is owed has voluntarily waived the privilege or confidentiality;
Evidence provided to an employee designated by NMC as exempt from internal reporting under this policy, unless the person who made the disclosure or otherwise provided evidence to that employee has voluntarily consented to re-disclosure;
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 NMC obtains that party’s or witness’s voluntary, written consent for use in its resolution procedures; and
Evidence that relates to the complainant’s sexual interests or 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 alleged sex-based harassment. The fact of prior consensual sexual conduct between the parties does not by itself demonstrate or imply the complainant’s consent to other sexual activity or preclude a determination that Prohibited Conduct occurred.

Investigation & Decisionmaking Procedures for All Prohibited Conduct Except Sex-Based Harassment Involving a Student Party

This procedure is for all matters of Prohibited Conduct being investigated and determined under this policy except for sex-based harassment involving a student as a party.

NMC will assign a trained investigator and/or trained hearing officer to conduct an adequate, reliable, and impartial investigation and decisionmaking process in a reasonably prompt timeframe. NMC reserves the right to utilize internal or external investigators and hearing officers.

All parties have the option to participate in the investigation and/or hearing, and each have the same rights during the resolution process including the right to an advisor, to submit relevant witness names and evidence, and to review the evidence gathered by the investigator prior to the investigator’s making any findings. In the event of a hearing, all parties have the same rights, including the right to review any evidence that will be considered by the Hearing Officer prior to the hearing.

Notice of Investigation

Prior to the start of an investigation, the Parties will be provided a written Notice of Investigation communicating the initiation of an investigation. Should additional allegations be brought forward, or information regarding location or date of the incident(s), a revised written Notice of Investigation shall be provided to all parties.

The Notice of Investigation shall include, at a minimum:

NMC’s resolution procedures, including the applicable determination procedure, and any alternative resolution process, with a link to the full procedures;
The specific allegations, including the identity of the parties, and dates and location if known;
Sufficient information available at the time to allow the parties to respond to the allegations, including the identities of the parties involved in the incident(s), a description of the facts alleged to constitute Prohibited Conduct, the type of Prohibited Conduct, and the date(s) and location(s) of the alleged incident(s);
A statement that Retaliation is prohibited;
Contact information for the assigned investigator and Decisionmaker, as well as the process for raising a challenge to the appointed investigator, Decisionmaker, or Title IX Coordinator, and the deadline for doing so.
Expected length of the major stages of the resolution process, as well as any applicable deadlines.
Whether the Investigator, or another individual, shall serve as the Decisionmaker.
A statement that the respondent is presumed not responsible for Prohibited Conduct until a determination is made at the conclusion of the investigation and decisionmaking procedures.

Prior to such a determination, the parties will have an opportunity to present relevant and not otherwise impermissible evidence to a trained, impartial Decisionmaker;

The parties may have one (1) advisor of their choice who may be a friend, colleague, therapist, or attorney;
The parties are entitled to an equal opportunity to access the relevant and not otherwise impermissible evidence, and to provide a response;
A statement that NMC prohibits knowingly making false statements or knowingly submitting false information during resolution procedures, with a link to the relevant policy(ies).
If known, the date and time of the initial interview with the investigator, with a minimum of five (5) days’ notice.

Individual Interviews

The investigator will hold individual interviews with parties and witnesses to ask relevant and not otherwise impermissible questions and follow-up questions, including questions exploring credibility. Only the investigator and the party or witness may attend each individual interview, and a party may be accompanied by their advisor. Additional attendees may be permitted at the discretion of the Title IX Coordinator in connection with an approved disability-related accommodation. All persons present at any time during any part of the investigation or resolution process are expected to maintain the privacy of the proceedings and not discuss or otherwise share any information learned as part of those proceedings, and may be subject to further NMC discipline for failure to do so.

NMC may also adopt and apply other reasonable rules regarding decorum, provided they apply equally to the parties.

NMC will share expectations of decorum to be observed at all times in any meeting or proceeding under this policy. These expectations are applied equally to all parties and advisors. NMC has the discretion to remove, with or without prior warning, from any meeting or proceeding an involved party, witness, or advisor who does not comply with these expectations and any other applicable NMC rules.

Evidence Review

At the conclusion of all fact-gathering, the investigator will provide each party and their advisor, if any, the opportunity to review all relevant and not otherwise impermissible evidence gathered. The purpose of the inspection and review process is to allow each party the equal opportunity to meaningfully respond to the evidence prior to conclusion of the investigation and to submit any additional relevant evidence, questions for parties or witnesses, or the names of any additional witnesses with relevant information. This is the final opportunity to offer evidence, or names of witnesses. Given the sensitive nature of the information provided, NMC will facilitate this review in a secure manner. None of the parties nor their advisors may copy, remove, photograph, print, image, videotape, record, or in any manner otherwise duplicate or remove the information provided. Any student or employee who fails to abide by this may be subject to discipline. Any advisor who fails to abide by this may be subject to discipline and/or may be excluded from further participation in the process.

The parties will have a minimum of 5 days to inspect and review the evidence and submit a written response in writing to the investigator. NMC will provide access to copies of the parties’ written responses to the investigator to all parties and their advisors, if any. The Title IX Coordinator shall have the discretion to extend the evidence review period based on the volume and nature of the evidence. At the conclusion of the evidence review, when deemed appropriate by the investigator, the investigator shall then conduct any additional fact-gathering as may be necessary. If new, relevant evidence is gathered during this second fact-gathering period, the new evidence will be made available for review by the parties and their advisors. The parties shall have 5 days to provide a response to the newly-gathered evidence. No new evidence will be accepted as part of any response, except that the investigator shall have the discretion to accept relevant evidence that was not previously available or known to exist, and that was not previously discoverable with the exercise of reasonable diligence.

The investigator will consider the parties’ written responses before finalizing the investigation report.

The parties may each submit a written impact statement prior to the conclusion of the resolution process. The impact statement is not evidence and will be reviewed only after a determination of responsibility is reached.

Investigation Report

The investigator, who may also serve as the Decisionmaker, shall evaluate the relevant and not impermissible evidence and make a factual determination regarding each allegation, and also determine whether a violation of the policy occurred. The investigator may choose to place less or no weight upon statements by a party or witness who refused to respond to questions deemed relevant and not impermissible, or declined to participate. The investigator will not draw an inference about whether Prohibited Conduct occurred based solely on a party’s or witness’s refusal to respond to questions.

The investigator shall prepare a report which shall include:

A description of the allegations of Prohibited Conduct;
Information about the policies and procedures used to evaluate the allegations;
A description of the procedural steps taken from the receipt of the complaint through the determination, including any notifications to the parties, interviews with parties and witnesses, and methods used to gather other evidence;
An evaluation of the relevant and not otherwise impermissible evidence and the rationale for that evaluation;
Findings of fact for each allegation, with rationale;
Conclusions regarding which section of this policy or other NMC policy, if any, the respondent has or has not violated, with rationale.
In the event that the Decisionmaker has determined that a violation of NMC policy has occurred, the Decisionmaker will consult with the Associate Vice President of Human Resources or the Dean of Students as appropriate to determine the sanction and will include the sanction and rationale in the report.

This report shall be provided to the Title IX Coordinator. The Title IX Coordinator shall then determine the appropriate remedy(ies) for the complainant and any impacted parties.

The Title IX Coordinator shall then provide the parties and their advisors, if any, with a written Notice of Outcome and a copy of the investigation report. The Notice of Outcome shall include:

A statement of, and rationale for, any disciplinary sanctions NMC imposed on the respondent;
A statement as to whether remedies will be provided to the complaint;
For the complainant, a description of any remedies that apply to the complainant;
NMC’s procedures and the permitted reasons for the parties to appeal, including identifying the Appeals Officer.;
How to challenge participation by the Appeals Officer for bias or conflict of interest, which the Title IX Coordinator will resolve in their sole discretion.

The determination regarding responsibility becomes final either on the date that NMC 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.

Investigation & Decisionmaking Procedures in Cases of Sex-Based Harassment Involving a Student

The following describes the investigation and decisionmaking procedures for matters of sex-based harassment in which a student is either a complainant or respondent, regardless of the status of the other party.

Notice of Investigation

The Notice shall include, at a minimum:

NMC's investigation procedures, including the applicable determination procedure that will be used in this investigation and resolution, and a link to the relevant policies;
Information about the informal resolution process, with a link to the full procedures;
Sufficient information available at the time to allow the parties to respond to the allegations, including the identities of the parties involved in the incident(s), a description of the facts alleged to constitute Prohibited Conduct, the type of Prohibited Conduct, and the date(s) and location(s) of the alleged incident(s);
A statement that retaliation is prohibited;
Whether the investigator, or another individual, shall serve as the Decisionmaker;
Expected length of the major stages of the resolution process, as well as any applicable deadlines;
A statement that the investigator will establish and communicate, in writing, all investigation deadlines, including the final deadlines for submitting names of witnesses, evidence, and relevant questions to ask a party or witness. These deadlines may be extended by the Title IX Coordinator for good cause, and any changes will be provided, in writing, to the parties, along with the rationale for the revised deadline(s).
The process for raising a challenge to the appointed investigator, Decisionmaker or Title IX Coordinator, and the deadline for doing so.
A statement that the respondent is presumed not responsible for Prohibited Conduct until a determination is made at the conclusion of the resolution process. Prior to such a determination, the parties will have an opportunity to present relevant and not otherwise impermissible evidence to a trained, impartial Decisionmaker;
A statement that the parties may have an advisor of their choice who may be a friend, parent, therapist, colleague, or attorney;
A statement that the parties are entitled to an equal opportunity to access the relevant and not otherwise impermissible evidence or an investigation report that accurately summarizes this evidence, and that the parties are entitled to an equal opportunity to access the relevant and not impermissible evidence upon the request of any party; and
NMC's Student Rights and Responsibilities Policy prohibits furnishing false statements or knowingly submitting false information during resolution procedures.
If known, the date and time of the initial interview with the Investigator, with a minimum of five (5) days’ notice.

Individual Interviews

The investigator will hold individual interviews with parties and witnesses to ask relevant and not otherwise impermissible questions and follow-up questions, including questions exploring credibility, and to request of the parties the names of relevant witnesses and relevant evidence. Only the investigator and the party or witness may attend each individual interview, and a party may be accompanied by their advisor. Additional attendees may be permitted at the discretion of the Title IX Coordinator in connection with an approved disability-related accommodation. All persons present at any time during any part of the investigation or resolution process are expected to maintain the privacy of the proceedings and not discuss or otherwise share any information learned as part of the resolution process, and may be subject to further NMC discipline for failure to do so.

The investigator will then gather from parties, witnesses, and other sources, all relevant evidence.

The individual interviews may be conducted with all participants physically present in the same geographic location, or, at NMC’s discretion, with all participants joining virtually through a video conferencing option. The investigator will determine, in their sole discretion, whether parties and witnesses are likely to provide relevant information about the allegations, and has the sole discretion to determine which parties and witnesses to call to an interview. The investigator may conduct follow-up interviews as they deem appropriate.

Investigator Determination of Relevance

The investigator will determine whether parties and witnesses are likely to provide relevant information about the allegations, and has the sole discretion to determine which parties and witnesses to call to individual follow-up meetings.

The investigator will review all evidence gathered through the investigation and determine what evidence is relevant and what evidence is impermissible regardless of relevance. Character evidence that is not relevant will not be considered.

Evidence Review

At the conclusion of all fact-gathering, the investigator will provide each party and their advisor the opportunity to review all relevant and not otherwise impermissible evidence gathered. In the event that an audio or audiovisual recording is shared, the recording will only be made available at an in-person and monitored meeting on campus, and will not otherwise be transmitted for review, so as to maintain the privacy of those participating in the process.

The purpose of the inspection and review process is to allow each party the equal opportunity to meaningfully respond to the evidence prior to conclusion of the investigation and to submit any additional relevant evidence, questions for parties or witnesses, or the names of any additional witnesses with relevant information. This is the final opportunity to offer evidence or names of witnesses. Evidence not provided during the investigation process will not be considered by the Decisionmaker. Given the sensitive nature of the information provided, NMC will facilitate this review in a secure manner. None of the parties nor their advisors may copy, remove, photograph, print, image, videotape, record, or in any manner otherwise duplicate or remove the information provided. Any student or employee who fails to abide by this may be subject to discipline. Any advisor who fails to abide by this may be subject to discipline and/or may be excluded from further participation in the process.

The parties will have a minimum of 5 days to inspect and review the evidence and submit a written response in writing to the investigator. The Title IX Coordinator shall have the discretion to extend the evidence review period based on the volume and nature of the evidence.

When deemed appropriate by the investigator, the investigator shall then conduct any additional fact-gathering as may be necessary. If new, relevant evidence was submitted as part of evidence review, or is gathered during this second fact-gathering period, the new relevant evidence will be made available for review by the parties and their advisors. The parties shall have 5 days to provide a response to the newly-gathered evidence. No new evidence will be accepted as part of any response, except that the investigator shall have the discretion to accept relevant evidence that was not previously available or known to exist, and that was not previously discoverable with the exercise of reasonable diligence.

The investigator will consider the parties’ written responses before finalizing the investigation report.

Investigation Report

The investigator will prepare a written report summarizing all of the relevant evidence gathered and all steps taken during the investigation process. The investigator will also include as an attachment all relevant evidence gathered during the investigation, as well as all interview notes.

Conclusion of Investigation, Notice of Hearing

Once the investigation report is final, the report together with all attachments shall be provided to each party and to their advisor, if any, in a secure manner (e.g., by providing digital copies of the materials through a protected, “read-only” web portal). Each party shall have ten (10) days to provide a response. The response, if any, shall be provided to the Hearing Officer.

Following conclusion of the investigation, each party shall be provided with a Notice of Hearing, which shall include information regarding the date of the hearing, the identity of the Hearing Officer, the process to be used at the hearing, deadlines for submission of evidence, names of witnesses, or questions to be reviewed by the Hearing Officer to ensure they are relevant to the allegations. The hearing shall be scheduled no less than ten (10) days from the date of the Notice of Hearing.

Within three (3) days of receipt of the Notice of Hearing, either party may object to the Hearing Officer on the basis of a demonstrated bias or actual conflict of interest. Any objection is to be in writing and sent to the Title IX Coordinator. Should the Title IX Coordinator determine that there is an actual bias or conflict of interest, the Title IX Coordinator shall remove the Hearing Officer and appoint another.

Hearing Procedures

The purpose of a hearing is for a Hearing Officer to determine whether the conduct occurred as alleged, and if so, whether that conduct violates this policy. NMC expects that all individuals who participate in the hearing process do so truthfully and that all who have a responsibility for carrying out one or more aspects of the hearing process do so fairly and without prejudice or bias. Hearings may be conducted in person or via videoconferencing. The Title IX Coordinator may determine that the hearing will continue in the absence of any party or any witness.

NMC will appoint a Hearing Officer, who may be the same person as the Title IX Coordinator or investigator, who will determine whether a violation of NMC policy has occurred. The Hearing Officer shall have the authority to determine the relevance of evidence submitted, and of questions asked, to limit the time allotted to any phase of the hearing, and/or to limit the time allotted to the full hearing. The Hearing Officer shall not draw an inference about the determination regarding responsibility based solely on a party’s absence from the hearing or refusal to answer questions posed.

Each hearing shall be recorded by NMC and this recording will be considered the only official recording of the hearing. No other individual is permitted to record while the hearing is taking place. The recording is the property of NMC but shall be available for listening until the conclusion of the appeals process to complainant, respondent, their respective advisors, Hearing Officer, and Appeals Officer by contacting the Title IX Coordinator.

Prior to the Hearing

The parties and the Hearing Officer all have the right to call witnesses. Witnesses participating in the hearing must have information relevant to the allegations. Parties who wish to call witnesses must submit the name of the witness at least five (5) days in advance of the hearing.

Only witnesses who participated in the investigation will be permitted to participate in the hearing, unless the witness was otherwise unknown or not known to have relevant information during the course of the investigation. If the witness did not participate in the investigation, the party must also provide the reason the witness was not interviewed by the investigator, and what information the witness has that is relevant to the allegations. The Hearing Officer will then determine whether the witness has relevant information and if there is sufficient justification for permitting the witness to participate. The Hearing Officer may instead send the case back to the investigator to interview the newly proffered witness prior to the hearing taking place.

A list of witnesses approved by the Hearing Officer will be provided to the parties at least three (3) days prior to the hearing.

Three (3) days prior to the hearing, each party shall submit to the Hearing Officer a preliminary list of questions they wish to pose to the other party, or to a witness. If the Hearing Officer determines that any questions are not relevant or seek otherwise impermissible evidence, the Hearing Officer shall exclude the question and explain the reason for the exclusion of the question at the hearing. Questions that are unclear or harassing of the party or witness being questioned will not be permitted. The Hearing Officer must give a party an opportunity to clarify or revise any question that the Hearing Officer has determined is unclear or harassing and, if the party sufficiently clarifies or revises a question, and the question is relevant, the question will be asked.

Advisor

Each party is entitled to be accompanied by one advisor at the hearing. The role of the advisor is to assist the party with understanding and navigating the proceedings, and at the direction of the Hearing Officer, pose questions developed by their advisee to the other party or witnesses. The advisor may not represent, advocate for, respond for, or otherwise speak on behalf of, the party during the hearing.

In the event that a party does not appear for the Hearing, the advisor for that party may not participate in the hearing and or submit questions to be asked on behalf of the absent party.

An advisor of NMC's choosing shall be provided for any party who does not have an advisor.

Hearing Participation Guidelines

The Hearing Officer shall have the authority to maintain order and decorum at the hearing, including responding to disruptive or harassing conduct, and when necessary to adjourn the hearing or exclude the disruptive person. In the event the Hearing Officer removes an advisor, the Hearing Officer will have the discretion to appoint another advisor for the remainder of the hearing. The Hearing Officer also has the authority to determine whether any questions are not relevant, abusive, intimidating, or disrespectful, and will not permit such questions. The Hearing Officer cannot draw an inference about the determination regarding responsibility based solely on a party’s absence from the live hearing.

Statements, Questioning and Presentation of Evidence

During the hearing, each party will be permitted to provide an introductory statement. Following introductory statements, the Hearing Officer will call parties and witnesses for questioning. The order of questioning shall be determined by the Hearing Officer. The Hearing Officer will pose questions to the parties and witnesses and provide each party an opportunity to pose questions to the other party or witnesses through their advisor. If the Hearing Officer determines that any questions are not relevant to the allegations, the Hearing Officer shall not permit a response to the question and explain the reason for excluding a response to the question, and offer an opportunity to the party to reframe the question. Neither party may directly question the other party or witness.

Following the questioning of parties and witnesses, each party will be permitted to provide a closing statement. An advisor is not permitted to provide a closing statement on behalf of their party.

Hearing Officer’s Report

Following the hearing, the Hearing Officer shall prepare a determination report. All findings shall be made by a preponderance of the evidence, meaning more likely than not. To the extent credibility determinations need to be made, such determinations shall not be based on a person’s status as complainant, respondent, or witness.

The determination report will include:

A description of the sex-based harassment and other allegations if applicable;
A reference to the policies and procedures used to evaluate the allegations;
Description of all procedural steps taken to date;
The Hearing Officer’s evaluation of the relevant and not otherwise impermissible evidence along with the finding of facts;
Determinations for each allegation, with the rationale;
Sanction determination (if applicable);
Whether remedies will be provided;
The procedures for an appeal.

The Hearing Officer’s report shall be provided to the Title IX Coordinator. If the Hearing Officer determines that there is no finding of responsibility, the Title IX Coordinator shall communicate the findings to each party, and their advisor should the party wish the advisor to receive it, a written Notice of Outcome along with a copy of the Hearing Officer’s report, to the parties, together with procedures for appeal.

In the event that the Decisionmaker has determined that a violation of NMC policy has occurred, the Decisionmaker will consult with the Associate Vice President for Human Resources or the Dean of Students as appropriate to determine the sanction and will include the sanction and rationale in the report.

The Title IX Coordinator will then provide each party, and their advisor should the party wish the advisor to receive it, a written Notice of Outcome regarding the Hearing Officer’s decision, including the Hearing Officer’s report. The Title IX Coordinator will also provide written communication to the complainant regarding any appropriate remedies.

APPEALS

Dismissals of complaints and determinations made in the investigation and decisionmaking processes may be appealed in writing by either party. Appeals will be sent to the Title IX Coordinator, who will then send the appeal to the Appeals Officer assigned to conduct a written review of the appeal(s) and to make a final determination. Appeals must be in writing and filed within ten (10) days following the issuance of the outcome letter.

When an appeal is filed, the other party shall be notified and provided with a copy of the filed appeal within one (1) day, and have five (5) days to respond to the appeal in writing. Any party’s decision not to submit a reply to an appeal is not evidence that the non-appealing party agreed with the appeal.

Within three (3) days of an Appeals Officer being assigned, either party may provide written objection to the Appeals Officer on the basis of an actual bias or conflict of interest. Any objection is to be sent to the Title IX Coordinator. Should the Title IX Coordinator determine that there is an actual bias or conflict of interest, the Title IX Coordinator will appoint another Appeals Officer.

Appeals may be filed only on the following three grounds:

Procedural Error: A procedural error occurred that would change the outcome. A description of the error and its impact on the outcome of the case must be included in the written appeal; or,

New Evidence: New evidence or information has arisen that was not available or known to the party during the investigation or hearing, that would change the outcome. Information that was known to the party during the resolution process but which they chose not to present is not considered new information. The new evidence, an explanation as to why the evidence was not previously available or known, and an explanation of its potential impact on the investigation findings must be included in the written appeal; or

Actual Conflict of Interest or Demonstrated Bias: The Title IX Coordinator, investigator, or others with a role in the process with an actual conflict of interest or demonstrated bias for or against complainants or respondents generally, or the individual complainant or respondent, that would change the outcome. Any evidence supporting the alleged conflict of interest or demonstrated bias must be included in the written appeal.

The Appeals Officer will make a determination regarding the appeal and communicate that decision, along with a rationale for the decision to the Title IX Coordinator who will communicate the Appeals Officer’s decision to the parties. The decision of the Appeals Officer is final.

Sanctions

Disciplinary steps listed here may be imposed on a respondent who is found responsible for a violation of NMC’s policies. Sanctions or disciplinary steps not listed here may be imposed in consultation with the Title IX Coordinator.

The form of sanction or discipline used will depend on the nature of the offense, as well as any prior disciplinary history. Such discipline or sanction will be imposed pursuant to and in accordance with any and all applicable NMC rules, policies, and procedures. Factors considered when determining a sanction/responsive action may include:

The nature, severity of, and circumstances surrounding the violation.
An individual's disciplinary history.
Previous resolutions or allegations involving similar conduct.
The need for sanctions/responsive actions to bring an end to the sex discrimination or retaliation.
The need for sanctions/responsive actions to prevent the future recurrence of sex discrimination or retaliation.
The need to remedy the effects of the sex discrimination or retaliation on the victim and the campus community.

Student sanctions imposed are implemented when the decision is final (after an appeal, or, if there was no appeal, after the appeals period expires).

Faculty found responsible for violating this policy may be referred to the appropriate academic official for any other applicable processes.

Possible sanctions and disciplinary steps for student respondents are consistent with those found in NMC’s Student Rights and Responsibilities Policy, ranging from Warning to Permanent Expulsion.

Possible sanctions for staff and faculty respondents include any disciplinary action up to and including termination.

Failure to Complete Sanctions/Comply with Responsive Actions

All responding parties are expected to comply with conduct sanctions/responsive actions/ corrective actions within the timeframe specified by NMC. Responding parties needing an extension to comply with their sanctions must submit a written request to the Title IX Coordinator stating the reasons for needing additional time.

Failure to follow through on conduct sanctions/responsive actions/corrective actions by the date specified, whether by refusal, neglect or any other reason, may result in additional sanctions/responsive actions/corrective actions, such as suspension, expulsion, or termination. Students who fail to comply will be referred in accordance with NMC’s Student Rights and Responsibilities Policy.

E. RECORD RETENTION

In implementing this policy, records of all reports and resolutions will be kept by the Title IX Coordinator in accordance with the applicable NMC records retention schedule. All records will be afforded the confidentiality protections required by law, including but not limited to the Family Educational Rights and Privacy Act governing confidentiality of student information.

F. ADDITIONAL ENFORCEMENT INFORMATION

The U.S. Equal Employment Opportunity Commission (EEOC) investigates reports of unlawful harassment and discrimination, including sex-based harassment, in employment.

The U.S. Department of Education, Office for Civil Rights (OCR) investigates complaints of unlawful discrimination and harassment of students and employees in education programs or activities.

For more information, contact the nearest office of the EEOC or OCR.

Office for Civil Rights

U.S. Department of Education

1350 Euclid Avenue, Suite 325

Cleveland, OH 44115-1812

Telephone: 216-522-4970

FAX: 216-522-2573; TDD: 800-877-8339

Email: OCR.Cleveland@ed.gov

U.S. Equal Employment Opportunity Commission (EEOC)

https://www.eeoc.gov/contact-eeoc

Michigan civil rights laws are enforced by the Department of Civil Rights:

Michigan Department of Civil Rights

Phone: (313) 456-3700; 1-800-482-3604

Fax: (313) 456-3791

TTY: (877) 878-8464

Email: MDCRServiceCenter@michigan.gov

H. KEY DEFINITIONS

Advisor: Each party has the right to choose and consult with an advisor of their choice at their own expense, except for any hearing process for which the College is required to provide either party an advisor at NMC’s expense and choice upon request. The advisor may be any person, including a friend, family member, therapist, union representative, or an attorney. NMC will not limit their choice of advisor. Parties in this process may be accompanied by an advisor of choice to any meeting or proceeding to which they are required or are eligible to attend.

Except where explicitly stated by this policy, advisors shall not participate directly in the process. NMC will provide the parties equal access to advisors; any restrictions on advisor participation will be applied equally.

The advisor may not represent, advocate, or speak on behalf of a complainant or respondent. An advisor may not disrupt or impede any resolution proceeding.

Coercion/Force: Consent cannot be procured by the use of physical force, compulsion, threats, intimidating behavior, or coercion. Sexual activity accompanied by coercion or force is not consensual.

Coercion refers to unreasonable pressure for sexual activity. When someone makes it clear that they do not want to engage in sexual activity or do not want to go beyond a certain point of sexual interaction, continued pressure beyond that point can be considered coercive. The use of coercion can involve the use of pressure, manipulation, substances, or force. Ignoring objections of another person is a form of coercion.
Force refers to the use of physical violence or imposing on someone physically to engage in sexual contact or intercourse. Force can also include threats, intimidation (implied threats), or coercion used to overcome resistance.

Complaint: A complaint means an oral or written request to the Title IX Coordinator that objectively can be understood as a request for NMC to investigate and make a determination about alleged sex discrimination under this policy. A complaint may be filed with the Title IX Coordinator in person, by mail, or by electronic mail using the Title IX Coordinator contact information listed in this policy. Individuals who would like more information about filing a complaint are invited to contact the Title IX Coordinator for additional information.

Complainant: Any individual who has reported being or is alleged to be impacted by Prohibited Conduct as defined by this policy, and who was participating in a NMC program or activity at the time of the alleged misconduct.

Confidential Resources: Any individual identified by NMC who receives information about conduct prohibited under this policy in their confidential capacity and who are privileged under state law will not report Prohibited Conduct disclosed to them without written consent. Designation as a confidential resource under this policy only exempts such individuals from disclosure to the Title IX Coordinator. It does not affect other mandatory reporting obligations under state child abuse reporting laws, the Clery Act as a campus security authority, or other laws that require reporting to campus or local law enforcement.

Consent is knowing, voluntary, and clear permission among all participants to engage in sexual activity, expressed in words or actions. For consent to be valid, there must be a clear expression in words or actions that the other individual consented to that specific sexual conduct with that particular person or people.

Individuals may experience the same interaction in different ways. Therefore, it is the responsibility of each party to determine that the other has consented before engaging in the activity. If consent is not clearly provided prior to engaging in the activity, consent may be ratified by word or action at some point during the interaction or thereafter, but clear communication from the outset is strongly encouraged.

Consent to some sexual contact (such as kissing or fondling) cannot be presumed to be consent for other sexual activity (such as intercourse). Past consent does not imply future consent. A current or previous dating relationship is not sufficient to constitute consent.

The existence of consent is based on the totality of the circumstances, evaluated from the perspective of a reasonable person in the same or similar circumstances, including the context in which the alleged incident occurred. Silence or the absence of resistance alone is not consent. In Michigan, a minor (meaning a person under the age of 16 years) cannot consent to sexual activity except in limited circumstances dictated by law.

Consent can be withdrawn at any time during sexual activity through reasonable and clear communications through words or actions. When consent is withdrawn, sexual activity must stop.

Consent cannot be given if any of the following are present: Incapacitation, Force, or Coercion.

Days: Any reference to days refers to business days when NMC is in normal operation.

Decisionmaker: Trained professional designated by NMC to decide responsibility, sanction, or appeals. A Decisionmaker may be one person or a panel of multiple people as determined by NMC. When there is no hearing, the investigator may be appointed as the Decisionmaker.

Disclosure or Report: A disclosure or report may be made by anyone, whether they learned about conduct potentially constituting sex discrimination under this policy, or whether they personally experienced such conduct. A person making a disclosure or report may or may not be seeking to initiate an investigation.

Education Program or Activity: NMC’s “education program or activity” includes all campus operations, including off-campus settings that are operated or overseen by NMC, including, for example, field trips, online classes, and athletic programs; conduct subject to NMC’s disciplinary authority that occurs off-campus; conduct that takes place via NMC-sponsored electronic devices, computer and internet networks and digital platforms operated by, or used in the operations of NMC. Conduct that occurs outside of the education program or activity may contribute to a hostile environment within the program or activity.

Finding: a written conclusion by a preponderance of the evidence, issued by an Investigator, that the conduct did or did not occur as alleged.

Incapacitation occurs when someone cannot make rational, reasonable decisions because they lack the capacity to give knowing and informed consent (e.g., to understand the “who, what, when, where, why, and how” of their sexual interaction). Incapacitation is determined through consideration of all relevant indicators of a person’s state and is not synonymous with intoxication, impairment, or being under the influence of drugs or alcohol. This policy also covers a person whose incapacity results from temporary or permanent physical or mental health condition, involuntary physical restraint, and/or the consumption of incapacitating drugs, or who are sleeping.

Under this policy, NMC will consider whether a respondent knew or should have known the complainant to be incapacitated, based on an objective, reasonable person standard that assumes the reasonable person is both sober and exercising sound judgment. The fact that the respondent was unaware of the complainant’s incapacity due to the respondent’s own drug or alcohol use shall not be considered as an excuse.

No-Contact Directive: A No Contact Directive is a document issued by an NMC administrator that is designed to limit or prohibit contact or communications between the parties. A No-Contact Directive may be mutual or unilateral, with the exception that a No-Contact Directive issued as either a sanction or remedy shall be unilateral, directing that the respondent not contact the complainant.

Notice: All notices under this policy are written and sent to the student or employee’s assigned NMC email address or delivered via Certified Mail to the local or permanent address(es) of the parties as indicated in official NMC records, or personally delivered to the intended recipient.

Party/parties: Referring to complainant(s), respondent(s), or both/all complainant(s) and respondent(s).

Remedies: Remedies means measures provided, as appropriate, to a complainant or any other person NMC identifies as having had their equal access to NMC’s education program or activity limited or denied by sex discrimination or other Prohibited Conduct covered by this policy. These measures are provided to restore or preserve that person’s access to the education program or activity after a NMC determines that sex discrimination occurred. Only the complainant will be informed of any remedies pertaining to them. Some examples are academic support and/or opportunity to retake a class or resubmit work or time extensions on course or degree completion, or non-academic support such as counseling, or changes to work assignments or locations. The Title IX Coordinator is responsible for implementation of remedies.

Respondent: an individual, or group of individuals such as a student organization, who has been reported to be the perpetrator of conduct that could constitute Prohibited Conduct under this policy; or retaliation for engaging in a protected activity.

Student: Any person who has (or will have) attained student status by way of:

Admission, housing or other service that requires student status.
Registration for one or more credit hours.
Enrollment in any non-credit, certificate or other program offered by NMC.

Supportive Measures: Individualized measures offered as appropriate, as reasonably available, without unreasonably burdening a complainant or respondent, not for punitive or disciplinary reasons, and without fee or charge to the complainant or respondent to:

Restore or preserve that party’s access to NMC’s education program or activity, including measures that are designed to protect the safety of the parties or NMC’s educational environment; or
Provide support during NMC’s resolution procedures or during an alternative resolution process.

Supportive measures 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 one or more parties; 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; no-contact directives (which may be mutual or unilateral at the discretion of the Title IX Coordinator); and training and education programs related to sex-based harassment. Supportive measures are non-disciplinary and non-punitive. Supportive Measures will also be offered to respondents when they are notified of the allegations.

Any Supportive Measures put in place will be kept confidential, except when doing so impairs the ability of the institution to provide the Supportive Measures.

NMC will offer and coordinate supportive measures as appropriate for the parties as applicable to restore or preserve their access to NMC’s program or activity or provide support during NMC’s alternative resolution process or resolution procedures. Prohibited Conduct under this policy have the right to request supportive measures from NMC regardless of whether they desire to make a complaint or seek alternative resolution.

A party may challenge NMC’s decision to provide, deny, modify, or terminate supportive measures when such measures are applicable to them. An impartial employee will be designated to consider modification or reversal of NMC’s decision to provide, deny, modify, or terminate supportive measures. When the individual providing Supportive Measures is a Deputy Title IX Coordinator or other individual identified by the Title IX Coordinator to provide Supportive Measures, the Title IX Coordinator will be designated to consider the challenge regarding supportive measures. The impartial employee will typically respond to the challenge within five (5) days.

The Title IX Coordinator has the discretion to implement or modify supportive measures. Violation of the parameters of supportive measures may violate existing codes or handbooks.

I. RESOURCES

Privileged & Confidential Resources are available to all parties.

For Students
- Short-term counseling services are available at the Student Life Office: (231) 995-1118
For Employees
- All employees have access to the Employee Assistance Program (EAP): (800) 448-8326
For All

Traverse City Police Department: 911 or (231) 995-5150
Women’s Resource Center: (231) 941-1210
Northern Lakes Community Mental Health 24-hour Emergency Services: (231) 922-4850
Munson Medical Center SANE (Sexual Assault Nurse Examiner program for rape survivors): (231) 935-6333

The Vice President of Finance and Administration, in conjunction with the appropriate faculty and staff, is responsible for the development and publication of any procedures or guidelines which may be necessary to administer this policy effectively.

If any provision(s) of this policy or set of bylaws conflicts with laws applicable to Northwestern Michigan College, including the Community College Act of 1966, the Freedom of Information Act, or the Open Meetings Act, as each may be amended from time to time, such laws shall control and supersede such provision(s).

Initially adopted on October 6, 2014
Reviewed without revision March 14, 2024

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