Informal Resolution Policy
Expresses the campus’ informal resolution of Title IX-covered misconduct when each party voluntary agrees to the process.
|Policy Number||Policy Owner|
- 1.0 Purpose
On May 19, 2020, the U.S. Department of Education issued a Final Rule governing the Title IX grievance process, effective August 14, 2020. The Final Rule requires that all colleges and universities hold a live hearing before making any determination regarding responsibility for covered reports of Title IX sexual harassment, including sexual violence. This hearing must provide for live cross-examination by the parties’ advisors.
However, under § 106.45(b)(9) of the Final Rule, colleges and universities may offer and facilitate informal resolution processes, as long as each party voluntarily agrees to the process through an informed, written consent. This option is a change from long-standing Departmental guidance discouraging the use of informal procedures to address sexual harassment and prohibiting the use of mediation to address sexual assault. In the Preamble to the Final Rule, the Department states that it views informal resolutions as a way to resolve sexual harassment allegations in a less adversarial manner than the investigation and adjudication procedures that comprise the § 106.45 grievance process.
- 2.0 Revision History
Date Version Number Change Description Referenced Section 8/11/20 1.0 New Document Entire Document 8/18/20 1.1 Minor Revisions 8.0
Action: Units Date Policy Review
- Title IX
- Management Services
May- August 2020 Policy Approval
- President's Cabinet
- 3.0 Units & Persons Affected
All college students and college employees, as well as contractors/vendors and visitors to the campus.
- 4.0 Policy
How does the Title IX Informal Resolution Policy impact other campus disciplinary policies?
In recent years, “Title IX” cases have become a short-hand for any campus disciplinary process involving sex discrimination, including those arising from sexual harassment and sexual assault. But under the Final Rule, SUNY Plattsburgh must narrow both the geographic scope of its authority to act under Title IX and the types of “sexual harassment” that it must subject to its Title IX investigation and adjudication process. Only incidents falling within the Final Rule’s definition of sexual harassment will be investigated and, if appropriate, brought to a live hearing through the Title IX Grievance Policy defined below.
SUNY Plattsburgh remains committed to addressing any violations of its policies, even those not meeting the narrow standards defined under the Title IX Final Rule.
Specifically, our campus has:
A Code of Conduct that defines certain behavior as a violation of campus policy, and a separate Sexual Misconduct Policy that addresses the types of sex-based offenses constituting a violation of campus policy, and the procedures for investigating and adjudicating those sex-based offenses. [Note: Any Sexual Misconduct Policy that runs parallel to the Title IX Grievance Policy, such as a policy implementing New York Education Law 129-B or other state laws or policies, can only fully govern how the institution responds to violations falling outside their Title IX jurisdiction]
To the extent that alleged misconduct falls outside the Title IX Grievance Policy, or misconduct falling outside the Title IX Grievance Policy is discovered in the course of investigating covered Title IX misconduct, the institution retains authority to investigate and adjudicate the allegations under the policies and procedures defined within the The Student Code of Conduct/ Non-Title IX Sexual Harassment and Sexual Violence Policy (see Appendix) and/or the Non-Title IX Interpersonal Violence Policy through a separate grievance proceeding (see Appendix).
The elements established in the Title IX Informal Resolution Policy under the Final Rule have no effect and are not transferable to any other policy of the College for any violation of the Code of Conduct, employment policies, or any civil rights violation except as narrowly defined in this Policy. This Policy does not set a precedent for other policies or processes of the College and may not be cited for or against any right or aspect of any other policy or process.
- 5.0 DefinitionsNone
- 6.0 Responsibilities
Role of the Facilitator
Informal resolution processes are managed by facilitators, who may 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.
All facilitators must have training in the definition of sexual harassment under 34 C.F.R. § 106.30(a), the scope of the institution’s education program or activity, how to conduct informal resolution processes, and how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, or bias.
Confidentiality: In entering the informal resolution process, the Parties agree that any testimony and evidence (including admissions of responsibility) they share or receive during the informal resolution process concerning the allegations of the Formal Complaint is confidential. No evidence concerning the allegations obtained within the informal resolution process may be disseminated to any person, provided that any Party to the informal resolution process may generally discuss the allegations under investigation with a parent, friend, advisor, or other source of emotional support, or with an advocacy organization., As a condition of entering the informal resolution process, any evidence shared or received during the informal resolution process may not be used in any subsequent formal resolution process or institutional appeal.
- 7.0 Procedures
Procedures for Entering & Exiting Informal Resolution Process
Parties who do not wish to proceed with an investigation and live hearing, and instead seek the SUNY Plattsburgh’s assistance to resolve allegations of Title IX-covered misconduct, may elect to enter the informal resolution process. Generally speaking, these resolution options are less time intensive than an investigation and live hearing, while still affording students an opportunity to actively participate in a process led by the SUNY Plattsburgh for resolution of their complaints.
The Parties may elect to enter the SUNY Plattsburgh’s informal resolution process at any time after the filing of the Formal Complaint through an informed written consent. This informed written consent will include all terms of the elected informal process, including a statement that any agreement reached through the process is binding on the Parties.
No Party may be required to participate in informal resolution, and the SUNY Plattsburgh may never condition enrollment, employment, or enjoyment of any other right or privilege upon agreeing to informal resolution.
The Parties may elect to leave the informal resolution process at any point until the informal resolution process is concluded. If a Party elects to leave the informal resolution process, the formal resolution process recommences. In participating in the informal resolution process, the Parties understand that the time frames governing the formal process temporarily cease, and only recommence upon reentry into the formal process.
Determination to Approve Entry into Informal Resolution Process
Even where the Parties agree to submit a matter to informal resolution, the Title IX Coordinator or designee must approve the decision to move the matter to the informal resolution process and may determine that informal resolution is not appropriate under the circumstances.
Factors that the Title IX Coordinator or designee may weigh in considering the appropriateness of the informal resolution process include, but are not limited to, the gravity of the allegations, whether there is an ongoing threat of harm or safety to the campus, whether the respondent is a repeat offender, and whether the Parties are participating in good faith. This determination is not subject to appeal.
Informal resolution processes may never be applied where the allegations include sexual violence: rape with penetration and/or domestic or dating violence.
Informal resolution is only permitted to address allegations of student-on-student sexual harassment, and is never allowed as an option to resolve allegations that an employee sexually harassed a student. See, 85 Fed. Reg. 30026, 30054 (May 19, 2020).
At any time after the commencement of the informal resolution process, the Title IX Coordinator or designee may determine that the informal resolution process is not an appropriate method for resolving the matter, and may require that the matter be resolved through the formal process. This determination is not subject to appeal.
Informal Resolution Options
SUNY Plattsburgh offers the following informal resolution procedures for addressing Formal Complaints of sexual harassment covered under this Policy:
Administrative Resolution – (via the Student Conduct Office)
Should the Parties mutually determine to enter the informal resolution process, and the respondent elects to accept responsibility for the allegations of the Formal Complaint at any point during the informal resolution process, the institution may administratively resolve the Formal Complaint.
Where the respondent admits responsibility, the Parties will receive simultaneous written notification of the acceptance of responsibility, and hearing body/Board will convene to determine the respondent’s sanction and other remedies, as appropriate and consistent with institutional policy. The Parties will be given an opportunity to be heard at the sanctions hearing, including but not limited to the submission of impact statements. The Parties may be accompanied by their Advisor, but questioning of Parties or witnesses will not be permitted. The Parties will receive simultaneous written notification of the decision regarding sanctions and remedies, which may be appealed according to the process outlined in this policy and the Student Conduct Manual.
Mediation – The purpose of mediation is for the parties who are in conflict to identify the implications of a student’s actions and, with the assistance of a trained facilitator, identify points of agreement and appropriate remedies to address them. Either party can request mediation to seek resolution; mediation will be used only with the consent of both parties, who will be asked not to contact one another during the process. The Title IX Office will also review any request for mediation, and may decline to mediate based on the facts and circumstances of the particular case. Either party has the right to terminate the mediation process and choose or resume another option for resolution at any time.
The mediation process will typically commence within 14 days after the Title IX Office receives consent to mediate from both parties, and will continue until concluded or terminated by either party or the Title IX Office. During mediation, any potential investigation will halt, and calculations for time frames will be stayed. If the mediation results in a resolution, the disciplinary process will be concluded and the matter will be closed. If a resolution cannot be reached, the matter will be referred to the Title IX Coordinator to re-evaluate other options for resolution, including investigation.
During mediation, a facilitator (via the TIX Office or designee) will guide a discussion between the parties. In circumstances where the parties do not wish to meet face to face, either party can request “caucus” mediation, and the facilitator will conduct separate meetings. Whether or not the parties agree to meet face to face, each party will be permitted to bring an advisor of their choice to any meetings who may be, but is not required to be, an attorney.
At the conclusion of the mediation, the facilitator will memorialize the agreement that was reached between the parties. The Title IX Office will monitor adherence to the proposed solution and close the matter when compliance is satisfactory.
- 8.0 Forms
- 9.0 Appendix
On Campus Services & Supports
Interim Title IX Coordinator, Dr. Ann James 518-564-3281 (not confidential) Affirmative Action Officer, Mike Thompson 518-564-5062 (not confidential) University Police 518-564-2022 (not confidential) Student Conduct Office 518-564-3282 (not confidential)
Campus Housing & Community Living
518-564-3824 (not confidential)
Human Resources Services
518-564-5062 (not confidential)
Off Campus Services and Support (current as of August 2020)
Sexual Assault Services, Planned Parenthood of the North Country New York 1-877-212-2323 Plattsburgh City Police 518-563-3411 NY State Police (Troop B) 518- 563-3761 NY State Police (Troop B) - 24-Hr Sexual Violence Reporting Hotline: 1-844-845-7269 UVM Health Network CVPH Emergency Center 518-562-7370 Other resources listed and updated on line here
Appendix A: Working with Reporting Individuals
If a reporting individual talks to you or seeks your help, you should ensure the reporting individual's safety. First responders are expected to follow general guidelines for creating a comfortable environment:
- Support the reporting individual without passing judgment;
Let the reporting individual make choices related to self;
- Communicate, “I’m glad you’re okay,” “It’s not your fault,” and “I’m sorry that this happened,”;
- Don’t physically comfort the reporting individual's without their permission;
- Review the Victim/survivor Services Notice (See Forms B below);
- Act in a manner that is supportive and non-judgmental;
- Discuss your reporting obligations and confidentiality issues with the reporting individual.
In all cases, first responders will inform the VP for Enrollment & Student Success or the appointed designee of the date, time and location of the incident on a Clery Crime Incident Report Form. This report to the VP Enrollment & Student Success can be done without naming the reporting individual. See report form in Forms.
Appendix B: Confidentiality
SUNY Plattsburgh wants you to get the information and support you need regardless of whether you would like to move forward with a report of sexual violence to campus officials or to police. You may want to talk with someone about something you observed or experienced, even if you are not sure that the behavior constitutes sexual violence. A conversation where questions can be answered is far superior to keeping something to yourself. Confidentiality varies, and this Forms is aimed at helping you understand how confidentiality applies to different resources that may be available to you.
Privileged & Confidential Resources
Individuals who are confidential resources will not report crimes to law enforcement or college officials without your permission, except for extreme circumstances, such as a health and/or safety emergency. At SUNY Plattsburgh, these include:
- Student Health and Counseling Center Phone: 518-564-3086 Web site
Off-campus options to disclose sexual violence confidentially include (note that these outside options do not provide any information to the campus):
Off-campus counselors and advocates. Crisis services offices will generally maintain confidentiality unless you request disclosure and sign a consent or waiver form. More information on an agency’s policies on confidentiality may be obtained directly from the agency.
- Sexual Assault Services (Planned Parenthood of the North Country New York, Inc.) Talk to an advocate 24/7 Phone: 1-877-212-2323
- STOP Domestic Violence Talk to an advocate 24/7 Phone: 1-888-563-6904 Email: [email protected]
Off-campus health care providers include:
- Planned Parenthood of the North Country New York, Inc. Phone: 518-561-4430, 66 Brinkerhoff Street, Plattsburgh
- The University of VT Health Network - Champlain Valley Physicians Hospital (CVPH): Sexual Assault Nurse Examiners (SANE) Room 75 Beekman Street, Plattsburgh (corner of Beekman & Cornelia) Phone: 518-562-7370 or 911 Also, an evidence kit may be collected here and only here. Note: This examination is covered by the Office of Victim Services (OVS). Neither the examination nor any laboratory assessments should be charged to the patient’s insurance.
- The New York State Office of Victim Services may also be able to assist in compensating victims/survivors for additional health care and counseling services, including emergency compensation. More information may be found here and options are explained here.
Note that even individuals who can typically maintain confidentiality are subject to exceptions under the law, including when an individual is a threat to him or herself or others and the mandatory reporting of child abuse.
Privacy Versus Confidentiality
Even SUNY Plattsburgh offices and employees who cannot guarantee confidentiality will maintain your privacy to the greatest extent possible. The information you provide to a non-confidential resource will be relayed only as necessary to investigate and/or seek a resolution and to notify the Title IX Coordinator or designee, who is responsible under the law for tracking patterns and spotting systemic issues. SUNY Plattsburgh will limit the disclosure as much as possible, even if the Title IX Coordinator determines that the request for confidentiality cannot be honored.
Requesting Confidentiality: How SUNY Plattsburgh Will Weigh the Request & Respond
If you disclose an incident to a College employee who is responsible for responding to or reporting sexual violence or sexual harassment, but wish to maintain confidentiality or do not consent to the institution’s request to initiate an investigation, the Title IX Coordinator must weigh your request against our obligation to provide a safe, non-discriminatory environment for all members of our community, including you.
We will assist you with academic, housing, transportation, employment, and other reasonable and available accommodations regardless of your reporting choices. While reporting individuals may request accommodations through several college offices, the following office can serve as a primary point of contact to assist with these measures:
We also may take proactive steps, such as training or awareness efforts, to combat sexual violence in a general way that does not identify you or the situation you disclosed. We may seek consent from you prior to conducting an investigation. You may decline to consent to an investigation, and that determination will be honored unless the College’s failure to act may result in harm to you or other members of the College community. Honoring your request may limit our ability to meaningfully investigate and pursue conduct action against an accused individual. If we determine that an investigation is required, we will notify you and take immediate action as necessary to protect and assist you.
When you disclose an incident to someone who is responsible for responding to or reporting sexual violence or sexual harassment, but wish to maintain confidentiality, the College will consider many factors to determine whether to proceed despite that request. These factors include, but are not limited to:
- Whether the accused has a history of violent behavior or is a repeat offender;
- Whether the incident represents escalation, such as a situation that previously involved sustained stalking;
- The increased risk that the accused will commit additional acts of violence;
- Whether the accused used a weapon or force;
- Whether the reporting individual is a minor; and
- Whether we possess other means to obtain evidence such as security footage, and whether the report reveals a pattern of perpetration at a given location or by a particular group.
Public Awareness/Advocacy Events
If you disclose a situation through a public awareness event such as “Take Back the Night,” candlelight vigils, protests, or other public event, the College is not obligated to begin an investigation. The College may use the information you provide to inform the need for additional education and prevention efforts.
Institutional Crime Reporting
Reports of certain crimes occurring in certain geographic locations will be included in the College Clery Act Annual Security Report in an anonymized manner that neither identifies the specifics of the crime or the identity of the reporting individual.
SUNY Plattsburgh is obligated to issue timely warnings of Clery Act crimes occurring within relevant geography that represent a serious or continuing threat to students and employees (subject to exceptions when potentially compromising law enforcement efforts and when the warning itself could potentially identify the reporting individual). A reporting individual will never be identified in a timely warning.
The Family Educational Rights and Privacy Act allows institutions to share information with parents when (1) there is a health or safety emergency, or (2) when the student is a dependent on either parents’ prior year federal income tax return. Generally, the College will not share information about a report of sexual violence with parents without the permission of the reporting individual.
- Support the reporting individual without passing judgment;
- 10.0 Distribution & Training
Method Date Campus Handbook
Faculty / Staff Digest
There are no specific trainings identified with this policy.
For additional information about this policy, please contact the policy owner listed above.