Carson-Newman University maintains the following policy on sex discrimination and sexual harassment in compliance with Title IX of the Education Amendments of 1972 and the Title IX regulations in 34 CFR Part 106. The University provides notice of this policy to applicants for admission and employment, students, and employees to the extent required by law.
Revised August 2023
Title IX CoordinatorRandi MorrisonOffice: Ted Russell Hall 167Phone: (865) 471-4186Email: titleIX@cn.edu
1.1 Statement of Purpose
Carson-Newman University seeks to glorify Jesus Christ in all endeavors. The university’s confessional statement and Christian values acknowledge that every person “possesses full dignity and is worthy of respect and Christian love.” (Baptist Faith & Message 2000 (“BF&M”) § III). The Bible instructs that there should be no sexual immorality or obscenity in a Christian community. (Ephesians 5:1-5, Christian Standard Version). Because both men and women are created in the image of God, it is essential to the university’s mission to help students reach their full potential as educated citizens and worldwide-servant leaders that Carson-Newman’s policies addressing sex discrimination and sexual misconduct affirm the inherent value and potential of each individual, whether male or female. (Genesis 1:26-28; BF&M § XVIII).
Recognizing the preciousness of each person, Carson-Newman expects that members of its community strive to follow Romans 12:10: “Love one another deeply as brothers and sisters. Take the lead in honoring one another.” Doing so requires conduct characterized by respect and self-control, upholding the rights and sexual purity of others.
Carson-Newman University has established this Title IX Policy (“Policy”) on sex discrimination and Sexual Harassment in compliance with Title IX of the Education Amendments of 1972 and its implementing regulations at 34 C.F.R. § 106 (collectively “Title IX”). The university provides notice of this Policy to applicants for admission and employment, students, employees, and third-party vendors to the extent required by law.
1.2.1 Headings Not Limiting. Headings and subheadings in this Policy are provided only to make finding information easier. They shall not be used to limit the scope of any substantive provisions of the Policy.
1.2.2 Grammar. Any gendered pronouns shall be read to include individuals of either sex who are in similar roles or circumstances. Plural and singular uses of titles, nouns, and pronouns shall be read to include the alternative, as applicable (for example: employee/employees, activity/activities).
1.2.3 Defined Terms. Key roles and terms, which are capitalized throughout, are explained in Section 2.4: Definitions.
1.2.4 Revision. This Policy and its grievance procedure are to be reviewed for revision each June and promptly upon the release of federal or Tennessee-specific Title IX regulations.
1.3 Scope and Applicability
1.3.1 Individuals Covered by this Policy
This Policy affects students, employees, and third parties (visitors and vendors) in the United States when Title IX Sex Discrimination, including Sexual Harassment, in a Carson-Newman Education Program or Activity is alleged. This Policy governs the application of the university’s included Title IX Sexual Harassment grievance procedure, as differentiated from the application of criminal law, Title VII, student Code of Conduct, employee policies, and their respective disciplinary procedures.
1.3.2 Jurisdiction of Authority
This Policy is under the approval jurisdiction of the Executive Leadership Team and enforced by the Title IX Coordinator.
1.3.3 Effective Date
The effective date of this policy is August 1, 2023. This policy applies to all Title IX sex discrimination and Sexual Harassment reported to have occurred on or after August 1, 2023.
1.3.4 Other University Policies
This Policy refers or relates to Carson-Newman University’s
In the event of a conflict with another university policy concerning Sexual Harassment within the Title IX jurisdiction, as described in this section, this Policy and its grievance procedure shall control.
(B) Conduct Outside the Application of Title IX
For incidents outside the Title IX jurisdiction or substantive scope of this Title IX Policy, refer to Section 2.1.5. The university maintains a Policy on Sexual Misconduct, Sexual Harassment, and Sexual Abuse that applies to student and employee conduct both in and outside of university activities.
2.1 Application of Title IX Regulations
The university does not unlawfully discriminate on the basis of sex with regard to its programs and activities.
Title IX does not apply to undergraduate admissions at private institutions, including Carson-Newman.
Questions or inquiries about the application of Title IX may be addressed to the university’s Title IX Coordinator, to the Assistant Secretary of the Department of Education, or both.
2.1.2 Religious Exemption
This Policy shall at all times be interpreted within the context of the university’s religious tenets, which are summarized in the Baptist Faith & Message 2000 and referenced in university handbooks. Nothing in this Policy waives the university’s rights to religious freedom under the United States Constitution and other applicable laws. To the extent that a regulation issued under Title IX is inconsistent with the university’s religious tenets, Carson-Newman is exempt (34 C.F.R. § 106.12(a)).
2.1.3 Title IX Jurisdiction
Title IX jurisdictional requirements are met when all the following are applicable:
(A) Complainant. At the time of filing a Formal Complaint, the Complainant must be participating or attempting to participate in the university’s Education Program or Activity.
(B) Respondent. At the time of the alleged Prohibited Conduct, Respondent was a student, employee, or official agent of Carson-Newman University.
(C) Location and Context. The alleged conduct must have occurred against a person in the United States and in Carson-Newman University’s Education Program or Activity.
2.1.4 Specified Procedure for Allegations of Sexual Harassment
This Policy’s grievance procedure applies when the alleged conduct, if proven, would constitute Sexual Harassment (Quid Pro Quo, Hostile Environment, Sexual Assault, Dating Violence, Domestic Violence, or Stalking). Any intentional sexual contact with an Incapacitated person is considered Sexual Assault under this Policy.
2.1.5 Non-Title IX Harassment and Discrimination
Reports of discrimination, harassment, sexual misconduct, and/or retaliation that do not fall within the definitions or jurisdiction of this Policy will be remedied under the university’s other policies prohibiting such behavior. The university’s Title IX Coordinator is available to assist in determining whether this Title IX Policy applies in any particular instance. When this Policy does not apply, complaints will be referred to Human Resources (for employees) or the Dean of Students (for students). For non-Title IX complaints, the university follows grievance procedures published in the Employee Handbook and Eagle Student Handbook, as applicable to the status of the person/entity alleged to be in violation of a relevant policy.
2.2 Prohibited Conduct
Carson-Newman University prohibits Sexual Harassment in all its operations.
2.2.1 Title IX Sexual Harassment
Sexual Harassment is defined as conduct that falls within one or more of the following categories:
(A) Quid Pro Quo (“Something for Something”):
A university employee conditioning the provision of a university aid, benefit, or service on an individual’s participation in unwelcome sexual conduct;
(B) Hostile Environment:
Unwelcome conduct on the basis of sex that is determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the university’s Education Program or Activity; or
(C) Sexual Offenses:
Sexual Assault (20 U.S.C. 1092(f)(6)(A)(v));
Dating Violence (as defined in 34 U.S.C. 12291(a)(11));
Domestic Violence (as defined in 34 U.S.C. 12291(a)(12));
or Stalking (as defined in 34 U.S.C. 12291(a)(36)).
2.2.2 Retaliation Expressly Prohibited
The university prohibits Retaliation with regard to reports of violations of Title IX and this Policy. Neither the university nor any other person may engage in Retaliation against an individual because the individual has made a report or Formal Complaint or has testified, assisted, participated, or refused to participate in any manner in an investigation, proceeding, or Hearing under the Title IX Sexual Harassment grievance procedure, including an Informal Resolution process.
Any person who believes that he or she has experienced Retaliation which is prohibited under this Policy may file a complaint with the Title IX Coordinator.
2.3 Reporting Sex Discrimination
2.3.1 Emergency Report
If you witness or experience any emergency involving Sexual Assault or any other crime of violence, or if you have immediate safety concerns, first call 911, then call the Department of Public Safety 24-Hour number (865) 548-9067, or you may report to the Department of Public Safety through the Carson-Newman LiveSafe mobile phone app.
2.3.2 Reporting to the Title IX Coordinator
The university has designated the following employee to coordinate its efforts to comply with its policies to prevent Sexual Harassment and discrimination based on sex:
TITLE IX COORDINATOR: Randi Morrison
Ted Russell Hall – 744 W. Ken Sparks Way – Rm. 156
Mail: 1646 Russell Ave., Jefferson City, TN 37760
Any person may report a grievance relating to sex discrimination, including Sexual Harassment, whether or not the person reporting is the person who may be the victim of conduct being reported. A report may be made to the Title IX Coordinator in person during normal business hours or at any time by mail, telephone, or email.
2.3.3 Anonymous Reports
A report may be made anonymously, but a report that does not include the names of the potential Complainant and/or Respondent substantially limits the university’s ability to respond. To encourage detailed reporting, the university will maintain confidentiality of information to the extent possible in conducting any grievance process that results from a report.
2.3.4 Who Should Report
In order to promptly stop sexual misconduct, prevent its recurrence, and remedy its effects, the university encourages students and Employees to promptly report incidents and allegations of Sexual Harassment to the Title IX Coordinator.
2.3.5 Mandated Reports
Officials with authority to institute corrective measures, who are identified in the definition of Actual Knowledge, must report alleged Title IX Sexual Harassment to the Title IX Coordinator within forty-eight (48) hours of witnessing or becoming aware of the conduct.
There is no duty for an employee to report sexual trauma disclosed only during a public awareness event or only in an academic assignment. Reports made to Counseling Services staff, Health Services staff, and Campus Ministries staff acting in their respective professional roles are confidential and not subject to a reporting expectation except in cases of imminent danger.
When the alleged victim is a minor (under eighteen (18) years of age), Tennessee law (TCA § 37-1-403) requires anyone with knowledge of sexual abuse (see TCA § 13-39-509) to report it law enforcement or the Tennessee Department of Children’s Services. The Title IX Coordinator will assist with reporting.
Except as necessary to carry out the grievance procedure and as permitted by law, the university will keep confidential the identity of any individual who has made a report or complaint of sex discrimination, any individual who has made a report or filed a Formal Complaint of Sexual Harassment, any Complainant, any individual who has been reported to be the perpetrator of sex discrimination, any Respondent, and any witness.
2.4.1 Procedural Roles
(1) Complainant means an individual who is alleged to have been subjected to conduct that could constitute sex discrimination, including Sexual Harassment, under this Policy.
(2) Decision-maker means the person or panel designated by the university to conduct a Title IX Hearing and make a determination on the allegations in a Formal Complaint. No Decision-maker will be the Title IX Coordinator or the Investigator.
(3) Facilitator means a person or organization serving to facilitate an Informal Resolution of a Formal Complaint through mediation, arbitration, restorative justice, or a similar process.
(4) Investigator means a person designated by the university to investigate a Formal Complaint. If more than one person is designated, this term refers to all of the Investigators.
(5) Party means either the Complainant or the Respondent. Parties refers to all Complainants and all Respondents with respect to a report or Formal Complaint of sex discrimination under Title IX or Prohibited Conduct under this Policy, or with respect to multiple Formal Complaints which have been consolidated.
(6) Respondent means an individual alleged to have engaged in conduct that could constitute a violation of this Policy.
2.4.2 Important Terms
(1) Actual Knowledge means notice of Sexual Harassment or allegations of Sexual Harassment when received by the university’s Title IX Coordinator or an official with authority to institute corrective measures on behalf of the university. The university is deemed to have Actual Knowledge when a report is made to one or more of these officials, who must report knowledge of Sexual Harassment to the Title IX Coordinator:
(2) Consent means informed, knowing and voluntary permission. Consent is active, not passive. Silence, in and of itself, cannot be interpreted as consent. Consent can be given by words or actions, as long as those words or actions create mutually understandable permission regarding the conditions of sexual activity. Consent to one form of sexual activity cannot imply consent to other forms of sexual activity. Previous relationships or consent cannot imply consent to future sexual acts. Consent cannot be procured by use of physical force, compelling threats, or intimidating behavior. In order to give effective consent, one must be of legal age and not otherwise Incapacitated.
A Respondent’s voluntary consumption of alcohol or other substances is not a defense to instances in which lack of consent is alleged.
(3) Dating Violence means violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the alleged victim, where the existence of such a relationship is determined based on consideration of (a) the length of the relationship, (b) the type of relationship, and (c) the frequency of interaction between the persons involved in the relationship.
(4) Domestic Violence means felony or misdemeanor crimes of violence committed by a current or former spouse or intimate partner of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the State of Tennessee, or by any other person against an adult or youth victim who is protected from that person’s acts under the domestic or family violence laws of the state of Tennessee (TN Code § 39-13-111).
(5) Education Program or Activity means any official operation of Carson-Newman University, including any location (such as a building), event, or circumstance in which the university or an officially chartered student organization exercises (or exercised at the relevant time) substantial control over both the Respondent and the context.
(6) Employees means Carson-Newman Faculty, Staff, Residence Assistants, and all individuals in coaching roles for Carson-Newman Athletics, regardless of compensation and including Graduate Assistants assigned coaching duties.
(7) Formal Complaint means a document which:
(a) is filed by a Complainant or signed by the Title IX Coordinator,
(b) concerns a Complainant who is participating in or attempting to participate in the university’s Education Program or Activity,
(c) alleges that a Respondent engaged in Sexual Harassment, and
(d) requests that the university investigate.
Specific to the definition of Formal Complaint, “document” means a physical paper or electronic submission (such as an email) that contains a Complainant’s physical or digital signature, or otherwise indicates that the Complainant is the individual submitting it.
(8) Hearing means a live hearing, either in person or using real-time technology, before a Decision-maker for the purpose of presenting evidence regarding the allegations in a Formal Complaint and allowing for questioning and cross-examination of Parties and witnesses by Parties’ Advisors in order for the Decision-maker to determine whether a Respondent is responsible for violating Carson-Newman’s Title IX Policy.
(9) Incapacitation (or Incapacitated) means the inability, temporary or permanent, to give Consent. Incapacitation may result from, by way of example: mental, developmental, and/or physical disability; involuntary physical restraint; sleep; unconsciousness; being unaware that sexual activity is occurring; or lacking the ability to make informed, rational decisions (unable to
understand the “who, what, when, where, why, or how” of a sexual interaction) in order to give Consent. The responsibility for establishing Consent falls on the initiator of a sexual act, even if the initiator was under the influence of alcohol or other drugs at the time of the alleged violation. Intoxication is not a defense to a complaint under this Policy. Evaluating Incapacitation requires an assessment of whether a Respondent knew or should have known of the Complainant’s Incapacitation based on objectively and reasonably apparent indications of impairment when viewed from the perspective of a sober, reasonable person in the Respondent’s position.
(10) Informal Resolution is a voluntary method for remedying a Formal Complaint without a complete investigation or Hearing. It may include individual meetings with counselors or the Title IX Coordinator, mediation, or restorative justice.
(11) Investigative Report means a written report created by the Investigator that fairly summarizes all relevant evidence obtained during the investigation of a Formal Complaint.
(12) Prohibited Conduct means Sexual Harassment or Retaliation under this Policy.
(13) Sexual Assault means an offense classified as a sex offense (forcible or nonforcible) under the uniform crime reporting system of the Federal Bureau of Investigation (https://ucr.fbi.gov/nibrs/2018/resource-pages/nibrs_offense_definitions-2018.pdf), including any non-consensual act of genital or anal penetration, however slight, with any body part or object; non-consensual touching of the private body parts of another person for the purpose of sexual gratification; statutory rape (TN Code §13-19-506); or incest (TN Code § 39-15-302).
(14) Sexual Harassment is defined in Section 2.2.1: Title IX Sexual Harassment.
(15) Retaliation means any conduct intended to intimidate, threaten, coerce, harass, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX, 34 C.F.R. § 106, this Policy, or its grievance procedure. Retaliation includes, but is not limited to, the bringing of disciplinary charges against an individual for Code of Conduct violations that do not involve sex discrimination or Sexual Harassment but arise out of the same facts or circumstances as a report or complaint of sex discrimination, or a report or Formal Complaint of Sexual Harassment, for the purpose of interfering with any right or privilege secured by Title IX, 34 C.F.R. § 106, this Policy, or its grievance procedure.
(16) Stalking means engaging in a course of conduct directed at a specific person that would cause a reasonable person to (a) fear for his or her safety or the safety of others; or (b) suffer Substantial Emotional Distress.
As used above, “course of conduct” means two or more acts, including but not limited to, acts in which one person (directly, indirectly, or through third parties) follows, monitors, observes, surveils, threatens, or communicates to or about another person, or interferes with that person’s property. “Substantial emotional distress” means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.
(17) Supportive Measures means non-disciplinary, non-punitive individualized services offered to a Party or potential Party in response to a report of Prohibited Conduct.
This grievance procedure applies to allegations of Title IX Sexual Harassment and does not restrict the university’s ability to investigate and pursue discipline based on alleged violations of other federal, state, or local laws, their implementing regulations, or other university policies. The university may enforce any and all of these through additional procedures described in Carson-Newman’s Code of Conduct and/or employee and faculty handbooks.
3.1 Prompt Response to Report
3.1.1 University Responsibilities
If the university has Actual Knowledge of Sexual Harassment in its Education Program or Activity, the Title IX Coordinator is responsible for coordinating a response that is prompt and reasonable in light of the known circumstances and includes at least the following:
(1) Treating Complainants and Respondents equitably;
(2) Promptly contacting the Complainant to discuss the availability of Supportive Measures;
(3) Offering Supportive Measures to the Complainant whether or not the Complainant files a Formal Complaint;
(4) Considering the Complainant’s wishes with respect to Supportive Measures;
(5) Explaining to the Complainant the procedure for filing a Formal Complaint; and
(6) Following this Policy’s grievance procedure before the imposition of any disciplinary sanctions or other actions that are not Supportive Measures against a Respondent.
3.1.2 Rights and Options
The university will provide students or employees who report being victims of Sexual Assault, Dating Violence, Domestic Violence, or Stalking with a written explanation of their rights and options for reporting and seeking additional help, regardless of whether the offense occurred on campus. The explanation will include written notification of mental health/counseling services, medical services victim advocacy, and other services available for victims (within the university and in the community) and notice of availability of changes to academic, living, and/or working situations, and other Supportive Measures, regardless of whether the student or employee files a Formal Complaint.
3.1.3 Availability of Supportive Measures
The university will offer the Parties, or those who may become Parties, Supportive Measures as appropriate and reasonably available, without fee or charge, before or after the filing of a Formal Complaint, including where no Formal Complaint is filed. Supportive Measures are designed to restore or preserve equal access to the university’s Education Program or Activity without unreasonably burdening the other Party, including measures designed to protect the safety of all Parties or the university’s educational environment, or to deter Sexual Harassment.
The following is a non-exhaustive list of Supportive Measures the university may make available:
The Title IX Coordinator is responsible for coordinating the effective implementation of Supportive Measures.
Confidentiality of Supportive Measures. The university will maintain as confidential any Supportive Measures provided to the Complainant or Respondent to the extent that maintaining such confidentiality would not impair the university’s ability to provide the Supportive Measures.
3.1.4 Emergency Removal from the University
The university may place a non-student employee Respondent on administrative leave during the pendency of the grievance procedure. The university may remove any Respondent from its Education Program or Activity on an emergency basis if:
This provision for administrative leave or emergency removal does not modify any of the Respondent’s rights under Section 504 of the Rehabilitation Act of 1973 or the Americans with Disabilities Act.
The University may place a non-student employee Respondent on administrative leave during the pendency of the grievance procedure. The University may remove any Respondent from the University’s Education Program or Activity on an emergency basis if:
(1) The University conducts an individualized safety and risk analysis.
(2) As a result of the analysis, the University determines that an immediate threat to the physical health or safety of any student or other individual arising from the allegations of Sexual Harassment justifies removal of the Respondent.
(3) The University provides the Respondent with notice and an opportunity to challenge the decision immediately following the removal.
3.2 Initial Processing of Formal Complaints
3.2.1 Filing a Formal Complaint
Only the Complainant or the Title IX Coordinator may sign a Formal Complaint.
The Formal Complaint requires an investigation into the alleged Sexual Harassment and a resolution through Hearing with a finding of responsibility or non-responsibility or through an agreed Informal Resolution Process, when available.
The Title IX Coordinator will only file a Formal Complaint against the wishes of a Complainant when the Coordinator believes the alleged conduct is likely to be repeated and creates a substantial risk to others in the Carson-Newman community. The Complainant may be asked to provide evidence but may not be compelled to participate in the grievance procedure.
3.2.2 General Provisions
3.2.3 Notice of Allegations
Upon receiving a Formal Complaint, the university will provide all known Parties written notice that includes at least the following:
a)The university’s Title IX Sexual Harassment grievance procedure, including any Informal Resolution options.
b)All allegations which may constitute Sexual Harassment, including sufficient details known at the time and with sufficient time to prepare a response before any initial interview. Sufficient details include the identities of the parties involved in the incident, if known; the conduct allegedly constituting Sexual Harassment; and the date and location of the alleged incident, if known.
c)A statement that the Respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the grievance procedure.
d)A statement that the Parties may have an Advisor of their choice, who may be, but is not required to be, an attorney.
e)A statement that the Parties may inspect and review evidence.
f)A statement that the university’s Code of Conduct prohibits knowingly making false statements or knowingly submitting false information during the grievance procedure under the university’s Abuse of Process Policy.
If, in the course of an investigation, the university decides to investigate allegations about the Complainant or Respondent that are not included in the initial notice, the university will provide notice of the additional allegations to Parties whose identities are known.
3.2.4 Dismissing a Formal Complaint
Mandatory Dismissal. The university must dismiss a Formal Complaint as a complaint of Sexual Harassment under Title IX and this Policy and grievance procedure if the conduct alleged in the Formal Complaint:
a) would not constitute Sexual Harassment even if proved,
b) did not occur in an Education Program or Activity, or
c) did not occur against a person in the United States.
The university may separately pursue allegations of conduct which would violate other provisions of the university’s Code of Conduct.
Discretionary Dismissal. The university may dismiss all or part of a Formal Complaint if at any time during the investigation or Hearing:
a) Complainant notifies the Title IX Coordinator in writing that the Complainant would like to withdraw the Formal Complaint or any allegations in it,
b)the Respondent is no longer enrolled or employed by the university, or
c)specific circumstances prevent the university from gathering evidence sufficient to reach a determination as to the Formal Complaint or allegations in it.
If all or part of a Formal Complaint is dismissed, the university must promptly and simultaneously send written notice of the dismissal and reason(s) for it to the Parties and advise the Parties of their right to appeal the dismissal.
3.2.5 Consolidating Formal Complaints
The university may consolidate Formal Complaints:
a)as to allegations of Sexual Harassment against more than one Respondent, or
b)by more than one Complainant against one or more Respondents, or
c)by one Party against the other Party, where the allegations of Sexual Harassment arise out of the same facts or circumstances.
Where a grievance procedure involves more than one Complainant or more than one Respondent, singular references to “Party,” “Complainant,” or “Respondent” include the plural, as applicable.
3.3.1 Designated Advisors and University-Appointed Advisors
A Party may choose and designate an Advisor, who may be an attorney but is not required to be. The university will not limit the choice or presence of an Advisor for either a Complainant or a Respondent in any meeting or grievance proceeding.
Each Party must have an Advisor during the Hearing but is encouraged to designate an Advisor as soon as possible after notice of the Formal Complaint. A Party may find that having an Advisor is helpful throughout the grievance procedure. The university will appoint an Advisor for any Party who does not have one present for the Hearing. University-appointed Advisors serve at no cost to a Party. However, Advisors appointed by the university serve for the limited purpose of conducting cross-examination at the Hearing. A university-appointed Advisor is not required to be an attorney or to have a level of competency comparable to that of another Party’s designated advisor. An Advisor is not required to perform any function beyond relaying a Party’s desired questions to the other Party and witnesses.
Because the university is required to provide certain information to a Party’s Advisor, each Party must notify the Title IX Coordinator in writing when the Party designates an Advisor or changes to a different Advisor. The Party must include the Advisor’s contact information.
3.3.2 Rules for Advisors
Except during a Hearing, the role of the Advisor is limited to providing support, guidance, and/or advice to the Complainant or Respondent throughout the grievance procedure. The following rules apply to all Advisors, including those appointed by the university:
a)Advisors are not to answer questions posed directly to any Party or witness, nor otherwise interfere with questioning by the Investigator.
b)An advisor may request reasonable opportunities to confer with the Party being advised.
c)During meetings, Parties and their respective Advisors may talk quietly with each other.
d)Advisors do not have the right to question witnesses except in a Hearing.
e)Advisors may not present opening statements, closing statements, or arguments.
f)Advisors must act in a respectful manner at all times; bullying, yelling, and abusive conduct are never permitted.
g)Parties and Advisors must not disturb the Hearing or any other proceeding by loudly conferring with one another.
h)Advisors must comply with the decisions and directions of the Decision-maker
i)Advisors may not disclose to other persons any confidential student information which is revealed to the Advisor during the grievance procedure.
If a Party’s Advisor (whether designated by the Party or appointed by the university) refuses to comply with these rules, including rules relating to decorum, the university may require the Party to designate a different Advisor or, if no other Advisor is designated, to accept an Advisor appointed by the university to conduct cross-examination on behalf of the Party. The university may remove from any proceeding Advisors who become disruptive or who do not abide by the above restrictions on Advisor participation.
3.4 Informal Resolution
At any time after a Formal Complaint has been filed but before reaching a determination regarding responsibility, the university may facilitate an Informal Resolution process that does not involve a full investigation and adjudication. Before an Informal Resolution can proceed, the University must notify the Parties in writing disclosing:
The university must obtain the Parties’ voluntary, written consent to proceed with an Informal Resolution process. The formal procedure for resolving a Formal Complaint will normally be suspended during the Informal Resolution process. If the informal process produces a resolution that is agreed upon by the Parties in writing, the grievance procedure shall end, and no further investigation or Hearing shall occur. Informal Resolution does not remove the university’s ability to enforce sanctions but permits the Parties to accept them voluntarily after discussion.
3.5 Investigation of Formal Complaints
3.5.1 The University’s Responsibilities
The university will designate one or more Investigators to investigate the allegations in the Formal Complaint. The burden of gathering evidence sufficient to reach a determination regarding responsibility rests on the university and not on the Parties. The university shall not require, allow, rely upon, or otherwise use questions or evidence that constitute, or seek disclosure of, information protected under a legally recognized privilege unless the person holding such privilege has waived it. If the Investigator makes any determinations regarding credibility, those determinations may not be based on a person’s status as a Complainant, Respondent, or witness.
The university may restrict attendees for any meeting or proceeding related to the grievance procedure, including meetings or interviews conducted by the Investigator. However, both the Complainant and the Respondent will have the same opportunities to have others present during any grievance proceeding.
3.5.2 Equal Opportunity to Present and Review Evidence
In the course of the investigation, all Parties have an equal opportunity to present witnesses, including fact and expert witnesses as approved by the Decision-maker, and other inculpatory and exculpatory evidence. The university does not restrict the ability of either Party to discuss the allegations under investigation in order to gather and present relevant evidence. However, the ability to discuss the allegations freely does not give a Party permission to make false or harassing statements – on social media, for example – without consequences for violating the university’s Code of Conduct, expectations for employees, or relevant laws.
Before completing the Investigative Report, the Investigator will send to each Party and the Party’s Advisor, if any, all of the evidence obtained as part of the investigation that is directly related to the allegations raised in the Formal Complaint, including evidence upon which the university does not intend to rely in reaching a determination regarding responsibility and inculpatory or exculpatory evidence, whether obtained from a Party or another source. The evidence may be presented to the Parties in the form of a draft Investigative Report. *
The evidence will be subject to inspection and review by both Parties and may be provided in an electronic format, a hard copy, or a mixture of both. Each Party will have at least ten (10) days to submit a written response to the evidence. This written response shall be the Party’s final opportunity to identify and present witnesses and other inculpatory and exculpatory evidence.
If the Investigator finds that either Party has provided new evidence (including witnesses) directly related to the allegations, the Investigator will provide the new evidence to both Parties and permit an additional ten (10) days for each Party to respond to the new evidence. The Investigator will consider the Parties’ written responses to the evidence before completing the Investigative Report.
3.5.3 Medical and Treatment Records
In gathering evidence, except with the Party’s voluntary, written consent, the university cannot access, consider, disclose, or otherwise use a Party’s records that are made or maintained (a) by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional’s or paraprofessional’s capacity or assisting in that capacity and (b) made or maintained in connection with the provision of treatment to the Party.
3.5.4 The Investigative Report
After the time for a Party’s written response to the evidence has expired, the Investigator will create a final Investigative Report that fairly summarizes all of the relevant evidence gathered in the course of the investigation, including a description of the procedural steps taken from the receipt of the Formal Complaint through the investigation. This should include any notifications to the Parties, interviews with Parties and witnesses, site visits, and description of methods used to gather other evidence.
At least ten (10) days prior to the Hearing, the Investigator will send each Party and each Party’s Advisor a copy of the Investigative Report in an electronic format or a hard copy. A Party or a Party’s Advisor may make a written response to the Investigative Report by providing a copy of the response to the Investigator and the Title IX Coordinator by noon on the third business day before the day of the Hearing (for example, on Monday for a Thursday Hearing or on Thursday for a Tuesday Hearing). The Title IX Coordinator will provide a Party’s written response, if any, to the other Party. A copy of the Investigative Report and all written responses from the Parties will be provided to the Decision-maker prior to the Hearing.
3.6 Pre-Hearing Procedure
3.6.1 When Hearings Are Required
A live hearing must be held with respect to a Formal Complaint of Title IX Sexual Harassment unless the Formal Complaint has been dismissed or the Parties choose to resolve the case through an Informal Resolution process without a completed investigation or adjudication.
The Parties cannot waive a Hearing except by agreement to use the university’s Informal Resolution process.
3.6.2 Preparation for a Hearing
The university may designate a Hearing manager, who may be the Title IX Coordinator, to arrange the logistics of the Hearing. The manager may invite the Parties, separately, and their Advisors to meetings to review the procedural details of the Hearing.
At least five (5) days before the Hearing, the university will notify each Party and Advisor in writing of the date, time, location, and participants for the Hearing, including the name of each witness whom the University will request to appear at the Hearing (in person or virtually) for the purpose of providing evidence. The Hearing may be conducted with all participants physically present in the same location or, at the University’s discretion, any or all Parties, witnesses, and other participants may appear virtually, with technology enabling participants simultaneously to see and hear each other.
Requesting Separate Rooms. At the request of either Party, the university will provide for the Hearing to occur with the Parties located in separate rooms using technology enabling the Decision-maker and Parties to simultaneously see and hear the Party or the witness answering questions. In order to have sufficient time to make the appropriate arrangements, a Party’s request to be in a separate room must be made in writing to the Title IX Coordinator at least three (3) business days before the Hearing.
Voluntary Pre-Hearing Submission of Questions. At the discretion of the Decision-maker and to help the Hearing run efficiently, the Title IX Coordinator or Hearing manager may suggest that Parties and their Advisors submit, in writing, the questions their Advisors intend to ask at the live Hearing. Following this submission, the Decision-maker may request a pre-Hearing conference to hear arguments about the relevance of questions or of evidence in the Investigative Report. Pre-Hearing submission of questions does not remove the option for Advisors to ask additional questions at the Hearing.
3.6.3 Attendance of Parties and Witnesses; Delay for Absent Witness
The university is prohibited by law from requiring any Party or witness to appear at the Hearing, or from engaging in any act that would intimidate, threaten, coerce, or discriminate against any individual because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, grievance proceeding, or Hearing.
For these reasons, the university is not responsible if a Party or witness fails to appear at the Hearing, and the Hearing may proceed in the absence of the Party or witness. The university may grant a Party’s reasonable request to delay the Hearing if that Party or an important witness is unable to attend the Hearing. A request for a delay should be made as soon as possible as described in Section 3.11.2: Temporary Delays or Extensions.
3.7 The Hearing
3.7.1 Advisors Required at the Hearing
If a Party does not have an Advisor present at the Hearing, the university will provide the Party an Advisor of the university’s choice without fee or charge to that Party. Advisors are not required to be attorneys. Unless the university grants a delay for good cause shown, the university shall appoint an Advisor for a Party whose designated Advisor is absent from the Hearing.
Each Party’s Advisor shall be responsible to conduct cross-examination on behalf of the represented Party. See Section 3.3.1 regarding the limited role of an advisor appointed by the University.
3.7.2 Beginning the Hearing
The Decision-maker shall convene the Hearing at the appointed time. The Decision-maker will review Hearing procedures for the Parties. In order to maintain students’ privacy as much as possible, witnesses will not be in the Hearing room or attending by technological means except when providing evidence or being cross-examined. Parties and witnesses will be reminded that providing false information in connection with the Hearing is a violation of the university’s Code of Conduct for students or expectations of employees.
Presentation of Final Investigative Report. The investigator(s) will present a summary of the final investigation report, identifying items that are contested and those that are not. The Decision-maker and each Party’s Advisor may question the investigator(s). The investigator should not be asked to disclose opinions on credibility, recommended findings, or determinations. Decision-makers, Advisors, and Parties will refrain from discussion of these assessments and from questions for investigators about them. If such information is introduced, the Decision-maker will direct that it be disregarded.
3.7.3 Examining Parties and Witnesses
Each Party’s Advisor will be given an opportunity to ask the other Party and any witnesses all relevant questions and follow-up questions, including those challenging credibility. Such cross-examination must be conducted directly, orally, and in real time by the Party’s advisor, and never by a Party personally.
Relevance. Before a Complainant, Respondent, or witness answers a cross-examination or other question, the Decision-maker must first determine whether the question, if answered, would tend to make a fact material to the allegations more or less likely to be true and explain any decision to exclude a question as not relevant. The Decision-maker may ask both Advisors to provide reasons why a question should or should not be considered relevant. The Decision-maker will instruct all Parties and witnesses not to answer any question until the Decision-maker has allowed the question.
Questions and evidence about the Complainant’s sexual predisposition or prior sexual behavior are not relevant, unless:
a)Such questions and evidence about the Complainant’s prior sexual behavior are offered to prove that someone other than the Respondent committed the conduct alleged by the Complainant, or
b)The questions and evidence concern specific incidents of the Complainant’s prior sexual behavior with respect to the Respondent and are offered to prove consent.
The Decision-maker shall not permit any questions, nor the introduction of any evidence, that would involve the disclosure of information protected under a legally recognized privilege, unless the person holding the privilege has waived it.
Cross-Examination. A cross- examination proceeds as follows:
Because the university’s grievance procedure is not a civil proceeding or state action, there is no right against self-incrimination. However, the Decision-maker may not draw an inference regarding responsibility based solely on a Party’s or witness’s absence from the Hearing or refusal to answer cross-examination or other questions.
3.7.4 Availability of Evidence
The university will make all evidence that was subject to inspection and review by the Parties in connection with the preparation of the Investigative Report available at the Hearing, digitally or otherwise, to give each Party equal opportunity to refer to such evidence during the Hearing, including for purposes of cross-examination. Parties must notify the Title IX Coordinator at least twenty-four (24) hours prior to the Hearing regarding any physical evidence, transcripts, recordings, or other items requested to be physically available at the Hearing.
3.7.5 Conducting the Hearing
The Hearing will be conducted substantially as provided below. The Decision-maker may recess the Hearing for appropriate and reasonable rest and meal breaks. Any Hearing participant may request a break.
3.7.6 Record of the Hearing
The university will create an audio or audiovisual recording, or transcript, of the Hearing and make it available to the Parties and to the Decision-maker for inspection and review.
3.8 Determination of the Allegations
The Decision-maker shall exercise independent and unbiased judgment with respect to:
The Decision-maker may consult with university officials for information about sanctions and remedies typically used. To provide information to the Decision-maker and ensure fair and consistent application of sanctions, the Title IX Coordinator will seek input from an Associate Provost and/or the Director of Human Resources for employee Respondents and from the Dean of Students for student Respondents.
3.8.1 Preponderance of the Evidence Standard
The Decision-maker shall determine whether the Respondent is responsible for each of the allegations in the Formal Complaint that could constitute Prohibited Conduct under this Policy. The Decision-maker shall reach these decisions by applying the Preponderance of the Evidence standard of evidence. A finding of responsibility under this standard means that the Decision-maker determines that it is more likely than not that the Respondent engaged in Prohibited Conduct identified in this Policy. In making the determination, the Decision-maker:
a)must make an objective evaluation of all relevant evidence – including both inculpatory and exculpatory evidence;
b)must not make credibility determinations based on a person’s status as a Complainant, Respondent, or witness;
c)must not draw an inference about responsibility based solely on a Party’s or witness’s absence from the live hearing or refusal to answer cross-examination or other questions; and
d)must not rely upon evidence or information protected under a legally recognized privilege unless the person holding the privilege has waived it.
The Decision-maker may consider statements made by the Parties and witnesses during the investigation, as well as other relevant evidence, regardless of whether the Parties or witnesses submit to cross-examination at the Hearing. For example, the Decision-maker may consider written communication (texts, emails, etc.) between the Parties from times leading up to the alleged Sexual Harassment and statements about the alleged Sexual Harassment which the Decision-maker determines to be relevant under this Policy. Additionally, the Decision-maker may consider relevant police reports, Sexual Assault Nurse Examiner (SANE) documents, medical reports for which privilege has been waived, and other documents, even if those documents contain statements of a party or witness who is not cross-examined at the Hearing.
3.8.2 Letter of Determination
The Decision-maker shall issue a written determination regarding the Respondent’s responsibility for the alleged misconduct. The written determination must include:
a) the allegations potentially constituting Sexual Harassment;
b)a description of the procedural steps taken from the receipt of the formal complaint through the determination, including any notifications to the Parties, interviews with Parties and witnesses, site visits, methods used to gather other evidence, and hearings held;
c)findings of fact supporting the determination;
d)conclusions regarding the application of this Carson-Newman Title IX Policy to the facts;
e)a decision and supporting rationale corresponding to each allegation, including a determination of “Responsible” or “Not Responsible”;
f)identification of any disciplinary sanctions the university will impose on the Respondent and any
remedies designed to restore or preserve equal access to the university’s Education Program or Activity the university will provide to the Complainant; and
g) permissible reasons for Parties to appeal and the university’s appeal procedure.
3.8.3 Effective Date of Determination
The university will provide the written determination regarding responsibility to the Parties simultaneously. If neither Party appeals, the determination becomes final on the date on which an appeal would no longer be considered timely.
If a Party appeals the determination, the determination becomes effective on the date the university provides the Parties with the written determination of the result of the appeal, unless the appeal decision requires further proceedings.
3.9 Sanctions and Remedies
Carson-Newman may impose a range of disciplinary sanctions and remedies with respect to any misconduct for which a Respondent has been determined to be responsible. Possible sanctions and remedies include any combination of, but are not limited to, the following:
The Title IX Coordinator is responsible for ensuring effective implementation of any sanctions or remedies.
3.10.1 Right of Appeal
Either Party may request an appeal from a determination regarding responsibility, or from the university’s dismissal of all or any part of a Formal Complaint. Appeals are not automatic and are not a “re-hearing” of a case. Rather, they are an opportunity to request a review of a case based on specified grounds for appeal. The appeal procedure shall apply equally to both Parties.
The following are the only allowable bases for appeal:
a) Procedural irregularity that affected the outcome of the matter
b)New evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made, that could affect the outcome of the matter
c)The Title IX Coordinator, Investigator(s), or Decision-maker(s) had a conflict of interest or bias for or against Complainants or Respondents generally or the individual Complainant or Respondent that affected the outcome of the matter.
3.10.2 Filing an Appeal
In order to appeal, a Party must file a written Notice of Appeal challenging the initial outcome that is received by the Title IX Coordinator within ten (10) days after the written Letter of Determination was issued. The Notice of Appeal must state, at a minimum:
3.10.3 Consideration of an Appeal
The university will promptly notify both Parties in writing that an appeal has been filed and provide a copy of the Notice of Appeal to the other Party. The non-appealing Party shall have ten (10) days from the date of such notice to submit to the Title IX Coordinator a written statement in support of the initial outcome or in opposition to the appeal. A copy of any such written statement shall be provided to the appealing Party.
The appeal shall be considered and decided by an Appeal Decision-maker who is not the same person as the Investigator, the Title IX Coordinator, or the Decision-maker that reached the determination regarding responsibility or dismissal. The Appeal Decision-maker shall review the Notice of Appeal, the response of the non-appealing Party, and may review the record of the Hearing as necessary to reach a conclusion on the appeal.
3.10.4 Decision on Appeal
The Appeal Decision-maker shall issue a written decision describing the result of the appeal and the rationale for the result.
The decision on appeal shall be appropriate to the basis or bases for appeal and may adopt one or more of the following holdings, regardless of which Party filed the appeal:
a) Affirm the initial written determination.
b) Change any part of the written determination, including a change to find responsibility or to find no responsibility.
c) Increase or decrease the sanctions.
d) Require additional investigation (particularly in the case of new evidence that is material, not merely cumulative, and if presented in the Hearing could reasonably have resulted in a different determination).
e) Order a new Hearing.
The written decision on the appeal shall be provided simultaneously to both Parties.
3.12 Record Retention
The university will maintain any and all documents, images, audio or visual recordings, and/or transcripts related to a report, Formal Complaint, investigation, Supportive Measures, Informal Resolution, Sanctions and/or remedies administered under this Policy for seven (7) years from the date of resolution.