Tenn. Comp. R. & Regs. 1720-04-03-.09 - TITLE IX HEARINGS: HEARINGS AND APPEALS

(1) The Title IX Hearing. Any case that includes Title IX Allegations that reaches the Formal Hearing stage will be resolved through a Title IX Hearing. The Title IX Hearing must be conducted in accordance with 34 C.F.R. 106.45.

(2) The Title IX Hearing Officer. The Vice Chancellor for Student Life (or a designee) will appoint a qualified Title IX Hearing Officer to conduct the Title IX Hearing and will notify the parties and their Advisors, if any, of the appointment. The Title IX Hearing Officer may be a University employee, a team of University employees, an external person engaged to conduct the Title IX Hearing, or a team of external people engaged to conduct the Title IX Hearing. A party may object to the appointment of any Title IX Hearing Officer, in writing to the Vice Chancellor for Student Life. Any objection must be received within three (3) business days of the notice of appointment, and it must state the party's grounds for objecting. The Vice Chancellor for Student Life will decide whether an objection is justified, and that decision is final. If a Title IX Hearing Officer is removed based on an objection, the Vice Chancellor for Student Affairs will appoint a new qualified Title IX Hearing Officer to conduct the Title IX Hearing.

(3) Notice of Title IX Hearing.

(a) When a Notice of Title IX Hearing Is Sent. The Title IX Hearing Officer will send the Respondent and the Complainant a Notice of Title IX Hearing at least ten (10) business days in advance of the date of the hearing.

(b) Information in the Notice of Title IX Hearing. The Notice of Title IX Hearing will contain, or be accompanied by, the following information:

1. the date, time, and place of the Title IX Hearing;

2. notice of the right to have an Advisor of the party's choice, who may be, but is not required to be, an attorney, and that, if the party does not have an Advisor present at the hearing, the University must provide an Advisor of the University's choice, without fee or charge, to ask the other party and any witnesses all relevant questions and follow-up questions on behalf of that party;

3. notice that any cross-examination of any other party or witness must be conducted by the Advisor, and never by a party personally; and

4. notice that all of the evidence obtained as part of the investigation that is directly related to the allegations raised in the Formal Complaint will be available to the parties at the hearing. Other pre-hearing information may also be included in the Notice of Title IX Hearing. Any Title IX Hearing may be rescheduled by the Title IX Hearing Officer or upon request of any party and for good cause shown.

(c) More than One Respondent. In cases involving more than one (1) Respondent, Title IX Hearings concerning each Respondent's conduct may be conducted separately upon written request of a party submitted at least seven (7) business days in advance of the hearing. SCCS has the discretion to make the final determination of whether to grant such a request and will notify the parties of the decision.

(d) Consequences of Failing to Attend a Title IX Hearing. If a party fails to attend a Title IX Hearing, the Title IX Hearing Officer may proceed with the Title IX Hearing without that party's participation.

(4) General Rules Governing Title IX Hearings.

(a) The Title IX Hearing will take place no sooner than ten (10) business days after the parties' receipt of the written investigative report.

(b) The Title IX Hearing Officer may conduct pre-hearing meetings or conferences with the parties and their Advisors, if any, to discuss any pre-hearing issues, including but not limited to, the date of the hearing, the location of the hearing, any technology to be used at the hearing, the general rules governing the hearing, including any rules of decorum, the identification of witnesses, and the availability of evidence at the hearing.

(c) Each party must notify the Title IX Hearing Officer at least five (5) business days before the hearing of the identity of the party's Advisor, if any, or that the party does not have an Advisor so that the University can provide an Advisor.

(d) At the request of either party, the University will provide for the hearing to occur with the parties located in separate rooms with technology enabling the Title IX Hearing Officer and parties to simultaneously see and hear the party or the witness answering questions.

(e) Upon request of a party, and for good cause shown, the Title IX Hearing Officer may permit the participation of witnesses who were not identified by the party to the investigator, or the inclusion of evidence at the Title IX Hearing that was not provided by the party to the investigator.

(5) Procedural Rules for Title IX Hearings.

(a) Authority of the Title IX Hearing Officer. The Title IX Hearing Officer has the authority to maintain order and make all decisions necessary for the fair, orderly, and expeditious conduct of the Title IX Hearing. The Title IX Hearing Officer shall be the final decision maker concerning what, how, and in what order witnesses are questioned and evidence is examined.

(b) Exclusion of Information.

1. Questions and evidence about the Complainant's sexual predisposition or prior sexual behavior are not relevant, unless 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 if 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.

2. The University cannot access, consider, disclose, or otherwise use a party's records that are made or maintained 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 which are made and maintained in connection with the provision of treatment to the party, unless the University obtains that party's voluntary, written consent to do so.

3. The University cannot 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 the privilege.

(c) Preliminary Matters. The Title IX Hearing Officer shall begin the hearing by explaining the substance of the allegations and the specific University rule or policy allegedly violated.

(d) Attendance and Participation. Attendance during a Title IX Hearing generally is limited to the Title IX Hearing Officer, a representative from SCCS, the Complainant and the Complainant's Advisor, the Respondent and the Respondent's Advisor, and witnesses. Witnesses may attend the Title IX Hearing only while they are presenting information to the Title IX Hearing Officer, unless the witness is the Complainant or the Respondent. The Title IX Hearing Officer and SCCS have the discretion to allow other persons to attend the Title IX Hearing, in accordance with state and federal law.

(e) Opening Statements. The Complainant and then the Respondent may each make an opening statement to the Title IX Hearing Officer, and they may provide a written copy of their opening statements to the Title IX Hearing Officer at the hearing. The Title IX Hearing Officer will provide a copy of any written opening statement received to the other party.

(f) Questioning the Witnesses. Following any opening statements, the Title IX Hearing Officer will question the Complainant, the Respondent, and any witnesses requested by the parties or deemed to have relevant information by the Title IX Hearing Officer. The Title IX Hearing Officer will permit each party's Advisor 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 of choice and never by a party personally. Only relevant cross-examination and other questions may be asked of a party or witness. Before the Complainant, the Respondent, or any witness answers a cross-examination or other question, the Title IX Hearing Officer must first determine whether the question is relevant and explain any decision to exclude a question as not relevant. If a party or witness does not submit to cross-examination at the hearing, the Title IX Hearing Officer must not rely on any statement of that party or witness in reaching a determination regarding responsibility; provided, however, that the Title IX Hearing Officer cannot draw an inference about the determination regarding responsibility based solely on a party's or witness's absence from the hearing or refusal to answer cross-examination or other questions. Notwithstanding any provisions in this Section .09(5)(f) to the contrary, alleged verbal conduct by a Respondent that constitutes any part of the Title IX Allegations at issue in the case may be considered by the Title IX Officer in reaching a determination regarding responsibility even if the Respondent does not submit to cross-examination during the Title IX Hearing.

(g) Closing Statements. At the close of the Title IX Hearing, the Title IX Hearing Officer may allow the Complainant and the Respondent equal opportunities to make closing statements summarizing the information presented to the Title IX Hearing Officer and/or advocating the decision that the Title IX Hearing Officer should reach.

(6) Recording of the Title IX Hearing. The University will create an audio or audiovisual recording or transcript of the hearing and make it available to the parties for inspection and review.

(7) Notice of Decision of Title IX Hearing Officer. Within ten (10) business days of the hearing, the Title IX Hearing Officer must issue a written determination regarding responsibility ("Notice of Decision of Title IX Hearing Officer"). The written determination must include (a) identification of 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 the Code to the facts; (e) a statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility, any disciplinary sanctions imposed on the Respondent, and whether remedies designed to restore or preserve equal access to the University's education program or activity will be provided by the University to the Complainant; and (f) the procedures and permissible bases for the Complainant and Respondent to appeal. If the Respondent is determined responsible, the Title IX Hearing Officer may consider relevant information provided at the hearing by the Complainant, the Respondent, or any other witness in deciding the appropriate sanction for the Respondent's misconduct.

(8) Notice of Decision of Title IX Hearing Officer to SCCS. The Title IX Hearing Officer shall transmit a copy of the Notice of Decision of Title IX Hearing Officer to SCCS. SCCS shall notify the Respondent, the Complainant, and their Advisors about the written determination and provide a copy of it simultaneously to the parties and their Advisors.

(9) Appealing Decisions of the Title IX Hearing Officer.

(a) Appealable Decisions. The Complainant and the Respondent may appeal the decisions of the Title IX Hearing Officer that are contained in the Notice of Decision of Title IX Hearing Officer (as well as a decision by the University to dismiss a Formal Complaint that includes Title IX Allegations), but the grounds for appeal are limited to those described in Section .09(8)(c).

(b) Notice of Appeal. An appeal is procedurally valid only if all of the following requirements are met:

1. an appeal shall be submitted in writing by fully completing a form approved by SCCS called a "Notice of Appeal";

2. the Notice of Appeal shall be received by the Vice Chancellor for Student Life, or their designee, within five (5) business days of the date that SCCS transmitted the Notice of Decision; and

3. the Notice of Appeal shall not include information that is not included in the record of the Title IX Hearing, except the Notice of Appeal may contain a summary of the new information described in Section .09(8)(c)3. SCCS will notify the other party in writing when an appeal is received.

(c) Grounds for Appeal. The Notice of Appeal shall explain the grounds for the appeal, which shall be limited to one (1) or more of the following grounds:

1. Clearly Unreasonable Sanction. The sanction(s) imposed by the Title IX Hearing Officer is clearly unreasonable (i.e., has no sound basis or justification in reason).

2. Procedural Error. A procedural irregularity affected the outcome of the matter.

3. New Evidence. New evidence that was not reasonably available at the time the determination regarding responsibility was made that could affect the outcome of the matter.

4. Conflict of Interest or Bias. The Title IX Coordinator, the investigator(s), or theTitle IX Hearing Officer 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.

(d) Effective Date of Sanction. The sanction(s) imposed by the Title IX Hearing Officer shall not be effective during the period in which a Notice of Appeal may be submitted, or, if a procedurally valid Notice of Appeal has been submitted (as determined by Section .09(8)(c)), until a Notice of Title IX Final Decision is issued by the Vice Chancellor for Student Life, whichever is later.

(e) Appeal Process. Each party may submit a written statement in support of or challenging the outcome of the Title IX Hearing. The written statement must be received by the Vice Chancellor for Student Life within five (5) business days of the date on which the Notice of Appeal was filed, or within five (5) business days on which the non-appealing party received notice that the other party filed a Notice of Appeal. Within five (5) business days of the receipt of the last timely submitted appeal, the Vice Chancellor for Student Life will issue a written decision (Notice of Title IX Final Decision) describing the result of the appeal and the rationale for the result, which will be provided simultaneously to both parties. The decision of the Vice Chancellor for Student Life is final and not subject to further appeal.

Notes

Tenn. Comp. R. & Regs. 1720-04-03-.09

New rule filed December 17, 2020; effective March 17, 2021. Amendments filed May 14, 2021; effective 8/12/2021.

Authority: T.C.A. § 49-9-209(e).