Title IX Policies at NECO (2020)

New England College of Optometry (NECO) complies with Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex in the College’s programs and activities; the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act), as amended by the Violence Against Women Reauthorization Act of 2013 (VAWA), Title VII of the Civil Rights Act of 1964; and its stated counterpart, M.G.L. c.151B; Section 504 of the Rehabilitation Act and the Americans with Disabilities Act, and other applicable laws.

Title IX Training

NECO will provide annual training to Title IX-related personnel with responsibilities under this policy, including training to ensure personnel understand the policy and are able to appropriately address allegations, provide accurate information to members of the community, protect the safety of the community, and promote accountability.

Coordination with Other NECO Policies

This policy addresses sexual and gender-based harassment, sexual assault (non-consensual sexual touching, forcible or not), stalking, domestic violence, sexual exploitation, and retaliation (collectively referred to in this policy as “prohibited conduct”). Other forms of sex discrimination (not based on harassment or violence), and discrimination and harassment based on race, color, nationality or ethnic origin, sex, age, or disability are governed by NECO’s Non-Discrimination Policy. In addition, the conduct of students, employees, and faculty is governed by the following policies:

• Student Code of Conduct
• Employee Manual
• Faculty Handbook
• NECO Policy on Consensual Relationships, which prohibits romantic and/or sexual relationships between employees and students (undergraduate, graduate or doctoral), and employees and any individual whom that person supervises or evaluates in any manner.

Where conduct involves the potential violation of both the Title IX policy and another NECO policy, NECO may choose to investigate other potential misconduct under the procedures outlined in this policy.

The Title IX Coordinator has the primary responsibility for coordinating NECO’s efforts related to the intake, investigation, resolution, and implementation of supportive measures to stop, remediate, and prevent discrimination, harassment, and retaliation prohibited under this policy. The Title IX Coordinator receives allegations of sexual or gender-based misconduct and determines whether the allegations are prohibited by Title IX, or whether they fall under other laws and/or NECO policies. The Title IX Coordinator will also ensure that ongoing training and education regarding sex/gender-based harassment, discrimination, and retaliation take place, as well as compliance-related reporting.

After an alleged violation of this policy is reported, the Title IX Coordinator will: ensure that the appropriate steps are taken, including providing supportive measures, conduct investigating as appropriate, assign advisors (when appropriate), and determine which resolution process (formal investigation or informal internal resolution) will apply based on the allegations raised.

NECO'S TITLE IX COORDINATOR
Elizabeth Perreault
Director, Human Resources

NECO also has two Deputy Title IX Coordinators. These individuals can offer further information to those who may have questions about these policies, and formal reports can be submitted to them. The Deputy Title IX Coordinators will also keep individuals involved in the formal investigations process and provide updates regarding its progress. The Deputy Title IX Coordinators may participate in informal resolution processes and will conduct the role of Hearing Officer; however, they will not participate in the investigation when a formal Title IX complaint is made, the hearing panel, or in the deliberations regarding the investigation report.

NECO DEPUTY COORDINATOR
Mollie Forman
Manager, Compliance & Safety

NECO DEPUTY COORDINATOR
Gary Chu
Vice President, Professional Affairs

NECO is committed to establishing an environment for its students, staff, faculty, and third parties (i.e., vendors, alumni/ae, and visitors) that is free of harassment and discrimination on the basis of sex or gender in any of its education or employment programs and activities. This policy prohibits conduct as defined under Title IX: sexual and gender-based harassment, sexual assault, dating violence, domestic violence, stalking, and retaliation, and acknowledges additional forms of sexual or gender-based misconduct prohibited by other policies (collectively referred to in this policy as “prohibited conduct”).

All violations of prohibited conduct under this policy will result in discipline, including potential dismissal from NECO, and some forms of prohibited conduct may also violate state and federal laws, and criminal prosecution may occur independently of any disciplinary action imposed by NECO. NECO will respond to complaints, reports, allegations, and information about harassment, sex- and gender-based discrimination and retaliation.

This policy sets forth the procedures that will be used to respond and investigate reports of prohibited conduct, either through a formal investigation, or through an informal resolution. All parties have options, including seeking counseling or assistance, making a formal report under this policy, and/or making a report to law enforcement. NECO recognizes that deciding among these options is a personal decision and encourages individuals to seek assistance to explore all potential reporting and support options.

NECO employees must report allegations of sexual harassment and other forms of sex- and gender-based discrimination that they observe or learn about, whether prohibited by Title IX or not, to the Title IX Coordinator. Employees who intentionally fail to report allegations of sexual harassment and other forms of sexual misconduct that they observe or learn about may be subject to disciplinary action.

NECO prohibits retaliation for reporting an alleged violation of Title IX policies. Retaliation occurs when an adverse action is taken against an individual for raising concerns about conduct that is prohibited by law or policy.

Individuals have several options when reporting complaints, all of which are voluntary. An individual bringing forth a report that they have experienced one or more alleged policy violations that could constitute harassment, discrimination, and/or retaliation under these policies is referred to as the Complainant. An individual who is alleged to have carried out one or more of the prohibited acts or conduct defined in these policies, also known as the alleged violator, is referred to as the Respondent. The Complainant and the Respondent may choose to bring a support person to accompany the party to meetings related to the resolution or adjudication process. This person is referred to as the Advisor. The Advisor can be a faculty member, staff member, coach, attorney, parent, or friend.

Individuals bringing forth complaints must complete the “Title IX Prohibited Conduct, and Gender-Based Harassment Complaint Form” and identify which process they would like to pursue: Formal Investigation, Informal Resolution, Seek Additional Information, or Provide Supportive Measures Only as a response.

Informal Resolution Process

Individuals may seek an informal resolution in place of a formal report and investigation. The Title IX Coordinator has the discretion to determine whether the nature of the reported conduct is appropriate for an informal resolution, to determine the type of informal resolution that may be appropriate in a specific case, and/or to refer a report for formal investigation at any time. If Respondent is an employee (faculty, staff or other community member) and the Complainant is a student, informal options are not available.

Participation in an informal resolution process is voluntary and requires written consent from all involved parties, including both the Complainant and the Respondent. NECO allows a Complainant or Respondent to withdraw from the informal resolution process at any time. NECO may decline the request for informal resolution in any particular case and may terminate an ongoing informal resolution process at any time. If the Complainant or the Respondent withdraws from an informal resolution process, or when an informal resolution is otherwise terminated for any reason, any statements or disclosures made by the parties during the course of the informal resolution may be considered in a subsequent formal investigation.

Resolution with a Neutral Party: The Title IX Coordinator can arrange to have a trained, neutral party (one of the two Deputy Title IX Coordinators) facilitate a meeting or meetings between the Complainant and the Respondent.

Interventions and Remedies: Informal resolution agreements may involve interventions and remedies designed to address the concerns. The Title IX Coordinator will maintain records of all reports and conduct referred for informal resolutions. The Complainant and Responding parties should also know that the Complainant still has the option to bring criminal or civil actions against the Respondent.

Formal Investigation Process

Individuals may seek a formal investigation into the complaint. The Title IX Coordinator may consult with any employee of the college, or external legal counsel on a “need to know” basis as part of the formal investigation process. Before any investigation can begin, the Complainant must sign a Formal Complaint requesting an investigation and submit it to the Title IX Coordinator.

The Title IX Coordinator will proceed with an investigation process when a Complainant requests a formal investigation and the Title IX Coordinator determines the alleged misconduct falls within the scope of Title IX. The Title IX formal investigation process involves an investigation, a live hearing with cross-examination, adjudication, and, if appropriate, the imposition of sanctions.

Under Title IX Regulations, institutions of higher education are required to distinguish between prohibited conduct that is “under Title IX” and prohibited conduct that is a violation of other policies. Under Title IX, NECO must dismiss a Formal Complaint or the part of the allegations in a Formal Complaint, if applicable, during the investigation or hearing where it determines that:

• The conduct alleged in the formal complaint does not meet the definition of sexual harassment as defined in this policy;
• The alleged conduct did not occur in NECO’s education program or activity; or,
• The alleged conduct did not occur against a person in the United States.

It is important to note that a dismissal under this provision only applies to allegations of sexual harassment under Title IX. In such an instance, NECO may still investigate a Formal Complaint about allegations of sexual harassment as defined under this Policy. NECO may also investigate allegations of prohibited conduct under this Policy, but it will not technically be “under Title IX Process.”

The Title IX Coordinator may dismiss a Formal Complaint, at its discretion, if the Complainant requests in writing to dismiss a Formal Complaint, and/or if the Respondent is no longer enrolled or employed by NECO at the time the Formal Complaint is filed. If NECO dismisses a Formal Complaint, the Title IX Coordinator must provide both parties with written notice of the dismissal and the reason(s) for the dismissal.

Notification of Formal Complaint to Respondent

Initial Meeting

The Title IX Coordinator will meet with the Respondent to let them know a report has been filed. The Respondent may bring a support person or an advisor to this initial meeting. The Title IX Coordinator will discuss the nature of the report, explain the rights and responsibilities of the Respondent, explain the prohibition against retaliation, review the Investigation and Adjudication Process, and give the responding party a copy of the relevant policies. NECO will provide written notice to a party whose participation is invited or expected of the date, time, location, participants, and purpose of all meetings, investigative interviews, or other proceedings in the Adjudication Process.

Responding Party's Statement

The Respondent will be allowed a reasonable time to respond in writing and through an interview with the Title IX Coordinator. This statement should provide as much detail as possible about the facts surrounding the alleged misconduct and must be written by the Respondent.

Alternative Resolution Option of Certain Formal Complaints (Optional)

After the parties have been provided a copy of the written notice of a Formal Complaint, both parties may, in writing, voluntarily agree to use the Alternative Resolution Option, if applicable, at any point prior to reaching a determination regarding responsibility, but the parties are not required to do so. The Alternative Resolution entails the parties forgoing the Investigation and Adjudication Process (including the investigation, report, hearing, adjudication, and sanctions, if applicable) depending on when the parties agree to engage in an Alternative Resolution. For example, the Alternative Resolution may include a mediation process.

At any point prior to agreeing to an Alternative Resolution, each party has a right to withdraw from the Alternative Resolution process and resume the Investigation and Adjudication Process with respect to the Formal Complaint.

Roles of NECO Officials in the Investigation and Adjudication Process

The Title IX Coordinator will conduct the investigation related to Title IX allegations... [continued]

The Title IX Coordinator will conduct the investigation related to Title IX allegations. The investigator will interview relevant and available witnesses and gather the evidence relevant to the formal report and the facts raised in the parties’ statement, to the extent reasonably possible. In all cases, the investigator will conduct an adequate, reliable, and impartial investigation into the allegations of the report, reviewing all evidence deemed to be relevant. Parties and Witnesses should make themselves reasonably available to the Investigator. Students who refuse to cooperate with the investigation, as determined by the Title IX Coordinator, are in opposition to this core belief and may face disciplinary action for their refusal to cooperate. The Title IX Coordinator reserves the right to consult with any experts, which they deem necessary to the determination of the facts of this case.

The Hearing Officer is responsible for conducting the hearing in an orderly manner, controlling the conduct of all participants and attendees of the hearing, and rendering a written determination regarding the responsibility of the Respondent’s alleged conduct charges in an impartial, neutral, and objective manner. The Hearing Officer will be an impartial Title IX Deputy Coordinator (or alternate) assigned by the Title IX Coordinator.

The Formal Adjudication Process involves an objective evaluation of all relevant evidence obtained, including inculpatory evidence which supports that the Respondent engaged in a policy violation and exculpatory evidence which supports that the Respondent did not engage in a policy violation.

Interviewing Witnesses and Gathering of Evidence

After both parties – the Complainant and the Respondent – have submitted their statements, the Title IX Coordinator will initiate an investigation. The investigation of a Formal Complaint can take 90 days to resolve from the filing of a Formal Complaint.

Access to Evidence

The Title IX Coordinator will provide access to all evidence obtained (whether relevant or not) as part of the investigation to both parties. Both parties will have ten (10) days to inspect, review, and respond to the evidence. All responses to the evidence must be submitted by the party in writing to the Title IX Coordinator. Advisors are not permitted to submit written responses to the evidence on their own or on behalf of the party they are advising.

Investigation Report

The completed investigation report will outline each of the allegations that potentially constitute prohibited conduct under this Policy, provide the timeline of the investigation, fairly summarize the relevant evidence, participant statements, and responses to questions. The Title IX Coordinator may draw conclusions and make recommendations regarding the credibility of all testimony and the reliability of documentation. The Title IX Coordinator will then provide the investigation report concurrently to both parties and the hearing officer assigned for the hearing.

Referral for Hearing

Once the final investigation report (based on the formal complaint) is shared with the parties, the Title IX Coordinator will refer the matter for a hearing (by 3 panelists, made up of faculty or staff from NECO). The Hearing Officer will be one of the Title IX deputies.

The hearing cannot be less than ten (10) business days from the conclusion of the investigation (when the final investigation report is transmitted to the parties and the Hearing Officer) unless all parties and the Hearing Officer agree to an expedited timeline.

The Hearing Officer may ask questions during the hearing of any party or witness and may be the first person to ask questions of any party or witness. Each party’s advisor will have an opportunity to ask relevant questions and follow-up questions of the other party and of any witnesses that participate in the hearing, including questions that challenge credibility. Each advisor has the ability to ask questions directly, orally, and in real-time at the hearing. The parties will not be permitted to personally ask questions of the other party or any witnesses that participate in the hearing.

Hearing Officer Determination

After the panel convenes, the hearing officer will issue a written determination, which must include the following:

• The allegations that potentially constitute prohibited conduct under this Policy;
• A description of all of the procedural steps of the Adjudication Process under this Policy (from receipt of a Formal Complaint to the determination regarding the responsibility of the Respondent, including any notifications of the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, and hearings held);
• The findings of fact supporting the hearing officer’s determination;
• The conclusion(s) and a rationale as to whether the Respondent is responsible for each allegation;
• The disciplinary sanctions, if applicable;
• The remedies, if applicable, designed to restore the Complainant’s access to the education program or activity;
• The institution’s procedures and permissible bases for the parties to appeal, if applicable.

The hearing officer will send a copy of the written determination to the Title IX Coordinator, who will then share it with Complainant and Respondent simultaneously.

Sanctions

The following sanctions and remedies listed below may be considered by the hearing officer, in accordance with this Policy. The hearing officer may impose one or more sanctions.

List of possible sanctions for Student Respondents:

• Written Warning
• Training/Counseling
• Probation
• Suspension
• Expulsion
• Withholding or revocation of Degree

List of possible sanctions for Employee Respondents:

• Written Warning
• Training/Counseling
• Employment probation
• Job demotion or reassignment of duties
• Suspension with or without pay for a specific period of time
• Dismissal or termination
• Ineligible for rehire

Sanctions will be determined based on the seriousness of the misconduct and on the individual's prior disciplinary history if any. Sanctions will be communicated to the parties, as appropriate, in writing by the Title IX Coordinator.

Appeals

Either party may appeal in writing the hearing officer’s determination on the following bases:

• A procedural irregularity that affected the outcome of the matter;
• There is new evidence that was not reasonably available at the time of the determination regarding responsibility or dismissal was made that could affect the outcome of the matter;
• The Title IX Coordinator, Investigator(s), or Hearing Officer had a conflict of interest or bias for or against the parties (generally, or specifically in this matter) that affected the outcome of the matter.

The appeal letter should be submitted via e-mail to: Elizabeth Perreault, Title IX Coordinator. The written appeal must specifically state the grounds under which the appeal has been filed and must be submitted within the seven (7) day time limit after their notification of such determination. The written appeal must set forth the information/evidence to support the appeal, or will not be considered.

Both parties will be notified in writing when an appeal is filed, and the appeal procedures will apply equally for both parties. In considering the appeal, the Dean of Academic Affairs will be given the written appeal, the Investigative Report, including the statements of the Complainant and Respondent, and the Hearing Officer’s decision to review.

The Appeal Decision will specify the finding on each ground for appeal, and be sent in writing to all parties simultaneously. The Appeal Decision may require another hearing, reverse the hearing’s determination, or affirm or amend the sanctions.

False Reports, Statements, and/or Information

The College takes all reports of Sexual Harassment seriously. An individual who knowingly makes an intentionally false report of Sexual Harassment, or makes false Statements or submits false information during the Grievance Process, with the intent to injure the reputation of another, or made without regard for the truth, may be deemed in violation of, and may be subject to appropriate disciplinary actions pursuant to, the Student Code of Conduct or the Employee Handbook, as appropriate. This provision does not apply to reports, Statements, and/or submissions of information made in good faith, even if the reports, Statements, and/or submissions are not substantiated through an investigation.

Conduct that is prohibited by the Title IX policy includes sexual harassment, sexual assault, dating violence, domestic violence, and stalking. It is a violation of this policy to either commit these acts or attempt to commit them.

Definition of the Prohibited Conduct Under the Title IX Policy

The Title IX regulations issued by the United States Office for Civil Rights provide definitions of specific conduct prohibited under Title IX. The college’s commitment to eradicating sexual misconduct extends to other conduct that does not fall within those definitions, and which is prohibited by other laws and/or college policies.

1. Quid Pro Quo Sexual Harassment
A college employee conditions the provision of an aid, benefit, or service of the College on a person’s participation in unwelcome sexual conduct.

2. Sexual Harassment
Unwelcome conduct that a reasonable person would determine to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the college’s education program or activity.

3. Sexual Assault
Any sexual act directed against another person, without that person’s consent (including instances where the victim is incapable of giving consent), and includes each of the following:

• Forcible Rape:
  • (i) Sexual intercourse, or
  • (ii) oral or anal sexual intercourse, or
  • (iii) use of an object or instrument to unlawfully penetrate, however slightly, the genital or anal opening of the body of another person, either
    • (A) forcibly and/or against that person’s will, or
    • (B) against the person’s will in instances where the victim is incapable of giving consent because of his/her youth or because of his/her temporary or permanent mental or physical incapacity;
• Fondling: Touching of the private body parts of another person for the purpose of sexual gratification, forcibly and/or against that person’s will or not forcibly or not against the person’s will in instances where the victim is incapable of giving consent because of his/her youth or because of his/her temporary or permanent mental or physical incapacity;
• Incest: Nonforcible sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.
• Statutory Rape: Nonforcible sexual intercourse with a person who is under the statutory age of consent.

4. 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:

• (a) the length of the relationship,
• (b) the type of relationship, and
• (c) the frequency of interaction between the persons involved in the relationship.

5. Stalking
Engaging in a course of conduct directed at a specific person that would cause a reasonable person to:

• (a) fear for his, her or their safety or the safety of others; or
• (b) suffer substantial emotional distress.

Consent is a clear and voluntary agreement to engage in specific acts of sexual contact or activity, communicated through mutually understandable words or actions. Consent is freely informed and actively given and can never be assumed or implied.

Incapacitation – Consent is not present when an individual is incapacitated. An incapacitated individual is someone who cannot make rational, reasonable decisions because they lack the capacity to understand the “who, what, when, where, why, or how” of sexual interaction. This includes a person whose incapacity results from mental disability, sleep, involuntary physical restraint, unconsciousness, or use of alcohol or other drugs. Incapacitation is a state beyond drunkenness or intoxication.

Under legal age – Consent is never present if an individual is under the legal age of consent (16 in the state of Massachusetts).

Individuals have several options when reporting complaints, all of which are voluntary. An individual bringing forth a report that they have experienced one or more alleged policy violations that could constitute harassment, discrimination, and/or retaliation under these policies is referred to as the Complainant. An individual who is alleged to have carried out one or more of the prohibited acts or conduct defined in these policies, also known as the alleged violator is referred to as the Respondent. The Complainant and the Respondent may choose to bring a support person to accompany the party to meetings related to the resolution or adjudication process. This person is referred to as the Advisor. The Advisor can be a faculty member, staff member, coach, attorney, parents, or friend.

Individuals bringing forth complaints must complete the “Title IX Prohibited Conduct, and Gender-Based Harassment Complaint Form” and identify which process they would like to pursue: Formal Investigation, Informal Resolution, Seek Additional Information, or Provide Supportive Measures Only as a response.

Informal Resolution Process
Individuals may seek an informal resolution in place of a formal report and investigation. The Title IX Coordinator has the discretion to determine whether the nature of the reported conduct is appropriate for an informal resolution, to determine the type of informal resolution that may be appropriate in a specific case, and/or to refer a report for formal investigation at any time. If Respondent is an employee (faculty, staff or other community member) and the complainant is a student, informal options are not available.

False Reports, Statements, and/or Information
The College takes all reports of Sexual Harassment seriously. An individual who knowingly makes an intentionally false report of Sexual Harassment, or makes false Statements or submits false information during the Grievance Process, with the intent to injure the reputation of another, or made without regard for the truth, may be deemed in violation of, and may be subject to appropriate disciplinary actions pursuant to, the Student Code of Conduct or the Employee Handbook, as appropriate. This provision does not apply to reports, Statements, and/or submissions of information made in good faith, even if the reports, Statements, and/or submissions are not substantiated through an investigation.

Addendum A: Complaint Form