Grievance Procedure for Sex-Based Harassment Non-NY Campuses

Effective August 1, 2024

The below is Touro University’s revised Title IX grievance procedure for sex-based harassment in accordance with the new regulations that go into effect August 1, 2024. To the extent that any state requirements are not provided for in the Federal policy at this time, please review Touro’s pre-August 2024 sexual misconduct policy.

Touro University Worldwide is currently the subject of the pending injunction by a Kansas District court. Kansas v. United States Department of Education, No. 24-4041-JWB, 2024 U.S. Dist. WL 3273285 (D. Kan., July 2, 2024). Notwithstanding that fact, Touro University Worldwide is publishing this updated policy by the August 1, 2024 deadline.

I. Effective Date and Changes to Procedure Based on Court Rulings and Legal Challenges or Changes in Law or Regulation

This Grievance Procedure applies to incidents that occur on or after August 1, 2024. Any incidents reported under this Grievance Procedure that occurred on or before July 31, 2024, will be processed through the institution’s

Should any portion of the 2024 Title IX Final Rule (89 Fed. Reg. 33474 (Apr. 29, 2024)), be stayed or held invalid by a court of law, or if the 2024 Title IX Final Rule is withdrawn or modified to not require elements of this Grievance Procedure, the Grievance Procedures in their entirety, or the invalidated elements of this Procedure, they will be deemed revoked as of the publication date of the opinion or order from the Court and for all reports after that date, as well as any elements of the process that occur after that date if a case is not complete by the date of the opinion or order publication by the Court. If this Procedure is revoked in this manner, any conduct covered under this Procedure shall be investigated and adjudicated under the previous 2020 Title IX Grievance Policy, Touro’s Code of Conduct, and/or Touro’s Sexual Misconduct Policy. Touro will update this Grievance Procedure as soon as practicable to reflect any court rulings or changes that invalidate parts of the Grievance Procedure, if applicable.

II. Scope of Procedure

Sex-Based Harassment is considered discrimination on the basis of sex if it includes harassment due to actual or perceived sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and/or gender identity.

This policy applies to all members of Touro University System outside of New York (including Touro University California, Touro University Nevada, Touro University Worldwide, Touro College Los Angeles, Touro University Montana, Touro University Illinois and Hebrew Theological College), including students, faculty, and administrators as well as third-parties (including, but not limited to, vendors, invitees, etc.).

III. Jurisdiction of Procedure

Touro University’s Title IX Coordinator will determine if this Grievance Procedure applies to a Complaint. This Grievance Procedure will apply when the following elements are met, in the reasonable determination of the Title IX Coordinator:

The conduct alleged occurred on or after August 1, 2024;
The conduct alleged occurred in the United States;
The conduct alleged occurred in Touro’s Education Program or Activity; and
The conduct alleged, if true, would constitute Sex-Based Harassment as defined in this Grievance Procedure.

Touro has an obligation to address a sex-based Hostile Environment under its Education Program or Activity, even when some conduct alleged to be contributing to the Hostile Environment occurred outside Touro’s Education Program or Activity, or outside of the United States, if such conduct affects a Touro Education Program or Activity in the United States. Touro’s Title IX Coordinator will work with all Complaints to assess such Complaints that may fall under these criteria, and direct to appropriate University Policies and Procedures that may apply if this Grievance Procedure does not. Touro will communicate all such decisions in writing to the Complainant. Any such dismissals shall be subject to appropriate appeal rights under this Grievance Procedure as outlined in the Dismissals section.

Conduct that occurs under Touro’s Education Program or Activity includes but is not limited to conduct that occurs in a building owned or controlled by a Student organization that is officially recognized by Touro, and conduct that is subject to Touro’s disciplinary authority under Touro’s Code of Conduct.

If all elements of jurisdiction are met, Touro will investigate the allegations according to this Grievance Procedure as appropriate, unless informal resolution is pursued or there are grounds for dismissal of the Complaint.

IV. Non-Discrimination in Application

The requirements and protections of this Grievance Procedure apply equally regardless of sex, sexual orientation, gender identity, gender expression, or other protected classes covered by applicable federal, state or local law. All requirements and protections are equitably provided to individuals regardless of such protected status(es) or status as a Complainant, Respondent, or Witness. Individuals who wish to file a Complaint about the institution’s policy or process may contact the U.S. Department of Education’s Office for Civil Rights using contact information available at https://ocrcas.ed.gov/contact-ocr.

V. Definitions

Admission means selection for part-time, full-time, special, associate, transfer, exchange, or any other enrollment, membership, or matriculation in or at an education program or activity operated by Touro University.
Consent means a knowing, voluntary, and mutual decision among all participants to engage in sexual activity. Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity. Silence or lack of resistance, in and of itself, does not demonstrate Consent. The definition of Consent does not vary based upon a participant’s sex, sexual orientation, gender identity, or gender expression. Consent to any sexual act or prior consensual sexual activity between or with any Party does not necessarily constitute Consent to any other sexual act. Consent is required regardless of whether the person initiating the act is under the influence of drugs and/or alcohol. Consent may be initially given but withdrawn at any time. Consent cannot be given when a person is incapacitated. Incapacitation occurs when an individual lacks the ability to knowingly choose to participate in sexual activity. Incapacitation may be caused by the lack of consciousness or being asleep, being involuntarily restrained, or if an individual otherwise cannot Consent. Depending on the degree of intoxication, someone who is under the influence of alcohol, drugs, or other intoxicants may be incapacitated and therefore unable to Consent. Consent cannot be given when it is the result of any coercion, intimidation, force, or threat of harm. When Consent is withdrawn or can no longer be given, sexual activity must stop. “Consent” and “affirmative consent” may be used interchangeably under this Grievance Procedure.
Complainant means:
1. A student or employee who is alleged to have been subjected to conduct that could constitute Sex-Based Harassment as defined in this Grievance Procedure and who was participating or attempting to participate in Touro’s Education Program or Activity; or
2. A person other than a student or employee who is alleged to have been subjected to conduct that could constitute Sex-Based Harassment under this Grievance Procedure and who was participating or attempting to participate in Touro’s Education Program or Activity at the time of the alleged Sex-Based Harassment.
Complaint means an oral or written request to Touro that objectively can be understood as a request for Touro to investigate and make a determination about alleged Sex-Based Harassment at the institution.
Disciplinary Sanctions means consequences imposed on a Respondent following a determination under this Grievance Procedure that the Respondent violated Touro’s prohibition on Sex-Based Harassment. For students, faculty and staff, the existence of a progressive system of disciplinary sanctions measures does not preclude Touro University from levying a heavy sanction, without first resorting to a lesser sanction. By way of illustration and not exclusion, Touro University may expel a student or terminate a staff member for a violation of policy without first issuing a warning or putting that student or employee on probation.
Education Program or Activity means any academic, extracurricular, research, occupational training or other Education Program or Activity operated by Touro that receives Federal financial assistance.
Party means Complainant or Respondent.
Peer Retaliation means Retaliation by a Student against another Student.
Privacy and Confidentiality. References made to confidentiality refer to the ability of identified confidential resources (e.g. priests/clergy) to not report crimes and violations to law enforcement or Touro officials without permission, except for extreme circumstances, such as a health and/or safety emergency or child abuse. Touro offices and employees cannot guarantee confidentiality but will maintain privacy to the greatest extent possible, and information disclosed will be relayed only as necessary to investigate and/or seek a resolution and to notify the Title IX Coordinator or designee, who is responsible for tracking patterns and spotting systemic issues. Touro will endeavor to limit the disclosure as much as practicable, even if the Title IX Coordinator determines that the request for confidentiality or privacy cannot be honored.
Relevant means related to the allegations of Sex-Based Harassment under investigation as part of this Grievance Procedure. Questions are Relevant when they seek evidence that may aid in showing whether the alleged Sex-Based Harassment occurred, and evidence is Relevant when it may aid a decisionmaker in determining whether the alleged Sex-Based Harassment occurred.
Remedies means measures provided, as appropriate, to a Complainant or any other person Touro identifies as having had their equal access to Touro’s Education Program or Activity limited or denied by Sex-Based Harassment. These measures are provided to restore or preserve that person’s access to Touro’s Education Program or Activity after Touro determines that Sex-Based Harassment occurred.
Respondent means a person who is alleged to have violated Touro’s prohibition on Sex-Based Harassment.
Retaliation means intimidation, threats, coercion, or discrimination by any person, by Touro, a Student, or an employee or other person authorized by Touro to provide aid, benefit, or service under Touro’s Education Program or Activity, for the purpose of interfering with any right or privileged secured by Title IX, or because the person has reported information, made a Complaint, testified, assisted or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this Grievance Procedure, including an informal resolution process.
Sex-Based Harassment means sexual harassment and other harassment on the basis of sex, including harassment because of gender identity, sexual orientation, sex characteristics, sex stereotypes, and/or pregnancy and other conditions, that is:
1. Quid pro quo harassment. An employee, agent or other person authorized by Touro’s Education Program or Activity explicitly or impliedly conditioning the provision of such an aid, benefit, or service on a person’s participation in unwelcome sexual conduct;
2. Hostile Environment harassment. Unwelcome sex-based conduct that, based on the totality of the circumstances, is subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from Touro’s Education Program or Activity (i.e., creates a Hostile Environment). Whether a Hostile Environment has been created is a fact-specific inquiry that includes consideration of the following: (i) the degree to which the conduct affected the Complainant’s ability to access Touro’s Education Program or Activity; (ii) the type, frequency, and duration of the conduct; (iii) the Parties’ ages, roles within Touro’s Education Program or Activity, previous interactions and other factors about each Party that may be Relevant to evaluating the effects of the conduct; (iv) the location of the conduct and the context in which the conduct occurred; and (v) other Sex-Based Harassment in Touro’s Education Program or Activity;
3. Sexual Assault means an offense classified as a forcible or nonforcible sex offense under the uniform crime reporting system of the Federal Bureau of Investigation;
4. Dating Violence means any violence committed by a person: (A) who is or has been in a social relationship of a romantic or intimate nature with the victim; and (B) Where the existence of such a relationship shall be determined based on a consideration of the following factors: (i) The length of the relationship; (ii) the type of relationship; and (iii) the frequency of interaction between the persons involved in the relationship.
5. Domestic Violence means any felony or misdemeanor crimes committed by a person who: (A) is a current or former partner of the victim under the family or Domestic Violence laws of the state in which your program is located, or a person similarly situated to a spouse of the victim; (B) is cohabitating, or has cohabitated, with the victim as a spouse or intimate partner; (C) shared a child in common with the victim; or (D) commits acts against a youth or adult victim who is protected from those acts under the family or Domestic Violence laws of the state in which your program is located; or
6. Stalking means engaging in a course of conduct directed at a specific person that would cause a reasonable person to: (A) fear for the person’s safety or the safety of others; or (B) suffer substantial emotional distress.
Student means a person who has gained Admission.
Supportive Measures means individualized measures offered as appropriate, as reasonably available, without unreasonably burdening a Complainant or Respondent, not for punitive or disciplinary reasons, and without fee or charge to the Complainant or Respondent, to: (1) restore or preserve that Party’s access to Touro’s Education Program or Activity, including measures that are designed to protect the safety of the Parties or Touro’s educational environment; or (2) provide support during Touro’s Grievance Procedure for Sex-Based Harassment or during the informal resolution process.

VI. Disability Accommodations

Generally

This Grievance Procedure does not alter any institutional obligations under applicable federal, state, and/or local disability laws, including the Americans with Disabilities Act of 1990, and Section 504 of the Rehabilitation Act of 1973, among others. Parties may request reasonable accommodations for disclosed disabilities to the Title IX Coordinator at any point before or during the Title IX Grievance Procedure that do not fundamentally alter the Procedure. The Title IX Coordinator will not affirmatively provide disability accommodations that have not been specifically requested by the Parties, even where the Parties may be receiving accommodations in other institutional programs and activities.

Requests for Reasonable Accommodations During the Title IX Grievance Procedure

If the Complainant or Respondent discloses a disability, the Title IX Coordinator or designee may consult, as appropriate, with the Office of Student Disability Services to provide support to Students with disabilities to determine how to comply with applicable law including, without limitation, Section 504 of the Rehabilitation Act of 1973 in the implementation of any Supportive Measures, or any other reasonable accommodations requested during the Grievance Procedure.

VII. Basic Requirements of the Grievance Procedure

Touro University is required to:

Treat Complainants and Respondents equitably;
Ensure that any person designated by Touro as a Title IX Coordinator, investigator, or decisionmaker does not have a conflict of interest or bias for or against Complainants or Respondents generally or an individual Complainant or Respondent;
Establish reasonably prompt timeframes for the major stages of this Grievance Procedure, including a process that allows for the reasonable extension of timeframes on a case-by-case basis for good cause with notice to the Parties that includes the reason for the delay;
Ensure that reasonable steps to protect the privacy of the Parties and witnesses during the pendency of the Grievance Procedure are taken, provided that the steps do not restrict the abilities of the Parties to obtain and present evidence, including by speaking to witnesses (as long as such does not result in Retaliation), consult with their family members, confidential resources, or process support persons, or otherwise prepare for or participate in this Grievance Procedure (so long as all necessary FERPA Waivers have been executed on the Party’s or witness’s behalf);
Ensure an objective evaluation of all evidence that is relevant and not otherwise impermissible under this procedure, including both inculpatory and exculpatory evidence, and provide that credibility determinations must not be based on a person’s status as a Complainant, Respondent, or Witness;
Exclude impermissible evidence from consideration as defined in the Grievance Procedure; and
Clearly articulate principles for how Touro will determine which policies and procedures apply if not all such Complaints are handled under this institutional Grievance Procedure.

VIII. Reporting Sex-Based Harassment to the Institution

Non-Confidential Reports

Any person may report sex discrimination, including Sex-Based Harassment (whether or not the person reporting is the person alleged to be the victim of the conduct that may constitute sex discrimination or Sex-Based Harassment), in person, by mail, by telephone, or by electronic mail, using the contact information listed for the Title IX Coordinator, or by any other means that results in the Title IX Coordinator receiving the person’s verbal or written report.

Contact Information for the Title IX Coordinator at each Touro School:

Touro University and New York Medical College
Matthew Lieberman
3 Times Square, 11th Floor
New York, NY 10036
Phone: (646) 565-6000 x55667
Email: matthew.lieberman@touro.edu

Touro University Nevada
Zachary Shapiro
874 American Pacific Drive
Henderson, Nevada 89014
Phone: (707) 638-5459
Email: zachary.shapiro@tu.edu

Touro University California
Zachary Shapiro
690 Walnut Avenue, Suite 210
Vallejo, California 94592
Phone: (707) 638-5459
Email: zachary.shapiro@tu.edu

Touro University Worldwide / Touro College Los Angeles
Zachary Shapiro
10601 Calle Lee, Suite 179
Los Alamitos, CA 90720
Phone: (707) 638-5459
Email: zshapiro@touro.edu

Hebrew Theological College / Touro University Illinois
Rita Lipshitz
2606 W. Touhy Avenue
Chicago, Illinois 60645
Phone: (773) 973-0241 x3109
Email: lipshitz@htc.edu

Touro College of Osteopathic Medicine, Montana
Jeanine Morgan
2801 18th Avenue S
Great Falls, MT 59405
(406) 401-8160
jmorgan12@touro.edu

Such a report may be made at any time (including during non-business hours) by using the telephone number or electronic mail address, or by mail to the office address listed for the Title IX Coordinator.

Confidential Reports

The following officials at Touro University will provide privacy, but not confidentiality, upon receiving a report of conduct prohibited by Title IX:

Title IX Coordinator or designee(s);
Officials with Authority to institute corrective measures under Title IX;
All other employees at Touro that are not designated as confidential resources.

Please note that Touro employees cannot guarantee confidentiality in any situation.

IX. Supportive and Interim Measures

Providing Supportive Measures

Complainants who report allegations of Sex-Based Harassment have the right to receive Supportive Measures from Touro regardless of whether they file a Complaint. Supportive Measures are non-disciplinary and non-punitive. Supportive Measures may vary depending upon what is reasonably available at Touro.

As appropriate, Supportive Measures may include without limitation:

Counseling services
Extensions of deadlines or other course-related adjustments
Modifications of work or class schedules
Campus escort services, as available
Restrictions on contact applied to one or more Parties (no contact orders)
Changes in class, work, housing, or extracurricular or any other activity, regardless of whether there is or is not a comparable alternative
Leaves of absence
Increased security and monitoring of certain areas of the campus
Training and education programs related to Sex-Based Harassment

Supportive Measures must not unreasonably burden either Party and must be designed to protect the safety of the Parties or Touro’s educational environment, or to provide support during Touro’s Sex-Based Harassment grievance procedure under this policy or during informal resolution under this procedure.

Touro may modify or terminate Supportive Measures at the conclusion of the grievance procedure or at the conclusion of the informal resolution process, or may continue them beyond that point, within Touro’s discretion.

Touro may disclose information about any Supportive Measures provided to either party, including informing one Party of Supportive Measures provided to another Party. These disclosures are at the sole and absolute discretion of the Title IX Coordinator, though the Parties can request that the supportive measures not be shared. Supportive measures may also be shared if necessary to provide the supportive measure or restore or preserve a Party’s access to Touro’s education program or activity.

Supportive measures may otherwise be disclosed to the extent that the Title IX Coordinator determines necessary

To carry out the purpose of the policy when it is necessary to address conduct that reasonably may constitute Sex-Based Harassment under Title IX in Touro’s education program or activity;
As required by Federal law, federal regulations, or the terms and conditions of a federal award; or
To the extent such disclosures are not otherwise in conflict with Title IX, when required by State or local law or when permitted under the Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. 1232g, or its implementing regulations, 34 CFR Part 99).

Process for Review of Supportive Measures

Touro provides for a Complainant or Respondent to seek modification or reversal of Touro’s decision to provide, deny, modify or terminate a Supportive Measure provided to that party. Grounds for challenge of Supportive Measures include, but are not limited to:

Whether a Supportive Measure is reasonably burdensome;
Whether a Supportive Measure is reasonably available;
Whether a Supportive Measure is being imposed for punitive or disciplinary reasons;
Whether the Supportive Measure is being imposed without fee or charge; and
Whether the Supportive Measure is effective in meeting the purposes for which it is intended, including to restore or preserve access to the Education Program or Activity, provide safety, or provide support during the Grievance Procedure.

This review will be conducted by an impartial employee of Touro, who did not make the challenged decision on the original supportive measure request. The impartial employee of Touro who makes this determination will have the authority to modify or reverse the decision if that impartial employee determines that the decision to provide, deny, modify or terminate the supportive measure was inconsistent with the procedures as outlined above for providing Supportive Measures in accordance with the Title IX regulations.

Parties are only allowed to challenge their own individual Supportive Measures. Challenges by one Party will not be heard to Supportive Measures afforded to the opposite Party, unless that supportive measure directly impacts the Party making such challenge (i.e., two-way no contact orders).

Emergency Removal

Touro retains the authority to remove a Respondent from all or part of Touro’s education program or activity on an emergency basis, where Touro (1) undertakes an individualized safety and risk analysis, and (2) determines that an imminent and serious threat to the health or safety of a Complainant or any Students, employees, or other persons arising from the allegations of Sex-Based Harassment justifies removal.

Touro will provide the Respondent with notice and an opportunity to challenge the decision immediately following the removal. The Respondent may file an appeal against the decision to remove. The request for an appeal must include the grounds for which the request is based and be submitted in writing to the Title IX Coordinator within seven (7) business days following the date of the emergency removal. Upon receipt of the appeal, the other party will receive notification of the appeal.

The decisionmaker who hears a challenge to an emergency removal must not be involved in any decision regarding responsibility or appeal of a determination.

Emergency removals will not be considered Relevant evidence that can be considered in reaching a determination of whether Sex-Based Harassment occurred.

Administrative Leave

Touro retains the authority to place a non-Student employee Respondent on administrative leave during the Title IX Grievance Procedures, consistent with the Employee or Faculty Handbook.

Note on Student employees: when a Complainant or Respondent is both a Student and an employee of Touro, Touro will make a fact-specific inquiry to determine whether these procedures apply to that Student employee. Touro will consider if the Complainant or Respondent’s primary relationship with Touro is to receive an education and whether the alleged Sex-Based Harassment occurred while the Party was performing employment-related work.

X. The Title IX Grievance Procedure for Allegations of Sex-Based Harassment

A. Filing a Complaint

Who can make a Complaint?

A Complainant (as defined in Section V(3) of this policy);
An authorized legal representative with the legal right to act on behalf of a Complainant; or
The Title IX Coordinator.

Note on Title IX Coordinator initiated Complaints:

In the absence of a Complaint or the withdrawal of any or all of the allegations in a Complaint, and in the absence or termination of an informal resolution process, the Title IX Coordinator must determine whether to initiate a Complaint of Sex-Based Harassment. This determination is fact-specific, and the Title IX Coordinator must consider:

The Complainant’s request not to proceed with the initiation of a Complaint;
The Complainant’s reasonable safety concerns regarding initiation of a Complaint;
The risk that additional acts of Sex-Based Harassment would occur if a Complaint is not initiated;
The severity of the alleged Sex-Based Harassment, including whether the Sex-Based Harassment, if established, would require the removal of a Respondent from campus or imposition of another disciplinary sanction to end the Sex-Based Harassment and prevent its recurrence;
The age and relationship of the Parties, including whether the Respondent is an employee of the recipient;
The scope of the alleged Sex-Based Harassment, including information suggesting a pattern, ongoing Sex-Based Harassment, or Sex-Based Harassment alleged to have impacted multiple individuals;
The availability of evidence to assist a decisionmaker in determining whether Sex-Based Harassment occurred; and
Whether Touro could end the alleged Sex-Based Harassment and prevent its recurrence without initiating these grievance procedures.

If, after considering these and other Relevant factors, the Title IX Coordinator determines that the conduct as alleged presents an imminent and serious threat to the health or safety of the Complainant or other person, or that the conduct as alleged prevents Touro from ensuring equal access on the basis of sex to its education program or activity, the Title IX Coordinator may initiate a Complaint.

Is there a particular format that the Complaint needs to be in?

As defined in V(4) of these procedures, a Complaint can be an oral or written request to Touro that objectively can be understood as a request for Touro to investigate and make a determination about alleged Sex-Based Harassment at the institution.

Individuals who are looking to file a complaint are encouraged to fill out the following form and submit it to the Title IX Coordinator: Title IX and Sexual Misconduct Complaint Form

Who can I report a Complaint to?

Any reports of Sex-Based Harassment may be made directly to the Title IX Coordinator, whose contact information is listed at the beginning of this Grievance Procedure. There are also other ways in which a Party may report a Complaint.

Touro University requires that all employees notify the Title IX Coordinator when the employee has information about conduct that reasonably may constitute sex discrimination, including Sex-Based Harassment.

Note: If an employee has personally been subject to conduct that reasonably may constitute Sex-Based Harassment under Title IX or any institutional policy or this Grievance Procedure, these requirements do not apply to an employee reporting a personal Complaint.

What is the timeframe for Touro to evaluate if the Title IX Coordinator is initiating an investigation under this Grievance Procedure?

The Title IX Coordinator must evaluate whether the Complaint falls under this Grievance Procedure five (5) business days after the Complaint is made and must issue the Notice of Allegations as soon as practicable after the Complaint is evaluated. If there are any delays or extensions, the Title IX Coordinator must appropriately notice the Parties in writing, on a case-by-case basis, with good cause and the rationale for the extension or delay.

Can I make a Complaint and request initiation of the Grievance Procedure even if I have made a complaint to law enforcement?

Yes. Touro University has an obligation to appropriately evaluate all Complaints, regardless of whether there is a concurrent Complaint before law enforcement. This process is an administrative process that is different from the criminal justice process.

B. Multi-Party Situations and Consolidation of Complaints

Touro University may consolidate Complaints alleging Sex-Based Harassment against more than one Respondent, or by more than one Complainant against one or more Respondents, or by one Party against the other Party, where the allegations of Sex-Based Harassment arise out of the same facts or circumstances. Complaints alleging a combination of Sex-Based Harassment and sex discrimination other than Sex-Based Harassment, if consolidated, will be addressed under this Grievance Procedure for Sex-Based Harassment Complaints.

Touro University can consider factors when making this fact-specific determination, which include, but are not limited to:

The facts and circumstances of the particular Complaints when deciding whether to consolidate, including the toll of separate proceedings on the Parties; and
Any risks to the fairness of the investigation or outcome.

C. Dismissal of a Complaint

Grounds for Dismissal

Touro University may dismiss a Complaint of Sex-Based Harassment for any of the following reasons:

Touro University is unable to identify the Respondent after taking reasonable steps to do so;
The Respondent is not participating in Touro University’s education program or activity and is not employed by Touro University;
The Complainant voluntarily withdraws any or all of the allegations in the Complaint, the Title IX Coordinator declines to initiate a Complaint through this Grievance Procedure, and Touro University determines that, without the Complainant’s withdrawn allegations, the conduct that remains alleged in the Complaint, if any, would not constitute Sex-Based Harassment under Title IX or this Grievance Procedure even if proven; or
Touro University determines that the conduct alleged in the Complaint, even if proven, would not constitute Sex-Based Harassment under Title IX or these procedures. Note: Touro University must make reasonable efforts to clarify the allegations with the Complainant before dismissing under this basis.

Notice of Dismissal

If Touro University dismisses a Complaint, Touro University is required to promptly notify the Complainant of the basis for dismissal.

If the dismissal of the Complaint occurs before a Notice of Allegations is issued to the Respondent, the Title IX Coordinator does not need to notice the Respondent at that time. However, if the Complainant appeals the dismissal, the Respondent will need to be noticed of the Complaint allegations and given an opportunity to respond to the dismissal. If the dismissal occurs after the Respondent has been notified of the allegations, then Touro University must notify the Respondent and Complainant of the dismissal and the basis for the dismissal simultaneously in writing.

Appeal rights must also be outlined in any notification of dismissal of a Complaint, as included below under Appeal of Dismissals.

Appeals of Dismissals

Touro University must notify the Complainant that a dismissal may be appealed and provide the Complainant with an opportunity appeal the dismissal of a Complaint on the following grounds:

Procedural irregularity: procedural irregularity that affected the outcome of the matter (i.e., a failure to follow Touro University’s own policy to a degree that had material effect on the outcome of the matter);
New evidence: New evidence that would change the outcome and that was not reasonably available when the determination whether Sex-Based Harassment occurred or dismissal of the Complaint was made; and
Bias or Conflict of Interest: The Title IX Coordinator, investigator(s), or decisionmaker(s) had a conflict of interest or bias for or against Complainants or Respondents generally or the individual Complainant or Respondent that would change the outcome of the matter.

If the dismissal occurs after the Respondent has been notified of the allegations, then Touro University must also notify the Respondent that the dismissal may be appealed on the grounds set out above.

Supportive Measures and remote learning opportunities remain available during the pendency of the appeal.

If a Party appeals, the institution will as soon as practicable notify the other Party in writing of the appeal, however the time for appeal shall be offered equitably to all Parties and shall not be extended for any Party solely because the other Party filed an appeal.

Appeals will be decided by the Appeals Committee that is appointed by the Title IX Coordinator. These individuals will be free of conflict of interest and bias, and will not serve as investigator, Title IX Coordinator, or hearing decisionmaker in the same matter. If either party believes any individual appointed to the Appeals Committee has a conflict of interest or bias, this should be reported to the Title IX Committee. The outcome of the appeal will be provided in writing simultaneously to both Parties, and include rationale for the decision.

D. Allegations Potentially Falling Under Two Policies

If the alleged conduct, if true, includes conduct that would constitute covered Sex-Based Harassment and conduct that would not constitute covered Sex-Based Harassment or other sex discrimination, the Title IX Grievance Process will be applied to investigation and adjudication of only the allegations that constitute covered Sex-Based Harassment.

E. Notice of Allegations

Upon initiating Touro University’s Grievance Procedure, the Title IX Coordinator shall provide a Notice of Allegations in writing to the Parties whose identities are known. Such notice will occur as soon as practicable after Touro University receives a Complaint, if there are no extenuating circumstances. Touro University will endeavor to provide the Notice of Allegations within 30 days after receiving a formal Complaint.

What does the Notice of Allegations Include?

The written Notice of Allegations must include:

Touro University’s Grievance Procedure and Touro University’s Informal Resolution process;
Sufficient information available at the time of the issuance of the Notice of Allegations to allow the Parties to respond to the allegations, which includes the identities of the Parties involved in the incident(s), the conduct alleged to constitute Sex-Based Harassment under the Grievance Procedure, and the date(s) and location(s) of the alleged incident(s), to the extent that information is available to Touro University;
A statement that the Parties are entitled to an equal opportunity to access the Relevant and not otherwise impermissible evidence;
A statement that the Respondent is presumed not responsible for the alleged Sex-Based Harassment until a determination is made at the conclusion of Touro University’s Grievance Procedure and that prior to the determination, the Parties will have an opportunity to present Relevant and not otherwise impermissible evidence to a trained, impartial decisionmaker;
Parties may have an process support person of their choice, and that the process support persons may be, but is not required to be, an attorney; and

Touro University’s code of conduct prohibits knowingly making false statements or knowingly submitting false information during Touro University’s Grievance Procedure.

What if Touro University decides to investigate additional allegations of Sex-Based Harassment?

If, in the course of an investigation, Touro University decides to investigate additional allegations of Sex-Based Harassment by the Respondent toward the Complainant that are not included in the original issued written Notice of Allegations, or that are included in a Complaint that is consolidated under this Grievance Procedure, Touro University shall provide notice of the additional allegations to the Parties whose identities are known.

What if I have safety concerns about a Notice of Allegations being issued to a Respondent?

To the extent that Touro University has reasonable concerns for the safety of any person as a result of providing a written Notice of Allegations, Touro University, through the Title IX Coordinator, may reasonably delay providing the written Notice of Allegations in order to address the safety concern appropriately. Reasonable concerns must be based on individualized safety and risk analysis and not on mere speculation or stereotypes.

F. Process Support Person of Choice and Participation of Process Support Person of Choice

A Party’s process support person of choice may accompany the Party to any meeting or proceeding, and that Touro University cannot limit the choice of who that process support person may be or their presence for the Parties in any meeting or proceeding unless such process support person does not follow Touro University’s established rules of decorum and rules around participation discussed below.

G. Investigation

General Rules of Investigations

The Title IX Coordinator and/or an investigator designated by the Title IX Coordinator will perform an investigation of the conduct alleged to constitute Sex-Based Harassment in a reasonably prompt timeframe, after issuing the Notice of Allegations.

Touro University, and not the Parties, have the burden to conduct an investigation that gathers sufficient evidence to determine whether Sex-Based Harassment occurred under this Grievance Procedure. This burden does not rest with either Party, and either Party may decide not to share their account of what occurred, or may decide not to participate in the investigation or hearing. This does not shift the burden of proof away from Touro University and does not indicate responsibility.

Touro University cannot access, consider, or disclose medical records without a waiver from the Party (or parent, if applicable) to whom the records belong, or of whom the records include information. Touro University will provide an equal opportunity for the Parties to present witnesses, including fact and expert witnesses, and other inculpatory or exculpatory evidence, as described below.

Notice of participation

Touro University will provide written notice of the date, time, location, participants, and purpose of all meetings or proceedings with sufficient time for the Party to prepare to participate, if a Party is invited or expected to participate in any such meeting or proceeding.

Process Support Persons and Participation of Process Support Person of Choice

Touro University will provide the Parties with the same opportunities to be accompanied to any meeting or proceeding by the process support person of their choice, who may be, but is not required to be, an attorney, and not limit the choice or presence of the process support person for the Complainant or Respondent in any meeting or proceeding.

Process Support Person of Choice restrictions:

Both the Complainant and Respondent have the right to choose a Process Support Person. The Process Support Person will be the process support person of choice for such Party at the Hearing and may be, but does not have to be, an attorney. An attorney acting in this role has no different role in the process and serves in the same capacity as a non-attorney.
The Process Support Person of choice may accompany the parties to any meeting or hearing they are permitted to attend, but may not speak for the party, except for the purpose of cross-examination.
The parties themselves are not permitted to conduct cross-examination; it must be conducted by the Process Support Person. As a result, if a party does not select a Process Support Person, the institution will select a Process Support Person to serve in this role for the limited purpose of conducting the cross-examination at no fee or charge to the party.
The Process Support Person is not prohibited from having a conflict of interest or bias in favor of or against complainants or respondents generally, or in favor or against the parties to the particular case.
The Process Support Person is not prohibited from being a witness in the matter.
If a party does not attend the live hearing, the party’s Process Support Person may appear and conduct cross-examination on their behalf.
If neither a party nor their Process Support Person appear at the hearing, Touro will provide a Process Support Person to appear on behalf of the non-appearing party.
Process Support Personnel shall be subject to Touro’s Rules of Decorum and may be removed upon violation of those Rules.

Expert Witnesses

Parties may present expert witnesses as part of an investigation.

Parties are allowed to call “expert witnesses” for direct examination and credibility assessment by the hearing board and cross examination. While the expert witness will be allowed to testify, the decisionmaker will be instructed to afford lower weight to non-factual testimony of the expert relative to fact witnesses, and any expert testimony that is not directed to the specific facts that occurred in the case will be afforded lower weight relative to fact witnesses regardless of whether all Parties present experts as witnesses.

Character Witnesses

Touro does not allow character witnesses to testify. Only witnesses that tend to prove or disprove the allegations will be allowed to testify.

Review and Access to Relevant and Not Otherwise Impermissible Evidence

Each Party will have an equal opportunity to present fact witnesses and other inculpatory and exculpatory evidence that are Relevant and not otherwise impermissible, to the Title IX Coordinator and/or an investigator designated by the Title IX Coordinator. The Title IX Coordinator will review all evidence gathered through the investigation and determine what evidence is Relevant and what evidence is impermissible regardless of relevance, consistent with this Grievance Procedure.

Each Party and their process support persons of choice will have an equal opportunity to review and access the evidence that is Relevant to the allegations of Sex-Based Harassment and not otherwise impermissible regardless of relevance prior to the conclusion of the investigation. The Title IX Coordinator will provide each Party with a reasonable opportunity to respond to the evidence. Both Parties will have the opportunity to respond to the evidence prior to the live hearing.

Touro University will take reasonable steps to prevent and address the Parties’ and their process support persons of choice’s unauthorized disclosure of information and evidence obtained solely through this Grievance Procedure. Participating individuals who engage in the unauthorized disclosure of information and evidence obtained solely through this Grievance Procedure may be subject to Touro’s Code of Conduct and other University policies and/or procedures that may apply.

Note: Disclosures of information and evidence for purposes of administrative proceedings or litigation related to the Complaint of Sex-Based Harassment are authorized and not considered unauthorized disclosures potentially subject to other disciplinary action.

Prior to obtaining access to any evidence, the parties and their Process Support Person must sign an agreement not to disseminate any of the testimony heard or evidence obtained in the hearing or use such testimony or evidence for any purpose unrelated to the Title IX Grievance Process. Once signed, this Agreement may not be withdrawn. Failure to sign or adhere to this agreement may result in a negative inference against the party and the immediate withdrawal of that Process Support Person from the Title IX grievance process.

Relevant Evidence

Evidence is Relevant when it is related to the allegations of Sex-Based Harassment under investigation as part of this Grievance Procedure.

Questions are Relevant when they seek evidence that may aid in showing whether the alleged Sex-Based Harassment occurred, and evidence is Relevant when it may aid a decisionmaker in determining whether the alleged Sex-Based Harassment occurred.

Impermissible Evidence

The following types of evidence, and questions seeking that evidence, are excluded as impermissible (i.e., must not be accessed or considered, except by Touro University to determine whether an exception applies, must not be disclosed, and must not otherwise be used) regardless of whether they are Relevant:

Evidence that is protected under a privileged as recognized by Federal or State law or evidence provided to a Confidential Employee, unless the person to whom the privilege or confidentiality is owed has voluntarily waived the privilege or confidentiality;
A Party’s or witness’s records that are made or maintained by a physician, psychologist, or other recognized professional or paraprofessional in connection with the provision of treatment to the Party or witness, unless Touro University obtains that Party’s or witness’s voluntary, written Consent for use in Touro University’s Grievance Procedure; and
Evidence that relates to the Complainant’s sexual interests or prior sexual conduct, unless evidence about the Complainant’s prior sexual conduct is offered to prove that someone other than the Respondent committed the alleged conduct or is evidence about specific incidents of the Complainant’s prior sexual conduct with the Respondent that is offered to prove Consent to the alleged Sex-Based Harassment. Note: the fact of prior consensual sexual conduct between the Complainant and Respondent does not by itself demonstrate or imply the Complainant’s Consent to the alleged Sex-Based Harassment or preclude determination that Sex-Based Harassment occurred.

Timeframes

An investigation shall be completed in a reasonably prompt fashion. If there are any delays or extensions, the Title IX Coordinator must appropriately notice the Parties in writing, as detailed below. Touro shall endeavor to complete its investigation in 90 days.

Extensions may occur based on:

Availability or unavailability of a witness or relevant/material documents;
Reluctance of a witness and/or any necessary party;
Delay or other uncooperative actions of any necessary party;
Numerosity of witnesses;
Holidays and vacation periods;
Any other unforeseeable events/circumstances.

Extensions and Delays

Touro University allows for the reasonable extension of timeframes on a case-by-case basis for good cause with written notice to the Parties that includes the reason for the extension or delay.

H. Live Hearing

General Rules of Hearings

Touro will not issue a disciplinary sanction arising from an allegation of covered sexual harassment without holding a live hearing unless otherwise resolved through an informal resolution process.

The live hearing may be conducted with all parties physically present in the same geographic location, or, at Touro’s sole discretion, any or all parties, witnesses, and other participants may appear at the live hearing virtually through Zoom or other appropriate video conferencing tools available at the time. This technology will enable participants simultaneously to see and hear each other. At its discretion, Touro may delay or adjourn a hearing based on technological errors not within a party’s control.

All proceedings will be recorded through either recording and/or transcript. The choice of medium is at Touro’s sole discretion.

Notice of Hearing

Upon completion of the investigation, the Complainant and Respondent will be notified in writing of:

the date, time, and location of the live hearing;
the applicable grievance process;
that both Parties can have a Process Support Person of their choice;
that they may inspect and review evidence obtained in the investigation;
the allegations and conduct that potentially constitute Sexual Harassment;
the identities of the Parties involved (if known); and
the date and location of the alleged offense (if known).

Depending on the circumstances and, at the sole discretion of Touro, the hearing may be conducted in-person or virtually, but will always be conducted in real-time. Permission to postpone a hearing may be granted provided that the request to postpone is reasonable.

Prior to the scheduled hearing, a trained Decision-maker will be appointed to be the fact-finder of responsibility for the alleged conduct.

While the Complainant, Respondent and witnesses are expected to be present and fully participate in the hearing (including being subject to questioning by a Process Support Person), it is the right of any and all parties to choose not to participate in the hearing of the alleged conduct. In the event that any party chooses not to participate fully in the hearing process, their statements (including those made in the investigation stage) may not be considered in the Decision-maker’s determination of responsibility.

If the hearing is held in-person (not virtually), by request of either the Complainant or Respondent, questioning by a Process Support Person can be conducted in separate rooms with technology available that enables the other party to see and hear the questioning in real-time. The entire hearing will be recorded, either by electronic means or transcription. The recording will be made available, upon request, for inspection and review to both Parties. This recording will be kept on file by Touro in accordance with applicable rules and regulations.

Continuances or Granting Extensions

Touro may determine that multiple sessions or a continuance (i.e. a pause on the continuation of the hearing until a later date or time) is needed to complete a hearing. If so, Touro will notify all participants and endeavor to accommodate all participants’ schedules and complete the hearing as promptly as practicable.

Before the Hearing

Prior to the Hearing, each party will be required to submit any questions, that have not already been addressed in the investigation, that they wish to ask at the oral-cross examination to the Title IX Coordinator no later than twenty-four (24) hours before the Hearing is scheduled to begin.

The Title IX Coordinator will provide the questions to the Decision-maker, who will determine the relevancy of each of the questions. If deemed relevant, the question is permissible to be asked during the hearing. If the Decision-maker determines that a question is not relevant, they will provide a brief reasoning for that decision and the question will not be permitted to be asked during the Hearing. Parties may appeal the relevance determinations at the beginning of the Hearing. The Decision-Maker will endeavor to provide their relevancy determinations at least one hour prior to the Hearing, but no later than the commencement of the Hearing.

Understanding Relevance:

For these adjudications, the basic test for relevance is whether the question posed is probative to the question of responsibility. This includes a Process Support Person asking questions that address the credibility of the party. However, there are some topics that are presumptively never relevant unless an exception applies or a party has waived a privilege. These topics include questions and evidence:

about the Complainant’s sexual predisposition or prior sexual behavior, unless offered to prove that someone other than the Respondent committed the alleged conduct;
that concern specific incidents of the Complainant’s prior sexual behavior with respect to the Respondent, unless offered to prove consent;
that would traditionally be protected by a legally recognized privilege (e.g., attorney-client privilege), unless the party has waived the privilege;
in reference to a party’s psychological or medical records unless the party has given voluntary, written consent.

Participants in the Live Hearing

Live hearings are not public, and the only individuals permitted to participate in the hearing are as follows:

Complainant and Respondent (The Parties)

The parties cannot waive the right to a live hearing.
The institution may still proceed with the live hearing in the absence of a party, and may reach a determination of responsibility in their absence, including through any evidence gathered that does not constitute a “statement” by that party.
Touro will not threaten, coerce, intimidate or discriminate against the party in an attempt to secure the party’s participation.
If a party does not submit to cross-examination, the Decision-Maker cannot rely on any prior statements made by that party in reaching a determination regarding responsibility, but may reach a determination regarding responsibility based on evidence that does not constitute a “statement” by that party.
The decision-maker cannot draw an inference about the determination regarding responsibility based solely on a party’s absence from the live hearing or refusal to answer cross examination or other questions.

The Decision-maker

The hearing body will consist of a single Decision-Maker.
The Decision-Maker will also not have served as the Title IX Coordinator, Title IX investigator, or Process Support Person to any party in the case, nor may the Decision-Maker serve on the appeals body in the case.
The Decision-Maker will not have a conflict of interest or bias in favor of or against complainants or respondents generally, or in favor or against the parties to the particular case.
The Decision-Maker will be trained on topics including how to serve impartially, issues of relevance, how to apply the rape shield protections provided for complainants, and any technology to be used at the hearing.
The parties will have an opportunity to raise any objections regarding a Decision-Maker’s actual or perceived conflicts of interest or bias at the commencement of the live hearing.

Process Support Person

Both the Complainant and Respondent have the right to choose a Process Support Person. The Process Support Person will be the process support person of choice for such Party at the Hearing and may be, but does not have to be, an attorney. An attorney acting in this role has no different role in the process and serves in the same capacity as a non-attorney.
The Process Support Person of choice may accompany the parties to any meeting or hearing they are permitted to attend, but may not speak for the party, except for the purpose of cross-examination.
The parties themselves are not permitted to conduct cross-examination; it must be conducted by the Process Support Person. As a result, if a party does not select a Process Support Person, the institution will select a Process Support Person to serve in this role for the limited purpose of conducting the cross-examination at no fee or charge to the party.
The Process Support Person is not prohibited from having a conflict of interest or bias in favor of or against complainants or respondents generally, or in favor or against the parties to the particular case.
The Process Support Person is not prohibited from being a witness in the matter.
If a party does not attend the live hearing, the party’s Process Support Person may appear and conduct cross-examination on their behalf.
If neither a party nor their Process Support Person appear at the hearing, Touro will provide a Process Support Person to appear on behalf of the non-appearing party.
Process Support Personnel shall be subject to Touro’s Rules of Decorum, and may be removed upon violation of those Rules.

Witnesses

Witnesses cannot be compelled to participate in the live hearing, and have the right not to participate in the hearing free from retaliation.
If a witness does not submit to cross-examination, as described below, the decision-maker cannot rely on any statements made by that witness in reaching a determination regarding responsibility, including any statement relayed by the absent witness to a witness or party who testifies at the live hearing.
See X(G) of this Policy in determining who can be a witness.

Rules of Decorum

The following Rules of Decorum are to be observed in the hearing and applied equally to all parties (meaning the complainant and respondent) and process support persons:

Questions must be conveyed in a neutral tone.
Parties and process support persons will refer to other parties, witnesses, process support persons, and institutional staff using the name and gender used by the person and shall not intentionally mis-name or mis-gender that person in communication or questioning.
No party may act abusively or disrespectfully during the hearing toward any other party or to witnesses, process support persons, or decision-makers.
While a process support person may be an attorney, no duty of zealous advocacy should be inferred or enforced within this forum.
The process support person may not yell, scream, badger, or physically ‘‘lean in’’ to a party or witness’s personal space. Process support persons may not approach the other party or witnesses without obtaining permission from the decisionmaker.
The process support person may not use profanity or make irrelevant ad hominem attacks upon a party or witness. Questions are meant to be interrogative statements used to test knowledge or understand a fact; they may not include accusations within the text of the question.
The process support person may not ask repetitive, irrelevant, or harassing questions. This includes questions that have already been asked by the decisionmaker, the process support person in cross-examination, or (if an expert witness is participating) the party or process support person in direct testimony. When the decisionmaker determines a question has been “asked and answered” or is otherwise not relevant, the process support person must move on.
Parties and process support persons may take no action at the hearing that a reasonable person in the shoes of the affected party would see as intended to intimidate that person (whether party, witness, or official) into not participating in the process or meaningfully modifying their participation in the process.

Warning and Removal Process

The decisionmaker shall have sole discretion to determine if the Rules of Decorum have been violated. The decisionmaker will notify the offending person of any violation of the Rules.

Upon a second or further violation of the Rules, the decision-maker shall have discretion to remove the offending person or allow them to continue participating in the hearing or other part of the process.

Where the decisionmaker removes a party’s process support person, the party may select a different process support person of their choice, or accept a process support person provided by the institution for the limited purpose of cross-examination at the hearing. Reasonable delays, including the temporary adjournment of the hearing, may be anticipated should a process support person be removed. A party cannot serve as their own process support person in this circumstance.

The decisionmaker shall document any decision to remove a process support person in the written determination regarding responsibility.

Hearing Process

The hearing will begin with any appeals by the Parties to the Pre-Hearing relevancy determinations by the Decision-maker.
The Decision-maker will then open the hearing by establishing the rules and expectations. The Decision-maker will then read the charges.
Either party (Complainant or Respondent) may subsequently request to provide a brief statement of additional clarification of no more than five (5) minutes in duration.
Upon conclusion of any clarification statement, the Decision-Maker will ask questions of the Parties and Witnesses.
Parties will be given the opportunity for live cross-examination after the Decision-Maker conducts its initial round of questioning; During the Parties’ cross-examination, the Decision-Maker will have the authority to pause cross-examination at any time for the purposes of asking their own follow up questions; and at any time necessary in order to enforce the established rules of decorum. The Complainant, then followed by the Respondent, may have their Process Support Person ask any approved, relevant questions that have not already been addressed in the investigation or hearing. Should a Party or the Party’s Process Support Person choose not to cross-examine a Party or Witness, the Party shall affirmatively waive cross-examination through a written or oral statement to the Decision-Maker. A Party’s waiver of cross-examination does not eliminate the ability of the Decision-Maker to use statements made by the Party.
Each Party will have an opportunity to submit additional questions for review by the Decision-Maker after the initial Oral Cross-Examination has concluded. Should such questions be approved, the Complainant, followed by the Respondent, may have their Process Support Person ask any additional approved, relevant questions. There will only be one round of additional questions allowed.
There shall be no Oral Direct Examination at any point in the hearing process. The only time it is may be allowed is if a Party identifies, and provides sufficient justification for, an “Expert Witness” prior to the Hearing. If an “Expert Witness” is identified by one party, the other party will have an opportunity to Cross-Examine that “Expert Witness”, if they so choose.
Upon completion of questioning, any Party must raise any procedural, substantive, bias, conflict or other perceived irregularity to the Decision-Maker’s attention for review and consideration. Failure to do so will forever waive such complaint.
Thereafter the Decision-maker will conclude the hearing.

Live Cross-Examination Procedure

Each party’s Process Support Person will conduct live cross-examination of the other party or parties and witnesses. During this live-cross examination the Process Support Person will ask the other party or parties and witnesses relevant questions and follow-up questions, including those challenging credibility directly, orally, and in real time.

Cross-examination questions that are duplicative of those already asked, including by the Decision-Maker, may be deemed irrelevant if they have been asked and answered.

Newly-Discovered Evidence

As a general rule, no new evidence or witnesses may be submitted during the live hearing.

If a party identifies new evidence or witnesses that were not reasonably available prior to the live hearing and could affect the outcome of the matter, the party may request that such evidence or witnesses be considered at the live hearing.

The Decision-Maker will consider this request and make a determination regarding (1) whether such evidence or witness testimony was actually unavailable by reasonable effort prior to the hearing, and (2) whether such evidence or witness testimony could affect the outcome of the matter. The party offering the newly-discovered evidence or witness has the burden of establishing these questions by the preponderance of the evidence.

If the Decision-Maker answers in the affirmative to both questions, then the parties will be granted a reasonable pause in the hearing, or at the Decision-Maker’s sole discretion an adjournment, to review the evidence or prepare for questioning of the witness.

I. Determination Regarding Responsibility

Standard of Proof

Touro University uses the preponderance of the evidence standard of proof to determine whether or not Sex-Based Harassment occurred. This means that the investigation and hearing determine whether it is more likely than not that a violation of the Grievance Procedure occurred.

General Considerations for Evaluating Evidence and Testimony

The decisionmaker is required to evaluate Relevant and not otherwise impermissible evidence for its persuasiveness. If the decisionmaker is not persuaded under the applicable standard by the evidence that Sex-Based Harassment occurred, whatever the quantity of the evidence is, the decisionmaker must not determine that Sex-Based Harassment occurred.

Determinations regarding responsibility may be based in part, or entirely, on documentary, audiovisual, and digital evidence, as warranted in the reasoned judgment of the decisionmaker. Decisionmakers shall not draw inferences regarding a Party or witness’ credibility based on the Party or witness’ status as a Complainant, Respondent, or witness, nor shall it base its judgments in stereotypes about how a Party or witness would or should act under the circumstances.

Generally, credibility judgments should rest on the demeanor of the Party or witness, the plausibility of their testimony, the consistency of their testimony, and its reliability in light of corroborating or conflicting testimony or evidence. However, credibility judgments should not rest on whether a Party or witness’ testimony is non-linear or incomplete, or if the Party or witness is displaying stress or anxiety.

Decision makers will afford the highest weight relative to other testimony to first-hand testimony by Parties and witnesses regarding their own memory of specific facts that occurred. Both inculpatory and exculpatory (i.e. tending to prove and disprove the allegations) evidence will be weighed in equal fashion.

A witness’ testimony regarding third-Party knowledge of the facts at issue will be allowed, but will generally be accorded lower weight than testimony regarding direct knowledge of specific facts that occurred. See X(G) under this policy to further understand the weight given to expert witness testimony and character witness testimony.

Where a Party or witness’ conduct or statements demonstrate that the Party or witness is engaging in retaliatory conduct, including, without limitation, witness tampering and intimidation, the decisionmaker may draw an adverse inference as to that Party or witness’ credibility.

Communication of the Determination in Writing

All determinations on whether Sex-Based Harassment occurred will be communicated to the Parties in writing, simultaneously.

The written determination will include:

A description of the alleged Sex-Based Harassment;
Information about the policies and procedures that Touro University used to evaluate the allegations;
The decisionmaker’s evaluation of the Relevant evidence and determination on whether Sex-Based Harassment occurred;
Any Disciplinary Sanctions Touro University will impose on the Respondent, whether Remedies other than the imposition of Disciplinary Sanctions will be provided by Touro University to the Complainant, and, to the extent appropriate, other Students identified by Touro University to be experiencing the effects of Sex-Based Harassment, if there is a finding that Sex-Based Harassment occurred; and
Touro University’s procedures for Complainant and Respondent to appeal.

Timeline of Determination Regarding Responsibility

If there are no extenuating circumstances, the determination regarding responsibility will be issued by Touro University within a reasonable timeframe following the completion of the hearing. Touro shall endeavor to provide a determination regarding responsibility within ten (10) days upon the completion of the hearing.

Finality of Determination

The determination regarding responsibility becomes final either on the date that Touro University provides the Parties with the written determination of the result of any appeal, or, if no Party appeals, the date on which an appeal would no longer be considered timely.

J. Disciplinary Sanctions

Student violators may be subject to the following sanctions and remedial measures on a case-by-case basis:

Warning: A written reprimand putting the student on notice that he/she has violated the Code of Conduct. A copy of this warning is placed in the student’s folder.
No-Contact Order: A student may be ordered to temporarily not intentionally contact a victim through any medium.
Probation: A student may be placed on disciplinary probation for a definite period of time. While on probation, students may not hold office in Student Government Organizations, Clubs or Societies or represent the university in any capacity. Further violations while on probationary status will result in suspension or expulsion from the university.
Restitution: A student may be required to pay restitution to the university or to fellow students for damages and losses resulting from his/her actions.
Suspension: At any time during a student’s enrollment at the university he/she may be suspended and barred from attending classes for a definite period, not to exceed two years. A student who is suspended is entitled to a written clarification with specific reasons for and description of the sanction. A student may not be automatically re-enrolled at the end of his/her suspension. He/she must apply to the Student Affairs Committee for re-enrollment.
Expulsion: Touro may terminate a student’s status at the university at any time.

Faculty and staff (part-time and full-time) who violate the policy will be subject to disciplinary sanctions on a case-by-case basis as follows:

Censure: A written reprimand, outlining the violation(s) of university policies, may be placed in the personnel file of individual violators.
Probation: Faculty and/or staff may be placed on probation for a definite period of time up to a maximum of one year. In such instances, individuals may be required to enroll in a therapeutic counseling or treatment program.
Suspension: Faculty and/or staff may be suspended from employment without pay for a period of time ranging from seven days to a maximum of one year.
Termination of Employment: Faculty and/or staff may be dismissed from employment upon written notice by the Dean of Faculties (for faculty members) or the Vice President for Administration (all other employees).
Legal Action: Faculty and/or staff may be turned over to law enforcement authorities for criminal prosecution and legal action.

In both cases for students, faculty and staff, the existence of a progressive system of disciplinary sanctions measures does not preclude Touro University from levying a heavy sanction, without first resorting to a lesser sanction. By way of illustration and not exclusion, Touro University may expel a student or terminate a staff member for a violation of policy without first issuing a warning or putting that student or employee on probation.

University-Initiated Protective Measures

In addition to those protective measures previously described, the Title IX Coordinator or their designee will determine whether interim interventions and protective measure should be implemented, and, if so, take steps to implement those protective measures as soon as possible.

When the accused or respondent is a student, to have the institution issue a “no contact order” consistent with institution policies and procedures, whereby continued intentional contact with the reporting individual would be a violation of institution policy subject to additional conduct charges; if the accused or respondent and a reporting individual observe each other in a public place, it shall be the responsibility of the accused or respondent to leave the area immediately and without directly contacting the reporting individual. Both the accused or respondent and the reporting individual shall, upon request and consistent with institution policies and procedures, be afforded a prompt review, reasonable under the circumstances, of the need for and terms of a no contact order, including potential modification, and shall be allowed to submit evidence in support of his or her request. Institutions may establish an appropriate schedule for the accused and respondents to access applicable institution buildings and property at a time when such buildings and property are not being accessed by the reporting individual.

Other examples of interim protective measures include, but are not limited to: a University order of no contact, residence hall relocation, adjustment of course schedules, a leave of absence, or reassignment to a different supervisor or position. These remedies may be applied to one, both, or multiple parties involved. Protective measures imposed may be temporary pending the results of an investigation or may become permanent as determined by Touro University. Violations of the Compliance Officer’s directives and/or protective measures will constitute related violations that may lead to additional disciplinary action including interim suspension pending the outcome of a judicial or conduct process consistent with Touro policy. Both the accused or respondent and the reporting individual shall, upon request and consistent with the institution’s policies and procedures, be afforded a prompt review, reasonable under the circumstances, of the need for and terms of an interim suspension, including potential modification, and shall be allowed to submit evidence in support of the request.

Every institution shall ensure that individuals are provided the following protections and accommodations:

To receive a copy of the order of protection or equivalent when received by an institution and have an opportunity to meet or speak with an institution representative, or other appropriate individual, who can explain the order and answer questions about it, including information from the order about the accused’s responsibility to stay away from the protected person or persons;
When the accused is not a student but is a member of the institution’s community and presents a continuing threat to the health and safety of the community, to subject the accused to interim measures in accordance with applicable collective bargaining agreements, employee handbooks, and rules and policies of the institution.

K. Appeals

The Complainant and Respondent will both be provided with at least one level of appeal. The Complainant and Respondent are eligible to file an appeal to the final determination based on:

a procedural irregularity that affected the outcome of the matter;
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;
the Title IX Coordinator, Investigator, or Decision-maker 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; or
the sanction imposed is disproportionate to the violation.

The Complainant and Respondent may also appeal the dismissal of a complaint based on the first three points listed above.

The request for an appeal must include the grounds on which the request is based and be submitted in writing to the Title IX Coordinator within seven (7) business days following the date of the written determination. The appeal should also state the remedy sought by the appealing party. Upon receipt of the appeal, the other party will receive notification of the appeal and be provided opportunity to respond in writing. Written responses to the other party’s appeal must be submitted within three (3) business days following the delivery of notice of the appeal.

In order to ensure a neutral and unbiased review, a party’s request for appeal will be sent to an Appeals Panel comprised of individuals with no connection to the initial determination, which serves as a separate decisionmaker. An appeal decision will be rendered within twenty (20) business days after the receipt of the formal appeal request. The appeal decision will be provided in writing to both parties.

For appeals resulting from dismissal of a Complaint, please see the section on Dismissal of Complaints.

Additional Procedures for Appeal Process

Touro University will notify the Parties of any appeal, provide the Parties a reasonable and equal opportunity to make a statement in support of, or challenging, the outcome, and will notify the Parties of the result of the appeal and the rationale for the result.

The submission of an appeal stays (or pauses) any sanctions for the period during which an appeal determination is being assessed. Supportive Measures and remote learning opportunities remain available while an appeal is being deliberated and before a final decision has been made.

Finality

The determination regarding responsibility becomes final either on the date that the institution provides the parties with the written determination of the result of the appeal, if an appeal is filed consistent with the procedures and timeline outlined in “Appeals” above, or if an appeal is not filed, the date on which the opportunity to appeal expires.

L. Informal Resolution

Procedures for Entering and Exiting Informal Resolution Process

At any time prior to determining whether Sex-Based Harassment occurred under this Grievance Procedure, including prior to making a Complaint, Parties may instead seek Touro University’s assistance to resolve allegations of Sex-Based Harassment, and may elect to enter the informal resolution process.

No Informal Resolution process will be offered to resolve Formal Complaints involving a student as Complainant and a staff or faculty member as Respondent.

The Parties may voluntarily elect to enter the Touro University’s informal resolution process at any time through an informed written Consent. This informed written Consent will include all terms of the elected informal process, including a statement that any agreement reached through the process is binding on the Parties.

No Party may be required to participate in informal resolution, and Touro University may never condition enrollment, employment, or enjoyment of any other right or privilege upon agreeing to informal resolution.

The Parties may elect to leave the informal resolution process at any point until the informal resolution process is concluded. If a Party elects to leave the informal resolution process, the Grievance Procedure that the Parties paused will continue. In participating in the informal resolution process, the Parties understand that the timeframes governing the Grievance Procedure will temporarily cease, and only reinstate upon reentry into the Grievance Procedure.

Supportive Measures will be available, or continue to be available if already provided, during an informal resolution process, if elected to proceed. The Title IX Coordinator will also, to the extent necessary, take other appropriate prompt and effective steps to ensure that Sex-Based Harassment does not continue or recur within Touro University’s Education Program or Activity.

Determination to Approve Entry into Informal Resolution Process

Even where the Parties agree to submit a matter to informal resolution, the Title IX Coordinator may approve the decision to move the matter to the informal resolution process and may determine that informal resolution is not appropriate under the circumstances.

Factors that the Title IX Coordinator may weigh in considering the appropriateness of the informal resolution process include, but are not limited to, the gravity of the allegations, whether there is an ongoing threat of harm or safety to the campus, whether the Respondent is a repeat offender, whether the alleged conduct would present a future risk of harm to others, and whether the Parties are participating in good faith. This determination is not subject to appeal.

Notice Prior to Entry Into Informal Resolution Process

Before the initiation of an informal resolution process, the Title IX Coordinator must provide to the Parties a written notice that explains:

The allegations;
The requirements of the informal resolution process;
That, prior to agreeing to a resolution, any Party has the right to withdraw from the informal resolution process and to initiate or resume Touro University’s Grievance Procedure;
That the Parties’ agreement to a resolution at the conclusion of the informal resolution process would preclude the Parties from initiating or resuming Touro University’s Grievance Procedure arising from the same allegations;
The potential terms that may be requested or offered in an informal resolution agreement, including notice that an informal resolution agreement is binding only on the Parties; and
What information Touro University will maintain and whether and how Touro University could disclose such information for use in its Grievance Procedure if they are initiated or resumed.

At any time after the commencement of the informal resolution process, the Title IX Coordinator may determine that the informal resolution process is not an appropriate method for resolving the matter and may require that the matter be resolved through the Grievance Procedures. This determination is not subject to appeal.

If informal resolution is approved or denied, the Title IX Coordinator will provide the outcome in writing simultaneously to the Parties.

Contents of Informal Resolution Agreements

Potential terms that may be included in an informal resolution agreement between the Parties include but are not limited to:

Restrictions on contact; and
Restrictions on the Respondent’s participation in one or more of Touro University’s education programs or activities or attendance at specific events, including restrictions Touro University could have imposed as Remedies or Disciplinary Sanctions had Touro University determined at the conclusion of the Grievance Procedure that Sex-Based Harassment occurred.

Breach of Informal Resolution Agreements

If a Party breaches the resolution or if Touro University has other compelling reasons, such as if it learns of any fraud by a Party in entering into the agreement, Touro University may void the agreement and initiate or resume the Grievance Procedure.

Confidentiality

In entering the informal resolution process, the Parties agree that any testimony and evidence (including admissions of responsibility) they share or receive during the informal resolution process concerning the allegations of the Complaint is confidential. No evidence concerning the allegations obtained within the informal resolution process may be disseminated to any person, provided that any Party to the informal resolution process may generally discuss the allegations under investigation with a parent, friend, process support person, or other source of emotional support, or with an advocacy organization. As a condition of entering the informal resolution process, any evidence shared or received during the informal resolution process may not be used in any subsequent Grievance Procedure or institutional appeal.

XI. Retaliation

When Touro University has information about conduct that reasonably may constitute Retaliation under Title IX or its Grievance Procedure, Touro University is obligated to initiate its Grievance Procedure, or, as appropriate, Touro University’s informal resolution process.

Touro will keep the identity of any individual who has made a report or complaint of sex discrimination confidential, including the identity of any individual who has made a report or filed a Formal Complaint of sexual harassment under this Title IX Grievance Policy, any Complainant, any individual who has been reported to be the perpetrator of sex discrimination, any Respondent, and any witness, except as permitted by the FERPA statute, 20 U.S.C. 1232g, or FERPA regulations, 34 CFR part 99, or as required by law, or to carry out the purposes of 34 CFR part 106, including the conduct of any investigation, hearing, or judicial proceeding under this Title IX Grievance Policy.

No person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX of the Education Amendments of 1972 or its implementing regulations.

No person may 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, proceeding or hearing under this Title IX Grievance Policy.

Any intimidation, threats, coercion, or discrimination, for the purpose of interfering with any right or privilege secured by Title IX or its implementing regulations constitutes retaliation. This includes any charges filed against an individual for code of conduct violations that do not involve sex discrimination or sexual harassment, but that arise from the same facts or circumstances as a report or complaint of sex discrimination or a report or Formal Complaint of sexual harassment.

Complaints alleging retaliation may be filed with the Office of Institutional Compliance at Compliance@touro.edu.

ADDENDUM

For individuals attending or working at Touro University campuses located in California and Illinois the following policies and/or procedures are modified or supplemented to those set forth in the Grievance Procedure for Sex-Based Harassment Complaints. Touro reserves the right to adjust this Addendum consistent with current law. If any portion of this Addendum is deemed invalid, the invalidity shall not affect other portions of the Grievance Procedure for Sex Discrimination Complaints.

California

Touro University California and Touro College Los Angeles

The following modifications and/or supplementations apply only to Touro University campuses located in California.

I. Additional Definitions

“Affirmative consent” or “Consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that the person has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.

“Gender Expression” means a person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.

“Sex” includes a person’s actual or perceived gender assigned at birth, gender identity, Gender Expression, and sexual orientation or a person’s actual or perceived association with a person who has, or is perceived to have, any of those characteristics. It also includes Sex stereotypes, Sex characteristics, and Pregnancy or Related Conditions.

“Sexual harassment” means unwelcome sexual advances, requests for sexual favors, and other verbal, visual, or physical conduct of a sexual nature, made by someone from or in the work or educational setting, under any of the following conditions:

Submission to the conduct is explicitly or implicitly made a term or a condition of an individual’s employment, academic status, or progress.
Submission to, or rejection of, the conduct by the individual is used as the basis of employment or academic decisions affecting the individual.
The conduct has the purpose or effect of having a negative impact upon the individual’s work or academic performance, or of creating an intimidating, hostile, or offensive work or educational environment.
Submission to, or rejection of, the conduct by the individual is used as the basis for any decision affecting the individual regarding benefits and services, honors, programs, or activities available at or through the educational institution.

“Sexual violence” means physical sexual acts perpetrated against a person without the person’s affirmative consent. Physical sexual acts include both of the following:

“Rape” means penetration, no matter how slight, of the vagina or anus with any part or object, or oral copulation of a sex organ by another person, without the consent of the victim.
“Sexual battery” means the intentional touching of another person’s intimate parts without consent, intentionally causing a person to touch the intimate parts of another without consent, or using a person’s own intimate part to intentionally touch another person’s body without consent.

“Sexual exploitation” means a person taking sexual advantage of another person for the benefit of anyone other than that person without that person’s consent, including, but not limited to, any of the following acts:

The prostituting of another person.
The trafficking of another person, defined as the inducement of a person to perform a commercial sex act, or labor or services, through force, fraud, or coercion.
The recording of images, including video or photograph, or audio of another person’s sexual activity or intimate parts, without that person’s consent.
The distribution of images, including video or photograph, or audio of another person’s sexual activity or intimate parts, if the individual distributing the images or audio knows or should have known that the person depicted in the images or audio did not consent to the disclosure.
The viewing of another person’s sexual activity or intimate parts, in a place where that other person would have a reasonable expectation of privacy, without that person’s consent, for the purpose of arousing or gratifying sexual desire.

II. Amnesty

Touro’s primary concern is student safety. An individual who participates as a Complainant or witness in an investigation of sexual assault, domestic violence, dating violence, or stalking will not be subject to disciplinary sanctions for a violation of Touro’s student conduct policy at or near the time of the incident, unless Touro determines that the violation was egregious, including, but not limited to, an action that places the health or safety of any other person at risk or involves plagiarism, cheating, or academic dishonesty.

III. Non-Adversarial Process

The investigation and adjudication of alleged misconduct under this Grievance Procedure for Sex Discrimination Complaints is not an adversarial process between the Complainant, the Respondent, and the witnesses, but rather a process for Touro to comply with its obligations under existing law. The Complainant does not have the burden to prove, nor does the Respondent have the burden to disprove, the underlying allegation or allegations of misconduct.

IV. Title IX Coordinator Initiated Complaints

Regardless of whether or not a Complaint has been filed under Touro’s grievance procedures, if Touro knows, or reasonably should know, about possible sexual harassment involving individuals subject to Touro’s policies at the time, Touro will promptly investigate to determine whether the alleged conduct more likely than not occurred, or otherwise respond if Touro determines that an investigation is not required. If Touro determines that the alleged conduct more likely than not occurred, Touro will immediately take reasonable steps to end the harassment, address the hostile environment, if one has been created, prevent its recurrence, and address its effects.

If a Complainant requests confidentiality, which could preclude a meaningful investigation or potential discipline of the potential Respondent, or that no investigation or disciplinary action be pursued to address alleged sexual harassment, Touro will take the request seriously, while at the same time considering its responsibility to provide a safe and nondiscriminatory environment for all students, including for the Complainant. Touro will generally grant the request.

However, in determining whether to disclose a Complainant’s identity or proceed to an investigation over the objection of the Complainant, the Title IX Coordinator must consider:

The Complainant’s request not to proceed with the initiation of a Complaint;
The Complainant’s reasonable safety concerns regarding initiation of a Complaint;
The risk that additional acts of sex-based harassment would occur if a Complaint were not initiated;
The severity of the alleged sex-based harassment, including whether the sex-based harassment, if established, would require the removal of a Respondent from campus or imposition of another disciplinary sanction to end the sex-based harassment and prevent its recurrence and whether the Respondent reportedly used a weapon, physical restraints, or engaged in battery;
The age and relationship of the Parties, including whether the Respondent is an employee of the recipient and whether the Respondent has oversight of students;
The scope of the alleged sex-based harassment, including information suggesting a pattern, ongoing sex-based harassment, or sex-based harassment alleged to have impacted multiple individuals;
Whether Touro is able to conduct a thorough investigation based on the availability of evidence to assist a decisionmaker in determining whether sex-based harassment occurred; and
Whether Touro could end the alleged sex-based harassment and prevent its recurrence without initiating these grievance procedures.

If after considering these and other relevant factors, the Title IX Coordinator determines that the conduct as alleged present as an imminent and serious threat to the health or safety of the Complainant or other person, or that the conduct as alleged prevents Touro from ensuring equal access on the basis of sex to its Education Program or Activity, the Title IX Coordinator may initiate a Complaint.

If the Title IX Coordinator does initiate the Complaint after making this determination, the Title IX Coordinator must notify the Complainant prior to doing so and appropriately address reasonable concerns about the Complainant’s safety or the safety of others, including by providing supportive measures as listed in Section VI of these procedures. In the event the Complainant requests that Touro inform the Respondent that the student asked Touro not to investigate or seek discipline, Touro will honor this request.

If Touro determines that it can honor the student’s request for confidentiality, it will still take reasonable steps to respond to the Complaint, consistent with the request, to limit the effects of the alleged sexual harassment and prevent its recurrence without initiating formal action against the alleged Respondent or revealing the identity of the Complainant. These steps may include increased monitoring, supervision, or security at locations or activities where the alleged misconduct occurred; providing additional training and education materials for students and employees; or conducting climate surveys regarding sexual violence. Touro will also take immediate steps to provide for the safety of the Complainant while keeping the Complainant’s identity confidential as appropriate. These steps may include changing living arrangements or course schedules, assignments, or tests. The Complainant will be notified that the steps Touro will take to respond to the Complaint will be limited by the request for confidentiality.

V. Additions to Notice of Allegations

The written notice of allegations will include the following, additional information:

Touro has received a report that the student may have been a victim of sexual harassment.
A statement that retaliation for filing a complaint or participating in a complaint process, or both, is prohibited.
Counseling resources within Touro or in the community.
Where a crime may have occurred, notice that the student has the right, but not the obligation, to report the matter to law enforcement.
Touro ‘s investigation procedures.
Potential interim measures, such as no-contact directives, housing changes, and academic schedule changes, where applicable.
The importance of preserving evidence.
A request for the student to meet with the Title IX coordinator or other designated employee to discuss options for responding to the report.
The manner in which Touro responds to reports of sexual harassment and a description of potential disciplinary consequences.

The notice will also include information regarding appropriate counseling resources developed and maintained by Touro for student parties in school misconduct matters involving sexual harassment.

VI. Use of Evidence Regarding the Complainant’s Sexual Predisposition Or Prior Sexual Behavior

Before allowing the consideration of any evidence of the Complainant’s sexual predisposition or prior sexual behavior, the investigator or decisionmaker will provide a written explanation to the parties as to why consideration of the evidence is permissible.

VII. Hearings

Either party or any witness may request to answer the questions by video from a remote location. Any cross-examination of either party or any witness will not be conducted directly by a party or a party’s advisor or support person.

Student parties will have the opportunity to submit written questions to the decisionmaker in advance of the hearing. At the hearing, the other party shall have an opportunity to note an objection to the questions posed. Such objections must be in written form, and neither the decisionmaker nor Touro is obligated to respond, other than to include any objection in the record. The decisionmaker has the authority and obligation to discard or rephrase any question that the decisionmaker deems to be repetitive, irrelevant, or harassing. In making these determinations, the decisionmaker is not bound by, but may take guidance from, the formal rules of evidence.

Generally, the parties may not introduce evidence, including witness testimony, at the hearing that the party did not identify during the investigation and that was available at the time of the investigation. Student parties will be informed that any evidence available but not disclosed during the investigation might not be considered at a subsequent hearing. However, the decisionmaker has discretion to accept for good cause, or exclude, such new evidence offered at the hearing.

VIII. Deadlines

Touro will not unreasonably deny a student party’s request for an extension of a deadline related to a Complaint during periods of examinations or school closures.

Touro will provide periodic status updates on the investigation consistent with the timelines referenced in this grievance procedure.

IX. Informal Resolution

Touro will not mandate Informal Resolution to resolve allegations of sexual harassment, and will not allow Informal Resolution, even on a voluntary basis, to resolve allegations of sexual violence. Touro will not require that the Complainant enter a voluntary resolution agreement or any other form of resolution as a prerequisite to receiving supportive measures.

X. No Contact Orders

When requested by a complainant or otherwise determined to be appropriate, Touro will issue an interim No Contact Order prohibiting the respondent from contacting the complainant during the pendency of the investigation. Touro will not issue an interim mutual No Contact Order automatically, but instead will consider the specific circumstances of each case to determine whether a mutual No Contact Order is necessary or justifiable to protect the noncomplaining party’s safety or well-being, or to respond to interference with an investigation. A No Contact Order issued after a decision of responsibility has been made shall be unilateral and only apply against the party found responsible. Upon the issuance of a mutual No Contact Order, Touro will provide the parties with a written justification for the directive and an explanation of the terms of the directive. Upon the issuance of any No Contact Order, Touro will provide the parties with an explanation of the terms of the directive, including the circumstances, if any, under which violation could be subject to disciplinary action.

XI. Policy Regarding Consent

In the evaluation of a Complaint involving an alleged lack of Consent, it is not a valid excuse that the Respondent believed that the Complainant Consented to the sexual activity under either of the following circumstances:

The Respondent’s belief in Consent arose from the intoxication or recklessness of the Respondent; or
The Respondent did not take reasonable steps, in the circumstances known to the Respondent at the time, to ascertain whether the Complainant Consented.

It is also not a valid excuse that the Respondent believed that the Complainant Consented to the sexual activity if the Respondent knew or reasonably should have known that the Complainant was unable to Consent to the sexual activity under any of the following circumstances:

The Complainant was asleep or unconscious;
The Complainant was Incapacitated due to the influence of drugs, alcohol, or medication, so that the Complainant could not understand the fact, nature, or extent of the sexual activity; or
The Complainant was unable to communicate due to a mental or physical condition.

XII. Training

Touro will provide for A comprehensive, trauma-informed training program for campus officials involved in investigating and adjudicating sexual assault, domestic violence, dating violence, and stalking cases.

ILLINOIS

Hebrew Theological College and Touro University Illinois

The following modifications and/or supplementations apply only to Touro University campuses located in Illinois.

I. Training

Touro will provide annual survivor-centered and trauma-informed response training designed to improve the trainee’s ability to understand

Touro’s grievance policy;
The relevant federal and State law concerning survivors of sexual violence, domestic violence, dating violence, and stalking at higher education institutions;
The roles of Touro, medical providers, law enforcement, and community agencies in ensuring a coordinated response to a reported incident of sexual violence;
The effects of trauma on a survivor;
The types of conduct that constitute sexual violence, domestic violence, dating violence, and stalking, including same-sex violence; and
Consent and the role drugs and alcohol use can have on the ability to Consent.

The training will also seek to improve the trainee’s ability to respond with cultural sensitivity; provide services to or assist in locating services for a survivor, as appropriate; and communicate sensitively and compassionately with a survivor of sexual violence, domestic violence, dating violence, or stalking.

Decisionmakers will also receive a minimum of 8 to 10 hours of annual training on issues related to sexual violence, domestic violence, dating violence, and stalking and how to conduct Touro’s complaint resolution procedures.

Touro will have a sufficient number of individuals trained to resolve Complaints so that (i) a substitution can occur in the case of a conflict of interest or recusal and (ii) an individual or individuals with no prior involvement in the Determination or finding hear any appeal brought by a Party.

II. Student Prevention and Awareness Programming

Touro will provide sexual violence primary prevention and awareness programming for all students who attend one or more classes at Touro, which will include, at a minimum, the following:

Touro’s definition of Consent, inability to Consent, and Retaliation as those terms relate to sexual violence;
Reporting to Touro, and local law enforcement;
Reporting to Confidential Employees or other confidential resources;
Available survivor services; and
Strategies for bystander intervention and risk reduction.

At the beginning of each academic year, Touro will provide each student with an electronic copy or hard copy of this policy.

III. Additional Definitions

The definition of Consent is modified to read:

Consent is a freely given agreement to sexual activity, a person’s lack of verbal or physical resistance or submission resulting from the use or threat of force does not constitute consent, a person’s manner of dress does not constitute consent, a person’s consent to past sexual activity does not constitute consent to future sexual activity, a person’s consent to engage in sexual activity with one person does not constitute consent to engage in sexual activity with another, a person can withdraw consent at any time, and a person cannot consent to sexual activity if that person is unable to understand the nature of the activity or give knowing consent due to circumstances, including without limitation the following:

The person is incapacitated due to the use or influence of alcohol or drugs;
The person is asleep or unconscious;
The person is underage; or
The person is incapacitated due to a mental disability.

The definition of sex-based harassment is amended to include:

(1)Unwelcome conduct meaning:
- (i)Unwelcome conduct by an Touro Representative toward a student on the basis of a student’s actual or perceived sex, martial status, sexual orientation, or pregnancy that has the purpose or effect of substantially interfering with a student’s educational performance or creating an intimidating, hostile, or offensive educational environment.
- (ii)Sexual advances, or requests for sexual favors made by an Touro Representative to a student; or any conduct of a sexual nature exhibited by an Touro Representative toward a student, when such conduct has the purpose of substantially interfering with the student’s educational performance or creating an intimidating, hostile or offensive educational environment; or when the Touro Representative either explicitly or implicitly makes the student’s submission to such conduct a term or condition of, or uses the student’s submission to or rejection of such conduct as a basis for determining:
  - (A) Whether the student will be admitted to Touro;
  - (B) The educational performance required or expected of the student;
  - (C) The attendance or assignment requirements applicable to the student;
  - (D) To what courses, fields of study or programs, including honors and graduate programs, the student will be admitted;
  - (E) What placement or course proficiency requirements are applicable to the student;
  - (F) The quality of instruction the student will receive;
  - (G) What tuition or fee requirements are applicable to the student;
  - (H) What scholarship opportunities are available to the student;
  - (I) What extracurricular teams the student will be a member of or in what extracurricular competitions the student will participate;
  - (J) Any grade the student will receive in any examination or in any course or program of instruction in which the student is enrolled;
  - (K) The progress of the student toward successful completion of or graduation from any course or program of instruction in which the student is enrolled; or
  - (L)What degree, if any, the student will receive.
For purposes of this definition, an Touro Representative means and includes the president, chancellor or other holder of any executive office on the administrative staff of Touro, a member of the faculty of Touro, including but not limited to a dean or associate or assistant dean, a professor or associate or assistant professor, and a full or part time instructor or visiting professor, including a graduate assistant or other student who is employed on a temporary basis of less than full time as a teacher or instructor of any course or program of academic, business or vocational instruction offered by or through Touro.
(2) “Sexual violence” meaning physical sexual acts attempted or perpetrated against a person's will or when a person is incapable of giving consent, including without limitation rape, sexual assault, sexual battery, sexual abuse, and sexual coercion.

III. Contact Information

A. Anonymous Reports

Individuals may anonymously report conduct prohibited herein by sending an email to Compliance@touro.edu or call 646-565-6330.

B. Confidential Reports

Touro will provide students access to a confidential advisor who is not required to report allegations of Sex-Based Harassment to Touro.

When a person informs a confidential advisor of conduct that reasonably may constitute Sex-Based Harassment in an Education Program or Activity, the confidential advisor must explain the following:

The confidential advisor’s status as confidential, including the circumstances in which the confidential advisor is not required to notify the Title IX Coordinator about conduct that reasonably may constitute Sex-Based Harassment;
How to contact the Title IX Coordinator and how to make a Complaint of Sex-Based Harassment; and
That the Title IX Coordinator may be able to offer and coordinate Supportive Measures, as well as initiate an informal resolution process or an investigation.

Individuals wishing to speak with a confidential advisor may contact the Title IX Coordinator who will refer you to the appropriate individual.

C. Title IX Coordinator

Contact information for Touro’s Title IX Coordinator is set out below:

Title IX Coordinator
Campus	Hebrew Theological College	Touro University Illinois
Name	Rita Lipshitz	Rita Lipshitz
Title	Title IX Coordinator	Title IX Coordinator
Street	2606 W. Touhy Avenue	2606 W. Touhy Avenue
State	Illinois	Illinois
Zip	60645	60645
Phone	(773)973-0241 x3109	(773)973-0241 x3109
Email	lipshitz@htc.edu	lipshitz@htc.edu

D. Campus Law Enforcement or Security

Contact information for Touro's campus security is set out below:

Campus Security
Campus	Hebrew Theological College	Touro University Illinois
Name	Yonathan Gershman	Yonathan Gershman
Street	7135 Carpenter Rd	7135 Carpenter Rd
City/State	Skokie, IL 60077	Skokie, IL 60077
Phone	(847)982-2500 x.1126	(847)982-2500 x.1126

E. Local Law Enforcement

Contact information for local law enforcement is set out below:

Local Law Enforcement \| Non Emergency Contacts
In Case of Emergency Dial 911
Campus	Hebrew Theological College	Touro University Illinois
Name	Skokie Police Department	Skokie Police Department
Street	7300 Niles Center Rd	7300 Niles Center Rd
City/State	Skokie, IL 60077	Skokie, IL 60077
Phone	(847) 982-5900	(847) 982-5900

F. Sexual Assault Crisis Center

Individuals may also desire to contact a community-based, state, or national sexual assault crisis center to make a confidential report and/or obtain external services such as counseling. Below is a list of contact information for such resources:

Sexual Assault Crisis Centers
National Sexual Assault Hotline: 1-800-656-4673
Campus	Hebrew Theological College	Touro University Illinois
Name	Resilience Central Office	Resilience Central Office
Address	180 N Michigan Avenue, Ste. 600	180 N Michigan Avenue, Ste. 600
Phone	Chicago, IL 60601	Chicago, IL 60601
Website	312-443-9603	312-443-9603

G.Emergency and Medical Assistance

In instances of Sex-Based Harassment involving physical assault or injury, it is important to (1) to locate a place of safety, (2) to obtain any necessary medical treatment and a forensic examination, and (3) preserve physical evidence. Touro strongly encourages individuals in these circumstances to obtain a medical examination immediately to determine the extent of any injuries and to ensure the preservation of evidence. It is important to understand that time is a critical factor for evidence collection and preservation, and that preserving evidence may be necessary to prove that a form of Sex-Based Harassment occurred, or to obtain an order of protection.

Below is a brief list of emergency and medical assistance providers within a reasonable distance of Touro that offer a medical forensic examination at no charge. If any individual requires assistance obtaining emergency and medical assistance, the Title IX Coordinator can assist. In addition, the Title IX Coordinator can provide information for additional resources, as well as information regarding rights and options for moving forward.

Emergency and Medical Assistance Providers
In Case of Emergency Dial 911
Campus	Hebrew Theological College	Touro University Illinois
Name	Skokie Hospital	Skokie Hospital
Street	9600 Gross Point Road	9600 Gross Point Road
City/State	Skokie, IL 60202	Skokie, IL 60202
Phone	(847)316-4000	(847)316-4000

IV. Immediate Response to a Report of Sex-Based Harassment

Within 12 hours after receiving a report of sex-based harassment, Touro will provide the Complainant with concise information, written in plain language, concerning the Complainant’s rights and options, including:

The Complainant’s right to report or not report the alleged conduct to Touro, law enforcement, or both, including information about the Complainant’s right to privacy and which reporting methods are confidential;
The contact information for Touro’s Title IX Coordinator or deputy coordinators, confidential advisors, a community-based sexual assault crisis center, and local law enforcement;
The Complainant’s right to request and receive assistance from Touro in notifying law enforcement;
The Complainant’s ability to request Supportive Measures and accommodations for survivors, including without limitation changes to academic, living, dining, working, and transportation situations, obtaining and enforcing an institutional order of protection or No Contact Order, if such Supportive Measures and accommodations are reasonably available, and an order of protection or no contact order in state court;
Touro’s ability to provide assistance, upon the Complainant’s request, in accessing and navigating campus and local health and mental health services, counseling, and advocacy services;
A summary of Touro’s grievance procedures; and
A list of available resources.

V. Appeals

Touro will also permit an appeal of a determination on the basis that the Disciplinary Sanction is disproportionate with the violation. The appeal determination will be issued within seven (7) calendar days of a decision.

VI. Coordination with Local Law Enforcement

The standards for finding a violation of this policy are different from the standards used by local law enforcement to determine whether criminal conduct may have occurred. Conduct that constitutes Sex-Based Harassment under this policy may not constitute sufficient evidence of a crime, and law enforcement may choose to decline investigating or prosecuting it as a crime. In the event local law enforcement does investigate allegations of Sex-Based Harassment, any such investigation is independent of any investigation by Touro.

Touro typically will not wait for the conclusion of any criminal investigation or proceeding to commence its own investigation (or to implement any Supportive Measures), and will make its determinations in accordance with this policy. However, at the request of law enforcement, Touro may agree to defer its investigation until after the initial stages of a criminal investigation. In such instances, Touro will promptly resume its investigation as soon as it is notified by law enforcement that there is no longer a need to delay, or Touro otherwise determines that it must proceed. Touro may also elect to temporarily delay its investigation to enable law enforcement to gather evidence and engage in a preliminary investigation if, for example, Touro believes such delay would benefit Touro’s own investigation. When applicable and appropriate, Touro may contact and coordinate with law enforcement.

VII. Supportive Measures and Sanctions

Supportive measures may also include changes to academic, living, dining, transportation, and working situations, obtaining and enforcing campus no contact orders, and honoring an order of protection or no contact order entered by a State civil or criminal court.

Sanctions may also include, but are not limited to, suspension, expulsion, or removal of the student found, after complaint resolution procedures, to be in violation of Touro’s policy.

VIII. Amnesty

Touro will provide immunity to any student who reports, in good faith, an alleged violation of Touro’s policy to a responsible employee so that the reporting student will not receive a disciplinary sanction for a student conduct violation, such as underage drinking or possession or use of a controlled substance, that is revealed in the course of such a report, unless Touro determines that the violation was egregious, including without limitation an action that places the health or safety of any other person at risk.

IX. Notice of the Decisionmaker

The complainant and respondent will receive notice of the individual or individuals with authority to make a finding or impose a sanction in their proceeding before the individual or individuals initiate contact with either party and have the opportunity to request a substitution if the participation of an individual with authority to make a finding or impose a sanction poses a conflict of interest.

X. Hearings

The complainant and the respondent may not directly cross examine one another.