Procedures for Entering and Exiting Informal Resolution Process
At any time prior to determining whether sexual harassment or other sex or gender-based misconduct occurred under SUNY Brockport’s Grievance Procedure or Code of Student Conduct, Category II, including prior to making a formal complaint, parties may instead seek SUNY Brockport’s assistance to resolve allegations of sexual harassment or other sex or gender-based misconduct, and may elect to enter the informal resolution process.
The parties may voluntarily elect to enter SUNY Brockport’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 SUNY Brockport 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 Title IX Grievance Procedure or Code of Student Conduct process that the parties paused will continue. In participating in the informal resolution process, the parties understand that the timeframes governing the Title IX Grievance Procedure will temporarily cease and only reinstate upon reentry into the Title IX Grievance Procedure or Code of Student Conduct process.
Supportive measures will be available, or continue to be available, if already provided, during an informal resolution process. The Title IX Coordinator will also, to the extent necessary, take other appropriate prompt and effective steps to ensure that sexual harassment or other sex or gender-based misconduct does not continue or recur within SUNY Brockport’s education program or activity.
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 SUNY Brockport’s Title IX Grievance Procedure or Code of Student Conduct process;
- That the parties’ agreement to a resolution at the conclusion of the informal resolution process would preclude them from initiating or resuming SUNY Brockport’s Title IX Grievance Procedure or Code of Student Conduct process 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 SUNY Brockport will maintain and whether and how SUNY Brockport could disclose such information for use in its Title IX Grievance Procedure or Code of Student Conduct process, if they are initiated or resumed.
Determination to Approve Entry into Informal Resolution Process
Even where the parties agree to submit a matter to informal resolution, the Title IX Coordinator or designee must approve the decision to move the matter to the informal resolution process and may determine that informal resolution is not appropriate under the circumstances. Informal Resolution is not appropriate and will not be used when the Complainant is a student and the Respondent is an employee. Examples of when it is appropriate to resolve a case using informal resolution include, but are not limited to, when there are no or few contested relevant facts so that facilitator may make a determination about responsibility without requiring a full hearing; when a Respondent has taken responsibility during the investigation; or when one or both parties request informal resolution.
Factors that the Title IX Coordinator or designee may weigh in considering the appropriateness of the informal resolution process include, but are not limited to, the gravity of the allegations, whether there is an ongoing threat of harm or safety to the campus, whether the Respondent is a repeat offender, 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.
At any time after the commencement of the informal resolution process, the Title IX Coordinator or designee may determine that the informal resolution process is not an appropriate method for resolving the matter and may require that the matter be resolved through the Grievance Procedures. This determination is not subject to appeal.
SUNY Brockport will provide notice of the decision regarding whether informal resolution is approved or denied, in writing, simultaneously to the parties. If informal resolution is approved, once the facilitator is assigned, the Title IX Coordinator or designee will also provide the facilitator’s identity and contact information in writing to the parties in a reasonable timeframe.
Role of the Facilitator
Informal resolution processes are managed by trained facilitators. None of the facilitators will be assigned as the investigator or the/a decisionmaker(s) in SUNY Brockport’s Title IX Grievance Procedure or Student Conduct process. No facilitator will have a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent. The Title IX Coordinator may serve as the facilitator, subject to these restrictions.
All facilitators must have specialized training, required by law and regulation. Such training includes:
- SUNY Brockport’s obligation to address sex discrimination in its education programs or activities;
- The scope of conduct that constitutes sex discrimination;
- All applicable notification and information requirements related to parental, family, or marital status, including pregnancy and related conditions, and SUNY Brockport’s response to sex discrimination;
- The rules and practices associated with SUNY Brockport’s informal resolution process; and
- How to serve impartially, including by avoiding conflicts of interest and bias.
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 SUNY Brockport’s education programs or activities or attendance at specific events, including restrictions SUNY Brockport could have imposed as remedies or disciplinary sanctions had SUNY Brockport determined at the conclusion of the Title IX Grievance Procedure or Code of Student Conduct process that sexual harassment or sex/gender-based misconduct occurred.
Breach of Informal Resolution Agreements
If a party breaches the resolution or if SUNY Brockport has other compelling reasons, such as if it learns of any fraud by a party in entering into the agreement, SUNY Brockport may void the agreement and initiate or resume the Title IX Grievance Procedure or Student Conduct process.
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 are confidential while the parties participate in the informal resolution process. No evidence concerning the allegations obtained within the informal resolution process may be disseminated to any person, provided that any party to the informal resolution process may generally discuss the allegations under investigation with a parent, friend, advisor, or other source of emotional support, or with an advocacy organization.
Should the parties withdraw from the informal resolution process, information disclosed or obtained for purposes of the informal resolution process may be incorporated into the Title IX Grievance Procedure or Student Conduct process, provided that this information is disclosed and reviewed by the parties under SUNY Brockport’s Title IX Grievance Procedure or Code of Student Conduct.
Informal Resolution Options
SUNY Brockport offers the following informal resolution procedures for addressing complaints of sexual harassment described under this Grievance Procedure:
Administrative Resolution
Should the parties mutually determine to enter the informal resolution process, and the respondent elects to accept responsibility for the allegations of the complaint at any point during the informal resolution process, the institution may administratively resolve the complaint.
Where the respondent admits responsibility, the parties will receive simultaneous written notification of the acceptance of responsibility, and a hearing officer or hearing body will convene to determine the respondent’s sanction and other remedies, as appropriate and consistent with institutional policy. The parties will be given an opportunity to be heard at the sanctions hearing, including without limitation, the submission of impact statements, and the parties may be accompanied by their advisor, but questioning of parties or witnesses will not be permitted. The parties will receive simultaneous written notification of the decision regarding sanctions and remedies, which may be appealed according to the process described in the “Appeals” section, above.
Mediation
The purpose of mediation is for the parties who are in conflict to identify the implications of a student’s actions and, with the assistance of a trained facilitator, identify points of agreement and appropriate remedies to address them. Either party can request mediation to seek resolution; mediation will be used only with the consent of both parties, who will be asked not to contact one another during the process. The Title IX Coordinator or designee will also review any request for mediation and may decline to mediate based on the facts and circumstances of the particular case. Either party has the right to terminate the mediation process and choose or resume another option for resolution at any time.
The mediation process will typically commence within ten days after the Title IX Coordinator or designee receives consent to mediate from both parties and has made its determination to allow informal resolution to go forward. Mediation will continue until concluded or terminated by either party, the facilitator, or the Title IX Coordinator or designee. During mediation, any potential investigation will halt, and calculations for time frames will be stayed. If the mediation results in a resolution, the disciplinary process will be concluded, and the matter will be closed. If a resolution cannot be reached, the matter will be referred to the Title IX Coordinator or designee and/or the Office of Student Conduct to re-evaluate other options for resolution, including investigation or proceeding forward with the Title IX Grievance Procedure or Student Conduct process.
During mediation, a facilitator will guide a discussion between the parties. In circumstances where the parties do not wish to meet face to face, either party can request “caucus” mediation, and the facilitator will conduct separate meetings. Whether or not the parties agree to meet face to face, each party will be permitted to bring an advisor of their choice to any meeting, who may be, but is not required to be, an attorney.
At the conclusion of the mediation, the facilitator will memorialize the agreement that was reached between the parties. The Title IX Coordinator or designee will monitor adherence to the proposed solution and close the matter when compliance is satisfactory.
Restorative Justice
A restorative justice (“RJ”) conference is a dialogue, facilitated by an informal resolution facilitator with appropriate training, intended to restore relationships and repair harm after a conflict has occurred. Both the responsible party and the individuals affected by the conflict come together to identify what harm was caused and collaboratively determine how conflict and trust might be resolved and repaired.
A party may request to engage in RJ at any stage of the disciplinary process, however, restorative justice may not be an appropriate mechanism for all conflicts. To qualify for RJ, the student accused of wrongdoing must accept responsibility and express remorse for the harm that was caused. The harmed party must also be willing to accept an apology offered by the student accused of wrongdoing. Additionally, all involved parties must agree to and abide by measurable and timely actions within the scope of this policy and directives. The Office of Student Conduct will review any request for RJ and may decline to initiate RJ, based on the facts and circumstances of the particular case.
The RJ Conference proceeds only if all parties agree to participate willingly. If the parties are willing, the RJ process typically commences within ten days after the Office of Student Conduct receives written agreements from all involved Parties. The conference will continue until the conference is successfully concluded or until the facilitators or Office of Student Conduct determines that the conference will not be successful. If successful, an agreeable resolution is reached by all involved parties, at which time the process is concluded, and the matter is resolved. If a resolution cannot be reached, the matter will be referred to the Office of Student Conduct to re-evaluate other options for resolution.
The Title IX Coordinator or designee will monitor the parties’ adherence to their proposed resolution and reserve the right to close the matter when compliance is satisfactory.