Chapter 400 Non-Discrimination

401. Free Speech and Expression

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FREEDOM OF SPEECH/EXPRESSION

Authority: Issued by the Chancellor. Changes or exceptions to administrative policies issued by the Chancellor may only be made by the Chancellor.

Category: University-Wide

Applies to: •Administrators •Staff •Faculty •Students •Visitors

History: First Issued - April 23, 2019

Related Policies/Regulations/Statutes:

  • Code of Student Conduct
  • Use of University Space
  • Free Speech and Free Expression Within the University of North Carolina [The UNC Policy Manual #1300.8]
  • Campus Free Speech [NC General Statutes §116-300 - §116-304]
  • Disorderly Conduct in and Injuries to Public Buildings and Facilities [N.C. General Statute §14-132]
  • Campus of State-Supported Institution of Higher Education Subject to Curfew [N.C. General Statute §116-212]
  • Disruption of Official Meetings [N.C. General Statute §143-318.17]

Contact for Info: Office of Legal Affairs (910) 672-1145
Office of Student Conduct (910) 672-1385

Fayetteville State University believes in the fundamental right of freedom of speech/expression as guaranteed under the First Amendment of the U.S. Constitution and Article 1, Section 14 of the North Carolina Constitution and will ensure its faculty, staff, and students the fullest degree of intellectual freedom and free speech/expression. As such, the University shall permit an individual to articulate opinions and ideas without interference, retaliation or punishment from the University as long as such speech/expression is lawful and does not materially and substantially disrupt the functioning of the University. A "material and substantial disruption" includes, but is not limited to, any or all of the following:

  • Any action that qualifies as disorderly conduct under N.C.G.S. § 14-288.4;
  • Any action that qualifies as a disruption under N.C.G.S. § 143-318.17;
  • Any action in violation of a chancellor's designation of a curfew period pursuant to N.C.G.S. § 116-212; or
  • Any action that results in the individual receiving a trespass notice from law enforcement.

Additionally, the University will restrict speech/expression for an activity not protected by the First Amendment under State or federal law, including but not limited to, all of the following:

  • Expression that a court has deemed unprotected defamation.
  • Unlawful harassment.
  • True threats, which are defined as statements meant by the speaker to communicate a serious expression of intent to commit an act of unlawful violence to a particular individual or group of individuals.
  • An unjustifiable invasion of privacy or confidentiality not involving a matter of public concern.

Reasonable time, place, and manner restrictions on expressive activities, consistent with N.C.G.S. § 116-300(4).

Any access to University property for purposes of free speech/expression activities shall be consistent with UNC Board of Governors' Free Speech and Free Expression Within the University of North Carolina policy and the University's Use of University Space policy.

The following University officials are responsible for ensuring compliance with this policy, the Board of Governors' Free Speech and Free Expression Within the University of North Carolina policy and Article 36 of Chapter 116 of the North Carolina General Statutes.

General Counsel or
Associate General Counsel
Office of Legal Affairs
(910) 672-1145

Director of Student Conduct
Office of Student Affairs
(910) 672-1385

These University officials shall also serve as the primary points of contact for any student, employee, or other individual who has questions or concerns about compliance with the laws/policies governing free speech/expression and to assist with any interpretations of such laws/policies.

402. American with Disabilities Act Compliant Procedures

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AMERICANS WITH DISABILITIES ACT SECTION 504 OF THE REHABILITATION ACT

COMPLAINT POLICY AND PROCEDURES

Authority: Issued by the Chancellor. Changes or exceptions to administrative policies issued by the Chancellor may only be made by the Chancellor.

Category: University-Wide

Applies to: ● Faculty ● Staff ● Students ● Campus Visitors

History:

  • Revised - August 19, 2011
  • Approved - January, 2003
  • First issued - January, 2003

Related Policies:

  • Section 504, Rehabilitation Act of 1973
  • Title II of the Americans with Disabilities Act

Contact for Info:

  • General Counsel (910) 672-1145
  • Assistant Vice Chancellor for Human Resources (910) 672-1146
  • Director of the Center for Personal Development (910) 672-1222/1203

I. INTRODUCTION

Section 504 of the Rehabilitation Act of 1973 prohibits discrimination on the basis of a physical or mental handicap by programs receiving federal assistance. Section 504 focuses on program accessibility, academic accommodations, and integrated settings. Title II of the Americans with Disabilities Act prohibits discrimination based on disability in all programs, activities, and services of State and local governments.

As an institution that receives federal assistance from the U.S. Department of Education and as an institution, which is a constituent institution of the University of North Carolina (a state agency), Fayetteville State University (University) must comply with the laws and regulations pertaining to Section 504 and Title II of ADA.

It is the University’s belief that no qualified individual with a disability will be excluded, by reason of such disability, from the participation in or be denied the benefits of the services, programs, or activities offered by FSU or be subjected to discrimination.

A student, employee, applicant or member of the public who wishes to file a complaint regarding the University's compliance with Title II of ADA/Section 504 must file such a complaint in accordance with this procedures outlined in this policy (Policy).

II. EMPLOYMENT DISABILITY COMPLAINTS

This Policy is not intended to address employment related disability complaints. An employee with a concern, grievance or complaint of discrimination based upon a disability should utilize the University’s internal grievance procedures available under the University’s SPA Grievance Policy (SPA employees), Tenure and Promotion Policies, Regulations and Procedures (faculty grievances) or Employees Exempt from the State Personnel Act policy (EPA non-faculty grievances).

III. DEFINITIONS

  1. ADA shall mean Title II of the Americans with Disabilities Act.
  2. ADA Coordinator shall mean the individual who is responsible for managing the complaint process.
  3. Complainant shall mean the individual filing a complaint.
  4. Day(s) shall mean university day(s).
  5. FSUshall mean Fayetteville State University.
  6. Respondent shall mean the university official(s) (faculty/staff) who is accused of the alleged discriminatory action.
  7. Review Officer shall mean either the Provost/Vice Chancellor for Academic Affairs or the Vice Chancellor for Student Affairs who will review the formal complaint.
  8. Section 504 shall mean Section 504 of the Rehabilitation Act of 1973.

III. INFORMAL COMPLAINT PROCEDURES

An individual who wishes to complain about a matter involving FSU’s compliance with Section 504 and/or ADA may initially attempt to resolve the matter informally by communicating (orally or in writing) their concerns to the appropriate ADA/Section 504 Compliance Officer (“ADA Coordinator”) within five (5) days of the incident. (See the listing in Section V for the appropriate officer.)

Upon receipt of the complaint, the ADA Coordinator should attempt immediately to discover whether the allegations are true and in the case of valid complaints, should seek resolution by discussion, counseling, mediation or agreement of the parties or by administrative action. The nature of the complaint and any information obtained should be treated with the utmost confidentiality and with sensitivity to the issues involved.

The effort to resolve the complaint informally should be completed no less than thirty (30) days from the date the original complaint was received.

At the end of the efforts to resolve the complaint informally, the ADA Coordinator should record the complaint in a written statement identifying all parties, the complaint and the outcome of the informal review. Copies of the report should be provided to the Vice Chancellor for Student

Affairs (if a non-academic issue), the Provost/Vice Chancellor for Academic Affairs (if an academic issue) or the University Legal Counsel (if an employment and/other related issue).

IV. FORMAL COMPLAINT PROCEDURES

A. Filing A Formal Complaint

  1. An individual may file a formal complaint about a matter involving FSU’s compliance with Section 504 and/or ADA if:
    1. the individual does not want to utilize the informal complaint process; or,
    2. after utilizing the informal complaint process the parties were unable to resolve the complaint.
  2. A formal complaint should be, in writing and signed by the complainant or his or her representative. The complaint should contain:
    1. the name address, and a telephone number or TDD number of the person filing the complaint (“complainant”);
    2. a detailed description of the alleged discriminatory action(s);
    3. the date(s) the action(s) occurred; and,
    4. the name(s) of the party(ies) responsible (“respondent”)
  3. The complaint should be addressed to one of the following Review Officers:

    For Academic Related and Other Issues
    Provost/Vice Chancellor for Academic Affairs
    Fayetteville State University
    Fayetteville, North Carolina 28301

    For Student Non-Academic Issues:
    Vice Chancellor for Student Affairs
    Fayetteville State University
    Fayetteville, North Carolina 28301

  4. A formal complaint may be filed at any time within thirty (30) days from the date of the discriminatory practice or action. If a complainant has utilized the informal complaint process, a formal complaint must be filed no less than ten (10) days following the receipt of the ADA Coordinator’s report on the outcome of the informal process. There must be compelling reasons (good cause) for extending either the thirty (30) day or ten (10) day time limit for filing a complaint.

    If an individual needs assistance in writing the complaint and is unable to locate someone to assist, an ADA Coordinator will, upon request, assist in locating an advocate or representative to assist with writing the complaint.

B. Review of Complaint

All timely filed complaints which raise allegations relevant to the applicable laws and regulations will be thoroughly and impartially reviewed and investigated.

The complainant will be afforded the opportunity to meet with the appropriate Review Officer within ten (10) days of their complaint being received by the Review Officer. At the meeting the complainant will have the opportunity to submit evidence to the Review Officer.

The complaint will be resolved by the Review Officer based on his or her review and investigation and the report submitted by the ADA Coordinator. A written determination as to the validity of the complaint and a description of the resolution, if any, shall be issued by the Review Officer and a copy sent to the complainant and respondent no later than thirty (30) days after the complaint has been received by the Review Officer.

If extenuating circumstances dictate an extension of time, the Review Officer will notify the complainant and respondent in writing of the delay and the estimated time for completion.

The ADA Coordinator shall maintain all files and records of the complaint.

C. Appeal

The complainant may appeal the Review Officer’s decision if s/he is dissatisfied. Notice of appeal should be made in writing, addressed to the Chancellor and filed with the appropriate ADA Coordinator within ten (10) days after receipt of the Review Officer's decision. Written memoranda setting forth the basis of the appeal and reason(s) should be included with the notice of appeal.

The ADA Coordinator will provide a copy of the appeal to the respondent within five (5) days of his or her receipt of the appeal. The respondent will then have ten (10) days thereafter to respond, in writing, to the appeal. Any response should be filed with the ADA Coordinator, who will provide a copy of the response to the complainant.

Within five (5) days of his or her receipt of the response from the respondent, the ADA Coordinator will forward the entire record, to include the report of the informal process, the decision of the review officer, the complainant’s appeal and the response of the respondent to the Chancellor.

The appeal will be resolved by the Chancellor. The Chancellor will either personally review the matter or will designate another person to do so. Meetings with the complainant and/or the respondent, if any, will be at the discretion of the Chancellor or designee.

The Chancellor or designee normally will issue a written decision as to the appeal within fifteen (15) days after the due date of the appeal response. The decision will address and determine the validity of the appeal and its resolution, if any. Copies of the appeal decision will be sent to the complainant and the respondent. This appeal is the final recourse within the University.

If extenuating circumstances dictate an extension of time, the Chancellor or designee will notify the complainant and respondent in writing of the delay, and an estimate of the time frame for completion will be given.

The ADA Coordinator will maintain all files and records of the appeal.

Questions concerning these complaint procedures should be directed to the appropriate ADA Coordinator.

VI. ADA Coordinators

  1. Student Non-Academic/Academic Issues
    Director of the Center for Personal Development
    Spaulding/Infirmary Building, Room 155
    (910) 672-1222/1203

  2. Employee Non-Employment Related Issues
    Associate Vice Chancellor for Human Resources
    Office of Human Resources
    Carlton J. Barber Administration Building, Lower Level
    (910) 672-1146

  3. Other Issues
    General Counsel
    Carlton J. Barber Administration Building, 2nd Floor
    Office of Legal Affairs
    (910) 672-1145

403. Non-discrimination (Policy Statement)

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POLICY STATEMENT ON NON-DISCRIMINATION

Authority: Issued by the Chancellor. Changes or exceptions to administrative policies issued by the Chancellor may only be made by the Chancellor.

Category: General University Policies

Applies to: ●Administrators ●Faculty ●Staff ●Students

History:

  • Revised - February 3, 2015
  • Revised - September 1, 2009
  • Revised - June 1, 2009

Related Policies:

  • Americans with Disabilities Act Complaint Procedures
  • Code of Student Conduct
  • Sexual Harassment
  • Sexual Misconduct (applicable only to students)
  • Title IX Complaints
  • Unlawful Workplace Harassment (applicable only to SPA employees)
  • Equality of Opportunity in the University [The Code, Section 103]

Contact for Info:

  • General Counsel (910) 672-1145
  • Associate Vice Chancellor for Human Resources (910) 672-1146
  • Dean of Students (910) 672-1201

Fayetteville State University is committed to equality of educational opportunity and employment and does not discriminate against applicants, students, or employees based on race, color, national origin, religion, sex, gender identity, sexual orientation, age, disability, genetic information or veteran status. Moreover, Fayetteville State University values diversity and actively seeks to recruit talented students, faculty, and staff from diverse backgrounds.

Any individual with a concern, grievance or complaint of discrimination or retaliation should utilize the University's policies listed above or the applicable employment related grievance procedures for faculty and EPA non-faculty employees.

404. Prohibited Sexual Conduct

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FAYETTEVILLE STATE UNIVERSITY PROHIBITED SEXUAL CONDUCT

This Policy is effective for incidents occurring on or after August 14, 2020.

Authority: Issued by the Chancellor. Changes or exceptions to administrative policies issued by the Chancellor may only be made by the Chancellor.

Category: University-Wide

Applies to: ●Administrators ● Faculty ● Staff ● Students

History:

  • Revised – August 14, 2020
  • Revised – August 21, 2017
  • Revised – August 9, 2016
  • Revised – October 13, 2015
  • Revised – September 16, 2015
  • Revised – September 1, 2015
  • Revised – May 1, 2013
  • Approved – August 8, 2012

Related Policies/Regulations/Statutes

  • Title IX
  • Policy Statement on Non-Discrimination
  • Title IX Regulations [34 CFR § 106]
  • Family Educational Rights and Privacy (FERPA) [20 U.S.C. § 1232g]
  • Title IX, Education Amendments of 1972 [20 U.S.C. §§ 1681- 1688]
  • The Violence Against Women Act of 1994, as reauthorized in 2000, 2005, and 2013
  • Jeanne Clery Disclosure of Campus Security and Campus Crime Statistics Act [20 U.S.C. § 1092(f)]

Contact for Information:

  • Title IX Coordinator - (910) 672-2325
  • Office of the General Counsel - (910) 672-1145

I. PURPOSE

The purpose of this Prohibited Sexual Conduct Policy (Policy) is to set forth the commitment of Fayetteville State University (University) to maintaining a campus environment free of sexual harassment, sexual misconduct, relationship misconduct, and retaliation (Prohibited Sexual Conduct). The purpose of this Policy is also to inform the University community of the Title IX complaint resolution process involved with filing, investigating, and resolving reports/complaints of Prohibited Sexual Conduct.

Individuals who believe they have been subjected to Prohibited Sexual Conduct are encouraged to report the incident as outlined in this Policy. Upon receiving a report/complaint covered under this Policy, the University will respond promptly, equitably, and thoroughly. In addition, the University will take steps to prevent the recurrence of the conduct.

II. DEFINITIONS

Administrative Investigator is defined as an individual who will be responsible for investigating a Formal Complaint.

Complainant is defined as an individual who may have been the alleged victim of an act of Prohibited Sexual Conduct who is participating in or attempting to participate in the University’s Education Program or Activity.

Disciplinary Action is defined as the University Official’s imposed or recommended employment penalty issued in compliance with the University disciplinary policy (if any).

Education Program or Activity is defined as locations, events, or circumstances over which the University exercises substantial control over both the Respondent and the context in which the alleged Prohibited Sexual Conduct occurred.

Effective Consent is defined as informed, freely and actively given, mutually understandable words or actions, which indicate a willingness to participate in mutually agreed upon sexual activity. In the absence of mutually understandable words or actions it is the responsibility of the initiator, that is, the person who wants to engage in the specific sexual activity, to make sure that they have consent from their partner(s). Effective Consent is mutually understandable when a reasonable person would consider the words or actions of the parties to have manifested a mutually understandable agreement between them to do the same act, in the same way, at the same time, with each other. The following should also be considered in determining Effective Consent:

  • Effective Consent may never be given by minors (under the age of 16 in North Carolina) and mentally incapacitated persons.
  • Effective Consent may never be given by individuals who are incapacitated as a result of alcohol or other drugs (including if self-ingested) or who are unconscious or otherwise physically helpless. Incapacitation means being in a state where an individual lacks the capacity to appreciate the nature of giving consent to participate in sexual activity.
  • An individual may not engage in sexual activity with another who the individual knows, or should reasonably have known, is incapacitated as a result of alcohol or other drugs. The perspective of a reasonable person will be the basis for determining whether an individual should have known about the impact of the use of alcohol or drugs on another’s ability to give consent. Being intoxicated or high does not diminish an individual’s responsibility to obtain Effective Consent and is never an excuse for Sexual Misconduct.
  • Effective Consent may not be inferred from silence, passivity or lack of active resistance alone.
  • A current or previous dating or sexual relationship (or the existence of such a relationship with anyone else) may not, in itself, be taken to imply consent.
  • Effective Consent cannot be implied by attire or inferred from the buying of dinner or the spending of money on a date.
  • Effective Consent to one type of sexual act may not, in itself, be taken to imply Effective Consent to another type of sexual act.
  • Effective Consent expires. Effective Consent lasts for a reasonable time, depending on the circumstances.
  • Effective Consent which is obtained through the use of fraud or force, whether that force is physical force, threats, intimidation, or coercion, is ineffective consent. Intimidation or coercion is determined by reference to the reasonable perception of a person found in the same or similar circumstances.

Formal Complaint is defined as a written document meeting the requirements of this Policy which is filed by a Complainant with the Title IX Coordinator or signed by the Title IX Coordinator (in cases where a Complainant refuses to sign) alleging Prohibited Sexual Conduct against a Respondent and requesting that the University investigate the allegations.

Formal Resolution is defined as a Title IX complaint resolution involving a hearing which is held to determine responsibility.

Informal Resolution is defined as a variety of options for resolving a Formal Complaint which do not involve a hearing.

Prohibited Sexual Conduct is defined as Sexual Harassment, Sexual Misconduct, Relationship Misconduct, or Retaliation.

Referral Sanction is defined as a hearing body’s sanction of referring a finding of responsibility, along with any recommended Disciplinary Action, to the University Official for consideration of an appropriate Disciplinary Action.

Relationship Misconduct is defined as follows:

  • Dating Violence which is defined as violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim and where the existence of such a relationship shall be determined based on a consideration of the following factors:
    • The length of the relationship.
    • The type of relationship.
    • The frequency of interaction between people involved in the relationship.
  • Domestic Violence is defined as violence that may constitute a felony or misdemeanor crime committed by a current or former spouse or intimate partner of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of North Carolina, or by any other person against an adult or youth victim who is protected from that person’s acts under the domestic or family violence laws of North Carolina.
  • Stalking is defined as engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear for his or her safety or the safety of others or suffer substantial emotional distress. Allegations of Stalking are processed under this Policy only if the alleged Stalking behavior is based on sex. Non-sex-based Stalking may be addressed by other University policies.

Respondent is defined as an individual who has been accused of being the perpetrator of Prohibited Sexual Conduct.

Retaliation is defined as intimidation, threats, coercion, or discrimination against any individual for the purpose of interfering with any right or privilege secured by this Policy or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in a Title IX complaint resolution investigation, proceeding, or hearing.

Sexual Harassment is defined as follows:

  • an employee of the University conditioning the provision of an aid, benefit, or service of the University on an individual’s participation in unwelcome sexual conduct, or
  • unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the University’s Education Program or Activity, or
  • Sexual Misconduct or Relationship Misconduct.

Sexual Misconduct is defined as any sexual act directed against another person without the Effective Consent of the victim, including instances where the victim is incapable of giving Effective Consent. Such misconduct includes the following:

  • Fondling
    The touching of the private parts of another person for the purpose of sexual gratification, without the Effective Consent of the victim, including instances where the victim is incapable of giving Effective Consent because of his/her age or because of his/her temporary or permanent mental incapacity.
  • Incest
    Sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.
  • Rape
    The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without Effective Consent of the victim.
  • Statutory Rape
    Sexual intercourse with a person who is under the statutory age of being able to give Effective Consent.

Supportive Measures are defined as non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the Complainant or Respondent before or after the filing of a Formal Complaint or where no Formal Complaint has been filed.

University Official is defined as one of the following individuals (or their designees) who makes certain decisions as outlined in this Policy:

  • Athletic Director (if the Respondent is an employee of the Athletics Department);
  • Chancellor (if the Respondent is an employee who reports directly to the Chancellor);
  • Vice Chancellor for Student Affairs (if the Respondent is a student);
  • Dean (if the Respondent is a non-faculty employee of a unit supervised by the Dean or if the Respondent is a non-faculty employee reporting directly to the Dean);
  • General Counsel (if the Respondent is an employee of a unit supervised by the General Counsel or is a third-party who is not a student or employee);
  • Vice Chancellor (if the Respondent is an employee of a unit supervised by the Vice Chancellor or the Respondent reports directly to the Vice Chancellor); or
  • Vice Chancellor for Academic Affairs (if the Respondent is a Dean, the Respondent is an employee who reports directly to the Vice Chancellor for Academic Affairs, or the Respondent is a faculty member).

III. AMNESTY

The University will consider granting amnesty by not filing charges against a student Complainant who may have violated the University’s prohibition against visitation, having alcohol and drugs on campus, or under-age drinking at the same time of the incident when the Complainant became a victim.

IV. REPORTING INCIDENTS

The University encourages individuals to promptly inform the University of incidents of Prohibited Sexual Conduct. A report of an incident generally precedes the filing of a Formal Complaint. The length of time between an incident and making a report to the University will not affect the willingness of the University to investigate the allegations in a Formal Complaint or to provide Supportive Measures to a Complainant. However, acting promptly will significantly improve the ability of the University to conduct a full administrative investigation and enhance the effectiveness of any criminal investigation. Individuals are, therefore, strongly encouraged to bring incidents to the University’s attention immediately following the occurrence.

Individuals may contact any or all of the following offices/individuals:

  1. Reports to Confidential Resources
    The University’s only confidential resources are the staff and trained licensed counselors in the Counseling and Personal Development Center and the staff and medical personnel in Student Health Services. These individuals can provide confidential counseling, information, and support to students. These confidential resources will not share information about a student (including whether that student has received services) without the student’s express permission, unless there is a continuing threat of serious harm to the student or to others or there is a legal obligation to reveal such information (for example, suspected abuse or neglect of a minor).
  2. Reports to Law Enforcement
    The University encourages victims to inform law enforcement of incidents of Sexual Misconduct or Relationship Misconduct. If the incident occurred on University owned or leased property, the University Police is the appropriate agency with which to initiate a criminal complaint. Criminal incidents occurring on property not owned or leased by the University should be made to the appropriate city or county law enforcement agency. The University Police can assist with contacting the appropriate law enforcement agency.

    If information about Prohibited Sexual Conduct is provided to the University Police, the University Police shall notify the individual whether they should file a report with the University Title IX Coordinator. The University Police shall report incidents to the Title IX Coordinator.

  3. Reports to the Title IX Coordinator
    Reports of Prohibited Sexual Conduct may be made to the Title IX Coordinator. Reports may be made by a Complainant or an individual who has information related to such an incident as follows:

    Title IX Coordinator
    Barber Building, Room 211
    1200 Murchison Road
    Fayetteville, NC 28301
    (910) 672-2325
    TitleIX@uncfsu.edu
    www.uncfsu.edu/title-ix

    The University encourages Complainants or others to report alleged Prohibited Sexual Conduct promptly to the Title IX Coordinator (or Deputy) or other University administrators at the level of Director or Chair or above. These University administrators and Deputy Title IX Coordinators will be required to forward such reports to the Title IX Coordinator.

    The Title IX Coordinator oversees the University’s investigation into all Formal Complaints and coordinates the effective implementation of Supportive Measures. Inquiries about the application of Title IX may be made to the Title IX Coordinator or the Assistant Secretary of the United States Department of Education.

    A person may deliver a report, using the contact information listed above for the Title IX Coordinator, by any means that results in the Title IX Coordinator receiving the person’s verbal or written report. Such a report may be made at any time. During non-business hours, the report should be made using the telephone number or e-mail address listed above.

  4. Other University Employees
    Except for those identified in Section IV.A., University administrators at the level of director/department chair or above and Deputy Title IX Coordinators with knowledge of Prohibited Sexual Conduct shall report such incidents to the University Police (if a crime is involved) and the Title IX Coordinator. Other employees should also report their knowledge of such incidents to the Title IX Coordinator or University Police. No employee is authorized to investigate or attempt to resolve an incident.

V. INITIAL MEETING WITH TITLE IX COORDINATOR

Upon receipt of a report of Prohibited Sexual Conduct which may have impacted a campus community member, the Title IX Coordinator (or deputy) will conduct outreach to the parties. Such outreach will include attempting to provide the parties their options for Supportive Measures, alternative options for support, resources, and assistance, details about the University's process for resolving Prohibited Sexual Conduct complaints, and other University, administrative, civil, and criminal options. Generally, individuals will be given the opportunity to decide to engage in the University's Title IX complaint resolution process.

The Title IX Coordinator may also discuss the issuance of a “no-contact” order to a student Respondent in accordance with the Code of Student Conduct.

The Title IX Coordinator is obligated to report statistical, non-identifying data regarding Sexual Misconduct or Relationship Misconduct occurring on the campus to the University police.

VI. SUPPORTIVE MEASURES

The Title IX Coordinator is responsible for coordinating effective implementation of Supportive Measures.

Supportive Measures are designed to restore or preserve equal access to the University’s Education Program or Activity without unreasonably burdening the other party. Generally, these measures are meant to deter Prohibited Sexual Conduct for as long as needed.

Supportive Measures may include counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, campus escort services, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of the campus, and other similar measures. Supportive Measures may also include, but not be limited to actions taken against a Respondent such as counseling, warnings, and mutual restrictions on contact between the parties. The most common Supportive Measure is a no-contact order which directs parties from communicating with each other, themselves or through third-parties.

Supportive Measures are not available if an administrative investigation reveals that the Complainant has made false claims as described in this Policy.

The University shall maintain as confidential any Supportive Measures provided to the Complainant or Respondent, to the extent that maintaining such confidentiality would not impair the ability of the University to provide the Supportive Measures.

VII. INTERIM ACTIONS

  1. Emergency Actions
    The University may take one or more emergency actions against a Respondent in order to safeguard the University community at any time following an allegation of Prohibited Sexual Conduct. The University shall undertake an individualized safety and risk analysis to determine whether there is an immediate threat to the physical health or safety of any student or other individual arising from the allegations justifying removal from campus. Should a recommendation for removal be made, the Respondent will be removed and provided with written notice and an opportunity to challenge the decision immediately following the removal.

    Additionally, if the Respondent is a student, the University shall follow the interim suspension procedures outlined in the Code of Student Conduct when issuing an emergency action.
  2. Administrative Actions
    Nothing shall preclude a University Official (or designee) from placing a Respondent employee on administrative leave in accordance with the applicable employment policy during the pendency of an investigation, Informal Resolution or Formal Resolution process.

VIII. ADVISORS

Each party shall have the same opportunity to be accompanied during the administrative investigation, Informal Resolution, and Formal Resolution by an advisor of their choice, who may be, but is not required to be, an attorney. Advisors may attend meetings, interviews or the hearing, but are not allowed to actively participate except during an Informal Resolution and Formal Resolution proceedings. During the Formal Resolution, neither the Respondent nor the Complainant may cross-examine witnesses; thus, the advisor shall be responsible for cross- examining witnesses.

If a party does not have an advisor present during a Formal Resolution proceeding, the University will provide, without fee or charge to that party, an advisor of the University’s choice. The University provided advisor may be, but is not required to be, an attorney.

An advisor may be required to complete specific paperwork related to the advisor’s understanding of the advisor’s role in this process to include, but not be limited to, acknowledging that an advisor may not unreasonably delay, disrupt, or otherwise interfere with the meetings or other proceedings outlined in this Policy.

IX. FORMAL COMPLAINTS

When meeting with the individual reporting the incident, the Title IX Coordinator (or deputy) shall seek to determine if a Complainant wishes to file a Formal Complaint. Any Formal Complaint filed must be done so in writing. If the Complainant indicates an unwillingness to file a Formal Complaint, the Title IX Coordinator (or deputy) shall inform the Complainant that federal law requires the University to take reasonable action in response to the report of Prohibited Sexual Conduct.

  1. Filing a Formal Complaint
    If a Complainant files a Formal Complaint and the Formal Complaint is not dismissed, an administrative investigation into the alleged Prohibited Sexual Conduct shall be conducted.
    Upon receiving a Formal Complaint, the Title IX Coordinator shall notify in writing the Respondent and Complainant of the Formal Complaint. The written notice must, among other things, include a statement that the respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the Title IX complaint resolution process.
    If a Complainant refuses to file a Formal Complaint, the Title IX Coordinator (or deputy) may nonetheless proceed with an investigation.
  2. Dismissal of Formal Complaint
    If an automatic or discretionary dismissal occurs under this section of the Policy, the Title IX Coordinator shall promptly send written notice of the dismissal and the reason(s) for the dismissal simultaneously to the parties.
    Dismissal of a Formal Complaint may occur in the following instances:
    1. Automatic Dismissal
      If the conduct alleged in the Formal Complaint (a) would not constitute Prohibited Sexual Conduct even if proved, (b) did not occur in the University’s Education Program or Activity, or (c) did not occur against a person in the United States, then the University shall dismiss the Formal Complaint with regard to that particular conduct. Such a dismissal does not preclude action under another provision of the University’s policies.
    2. Discretionary Dismissal by the Title IX Coordinator
      The University may dismiss the Formal Complaint or any allegations contained in the Formal Complaint, if at any time during the Title IX complaint resolution process the following occurs:
      1. a Complainant notifies the Title IX Coordinator, in writing, that the Complainant would like to withdraw the Formal Complaint or any allegations contained in the Formal Complaint;
      2. the Respondent is no longer enrolled or employed by University; or
      3. specific circumstances prevent the University from gathering evidence sufficient to reach a determination as to the Formal Complaint or allegations contained within the Complaint.

X. INVESTIGATING FORMAL COMPLAINTS

A. Notice Requirement

Prior to beginning an administrative investigation into a Formal Complaint, the Title IX Coordinator shall notify the Complainant and Respondent of the investigation.

B. Administrative Investigation v. Criminal Investigation

If an Informal Resolution is not reached, is not appropriate, or is not pursued, the Administrative Investigator shall conduct a full, objective investigation into a Formal Complaint. An investigation into a Formal Complaint is considered an administrative investigation which is separate and distinct from a criminal investigation conducted by the University Police or another local law enforcement agency. The distinctions include, but are not limited to the following:

  1. An administrative investigation can be conducted prior to or simultaneous with a criminal investigation, but under no circumstances shall an Administrative Investigator wait for the conclusion of a criminal investigation or criminal proceeding to begin an investigation. However, an Administrative Investigator may temporarily delay the fact-finding portion of the investigation while the University Police gathers its evidence, after notifying the parties of the reason for the delay. Once notified that the University Police has completed the gathering of its evidence (not the ultimate outcome of the criminal investigation or the filing of any criminal charges), the Administrative Investigator shall promptly resume and complete the fact-finding portion of the administrative investigation.
  2. Information obtained through a criminal investigation may be used by University decision-makers and the Administrative Investigator for consideration in the administrative investigation, Informal Resolution, Formal Resolution, and Disciplinary Action process. Information obtained by the Administrative Investigator may not be provided to a law enforcement agency unless obtained in accordance with the Family Educational Rights and Privacy Act (FERPA).
  3. Because the standards for finding a violation of criminal law are different from the standards for finding a violation of a University policy, criminal investigative reports or results are not determinative of whether Prohibited Sexual Conduct, for purposes of this Policy, has occurred. Conduct may constitute Prohibited Sexual Conduct under this Policy even if a law enforcement agency lacks sufficient evidence of a crime and therefore declines to prosecute.

C. Administrative Investigation Core Principles

  1. General
    During the administrative investigation, both parties shall be provided with equal opportunity to present relevant facts, expert witnesses, and evidence, and the Administrative Investigator shall consider all such evidence.
  2. Meetings
    The Administrative Investigator shall provide written notice to parties (and their advisors if any) and witnesses of administrative investigation interviews, or other meetings, with sufficient time for the party to prepare to participate. The Administrative Investigator is responsible for keeping an accurate record of all meetings and interviews.
  3. Investigative Report
    Following the completion of the administrative investigation, the Administrative Investigator shall prepare a written investigative report. Prior to finalizing the report, the Administrative Investigator shall send to the Complainant, the Respondent and their advisors, if any the relevant and directly-related evidence in an electronic format or as a hard copy. The parties shall have at least ten (10) calendar days to submit a written response. The Administrative Investigator will consider the written response(s) prior to finalizing the investigative report.
    Following the Administrative Investigator’s consideration of any written responses received from the parties, the Administrative Investigator shall provide the Complainant and the Respondent with a final written report that fairly summarizes the relevant evidence.
    Prior to issuing the final investigative report to the Complainant and Respondent, the Title IX Coordinator shall consult with the Office of General Counsel.
    The final report that has not been dismissed for the employee Respondent shall be forwarded to the hearing body. The final report that has not been dismissed for the student Respondent shall be forwarded to the Director of Student Conduct who will manage the formal charge and hearing process.

XI. INFORMAL RESOLUTION

At the discretion of the Title IX Coordinator and with written consent of the Complainant and Respondent, the Title IX Coordinator (or deputy) may utilize (an) informal approach(es) to resolving a Formal Complaint in lieu of or in conjunction with the investigation process. These opportunities for Informal Resolution may continue until a complaint is resolved under a Formal Resolution. Mediations, written pleas of responsibility, or other Informal Resolution between parties may not occur unless a Formal Complaint is filed and not dismissed by the University.

The Title IX Coordinator must provide to the parties a written notice of the option to utilize an Informal Resolution.

At any time prior to resolution of a complaint, the University, the Complainant or Respondent has the right to withdraw from the Informal Resolution process and resume the Title IX complaint resolution with respect to the Formal Complaint.

The University will not offer or facilitate an Informal Resolution to resolve allegations that an employee engaged in Prohibited Sexual Conduct with a student.

In the event that an Informal Resolution is not reached, is not appropriate, or is not pursued, the University or the Complainant will complete the Formal Resolution process.

If the parties agree in writing, the conclusion of the Informal Resolution process constitutes the conclusion of the Title IX complaint resolution process.

XII. FORMAL RESOLUTION—HEARING

  1. Generally
    Unless the Formal Complaint is dismissed or the parties agree in writing to an Informal Resolution, a hearing shall be held to determine responsibility.
    No party, advisor, witness, or other individual may record the hearing.
  2. Available Evidence
    Any evidence obtained as part of the administrative investigation that is directly related to the allegations raised in a Formal Complaint, including the evidence upon which the University does not intend to rely in reaching a determination regarding responsibility and all inculpatory or exculpatory evidence, will be available to all parties and their advisors at the hearing. All parties will have an equal opportunity to refer to such evidence during the hearing, including for purposes of cross-examination.
  3. Hearing Body Determination
    After consideration of the evidence presented at the hearing, the hearing body shall determine responsibility. Such determination shall be made based upon the preponderance of the evidence standard.
    The determination regarding responsibility becomes final either on the date the University provides the parties with the written determination of the result of the appeal, if an appeal is filed, or if an appeal is not filed, the date on which an appeal would no longer be considered timely. This constitutes the conclusion of the Title IX complaint resolution process.
    The hearing body shall notify the Complainant, Respondent, and appropriate University Official of the decision and Referral Sanction, along with any recommended Disciplinary Action.

XIII. REMEDIES

After considering any recommendation by the hearing body, the Title IX Coordinator may conclude that certain remedies are necessary to restore or preserve equal access to the University’s Education Program or Activity. The Title IX Coordinator will forward such recommendations to University Officials for their effective implementation. Remedies may include Supportive Measures. Remedies need not avoid burdening the Respondent. The Title IX Coordinator is responsible for effective implementation of any remedies.

Remedies shall not be reviewed, grieved, or appealed except as described in the Policy.

XIV. STUDENT SANCTIONS

Sanctions will be imposed against a student Respondent as dictated by the Code of Student Conduct.

XV. EMPLOYEE REFERRAL SANCTIONS AND DISCIPLINARY ACTIONS

  1. Referral Sanction
    The sanction resulting from a hearing body finding of responsibility shall be a Referral Sanction.
  2. Disciplinary Action
    Disciplinary Actions that may be considered following a Title IX complaint resolution process shall be governed by the applicable University policies that pertain to the affected employee. The University Official shall not consider Disciplinary Action until a decision is made on a Title IX appeal or a determination is made that a Title IX appeal was not filed within 5 calendar days of receipt of the Title IX hearing body’s written determination. Disciplinary Actions are not a part of the Title IX complaint resolution process.
    Verbal or documented counseling and written warnings shall not be reviewed, grieved, or appealed.
    1. SHRA Employees
      If Disciplinary Action is imposed, an SHRA employee may file a grievance in accordance with the SHRA Grievance Policy; however, an appeal from a Title IX determination regarding responsibility or from dismissal of a formal Title IX complaint shall be resolved within the Title IX complaint resolution process and shall not constitute a grievable issue under the SHRA Grievance Policy.
      In grievances involving Disciplinary Actions imposed based upon the Title IX complaint resolution process, the hearing panel may receive as evidence the Title IX record. Any Title IX determination(s) of responsibility is not subject to review. The grievance review shall be limited to the question of whether the Disciplinary Action is supported by just cause.
    2. Faculty
      In proceedings under Section 603 of The Code involving imposition of serious sanctions based upon the Title IX complaint resolution process, the Title IX record may be included as evidence of the grounds for the Disciplinary Action; however, the Title IX determination(s) of responsibility is not subject to review. The review shall be limited to the question of whether the recommended Disciplinary Action is supported by clear and convincing evidence.
    3. EHRA Employees
      Any appealable issue within the Title IX complaint resolution process shall be resolved through the Title IX complaint resolution process. Such appealable issues, and Title IX determinations of responsibility, are not grievable under Section 611 of The Code.
      Nothing shall interfere with the University’s ability to discontinue an at-will employment.

XVI. APPEALS

A. Employee Respondents

The Complainant and employee Respondent may appeal in writing to the University Official the following:

  • the hearing body’s decision regarding responsibility or
  • a dismissal described under Section IX.B. of the Policy.

The written statement must include a detailed rationale for any bases of appeal and be delivered to the University Official within 5 calendar days of receipt of the hearing body’s written determination. Permissible bases for appeal are limited to procedural irregularity that affected the outcome of the matter, newly discovered evidence that could affect the outcome of the matter, and/or that any Title IX personnel, investigator, hearing body, or decision-maker had a conflict of interest or bias that affected the outcome of the matter. The decision of the University Official (or designee) shall be final.

Appeals of Disciplinary Actions shall be handled in accordance with the applicable disciplinary policy (if any) and are not a part of the Title IX complaint resolution process.

B. Student Respondents

  1. Code of Student Conduct-Appeal Responsibility Decision and Sanction

    Respondents and Complainants may appeal in accordance with the Code of Student Conduct.

  2. Appeal of a Dismissal

    The Complainant and Respondent may appeal in writing, to the University Official’s designee, a dismissal described under Section IX.B. of the Policy. The written statement must include a detailed rationale for any bases of appeal and be delivered to the University Official’s designee within 5 calendar days of receipt of the dismissal notice.

    Permissible bases for appeal are limited to procedural irregularity that affected the outcome of the matter, newly discovered evidence that could affect the outcome of the matter, and/or that any Title IX personnel, investigator, hearing body, or decision-maker had a conflict of interest or bias that affected the outcome of the matter. In consultation with the Office of General Counsel, the University Official shall appoint a designee to make a determination about the appeal. The decision of the University Official’s designee shall be final.

XVII. CONFIDENTIALITY

The University shall respect the privacy of students, employees, and individuals reporting or Respondents to the extent reasonably possible. Confidentiality may not be maintained in circumstances where the law requires disclosure of information or when disclosure required by the University outweighs protecting the rights of others.

Anonymous and non-anonymous reports are acceptable for informational purposes and to include in statistics, even if the victim does not want to pursue criminal charges against the alleged perpetrator or if the report is not made by the victim. The reporter is encouraged to initially provide as much information and evidence as possible, even if s/he does not wish to pursue criminal charges, in the event that the victim later decides to pursue criminal charges. Regardless of whether the victim files charges, the University is under an obligation to pursue steps to limit the effects to the Complainant and campus of any Prohibited Sexual Conduct and to prevent recurrence.

Where a reporting party requests that their name or other identifiable information not be shared with the Respondent or that there be no investigation or adjudication, the University, will balance this request with several factors to determine whether it will move forward with the case. Some of the factors in reaching a determination about whether the request can be honored may include, but not be limited to the following:

  • the nature and scope of the alleged conduct, including whether the reported misconduct involves the use of a weapon, violence, or the threats of such;
  • the risk posed to any individual or to the campus community by not proceeding;
  • whether there have been other reports of misconduct committed by Respondent;
  • the Complainant’s wish to pursue the University Title IX process; or
  • whether the University is required by law to release information.

The University’s ability to fully investigate and respond to a report may be limited if the reporting party requests that their name not be disclosed to the Respondent or declines to participate in an investigation.

XVIII. FALSE CLAIMS

An individual who knowingly makes materially false allegations or who knowingly provides materially false information in an investigation or proceeding, shall be subject to disciplinary action, up to and including dismissal, expulsion, or discharge.

XIX. RECORDS

The Title IX Coordinator shall maintain all records related to training materials, investigations, Supportive Measures, remedies, Informal Resolution, Title IX complaint resolution, discipline or other punitive action, or appeal related to allegations of Prohibited Sexual Conduct until seven (7) years after the conclusion of the Title IX complaint resolution.

XX. CONFLICT OF INTEREST/BIAS

Any individual designated as an advisor may not have a conflict-of-interest. Any person designated as a Title IX Coordinator (or deputy), Administrative Investigator, University Official (or designee), Title IX complaint resolution decision-maker or hearing panel/body member, or any person the University designates to facilitate an Informal Resolution may not have a conflict-of-interest or bias for or against a Complainant or Respondent generally or an individual Complainant or Respondent.

XXI. PROCEDURES

The University shall implement procedures to carry-out the functions of this Policy, including, but not limited to, procedures for notice, investigations, Informal Resolution, and Formal Resolution. All such procedures shall comply with requirements of the Title IX Regulations [34 CFR § 106].

405. Title IX

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TITLE IX

Authority: Issued by the Chancellor. Changes or exceptions to administrative policies issued by the Chancellor may only be made by the Chancellor.

Category: University-Wide

Applies to: ●Administrators ●Faculty ●Staff ●Students

History:

  • Revised - October 19, 2020
  • Revised - September 28, 2015
  • Approved - August 8, 2012

Related Authority:

  • Prohibited Sexual Conduct
  • Non-Discrimination Policy Statement
  • Unlawful Workplace Harassment Policy for SHRA Employees
  • Title IX, Education Amendments of 1972 [Title 20 U.S.C. Sections 1681-1688]
  • Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance [34 CFR 160]

Contact for Information:

  • Title IX Coordinator (910) 672-2325
  • Office of the General Counsel (910) 672-1145

I. INTRODUCTION

Title IX of the Education Amendments of 1972 (Title IX) is a comprehensive federal law that prohibits educational institutions from discriminating on the basis of sex in educational programs or activities. Fayetteville State University (University) adheres to Title IX and does not discriminate on the basis of sex in its education programs or activities, to include admissions and employment.

Title IX also requires such institutions to adopt and publish grievance procedures to resolve student and employee complaints alleging discrimination prohibited by Title IX. To ensure compliance with Title IX and in an effort to ensure that employees and students receive prompt and equitable resolution of complaints involving sex discrimination, the University has implemented policies and procedures that address complaints of sex discrimination. This document summarizes those policies and procedures applicable to Title IX.

Inquiries about the application of Title IX may be referred to the University's Title IX Coordinator.

II. TITLE IX COORDINATOR

The University's Title IX Coordinator has ultimate oversight responsibility for coordinating the University's Title IX compliance efforts. This includes but is not limited to conducting and/or coordinating investigations of complaints (i.e., sexual harassment) received pursuant to Title IX; ensuring a fair and neutral process for all parties; and monitoring all aspects of the University's Title IX compliance program. Individuals with questions or concerns about Title IX, and/or those who wish to file a complaint, may contact the Title IX Coordinator. Contact information for the Title IX Coordinator is as follows:

Title IX Coordinator
Fayetteville State University
1200 Murchison Rd.
Fayetteville, NC 28301
Barber Building, Room 242 (910) 672-2325
TitleIX@uncfsu.edu

III. COMPLAINTS RELATED TO EMPLOYMENT, BENEFITS AND SERVICES

The University is committed to equality of educational opportunity and employment and does not discriminate based upon sex in its programs and activities. Thus, these complaint procedures are to be used to address complaints made by students or employees who believe they have been discriminated against because of their sex in matters involving employment, benefits and services. For employees, such may include, but not be limited to issues involving recruitment and hiring, rate of compensation, benefits, and training. For students, such may include, but not be limited to issues involving academic and academic support programs, financial aid, housing and athletics.

A student or employee who believes that s/he has been discriminated against as it relates to employment, aids, benefits or services should consult with the Title IX Coordinator.

IV. COMPLAINTS RELATED TO SEXUAL HARASSMENT, SEXUAL ASSAULT, DATING VIOLENCE, DOMESTIC VIOLENCE, AND STALKING

Individuals who believe they have been the victims of sexual harassment, sexual harassment, dating violence, domestic violence, and/or stalking while participating in a University program or activity should consult the University's Prohibited Sexual Conduct Policy. Such actions potentially violate the University Title IX Policy and complaints shall be reviewed, investigated and resolved in accordance with the Prohibited Sexual Conduct Policy.

V. CONFIDENTIALITY

The University recognizes the importance of confidentiality. The Title IX Coordinator and others involved in the investigatory process shall respect the confidentiality and privacy of individuals reporting or subject to allegations of sex discrimination to the extent required by North Carolina and federal law. Confidentiality may not be able to be maintained in circumstances where the law requires disclosure of information or when disclosure by the University outweighs privacy concerns.

VI. RETALIATION

Retaliation against an individual who reports or complains of sexual discrimination or who provides information in such investigations or proceedings is prohibited. Alleged retaliation shall be subject to investigation and may result in disciplinary action.

VII. FALSE CLAIMS

An individual who knowingly makes false allegations of sex discrimination, or who knowingly provides false information in a sex discrimination investigation or proceeding, shall be subject to disciplinary action.