I. Introduction

Gardner-Webb University is committed to maintaining a safe and healthy learning, living, and working environment in which no member of the Gardner-Webb community is, on the basis of sex, excluded from participation in, denied the benefits of, or subjected to discrimination in any University program or activity. Sexual Misconduct that denies or limits a University community member’s ability to participate in or benefit from the University’s programs or activities is prohibited under federal law (referred to as “Title IX”) and this Policy. Under this Policy, the term “Sexual Misconduct” includes Dating Violence, Domestic Violence, Intimate Partner Violence, Non-Consensual Sexual Contact, Sexual Assault, Sexual Exploitation, Sexual Harassment, Sexual Violence, and Stalking.

In support of the overall goals of Gardner-Webb University, the purpose of the Sexual Misconduct Policy is to maintain a campus living, learning and working environment that supports the University’s educational mission, maintains respect and dignity for members of the Gardner-Webb community, and protects the rights of all members of the community. This Sexual Misconduct Policy is intended to foster personal responsibility, high ethical values, individual accountability and civility toward others. The policy applies to all members of the Gardner-Webb community.

Gardner-Webb is also committed to fostering a campus community that promotes prompt reporting of all types of Sexual Misconduct and timely and fair resolution of Complaints of Sexual Misconduct. In furtherance of this commitment, this Policy sets forth the available resources, describes prohibited conduct, and establishes procedures for responding to Complaints of Sexual Misconduct.

Gardner-Webb University’s publications, including, but not limited to, its catalogs, handbooks, policies, procedures, website, guidelines, communications, and social media posts do not constitute a contractual agreement between the University and any person or entity. The University reserves the right to unilaterally modify all such publications and/or modify its operating practices without prior notice.

This Policy applies to: (1) reports of Sexual Misconduct as defined in this Policy; (2) that occurred in connection with any Gardner-Webb Educational Program or Activity; and (3) that occurred against a person in the United States. The source of a report of Sexual Misconduct does not matter: The University Title IX Coordinator will investigate reports of Sexual Misconduct not only from Complainants, but also from third parties, including, but not limited to, parents, faculty, staff, students, and law enforcement.

While Complaints of Sexual Misconduct are most often brought against other students, faculty or staff, the University may investigate and pursue Complaints of Sexual Misconduct within its jurisdiction against Respondents who are third parties, such as non-employees and students of other schools. In all cases, the University will make available Supportive Measures and take appropriate action to provide an educational environment that does not deny or limit the student or employee’s ability to participate in or benefit from the University’s programs or activities. If a complaint is brought against a student of another school the other school may be notified of the Complaint.

To the extent that a reported incident of Sexual Misconduct falls outside this Policy, the University will address it under other applicable University policies, including, but not limited to, the Code of Student Conduct, the Personnel Policy Manual, and the Faculty Handbook. Such violations of other applicable policies could result in sanctions, up to and including expulsion (students) and termination (employees).

The University encourages Complainants to pursue all remedies available to them, including reporting incidents of potential criminal conduct to law enforcement. If the conduct in question is alleged to be a violation of both this Policy and the law, the University will proceed with its normal process under this Policy, regardless of action or inaction by outside authorities. Decisions made or sanctions imposed under this Policy are not subject to change because criminal or civil charges arising from the same conduct are dismissed, reduced, or rejected in favor of or against a Respondent.

A Complaint of Sexual Misconduct may be filed at any time, regardless of the length of time between the alleged Sexual Misconduct and the filing of the Complaint. However, Gardner-Webb strongly encourages individuals to file Complaints promptly in order to preserve evidence for a potential legal or disciplinary proceeding. A delay in filing a Complaint may compromise the subsequent investigation and may provide cause for the University to dismiss a Complaint due lack of access to evidence, witnesses no longer being available, or other reasons indicating that the investigation will be substantially compromised due lapse of time.

  1. Title IX Coordinator
    Lesley Villarose serves at the Interim Title IX Coordinator and oversees implementation of this policy. Her contact information is as follows:
    Mrs. Lesley Villarose, Vice President of Student Development and Dean of Students,
    Interim Title IX Coordinator and ADA Coordinator
    Gardner-Webb University
    Tucker Student Center #243
    Boiling Springs, NC 28017
    (704) 406-2081
    [email protected]
  2. The Title IX Coordinator’s responsibilities include:
    1. Coordinating the University’s compliance with Title IX;
    2. Overseeing the University’s response to reports of alleged violations of Gardner-Webb ’s policies regarding Sexual Misconduct by students, staff, faculty, and third parties;
    3. Coordinating training, prevention and education efforts with regard to Sexual Misconduct;
    4. Coordinating periodic reviews of climate and culture with regard to Sexual Misconduct;
    5. Identifying and addressing any patterns or systemic problems in the administration or effectiveness of this Policy;
    6. Being knowledgeable of and trained in University policies and procedures and relevant state and federal laws regarding Sexual Misconduct;
    7. Advising individuals involved in the Title IX process, including Complainants, Respondents, witnesses, and third parties about the courses of action available for reporting and responding to Sexual Misconduct at the University;
    8. Coordinating the effective implementation of Supportive Measures;
    9. When appropriate, preparing and filing a Formal Complaint; and
    10. Investigating complaints of Sexual Misconduct as part of the process set forth in this Policy.
  3. Title IX Liaisons
    Gardner-Webb has appointed Title IX Liaisons for the various academic and administrative areas of the University. Title IX Liaison responsibilities include:

    1. When there is a Title IX complaint that involves one or more persons within their respective areas of responsibility, facilitating the Title IX process by acting as a point of contact between the Title IX Coordinator and their areas of responsibility, to include, as requested, insights into policies, procedures, academic requirements, and methodologies;
    2. Providing information to individuals in their areas of responsibility about the University’s Title IX process; and
    3. Receiving appropriate training and being available to serve in the Pool as Investigators, Advisors, Hearing Board members, and/or Appeal Panel members. (Excluding cases where they have previously been involved, including in the manner described in subparagraph a. above).
  4. Gardner-Webb’s Title IX Liaisons and their areas of responsibility are as follows:

    Athletics
    Mrs. Pam Scruggs
    Associate Athletics Director and Senior Women’s Administrator
    Lutz-Yelton Convocation Center
    (704) 406-4341
    [email protected]

    Traditional Undergraduate programs
    Dr. Carmen Butler
    Dean of Student Success
    Tucker Student Center
    (704) 406-3980
    [email protected]

    Degree Completion programs
    Dr. Elizabeth Pack
    Director of the Degree Completion Program
    Graduate House
    (704) 406-2173
    [email protected]

    Graduate programs
    Dr. Sydney Brown
    Dean of Graduate Studies
    Graduate House
    (704) 406-3019
    [email protected]

  5. The Title IX Coordinators, Investigators, Liaisons, Advisors, Hearing Board members, Appeal Panel members, and other individuals involved in the processes related to alleged violations of this Policy will receive annual training designed to generally familiarize them with Title IX and this Policy. In addition, they will receive annual training designed to familiarize them with the responsibilities of their particular roles in this process, including, as applicable, the definition of Sexual Misconduct; conducting Gardner-Webb ’s informal resolution process; discernment of relevant evidence; conducting thorough and unbiased investigations of alleged Sexual Misconduct; preparing an investigative report that fairly summarizes relevant evidence; the need for impartiality (including avoiding prejudgment of the facts, conflicts of interest, and bias); and issues of relevance of questions and evidence, including training on the limited relevance of evidence about the Complainant’s sexual predisposition or prior sexual behavior.
  6. Inquiries or Complaints concerning the application of Title IX should be referred to Gardner-Webb ’s Title IX Coordinator:

    Mrs. Lesley Villarose, Vice President of Student Development and Dean of Students,
    Interim Title IX Coordinator and ADA Coordinator
    Gardner-Webb University
    Tucker Student Center #243
    Boiling Springs, NC 28017
    (704) 406-2081
    [email protected]

    Inquiries and Complaints may also be made to the U.S. Department of Education’s Office for Civil Rights:

    Office for Civil Rights North Carolina
    U.S. Department of Education
    400 Maryland Avenue, SW
    Washington, D.C. 20202-1100
    Telephone: 800-421-3481
    FAX: 202-453-6012; TDD: 877-521-2172
    Email: OCR @ed.gov

  1. Non-Discrimination

    Gardner-Webb University complies with all applicable non-discrimination laws and is committed to providing a working, living and learning environment free from illegal discrimination and harassment based on race, color, religion, sex, age, disability, military status, veteran status, or any other basis prohibited by law.

  2. Sexual Misconduct

    Gardner-Webb University is committed to providing a working, living and learning environment free of Sexual Misconduct. Gardner-Webb prohibits Sexual Misconduct in all of its working, living and learning environments. Sexual Misconduct violates an individual’s legal rights and personal dignity. Gardner-Webb considers Sexual Misconduct to be a serious offense.

  3. Retaliation

    Gardner-Webb University strictly prohibits retaliation against any person acting in good faith who (a) reports an allegation or incident of potential Sexual Misconduct; (b) or files, testifies, assists or participates in any manner in any investigation or other process or proceeding involving alleged Sexual Misconduct.

    Any person who retaliates against a person who has made a Complaint/report or who has cooperated in any activity or proceeding connected with investigation and/or hearing is in violation of Gardner-Webb policy and will be subject to disciplinary action up to and including expulsion (students) or termination (employees). Any person who believes that they have been retaliated against in violation of this Policy should immediately contact the Title IX Coordinator. An allegation of retaliation may be investigated and adjudicated as an additional Complaint under this Policy or under other applicable University policy, including, but not limited to, the Code of Student Conduct, Faculty Handbook or Personnel Policy Manual

All members of the Gardner-Webb community are strongly encouraged to promptly report information regarding any incident of Sexual Misconduct directly to the Title IX Coordinator. The University cannot take appropriate action unless incidents are reported to the Title IX Coordinator.

Gardner-Webb’s Responsible Employees are all faculty and staff, with the exception of the Confidential Resources listed below. All Responsible Employees must immediately report to the Title IX Coordinator all alleged incidents of Sexual Misconduct of which they become aware. If an employee is uncertain whether a reported incident falls within this Policy, the employee should still report it to the Title IX Coordinator, who will determine whether this Policy applies.

  1. Complainant. A Complainant is an individual who is alleged to be the victim of conduct that could constitute Sexual Misconduct or a violation of Title IX.
  2. Complaint. An oral or written allegation of Sexual Misconduct by a Complainant that is reported to or filed with the University Title IX Coordinator, but which does not ask the University to investigate the allegation of Sexual Misconduct. A Complaint becomes a Formal Complaint if the Complainant or the Title IX Coordinator also ask the University in writing to investigate the allegation of Sexual Misconduct.
  3. Campus Community/University Community/Gardner-Webb Community. Gardner-Webb students, faculty, and staff. The word “employee” means faculty and staff.
  4. Consent. Consent is a knowing, voluntary, and mutual decision among 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.

    The following principles are reflected in the definition of Consent:

    1. 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.
    2. Consent is required regardless of whether the person initiating the act is under the influence of drugs and/or alcohol.
    3. Consent may be initially given but withdrawn at any time.
    4. Consent cannot be given when a person is incapacitated, which occurs when an individual lacks the ability to knowingly choose to participate in sexual activity. Incapacitation can occur in a multitude of ways, including, but not limited to being unconscious for any reason, being asleep, being intoxicated, being under the influence of drugs or other substances, being involuntarily restrained, or if an individual otherwise cannot knowingly consent.
    5. Consent cannot be given when it is the result of any coercion, intimidation, force, or threat of harm.
    6. When consent is withdrawn or can no longer be given, sexual activity must stop.
  5. Domestic Violence. Felony or Misdemeanor crimes of violence committed by a current or former 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 the jurisdiction in which the crime allegedly occurred, 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 the jurisdiction in which the incident allegedly occurred.
  6. Dating Violence. Violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim. Dating Violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse.
  7. FERPA. The Family Education Rights and Privacy Act (“FERPA”) is a federal law that, subject to stated exceptions, protects the privacy of student education records. FERPA grants to students or eligible parents the right to access, inspect, and review education records, the right to challenge the content of education records, and the right to consent to the disclosure of otherwise private education records.
  8. Formal Complaint. A Formal Complaint is a document filed and signed by a Complainant or the Title IX Coordinator alleging Sexual Misconduct against a Respondent who it is alleged has acted in violation of Title IX and/or this Policy and requesting that the University investigate the allegation of Sexual Misconduct. At the time of filing a Formal Complaint, a Complainant must be participating in or attempting to participate in the education program or activity of Gardner-Webb.
  9. Gardner-Webb Educational Program or Activity: All of the University’s educational programs or activities in the United States, whether such programs or activities occur on-campus or at off-campus locations, including in the following settings:
    1. Buildings or other locations that are part of the University’s operations and/or educational offerings, whether on or off-campus, including remote learning platforms, residence life activities, and all campus grounds, as well as grounds and buildings that are located off campus if they are owned, leased, or controlled by the University;
    2. Off-campus settings if the University exercised substantial control over the Respondent and the context in which the alleged Sexual Misconduct occurred (e.g., a University field trip or team members at an off-campus athletics event); and
    3. Off-campus buildings owned or controlled by a student organization officially recognized by the University, such as a building owned by a recognized fraternity or sorority.
  10. Incapacitation. Incapacitation refers to the physical and/or mental inability to make informed, rational judgments. States of incapacitation include, but are not limited to, sleep, blackouts, and flashbacks. Where alcohol (or another drug) is involved, incapacitation is determined by how the alcohol (or other drug) consumed impacts a person’s decision-making capacity, awareness of consequences, and ability to make informed judgments. An individual violates this Policy when they engage in sexual activity with another person when they knew, or reasonably should have known, that the other person was incapacitated.
  11. Intimate Partner Violence. Intimate partner violence is the use of physical, sexual or emotional abuse or threats towards another who is or has been involved in a sexual, dating, domestic or other intimate relationship with the Respondent. Intimate partner violence may encompass a broad range of behaviors including, but not limited to, threats of and actual physical violence, emotional violence, attempts to control another, and economic abuse. Such conduct may be intentional or the result of a reckless disregard for the safety, health, or welfare of another person.
  12. Investigation Record. The Investigation Record includes the Formal Complaint and/or Complaint, the Investigation Report prepared by the Investigator, evidence collected by the Investigator, and interview transcripts of the Complainant, Respondent and witnesses or others as available, which may be redacted by the Title IX Coordinator for compliance with this Policy and applicable law.
  13. Investigator. Investigator is a neutral fact-finder who investigates a Complaint.
  14. Non-Consensual Sexual Contact. Non-Consensual Sexual Contact is defined as any sexual touching, however slight, by a person upon someone else, regardless of gender, that is without their consent, and/or by force. Non-consensual sexual contact includes the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.
  15. Personally Identifiable Information. Personally Identifiable Information, as defined by FERPA, includes but is not limited to: (i) a Student’s name; (ii) the name of a Student’s parent/s or other family members; (iii) the address of a Student or a Student’s family; (iv) a personal identifier, such as a Student’s social security number, student number, or biometric record; (v) photograph; (vi) telephone number; (vii) other indirect identifiers, such as a Student’s date of birth, place of birth, or mother’s maiden name; (viii) other information that, alone or in combination, is linked or linkable to a specific Student and that would allow a reasonable person in the Gardner-Webb community, who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty; and (ix) information requested by a person whom the University reasonably believes knows the identity of the Student to whom the education record relates. The University may produce information referred to as “Directory Information” on the University Registrar website or pursuant to other exceptions set forth in FERPA.
  16. Pool: The group of faculty and staff who have been selected by the Title IX Coordinator and trained to serve one or more roles in the Formal Complaint process, such as Investigators, Advisors, Hearing Board members, and/or Appeal Panel members.
  17. Preponderance of Evidence Standard. The Preponderance of Evidence Standard is a burden of proof that means that the credible evidence, considered in its entirety, indicates that it is more likely than not that something happened or did not happen, as the case may be. An example directly relevant to this Policy is the question of whether, by a preponderance of the evidence, the Respondent engaged in behavior that was in violation of this Policy.
  18. Reporting Individual. A Reporting Individual is an individual who reports a possible violation of Title IX and/or an incident of Sexual Misconduct prohibited by Gardner-Webb policy. A Reporting Individual may be someone other than the Complainant, such as a witness, family member or other third party.
  19. Respondent. A Respondent is an individual against whom a Complaint or Formal Complaint has been filed.
  20. Retaliation. Retaliation means acts or words that are intended to pressure any individual to participate, not participate, or provide false or misleading information in connection with any activity or proceeding under this Policy. Retaliation may include, but is not limited to, intimidation, actual or threatened abuse or violence, coercion, other forms of harassment, and/or making false statements about another person in writing or verbally with intent to harm their reputation.
  21. Sex. As used in this Policy, the word “sex” includes gender, sexual preference, and transgender status and gender expression. Therefore, not only is it unlawful under Title IX to discriminate against someone because they are a man or a woman, it is unlawful to discriminate against someone based on sexual preference or because they have a gender identity or gender expression that is different from their biological sex. Bostock v. Clayton County, (U.S. Sup. Ct. 2019); Gavin Grimm v. Gloucester County School Bd., (U.S. 4th Cir. Ct. App. 2020)
  22. Sexual Assault. Sexual Assault means any actual, attempted or threatened sexual contact with another person without that person’s Consent. Sexual Assault includes but is not limited to: (i) rape and attempted rape, whether oral, anal or vaginal; (ii) intentional and unwelcome sexual touching or fondling, however slight, using any body part or any object, by a person(s) upon another person(s), of a person’s breasts, buttocks, groin, or genitals (with or without clothing), or coercing, forcing or attempting to coerce or force another to touch you, themselves, or a third party on any of these body parts or areas when such touching would be reasonably and objectively offensive; (iii) non- consensual sexual contact; (iv) any sexual act in which there is force, violence, or use of duress or deception upon the victim; (v) any sexual act perpetrated when the victim is unable to give Consent; (vi) sexual intimidation which includes, but is not limited to, threatening (expressly or impliedly) to commit a sexual act upon another person without his or her consent, stalking or cyber-stalking, and engaging in indecent exposure, (vii) incest, and (viii) statutory rape.
  23. Sexual Exploitation. Sexual Exploitation is defined as behavior that is designed to take advantage of another individual in a sexual way without their consent. Examples of sexual exploitation include, but are not limited to:
    1. Invasion of sexual privacy;
    2. Non-consensual video or audio taping of a sexual nature;
    3. Engaging in voyeurism;
    4. Exposing one’s genitals, or inducing someone to expose his/her genitals, to another person in non-consensual circumstances; or
    5. Posting or distributing sexually explicit materials, including but not limited to, photos or videos of another person without that person’s consent.
  24. Sexual Harassment under Title IX. Sexual Harassment is a subset of Sexual Misconduct. Sexual harassment is defined as conduct directed at an individual because of the individual’s sex that also satisfies one or more of the following:
    1. Quid pro quo – an individual conditioning the provision of aid, benefit or service on an individual’s participation in unwelcome sexual conduct;
    2. Unwelcome conduct that a reasonable person would determine is so severe, pe1vasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity; or
    3. Dating violence, Domestic Violence, or Stalking.

    Sexual Harassment can occur between strangers or acquaintances, as well as people involved in an intimate or sexual relationship. Sexual Harassment can be committed by any person, and it can occur between people of the same or different sex. Sexual Harassment can occur in person, by phone, text message, e-mail or other electronic, written, or social medium. Sexual Harassment can be physical, verbal and/or psychological in nature. An aggregation of a series of incidents can constitute Sexual Harassment even if one of the incidents considered on its own would not be considered Sexual Harassment. Sexual Harassment includes conduct that may also be criminal in nature such as rape, sexual assault, and other similar offenses.

  25. Sexual Misconduct. Sexual Misconduct includes Dating Violence, Domestic Violence, Intimate Partner Violence, Non-Consensual Sexual Contact, Sexual Assault, Sexual Exploitation, Sexual Harassment, Sexual Violence, and Stalking, as defined by Title IX and this Policy. Intentionally aiding or assisting another person(s) in the commission of an act of Sexual Misconduct also constitutes Sexual Misconduct.
  26. Sexual Violence. Sexual Violence refers to conduct that involves physical sexual acts perpetrated against a person’s will forcibly or not forcibly, or where a person has not, or is incapable of, giving consent. Examples of Sexual Violence include, but are not limited to, sexual assault, rape, intimate partner violence, dating violence, relationship violence or domestic violence.
  27. Stalking. Stalking means engaging in a course of conduct directed at a specific person based on their sex that would cause a reasonable person to fear for their safety or the safety of others, or to suffer substantial emotional distress. Stalking activity may be perpetrated in person or through electronic or digital communications or conduct.
  28. Supportive Measures. Supportive Measures means non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the Complainant or the Respondent regardless of whether a Formal Complaint has been filed. Such measures are designed to restore or preserve equal access to the University’s education program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties or Gardner-Webb’s educational community or environment, or to deter Sexual Misconduct. Supportive measures include, but are not limited to, counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, campus escort services, mutual restrictions on contact between the parties, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of campus, and other similar measures. Gardner-Webb will maintain as confidential any Supportive Measures provided to the Complainant or Respondent to the extent that maintaining such confidentiality does not impair Gardner-Webb’s ability to provide the Supportive Measures.
  29. Third Party. Someone from outside the campus community who is accused of committing an act of Sexual Misconduct against a member of the campus community. Examples include independent contractors of the University, students from other schools, boyfriends or girlfriends that do not attend Gardner-Webb, and members of the public. Depending on the context, “third party” may also refer to any other person who is not the Complainant or Respondent.

II. Reporting and Resources

This policy is intended to make students aware of the various reporting and confidential disclosure options available to them so they can make informed choices about where to turn should they become a victim of, or witness to, Sexual Misconduct.

  1. With the University
    Anyone wishing to report Sexual Misconduct or a violation of Title IX and/or make a Complaint or Formal Complaint under this Policy may do so in person, by mail or by email to the Interim Title IX Coordinator:

    Mrs. Lesley Villarose, Vice President of Student Development and Dean of Students,
    Interim Title IX Coordinator and ADA Coordinator
    Gardner-Webb University
    Tucker Student Center #243
    Boiling Springs, NC 28017
    (704) 406-2081
    [email protected]

    If an employee of the Campus Police Department or any other Responsible Employee of the University receives a report of alleged Sexual Misconduct, that employee must notify Gardner-Webb’s Title IX Coordinator.

  2. With Law Enforcement
    Because Sexual Misconduct may in some instances constitute both a violation of University policy and a crime, and because Gardner-Webb’s Complaint process is not a substitute for initiating legal action, Gardner-Webb encourages individuals to report alleged Sexual Misconduct promptly to both the Title IX Coordinator, and law enforcement authorities.

    1. Individuals may seek emergency assistance or initiate a criminal complaint directly with local law enforcement agencies by dialing 911.
    2. Gardner-Webb’s University Police may be contacted at (704) 406-4444. University Police are available 24 hours a day, 7 days a week.
    3. The Boiling Springs Police Department telephone number is 704-434-9691 and its address is 114 E. College Ave., Boiling Springs NC.
    4. It is important to note that filing a report or otherwise contacting Gardner-Webb’s Police Department does not require the filing of criminal charges.
    5. Individuals may inform law enforcement authorities about Sexual Misconduct and discuss the matter with a law enforcement officer without making a formal criminal complaint (or filing a Complaint or Formal Complaint of alleged Sexual Misconduct with the Title IX Officer). Individuals who make a criminal complaint may also choose to pursue a Title IX Complaint or Formal Complaint with the University simultaneously.
    6. A criminal investigation into the matter does not preclude the University from conducting its own investigation (nor are the facts or results of a criminal investigation necessarily determinative of whether the alleged conduct violates this Policy or any other Gardner-Webb policy). However, the University’s investigation may be delayed temporarily while the criminal investigators are gathering evidence or for other good cause as determined by the Title IX Coordinator. In the event of such a delay, Gardner-Webb may implement Supportive Measures and accommodations it deems necessary and appropriate to ensure the safety and well-being of the parties and/or the Gardner-Webb community.
  3. Anonymous Complaint
    Individuals may also file an anonymous report of Sexual Misconduct by using the Incident Report here. Individuals who choose to file anonymous reports are advised that it may be difficult or impossible for the University to follow up or take action based on anonymous reports. Anonymous reports without personally identifiable information, however, may be used for purposes of compliance with Gardner-Webb’s obligations under the Clery Act.
  4. The Option of Not Reporting Sexual Misconduct and Gardner-Webb’s Right to do so
    Individuals may choose not to report Sexual Misconduct to anyone. Gardner-Webb respects and supports the individual’s decision with regard to reporting; however, if information about Sexual Misconduct comes to the attention of the Title IX Coordinator or a Responsible Employee, the University may (1) start an investigation even in the absence of a Complaint; and (2) notify appropriate law enforcement authorities if required or warranted by the nature of the information of which it becomes aware. While no finding of a Title IX violation will occur without the filing of a Formal Complaint by the Complainant or Title IX Coordinator, Gardner-Webb may determine that this Policy has been violated and impose appropriate sanctions based upon an investigation stemming from a Complaint or other information brought to the attention of the University

Regardless of whether they choose to officially report an incident of Sexual Misconduct, a student or employee may request Supportive Measures and other resources. There are both confidential and non-confidential care and support resources available.

Confidential care and support resources are individuals who, by the nature of their work, are required by law to keep information shared with them confidential and who cannot provide information revealed to them to another person without the express permission of the individual sharing the information, or as required/allowed by law. These campus and community professionals include medical providers, mental health providers, ordained clergy, rape crisis counselors, and attorneys representing a Complainant or Respondent.

  1. On-Campus Confidential Resources
    The medical/counseling services listed below are available on campus and will provide confidentiality if requested.

    Office Location Contact Information
    Student Health Clinic 148 Memorial Drive (980) 487-2390
    The Student Health Clinic complies with federal and state laws regarding the confidentiality and security of medical records, including HIPAA. No information concerning a patient’s health or health records will be disclosed without authorization or as required by law
    Counseling Center Tucker Student Center (704) 406-4563 8-5 Monday through Friday; after hours and on weekends call (704) 406-2599
    Members of campus clergy in the Office of Christian Life and Service Tucker Student Center (704) 406-4277
  2. Off-Campus Confidential Resources
    There are confidential resources available to individuals in the local community. These organizations can provide crisis intervention services, counseling, medical attention, and assistance in dealing with the criminal justice system as indicated below. All individuals are encouraged to use the resources that are best suited to their needs, whether on or off campus.

    Organization Location Contact Information Services
    Cleveland County Health Department 200 South Post Road, Shelby, NC 28152 (980) 484-5100
    Website
    Family planning, Dental Clinic, Nutrition Services, Maternity Clinic, Child Health Services, Health Education Services, Landfill Program, Animal Control Program, General Clinic, Pharmacy Services, Medical Testing, STD Clinic, HIV and Aids Case Management
    Cleveland Regional Medical Center 201 East Grover St, Shelby, NC 28150 (980) 487-3000
    Website
    Fully accredited 241 bed acute care hospital serving greater Cleveland County, NC and the surrounding area. Level III Trauma Center offering advanced emergency care
    Mental Health Association of Cleveland County 201 West Marion St, Ste 306, Shelby, NC 28150 (704) 481-8637
    Website
    Provides mental health education to public, support and information to persons affected by mental illnesses, financial assistance for treatment, and advocacy for services for the mentally ill.
    Ollie Harris Behavioral Health Center 200-2 South Post Rd, Shelby, NC 28152 (704) 600-6900
    Website
    Provides mental health and substance abuse services Mon-Fri 8:00am-5:00pm. No appointment necessary
    Phoenix Counseling Center 609 N Washington St, Shelby, NC 28150 (704) 751-3693
    Website
    Provides a continuum of care that includes screening, evaluation, crisis stabilization, and treatment for patients with mental illness, dual diagnosis, and/or addictions
    Cleveland County Abuse Prevention Council 407 West Warren St, Shelby, NC 28150 (704) 487-9325
    Website
    Assists victims of domestic violence, sexual assault, and homeless displacement through the provision of safe shelter, advocacy, support services, and preventive education
    Serenity Club (Alcoholics Anonymous) 109 Bethlehem Rd, Kings Mountain, NC 28086 (704) 739-1180 Provides support and counseling for individuals dealing with alcoholism

All persons are encouraged to voluntarily seek medical attention immediately following an incident of Sexual Misconduct, and particularly Sexual Violence, to assess and treat any injuries, screen for pregnancy (if desired and appropriate) and sexually transmitted infections, and to properly collect and preserve evidence. Collecting evidence does not obligate an individual to any particular course of action but can assist the authorities should the individual decide to pursue criminal charges now or in the future. Gardner-Webb will assist any campus community member in seeking medical services.

Physical evidence of Sexual Misconduct or Sexual Violence should be collected from the individual’s person within a few hours of the incident, although it may be possible to obtain evidence from towels, sheets, clothes, etc. for longer periods of time. An individual who believes they have been subjected to Sexual Misconduct and particularly Sexual Violence should go to an emergency room before washing their body or changing clothing. Hospitals have personnel who are specially trained to collect evidence in such cases. If clothes have been changed, the clothes worn at the time of the incident should be brought to the emergency room in a clean, sanitary container such as a paper grocery bag or wrapped in a clean sheet (plastic containers do not breathe, and may render evidence useless). Bring a change of clothing to the hospital, as the clothes worn at the time of the incident will likely be kept as evidence.

III. Complaint Procedures

These Complaint and Investigation procedures have been adopted by Gardner-Webb to provide a prompt and equitable pathway for reporting, investigating, and resolving Complaints of alleged violations of the University’s Sexual Misconduct Policy and Title IX.

Gardner-Webb will respond to Complaints and Formal Complaints of Sexual Misconduct of which it is aware, and Gardner-Webb will endeavor at all times to respond promptly in a manner that is reasonable in light of all circumstances. Gardner-Webb will treat Complainants and Respondents equitably by offering Supportive Measures to both parties and by following the Complaint process set forth in this Policy before disciplinary actions are imposed under this Policy.

Complainants and Respondents may be held responsible for their behavior and the behavior of any of their non-University Advisors and support persons.

If a Complainant has indicated an intention to participate in this process, but, nevertheless, the Complainant or the Complainant’s non-University Advisor has/have engaged in unreasonable delay or otherwise unreasonably failed to cooperate in the process or is/are obstructing or disrupting the process, all without good cause, the Title IX Coordinator may move forward with the processes set forth in this Policy without the Complainant’s participation, or dismiss the Complaint, after providing the Complainant with written notice of the Complainant’s/non-University Advisor’s inappropriate conduct or failure to cooperate and an opportunity to respond no later than five (5) business days after receipt of the notice. If the Complainant is excluded from the process or the Complaint is dismissed the Advisor is also disqualified from proceeding in the process. If the Complaint has not been dismissed the Title IX Coordinator shall consider a Complainant’s subsequent written request, if any, to recommence involvement with a different Advisor, whether appointed by the University or not.

If a Respondent has indicated an intention to participate in this process, but, nevertheless, the Respondent or the Respondent’s non-University Advisor has/have engaged in unreasonable delay or otherwise unreasonably failed to cooperate in the process or is/are obstructing or disrupting the process, all without good cause, the Title IX Coordinator may move forward with the processes set forth in the Policy without the Respondent’s participation after providing the Respondent with written notice of the Respondent’s/non-University Advisor’s alleged inappropriate conduct or failure to cooperate and an opportunity to respond no later than five (5) business days after receipt of the notice. If the Respondent is excluded from the process in this manner, the Advisor is also disqualified from proceeding in the process. The Title IX Coordinator shall consider the Respondent’s subsequent written request, if any, to recommence involvement with a different Advisor, whether appointed by the University or not.

  1. Gardner-Webb will maintain as confidential any Supportive Measures provided to the Complainant or Respondent to the extent that maintaining such confidentiality will not impair Gardner-Webb’s ability to provide the Supportive Measures. If a Complainant desires only Supportive Measures, Gardner-Webb will keep the Complainant’s identity confidential, including from the Respondent, unless disclosing the Complainant’s identity is necessary to provide Supportive Measures for the Complainant. When a Formal Complaint is initiated by a Complainant or signed by the Title IX Coordinator with knowledge of the Complainant’s identity, the Complainant’s identity cannot be kept confidential from the Respondent.
  2. Up until the filing of a Formal Complaint, a Complainant’s request for confidentiality will be maintained to the greatest extent reasonably possible consistent with the University’s duties under this Policy and Title IX. Information will not be shared with anyone who does not have a legitimate interest in the investigation or resolution.
  3. In some circumstances, however, law or regulation require or allow disclosure of otherwise confidential information. If this occurs, the University will notify the person who provided the information unless doing so would also violate law or regulation.

Supportive Measures are non-disciplinary, non-punitive individualized services offered and provided as appropriate, as reasonably available, and without fee or charge to the Complainant and/or the Respondent before or after the filing of a Formal Complaint or where no Formal Complaint has been filed. Supportive Measures are available to the Complainant, Respondent, and as appropriate, witnesses or other impacted individuals. Such measures are designed to restore or preserve equal access to the University’s education program or activity without unreasonably burdening the other party’s access to the University’s educational programs, including measures designed to protect the safety of all parties or the University’s educational environment, or deter Sexual Misconduct. Supportive Measures may include “no contact” orders, 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. The Title IX Coordinator is responsible for coordinating the effective implementation of Supportive Measures.

Advisors: The Complainant and Respondent may be assisted by one Advisor of their choice in any Sexual Misconduct investigation and/or Complaint proceeding. If requested, Gardner-Webb will appoint a person trained in Gardner-Webb’s Sexual Misconduct Policy as a Complainant’s or Respondent’s Advisor. No Advisor shall have had any involvement in the underlying facts and circumstances of the Complaint. The Advisor is present in an advisory capacity only to their respective party. Unless the Title Coordinator determines that active participation is beneficial to the process the Advisor may attend but shall not actively participate or intervene in pre-hearing meetings or any other proceeding related to the Complaint, except as set forth below with regard to a hearing. This same standard applies in cases in which the Advisor is an attorney retained by the Complainant or Respondent. While Complainants’ and Respondents’ conversations with Advisors appointed by Gardner-Webb are treated confidentially, those conversations are not privileged by law and may be revealed by court order or other legal proceedings. If at any time during the process an Advisor becomes disruptive or impedes the fair and efficient flow of the procedures set forth in this Policy, the Title IX Coordinator may in writing bar the Advisor from further proceedings. The written notice shall set forth the reasons for such action. The Complainant or Respondent may then pick another Advisor or have one appointed by the University.

Support Persons: In addition to an Advisor, the Complainant and Respondent may each have one Support Person present with them at all Complaint-related meetings and proceedings. The Support Person is a silent and non-participating presence who is there solely to observe and provide emotional support. The Support Person must be a member of the Gardner-Webb community or a member of the Complainant’s/Respondent’s immediate family and shall have had no involvement in the underlying facts and circumstances of the Complaint. Before being allowed to serve as a Support Person, the individual may be required to meet or otherwise communicate with the Title IX Coordinator prior to participating in meetings associated with the Complaint. If at any time during the process a Support Person becomes disruptive or impedes the fair and efficient flow of the procedures set forth in this Policy, the Title IX Coordinator may in writing bar the Support Person from further proceedings. The written notice shall set forth the reasons for such action. The Complainant or Respondent may then pick another Support Person.

NOTE: Advisors and Support Persons may not act in the role of witnesses.

It is a violation of Gardner-Webb policy to knowingly file a false Complaint of alleged Sexual Misconduct. Action against such conduct may be pursued using the procedures set forth in this Sexual Misconduct Policy or other applicable University policies, including, but not limited to, the Code of Student Conduct, the Faculty Manual, and the Personnel Policy Manual. A knowingly false Complaint includes but is not limited to a report where the Complainant or Reporting Person:

  1. Is aware the allegation is false;
  2. Filed the report with the intent to deceive or mislead; and/or
  3. Filed the false report with Gardner-Webb with the specific intent to cause harm to an individual.

Gardner-Webb strives to provide a fair and equitable process for responding to and resolving Complaints of Sexual Misconduct. The University will make every effort to ensure that both parties are treated with respect, dignity, and sensitivity by the University throughout the process, including as applicable:

  1. Providing the Complainant and the Respondent access to care and support services from the University and from the community.
  2. Facilitating privacy under the Family Education Rights and Privacy Act (FERPA).
  3. Informing both parties of the University’s policies and Complaint procedures.
  4. Providing both parties the opportunity to challenge the appointment of the Title IX Coordinator or member of the Pool who is involved in the case if a conflict of interest is demonstrated. (If a Pool member is challenged the Title IX Coordinator shall determine whether they should no longer be involved in the case. If the Title IX Coordinator is challenged the Dean of Students/Designee shall make this decision. In either case, the determination shall be in writing and provided to the parties.)
  5. Allowing the Complainant and Respondent to choose to participate or decline to participate at any point in these proceedings, with the understanding that the process may continue without their involvement and that sanctions may be imposed based on a finding of responsibility or other violation of this Policy or any other applicable University policy.
  6. Notifying both parties, in writing, of the Complaint resolution – including the outcome of any appeal.
  7. Notifying both parties of the option to have one Advisor and one Support Person.
  8. Advising the parties that information collected through an investigation and/or Complaint proceeding may be subpoenaed in a criminal and/or civil proceeding.
  9. Informing the parties that the Respondent is presumed not to have violated this Policy until there is a determination of a Policy violation.

All reports of actual or potential Sexual Misconduct, Complaints of Sexual Misconduct and Formal Complaints of Sexual Misconduct should be immediately brought to the attention of the Title IX Coordinator. All members of the Dean of Students Office and the Campus Police Department are equipped to assist and connect the individual (Complainant, Respondent or witnesses) with obtaining the emergency and support services that may be needed and/or with contacting the Title IX Coordinator to file a Complaint or Formal Complaint.

Upon receipt of a report of actual or potential Sexual Misconduct, a Complaint of Sexual Misconduct, or a Formal Complaint of Sexual Misconduct, the Title IX Coordinator will promptly and confidentially (1) contact the Reporting Individual to discuss the availability of Supportive Measures with or without the filing of a Formal Complaint; (2) provide appropriate Supportive Measures; (3) inform the Reporting Individual that any report made in good faith will not subject the Reporting Individual to disciplinary action; and (4) explain to the Reporting Individual the process for filing a Complaint or Formal Complaint.

If a Complainant chooses not to file a Formal Complaint or files a Formal Complaint and later decides to withdraw it, the Title IX Coordinator will respect that decision. However, the Title IX Coordinator will also determine whether it is necessary for the University to file or continue with a Formal Complaint and proceed forward under this Policy stage if such action is determined necessary in light of a health or safety concern for the campus community. In making this determination the Title IX Coordinator may take into consideration the nature of the allegations and the existence of prior complaints against the same Respondent.

The Title IX Coordinator will determine whether the Respondent should be subject to immediate emergency removal from the University’s educational program, activities and/or campus, or, if the Respondent is a non-student employee, whether the Respondent should be placed on administrative leave, the latter being only after consultation with other University officials who hold supervisory positions over the employee. Emergency removal of a Respondent must be based upon the University’s individualized safety and risk analysis, when it determines that a threat to the physical health or safety of one or more individuals arising from the allegations of Sexual Misconduct justify removal. Respondents subject to emergency removal shall immediately cooperate with the directives of the Title IX Coordinator or other University officials.

A Respondent who is removed or placed on administrative leave may challenge that determination as follows:

  1. A student may present a challenge to the Dean of Students/designee; a staff member or non-student third party may present a challenge to the Office of Human Resources/designee; and a faculty member may present a challenge to the Provost/designee
  2. The Respondent must present his/her challenge in writing within three (3) business days of receipt of notice of emergency removal.
  3. Gardner-Webb will notify the Complainant of any challenge presented by the Respondent and give the Complainant an opportunity to oppose the challenge in writing within three (3) business days of receipt of notice of the challenge.
  4. The decision on the Respondent’s challenge will thereafter be made promptly by the Title IX Coordinator, in consultation with the appropriate official(s) referenced in subparagraph 1 above, and the decision will be communicated in writing simultaneously to the Complainant and Respondent. The removal decision is presumed to be correct and is final unless the Respondent is able to overcome the presumption as set forth immediately below.

Whether or not Respondent who has been removed or placed on administrative leave timely challenged the original removal, the Title IX Coordinator may later consider a Respondent’s written request to return. The Respondent must set forth in writing facts and circumstances not reasonably available to the Respondent or the Title IX Coordinator at the time of removal or challenge, as the case may be. The Respondent’s failure to so support the request shall be grounds for denial of the request.

  1. If the Title IX Coordinator determines that, based upon facts and circumstances not reasonably available to the Respondent or the Title IX Coordinator at the time of removal or challenge to the removal, as the case may be, the University’s individualized safety and risk analysis now indicates that the Respondent is no longer a threat to the physical health or safety of one or more individuals arising from the allegations of Sexual Misconduct, the Title IX Coordinator may notify the Complainant in writing that the University proposes to allow the Respondent to return, in addition to any reasonable limitations on the Respondent or safety measures that will exist if the University allows the Respondent to return.
  2. The Complainant will have an opportunity to challenge the Title IX Coordinator’s proposal in writing, including offering alternative safety measures or limitations on the Respondent, within three (3) business days of receipt of the University’s proposal.
  3. The decision on the Respondent’s written request will thereafter be made promptly by the Title IX Coordinator, in consultation with the appropriate official(s) referenced above, and the decision will be communicated in writing simultaneously to the Complainant and Respondent.

The University reserves the right to make further adjustments to any removal or return as facts and circumstances warrant and in compliance with the notice provisions set forth above.

Upon receipt of a Formal Complaint from a Complainant the Title IX Coordinator will notify the Respondent of the receipt of a Formal Complaint, inform the Complainant and Respondent of the availability of Supportive Measures and explain the processes set forth in this Policy. The written notice may be in electronic or hard copy form and shall contain a paper, pdf or link to the Policy, as appropriate. The Notice of Formal Complaint shall also describe at least the following:

  1. Notice of this Policy and the University’s report/complaint process, including any informal resolution process.
  2. Notice of the allegations of Sexual Misconduct that potentially violate this Policy, including sufficient details known at the time and with sufficient time to prepare a response before any initial interview of the Respondent. Sufficient details include the identities of the parties involved in the incident, if known, the conduct allegedly constituting Sexual Misconduct, and the date and location of the alleged incident, if known. The written notice will also 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 processes set forth in this Policy. The written notice will inform the parties that they may have an Advisor of their choice, who may be, but is not required to be, an attorney, and may inspect and review evidence, including that which is contained in the Investigation Record. The written notice will inform the parties that the University prohibits knowingly making false statements or knowingly submitting false information during the process and that doing so may result in disciplinary sanctions.
  3. If, in the course of an investigation, the University decides to investigate allegations of Sexual Misconduct about the Complainant or Respondent that are not included in the Notice provided, the University will provide notice of the additional allegations to the parties whose identities are known.
  4. If a Complainant chooses not to proceed further with the Formal Complaint, Gardner-Webb may continue the investigation and adjudication process set forth in this Policy, or other University policies, including the Code of Student Conduct, the Faculty Manual, and the Personnel Policy Manual.

The University may consolidate Formal Complaints that contain allegations of Sexual Misconduct against more than one Respondent where the allegations of Sexual Misconduct arise out of the same facts and circumstances. The University may consolidate Formal Complaints by more than one Complainant against one or more Respondents where the allegations of Sexual Misconduct arise out of the same facts and circumstances. The University may consolidate the initial Formal Complaint with any Formal Complaint subsequently filed by the Respondent against the same Complainant arising out of the same facts and circumstances.

If the conduct alleged in a Formal Complaint would not constitute Sexual Misconduct as defined in this Policy or under Title IX even if proved, did not occur in Gardner-Webb ’s Education Program or Activity, or did not occur against a person in the United States, then Gardner-Webb must dismiss the Formal Complaint with regard to this Policy. In such event, Gardner-Webb will promptly and simultaneously notify the parties in writing of the dismissal and the reasons for the dismissal. Either party may appeal the dismissal through the process set forth below. However, such dismissal does not preclude the University from commencing or continuing proceedings to determine whether the conduct complained of constitutes a violation of other Gardner-Webb policies or other legal requirements applicable to members of the Gardner-Webb community, including the Code of Student Conduct, Faculty Manual, or the Personnel Policy Manual.

If a Complainant notifies the Title IX Coordinator in writing that they would like to withdraw the Formal Complaint or any allegations therein, if the Respondent is no longer enrolled or employed by Gardner-Webb, or if specific circumstances prevent Gardner-Webb from gathering evidence sufficient to reach a determination as to the Formal Complaint or material allegations therein, Gardner-Webb may, but is not required to, dismiss the Formal Complaint or any allegations therein. If the Formal Complaint is dismissed Gardner-Webb will promptly and simultaneously notify the parties in writing of the dismissal and the reasons for the dismissal. Either party may appeal the dismissal through the process set forth below. However, such dismissal does not preclude the University from commencing or continuing proceedings to determine whether the conduct complained of constitutes a violation of other Gardner-Webb policies or other legal requirements applicable to members of the Gardner-Webb community, including the Code of Student Conduct, Faculty Manual, or the Personnel Policy Manual.

Within five (5) business days after the Complainant and Respondent receive the Formal Complaint and the written Notice of the Formal Complaint, the Title IX Coordinator will in writing inform the Complainant and Respondent that they have five (5) business days within which to tell the Coordinator whether they will attend separate Informational Meetings to provide them information on the investigative process and to allow them to ask questions. This communication will also alert them to the fact that they may choose to not participate in the Informational Meeting including the fact that even if they choose not to participate, the processes set forth in this Policy may continue without their participation. Non-responsiveness from either party, or failure to attend a scheduled meeting without a compelling reason, may reasonably be interpreted as a decision to not participate, in which case the Title IX Coordinator may proceed with the party who has responded in the affirmative and participated. Requests to postpone the Informational Meeting may be granted, provided that the request is based on a compelling reason. When possible, Complainants and Respondents should request a postponement no fewer than 24 hours before the scheduled meeting and/or interview.

Within five (5) business days of after the Informational Meeting, the Title IX Coordinator will inform the Complainant and Respondent that they must inform the Title IX Coordinator within five (5) business days whether they wish to continue to participate, or begin participating, (as the case may be) in the investigative process. This communication will also alert them to the fact that they may choose to not participate in the investigative process, including the fact that even if they choose not to participate, the processes set forth in this Policy may continue without their participation. Non-responsiveness from either party may reasonably be interpreted as a decision to not participate, in which case the Title IX Coordinator may proceed with the party who has responded in the affirmative and participate. The Complainant or Respondent may request additional time to make that decision and/or to schedule an investigative interview. However, in the event that the Title IX Coordinator finds that the Complainant or Respondent have engaged in unreasonable delay, the Title IX Coordinator may move forward with the investigation and resolution process without that individual’s participation after providing the individual with written notice and an opportunity to respond.

The Title IX Coordinator may, at any time in the process, choose to recommend resolving a Formal Complaint through informal means. The Title IX Coordinator will evaluate whether the Formal Complaint is appropriate for Informal Resolution. If Informal Resolution is appropriate, the Title IX Coordinator will communicate with the Complainant about this option. If the Complainant voluntarily agrees and indicates so in writing, the Title IX Coordinator will communicate with the Respondent about the Complaint and the possibility of informal resolution. Informal resolution will be pursued only with the written consent of both parties and the Title IX Coordinator. Gardner-Webb’s Informal Resolution process is set forth in Appendix D hereof.

If an Informal Resolution does not resolve, or is not appropriate for resolving, the Formal Complaint prior to an investigation, the Title IX Coordinator will appoint an investigator and facilitate a reasonable, impartial, and prompt investigation of the Formal Complaint.

  1. The Investigator will establish a timeline and process for conducting the investigation.
  2. Whenever possible, Gardner-Webb seeks to complete the investigation of Formal Complaints within approximately ninety (90) days from receipt of the Formal Complaint, not including the time for any appeal(s). Circumstances may arise that require the University to extend time frames for good cause. Such “good cause” circumstances may include the complexity and scope of the allegations, the number of witnesses involved, the absence or availability of the parties, Advisors or witnesses, the effect of a concurrent criminal investigation, any intervening University break or holiday, the need for language assistance or accommodation of disabilities, or other circumstances. In the event that the process exceeds these time frames, Gardner-Webb will notify the Complainant and Respondent in writing of the reason(s) for the delay and the expected adjustment in time frames. Best efforts will be made to complete the process in a timely manner by balancing principles of thoroughness and fundamental fairness with promptness.
  3. The Respondent is presumed not to have violated this Policy until there is a final determination of a Policy violation.
  4. The burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility will rest upon Gardner-Webb and not on the parties (except that Gardner-Webb cannot access, consider, disclose or otherwise use a party’s records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional’s or paraprofessional’s capacity or assisting in that capacity, and which are made and maintained in connection with the provision of treatment to the party, unless Gardner-Webb obtains that party’s voluntary written consent to do so).
  5. All factual determinations made by the investigator are to be made based on the preponderance of evidence standard.
  6. The investigation will be conducted based upon the facts and circumstances reported to the University and developed through the course of the investigation, including interviews of relevant witnesses as feasible of the Complainant, the Respondent, and any witnesses, whether suggested by the parties or the investigator, and gathering other pertinent evidentiary materials to the extent they are available, either from the parties or other sources. If a recording would aid in the investigation, interviews may be recorded if the person being interviewed consents to such recording. In all cases the investigator shall take reasonably detailed and complete notes documenting interviews.
  7. Gardner-Webb will not restrict the parties’ ability to discuss the allegations under investigation or to gather and present relevant evidence.
  8. The investigator will provide both Parties written notice of the date, time, location, participants, and purpose of all investigative interviews or other meetings, with sufficient time for the Party to prepare to participate.
  9. The investigator will provide the parties with equal opportunities to be accompanied by their Advisor of their choice.
  10. The Investigator will provide both parties an equal opportunity to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in a Formal Complaint, including evidence upon which Gardner-Webb does not intend to rely in reaching a determination regarding responsibility and inculpatory and exculpatory evidence whether obtained from a party or other source, so that each party can meaningfully respond to the evidence prior to the conclusion of the investigation.
  11. Prior to completion of the investigative report, the Title IX Coordinator will send to each party and the party’s Advisor, if any, copies of the evidence and information referenced in the preceding paragraph in an electronic format and inform the parties in writing that they have ten (10) business days to submit a written response, which the investigator will consider prior to completion of the investigative report.
  12. Gardner-Webb will also make all such evidence available for the parties’ inspection and review at any hearing to give each party an equal opportunity to refer to such evidence during the hearing, including for purposes of cross-examination.
  13. Gardner-Webb may require that parties sign a non-disclosure agreement that will restrict review and use of the evidence to purposes related to the process under this Policy.
  14. Upon completion of the investigation, the Title IX Coordinator will prepare an investigative report that fairly summarizes relevant evidence. The investigative report will then be provided to each party and his/her Advisor, if any, in electronic format and give the parties at least ten (10) business days to provide a written response if they choose to do so.
  15. The investigator will then finalize an investigative report that fairly summarizes the relevant evidence. The “relevant evidence” is the evidence that bears upon or has a direct relationship to the allegations in the Formal Complaint gathered in the course of the investigation, whether inculpatory, exculpatory, or inconclusive. The report is a summary, keeping in mind that the Hearing Board and the parties have or will have access to the entire investigative record. The investigator will not make any recommendations or conclusions with regard to responsibility or non-responsibility.
  16. The completed investigative report will then be provided to each party and his/her Advisor, if any. The hearing will be scheduled to occur no fewer than ten (10) business days after the parties receive the investigative report. Prior to the hearing the parties may provide a written response to the investigative report if they choose to do so.
  17. The Investigators will consider any additional allegations that may come to light during the investigation for the purpose of determining whether they may constitute additional violations of this Policy. When additional factual allegations that may constitute violations of this Policy outside the Formal Complaint arise and/or new violations of this Policy not previously officially brought against the Respondent are being considered, written notice of such additional allegations or new Policy violations, will be provided to the Complainant and Respondent.
  18. Gardner-Webb will revisit the opportunity to enter into an Informal Resolution process to resolve the Complaint or Formal Complaint at the close of the investigation (within the restrictions described above). The Title IX Coordinator/designee will evaluate the matter to determine if Informal Resolution is appropriately considered. If the determination is to offer Informal Resolution, the parties will be simultaneously informed. If both agree to Informal Resolution the process set forth in Appendix D will be followed.

  1. The Hearing Board (hereafter “Board”) is charged with conducting a prompt, thorough, and unbiased live hearing to determine, based on a preponderance of the evidence standard, whether or not the Respondent violated the Sexual Misconduct Policy and/or Title IX specific to the alleged conduct (this is referred to as “a finding of responsibility” or a “non-finding of responsibility” as the case may be). The Board Chair is responsible for making relevancy determinations during the hearing.
  2. A Sexual Misconduct Hearing Board consists of three (3) members selected from among the Pool by the Title IX Coordinator. The selected Board members will determine who among them will serve as the Chair.
  3. Appendix A sets forth the hearing rules and procedures.

  1. When a student-Respondent is found to have violated this Sexual Misconduct Policy and receives the sanction of Suspension or Expulsion, that student shall have a notation on their official transcript as follows: “Suspended after a finding of a code of conduct violation” or “Expelled after a finding of a code of conduct violation.” If a student-Respondent withdraws from Gardner-Webb with a Formal Complaint pending and declines or fails, after notice, to participate in the process set forth in this Policy, the student-Respondent will have a notation on their official transcript stating “Withdrew with conduct charges pending.”
  2. All Respondents are expected to comply with the assigned sanctions, responsive actions, and/or corrective actions within the timeframe specified by the final Decision-maker(s) (including the Appeal Panel). Failure to abide by the sanction(s)/action(s) imposed by the date specified, whether by refusal, neglect, or any other reason, may result in additional sanction(s)/action(s), including suspension, expulsion, and/or termination from Gardner-Webb University either under this Policy or other applicable University policy. A suspension will only be lifted when compliance is achieved to the satisfaction of the Title IX Coordinator.
  3. See Appendix C for a list of potential sanctions.

  1. Both the Complainant and the Respondent may appeal the outcome of a hearing. Both the Complainant and the Respondent may also appeal Gardner-Webb’s dismissal of a Formal Complaint. A written Request for Appeal must be submitted to the Title IX Coordinator within five (5) business days following the date on which the Hearing Board’s written determination is delivered to the parties. Dissatisfaction with the outcome of the proceeding alone is not grounds for an appeal. The only grounds upon which an appeal may be based are:
    1. Procedural Irregularity: A procedural irregularity occurred that could reasonably have adversely impacted the outcome of the hearing as it applies to the appealing party. A description of the irregularity and its impact on the outcome of the case as it applies to the appealing party must be included in the Request for Appeal; or
    2. New Evidence: New evidence has arisen which was not available to the appealing party at the time of the hearing and that reasonably could have favorably impacted the outcome of the matter as it applies to the appealing party. Information that was known to the appealing party at the time of the hearing but which they chose not to present is not new evidence. A summary of this new evidence and its potential impact on the findings and/or sanctions must be included in the Request for Appeal; or
    3. Conflict of Interest or Bias: The Title IX Coordinator, investigator(s), or decision-maker(s) had a conflict of interest or bias for or against Complainants or Respondents generally or the individual Complainant or Respondent that reasonably could have adversely impacted the outcome of the matter as it applies to the appealing party; or
    4. Sanctions: In the event that the Hearing Board finds the Respondent violated Title IX and/or Gardner-Webb’s Sexual Misconduct Policy, both Complainant and Respondent may appeal the sanction imposed in the Hearing Board report. Both parties will be given an opportunity to submit a statement detailing the impact of the incident or mitigating facts or circumstances they believe should be considered in imposing a greater or lesser sanction.
  2. The Title IX Coordinator will notify the non-appealing party that a Request for Appeal has been submitted. The non-appealing party will be permitted to submit a written opposition to the appeal within five (5) business days of notification of the appeal.
  3. The Appeals Panel will meet to consider if the Request for Appeal was submitted in a timely manner and if so, whether the Request for Appeal is based on one or more of the grounds for appeal. If the Panel determines that the Request for Appeal was not submitted in a timely manner or is not based on one or more of the grounds for appeal, the Request for Appeal will be denied and a written explanation provided. This is a final determination of the University.
  4. If the Request for Appeal is submitted in a timely manner and is based on one or more of the grounds for appeal as determined by the Title IX Coordinator it will be considered by the Appeals Panel as indicated below.
  5. Appeals are not a full rehearing of the Complaint (de novo). Rather, appeals are confined to a review of the written documentation supporting/opposing the Appeal and the record of the original hearing. In any Appeal the burden of proof lies with the appealing party, as the original determination and any sanctions are presumed to have been decided reasonably and appropriately. All Appeals Panel decisions are by majority vote. The potential outcomes are as follows:
    1. Procedural Irregularity: If the Appeals Panel determines that a procedural irregularity occurred that adversely impacted the outcome of the hearing as it applies to the appealing party, the Appeals Panel may adjust the outcome of the hearing, including any findings or sanctions. This is the final decision of the University unless the Appeals Panel sends the Complaint back to the original Hearing Board with procedural instructions to reconvene and cure the irregularity and reach a decision, which may or may not be the same as its previous decision. The results of a reconvened Hearing Board are the final decision of the University.
    2. New Evidence: If it is determined that new evidence has arisen which was not available to the appealing party at the time of the hearing and that reasonably could have favorably impacted the outcome of the matter as it applies to the appealing party, and which was unknown to the appealing party at the time of the hearing, the Appeals Panel may adjust the outcome of the hearing, including any findings or sanctions. This is the final decision of the University unless the Appeals Panel sends the Complaint back to the original Hearing Board with procedural instructions to reconvene and consider the new evidence and reach a decision, which may or may not be the same as its previous decision. The results of a reconvened Hearing Board are the final decision of the University.
    3. Conflict of Interest, or Bias: If the Appeals Panel determines that the Title IX Coordinator, investigator(s), or decision-maker(s) had a conflict of interest or bias for or against Complainants or Respondents generally or an appealing individual Complainant or an appealing individual Respondent that adversely impacted the outcome of the matter as it applies to the appealing party, the Appeals Panel may adjust the outcome of the hearing, including any findings or sanctions. This is the final decision of the of the University unless the Appeals Panel sends the Complaint back to the original Hearing Board or a new Board with procedural directions to cure the conflict of interest or bias and reach a decision which may or may not be the same as its previous decision. The results of a reconvened Hearing Board are the final decision of the University.
    4. Sanctions: If it is determined that the sanction(s) were too harsh or lenient considering all facts and circumstances of the incident, the Appeal Panel may modify the sanction(s) accordingly. The Appeals Panel’s determination is the final decision of the University.
  6. The Appeals Panel will endeavor to make a determination within seven (7) business days and such determination will be in writing. Before issuance to the parties, the Panel’s draft determination shall be provided to the Title IX Coordinator. The Title IX Coordinator may then meet privately with the Panel to help assure compliance with this Policy. The determination will include the result of the appeal and the rationale for the result, and will be provided simultaneously to the Complainant and the Respondent.

  1. Records of investigations and hearings are maintained by the University for seven (7) years from the student’s graduation date or if the student leaves the University before graduation, for seven (7) years after leaving.
  2. The hearing recording will be maintained as part of the case record as indicated above. The Complainant and the Respondent may review the recording during normal business hours by contacting the Title IX Coordinator or may be given electronic access to the recording at the discretion of the Title IX Coordinator.
  3. Participants will be given reasonable access to these records during Gardner-Webb’s business hours.

  1. The University reserves the right to modify or adapt these procedures as needed to allow for the fair and prompt resolution of a Complaint, such as when it is received at the end of a term or during a break in the University’s academic schedule.
  2. Absence of a Complainant:
    1. As explained in this Policy, the University, through its Title IX Coordinator, reserves the right to initiate a Formal Complaint without the participation of a party allegedly subjected to Sexual Misconduct.
    2. In such cases, the University reserves the right to terminate the Complaint process at any time, including, but not limited to, circumstances in which it is able to reach a resolution with Respondent that satisfies the University’s obligations under Title IX to end the alleged conduct, prevent its recurrence, and remedy its effects on Complainant and/or the University Community.
  3. Alcohol and Drug Use Amnesty: A student (including Complainant or Respondent) acting in good faith who discloses any incident of Sexual Misconduct to Gardner-Webb officials or law enforcement will not be subject to the Gardner-Webb policies relating to alcohol and/or drug use occurring at or near the time of the commission of the alleged Sexual Misconduct. However, the use of alcohol or drugs will never function as a defense for any behavior that violates the Gardner-Webb Sexual Misconduct Policy.
  4. Past Sexual History: If a party believes that the past sexual history of the other party is relevant to the investigation and/or Complaint proceeding they must submit a written request to the Title IX Coordinator no later than three (3) business days prior to the hearing explaining the nature of the information and why the information is relevant to the investigation and/or Complaint proceeding. The Title IX Coordinator, in conjunction with the Hearing Board, will review the request and generally render a decision within two (2) business days or within such time as is reasonable.
  5. Medical History: If a party believes that the current or past medical history past sexual history of the other party is relevant to the investigation and/or Complaint proceeding they must submit a written request to the Title IX Coordinator no later than three (3) business days prior to the hearing explaining the nature of the information and why the information is relevant to the investigation and/or Complaint proceeding. The Title IX Coordinator, in conjunction with the Hearing Board, will review the request and generally render a decision within two (2) business days or within such time as is reasonable.
  6. Respondent’s Prior Conduct History: The Investigator and/or Board may consider relevant past findings of Sexual Misconduct or other misconduct if the Respondent was previously found to be responsible for a violation that was either not appealed or that was affirmed on appeal.
  7. Failure to Comply with Complaint Procedures: If a party or other participant in the process (e.g., a support person) fails to comply with the procedures set forth herein, the University reserves the right to terminate the investigation or Complaint proceeding and/or to exclude a participant from further participation in the process. The University shall not terminate a process or exclude a participant from further participation without providing advance written notice and an opportunity for the affected party to respond in writing. In such circumstances, the University shall implement alternative resolution options as may be appropriate under the circumstances to insure that, notwithstanding any misconduct during the Complaint proceeding, the University has taken reasonable steps to determine whether a violation of the University’s Sexual Misconduct policies occurred and, if so, to take prompt and appropriate remedial actions in response to such conduct.

Appendixes

  1. The Title IX Coordinator shall generally facilitate the hearing process and serve as a conduit for information between the parties/Advisors and the Board. The Title IX Coordinator shall provide the required notices to the parties, and the parties will provide their responses to the Title IX Coordinator, who will in turn provide them to the Board. The Title IX Coordinator shall also be available to answer questions about the hearing process from the Board, the parties, and/or their Advisors, both prior to the hearing and at the hearing.
  2. Persons chosen to be Board members must immediately inform the Title IX Coordinator of any facts or circumstances of which they are aware that they believe could reasonably constitute a conflict of interest or bias against a party. The Title IX Coordinator will determine whether such facts or circumstances give rise to a conflict of interest or bias. If the answer is in the affirmative, the Board member will be relieved of their duties and another person picked from the Pool. In order to protect the integrity of the process, the Title IX Coordinator may relieve a Board member of their duties if the Title IX Coordinator determines there could be the appearance of conflict or bias, even if the Title IX Coordinator determines there is no actual conflict or bias.
  3. Prior to the hearing, both parties will receive formal notice of the hearing including sufficient details, as necessary, about the allegations so as to apprise them of the charges, the identity of the parties involved in the incident (if known), the conduct allegedly constituting sexual harassment, and the date and location of the alleged incident (if known). The notice will also include (i) a statement that the respondent is presumed not responsible until a determination is made at the conclusion of the process; (ii) information regarding the parties’ right to an Advisor and the right to review evidence; and (iii) notice of any provision in this Policy or Gardner-Webb’s other policies that prohibit knowingly making false statements or submitting false information. If additional allegations of Sexual Misconduct are later included within the scope of the investigation, additional notice must be provided at that time.
  4. The hearing will be scheduled to occur no fewer than ten (10) business days after the parties receive the investigative report. Prior to the hearing the parties may provide a written response to the investigative report for consideration of the Hearing Board if they choose to do so.
  5. The hearing will be scheduled to allow reasonably sufficient time for the Complainant and the Respondent to prepare and to allow for the participation of all material witnesses, provided, however, that the hearing will generally be scheduled to occur within ten (10) business days of the formal notice of the hearing.
  6. Both parties have five (5) business days from receipt of notice of a hearing to inform the Title IX Coordinator of the name and contact information of their Advisor and any support person (in addition to their Advisor, a party may have one support person present, but a support person is not required). Within those same five (5) days a party without an Advisor may ask the University to appoint one for them. Under those circumstances the Title IX Coordinator will appoint a non-attorney Advisor from the Pool. A party cannot serve as their own Advisor under any circumstances.
  7. Both parties have five (5) business days from receipt of notice of a hearing to submit a list of any proposed witnesses to the Title IX Coordinator. The witness list should include the following information regarding each proposed witness:
    1. The names and contact information of any witnesses that the party intends to call, if any;
    2. A description of what each witness observed, if not already provided during the investigation;
    3. A summary of why the witness’s presence is relevant to making a decision at the hearing; and
    4. With regard to any named witnesses that were not interviewed during the investigation, any facts of which the party is aware on the question of why the witness was not interviewed by the investigator.
  8. No later than three (3) business days after receipt of the hearing notice the Complainant and/or Respondent may request one (1) extension of up to five (5) business days for good cause shown, as determined by the Title IX Coordinator. Additional short delays in the proceedings may be granted by the Title IX Coordinator for good cause shown.
  9. At the request of either party, or if the Title IX Coordinator determines it is the best way to provide for a fair and efficient hearing, Gardner-Webb will provide for the live hearing to occur with the parties located in separate rooms with technology enabling the Board and parties to simultaneously see and hear the party or the witness answering questions.
  10. The Title IX Coordinator may, in their discretion, accommodate requests for alternative participation options (such as by Skype or other video conferencing formats) for the Complainant, the Respondent, and/or witnesses when appropriate, provided that the hearing takes place live, whether in person or by video.
  11. The Investigation Record and the Investigation Report (“Record for Hearing”) will be shared with the Board for review prior to the hearing.
  12. The Board may identify additional witnesses they would like to have appear. Both parties will be notified in advance of the hearing of any new witnesses who will be invited to appear by the Board.
  13. All live witnesses will be subject to cross-examination by the other party’s Advisor at the hearing.
  14. Only the parties’ Advisors and Board members are permitted to ask questions of the parties and witnesses. The parties may speak quietly with their Advisors during the hearing. The parties are entitled to breaks at reasonably spaced intervals as determined by the Board Chair. Only relevant questions may be asked of a party or witness.
  15. All questions from Advisors are directed to the Board Chair. Before a Complainant, Respondent or other witness answers a question from an Advisor, the Board Chair will determine whether the question is relevant. If it is relevant the Board Chair will indicate to the witness that they may answer the question. If the Board Chair determines that the question is irrelevant the Chair will indicate to the witness that they shall not answer and then explain why the question was excluded as irrelevant.
  16. Board members may pose questions directly to the Complainant, Respondent and witnesses.
  17. Questions and evidence about the Complainant’s sexual predisposition or prior sexual behavior with persons other than the Respondent are not relevant unless such questions and evidence are offered to prove that someone other than the Respondent committed the conduct alleged by the Complainant.
  18. Both parties have the right to not participate in the hearing if they so choose. In cases where the Respondent and/or Complainant have chosen not to participate in the hearing, the hearing will commence and the Board will hear from the party (if one exists) who has chosen to participate in the hearing, and review all the other evidence it would normally review if the missing party had been present.
  19. Board hearings are closed. Attendees are limited to the Complainant, the Respondent and their respective Advisors and support persons, the Hearing Board, and the Title IX Coordinator. Witnesses shall be present only during the time that they are being questioned. The hearing itself will be recorded or transcribed but the deliberations will not. The recording or transcription will be available for inspection and review upon request of a party or their Advisor within a reasonable time after the hearing.
  20. Hearing Outline: The general course of the hearing will be as follows:
    1. The Chair will convene the hearing.
    2. The Complainant/Advisor will be asked to make an opening statement if they choose to do so.
    3. The Respondent/Advisor will be asked to make an opening statement if they choose to do so.
    4. The Complainant will respond to any questions posed by members of the Board and the Respondent’s Advisor.
    5. The Complainant’s Advisor may call witnesses as allowed by the Board Chair and the Respondent’s Advisor may cross examine those witnesses.
    6. The Respondent will respond to any questions posed by members of the Board and the Complainant’s Advisor.
    7. The Respondent’s Advisor may call witnesses as allowed by the Board Chair, and the Complainant’s Advisor may cross examine those witnesses.
    8. The Chair will call any additional witnesses to provide information and respond to questions as the Board determines necessary. The parties’ Advisors may cross-examine those witnesses.
    9. The Board will ask further questions of the parties as it deems appropriate.
    10. The Complainant/Advisor will make a closing statement if they choose to do so.
    11. The Respondent/Advisor will make a closing statement if they choose to do so.
    12. The Board will conclude the hearing and meet in private to deliberate.
  21. The Board will use the Preponderance of Evidence Standard of proof to determine whether a policy violation occurred, and findings or non-findings of responsibility shall be based on majority vote.
  22. If deemed reliable and relevant by the Board, and not otherwise subject to exclusion under this Policy or applicable law, the Board may consider the statements of persons who were not present at the hearing, or persons who were present at the hearing but who nevertheless were not subject to cross-examination. This includes, but is not limited to, opinions and statements in police reports or other official reports, medical records, court records and filings, investigation notes of interviews, emails, written statements, affidavits, text messages, social media postings, and the like.
  23. The Board will not draw an inference about responsibility based solely on a party or witness’s absence or refusal to answer questions.
  24. Circumstances that Require Dismissal: The Board must dismiss a Formal Complaint: (1) if the allegations would not constitute Sexual Misconduct under this Policy, even if proven; (2) if the incident did not occur in Gardner-Webb ’s Educational Program or Activity; or (3) did not occur against a person in the United States.
  25. Subject to the University’s right to continue with a Formal Complaint under circumstances specified in this Policy, the Board shall also dismiss the Formal Complaint if the Complainant provides written notice of their request for dismissal to the Title IX Coordinator.
  26. Circumstances Under Which the Board May Dismiss but is not Required to Dismiss: If the Respondent is no longer enrolled at or employed by Gardner-Webb, or when specific circumstances prevent the gathering of evidence sufficient to reach a determination.
  27. Board Findings: Before issuance to the parties, the Board’s written draft determination findings regarding responsibility and/or non-responsibility shall be provided to the Title IX Coordinator. The Title IX Coordinator may then meet privately with the Board to help assure compliance with this Policy. The written determination will include:
    1. Identification of the allegations potentially constituting Sexual Misconduct under this Sexual Misconduct Policy;
    2. A description of the procedural steps taken from receipt of the Formal Complaint through the determination, including any notification to the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, and hearings held;
    3. Findings of fact supporting any determination of responsibility or non-responsibility based on the preponderance of the evidence standard;
    4. Conclusions regarding the application of Gardner-Webb ’s Sexual Misconduct Policy to the factual allegations. This will include all findings of responsibility under this Policy and all non-findings of responsibility under this Policy, all based on the allegations at the hearing and the preponderance of the evidence;
    5. Any disciplinary sanctions imposed on the Respondent and the reasons those sanctions were chosen. Any one or more of the listed sanctions shown in Appendix C may be issued to a Respondent who is found responsible for any Sexual Misconduct policy violation(s). Some of the sanctions listed are applicable only to students. Sanctions are assessed in response to the specific violation(s), the evidence and information from the hearing, and any relevant past findings of Sexual Misconduct or other misconduct if the Respondent was previously found to be responsible for a violation that was either not appealed or that was affirmed on appeal;
    6. Whether or not additional remedies designed to restore or preserve access to Gardner-Webb’s education program or activity will be provided to the Complainant, but not the nature of those remedies; and
    7. Gardner-Webb’s procedures and permissible bases for the Complainant and Respondent to appeal.
  28. The finalized determination will then be sent simultaneously to the parties along with information about how to file an appeal.
  29. The determination becomes final unless there is a timely appeal.
  30. Rules of Hearing Decorum: Hearings are primarily educational and administrative in nature. Hearings are not civil or criminal proceedings and the formal rules of evidence and civil procedure do not apply, even if an attorney is serving as an Advisor. The following Rules of Decorum are to be observed in the hearing and applied equally to all parties and their Advisors:
    1. Questions must be conveyed in a neutral tone.
    2. Parties and Advisors will refer to other parties, witnesses, Advisors, 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.
    3. No party may act abusively or disrespectfully during the hearing toward any other party or to witnesses, Advisors, or decision-makers.
    4. The Advisor may not yell, scream, badger, or physically ‘‘lean in’’ to a party or witness’s personal space. Advisors may not approach the other party or witnesses without obtaining permission from the Chair.
    5. The Advisor may not use irrelevant profanity or make irrelevant ad hominem attacks upon a party or witness.
    6. The Advisor may not ask repetitive questions. When the Chair determines a question has been “asked and answered” or is otherwise not relevant, the Advisor must move on.
    7. Parties and Advisors 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.
  31. Warning and Removal Process: The Board shall have sole discretion to determine if the above Rules of Decorum have been violated and whether the violator should be removed from the hearing. The first violation may be sufficiently egregious to justify removal of the violator. Unless the first violation has been especially egregious, however, the Chair will notify the offending person of a violation of the Rules of Decorum and direct the person to commit no further violations. In that case, if there is a second violation by the same person, the Board shall have discretion to remove that person. Where the Board removes a party’s Advisor, the party may select a different Advisor of their choice, or accept an Advisor provided by Gardner-Webb. Reasonable delays, including the temporary adjournment of the hearing, may be anticipated should an Advisor be removed. The Board shall document any decision to remove an Advisor in the written determination regarding responsibility. However, there shall be no continuation or delay in the proceedings if the Board determines that the violation was for the purpose of delaying the hearing.

  1. The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (The “Clery Act”)
    1. Statistical Reporting: The Clery Act is a federal law requiring institutions of higher education to collect and report statistics on certain crimes in an annual Security Report. Certain University officials have a duty to provide the Campus Police information regarding crimes when they are reported to them. All efforts are made to keep Personally Identifiable Information confidential, but statistical information regarding Clery reportable crimes must be publicly shared, including the date and location of the incident and information about the reported crime to allow for proper classification. This report provides the community with information about the extent and nature of campus crimes, to ensure greater community safety.
    2. Campus Authorities are required to inform the Campus Police of crimes reported to them.
    3. Timely Warning: Complainants should also be aware that University Police must issue timely warnings for incidents reported to them that are confirmed to pose a substantial threat of bodily harm or danger to members of the campus community.
    4. The Clery Act permits the University to release publicly the name, nature of the violation and the sanction(s) for any student who is found in violation of a University policy that is also a “crime of violence,” including: arson, burglary, robbery, criminal homicide, sex offenses, assault, intimidation (which may encompass stalking and/or bullying), hazing, destruction/damage/vandalism of property and kidnapping/abduction. The University will release this information to the Complainant regarding any of these offenses.
  2. Family Educational Rights and Privacy Act (FERPA)
    1. The outcome of a campus hearing is part of the educational record of an involved Gardner-Webb student. Generally speaking, the educational records of students are protected from release under a federal law, FERPA (20 U.S.C. § 1232g; 34 CFR Part 99). The University complies with FERPA regulations.
    2. However, the Complainant(s) in a non-consensual sexual contact/intercourse incident has the right to be informed of the finding, and sanction(s) of the investigation or hearing, in writing, without condition or limitation.
    3. In addition, the Complainant(s) in a Sexual Misconduct or any other gender-based offense has the right to be informed of the finding, in writing, and to be informed of any sanction(s) that directly relate to them, and to essential facts supporting the outcome when the outcome is “responsible” (and the underlying offense is a crime of violence as defined below and in 34 C.F.R. 99.39) and/or it is equitable to share the essential findings with all parties.
    4. FERPA allows for the release of student records beyond the exceptions listed above. Student education records, including student conduct records, can be subpoenaed by a court of law. Information from a student’s education record may be released to a third party with the student’s permission. Pursuant to a signed release, third parties (including but not limited to, graduate schools, potential employers, parents of non-minors, etc.) may request information from a student’s education record. Additional exceptions apply. For a fuller understanding of student rights and FERPA, please see the University’s FERPA policy on the Registrar’s webpage.

The examples of sanctions provided are guidelines and not an exhaustive list of the sanctions that may be implemented for violations of the Policy. Any one or more sanctions may be imposed upon a Respondent who is found responsible for any Sexual Misconduct policy violation(s). The fact that a Respondent has completed all academic requirements for his/her academic degree does not preclude the imposition of any sanctions under this policy, including suspension or expulsion. The examples of sanctions include but are not limited to those stated below:

  1. Service Hours: A set number of work hours the Respondent must complete. The Title IX Coordinator will determine the nature of the work to be performed. Generally, service hours are conducted on campus.
  2. Educational Program/Project: Programs and activities designed to help the Respondent become more aware of University policies and prohibited behavior in an attempt to help the Respondent understand the inappropriateness of their conduct, including, but not limited to, participation in an educational program or completion of an online program.
  3. Referral for Counseling: A referral for an assessment with an appropriately trained therapist, the signing of a release that will allow the Title IX Coordinator to check with the therapist to determine whether the Respondent is attending therapy, and a mandate to follow any recommendations resulting from the counseling.
  4. Loss of Privileges: Denial of specific privilege(s) for a defined period of time. Privileges include, but are not limited to, participation in extra-curricular activities and events such as social events, intercollegiate athletics, intramural programs, student organizations, and student government.
  5. Restricted Access: Conditions which specifically dictate and limit the Respondent’s presence on campus and/or participation in University-sponsored activities. The restrictions will be clearly defined and may include, but are not limited to, student housing and presence in certain buildings or locations on campus.
  6. Removal of Offending Cause: Requirement to remove the item which was the subject of the Complaint.
  7. Relocation: Requirement that the Respondent relocate to another residence hall, or off-campus, by a specified date.
  8. Warning: Written notice that the Respondent’s behavior was in violation of the University’s Sexual Misconduct Policy and that future violations may result in more severe sanctions.
  9. Fine: A monetary penalty assessed as appropriate to the violation.
  10. Conduct Probation: Formal, written notice that the Respondent’s behavior is in violation of the University’s Sexual Misconduct policy and a requirement that the Respondent act in compliance with all University policies and procedures and/or any other sanctions imposed under this Policy for a defined period of time. Any violation during the probationary period may result in further sanctions, including, but not limited to, expulsion.
  11. Suspension: Separation from the University for a defined period of time. During the suspension period the Respondent is not permitted on campus and is not permitted to participate in any University- sponsored or affiliated program or activity. The terms of the suspension may include the designation of special conditions affecting eligibility for readmission or special conditions to be in effect upon readmission including the directive that the Title IX Coordinator will determine if and when the Respondent is eligible to re-apply. If the Respondent reapplies there is no guarantee of readmission, as the standard admission requirements shall apply.
  12. Expulsion: Permanent separation from the University without possibility of re-admission. A Respondent who has been expelled is not permitted on campus and is not permitted to participate in any University- sponsored or affiliated program or activity.

  1. After a Complaint or Formal Complaint of Sexual Harassment has been filed, the parties can choose to resolve the matter through Gardner-Webb’s Informal Resolution Process. The Informal Resolution Process is a dispute resolution option for Complainants and Respondents designed to provide the parties with a swift resolution to a Complaint or Formal Complaint of Sexual Harassment, without the need for a formal process.
  2. In order to submit to the Informal Resolution Process, both parties must provide written, voluntary consent to the Process and Gardner-Webb must determine that the process is appropriate for resolving the dispute at issue. Gardner-Webb will not require that the parties submit to the Informal Resolution Process, and participation in the Process is completely voluntary for all parties.
  3. Advisors and support persons may participate in the Informal Resolution Process at the request of the Complainant or Respondent, as the case may be.
  4. Information learned during any Informal Resolution Process will not be considered in any investigation or hearing. There will be no reference to Informal Resolution or any information learned during the Informal Resolution Process in any investigative report if the Informal Resolution Process is unsuccessful.
  5. The parties cannot submit to the Informal Resolution Process if a Complaint or Formal Complaint involves a student as the Complainant and an employee as the Respondent.
  6. Written Notice. Once the parties decide to submit to the Informal Resolution Process, the Title IX Coordinator will provide the parties with written notice, including:
    1. The allegations;
    2. The requirements of the informal resolution process, including the right to resume the Formal Grievance Process; and
    3. Any consequences resulting from participating in the informal resolution process (there typically will be none).
  7. Time Frame. Whenever possible, Gardner-Webb will submit a Complaint or Formal Complaint to the Informal Resolution Process within thirty (30) business days from receipt of the Formal Complaint. All time frames outlined in this Policy are meant as guidelines rather than rigid requirements.
  8. The Informal Resolution Process is designed to enable the parties to come to a mutual agreement concerning the resolution of a Formal Complaint. The parties are entitled to an Advisor throughout the Informal Resolution Process.
  9. Informal Resolution Facilitators. The Title IX Coordinator or designee will act as Informal Resolution Facilitator during the Informal Resolution Process. In that role, the Facilitator assists the parties with navigating the Informal Resolution Process.
  10. Withdrawal. The parties do not waive their right to a formal grievance process. At any time before signing the Informal Resolution Agreement, either party may choose to withdraw from the Informal Resolution Process and resume the formal grievance process. A Complainant may exercise their right to discontinue the process. The party must provide their intention to withdraw from the Informal Resolution Process in writing to the Informal Resolution Facilitator.
  11. Informal Resolution Agreement. The Informal Resolution Process is completed when the parties and the Title IX Coordinator sign the Informal Resolution Agreement. The Informal Resolution Agreement is treated as a contract, which the parties are free to negotiate. Once signed, the terms of the Informal Resolution Agreement are binding on the parties.
  12. Privacy. The terms and conditions of any Informal Resolution Process should be treated as private to promote mutually beneficial resolutions between the parties and to encourage Complainants to report any complaints of misconduct under the Policy.
  13. Outcomes. The Informal Resolution Process may result in any measures designed to ensure the parties’ access to Gardner-Webb’s programs as well as any outcome available during the Formal Grievance Process, including disciplinary measures up to and including removal of the Respondent from Gardner-Webb.

Revised Policy adopted September 2021