Policy Number 101.4
Implementation Date August 14, 2020
Next Review Date August 14, 2023
Responsible Office Title IX Coordinator, Dean of Students
The University of Montana Western, an affiliate of the University of Montana, (hereafter referred to as UMW or University) commits to a learning and working environment that emphasizes the dignity and worth of every member of its community that is free from discrimination, harassment, and retaliation based upon race, color, religion, national origin, creed, service in the uniformed services (as defined in state and federal law), veteran status, sex, gender, age, political ideas, marital or family status, pregnancy, physical or mental disability, genetic information, gender identity, gender expression, or sexual orientation (taken together, generally, “protected-class harm”). An inclusive environment is necessary to a healthy and productive University community. The University will take appropriate action to prevent, resolve, and remediate protected-class harm.
This Policy prohibits members of the University community including employees, students, affiliates, and visitors from engaging in Prohibited Conduct as described below at Section XI, while engaged in activities directly related to the nature of their University affiliation. This Policy incorporates the Discrimination Grievance Procedures, which set forth by the University’s resolution processes for violations of this Policy.
III. Reporting to the Office of Equal Opportunity & Title IX
The University encourages prompt reporting of conduct that may violate this Policy. Reports of Prohibited Conduct should be made directly to the University’s Title IX Coordinator. All Reports of Prohibited Conduct, as described below, or informational requests and inquiries about this Policy or the Procedures, should be filed with the Title IX Coordinator:
Title IX Coordinator, Nicole Hazelbaker
Dean of Students Center
528 Poindexter, Dillon MT 59725
(406) 683-7900 | firstname.lastname@example.org or https://cm.maxient.com/reportingform.php?UnivofMontanaWestern
Some forms of conduct contemplated by this Policy may also constitute crimes and the University strongly encourages individuals to make reports to law enforcement at Dillon City Police Department, 406-683-3700 or other appropriate law enforcement agency. The Title IX Coordinator can aid in reporting to law enforcement.
Particular conduct reported under this Policy may trigger a timely warning notification in accordance with the Clery Act. Specifically, the University must issue timely warnings for incidents reported that pose a serious or continuing threat of bodily harm or danger to members of the campus community. The University will undertake efforts to ensure that names and other personally identifiable information is not released, while providing sufficient information to members of the campus community to make informed decisions consistent with the circumstances.
A. Report of Prohibited Conduct
A Report of Prohibited Conduct may be filed with the Title IX Coordinator by any individual, including a third party, and is intended to alert the University of a potential violation of this Policy. Except for reports submitted within a University employee’s Mandatory Reporter obligation, described below, a Report of Prohibited Conduct may include any information deemed relevant by the reporting person, including: names and contact information for all individuals involved; date(s); location(s); and a description of the protected-class harm.
Upon receipt of a Report of Prohibited Conduct, the Title IX Coordinator will promptly reach out to the identified Complainant to offer Supportive and Protective Measures, as described below at Section VI, consider the Complainant’s wishes with respect to Supportive and Protective Measures, inform the Complainant of the availability of Supportive and Protective Measures with or without the filing of a Formal Complaint, and invite the Complainant to meet with the Title IX Coordinator to assess jurisdiction and discuss potential resolution options, including the process for filing a Formal Complaint. A Report of Prohibited Conduct does not trigger a Grievance Proceeding or Informal Resolution Process.
B. Mandatory Reporting
All University employees must, within 24 hours of receiving the information, report information they have about Discrimination based on sex and Sexual Harassment, as defined by this Policy, involving students to the Title IX Coordinator. The employee must provide the Title IX Coordinator with all information they have directly related to the incident. This includes, but is not limited to the names of people involved, as well as facts, including the date(s), time(s), and location(s). Employees should not conduct their own investigations or engage in fact-finding, but as described above, should report information they have. Confidential Resources as defined in this Policy at Section V are exempt from this mandatory reporting requirement.
C. Formal Complaint
The University will not initiate a Grievance Proceeding or Informal Resolution Process, defined in the Procedures at Sections IV and V, respectively, in the absence of a Formal Complaint. A Formal Complaint means a document filed by a Complainant or signed by the Title IX Coordinator alleging Prohibited Conduct by a named Respondent and requesting that the University investigate and adjudicate the allegation(s) of Prohibited Conduct; and meet the applicability and jurisdiction requirements set forth in this Policy at Sections II and IV, respectively. A Formal Complaint may be filed with the Title IX Coordinator in person, by mail, by electronic mail, or at the contact information listed in the Policy at Section III. The Formal Complaint must contain the Complainant’s physical or digital signature, or otherwise indicate that the Complainant is the person filing the Formal Complaint.
The Title IX Coordinator will not sign a Formal Complaint without a requesting and participating Complainant unless the Title IX Coordinator deems it necessary for campus safety based on factors such as:
- Patterned Prohibited Conduct, as evidenced by more than one report of distinct but similar Prohibited Conduct against the same Respondent;
- Excessive violence, as evidenced by reported Prohibited Conduct involving a weapon, significant bodily injury, or ongoing and continued threats of physical harm; or
- Harm to minors, as evidenced by any report of Prohibited Conduct against a child.
A. Adjudicatory Jurisdiction
The objective of this Policy is to provide a learning and working environment that is free from the Prohibited Conduct described below consistent with the University’s commitment to diversity, equity, and inclusion. While UMW strongly opposes all forms of protected-class harm, the University’s jurisdiction to investigate and adjudicate Formal Complaints is limited. Except as otherwise specified in the definitions below, adjudicatory jurisdiction under this policy extends to Prohibited Conduct that is alleged to have occurred within a University Program or Activity, or that has a material adverse effect on an individual’s participation in or attempted participation in a University Program or Activity. A University Program or Activity includes locations, events, or circumstances over which the University exercised substantial control over both the Respondent and the context in which the Prohibited Conduct is alleged to have occurred, and also includes any buildings owned or controlled by a student organization that is officially recognized by the University.
Jurisdiction is determined by the Title IX Coordinator.
Federal regulations limit the University’s jurisdiction to resolve a Formal Complaint alleging Sexual Harassment to conduct occurring against a person in the United States.
B. Supportive and Protective Measures Jurisdiction
Individuals should not avoid reporting Prohibited Conduct to the University on jurisdictional grounds. While the University may not have jurisdiction to investigate or adjudicate a report of Discrimination, Harassment, or Retaliation that occurred separate from a University Program or Activity, Title IX has broad jurisdiction to coordinate and implement Supportive and Protective Measures, as described below at Section VI, to members of the University community adversely affected by protected-class harm.
Similarly, individuals should not wait to report ongoing conduct until it becomes sufficiently serious to constitute a Policy violation. The Title IX Coordinator can provide advice and, in some cases, may take non-punitive preventive measures, to address conflict in the interest of maintaining a safe and equitable campus environment.
V. Confidential and Non-Confidential Resources
There is a distinction between making a report to the University or law enforcement and seeking confidential assistance through Confidential Resources described below. Not every campus or community resource is confidential and this section explains to whom individuals who have experienced Prohibited Conduct can talk without their disclosure being revealed to any other person without their express permission or as required by law.
A. Confidential Resources
Confidential Resources are those campus and community professionals who can maintain legally-protected confidentiality within the University for the individual who shared the information. Confidentiality means that information shared by an individual with a Confidential Resource cannot be revealed to any other person without express permission of the individual, or as otherwise permitted or required by law. Confidential Resources are prohibited from disclosing confidential information unless (1) given permission by the person who disclosed the information; (2) there is an imminent threat of harm to self or others; (3) the conduct involves suspected abuse of a minor under the age of 18; or (4) as otherwise required or permitted by law or court order.
Confidential Resources available to individuals include the Student Counseling Center or other licensed medical health-care professionals acting in their health care capacity. Information about on-campus and off-campus resources is attached to this Policy as Appendix A.
B. Non-Confidential Resources
The Title IX Coordinator is not a Confidential Resource. Nevertheless, the Title IX Coordinator will make every effort to respect and safeguard the privacy of the individuals involved in reporting or otherwise participating in any process described by this Policy or the accompanying Procedures. Privacy means that reports of Prohibited Conduct will only be shared with limited individuals who need to know for the purpose of assessment, implementation of Supportive and Protective measures, and resolution of a Formal Complaint, and to the extent required by law or court order.
VI. Supportive and Protective Measures
The Title IX Coordinator is responsible to coordinate Supportive and Protective measures in response to conduct contemplated by this Policy. Supportive and Protective measures are non-disciplinary, non-punitive individualized services and tools offered as appropriate, as reasonably available, and without fee or charge to a Complainant or Respondent before, during or after the filing of a Formal Complaint or where no Formal Complaint has been filed. Supportive and Protective measures are designed to restore or preserve equal access to the University’s Programs and Activities without unreasonably burdening the other party, and includes measures designed to protect the safety of all parties or the University’s campus environment, or prevent or deter potential Prohibited Conduct.
Supportive and Protective measures may include counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, campus escort services, changes in work or housing locations, leave of absence, increased security and monitoring of certain areas of campus, safety planning, referrals to on and off-campus services, trainings, mutual restrictions on contact, and other similar measures. Additional information about mutual restrictions on contact is attached as Appendix B, and incorporated here by reference.
VII. Emergency Removal/Administrative Leave/Suspension
If the University determines that a student poses an immediate threat to the physical health or safety of any student or other individual, it may remove such student from the University in accordance with the Student Code of Conduct. The University may place a non-student employee who is alleged to have violated this Policy on administrative leave or suspension in accordance with the accompanying Procedures and applicable collective bargaining agreements, during the pendency of the Grievance Proceeding described in the accompanying Procedures.
VIII. Amnesty for Drug or Alcohol Possession or Consumption
The University strongly encourages students to report instances of potential Prohibited Conduct involving students. Therefore, students who report information about Prohibited Conduct involving students will not be disciplined by the University for any violation of the University’s drug or alcohol possession or consumption policies in which they might have engaged in connection with the reported incident. Amnesty does not preclude or prevent action by police or other legal authorities pursuant to relevant state or federal criminal statutes.
IX. Free Expression and Academic Freedom
The University of Montana Western has a long tradition of, and a deep commitment to, academic freedom. The welfare and strength of the University and of society at large depend upon the ability to engage in free expression in the search for meaning. To this end, the University of Montana Western recognizes and protects full freedom of inquiry, teaching, research, discussion, study, publication, and for artists, the creation and exhibition of works of art, without hindrance, restriction, equivocation, or reprisal. This right extends to other facets of campus life to include the right of a faculty member or student to speak on general educational questions or about the Administration and operation of their own institution and the Montana University System.
Constitutionally protected speech and traditional notions of academic freedom are valued in higher education. These ideals help to create the stimulating and challenging learning environment that should characterize higher education. In the spirit of a true university environment, individuals are encouraged to invite, rather than inhibit, discourse on ideas. In addressing all reports under this Policy, the University will take all permissible actions to ensure the safety of students and employees while complying with free speech requirements for students and employees. While the University will vigilantly protect students’ and employees’ rights against Prohibited Conduct, this Policy does not apply to curriculum or in any way prohibit or abridge the use of particular textbooks or curricular materials.
X. Prohibited Conduct
The following conduct is prohibited.
Discrimination is conduct based upon an individual’s race, color, religion, national origin, creed, service in the uniformed services (as defined in state and federal law), veteran status, sex, gender, age, political ideas, marital or family status, pregnancy, physical or mental disability, genetic information, gender identity, gender expression, or sexual orientation (“protected classes”) that:
- Adversely affects a term or condition of an individual’s employment, education, living environment or participation in a University activity; or
- Is used as the basis for or a factor in decisions affecting that individual’s employment, education, living environment or participation in a University activity; or
- Constitutes Harassment, as defined below, by unreasonably interfering with an individual’s employment, educational performance, on-campus living environment, or participation in a University Program or Activity.
Discrimination includes failing to provide reasonable accommodation to persons with disabilities. Under the Policy, a person with a disability means a person with a physical or mental impairment that substantially limits a major life activity; has a record of such impairment; or is regarded as having such an impairment. Determinations of whether individuals have a physical or mental impairment that substantially limits a major life activity (and therefore has a disability) are made on a case by case basis. In accordance with the Americans with Disabilities Act (ADA), as amended, Section 504 of the Rehabilitation Act of 1973, and applicable federal and state laws, the University is committed to providing access and reasonable accommodation in its services, programs, activities, education, and employment for individuals with disabilities.
An exception to the definition of Discrimination is a bona fide occupational qualification.
The University prohibits two forms of Harassment as described below: (1) Discriminatory Harassment; and (2) Sexual Harassment.
1. Discriminatory Harassment
Discriminatory Harassment is unwanted conduct that is: (a) based upon an individual’s race, color, religion, national origin, creed, service in the uniformed services (as defined in state and federal law), veteran status, sex, gender, age, political ideas, marital or family status, pregnancy, physical or mental disability, genetic information, gender identity, gender expression, or sexual orientation; and (b) that has the purpose or effect of unreasonably interfering with a reasonable person’s participation in a University Program or Activity.
Discriminatory Harassment emphasizes the consequence of conduct on an individual’s participation in a University Program or Activity. The following factors will be considered in assessing whether conduct objectively constitutes an unreasonable interference in a University Program or Activity:
- The identity of the parties, the nature of the parties’ relationship, and the influence of that relationship on the complainant(s)’ employment or education;
- The nature, scope, frequency, and duration of the protected class conduct;
- The degree to which the protected class conduct affected one or more students’ education or individual’s employment; and
- The nature of higher education.
2. Sexual Harassment
Acts of Sexual Harassment may be committed by any person upon any other person, regardless of the sex, gender, sexual orientation, and/or gender identity of those involved.
Sexual Harassment is conduct that: (1) occurs within a University Program or Activity located in the United States; (2) affects an individual participating or attempting to participate in a University Program or Activity at the time the Formal Complaint is filed; (3) is based on sex, gender identity, gender expression, or sexual orientation; and (4) satisfies the elements of Quid Pro Quo Conduct, Hostile Environment, Sexual Assault, Domestic Violence, Dating Violence, Stalking, or Sexual Exploitation, as defined below.
- Quid Pro Quo Conduct occurs when:
- an employee of the University,
- conditions the provision of an aid, benefit, or service of the University,
- on an individual’s participation in unwelcome sexual conduct.
- A Hostile Environment is created by:
- unwelcome conduct,
- determined by a reasonable person,
- to be so severe, and
- pervasive, and,
- objectively offensive,
- that it effectively denies a person equal access to a University Program or Activity.
- Sexual Assault is:
- Non-consensual touching, or coercing or forcing another to touch a person’s intimate body parts (defined as genital area, groin, inner thigh, or breast);
- Penetration, no matter how slight, of a person’s vagina or anus, by any body part or object, or oral penetration by a sex organ of another person without consent; or
- Sexual intercourse between persons who are related to each other to the degree they cannot marry under state law.
Consent is informed, freely given, and mutual. If coercion, intimidation, threats, or physical force are used there is no consent. If a person is mentally or physically incapacitated, under the statutory age of consent, or impaired so that such person cannot understand the fact, nature or extent of the sexual situation, there is no consent; this includes impairment or incapacitation due to alcohol or drug consumption, or being asleep or unconscious. There is no consent when there is force, expressed or implied, or use of duress or deception upon the victim. Silence does not necessarily constitute consent. Past consent to sexual activities does not imply ongoing future consent. Whether an individual has taken advantage of a position of influence over an alleged victim may be a factor in determining consent.
Proof of consent or non-consent is not a burden placed on either party involved in an incident. Instead, the burden remains on the University to determine whether its Policy has been violated. The existence of consent is based on the totality of the circumstances evaluated from the perspective of a reasonable person in the same or similar circumstances, including the context in which the alleged incident occurred.
Force: Force is the use of physical violence and/or physical imposition to gain sexual access. Force also includes threats, intimidation (implied threats), and coercion that is intended to overcome resistance or produce consent (e.g., “Have sex with me or I’ll hit you,” “Okay, don’t hit me, I’ll do what you want.”). Sexual activity that is forced is, by definition, non-consensual, but non-consensual sexual activity is not necessarily forced. The absence of resistance alone is not consent. Consent is not demonstrated by the absence of resistance. While resistance is not required or necessary, it is a clear demonstration of non-consent.
Coercion: Coercion is unreasonable pressure for sexual activity. Coercive conduct differs from seductive conduct based on factors such as the type and/or extent of the pressure used to obtain consent. When someone makes clear that they do not want to engage in certain sexual activity, that they want to stop, or that they do not want to go past a certain point of sexual interaction, continued pressure beyond that point can be coercive.
Incapacitation: Incapacitation occurs when someone cannot make rational, reasonable decisions because they lack the capacity to give knowing/informed consent (e.g., to understand the “who, what, when, where, why, or how” of their sexual interaction). A person cannot consent if they are unable to understand what is happening or is disoriented, helpless, asleep, or unconscious, for any reason, including by alcohol or other drugs. As stated above, a Respondent violates this Policy if they engage in sexual activity with someone who is incapable of giving consent. Incapacitation is determined through consideration of all relevant indicators of an individual’s state and is not synonymous with intoxication, impairment, blackout, and/or being drunk.
- Dating Violence is:
- committed by a person,
- who is in or has been in a social relationship of a romantic or intimate nature with the Complainant.
- The existence of such a relationship shall be determined based on the Complainant’s statement and with consideration of the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship. For the purposes of this definition—
- Dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse.
- Dating violence does not include acts covered under the definition of domestic violence.
- Domestic Violence is:
- committed by a current or former spouse or intimate partner of the Complainant,
- by a person with whom the Complainant shares a child in common, or
- by a person who is cohabitating with, or has cohabitated with, the Complainant as a spouse or intimate partner, or
- by a person similarly situated to a spouse of the Complainant under the domestic or family violence laws of Montana, or
- by any other person against an adult or youth Complainant who is protected from that person’s acts under the domestic or family violence laws of Montana.
To categorize an incident as Domestic Violence, the relationship between the Respondent and the Complainant must be more than just two people living together as roommates. The people cohabitating must be current or former spouses or have an intimate relationship.
- Stalking is:
- engaging in a course of conduct,
- directed at a specific person, that
- would cause a reasonable person to fear for the person’s safety, or
- the safety of others; or
- Suffer substantial emotional distress.
For the purposes of this definition—
- Course of conduct means two or more acts, including, but not limited to,
- acts in which the Respondent directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates to or about a person, or interferes with a person’s property.
- Reasonable person means a reasonable person under similar circumstances
- and with similar identities to the Complainant.
- Substantial emotional distress means significant mental suffering or
- anguish that may but does not necessarily require medical or other professional treatment or counseling.
- Sexual Exploitation is any instance in which a person takes non-consensual or abusive sexual advantage of another for any person’s benefit other than the person being exploited. Sexual Exploitation is conduct that falls within other categories of Sexual Harassment but is identified separately for clarity. Examples of behavior that could rise to the level of Sexual Exploitation include:
- Prostituting another person;
- Non-consensual visual (e.g., video, photograph) or audio-recording of sexual activity;
- Non-consensual distribution of photos, other images, or information of an individual’s sexual activity, intimate body parts, or nakedness, with the intent to or having the effect of embarrassing an individual who is the subject of such images or information;
- Going beyond the bounds of consent (such as letting your friends hide in the closet to watch you having consensual sex);
- Inducing incapacitation for sexual purposes;
- Engaging in non-consensual voyeurism;
- Knowingly transmitting an STI, such as HIV, to another without disclosing your STI status;
- Exposing one’s genitals in non-consensual circumstances, or inducing another to expose their genitals; or
- Possessing, distributing, viewing or forcing others to view illegal pornography.
Retaliation means any adverse action, including efforts to intimidate, threaten, coerce or discriminate, and any adverse employment or educational actions, that would discourage a reasonable person from engaging in activity protected under this policy, against any individual for the purpose of interfering with any right or privilege secured by this Policy, or because the individual has made a report or complaint, responded to a report or compliant, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this Policy and accompanying Discrimination Grievance Procedures.
XI. Resolution, Sanctions, Appeal
The University’s resolution processes are described in the accompanying Discrimination Grievance Procedures.
The possible sanctions and corrective actions that can occur as a result of violating this Policy are described in the accompanying Discrimination Grievance Procedures.
The University’s procedure to appeal a finding of responsibility for violating this Policy is described in the accompanying Discrimination Grievance Procedures.
A: University Resource Guide; B: Mutual Restriction on Contact Guidelines
 As an affiliate campus, the Title IX Coordinator at the University of Montana Western will collaborate with the EO/TIX Office at the University of Montana for training, for resolution of Formal Complaints, to share resources and ensure adherence to these policies and procedures.
 Information about on-campus and off-campus resources, including contact information for relevant law enforcement agencies, is attached to this policy as Appendix A.
 As an affiliate of the University of Montana, limited individuals who need to know may include the members of the Equal Opportunity/ Title IX staff at the University of Montana for such purposes.
 Although some protected class conduct may be egregious in nature, the lack of proximity of the conduct to the University may limit its effect on an individual’s education or employment. Other conduct may be relatively less severe but, for example, occur between colleagues of the same office or students in a shared seminar and therefore result in a greater impact on an individual’s education or employment.
 Unwelcomeness is subjective and determined by the Complainant (except when the Complainant is below the age of consent). Severity, pervasiveness, and objective offensiveness are evaluated based on the totality of the circumstances from the perspective of a reasonable person in the same or similar circumstances (“in the shoes of the Complainant”), including the context in which the alleged incident occurred and any similar, previous patterns that may be evidenced.
Discrimination Grievance Procedures
Accompanying the Discrimination, Harassment, and Retaliation Policy [INTERIM]
University of Montana Western
I. Introduction and Purpose
The purpose of these Discrimination Grievance Procedures (the Procedures), as set forth below, is to provide prompt and equitable resolution of protected-class harm based upon race, color, religion, national origin, creed, service in the uniformed services (as defined in state and federal law), veteran status, sex, gender, age, political ideas, marital or family status, pregnancy, physical or mental disability, genetic information, gender identity, gender expression, or sexual orientation as contemplated and prohibited by the University’s Discrimination, Harassment, and Retaliation Policy (the Policy).
These Procedures address reports of protected-class harm, including conduct prohibited by the Policy (Prohibited Conduct). The Policy is referenced here and incorporated as if fully set forth herein.
- Advisor means a person chosen by a party to be present during an investigation and hearing, and to conduct cross-examination on behalf of a party during any live hearing conducted under these Procedures. If a party does not have an Advisor during a live hearing, the University will appoint an Advisor to conduct cross-examination on behalf of that party.
- Complainant means an individual who is alleged to be the subject of Prohibited Conduct under the University’s Discrimination, Harassment, and Retaliation Policy.
- Day means any day the University is open for business, which excludes weekends and University recognized holidays.
- Exculpatory Evidence means evidence that tends to clear a Respondent from responsibility for Prohibited Conduct.
- Formal Complaint, as set forth in the Policy at Section III(C), means a document filed by a Complainant or signed by the Title IX Coordinator alleging Prohibited Conduct by a Respondent and requesting that the University investigate and adjudicate the allegation of Prohibited Conduct; and meet the applicability and jurisdiction requirements set forth in UMW’s Discrimination, Harassment, and Retaliation Policy at Sections II and IV, respectively. A Formal Complaint may be filed with the Title IX Coordinator in person, by mail, by electronic mail, or at the contact information listed in the Policy at Section III. The Formal Complaint must contain the Complainant’s physical or digital signature, or otherwise indicate that the Complainant is the person filing the Formal Complaint.
- Grievance Proceeding means the process described below in Section IV, and includes an investigation, live hearing, and where applicable, a sanction and opportunity to appeal.
- Hearing Panel is composed of a representative appointed by The University of Montana Western may have a representative appointed by each of the Faculty Senate, Staff Senate, Student Senate, and a Chair appointed by the President, at the University of Montana, and is responsible for determining whether the Respondent(s) is responsible for the allegations of Prohibited Conduct. The Chair of the Hearing Panel is responsible for the writing the final written report. The Chair will make the final decision in the event that the Hearing Panel does not reach consensus.
- Hearing Panel File means the final written decision, the recording or transcription of the live hearing, and all evidence directly related to the matter.
- Inculpatory Evidence means evidence that tends to establish responsibility for the alleged Prohibited Conduct.
- Investigator means an individual who does not have a conflict of interest or bias for or against complainants or respondents generally, or an individual Complainant or Respondent; has been trained on the definitions of Prohibited Conduct, and the scope of the University’s jurisdiction, how to conduct a fair and impartial investigation, on issues of relevance to create an investigative report that fairly summarizes relevant evidence.
- Prohibited Conduct means conduct described in Section XI of the University’s Discrimination, Harassment, and Retaliation Policy.
- Report of Prohibited Conduct means information submitted to the Title IX Office at the contact information listed at Section III of the policy, a phone call to or message left at (406) 683-7900, or through the University’s Maxient system at https://cm.maxient.com/reportingform.php?UnivofMontanaWestern , as set forth in the Policy at Section III(A).
- Respondent means an individual who has been reported to be the perpetrator of conduct that could constitute Prohibited Conduct.
- Supportive and Protective Measures are defined in Section VI of the University’s Discrimination, Harassment, and Retaliation Policy.
- Title IX Coordinator means the individual who is responsible for coordinating efforts of the University to notify applicants for admission and employment, students, employees, and all unions holding collective bargaining agreements with the University of the identity of the Title IX Coordinator, information about how to file reports of Prohibited Conduct, for disseminating the Policy and Procedures and non-discrimination notices, for coordinating responses to reports of Prohibited Conduct, for ensuring that the Grievance Procedure provides for prompt and equitable resolution of Formal Complaints of Prohibited Conduct, for ensuring that investigators, Advisors, Hearing Panel members, and all other University officials facilitating an Informal Resolution or Formal Grievance Proceeding are properly trained, and for ensuring effective implementation of any remedies. Where the Title IX Coordinator signs a Formal Complaint, the Title IX Coordinator is not a Complainant or otherwise a party.
- University Program or Activity means locations, events, or circumstances over which the University exercised substantial control over both the Respondent and the context in which Prohibited Conduct is alleged to have occurred, and also includes any buildings owned or controlled by a student organization that is officially recognized by the University.
III. University Response
A. Following receipt of a Report of Prohibited Conduct and/or a Formal Complaint,
the Title IX Coordinator will promptly contact the Complainant to offer Supportive and Protective Measures, consider the Complainant’s wishes with respect to Supportive and Protective Measures, inform the Complainant of the availability of Supportive and Protective Measures with or without the filing of a Formal Complaint, and invite the Complainant to meet with the Title IX coordinator to assess jurisdiction and discuss potential resolution options, including the process for filing a Formal Complaint.
B. The Title IX Coordinator may consolidate Formal Complaints as to allegations of Prohibited Conduct against more than one Respondent, or by more than one Complainant against one or more Respondents, or by one party against the other party, where the allegations of Prohibited Conduct arise out of the same facts or circumstances.
Following receipt of a Formal Complaint, the EO/Title IX Coordinator will promptly issue a written notice to the Complainant(s) and Respondent(s) who are known. The notice will include a link to or copy of these procedures; a description of the allegations in the Formal Complaint, including sufficient details, including the identity of the parties involved in the incident, if known, the conduct allegedly constituting Prohibited Conduct, and the date(s) and location(s) of the alleged incident(s), if known. The written notice will include a statement that the Respondent(s) is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the Grievance Process. The notice will inform the parties that they may have an Advisor of their choice, and that the parties may inspect and review evidence as described in these Procedures. If any student is a party, the written notice will also reference the Student Conduct Code, Section V.A.3, which prohibits students from providing false information during the Grievance Process.
The Title IX Coordinator may dismiss a Formal Complaint, if at any time during the investigation or hearing, the Complainant notifies the Title IX Coordinator in writing that the Complainant would like to withdraw the Formal Complaint or withdraw any allegations the Complainant has made; the Respondent is no longer enrolled or employed by the University; or specific circumstances prevent the University from gathering evidence sufficient to reach a determination as to the Formal Complaint or allegations therein. Upon dismissal of the Formal Complaint for any reason, the Title IX Coordinator will promptly send written notice of the dismissal and the reason(s) therefore to the parties.
E. The University has two processes to resolve a Formal Complaint:
(1) Grievance Proceeding.
A Grievance Proceeding involves an investigation, a hearing, and, if applicable, sanctions and an appeal. There are two hearing formats to be utilized under these Procedures, one applies to any matter in which Sexual Harassment is alleged; the other applies to all other forms of Prohibited Conduct. All hearings under these Procedures will be conducted in accordance with the Rules of Decorum for Equal Opportunity & Title IX Hearings, attached as Appendix A. The format for all live hearings under these Procedures will comply with the Grievance Proceeding described below at Section IV.
(2) Informal Resolution.
An Informal Resolution, as described below at Section V, involves both parties’ voluntary written consent to participate in the Informal Resolution Process. The Informal Resolution Process may not be used to resolve allegations that an employee Sexually Harassed a student.
IV. Grievance Proceeding
A. Burden of Proof and Standard of Evidence.
Neither a Complainant nor a Respondent has any burden to prove or disprove Prohibited Conduct. The University has the burden to prove through the Grievance Proceeding that a Respondent engaged in Prohibited Conduct. The University presumes that the Respondent has not engaged in Prohibited Conduct until it has made a final determination at the conclusion of the Grievance Proceeding. The standard of evidence for determining whether a Respondent has engaged in Prohibited Conduct is the preponderance of the evidence standard. The preponderance of the evidence standard requires that the evidence supporting each finding be more convincing than the evidence in opposition to it.
The EO/Title IX Coordinator will assign a properly trained and impartial investigator.
- The investigator is responsible to gather evidence sufficient to reach a determination regarding responsibility or no-responsibility.
- The investigator may not 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 a party, unless the University obtains that party’s voluntary, written consent to do so for this Grievance Process.
- The investigator will provide an equal opportunity for the parties to present witnesses, including fact and expert witnesses, and other Inculpatory and Exculpatory Evidence.
- The University will not restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence.
- The investigator will provide the parties with the same opportunities to have support persons, and an Advisor of their choice, present during any interview or meeting related to the investigation.
- The investigator will provide written notice of the date, time, participants, and purpose of all investigative interviews, and other meetings, with sufficient time for a party to prepare to participate.
- 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 the Formal Complaint, including the evidence upon which the University does not intend to rely in reaching a determination regarding responsibility and Inculpatory or Exculpatory evidence whether obtained from a party or other source, so that each party can meaningfully respond to the evidence prior to conclusion of the investigation.
- If in the course of the investigation, information becomes available that leads to the investigation of additional allegations about the Respondent or Complainant that were not included in the initial written notice, the investigator will provide an additional written notice to the parties whose identities are known, of the additional allegations.
- Prior to the completion of the investigation, the investigator will provide to each party and the party’s Advisor, if any, the evidence subject to inspection and review in an electronic format, and the parties will have at least 10 working days to submit a written response, which the investigator will consider prior to completion of the investigative report.
- The investigator will create a pre-hearing investigative report that fairly summarizes relevant evidence. The pre-hearing investigative report will state whether there is reasonable cause to believe that Prohibited Conduct occurred based upon an objective evaluation of all relevant evidence. The objective evaluation will be based upon the presumption that the respondent(s) is not responsible for the alleged conduct and the preponderance of the relevant evidence standard.
- The investigator will send to each party and the party’s Advisor, if any, the investigative report in an electronic format or a hard copy.
- Upon receipt of the investigative report, each party has 10 days to submit a written response to the investigator.
- After receipt of the parties’ responses to the investigative report, or expiration of the time permitted for such responses, the investigator will provide the following to the EO/Title IX Coordinator and to the parties and their respective Advisors, if any the following:
- Written Notice described at Section III(C), above, and any additional written notices;
- Description of the procedural steps taken from the receipt of the Formal Complaint through the final investigative report and receipt of any responses to the final investigative report, including all notifications to the parties, interviews with the parties and witnesses, site visits, methods used to gather other evidence;
- All evidence obtained as part of the investigation that is directly related to the allegations raised in the Formal Complaint and any additional allegations of which the parties were provided written notice, including evidence upon which the investigator did not rely in forming an opinion, and any Inculpatory or Exculpatory evidence whether obtained from a party or other source;
- The pre-hearing investigative report; and
- All written responses and any other submissions provided by the parties, and their advisors to the investigator.
After receipt of the information described above, in Section III(B)(m), the EO/Title IX Coordinator will provide such information to the Hearing Panel and will work with the Hearing Panel, the parties, and their Advisors, to schedule a date, time, and location for a live Hearing.
- The Chair of the Hearing Panel may convene a pre-hearing conference with the parties and their Advisors to discuss matters of procedure, including logistics of technologies to be used, and any requests for parties to be located in separate rooms; time allocations; identity and logistics of witnesses to be called; sequestration of witnesses; evidence to be presented; recording or transcription of the hearing; identify of support persons to be present; process for questions and cross-examinations; anticipated evidentiary disputes; the Rules of Decorum for Equal Opportunity & Title IX Hearings; other matters that will help to enable a fair and impartial hearing. Prior to the pre-hearing conference, the Chair of the Hearing Panel will request each party to submit a list of anticipated witnesses and cross-examination questions. The Chair of the Hearing Panel will discuss the party’s submitted questions with the submitting party and their Advisor during the pre-hearing conference.
- The Chair of the Hearing Panel will conduct all proceedings in accordance Rules of Decorum for Equal Opportunity & Title IX Hearings. For all hearings conducted under these Procedures, the Chair will make determinations regarding relevancy and will permit only relevant cross-examination and other questions to be asked of parties and witnesses.
- Each party will be afforded an opportunity to make an opening and closing statement, personally, or through their Advisor. Following any opening statements, the Hearing Officer will invite parties and witnesses to answer questions posed by the Hearing Panel.
- For charges of Sexual Harassment, cross-examination will be conducted as follows, in accordance with federal requirements and Rules of Decorum for Equal Opportunity & Title IX Hearings:
- Before a Complainant, Respondent, or witness answers a cross-examination question, the Chair will first determine whether the question is relevant and explain any decision to exclude a question as not relevant.
- Questions and evidence about the Complainant’s sexual predisposition or prior sexual behavior are not relevant, unless such questions and evidence about the Complainant’s prior sexual behavior are offered to prove that someone other than the Respondent committed the conduct alleged by the Complainant, or if the questions and evidence concern specific incidents of the Complainant’s prior sexual behavior with respect to the Respondent and are offered to prove consent.
- Asking a question of a particular individual previously asked of and answered by that individual is impermissible as irrelevant.
- If a party or witness does not submit to cross-examination at the Hearing, the Hearing Panel will not rely on any statement of that party or witness in reaching a determination regarding responsibility; provided, however, that the Hearing panel will not draw an inference about the determination regarding responsibility based solely on a party’s or witness’s absence from the live hearing or refusal to answer cross-examination or other questions.
- Each party’s Advisor will be permitted to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility. Such cross-examination will be conducted directly, orally, and in real time by the party’s Advisor of choice and never by a party personally.
- For Hearings involving only other charges of Prohibited Conduct and not Sexual Harassment, cross-examination will be conducted as follows, in accordance with the Rules of Decorum for Equal Opportunity & Title IX Hearings:
- Cross-examination questions will be asked directly by the Chair of the Hearing Panel based on the questions submitted beforehand and discussed at the pre-hearing conference. Additional questions may be submitted to the Chair in writing during the hearing, which the Chair may ask of parties and witnesses.
- If a party or witness does not attend the Hearing or refuses to answer a specific question at the Hearing, the Hearing Panel may elect to consider any other evidence made available to it during the hearing, including testimony offered by parties and witnesses present, and any documentation evidence included in the pre-hearing investigation report if authenticated by the EO/TIX office. The Hearing Panel will not draw an inference about the determination regarding responsibility based solely on a party’s or witness’s absence from the live hearing or refusal to answer cross-examination or other questions.
- Either party may request that the hearing occur with the parties located in separate rooms with technology enabling the Hearing Panel and parties to simultaneously see and hear the party or the witnesses answering questions.
- The University will create an audio or audiovisual recording, or transcript of the live hearing and will make it available to the parties for inspection or review. Other recordings or transcriptions of the hearing will not be permitted.
- Following conclusion of a Grievance Proceeding, the Hearing Chair will promptly issue a written determination on behalf of the Hearing Panel regarding responsibility. To reach this determination, the Hearing Panel will begin its analysis with the presumption that the Respondent(s) is not responsible for the alleged conduct and will weigh the evidence to determine whether the preponderance of the relevant evidence weighs in favor of a finding of responsibility or no finding of responsibility for the alleged Prohibited Conduct.
- The written determination will be provided to the Complainant and Respondent as simultaneously as possible and will include the following:
- Identification of the allegations potentially constituting Prohibited Conduct;
- A description of the procedural steps taken from the receipt of the Formal Complaint through the determination, including any notifications to the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, and hearings held;
- Findings of fact supporting the determination;
- Conclusions regarding the application of the Policy to the facts;
- A statement of, and rational for, the result as to each allegation, including a determination regarding responsibility, any disciplinary sanctions the University imposes on the Respondent; and whether remedies designed to restore of preserve equal access to the University’s Program or Activity will be provided by the University to the Complainant; and
- The University’s procedures and permissible bases for the Complainant and Respondent to appeal.
- The Chair of the Hearing Panel will provide to the EO/Title IX Coordinator the final written decision, the recording or transcription of the live hearing, and all evidence directly related to the matter (“Hearing Panel File”).
Either or both parties may appeal from a determination regarding responsibility and from the University’s dismissal of a formal complaint or any allegations therein.
- An appeal must be submitted to the EO/Title IX Coordinator within 10 days of the date the written determination was submitted to the parties.
- Grounds for appeal are:
- Procedural irregularity that affected the outcome of the matter;
- New evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made, that could affect the outcome of the matter; and
- The Title IX Coordinator, investigator(s), or member(s) of the Hearing Panel had a conflict of interest or bias for or against Complainants or Respondents generally or the individual Complainant or Respondent that affected the outcome of the matter.
- Upon receipt of an appeal, the EO/Title IX Coordinator will notify the other party in writing when an appeal is filed and will issue instructions, including reasonable deadlines for the non-appealing party to submit a written response.
- Once the EO/Title IX Coordinator has received the written statements or the deadlines for submission of the written statements has expired, the EO/Title IX Coordinator will provide to the Chancellor of the University of Montana Western or their designee, written statements submitted by the parties, the final written decision and will make available the Hearing Panel File.
- The Chancellor or designee will issue a written decision describing the result of the appeal and the rationale for the result and will provide the written decision simultaneously to both parties.
- A decision by the Chancellor or their designee is the final decision of the University and thus the conclusion of the grievance proceeding. As such, appropriate disciplinary sanctions may be immediately imposed, regardless of whether a party files an appeal under Board of Regents Policy 203.5.2 described below. The University may also determine to impose interim measures/sanctions consistent with the final University determination, pending an appeal under the Board of Regents policy.
V. Informal Resolution
- At the discretion of the EO/Title IX Coordinator, this process is available to resolve all allegations of Prohibited Conduct except Sexual Harassment by employees against students.
- After the parties are provided with written notice of Formal Complaint, pursuant to Section II.(C). of these procedures, the Title IX Coordinator may reach out to both parties to explore whether they would like to engage in an Informal Resolution Process.
- The EO/Title IX Coordinator is responsible for either overseeing or conducting the informal resolution process. Examples of Informal Resolution include mediation, facilitated conversation, and education.
- Both parties must provide voluntary written consent to Informal Resolution, and the EO/Title IX Coordinator must determine an Informal Resolution process is appropriate, before the EO/Title IX Coordinator will initiate an Informal Resolution process.
- At any time, before completing a resolution, any party has the right to withdraw from the Informal Resolution Process and resume the Grievance Process with respect to the Formal Complaint. A completed resolution must contain signatures of the parties and the EO/Title IX Coordinator. The EO/Title IX Coordinator retains the authority to determine whether any Informal Resolution is sufficient.
- The only record resulting from the Informal Resolution process will be a Written Agreement of Informal Resolution signed by both parties and the EO/Title IX Coordinator. Each party will receive a copy of the written agreement and the EO/Title IX Coordinator will maintain a copy in the EO/Title IX Office records.
- None of the information learned solely as a result of the Informal Resolution process may be used in the Grievance Process. The fact that the parties participated or that any party declined to participate or withdrew from the Information Resolution Process may not be considered in a Formal Grievance Process.
- Student Respondents. The Hearing Panel is responsible for determining sanctions against student respondents.
- Possible sanctions against students may include one or more of the following:
- Disciplinary probation:A designated period of time during which the respondent is not in good standing with the University. The terms of disciplinary probation may involve restrictions of privileges and/or set specific behavioral expectations;
- Restriction from employment at the University:Prohibition of or limitation on University employment;
- Class/Workshop/Training/Program attendance:Enrollment in and completion of a class, workshop, training, or program that could help the respondent or the University community;
- Educational project:Completion of a project specifically designed to help the respondent understand why certain behavior was inappropriate and to prevent its recurrence;
- University housing transfer or removal:Permanent placement in another room or housing unit or removal from University housing. Housing transfers or removals may be for a specified time (e.g., a year) or permanent depending on the circumstances;
- Removal from specific courses or activities:Suspension or transfer from courses or activities at the University for a specified period of time or permanently
- Banning from all or specific University activities and events:The University may prohibit an individual from attending University sponsored activities either on or off-campus;
- Permanent No Contact:Restriction from entering specific University areas and/or from all forms of contact with certain persons;
- Suspension:Separation from the University for a specified period of time or until certain conditions are met;
- Expulsion or permanent separation:Termination of student status for an indefinite period for students or termination from employment for employees;
- Transcript hold:The University may prevent a student from receiving a copy of their transcript; or
- The University may delay the conferral of the degree pending the outcome of an investigation or withhold the conferral of the degree due to a finding of prohibited conduct. In extraordinary circumstances, the University may revoke the conferral of a degree.
- Student Respondents may submit to the Hearing Panel, a mitigation statement explaining any factors that the respondent believes should mitigate or otherwise be considered in determining the sanctions imposed. Complainants may submit to the Hearing Panel an impact statement describing the impact of the Prohibited Conduct on the complainant and expressing the complainant’s preferences regarding appropriate sanctions.
- In determining the appropriate sanctions for students, the Hearing Panel will be guided by a number of considerations, including:
- The nature of the conduct at issue and the Prohibited Conduct for which Respondent was charged;
- The impact of the Prohibited Conduct on the Complainant;
- The impact of the Prohibited Conduct on the community or the University;
- Whether the Respondent has accepted responsibility for the Prohibited Conduct, which may be considered as a factor that may lessen, not increase, the severity of the sanctions;
- Maintenance of a safe and respectful environment conducive to learning;
- Protection of the University community;
- The necessity of any specific action in order to eliminate the Prohibited Conduct, prevent its recurrence, and remedy its effects on the Complainant or other University community members; and
- Any other mitigating, aggravating, or compelling circumstances, including those set forth in the impact or mitigation statements.
- Employee Sanctions. If the Respondent(s) is an employee, the Hearing Panel will not make a determination regarding sanctions. After any appeal or opportunity for appeal has been exhausted, the EO/Title IX Coordinator will provide the Hearing Panel’s written decision, and any final decisions on appeal, to the University administrator with the authority to impose sanctions in accordance with applicable employment policies and procedures and collective bargaining agreements. The EO/Title IX Coordinator will inform the Complainant(s) of the status of the employee sanctioning process and outcomes, as they directly relate to the Complainant(s)’s participation in University Programs or Activities.
- Student-Employee Sanctions. If the Respondent is a student-employee, the Hearing Panel will determine sanctions with respect to the Respondent’s status as a student and the EO/Title IX Coordinator will provide the Hearing Panel’s decision to the Respondent’s supervisor to impose sanctions in accordance with applicable employment policies and procedures.
- The EO/Title IX Coordinator from the University of Montana and the Title IX Coordinator from the University of Montana Western are responsible to maintain for a period of seven years the following records:
- Records of the Grievance Process following the filing of each Formal Complaint including:
- Hearing Panel File;
- Any disciplinary sanctions imposed upon the Respondent(s);
- Any remedies provided to the Complainant(s) designed to restore or preserve equal access to the University’s Programs or Activities;
- Any documents submitted as part of an appeal and any written decisions as a result of an appeal;
- Any written agreement of Informal Resolution.
- All materials used to train the EO/Title IX Coordinator and any deputy Title IX Coordinators, investigators, the Hearing Panel, the Chancellor (or designee), all other decision-makers for appeals, and any person who facilitates an Informal Resolution Process. The EO/Title IX Coordinator(s) must make these training materials available on the Title IX Student Affairs website.
- Records of all Reports of Prohibited Conduct including:
- A record of the initial report;
- A record of any actions taken in response to a report of Prohibited Conduct;
- A record of supportive measures provided to a Complainant, or if supportive measures are not provided to a Complainant, documentation of the reasons why such a response was not clearly unreasonable in light of the known circumstances;
- Documentation of measures taken by the University to restore or preserve equal access to the University’s Programs or Activities;
- Documentation of the basis for the conclusion that the University’s response was not deliberately indifferent to a report of Prohibited Conduct.
- The University will keep confidential the identity of any individual who has made a report or filed a Formal Complaint of Prohibited Conduct, any Complainant, any Respondent, and any witnesses, except as may be permitted by the FERPA statute, 20 U.S.C. § 1232g, or FERPA regulations, 34 CFR part 99, or as required by law, or to carry out the purposes of 34 CFR part 106, including the conduct of any investigation, hearing, appeal, or judicial proceeding arising thereunder.
Consistent with timeframes identified herein and where otherwise unspecified, the University will respond to and seek resolution of all Reports of Prohibited Conduct and Formal Complaints under these Procedures, promptly, as determined by fact and circumstance, and in accordance with federal regulation. The EO/Title IX Office will set and provide advanced notice of timelines and deadlines to parties, witnesses, and Advisors.
Except as otherwise specified, the EO/Title IX Coordinator may extend a deadline or permit delay of any resolution process described herein upon a showing of good cause and written notice to the parties of the reason for extension or delay. Good cause may include considerations such as the unavailability of a party, witness, or Advisor; concurrent law enforcement activity; or the need for language assistance or accommodation of disability.
IX. Board of Regents Policy 203.5.2 – Appeals
Board of Regents Policy 203.5.2 provides that any party may appeal the final decision of a university president, within thirty (30) days of the president’s decision to the commissioner of higher education.
A: University Rules of Decorum for Equal Opportunity & Title IX Hearings
 The University will not restrict students’ and employees’ ability to discuss the allegations under investigation to the extent such discussion aligns with a party’s right to meaningfully participate in furthering the party’s interests in the case. However, this provision in no way immunizes a party from abusing the right to discuss the allegations under investigation by, for example, discussing those allegations in a manner that constitutes Retaliation as defined at Section XI(C) of the Discrimination, Harassment, and Retaliation Policy. Similarly, where a party’s conduct toward a witness might constitute tampering (for instance, by attempting to alter or prevent a witness’s testimony), it is prohibited and may constitute a violation of the Student Code of Conduct or relevant employment agreement or policy.
 Personal or unauthorized audio or video recording of any meeting, interview, Grievance Proceeding, or Informal Resolution contemplated by the Policy or these Procedures is prohibited.