53 NSU STUDENT HANDBOOK 2022-23 5.3.5. Ensure 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. 5.3.6. Ensure that if a party or witness does not submit to cross-examination at the live hearing, the hearing examiner must not rely on any statement of that party or witness in reaching a determination regarding responsibility; provided, however, the hearing examiner cannot draw an inference about the determination regarding responsibility solely on a party’s or witness’s absence from the live hearing or refusal to answer cross-examination or other questions. 5.4. The hearing examiner shall issue a proposed determination to the president/superintendent of the institution, or their designee, who cannot be the same person(s) as the Title IX Coordinator or the investigator(s). The institution must then issue a written determination regarding responsibility. To reach this determination, the institution must apply the preponderance of the evidence standard as described in section 2.2.9 above. In reviewing the proposed determination, the institution must give due regard to the hearing examiner’s opportunity to observe the witnesses. If the institution rejects or modifies the proposed determination of the hearing examiner, or any part thereof, the institution shall provide the reasons for doing so in writing to the parties. The written determination must include: 5.4.1. Identification of the allegations potentially constituting sexual harassment; 5.4.2. 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; 5.4.3. Findings of fact supporting the determination; 5.4.4. Conclusions regarding the application of the institution’s code of conduct to the facts; 5.4.5. A statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility, any disciplinary sanctions the institution imposes on the respondent, and whether remedies designed to restore or preserve equal access to the institution’s education program or activity will be provided by the recipient to the complainant; and 5.4.6. The institution’s procedures and permissible bases for the complainant and respondent to petition for administrative review. 5.5. The institution must provide the proposed written determination to the parties simultaneously. The proposed determination regarding responsibility becomes final either at the conclusion of the petition for administrative review to the Executive Director provided for in section 6 below, or if a petition for administrative review is not filed by either party in accordance therewith, the date on which the petition for administrative review would no longer be considered timely. If no petition for administrative review is filed within the timeframe provided in section 6 below, upon the expiration thereof, the proposed determination of the institution shall constitute the final decision on the matter, which is subject to appeal to circuit court in accordance with the provisions of SDCL ch. 1-26. 5.6. The TitleIX Coordinator is responsible for effective implementation of any remedies.
RkJQdWJsaXNoZXIy NzkyNTY=