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Executive Order No. 70 and the Faculty Code

In compliance with the 2020 federal regulations implementing Title IX of the Education Amendments of 1972, 34 CFR Part 106, the University published Executive Order No. 70, “Compliance with Education Department Sexual Harassment Regulations” (EO No. 70). In addition to other requirements, the Education Department’s federal regulations define prohibited conduct and set forth procedures for “formal complaints” of such conduct. To address those “formal complaints,” the University will incorporate the procedures set forth in EO No. 70 into applicable University processes, including the Faculty Code. Where there are conflicts, the procedures under EO No. 70 will control.

Under EO No. 70, Compliance Services, in consultation with appropriate administrative or faculty governance personnel, has the delegated authority to interpret the requirements of the order, resolve conflicts between the order and other University policies or processes, and advise on the process or procedures to be used. The President retains the authority to make final decisions under this delegation.

For the purposes of interpreting and resolving conflicts between EO No. 70 and the procedures for adjudicating allegations of violations of EO No. 70 by faculty members under the Faculty Code, Compliance Services will be consulting with the Secretary of the Faculty and the Chair of the Faculty Adjudication Panel. As these conflicts are resolved and processes and procedures are developed, they will be summarized on this webpage. More general information about EO No. 70 for faculty and other individuals is also available on the Title IX website.

Upon learning of allegations that a faculty member may have engaged in conduct that could be sexual harassment, rather than proceeding with notifying the faculty member under the Faculty Code Chapter 25, Section 25-71, administrators have been directed to immediately refer those allegations and the identity of the complainant, if known, to the Office of the Title IX Coordinator. This is because elements of the process as described in Section 25-71 are inconsistent with the University’s legal obligations under Executive Order No. 70, “Compliance with Education Department Sexual Harassment Regulations” (EO No. 70) and the federal regulations.

Section 25-71.B provides that a faculty administrator may attempt resolution between the person making the allegations and the faculty member, which would not be permitted under the regulations. Reasons include that the University is prohibited from engaging in informal resolution of EDFR sexual harassment until and unless a formal complaint is filed (and is prohibited from engaging in informal resolution of a formal complaint by a student against a University employee) and the identity of the complainant, if known, must be kept confidential until and unless a formal complaint is filed. Additionally, where current practice under Section 25-71 permits the implementation of non-serious sanctions without a formal adjudicative proceeding, the regulations prohibit the University from implementing a disciplinary sanction against a faculty member until and unless a procedure under EO No. 70 has been completed.

Once the allegations are referred to the Office of the Title IX Coordinator, that office will ensure that the University takes the steps as described in EO No. 70 to contact the complainant and to discuss the complainant’s options. If the complainant wishes to pursue filing a formal complaint, an assessment must then be done to determine whether the allegations fall within EO No. 70. Typically, this assessment will be done by the University Complaint Investigation and Resolution Office (UCIRO), which will also include an assessment of whether the allegations also fall within other related University policies, such as Executive Order No. 31, “Nondiscrimination and Affirmative Action,” Executive Order No. 51,“Sexual Violence Elimination Policy,” or Executive Order No. 54, “Employee-Student Romantic Relationships and Conflicts of Interest.”

Depending on the outcome of the assessment, the matter may be referred back to the administrator who made the original referral to the Office of the Title IX Coordinator. Should such a referral back to the administrator occur, further information about next steps will be provided.

If the allegations include prohibited conduct as defined by EO No. 70, the University Complaint Investigation and Resolution Office (UCIRO) is responsible for confirming whether a complainant wishes to file a “formal complaint” and, if not, the Title IX Coordinator may then decide to file the formal complaint. Only then can the respondent be notified of the initiation of an EDFR proceeding under EO No. 70.

When UCIRO proceeds under EO No. 70, the UCIRO investigator provides written notice to the faculty member who is alleged to have engaged in misconduct and the complainant, if known, that includes the information required by EO No. 70, Section 19. That faculty member is referred to as the “respondent.”

If the allegations include prohibited conduct as defined by EO No. 70, the alleged conduct will also typically be prohibited by other related University policies, such as Executive Order No. 31, “Nondiscrimination and Affirmative Action,” Executive Order No. 51,“ Sexual Violence Elimination Policy,” or Executive Order No. 54, “Employee-Student Romantic Relationships and Conflicts of Interest.” If the allegations include conduct prohibited by other University policies, the investigator will initiate a “combined” proceeding and investigation as described in EO No. 70, Section 5. This means that the allegations of EDFR sexual harassment will proceed under EO No. 70 and the investigation of allegations that fall under other University policies will proceed under Administrative Policy Statement APS 46.3, “Resolution of Complaints Against University Employees.” If a combined proceeding is initiated, the notice will also include information relating to the allegations under the other University policies and other information regarding the investigation process.