Table of Contents

Important Note

Introduction

Article I: Definitions

Article II: Sexual Misconduct Policy

Article III: Student Sexual Misconduct Code Procedures

Introduction

Pacific University is committed to providing a learning environment that affirms the dignity and inherent worth of every member of the student community. The Student Code of Conduct is an overarching set of regulations and procedures designed to protect and foster such a learning environment, and includes within it the Student Sexual Misconduct Policy. Sexual misconduct, in any form, is contrary to the very goals and mission of the University and will not be tolerated. An individual found responsible of violating the University policy on sexual misconduct will be subject to disciplinary action.

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Article I: Definitions

A. The term “sexual misconduct” means rape, sexual assault, or forced or unwanted sexual contact of any kind, or threat of such contact. Sexual contact is considered “unwanted” or without consent if clear consent is not given; if inflicted through force, threat of force, or coercion; or if inflicted upon a person who is unconscious or otherwise without the physical or mental capacity to consent. If sexual contact is inflicted on someone who is intoxicated or impaired by alcohol or drugs, it is considered without consent.

a. Sexual misconduct includes but is not limited to:

i. Unwanted/non-consensual verbal (including telephone), written (including electronic media), pictorial, or physical conduct of a sexual nature which a reasonable person would consider intimidating, hostile, offensive, and/or which adversely affects the learning or living environment of any students.

ii. Non-consensual sexual contact and/or touching involving any sexual or intimate part of the body.

iii. Unwanted/non-consensual forceful sexual contact. The use of force may include, but not be limited to, use of body weight, pushing or hitting, coercion or threats.

iv. The use of force (body weight, hitting or pushing, use of a weapon, threats to kidnap, kill or harm oneself for example) to overcome earnest resistance to engage in sexual intercourse. Earnest resistance may be verbal or physical, or both.

v. Sexual intercourse, or penetration by any means to any degree when the victim is incapable of consent by reason of mental incapacitation or physical helplessness and force is not used (see Commentary on Consent below).

b. Sexual misconduct includes acts of sexual exploitation. Acts of sexual exploitation are including, but are not limited to:

i. Prostitution

ii. Videotaping or making digital imagery of sexually explicit acts without knowledge and consent of all parties

iii. Invasion of privacy, stalking, or voyeurism

iv. Dissemination of sexually explicit images without the consent of all parties

v. Inducing incapacitation with the intent to rape or sexually assault—This type of sexual exploitation occurs regardless of whether sexual activity actually takes place.

B. The term “consent” means voluntary, non-coerced and clear verbal and/or nonverbal communication indicating a willingness to engage in a particular act. Consent includes an affirmative verbal response or voluntary acts unmistakable in their meaning.

C. The term “sexual contact” means the touching of the genitalia, anus, buttocks or breast of a person or causing such person to touch the genitalia, anus, buttocks or breasts of another.

D. The term “mental incapacitation” means a condition wherein a person is rendered incapable of appraising or controlling his/her conduct at the time of the alleged offense because of the influence of a controlled or other intoxicating substance or because of any act committed upon the person without his/her consent.

E. The term “physical helplessness” means a condition wherein a person is asleep, unconscious or for any other reason is physically unable to communicate consent to an act.

F. The “Complainant” brings forward an allegation of a breach of the Sexual Misconduct Code which is actionable.

G. The term “Respondent” means any student accused of violating this Sexual Misconduct Code.

H. The term “Conduct Advisor” (or designee) means a specifically trained University staff designated by the Vice President for Student Affairs to be responsible for the administration of the Student Code and ensures that all procedures are falling in accord with the University Code of Conduct. The Conduct Advisor (or designee) will attend the complete proceedings of all hearings, and does not have a vote in any hearing decision. The Conduct Advisor (or designee) has specialized knowledge of appropriate university sanctions, and will assign sanctions to students found in violation of the Sexual Misconduct Policy via either the Individual Conduct Officer or Formal Conduct Board hearing processes outlined herein after notification of hearing outcome. The Conduct Advisor (or designee) is an unbiased source for the process and will equally offer resources and procedural information to both the Respondent and the Complainant making the report of sexual misconduct.

I. The “Conduct Administrator” is a trained University staff member who manages all disciplinary administrator duties, including managing and gathering reports, recording information in files, serving as an administrative resource during hearings, etc.

J. The “Sexual Misconduct Policy Board” means Faculty and staff members of the University who have been specifically trained in sexual misconduct definitions, role of consent, myths and facts about sexual misconduct, conduct procedures, sensitivity to diversity and culture, due process, appropriate standards of proof and questioning standards, and information gathering. Individual members may be called upon to serve alone in Individual Conduct Officers Hearings, or a group of three members will be asked to act as the Sexual Misconduct Policy Board in Formal Conduct Board hearing. Members serving as Hearing Officers should have no power-relationship or significant history with the accused student and/or the student making the report. Both men and women will comprise the Board and all three must be in attendance at a Formal Conduct Board hearing.

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Article II: Sexual Misconduct Policy

A. Sexual misconduct violates the standards of conduct expected of every student member of the University community and is strictly prohibited by The Student Code of Conduct (see www.pacificu.edu/studentlife/handbook). In reported cases of sexual misconduct, the person making the report (The Complainant) must offer credible evidence that opens the question of whether voluntary consent existed. It then becomes the responsibility of the accused student (The Respondent) to demonstrate that such consent did exist. The University is charged with determining whether voluntary consent existed, not in determining the precise details of the offense. If it is found that behavior took place without voluntary consent, then a violation of the Sexual Misconduct Policy occurred. The other evidence at the hearing is used to determine the most appropriate outcome to a violation.

a. A Note About Consent: In the absence of mutually clear words or actions (a true and mutual understanding of what is to be done, where, with whom, and in what way), it is the responsibility of the initiator, or the person who wants to engage in the specific sexual activity to make sure that he or she has voluntary consent from his/her partner(s). Consent to some form of sexual activity does not imply consent to other forms of sexual activity. Consent must be obtained by the initiator of the behavior at every stage of sexual interaction. Because sexual misconduct between students often occurs in the context of the use of alcohol or other controlled substances, it is important to stress the critical significance of clear communication, consent, and levels of responsibility for behavior while under the influence. As Pacific's Alcohol Policy clearly states, individuals are responsible for their behavior when they are drinking, and drinking is never an excuse for behavior. This applies to all students. However, under theories of consent, when an individual is intoxicated and unable to communicate consent or lack thereof, that individual can no longer be responsible for decisions about sexual activity because he or she is mentally incapable of giving or denying consent. Therefore, if a student has sexual contact with another student who does not have the necessary mental capacity to consent to this behavior, this sexual contact is considered sexual misconduct by the University.

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Article III: Student Sexual Misconduct Code Procedures

A student who has experienced an unwanted sexual contact is encouraged to first contact the Campus Wellness Coordinator, who is identified as the primary source of advocacy, information, and support for students. However, a student may make a disclosure of sexual misconduct to any professional on the Pacific campus to seek information about resources available for support, advocacy, or conduct options (i.e. Campus Wellness Coordinator, Area Coordinators, Counseling Center, Health Center, CPS, Center for Gender Equity, Student Life, Dean’s Office, etc.). If the student making the report decides that she or he would like to pursue a University conduct hearing, the above listed professionals may assist the student to make contact with the Conduct Advisor or designee. Students may also elect to make direct contact with the Conduct Advisor (or designee) as their first point of contact. (In cases where a student wishes to make a report, but is not comfortable with the Conduct Advisor a trained designee will be named.)

If the Complainant chooses, she or he may pursue one of the following processes for adjudication of an incident of sexual misconduct. The procedures below are designed to assure fairness and a balanced process, maintain confidentiality (wherever possible), and impose appropriate sanctions on members of the student community in violation of the policy. Two hearing options are available: a hearing with an Individual Conduct Officer or a hearing with a Formal Conduct Board, as outlined below.
Note: Just as in any University conduct case, decisions are made based on a “preponderance of evidence,” meaning the incident was more likely than not to have happened (more than 50% chance).

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Article III.A: Individual Conduct Officer Hearing Process

The student making the report (The Complainant) may choose to bring an alleged sexual misconduct incident to a hearing with a single, trained Conduct Officer. Both the Complainant and Respondent will be participants in a hearing within fifteen (15) working days of notice being given to the Respondent. The hearing will be procedurally identical for both students – same location, same Conduct Officer, same Conduct Advisor, same preparatory materials provided, same opportunity for an advocate (see Complaint Procedures). However, the day and time of the hearing will be different to ensure that the Complainant and Respondent NOT asked to have direct contact with one another through the process. The two students will NOT be asked to be in the same room, at the same time, during the hearing.

In the course of the hearing the Conduct Officer will speak individually with both the Respondent and the Complainant. Both the Respondent and Complainant will have the opportunity to read any submitted written reports regarding the incident and may respond to the information in the reports. The Conduct Officer will also speak with all reported witnesses to the incident before rendering a decision. Permanent dismissal or expulsion from the University CANNOT be imposed as the outcome of an Individual Conduct Officer hearing. A listing of some representative potential conduct sanctions or interventions is included in the “Sanction” section of the Sexual Misconduct Policy.

After both the Complainant and the Respondent have participated in their portions of the hearing, the Conduct Officer will decide if the Respondent is responsible for a violation of the Sexual Misconduct Policy. (Note: Just as in any University conduct case, decisions are made based on a “preponderance of evidence,” meaning the incident was more likely than not to have happened (more than 50% chance). Lack of voluntary consent constitutes the violation. Following deliberation, the Conduct Officer renders a decision and will notify both students and the attending Conduct Advisor of that decision. If the Respondent is found in violation of the Sexual Misconduct Policy, he or she will meet individually with the attending Conduct Advisor within 5 working days, and at that time he or she will be informed of assigned sanctions. See Hearing Appeal Process for appeal criterion and procedures.

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Article III.B: Formal Conduct Board Hearing Process

A student filing a report may choose to bring an alleged sexual misconduct incident through a Formal Conduct Board hearing process with the Sexual Misconduct Policy Board. Both the Complainant and Respondent will be participants in a hearing within fifteen (15) working days of notice being given to the Respondent. In a Formal Conduct Board hearing both the Complainant and Respondent must appear before the Board, in the same room, to tell his/her side of the incident. The Conduct Advisor (or designee) will be in attendance to ensure procedural consistency, but will not participate directly and does not have a vote to influence the outcome of the hearing. Either the Complainant or Respondent may request participation via closed caption video, SKYPE, a room partition, or other reasonable visual or physical separation during the hearing. Both the Complainant and Respondent may be questioned by the Board. Neither the Respondent nor Complainant may question one another directly. Witnesses may be brought forward and may be questioned by the Board. The Sexual Misconduct Policy Board’s role is to determine whether a violation of the Sexual Misconduct Policy has occurred based on the preponderance of evidence. A violation has occurred if it is found that voluntary consent did not exist. A decision by the Sexual Misconduct Policy Board, in which a student is found in violation of the code, may result in a number of sanctions up to and including suspension and/or expulsion from the University.

The students involved in the reported incident may challenge the composition of the Board. The Respondent and Complainant will be notified of the names of those who will serve on the Board at the time the hearing is scheduled. If either objects to any member or members of the Board, he or she must submit the reasons for objection in writing to the Conduct Advisor (or designee) no less than 72 hours prior to the hearing. The Conduct Advisor will review the objection and decide whether the Board members should or should not be replaced. Removal from the Board will occur if the Conduct Advisor is convinced that bias or other harm could result from allowing the selected member to adjudicate the incident.

Formal Conduct Board hearings require that three (3) members of the Sexual Misconduct Policy Board be present. Once the Board renders a decision, both the Complainant and Respondent will be notified of that decision either in person at the conclusion of the hearing or in a personal meeting with the Conduct Advisor (or designee). If the Respondent is found in violation of the Sexual Misconduct Policy, he or she will be informed of assigned sanctions in an individual meeting with the attending Conduct Advisor within five (5) working days.

A decision by the Board will be made by a majority vote if a consensus is not possible. (Note: Just as in any University conduct case, decisions are made based on a “preponderance of evidence,” meaning the incident was more likely than not to have happened (more than 50% chance). Lack of voluntary consent constitutes the violation.

Individual Conduct Officer and Formal Conduct Board hearings may be appealed to the Director of Human Resources or designee within five (5) working days of the hearing. As a response to hearing the appeal, the Director of Human Resources, or designee, may support the original decision, overturn the original decision, or request a new hearing. In order to move forward, all appeals must meet one or more of the four criteria outlined in this policy (see Hearing Appeal Process).

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Article III.C: Complainant and Additional Procedures

Once the student with a complaint (Complainant) decides how she or he want to move forward, the Conduct Advisor (or designee) will request a written report describing the incident to the Conduct Advisor. Within 48 hours, or as soon as thereafter as possible, this report will then be presented to the accused student (Respondent) by the Conduct Advisor (or designee) and the Respondent will have an opportunity to submit his or her own report. In addition, during this time any other related reports will be collected by the Conduct Advisor (i.e. CPS report, witness reports, etc.).

The Respondent may consult the Conduct Advisor (or designee) for general support and information regarding options, or he or she may ask for another trained individual to act as a resource.

Both the Respondent and the Complainant have the right to review all submitted reports before the hearing. All reports must be submitted to the Conduct Advisor (or designee) within a minimum of 48 hours before the hearing.

Once the Respondent has been notified, either the Individual Conduct Officer hearing or the Formal Conduct Board hearing will be held as quickly as possible, within fifteen (15) working days of this notification. If this time frame cannot be met, both the Respondent and the Complainant will be notified promptly. Only specific conditions may allow for a hearing delay such as academic calendar delays, the temporary withdrawal of either student, or medical emergency of any participant of the scheduled hearing. Both the Respondent and the Complainant will be informed by the Conduct Advisor (or designee) of the hearing format, specific charges, and related protocol.

If the Conduct Advisor determines that the safety or wellbeing of either the Respondent or the Complainant may be compromised before or after the hearing, alternative residential accommodations may be provided to one or both students. If a continuing threat of harm or concern regarding a hostile environment for the Complainant is present, interim suspension of the Respondent may also be imposed pending a hearing. Both students will be instructed to cease and resist all forms of contact, including third party contact, with one another before and possibly after the hearing (a “no contact” order will be in effect). If the “no contact” instructions are violated, the student who made the contact will face conduct procedures and sanctions including possible immediate suspension and/or a trespass from campus. Further, the Respondent may not discuss the matter with others even if no contact with the Complainant is intended or actually occurs.

It is the Complainant’s choice whether to also report sexual misconduct to civil authorities. A report to the Conduct Advisor (or designee) does not trigger a report to law enforcement authorities. (See Violation of the Law and the Student Judicial Process.) The University will maintain the confidentiality of the Complainant and the Respondent at all stages of the conduct system unless unavoidable. As required by law, however, the Complainant has a right to know the outcome of any conduct hearing involving sexual misconduct, and will be so informed by the Conduct Advisor.

In both Individual Conduct Officer and Formal Conduct Board hearings, the Respondent and Complainant have the right to have one (1) non-participatory advocate or support person in any meeting with University personnel regarding the incident (Note: The advocate/support person may be an attorney, but may act only in an advisory role to the student). If either student utilizes an attorney as an advisor, the student must give the Conduct Advisor at least 48-hours notice. If the student elects to be advised by an attorney, the Conduct Advisor (or designee) may elect to have the University advised by University Counsel during the proceedings.

Also, in both Individual Conduct Officer and Formal Conduct Board hearings, the hearing will be convened in a private room and will not be open to the public. A record of the hearing (digital audio and written) will be maintained by the Conduct Administrator.

In a Formal Conduct Board hearing there will be separate waiting rooms for the Respondent and the Complainant and related witnesses. The Conduct Advisor (or designee) must receive a list of all witnesses at least 48 hours before the hearing. The Conduct Advisor (or designee) must also receive any objections to the persons selected to sit as the Sexual Misconduct Policy Board no later than 72 hours prior to the hearing. (Approved objections may delay the hearing while other Board members are located.) Both the Respondent and Complainant have a right to be present throughout Formal Conduct Board proceedings and will have the right to know in advance any witnesses that may come forward. However, the Complainant and the Respondent do not need to be physically present in the hearing room at the same time and a Formal Conduct Board hearing can be conducted via a live video feed from another location.

Any person disruptive to a hearing may be excluded from the process by the Conduct Advisor (or designee) and/or an Individual Conduct Officer. If this person is a student, he or she will be subject to disciplinary sanctions including immediate suspension and/or lesser charges appropriate to the disruption.

All students have a right to a fair and impartial hearing. However, a student’s failure to attend a scheduled hearing after receiving appropriate, timely notice, and without notifying the University of his or her necessary absence, or a student’s failure to participate appropriately in the proceeding, are not sufficient reasons to halt the Sexual Misconduct Policy Board and/or Individual Conduct Officer from rendering a decision.

(Note: Just as in any University conduct case, decisions are made based on a “preponderance of evidence,” meaning the incident was more likely than not to have happened (more than 50% chance).

Only after a finding of responsibility has been reached in either the Individual Conduct Officer hearing or the Formal Conduct Board hearing, may prior violations of the Sexual Misconduct Policy, of the Student Code of Conduct, or of public law that are deemed relevant be made known to the Conduct Advisor (or designee) who then determines appropriate sanctions.

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Article III.D: Sanctions

The following may be sanctions imposed during an Individual Conduct Officer hearings or a Sexual Misconduct Policy Board hearing:

a. Warning - A notice in writing to the student that he or she has violated the Student Code of Conduct or University community standards, with language that clearly indicates the particular aspects of behavior that were at issue and expectations for future behavior.
b. Loss of Privileges - Denial of specified privileges for a designated period of time.
c. Educational Intervention – An educational task such as a research paper, interview, lecture, observation, etc. that would increase a student’s understanding of related issues of consent and/or appropriate physical boundaries.
d. Program Development – The development of an educational program for a living and/or learning community on a relevant topic (i.e. healthy relationships, consent, effects of alcohol on decision-making, etc.).
e. Fines – Dollar amounts appropriate to the case.
f. Restitution - Compensation for property damage or loss.
g. Discretionary Sanctions - Work assignments, service to the University or other related discretionary assignments.
h. Behavioral Agreements - A written statement of behavioral expectations developed for those who have already received written warnings, or whose conduct indicates that formalized ongoing structures are beneficial.
i. Psychological Assessment – an assessment of functioning conducted by a licensed or certified mental health professional. Such services are available on campus and subsidized by student fees. Should a student prefer to seek a psychological assessment off-campus, the student will be responsible for all payment for services.
j. Probation - A written reprimand for violation of specified regulations. Probation is for a designated period of time, and includes the warning of more severe disciplinary sanctions if the student is found to be in violation of any institutional regulation(s) during the probationary period.
k. Residence Hall Relocation – The Relocation of the accused to a different living unit managed by the University. The University reserves the right to select the new housing assignment and the student is responsible for incurring additional costs that may result from the move.
l. Residence Hall Suspension - Separation of the student from the residence halls for a definite period of time, after which the student may be eligible to return. Conditions to regain a housing assignment may be specified.
m. Residence Hall Expulsion - Permanent separation of the student from any of the living units managed by the University.
n. University Suspension - Separation of the student for a definite period of time, not to exceed one year, after which the student may be eligible to return. Conditions for re-admission may be specified.

Note – the following sanctions can only be imposed via a Formal Conduct Board hearing, or from an appeal of a Formal Conduct Board hearing outcome:

o. University Dismissal - Separation of the student from the University, with opportunity to reapply to the University. Conditions for re-admission may be specified.
p. University Expulsion - Permanent severance of the student from the University.

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Article III.E: Hearing Appeal Process

The decision of the Sexual Misconduct Policy Board may be appealed by either the Complainant or the Respondent within five (5) school or working days of the decision. Such appeals shall be in writing, and shall be delivered to the Vice President of Student Affairs or designee. To be heard, all appeals must meet one of the four criteria listed in the Code of Conduct. These criteria include:

a. To determine whether the original hearing was conducted fairly in light of the allegations and evidence presented, whether the hearing was conducted in conformity with prescribed procedures, and that the process provided a reasonable opportunity to prepare and present evidence that the Student Code was violated, and provided the respondent a reasonable opportunity to prepare and to present a rebuttal of those allegations.
b. To determine whether the decision reached regarding the Respondent was based on an appropriate standard of proof - “more likely than not”, that is, whether the information presented in the case was sufficient to establish that a violation of the Student Code more likely than not occurred.
c. To determine whether the sanction(s) imposed were proportional to the violation of the Student Code, which the student was found to have committed.
d. To consider new evidence sufficient to alter a decision or other relevant facts not brought out in the original hearing, because such evidence was not known, and could not have been known to the person appealing at the time of the original hearing.

The Vice-President of Student Affairs or designee will determine if an appeal meets one or more of the listed criteria. This determination will be communicated within five (5) school days following receipt of a request for appeal. If an appeal does meet the criteria, it will be heard by the Director of Human Resources, or designee, within five (5) school days of the student having been notified. The Director of Human Resources, or designee, has received the same sexual misconduct training as all members of the Sexual Misconduct Policy Board. Once the Director of Human Resources or designee, renders a decision, it is final and any sanctions immediately apply.

Note - Generally, sanctions will not be imposed until the appeal process has been completed. However, in cases where the Sexual Misconduct Policy Board finds the Respondent in violation and determines that the student must be removed from University housing or suspended, dismissed or expelled from the University, the Respondent will be temporarily suspended from living in or visiting any on-campus living environment, and he or she will be given stipulations regarding access to the University until the appeal can be completed. Generally, in all cases wherein an appeal has been filed, both students will be required to honor a “no contact” agreement during the appeal process at least.

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Article III.F: Violation of the Law and the Student Conduct Process

University conduct proceedings may be instituted against a student without regard to pending criminal charges, or civil litigation which may arise from the same situation. Proceedings under the Student Conduct Process, including the Sexual Misconduct Policy, may be carried out prior to, simultaneously with, or following civil or criminal proceedings off-campus.

The Vice President for Student Affairs, in consultation with the University Counsel, will determine the University's response when the law has been violated. Under some circumstances, the University may elect to postpone a hearing, pending completion of the collection of evidence by law enforcement officers, but it is not obligated to do so.

A student who is disciplined, suspended or expelled from the University by the Sexual Misconduct Policy Board for behavior that was also alleged to be illegal and is later found not guilty of charges by public authorities may appeal the Sexual Misconduct Policy Board ruling to the Director of Human Resources. (The finding of the Sexual Misconduct Policy Board has the possibility of remaining in force due to a lesser standard of proof being used—i.e., weight of believable evidence vs. beyond a reasonable doubt.)

When a student is charged by federal, state or local authorities with a violation of law, the University will not request nor agree to special consideration for that individual because of his/her status as a student. If the alleged offense is also involved in a proceeding of the Student Conduct Process, the University may advise off-campus authorities of the existence of the Process, and of how such matters will be handled internally within the University community.

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Important Note

Before revealing the name of the student being accused of misconduct, the reporting student should be made aware of the remote possibility that a Formal Conduct Board hearing might be required in some cases. In cases where the Conduct Advisor, in consultation with the Vice President for Student Affairs, the Director of the Counseling Center and the University Counsel, determines there is a pattern of behavior that poses a significant risk to the community, a Formal Conduct Board hearing may be required to adjudicate an alleged incident. For example, in the rare case where there is a clear pattern of sexual misconduct by the same student against multiple individuals, a Formal Conduct Board hearing may be required. Where such risks to the community are presented by a student who is currently enrolled in one of the graduate/professional programs, or is about to seek admission to such a program, the Dean of the appropriate college may also be notified.

In addition, in accordance with the Title IX of the Education Amendments of 1972 (20 U.S.C. § 1681) and the United States Department of Education's Office for for Civil Rights 2011 "Dear Colleague" letter, certain rare circumstances may require the University to take action even if the Complainant continues to ask that his or her name or other identifiabie information not be revealed. Because the University is tasked with providing a safe and nondiscrirninatory environment for all students, the University may weigh the request for confidentiaiity against the following factors: the seriousness of the alleged harassment; the complainant’s age; whether there have been other harassment complaints about the same individual; and the alleged harasser’s rights to receive information about the allegations if the information is maintained by the school as an "education record" under the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § l232g; 34 C.F.R. Part 99.15.

To learn more about Title IX, the University's Title IX coordinator, and how to submit a Title IX complaint, please see the webpage: Title IX Nondiscrimination Policy at Pacific University

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