Title IX/Gender Equity Issues

Revisions to CSU Executive Orders 1096 & 1097 Policies and Procedures

In response to recent court rulings in the state of California, San José State University has received guidance from the CSU Chancellor's Office concerning changes to Executive Orders 1096 and 1097 Revised, which detail the systemwide policies and procedures for complaints of sexual misconduct, dating and domestic violence, and stalking. The CSU Chancellor's Office has issued revised policies for Executive Orders 1096, 1097, and 1098. They have given all CSU campuses helpful information detailed in FAQ format below.

For more information on the revisions of the CSU Executive Orders, please see the campus-wide email here.


 

EO 1096 Revised March 29, 2019
Systemwide Policy Prohibiting Discrimination, Harassment, Retaliation, Sexual Misconduct, Dating and Domestic Violence, and Stalking against Employees and Third Parties and Systemwide Procedure for Addressing Such Complaints by Employees and Third Parties.

EO 1097 Revised March 29, 2019
Systemwide Policy Prohibiting Discrimination, Harassment, Retaliation, Sexual Misconduct, Dating and Domestic Violence, and Stalking against Employees and Third Parties and Systemwide Procedure for Addressing Such Complaints by Students.

EO 1098 Revised March 29, 2019
Student Conduct Procedures

Frequently Asked Questions re Revised Title IX Policy1 

Updated on April 5, 2019

Why has the CSU revised its Title IX Student Policy?
What kinds of cases are impacted by this revised policy?
What policy applies if the circumstances of my Title IX case do not meet these criteria?
How will these changes most directly affect me?
What will the hearing be like?
Do I have to be in the same room as the other Party (Complainant or Respondent)?
What does cross-examination mean?
What if I don't want to participate in the hearing?
Is there an alternative to having a hearing?
Can I submit new evidence at the hearing or ask the Hearing Officer to interview a new witness?
When will my case go to hearing?
Will this hearing requirment have a negative effect on students reporting sexual misconduct or moving forward with investigations of their cases?
Will the new policy apply to dating and domestic violence or stalking cases?
What effect does this revised policy have on closed cases?

Why has the CSU revised its Title IX Student Policy?
A California Court of Appeal recently ruled (in a case involving another university) that student Respondents in sexual misconduct cases who may face severe discipline (expulsion or suspension) have the right to a hearing to cross-examine (question), directly or indirectly, Complainants and other witnesses if witness credibility is “central” to the case.  Until now, the San José State University process for these kinds of cases has not included this kind of hearing. 

What kinds of cases are impacted by this revised policy?

The provisions of the revised policy apply only to cases that meet the following three criteria:

  • A student (Respondent) is accused of Sexual Misconduct as defined by Executive Order (EO) 1096 & EO 1097 (Revised March 29, 2019);
  • If found to have violated the policy, the Respondent may be suspended or expelled; and
  • The credibility of the Complainant, Respondent, or other witnesses is central to a determination of whether the Respondent engaged in Sexual Misconduct.

What policy applies if the circumstances of my Title IX case do not meet these criteria?
If the circumstances of your case do not meet all three of the criteria described above, the pre-existing provisions of EO 1096 or 1097 apply to your case.  In those cases, the investigator makes findings of fact and the final determination, after review by the Title IX Coordinator, about whether CSU policy was violated. Please note that cases in which the Respondent is an employee will not be subject to the provisions of the revised policy.
What policy applies if the circumstances of my Title IX case do not meet these three criteria?

 

How will these changes most directly affect me?

Your Role in the Case   Most Significant Effects of Revised Policy
Complainant  

✔ Before or after the investigator has completed the investigation report, you may ask to resolve your complaint (with the assistance of the campus Title IX Coordinator) without a hearing through an Early Resolution Process.

✔ If the case does not resolve or the parties choose not to attempt an Early Resolution, a hearing will be scheduled. You will identify witnesses and prepare questions to submit to the Hearing Officer, who will review for inclusion during the hearing.

✔ You will participate in the hearing; if you choose not to participate in the hearing, the information you provided to the investigator during the interview stage will not likely be considered by the Hearing Officer.

Respondent  

✔ Before or after the investigator has completed the investigation report, you may ask to resolve the complaint (with the assistance of the campus Title IX Coordinator) without a hearing through an Early Resolution Process.

✔ If the case is not resolved or the parties choose not to attempt an Early Resolution, a hearing will be scheduled. You will identify witnesses and prepare questions to submit to the Hearing Officer, who will review for inclusion during the hearing.

✔ You will participate in the hearing; if you choose not to participate in the hearing, the information you provided to the investigator during the interview stage will not likely be considered by the Hearing Officer.

Witnesses  

✔ You will participate in the hearing; if you choose not to participate in the hearing, the information you provided to the investigator during the interview stage will not likely be considered by the Hearing Officer.

✔ You may be subject to disciplinary sanctions if you do not participate in the hearing (students and employees). The campus will inform professors or supervisors to allow for a witness to participate in the hearing if they need to be excused from class or work.

Advisors   ✔ The revised policy does not change the role of the advisor.  The advisor may help you to prepare for the hearing and may consult with you during the hearing, but may not speak for or on behalf of the Complainant or Respondent.
Support Person   ✔ The Complainant and Respondent may also be accompanied at the hearing by a friend or other person to provide emotional support.


What will the hearing be like?
The hearing is a meeting at which the Hearing Officer (the individual who will oversee the hearing)3 listens to the Respondent, Complainant, and witnesses, and analyzes the evidence.  The Hearing Officer asks questions (including questions proposed by the Complainant and Respondent) of the witnesses and makes findings of fact and a decision about whether the Executive Order was violated.   

Do I have to be in the same room as the other Party (Complainant or Respondent)?
Not necessarily. If you do not want to be in the same room with the other person involved in the investigation, please discuss your request with the campus hearing coordinator in advance of the hearing so that arrangements can be made.     

What does cross-examination mean?
Cross-examination means asking questions of a witness (including the Complainant or Respondent) to challenge that witness’ statements or credibility.  In the hearing process, the Complainant and Respondent will “cross-examine” each other and witnesses through the Hearing Officer (indirect cross-examination).    

What if I don't want to participate in the hearing?
You are not required to participate in a hearing, but please be aware of the impact on the process if you do not participate:   

● If you are a Complainant and do not participate in the hearing, the University’s ability to take action may be limited. The hearing will happen, but statements you made during the investigation interview (even if described in the investigation report) will not likely be considered at the hearing because you will not be available to answer questions about those statements.

● If you are a Respondent and do not participate in the hearing, the hearing will happen, but statements you made during the investigation interview (even if described in the investigation report) will not likely be considered at the hearing because you will not be available to answer questions about those statements.

● If you are a witness and do not attend the hearing, you will be subjected to discipline (as a student or employee) and a hold may be placed on any student witness’ transcript. If a witness does not attend the hearing, the statement that witness made during an investigation interview (even if it is described in the investigation report) will not likely be considered at the hearing because the witness will not be available to answer questions about that statement.

Is there an alternative to having a hearing?
Yes.  An Early Resolution is an agreement between you and the other party that would resolve the matter without a hearing.   

✔ It is a completely voluntary process that can occur at any time up to the point where the hearing officer makes a final decision.

✔ Neither the Complainant nor the Respondent are obligated to participate in an Early Resolution process, or, even if a process occurs, neither party is obligated to agree to the proposed terms of an Early Resolution agreement.

✔ Both parties and the campus Title IX Coordinator have to agree with the terms of the Early Resolution before it can become final.

If you would like to pursue an Early Resolution agreement, you can discuss this option with your campus Title IX Coordinator. 

Can I submit new evidence at the hearing or ask the Hearing Officer to interview a new witness?
All available evidence should have been provided to the investigator during the investigation phase of the process.  If relevant evidence or a witness was not reasonably available during the investigation phase, then the Hearing Officer may decide to permit its use at the hearing.  However, if the Hearing Officer concludes that the evidence or witness actually was reasonably available during the investigation or is not relevant, the Hearing Officer may decide to not allow the evidence or witness at the hearing. 

When will my case go to hearing?
If your case is in the investigation phase, the investigator will interview witnesses, gather the evidence, provide you with an opportunity to review the preliminary investigation report (the evidence), invite you to respond to the preliminary investigation report, and then prepare a final investigation report. The final investigation report will be sent to both parties as well as the Hearing Officer prior to the hearing.  If you wish, you may explore the option of an Early Resolution with your campus Title IX Coordinator during this time.   

Will this hearing requirment have a negative effect on students reporting sexual misconduct or moving forward with investigations of their cases?
This is difficult to predict; Complainants always have the right to file complaints with the Title IX Office and there is no deadline for reporting. Investigators are trained in trauma-informed practice and how to conduct an impartial, fair investigation. In addition, all Hearing Officers will receive training about our investigation and hearing processes as well as about the complex and sensitive issues surrounding allegations of sexual misconduct.  We encourage students to speak with their campus Title IX Coordinators and confidential campus resources, including psychological services and survivor advocates, to discuss their experiences, questions, and concerns.  

Will the new policy apply to dating and domestic violence or stalking cases?
The revised policy only applies to matters involving sexual misconduct as defined by CSU policy.  However, if a matter involves sexual misconduct as well as dating and domestic violence or stalking (or all three), all charges will be governed by the revised policy.  Please direct any questions to your campus Title IX Coordinator.  

What effect does this revised policy have on closed cases?
Cases that were concluded before January 2019 were properly addressed under CSU policy and in compliance with law applicable at the time. Any new complaints filed in January 2019 or later, or any cases for which the investigation process was not completed by January 2019, will be subject to the requirements of the new policy.  Please direct any questions to your campus Title IX Coordinator.   

1 The purpose of these FAQs is to provide an overview of CSU’s revised Title IX policy (effective March 29, 2019) and to answer frequently asked questions. These FAQs do not constitute CSU policy nor do they purport to represent a comprehensive statement of CSU policy. Please direct any questions about CSU Title IX-related policy to your campus Title IX Coordinator.
2 CSU EO 1096 can be found at https://www.calstate.edu/eo/EO-1096-rev-3-29-19.pdf and CSU EO 1097 can be found at https://www.calstate.edu/eo/EO-1097-rev-3-29-19.pdf.

 Hearing Officers are external persons hired by the University to conduct the hearings and make findings of fact and final determinations. 

Title IX of the Education Amendments of 1972: Federal law that prohibits discrimination on the basis of sex, gender or sexual orientation of students and employees in educational institutions that receive federal assistance.