POLICY STATEMENT SUPPORTING DIVERSITY AND FREE SPEECH
Diversity of views, cultures, and experiences is critical to the academic mission of higher education. Such diversity enriches the intellectual lives of all, and it increases the capacity of Buena Vista University to serve the educational needs of its community.
BVU is also equally committed to academic freedom and free speech. As members of an institution of higher learning, respecting these rights requires that we tolerate expressions of opinion that differ from our own or that we may find abhorrent.
These values of free expression justify protection of speech that is critical for diversity and other principles central to the university’s academic mission. However, values of free expression are not supported, but rather are undermined by acts of intolerance that suppress alternative views through intimidation or injury. As members of an institution of higher learning, we must stand against any assault upon the dignity and value of any individual, through harassment that substantially interferes with his or her educational opportunities, peaceful enjoyment of residence, physical security, or terms or conditions of employment (collectively, “protected interests”).
Buena Vista University is committed to preventing harassment while protecting individual rights. The BVU community promotes an environment in which incidents of discriminatory harassment are less likely to occur; an environment that is hospitable to all members of the University community regardless of race, sex, color, national origin, religion, age, sexual orientation, disability or status.
Ultimately, however, these goals will not be fully realized unless every member of the University community takes personal responsibility for fostering an environment in which diversity can be appreciated and in which all students and employees can reach their fullest potential. No committee or other entity can substitute for the good will, freely given, by the individuals who make up the University.
I. UNIVERSITY POLICY PROHIBITING HARASSMENT
A. It is a violation of university policy for any university employee or student to subject any person to harassment.
B. Harassment defined: Actions constitute harassment if:
1. They are substantially interfere with another’s educational or employment opportunities, peaceful enjoyment of residence, or physical security, and
2. The actions are intentional and taken with the knowledge that they are likely to substantially interfere with protected interests identified above.
II. BVU & FIRST AMENDMENT GUIDELINES
A. The University’s Legal Obligations
As a university and employer, BVU has moral, legal, and, to a limited extent, contractual obligations to maintain reasonable educational, residential, and working environments that allow students and employees to pursue their goals without substantial interference stemming from harassment. BVU is committed to the goal of achieving diversity within the campus community. Principles of academic freedom and constitutional guarantees of free speech, however, limit the University’s ability to use restrictions on speech as a means of promoting diversity and opposing harassment and discrimination. Thus, as stated in these policies, the Harassment Policy does not restrict free speech protected by state and federal constitutional laws or by principles of academic freedom.
III. ILLEGALITY OF HARASSMENT
A. Sexual Harassment
Sexual harassment is prohibited under Title IX of the Educational Amendments Act of 1972 and Titles VI/VII of the Civil Rights Act of 1964, and includes any unwelcome sexual conduct which:
1. Is made a term or condition of an individual’s employment; or
2. Has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive work environment. These statements also apply to the ability of an individual to obtain an education (as in a situation involving a faculty member/administrator/staff member and a student).
The following is a list that is by no means exhaustive, of conduct considered to be sexual harassment, if unwelcome and shown to be sufficiently severe and pervasive:
• direct or indirect threats or bribes for sexual activity
• sexual innuendoes and comments
• intrusive sexually explicit questions
• sexually suggestive sounds or gestures
• repeatedly asking a person out for dates or to have sex
• touching, patting, pinching, stroking, squeezing, tickling, or brushing against a person
• neck/shoulder massage
• rating a person’s appearance or sexuality
• ogling, leering or staring at a person’s anatomy
• spreading rumors about a person’s sexuality or graffiti about a person’s sexuality
• sexual ridicule
• jokes about sex or genders
• letters, notes, telephone calls, or material that is of a sexual nature
• displaying pictures, photographs, calendars, cartoons, or other material with a sexually explicit content
• stalking a person
Harris v. Forkli (1993) and Oncale v. Sundowner (1998): To determine the existence of a severe or pervasive harassing environment, the following circumstances must be considered: frequency and duration of conduct; severity of the conduct (physical threats, humiliation, or mere utterances); and the level of interference with the complainant’s employment or education.
Sexual Harassment is punishable under federal and state law.
B. Harassment Based on Race and National Origin
Harassment based on race or national origin can be oral, written, graphic or physical conduct related to an individual’s race, color, or ethnicity, including, but not limited to:
• Intimidation or implied or overt threats of physical violence motivated by race, color or national origin.
• Acts of aggression or assault upon another, or damage to property of another, motivated by the individual’s race, color, or ethnicity.
• Demeaning jokes, taunting, racial slurs and derogatory racial nicknames, innuendos, or other negative or derogatory remarks relating to race, color, or ethnicity.
• Graffiti, slogans, cartoons, or posters depicting racial/ethnic slurs and/or derogatory sentiments.
• Criminal offenses directed at persons because of their race or national origin.
C. Harassment Based on Sexual Orientation
Some harassment directed at gay, lesbian, bi-sexual or transgendered individuals can fall under the sexual harassment guidelines if it is targeting such individuals for physical sexual advances, etc. Buena Vista University will not tolerate any type of harassment toward members of the gay, lesbian, bi-sexual or transgendered community. BVU’s harassment policy prohibits any conduct toward individuals based on their sexual orientation that creates a hostile environment. All allegations of such conduct will be investigated and are subject to the hearing procedures of this policy.
D. Other Targets of Harassment
Comments and actions that constitute harassment may also be based on any other protected interest, such as religion, age, ability, and/or physical appearance. Buena Vista University will not tolerate such conduct and all allegations will be investigated and are subject to the same hearing procedures and sanctions as other forms of harassment under this policy.
Buena Vista University will discipline or take other appropriate action against any student, faculty member, staff member, or administrator who retaliates against (or attempts to retaliate against) any person who reports alleged harassment or violence, files a complaint of harassment, or who testifies, assists, or participates in any investigation, hearing or proceeding related to such harassment or violence. Retaliation includes, but is not limited to, any form of threat, intimidation, reprisal, or discrimination.
Buena Vista University shall have jurisdiction over all students who are enrolled at Buena Vista University. Any school sponsored or sanctioned activities, during which harassment is alleged to have occurred, shall trigger jurisdiction. For any other alleged incident occurring off campus, however, this jurisdiction will be invoked only upon the written concurrence of the president and the vice president for student affairs/dean of students.
If the complainant chooses to proceed with internal action, he or she may choose from among three hearing options. The members and alternates of the Hearing Boards are chosen by the President’s Council for faculty/staff, and by the Judicial Board for students.
The Harassment Hearing Board, for any particular hearing, consists of one staff member, one faculty member and one student. The members and alternates of the Hearing Board will be selected by the President’s Council and the Judicial Board. The vice president for student affairs/dean of students is responsible for convening representatives to serve on a particular hearing board. The Chair of the Hearing Board will be selected by that Hearing Board prior to each hearing.
The Administrative Hearing Board consists of three administrators, convened by the vice president for student affairs/dean of students. The chair will be selected by the Board prior to each hearing.
The Dean’s Hearing consists of the vice president for student affairs/dean of students or his/her designee. The vice president for student affairs/dean of students or designee has the right to refer the case to one of the Hearing Boards.
The University will file charges on campus with the consent of the complainant. The University will support the victim regardless of the decision he or she makes concerning the filing of a complaint on campus and/or with law enforcement officials.
Each Hearing Board will choose a chair prior to a hearing. The process is the same for all Hearing Boards. Copies of the complaint will be distributed to all members of the hearing body at least 24 hours prior to the hearing.
All hearings pursuant to this policy shall be closed and all persons in the hearing room shall be admonished to keep all evidence, testimony, and deliberations confidential. All information presented at the hearing is confidential. Disclosure of privileged information by a member of the Hearing Board will result in that member’s expulsion from the Board. In such an instance, the seat will be filled by a standing alternate representing the same constituency, and a new alternate will be selected by the President’s Council or the Judicial Board depending on whether the person being replaced is a member of the faculty, staff or student body. Any allegation regarding a breach of confidentiality on the part of any board member shall be submitted in writing to the vice president for student affairs/dean of students for appropriate and timely action. In cases of alleged impropriety or other serious concerns, Board members may be subject to sanction and may also be subject to expulsion from the Hearing Board.
Members of the Hearing Boards must disqualify themselves from hearing cases arising from matters directly relating to them, or concerning persons about whom they are prejudiced. The accused and the complainant may each request that Board members be removed for cause. The accused and the complainant shall 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/she must submit reasons for the objections to the vice president for student affairs/dean of students, in writing, at least 24 hours before the hearing. The vice president for student affairs/dean of students will review the objection and decide whether the Hearing Board member(s) should or should not be replaced. Removal from the Hearing Board shall only occur if the vice president for student affairs/dean of students is convinced that a lack of impartiality or other extenuating circumstances would result, were the hearing board member to adjudicate the incident. The decision of the vice president for student affairs/dean of students must be delivered to the chair prior to the scheduled hearing and be entered into the minutes of the hearing. If necessary, another Board member will be selected to replace that person.
The hearing process will be audio taped in case of appeals. The vice president for student affairs/dean of students will destroy the tapes after the appeals period has expired or an appeal is processed.
The complainant will be asked to make a statement to the Hearing Board first, followed by a statement from the accused. The accused has the right to remain silent at the hearing. If the accused does not come to the hearing, the hearing will proceed in his/her absence. Members of the Board may ask questions. Each party may submit questions to the Board to be asked of the other party and/or witnesses during the hearing. Either party may request a reasonable recess during the proceedings.
Individuals appearing before the Hearing Board are responsible for presenting truthful information. Any person found willfully presenting false or misleading information, shall be subject to disciplinary action.
RECORD OF HEARING
When opening statements and clarifying questions are completed, witnesses will be brought individually into the hearing room. When witnesses are not testifying, they will remain outside the hearing room. All witnesses may be questioned by the Hearing Board. When all witnesses have been heard, the complainant and the accused will be given the opportunity to make final statements. Following final statements, the matter will be deliberated by the Board.
Both the complainant and the accused may have a support person accompany them to the hearing. The support person must be from the BVU community. The support person may not speak to or for the complainant and/or the accused, nor write to that person during the hearing.
BVU provides assistance for the complainant, the accused, and any other involved persons in the form of policy liaisons, comprised of students, staff, faculty, and administrators.
Any student or employee who is the complainant, the accused, or a witness of alleged harassment may ask for support from among the group of policy liaisons, or may select his/her own person from the BVU Community. The policy liaisons are available to explain the process and may remain with the person during the entire process. The complainant and the accused and witnesses may each request a policy liaisons. The policy liaisons is present at the hearing to communicate, concerning policy questions, with the person being helped.
Student Senate will select students to serve as policy liaisons. The President’s Council will select faculty, administrators, and staff to serve in the role of policy liaisons.
All persons in the room, except for the Hearing Board will be asked to leave during deliberations. The Hearing Board decision will be reached based on a preponderance of the evidence. The accused and the complainant will be brought back into the room separately and informed of the decision. The chair of the chosen Hearing Board will also put the decision in writing for both parties. A letter outlining the conditions of the disposition of the hearing will be placed into the adjudicated student’s personal file and in the judicial file of the University.
SANCTIONS FOR STUDENTS FOUND GUILTY OF HARASSMENT
The president or a designated vice president may remove the accused from campus prior to a hearing if that person is believed to be a danger to the victim and/or the BVU community. This action has no bearing on the hearing and does not imply guilt.
Sanctions appropriate for violations include the following, or a combination thereof:
Written Censure is an official statement condemning the conduct of the adjudicated student, which will be placed in the student’s personal file.
Disciplinary Probation maintains the jurisdiction of the board over the adjudicated student for a designated period of time. Failure to successfully fulfill the conditions of probation will result in suspension or expulsion and will be determined by the vice president for student affairs/dean of students. Conditions of probation are those requirements the student must successfully fulfill and may include but are not limited to:
• Financial restitution for tangible goods and services for the appropriate party(ies).
• Service or educational project.
• Loss of privileges associated with the offense such as the use of university facilities, visitation, attendance at university functions, etc.
• Counseling—encouraged or required participation in counseling sessions.
• Denial of participation in intercollegiate athletics.
• Denial of participation in intramural athletics.
• Denial of participation including but not limited to, co-curricular involvement, public performances, publications events or activities sponsored by student campus organizations, excluding assignments required for course work.
• Denial of holding an office in any student organization.
• Denial of using a motor vehicle on campus.
• Denial of exercising his/her normal housing lottery priority.
• Denial of attending or sponsoring university social functions.
• Denial of attendance at athletic events.
• Denial of use of athletic facilities.
• Denial of serving as academic assistant.
Suspension is a set period of time during which the privilege of attending classes or being on the campus is withdrawn. The student may be reinstated at the completion of the period or after specified conditions are met. When disciplinary action (i.e. suspension or expulsion) results in the loss of any college or college-contracted service for the student, there will be no refund, except pro-rated board, unless required by federal, state or other regulations. When a student is suspended a notation will be made on the student’s academic record (transcript) as follows: “SUSPENDED (date) FOR CONDUCT.” This notation will remain on the record until the terms of the suspension have been satisfied. During a subsequent semester, a student who desires to be reinstated must notify the vice president for student affairs/dean of students and present evidence that the conditions for reinstatement have been satisfied.
Expulsion is withdrawal of the privilege of attending the University with no promise that the student may return in the future. A student who has been expelled from the University for disciplinary reasons may only be re-admitted by the authority of the president. When this expulsion is finalized, a notation will be made on the student’s academic record (transcript) as follows: “EXPELLED (date) FOR CONDUCT.” An expelled student may never be on the BVU campus without permission from the president of the University.
RELEASE OF INFORMATION
Publicizing incidents of sexual misconduct is necessary in order for members of the campus community to make informed judgments and take appropriate preventative measures. Support will be provided and confidentiality will be protected when not in conflict with overriding community interests. The information will be posted throughout the campus on a specific color of paper, which is exclusively used for this purpose. In addition, this information will be in each student’s mailbox and available in the Office for Student Affairs. The vice president for student affairs/dean of students or his/her designee will be responsible for distributing the information.
Appeals from the accused are to be heard by the president or his/her designee. Appeals must be filed by the accused within two class days after receiving the written decision from the Hearing Board. Appeals will be considered only for failure of the original hearing body to follow process or for new evidence. An appeal must be submitted in writing stating the grounds for the appeal and a copy will be provided to the complainant. A second appeal may be made to the president of the University, and will follow the same process as stated above.
The complainant is entitled to an appeal if he/she can show, to the vice president for student affairs/dean of students satisfaction, that the adjudication process was in any way biased, unfair, or the process or punishment violated the policy.