XV. Investigation and Hearing Resolution Process

This procedure is for all allegations of Prohibited Conduct where the Parties are TCC students. To determine whether this Policy applies to a case involving Parties other than only students, please refer to the chart in Section III.A.

Throughout the Resolution Process, the Home Institution Title IX Coordinator(s), as well as the TCC Title IX Administrator, will work closely and cooperatively together. They will maintain open communication during all phases of the Investigation and Hearing Resolution process, including the investigation, hearing, and appeal stages.

Respondents are presumed not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the Investigation and Hearing Resolution process, and any applicable appeal process has concluded. TCC does not make determinations of responsibility prior to the completion of the Resolution Process.

A. General Information

1. Nature of Process

The Investigation and Hearing Resolution process under this Policy is not an adversarial process between a Complainant, a Respondent, and the witnesses, but rather a process for TCC to comply with its obligations under existing law. The Investigation and Hearing Resolution process shall provide all Parties with appropriate due process and will reach reasonable conclusions based on the evidence collected.

2. Burden of Evidence

TCC has the burden of conducting an investigation that gathers sufficient evidence to determine whether Prohibited Conduct occurred. Complainant does not have the burden to prove, nor does Respondent have the burden to disprove, the underlying allegation(s) of Prohibited Conduct. Any Party may decide to limit their participation in part or all of the process, or to decline to participate. This does not shift the burden of proof away from TCC and does not indicate responsibility. See below for more information regarding Party participation in the investigation process (Section XV.A.5) and hearing process (Section XVI.B.4).

3. Evidence Standard

In evaluating all allegation(s) of Prohibited Conduct, and in any Investigation and Hearing Resolution process, TCC will utilize the “Preponderance of the Evidence” standard, which means that the alleged Prohibited Conduct is more likely than not to have occurred.

4. Resolution Process Timeline and Extensions

Absent extensions for good cause, TCC strives to complete the entire Investigation and Hearing Resolution process as thoroughly, equitably, and as promptly as possible within 150 business days from the issuance of the Notice of Investigation and Allegations to the Parties. This includes the initial assessment and evaluation of the allegations, issuance of notice letters initiating the process, investigation (interviews with the Parties and relevant witnesses), evidence review process, hearing, issuance of the hearing decision (and remedies and sanctions, if applicable), and any appeal process.

TCC has provided the following estimated timelines for the major stages of the Investigation and Hearing Resolution Process:

a. Initial Assessment and Evaluation of Allegations

This phase is generally completed within 10 (ten) – 15 (fifteen) business days from submission of Complaint or request to investigate allegations, and Complainant’s intake meeting with Complainant’s Home Institution Title IX Coordinator. This stage includes the Complainant’s Home Institution’s Title IX Coordinator’s assessment of the allegations, determination of whether the allegations meet the definitions of the Prohibited Conduct under this Policy, and decision of whether to dismiss or investigate the Complaint of Prohibited Conduct. This determination will be made once sufficient information has been gathered from the Complainant at the initial meeting and/or intake meeting.

b. Investigation

This phase is generally completed within 80 (eighty) business days. This includes investigative interviews with the Parties and witnesses, gathering and reviewing any submitted or collected evidence, drafting the Preliminary Investigation Report (PIR) and providing the Parties an opportunity to review and respond to the PIR (Evidence Review Process), and issuance of the Final Investigation Report.

c. Hearing and Hearing Decision Report (and Sanctioning, if applicable)

This phase is generally completed within 30 (thirty) to 40 (forty) business days from issuance of Final Investigation Report. This process includes scheduling the hearing, pre-hearing conference meetings, conducting the hearing, and the 15 (fifteen) -business day deadline for the Hearing Decisionmaker to issue their Hearing Decision Report. Unless the Parties agree, the hearing must be scheduled at least 10 (ten) business days from the date the Final Investigation Report was issued to the Parties. Scheduling the hearing will be completed as promptly as possible based on the Parties’, any Advisors and/or Support Persons, and other participants’ (Parties’ Home Institution’s Title IX Coordinator(s), Decisionmaker, TCC Title IX Administrator) availability and in consideration of campus closures, holidays, and exam periods.

d. Hearing Decision and/or Sanctions Determination Appeal

This phase is generally completed within 20 (twenty) business days. This process includes any appeal submitted by one or all Parties, the assignment of an Appeal Decisionmaker, opportunity for the non-appealing Party to issue a response, and the 15 (fifteen)-business day deadline for the Appeal Decisionmaker to issue their decision.

A thorough investigation and procedurally proper hearing and appeal may necessitate one or more extensions for good cause. The timeline for any part of the Resolution Process may be extended for good cause by the TCC Title IX Administrator. Good cause reasons for extension may include ensuring availability of the Parties, witnesses, or other participants in the process, ensuring that the Parties and witnesses have sufficient time to review and respond to materials, and ensuring the Investigator has sufficient opportunity to meet with the Parties and witnesses and gather evidence, as needed. The TCC Title IX Administrator will provide notice to all Parties of any timeline extensions. Failure to complete any specific stage, or the entirety of the Investigation and Hearing Resolution process within the estimated time period does not, in and of itself, constitute a procedural error. Any such argument of procedural error (as set forth in Section XVIII.) must also include an explanation as to how the delay(s) materially impacted the outcome of the process.

For pending matters that involve a graduating student Respondent, the Respondent’s Home Institution will determine degree issuance consistent with their Institution’s process.

5. Impact of Party Non-Participation in the Resolution Process

Any Party may decide to limit their participation in part or in all of the Resolution Process under this Policy, or to decline to participate. This includes limited or no participation in the investigation, evidence review process, or hearing process.

A Party is not required to participate in any stage of the process; however, a Party’s decision to limit participation may impact the process by, including but not limited to, delaying the process timeline, limiting the Party’s opportunity to present or respond to relevant evidence, the available relevant evidence gathered by the Investigator, and/or available to the Hearing Decisionmaker, the Hearing Decisionmaker’s opportunity to ask the Party questions regarding the allegations, and impacting the hearing outcome.

6. Privacy and Confidentiality in the Resolution Process

Parties may share confidential information received through the Resolution Process under this Policy with their Support Person and/or Advisor consistent with the requirements of their Home TCC Institution. Each Party’s TCC Institution will provide their Party a FERPA^[1] release form for their Support Person and Advisor that authorizes such sharing and participation. The Party’s Home Institution’s Title IX Coordinator and/or TCC is unable to share information with a Support Person and/or Advisor under this Policy until the form is sufficiently completed by the Party. The form must also be completed prior to the Support Person and/or Advisor attending any meetings or proceedings under this Policy. The Party’s Home Institution’s Title IX Coordinator and TCC Institution shall not restrict the ability of any Party to discuss the allegations under investigation for the purpose of gathering and presenting relevant evidence, including by speaking to witnesses, consulting with their family members, Confidential Resources, Support Person or Advisor, or otherwise to prepare for or participate in the Resolution Process under this Policy.

Parties, witnesses, Support Persons, and/or Advisors are expected to maintain the privacy of the information shared with them under this Policy. This information may not be shared with third parties, duplicated, disclosed publicly, or used for purposes not explicitly authorized by the Party’s Home Institution Title IX Coordinator or TCC Institution. TCC may seek to restrict the role of any Support Person and/or Advisor who does not respect the sensitive nature of the process or who fails to abide by these expectations.

Any unauthorized disclosure of information or evidence obtained solely through the Resolution Process under this Policy may be referred to the appropriate TCC Institution’s Student Conduct or Human Resources office for review. Any unauthorized disclosures made by a TCC Institution student or employee (subject to this Policy), including by Parties, witnesses, Support Person, or Advisor, may be subject to sanctions or discipline at the discretion of the discloser’s TCC Home Institution.

For purposes of this paragraph, disclosures of such information and evidence for purposes of administrative proceedings or litigation related to the Complaint of Prohibited Conduct are authorized.

The Party’s Home Institution’s Title IX Coordinator and other administrators at TCC are permitted to share confidential information amongst other TCC Institution representatives who have a reasonable need to know, and such disclosure is not a violation of FERPA. The Party’s Home Institution’s Title IX Coordinator and TCC Institution will endeavor to respect any requests for confidentiality but will also weigh those requests against the TCC Institution’s responsibility to maintain a safe environment for its community. Complete confidentiality cannot be guaranteed.

7. Right to an Advisor

Parties may elect to be accompanied by an Advisor, as defined in this Policy, during meetings and proceedings related to any ABR, investigation, and hearing process under this Policy. Parties are limited to one Advisor. Parties may be accompanied by a Support Person (see below) in addition to an Advisor. An Advisor can be anyone, and may be, but is not required to be, an attorney. Generally, it is not recommended that the selected Advisor be a Party or a witness in the same matter.

The Advisor may not speak or write on behalf of the Party or otherwise disrupt any interviews or proceedings. TCC reserves the right to exclude or remove an Advisor who does not comply with this Policy.

A Party is not required to have an Advisor during any part of the Resolution Process, including meetings, ABR, the investigation, or hearing process, and a TCC Institution is not required to provide one for the Party. Upon a Party’s request, however, the Party’s Home Institution’s Title IX Coordinator may be able to connect a Party with a trained Advisor, if available, who may be an employee at a TCC Institution.

8. Support Person

Parties may elect to be accompanied by a Support Person, as defined in this Policy, during meetings and proceedings related to any ABR, investigation, and hearing process under this Policy. Parties are limited to one Support Person. A Support Person may not be a Party or a witness in the same matter. The Support Person’s role is to provide emotional support throughout the process. The Support Person may not speak or write on behalf of the Party or otherwise disrupt any interviews or proceedings. TCC reserves the right to exclude or remove a Support Person who does not comply with this Policy.

B. Initiation of The Investigation and Hearing Resolution Process

1. Notice of Allegations (NOA)

Once TCC has accepted the Complaint for investigation, and has confirmed the allegations to be investigated, the Parties will be provided a written Notice of Allegations, which outlines the allegations within the scope of the investigation, the alleged Policy violation(s), the identity of the Investigator, and other important information related to the process. The issuance of the NOA communicates the initiation of the investigation process.

A Revised NOA must be provided to the Parties any time during the investigation to include allegations of Prohibited Conduct raised by the Complainant against the Respondent that were not included in the initial NOA that are raised later during the investigation process and are determined to be part of the scope of the investigation.

The NOA shall include, at a minimum:

A reminder that the date and time of the initial interview with the Investigator, will generally be scheduled with a minimum of five (5) business days’ notice, unless otherwise agreed upon by the Party;
The investigation procedures, including the applicable determination procedures that will be used in the Investigation and Hearing Resolution process under this Policy, and a link to this Policy;
Information about the ABR options, with a link to the full procedures;
Sufficient information available at the time to allow the Parties to respond to the allegations, including the identities of the Parties involved in the incident(s), a description of the facts alleged to constitute Prohibited Conduct, the type of Prohibited Conduct, and the date(s) and location(s) of the alleged incident(s), if known;
A statement that Retaliation is prohibited;
A statement indicating whether the Investigator, or another individual, shall serve as the Decisionmaker;
A statement indicating the expected length of the major stages of the resolution process, as well as any applicable deadlines;
A statement informing the Parties that the Investigator will establish and communicate, in writing, all investigation deadlines, including the final deadlines for submitting names of witnesses and evidence. These deadlines may be extended by the TCC Title IX Administrator for good cause, and any changes will be provided, in writing, to the Parties, along with the rationale for the revised deadline(s);
The deadline and process for identifying any conflicts of interest or bias with the Investigator. A statement that the Respondent is presumed not responsible for the alleged Prohibited Conduct until a determination is made at the conclusion of the Resolution Process. Prior to such a determination, the Parties will have an opportunity to present relevant and not otherwise impermissible evidence to a trained, impartial Hearing Decisionmaker;
A statement that the Parties may have an Advisor who may be a friend, parent, therapist, colleague, and who may be, but is not required to be, an attorney;
A statement that the Parties are entitled to an equal opportunity to access the relevant and not otherwise impermissible evidence upon the request of any Party, and will receive an investigation report that accurately summarizes this evidence;
A warning that the Decisionmaker may exclude evidence at the hearing that was not presented during the investigation process;
A statement that the individual TCC Institution’s Student Conduct code prohibits knowingly making false statements or knowingly submitting false information during the Resolution Process; and
The identification of the Investigator.

2. Complaints Initiated by the Institution

In instances where an investigation process is initiated by the Complainant’s Home Institution’s Title IX Coordinator, the person alleged to be harmed (the Complainant) will still retain all rights of a Complainant in this process, if they should choose to exercise them, including the choice to participate or not participate at any step of the process and in receiving notification of the outcome.

3. Designation of the Investigator

The TCC Title IX Administrator, in consultation with the Parties’ Home Institutions’ Title IX Coordinator(s), will designate a trained Investigator to conduct an adequate, reliable, and impartial investigation, in a reasonably prompt timeframe. TCC reserves the right to utilize internal or external Investigators As required by California law, the designated Investigator will have undergone a comprehensive, trauma-informed training program for campus officials involved in investigating and adjudicating sexual assault, domestic violence, dating violence, and stalking cases.

The designated Investigator identity will be provided in the NOA. Any Party that believes that the designated Investigator has a conflict of interest or bias for or against complainants or respondents generally or an individual Complainant or Respondent, may submit an objection pursuant to Section V.

C. Investigation Process

1. Evidence Gathering

a. Interviews

After the Parties have been notified in writing of the confirmed Investigator, the Investigator will contact the Parties and identified witnesses to conduct their interviews. Interviews may be conducted in person, or via video conference. Recording of investigative interviews, by any individual, and by any means, is prohibited.

The Investigator will provide to a Party or witness whose participation is invited or expected, advance written notice of the date, time, location, participants, and purpose of all meetings or proceedings with sufficient time to prepare to participate. The Investigator has discretion of the order in which to interview the Parties and witnesses.

A Party is permitted to have one Support Person and one Advisor accompany them to any meetings with the Investigator and must provide at least 72-hour notice of the Support Person and/or Advisor’s planned attendance at the meeting to ensure the appropriate FERPA documentation is completed in advance of the meeting.

TCC may adopt and apply other reasonable rules regarding decorum, provided they apply equally to the Parties. TCC will share expectations of decorum to be observed at all times in any meeting or proceeding under this Policy. These expectations are applied equally to all Parties, Support Persons and Advisors. TCC has the discretion to remove, with or without prior warning, from any meeting or proceeding a Party, witness, Advisor, or Support Person who does not comply with these expectations and any other applicable TCC rules or expectations.

All Parties will be provided equal opportunity to meet with the Investigator, submit relevant evidence, and identify relevant witnesses. The Investigator will meet separately with all Parties, and any identified witnesses that are deemed relevant, and will gather relevant documentary evidence provided by the Parties and any identified witnesses.

When a Party meets with the Investigator, the Investigator will ask questions related to the allegations in the Complaint, and Notice of Allegations, and the Party is given the opportunity to speak to the allegations and related events. Parties may identify relevant fact witnesses and provide evidence that is relevant to the allegations and not otherwise impermissible. This will include inculpatory evidence (that tends to show more likely that an individual engaged in the alleged conduct) and exculpatory evidence (that tends to show less likely that an individual engaged in the alleged conduct).

The Investigator has discretion regarding whom to interview to determine the facts relevant to the Complaint and scope of the investigation, and when to conduct follow-up interviews with Parties and witnesses.

After each Party or witness interview, the Investigator will prepare a written summary of the interview and send the same to the Party or witness for their review for accuracy. Unless the Party or witness requests additional time for review, the written summary will be deemed accurate if the Party or witness does not provide feedback on the written summary within two (2) business days of the Investigator emailing it to the Party or witness.

b. Investigator Determination of Evidence Relevance

The Investigator will take reasonable steps to gather relevant available evidence. The Investigator may exclude evidence they determine to be irrelevant or impermissible. Parties may provide the Investigator with any evidence they believe to be relevant. Character evidence is not relevant evidence, and therefore will not be considered. Expert and polygraph evidence will not be considered.

It is ultimately the role of the Hearing Decisionmaker to determine what weight, if any, to give to the evidence gathered.

TCC shall not restrict the ability of the Parties to discuss the allegations under investigation for the purpose of gathering and presenting relevant evidence.

The Investigator may gather information related to prior or subsequent conduct of the Respondent in determining pattern, knowledge, intent, motive, or absence of mistake.

c. Impermissible Evidence

The following types of evidence, and questions seeking that evidence, are impermissible. This means this information will not be accessed or considered, except by the Parties’ TCC Home Institution(s) to determine whether one of the exceptions listed below applies. This information must not be disclosed and must not be otherwise used, regardless of relevance:

Evidence that is protected under a privilege recognized by Federal or State law, unless the person to whom the privilege or confidentiality is owed has voluntarily waived the privilege or confidentiality;
Evidence provided to an employee designated by TCC as exempt from internal reporting under this Policy, unless the person who made the disclosure or otherwise provided evidence to that employee has voluntarily consented to re-disclosure;
A Party’s or witness’s records that are made or maintained by a physician, psychologist, or other recognized professional or paraprofessional in connection with the provision of treatment to the Party or witness, unless TCC obtains that Party’s or witness’s voluntary, written consent for use in the Resolution Process under this Policy; and
Evidence that relates to the Complainant’s sexual interests or prior sexual conduct, unless evidence about the Complainant’s prior sexual conduct is offered to prove that someone other than the Respondent committed the alleged Prohibited Conduct or is evidence about specific incidents of the Complainant’s prior sexual conduct with the Respondent that is offered to prove consent to alleged Prohibited Conduct. The fact of prior consensual sexual conduct between the Parties does not by itself demonstrate or imply the Complainant’s consent to other sexual activity or preclude a determination that Prohibited Conduct occurred.

For cases of California Sex-Based Harassment in Employment, the Investigator or Hearing Decisionmaker shall not consider the past sexual history of Complainant or Respondent except in the limited circumstances. Specifically, they shall not consider:

Prior or subsequent sexual history between Complainant and anyone other than Respondent for any reason unless directly relevant to prove that physical injuries alleged to have been inflicted by Respondent were inflicted by another individual.
The existence of a dating relationship or prior or subsequent consensual sexual relations between Complainant and Respondent unless the evidence is relevant to how the Parties communicated consent in prior or subsequent consensual sexual relations. Where the Investigator or Hearing Decisionmaker allows consideration of evidence about a dating relationship or prior or subsequent consensual sexual relations between Complainant and Respondent pursuant to this paragraph, the mere fact that Complainant and Respondent engaged in other consensual sexual relations with one another is never sufficient, by itself, to establish that the conduct in question was consensual.

Before allowing the consideration of any evidence proffered pursuant to this section, the Investigator or Hearing Decisionmaker shall provide a written explanation to the Parties as to why consideration of the evidence is consistent with this paragraph. If the issue is raised at the hearing, the Hearing Decisionmaker will include their written explanation in the Hearing Decision Report.

2. Evidence Review Process

At the conclusion of all fact-gathering and before issuing the Final Investigation Report, the TCC Title IX Administrator will provide the Parties access to the Preliminary Investigation Report (PIR) drafted by the Investigator, which includes all relevant evidence and not otherwise impermissible evidence gathered. The purpose of this review process is to provide the Parties with an equal opportunity to meaningfully respond to the relevant and not otherwise impermissible evidence prior to the conclusion of the investigation and issuance of the Final Investigation Report. This is known as the Evidence Review Process. This opportunity will be provided to each Party, and their Advisor and/or Support Person, if any, regardless of whether the Party made the Complaint or participated in the investigation.

Absent good cause, Parties are provided with ten (10) business days to review and provide a written response to the evidence to the Investigator should they wish to do so. Parties are not required to submit a response. The TCC Title IX Administrator has the discretion to extend the evidence review period based on the volume and nature of the evidence and/or may grant a Party’s request for additional time.

The Preliminary Investigation Report will include the following:

The identities of the Parties;
The identities of the witnesses;
A summary of the allegations of the Prohibited Conduct and the alleged Policy violation(s);
Information about the policies and procedures used to evaluate the allegations;
A description of the procedural steps and process taken from the receipt of the Complaint through the investigation process, including any notifications to the Parties, interviews with Parties and witnesses, and methods used to gather other evidence;
The relevant statements of the Parties and witnesses, and evidence gathered for each allegation;
A summary of the relevant, and not otherwise impermissible, evidence gathered by the Investigator; and
Explanations for why evidence or witnesses submitted by the Parties were not considered or interviewed by the Investigator.

Given the sensitive nature of the information provided in the PIR, the TCC Title IX Administrator will facilitate this review in a secure manner and has the discretion to determine how to provide access to the PIR to the Parties based on the particular circumstances of the case and any Party or witness privacy concerns. Unless provided express written permission and access by the TCC Title IX Administrator, neither the Parties, Advisors, Support Persons, nor anyone on any Party’s behalf may copy, remove, photograph, print, image, screenshot, videotape, record, or in any other manner duplicate or remove the information contained in the PIR (unless a Party is describing or quoting the material in a written response to the evidence pursuant to the Evidence Review Process). Any TCC student or employee (subject to this Policy) who fails to abide by this may be subject to discipline. Any Advisor or Support Person who fails to abide by this may be subject to discipline, if applicable, and/or may be excluded from further participation in the process.

As part of this Evidence Review Process, the Parties may:

Submit additional relevant evidence or information;
Provide a written response to any of the relevant evidence;
Submit proposed questions for the Investigator to ask of the other Parties or any witnesses;
Request additional interviews and information-gathering; and/or
Suggest additional witnesses for the Investigator to interview.

The Party’s Advisor and/or Support Person may provide support to the Party during the Evidence Review Process; however, they are not permitted to speak or write on behalf of their Party. This includes any response to the Evidence Review Process.

The Evidence Review Process serves as the final opportunity to submit reasonably available evidence, or names of witnesses. Evidence, that was reasonably available, but not provided during the investigation process will not be considered by the Hearing Decisionmaker.

The Investigator has discretion to determine if the Parties’ responses warrant additional information-gathering. If the Investigator determines it is unnecessary to ask individuals additional questions, interview new witnesses, and/or gather additional evidence, the Investigator will explain their decision in the Final Investigation Report.

If additional evidence is submitted by the Parties, the Parties submit a written response to the evidence, or new evidence is gathered by the Investigator (through additional or follow-up interviews or additional fact-gathering), it will be included in either a Revised Preliminary Investigation Report or a separate addendum, as deemed appropriate by the Investigator.

All Parties will be provided a second reasonable opportunity to review and respond to any new evidence made available through the Revised Preliminary Report or in a separate addendum. The TCC Title IX Administrator will determine how much time is reasonable to review the new evidence. No new evidence will be accepted as part of any response to the second review and response period, except that the Investigator shall have the discretion to accept relevant evidence that was not previously available or known to exist, and that was not previously discoverable with the exercise of reasonable diligence.

The Investigator will determine when it is appropriate to conclude the Evidence Review Process. The TCC Title IX Administrator will notify the Parties when the Evidence Review Process is complete and when the Final Investigation Report is finalized.

3. Final Investigation Report

At the conclusion of the Evidence Review Process, the Investigator will prepare a written Final Investigation Report that includes, at minimum:

The identities of the Parties;
The identities of the witnesses;
A summary of the allegations of the Prohibited Conduct and the alleged Policy violation(s);
Information about the policies and procedures used to evaluate the allegations;
A description of the procedural steps and process taken from the receipt of the Complaint through the investigation process, including, any notifications to the Parties, interviews with Parties and witnesses, and methods used to gather other evidence;
The relevant statements of the Parties and witnesses, and evidence gathered for each allegation;
A summary of the relevant, and not otherwise impermissible, evidence gathered by the Investigator;
A statement describing how and when the parties were given the opportunity to review the evidence; and
Explanations for why evidence or witnesses submitted by the parties were not considered.

The Final Investigation Report will not include findings of fact, findings of whether there was a Policy violation(s), or credibility determinations for Parties or witnesses.

The TCC Title IX Administrator will provide the Parties with access to the Final Investigation Report, including all attachments, at least ten (10) business days prior to the scheduled hearing. The Parties may submit a written response to the Final Investigation Report within ten (10) business days from receipt of access to the Final Investigation Report, or by the deadline otherwise communicated by the TCC Title IX Administrator. Written responses are incorporated into the materials that can be reviewed and considered by the Hearing Decisionmaker. Each Party will receive a copy of any other Party’s written response to the Final Investigation Report.

^[1] Family Educational Rights and Privacy Act.