Chapter IX Policy Prohibiting Sexual MisConduct

Chapter IX Policy Prohibiting Sexual MisConduct

B9.1 Policy Prohibiting Sexual Misconduct: Revised August 11, 2020

B9.1.1 Purpose and AuthorityDel Mar College establishes this policy and related procedures and processes in its continuing effort to seek equity in education and employment, and consistent with its legal responsibility and authority to take measures to address, report, investigate, and prevent sexual misconduct, as required by Title IX of the Education Amendments of 1972, as amended, 20 U.S.C. § 1681, et. seq.; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e; Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act of 1990, 20 U.S.C. § 1092(f), including the Campus Sexual Violence Elimination Act (Campus SaVE) amendment to the Clery Act (2013); Violence Against Women Reauthorization Act of 2013 (VAWA), as amended; and, Texas Education Code § 51.252 (Tex. SB 212)."

This policy is intended to inform students and employees of their rights if they are subjected to or accused of sexual misconduct, including the complaint procedures and support services that a survivor of sexual misconduct can access. This policy is also intended to inform students and employees of their responsibilities if they are aware that sexual misconduct has occurred to a Del Mar College student or employee.   
Sexual misconduct includes: sexual violence, sexual harassment, domestic violence, dating violence, sexual assault, stalking, and sex discrimination.
B9.1.2 Statement of Policy: Del Mar College (the “College”) will not tolerate and strictly prohibits sexual misconduct. The College will act to protect its students and employees from incidents of  sexual misconduct committed by employees, students, or outside third parties.  Conduct prohibited under this policy will not be tolerated and will be subject to disciplinary action, up to and including dismissal from employment and/or from the College, in accordance with Federal and State regulations and College policy.
B9.1.3 Scope: This policy applies to and may be used by all students and employees, regardless of gender, sexual orientation or gender identity, to report incidents of sexual misconduct occurring on or off campus. Procedures and processes under this policy will distinguish between reporting sexual misconduct incidents and Filing Formal Complaints. 
Student and employee grievances and complaints that do not contain allegations of sexual misconduct are excluded from this process.  General student complaints or grievances reflecting a student’s disagreement with the application of a specific College rule, practice and/or policy are processed through Board Policy B7.12.  Employee complaints or grievances regarding general terms and conditions of employment are processed through Board Policy B5.43. Student complaints of discrimination, retaliation, and harassment, that do not contain allegations of sexual misconduct, are processed in accordance with Board Policy B7.19. Employee complaints of discrimination, retaliation and harassment that do not contain allegations of sexual misconduct are processed through Board Policy B5.50.  
A9.1.4 Definitions: The following definitions apply to terms referenced herein.  
Actual Knowledge: Actual knowledge means notice of dating violence, domestic violence, gender-based harassment, sex discrimination, retaliation, sexual assault, sexual harassment, or stalking (i.e., “sexual misconduct”) or allegations of sexual misconduct to the appropriate Title IX coordinator or designee who has authority to institute corrective measures on behalf of Del Mar College. This standard is not met when the only individual with actual knowledge of sexual misconduct is the respondent. The term “notice,” as used in this paragraph, includes, but is not limited to, a report of sexual misconduct to the appropriate Title IX coordinator or designee.
Coercion: The use of pressure to compel another individual to initiate or continue sexual activity against an individual’s will. Coercion can include a wide range of behaviors, including psychological or emotional pressure, physical or emotional threats, intimidation, manipulation, or blackmail that causes the person to engage in unwelcome sexual activity. A person’s words or conduct are sufficient to constitute coercion if they eliminate a reasonable person’s freedom of will and ability to choose whether or not to engage in sexual activity. Examples of coercion include but are not limited to threatening to “out” someone based on sexual orientation, gender identity, or gender expression; threatening to harm oneself if the other party does not engage in the sexual activity; and threatening to expose someone’s prior sexual activity to another person.
Complainant: The Complainant is the student or employee who initiates a complaint of sexual misconduct with either the District Student Complaint Coordinator or the District Complaint Coordinator. Complainants are not limited to those employees or students who have personally experienced the alleged act of sexual misconduct, but also those employees or students who may have either received notice of or witnessed the incident.
Confidential Employees – Confidential Employees include counselors in Counseling Services. Additionally, employees who receive information regarding an incident of sexual misconduct under circumstances that render the employee’s communications confidential or privileged under other law (such as attorneys) are also considered “Confidential Employees.”
Note: Under state law, Confidential Employees who receive information regarding incidents of sexual harassment, sexual assault, dating violence or stalking committed by or against a student or an employee of the College, are required to report the type of incident to the Title IX Coordinator (or Deputy Coordinators). Confidential Employees may not include any information that would violate a student’s expectation of privacy. The Confidential Employee’s duty to report an incident under any other law also applies.
Consent to Sexual Activity: Sexual activity requires consent, which is defined  as  an informed, voluntary, affirmative, and mutual  agreement between the participants to engage in  a specific sexual act. The following guidelines will be used to determine whether consent was obtained when investigating a complaint of sexual assault against a Del Mar College student or employee:
1) Consent to sexual activity can be communicated in a variety of ways, but one should not presume consent has been given in the absence of a clear, positive
2) Consent can only be accurately gauged through direct communication about the decision to engage in sexual activity. The absence of the word “no” or the like (e.g., “stop”) does not imply consent.
3) Although consent can be non-verbal, verbal communication is the most reliable form of asking for and obtaining consent. Discussing desires, needs, and limitations with sexual partners provides a basis for positive sexual experiences shaped by mutual willingness and respect. 

4) Presumptions based upon contextual factors (e.g., provocative clothing or dancing, ) are unwarranted, and should not be considered grounds for consent.

5) As defined in the State of Texas Penal Code §22.011 Sexual Assault, the age of sexual consent is 17. Therefore, consent cannot be obtained from someone who is under the age of 17, as that person is legally considered to be a minor. 

6) Consent cannot be obtained from someone who is asleep, unconscious, or otherwise mentally or physically incapacitated, whether due to alcohol, drugs, or some other condition (e.g., an intellectual or other disability). A person is mentally or physically incapacitated when that person lacks the ability to make or act on considered decisions to engage in sexual activity. Engaging in sexual activity with a person whom you know – or reasonably should know – to be incapacitated constitutes sexual assault.

7) Consent to some sexual acts does not constitute consent to other sexual acts. 

8) Consent must be ongoing throughout a sexual encounter and can be revoked at any time. If you proceed despite your partner’s verbal and/or non-verbal communication to stop, you have committed sexual assault.

9) Consent cannot be obtained by threat, coercion, or force. Agreement under such circumstances does not constitute consent.

10) A prior sexual encounter or pre-existing relationship does not indicate consent to current or future sexual activity.

Complainant: A complainant is an individual who is alleged to be the victim of conduct that could constitute dating violence, domestic violence, gender-based harassment, retaliation, sex discrimination, sexual assault, sexual harassment, or stalking.

Dating Violence: Violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim. The existence of such a relationship shall be determined based on the consideration of the following factors:

  1. a) The length of the relationship;
  2. b) The type of relationship; and
  3. c) The frequency of interaction between the persons involved in the relationship.

Dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse. It does not include acts covered under the definition of domestic violence.

Deliberate Indifference: Deliberate indifference occurs when an institution of higher education with actual knowledge of dating violence, domestic violence, gender-based harassment, retaliation, sex discrimination, sexual assault, sexual harassment, or stalking (i.e., sexual misconduct) in the institution’s education program or activity against a person in the United States responds in a manner that is clearly unreasonable in light of the known circumstances. When an institution of higher education responds in a clearly unreasonable manner, that response constitutes intentional discrimination. Failing to promptly respond once an institution of higher education has actual knowledge of sexual misconduct can also be considered deliberate indifference.

District Complaint Coordinator: The District Complaint Coordinator, who is the Director of Human Resources, is the person designated by the College to receive any complaint of sexual misconduct against or by employees; assist the Complainant in the use of the complaint form and procedures provided herein; identify a designee to conduct the investigation; provide information regarding law enforcement, medical, sexual trauma, and counseling resources; provide assistance regarding various internal and external mechanisms through which the complaint may be filed, including applicable time limits, if any, for filing with external agencies and law enforcement agencies.

District Student Complaint Coordinator: The District Student Complaint Coordinator, who is the Dean of Student Engagement and Retention, is the person designated by the College to receive any complaint of sexual misconduct against or by students; assist the Complainant in the use of the complaint form and procedures provided herein; identify a designee to conduct the investigation; provide information regarding law enforcement, medical, sexual trauma and counseling resources; provide assistance regarding various internal and external mechanisms through which the complaint may be filed, including applicable time limits, if any, for filing with external agencies and law enforcement agencies.

Domestic (Family) Violence: – In accordance with the Violence Against Women Reauthorization Act of 2013 (VAWA), the term “domestic violence” means a felony or misdemeanor crime of violence committed by a current or former spouse or intimate partner of the victim; by a person with whom the victim shares a child in common; by a person who is cohabitating with, or has cohabitated with, the victim as a spouse or intimate partner; by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction in which the crime of violence occurred; or by any other person against an adult or youth victim who is protected from that person’s actions under the domestic or family violence laws of the jurisdiction in which the violence occurred.

Education Program or Activity: Education program or activity includes locations, events, or circumstances over which Del Mar College exercised substantial control over both the respondent and the context in which the dating violence, domestic violence, gender-based harassment, retaliation, sex discrimination, sexual assault, sexual harassment, or stalking (i.e., sexual misconduct) occurred; and also includes any building owned or controlled by a student organization that is officially recognized by Del Mar College.

Formal Complaint: Formal complaint means a document filed by a complainant or signed by the appropriate Title IX coordinator or designee alleging dating violence, domestic violence, gender-based harassment, retaliation, sex discrimination, sexual assault, sexual harassment, or stalking against a respondent and requesting that Del Mar College investigate the allegation. At the time of filing a formal complaint, the complainant must be participating in or attempting to participate in Del Mar College’s education program or activity. A formal complaint may be filed with the appropriate Title IX coordinator or designee in person, by mail, email, using the contact information listed in this procedure for the appropriate Title IX coordinator or designee, or completing the online form available at Student Complaint of Sexual Misconduct Incident Form. The formal complaint must contain the complainant’s physical or digital signature, or otherwise indicate that the complainant is the person filing the formal complaint. If the complainant is not able or willing to sign the complaint, the appropriate Title IX coordinator or designee may sign the complaint in the complainant’s stead; however, when the appropriate Title IX coordinator or designee signs a formal complaint, they are not a complainant or otherwise a party and must comply with all Title IX requirements.

Gender-Based Harassment: Gender-based harassment includes physical, verbal, or non-verbal conduct based on the student’s or employee’s gender, the student’s or employee’s expression of characteristics perceived as stereotypical for the student’s or employee’s gender, or the student’s or employee’s failure to conform to stereotypical notions of masculinity or femininity. For purposes of this policy, gender-based harassment is considered prohibited harassment if the conduct is so severe, pervasive, or objectively offensive that the conduct limits or denies a student’s ability to participate in or benefit from Del Mar College’s education program or activity.

Examples of gender-based harassment directed against a student or employee, regardless of the student’s or employee’s or the harasser’s actual or perceived sexual orientation or gender identity, may include offensive jokes, name-calling, slurs, or rumors; physical aggression or assault; threatening or intimidating conduct; or other kinds of aggressive conduct such as theft or damage to property.

Hostile Environment: exists when sexual misconduct is sufficiently severe or pervasive to deny or limit the individual’s ability to participate in or benefit from an education program or activity or an employee’s terms and conditions of employment. A hostile environment can be created by anyone (e.g., administrators, faculty members, employees, students, and College visitors) involved in an education program or activity or work environment.

In determining whether sexual misconduct has created a hostile environment, the College considers the conduct in question from both a subjective and objective perspective. It will be necessary, but not adequate, that the conduct was unwelcome to the individual who was mistreated. To conclude that conduct created or contributed to a hostile environment, the College must also find that a reasonable person in the individual’s position would have perceived the conduct as undesirable or offensive.

To ultimately determine whether a hostile environment exists for an individual or individuals, the College may consider a variety of factors related to the severity, persistence, or pervasiveness of the sexual misconduct, including (1) the type, frequency, and duration of the conduct; (2) the identity and relationships of the persons involved; (3) the number of individuals involved; (4) the location of the conduct and the context in which it occurred; and (5) the degree to which the conduct affected an individual’s education or employment.

The more severe the sexual misconduct, the less need there is to show a repetitive series of incidents to find a hostile environment. Indeed, a single instance of sexual assault may be sufficient to create a hostile environment. Likewise, a series of incidents may be sufficient even if the sexual misconduct is not particularly severe.

Incapacitation: Incapacitation is the inability, temporarily or permanently, to give consent because the individual is mentally and/or physically helpless, either voluntarily or involuntarily, or the individual is unconscious, asleep, or otherwise unaware that the sexual activity is occurring. An individual may be incapacitated if they are unaware at the time of the incident of where they are, how they got there, or why or how they became engaged in a sexual interaction.

When alcohol is involved, incapacitation is a state beyond drunkenness or intoxication. When drug use is involved, incapacitation is a state beyond being under the influence or impaired by use of the drug. Alcohol and other drugs impact each individual differently and determining whether an individual is incapacitated requires an individualized determination.

After establishing that a person is in fact incapacitated, the College asks two questions:

1) Did the person initiating sexual activity know that the other party was incapacitated? and if not,
2) Should a sober, reasonable person in the same situation have known that the other party was incapacitated?
If the answer to either of these questions is “YES,” consent was absent, and the conduct is likely a violation of this Policy.
A Respondent will be found to have violated policy only if the Respondent knew or should have known that the person was incapacitated.
Intimidation: Unlawfully placing another person in reasonable fear of bodily harm through the use of threatening words and/or other conduct, but without displaying a weapon or subjecting the victim to actual physical attack.
Official with Authority: An “official with authority” is any Del Mar College employee to whom notice of an incident of dating violence, domestic violence, gender-based harassment, retaliation, sex discrimination, sexual assault, sexual harassment, or stalking triggers Del Mar College’s response obligations under Title IX; and who have authority to institute corrective measures on behalf of Del Mar College. Del Mar College’s officials with authority include, but are not limited to, the Title IX coordinators, deputy Title IX coordinators, dean of students, associate deans of students, and student conduct officers.

Other Inappropriate Sexual Conduct: Conduct on the basis of sex that does not meet the definition of “sexual harassment” under this Policy, but is:

If verbal conduct (including through electronic means), unwanted statements of a sexual nature intentionally stated to a person or group of people, that are objectively offensive to a reasonable person and also so severe or pervasive that they created a Hostile Environment, as defined in this Policy. The type of verbal conduct (if all other elements are met) may include:

  1. a) Unwelcome sexual advances (including explicit or implicit proposition(s) of sexual contact or activity);

  2. b) Requests for sexual favors (including overt or subtle pressure);

  3. c) Gratuitous comments about an individual’s sexual activities or speculation about an individual’s sexual experiences;

  4. d) Gratuitous comments, jokes, questions, anecdotes, or remarks of a sexual nature about clothing or bodies;

  5. e) Persistent, unwanted sexual or romantic attention;

  6. f) Exposure to sexually suggestive visual displays such as photographs, graffiti, posters, calendars or other materials; or

  7. g) Deliberate, repeated humiliation or intimidation.

  8. If physical conduct, either:

  1. a) Sexual exploitation, as defined in this Policy;

  2. b) Unwelcome intentional touching of a sexual nature

  3. c) Deliberate physical interference with or restriction of movement; or

  4. d) Sexual violence as defined in this Policy.

  5. Participants: The term “participants” includes the Complainant, Respondent, and any witnesses.

  6. Parties: The term “parties” refers to the “Complainant” and the “Respondent” under this Policy.

  7. Preponderance of the Evidence: The greater weight of the credible evidence. Preponderance of the evidence is the standard for determining allegations of prohibited conduct under this Policy. This standard is satisfied if the action is deemed more likely to have occurred than not.

  8. Respondent: The Respondent is the student, employee or outside third party named in a complaint of sexual violence, initiated pursuant to this policy, as having engaged in sexual misconduct against a College employee or student.

  9. Responsible Employee: A College employee who has the duty to report incidents of and information reasonably believed to be Sexual Misconduct to the Title IX Coordinator. All employees are Responsible Employees except Confidential Employees. Responsible Employees include all administrators, faculty, staff, and advisors. Responsible Employees must report all known information concerning the incident to the Title IX Office and must include whether a Complainant has expressed a desire for confidentiality in reporting the incident.

  10. Retaliation: A party engages in retaliatory action when he or she engages in revenge or reprisal in response to a complaint of sexual misconduct. Retaliation occurs when the Respondent personally engages in an act of reprisal or allows others to engage in acts of reprisal on their behalf. Retaliation includes, but is not limited to, threats of harm injury against the Complainant and, or witnesses, employment actions meant or to harm an employee Complainant or employee witnesses, adverse grading of student Complainants or student witnesses, or attempts to influence the testimony of witnesses by trying to discuss allegations with the witnesses during the pendency of an investigation and appeal.

  11. Sex Discrimination: Occurs when an individual is treated less favorably on the basis of that person’s sex (including gender), which may also include on the basis of sexual orientation, gender identity, or expression, pregnancy or pregnancy-related condition, or a sex stereotype. Sexual harassment, as defined in this Policy, is a form of sex discrimination.

  12. Sexual Assault: Sexual assault is a form of sexual harassment. Sexual assault includes physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent due to the victim’s use of drugs or alcohol or due to an intellectual or other disability. In accordance with the Clery Act, sexual assault is any sexual act directed at another person, without consent of the victim, including instances where the victim is incapable of giving consent; and includes attempted sexual acts, fondling, incest, rape, and statutory rape.

  13. Sexual Exploitation: Conduct where an individual takes non-consensual or abusive sexual advantage of another for their own benefit, or to benefit anyone other than the one being exploited. Examples of sexual exploitation include, but are not limited to, engaging in voyeurism; forwarding of pornographic or other sexually inappropriate material by email, text, or other channels to non- consenting students/groups; the intentional removal of a condom or other contraceptive barrier during sexual activity without the consent of a sexual partner; and any activity that goes beyond the boundaries of consent, such as recording of sexual activity, letting others watch consensual sex, or knowingly transmitting a sexually transmitted disease (STD) to another.

  14. Sexual Harassment: In accordance with Title IX, sexual harassment means conduct on the basis of sex that satisfies one (1) or more of the following:

  1. 1) A Del Mar College employee conditioning the provision of an aid, benefit, or service of Del Mar College on an individual’s participation in unwelcome sexual conduct (i.e., quid pro quo sexual harassment);

  2. 2)  Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to Del Mar College’s education program or activity; or

  3. 3)  sexual assault, as defined in the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (Clery Act); and dating violence, domestic violence, or stalking as defined in the Violence Against Women Reauthorization Act of 2013 (VAWA).

  4. Note: Quid pro quo sexual harassment, Clery Act, and VAWA offenses are not evaluated for severity, pervasiveness, offensiveness, or denial of equal educational access because prohibiting such conduct presents no First Amendment concerns and such serious misconduct causes denial of equal educational access.

Examples of sexual harassment may include unwelcome sexual advances, requests for sexual favors, and other verbal, non-verbal, or physical conduct of a sexual nature by an employee, a student, or a third (3rd) party; touching intimate body parts or coercing physical contact that is sexual in nature; jokes or conversations of a sexual nature; rape; sexual assault; sexual battery; sexual coercion; dating violence, domestic violence, or stalking; and other sexually motivated conduct, communications, or contact.

Physical contact not reasonably construed as sexual in nature is not sexual harassment.

Sexual Misconduct: This term is broadly defined to encompass sex discrimination, sexual harassment, sexual assault, domestic violence, dating violence, stalking, and other Inappropriate Sexual Conduct.

Stalking: In accordance with the Violence Against Women Reauthorization Act of 2013 (VAWA), the term “stalking” means engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear for the person’s safety or the safety of others; or suffer substantial emotional distress. “Course of conduct” means two (2) or more acts including, but not limited to, acts in which the stalker directly, indirectly, or through third (3rd) parties, by any action, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates to or about a person, or interferes with a person’s property. “Reasonable person” means a reasonable person under similar circumstances and with similar identities to the victim. “Substantial emotional distress” means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.

Supportive Measures: Supportive measures are non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the complainant or respondent before or after the filing of a formal complaint or where no formal complaint has been filed. Supportive measures are designed to restore or preserve equal access to Del Mar College’s education program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties or Del Mar College’s educational environment, or deter sexual misconduct. Supportive measures may include, but are not limited to, counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, campus escort services, mutual restrictions on contact between the parties, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of the campus, and other similar measures. Del Mar College must maintain as confidential any supportive measures provided to the complainant or respondent, to the extent that maintaining such confidentiality will not impair Del Mar College’s ability to provide the supportive measures. The appropriate Title IX coordinator or designee is responsible for coordinating the effective implementation of supportive measures.

A9.1.5 What To Do If You Are A Victim of Sexual Violence:  Revised August 14, 2020 Students and employees are advised of the following courses of action in the event of an incident of sexual misconduct.

a) Your immediate personal safety is of the utmost importance. As soon as possible, following an incident of sexual violence, get to a place of safety.

b) Contact the police at 911 as soon as possible after the assault has occurred. It is the decision of the person experiencing sexual violence in determining whether or not to file charges. It is important to note that where a charge is filed with the police, the State covers the cost of medical care provided at the emergency room. If a charge is not filed, the person experiencing sexual violence will be responsible for medical costs incurred. However, when a report is filed, you are NOT obligated to continue with the police criminal justice system or the campus disciplinary action process.

c) Contact someone you trust to be with you and help you deal with any trauma you are experiencing. If you wish, you may contact the College’s Counseling Center to assist you (361- 698-1586). After business hours, contact Campus Security at 361-698-1199. Your situation will be handled with confidentially.

d) It will be important to collect and preserve all evidence, where possible, within 24 hours of the attack of sexual violence. For example, do not change clothes or wash or dispose of clothes you were wearing at the time of the sexual violence incident. Do not wash, shower, or douche. If a change of clothing is unavoidable, put all clothing you were wearing at the time of the sexual violence incidence in a paper (not a plastic) bag. Until police have investigated the area where the incident occurred and dusted for fingerprints, avoid touching any smooth surfaces that the assailant may have

e) Document any injury you suffered either by photographing or by showing your injuries to someone you trust.

f) Seek and obtain medical attention as soon as possible to treat any physical injury and obtain preventative treatment for possible sexually transmitted disease and other health services. Medical providers can also assist with preserving evidence documenting your injuries.

g) In addition to seeking assistance from law enforcement, you can also take steps to protect yourself from the assailant by staying with friends or family after the act of sexual violence, letting your voicemail record telephone calls and messages, notifying the College of the incident in order to insure the assailant is not allowed to have contact with you while on campus or at campus event.

A9.1.5.1 Reporting to the Appropriate Title IX Coordinator or Deputy Title IX Coordinator

Del Mar College students and employees can contact the appropriate Title IX coordinator or deputy Title IX coordinator to report incidents of dating violence, domestic violence, gender-based harassment, retaliation, sex discrimination, sexual assault, sexual harassment, and stalking (hereafter referred to as “sexual misconduct”).

Note: Reporting to any individual other than the appropriate Title IX coordinator or deputy Title IX coordinator does not constitute filing a formal complaint for the purposes of initiating the Title IX complaint resolution process. To initiate the Title IX complaint resolution process, the complainant must submit a formal complaint to the appropriate Title IX coordinator or deputy Title IX coordinator listed below. Additionally, to initiate the Title IX complaint resolution process, complainants cannot remain anonymous.

Del Mar College designates the following persons as Title IX coordinators and deputy Title IX coordinators:

Title IX Coordinator: 

Tammy F. McDonald
Vice President for Administration and Human Resources
101 Baldwin Blvd.
Heldenfels Administration Bldg.
Corpus Christi, TX 78404
Tmcdonal1@delmar.edu
Phone: (361) 698-2177

 

Deputy Title IX Coordinators:
District Employee ComplaintCoordinator
Jerry Henry, SPHR, SHRM-SCP
Director of Human Resources
101 Baldwin Blvd.Heldenfels Administration Bldg.
Corpus Christi, TX 78404
Jhenry12@delmar.edu
Phone: (361) 698-1088
District Student Complaint Coordinator
Cheryl G. Sanders
Dean    of    Student   Engagement    and Retention
101 Baldwin Blvd. Harvin Center
Corpus Christi, TX 78404
Cgarner6@delmar.edu
Phone: (361) 698-1277
A9.1.5.2 Online Reporting Form
To file a complaint with the appropriate Title IX coordinator or deputy Title IX coordinator electronically, Del Mar College students and employees can submit the online form available at Student Complaint of Sexual Misconduct Incident Form.
A9.1.5.3 Reporting to the Appropriate Official(s)
A9.1.5.3.1 Law Enforcement For immediate notification to local law enforcement, dial 911. Contact information for local law enforcement agencies is also listed below.
Note: Reporting to the appropriate law enforcement official(s) does not constitute filing a formal complaint for the purposes of initiating the Title IX complaint resolution process. To initiate the Title IX complaint resolution process, the complainant must submit a formal complaint to the appropriate Title IX coordinator or deputy Title IX coordinator, as outlined in the “Reporting to the Appropriate Title IX Coordinator or Deputy Title IX Coordinator” section above.
 If a complainant requests assistance with reporting to law enforcement, a Del Mar College official will help the complainant with that process. Additionally, complainants have the right not to report a crime or to decline to notify authorities, including law enforcement, if they so choose.
Corpus Christi Police Department
321 John Sartain St.
Corpus Christi TX  78401
Phone: (361) 886-2600
https://www.cctexas.com/police
San Patricio Sheriff's Office
300 N. Rachal Ave.
Sinton, TX  78387
Phone: (361) 364-9600
www.co.san-patricio.tx.us/page/sanpatricio.sheriff
Nueces County Sheriff's Office
901 Leopard St.
Corpus Christi, TX 78401
Phone: (361) 887-2222
www.nuecesco.com/law-enforcement/sheriff 
A9.1.5.3.2 Report to Internal Entities: To report an incident that occurred on a Del Mar College campus or property owned or controlled by Del Mar College, you may contact Campus Security as follows:
Campus Security
White Library, 1st Floor
101 Baldwin Blvd.
Corpus Christi TX  78404
Office: (361) 698-1641
Security: (361) 698-1199
Extension: 1199 on any campus phone
https://delmar.edu/offices/safety/
A9.1.5.3.3 Report to Outside Entities

You may also contact the following external agencies:

For Students:

Office of Civil Rights
U.S. Department of Education
1999 Bryan Street, Suite 1620
Dallas, TX  75201-6810
Phone: (214) 661-9600
Fax: (214) 661-9587

 

For Employees:
U.S. Equal Employment Opportunity Commission Dallas District Office
207 S. Houston Street, 3rd Floor
Dallas, TX 75202
Phone: (800) 669-4000
Fax: (214) 253-2720
Texas Workforce Commission Civil Rights Division
101 E. 15th Street Room 144-T
Austin, TX  78778-0001
Phone: (512) 463-2642
A9.1.5.4 Counseling and Supportive Services
A9.1.5.4.1 Del Mar College Counseling Office and Human Resources Office (HR)

Note: Reporting to the Counseling Services Office or Human Resources Office (HR) does not constitute filing a formal complaint for the purposes of initiating the Title IX complaint resolution process. To initiate the Title IX complaint resolution process, the complainant must submit a formal complaint to the appropriate Title IX coordinator or deputy Title IX coordinator, as outlined in the “Reporting to the Appropriate Title IX Coordinator or Deputy Title IX Coordinator” section above.

Personal and group counseling sessions are offered free of charge to all currently enrolled Del Mar College students. Counseling sessions are confidential and conducted by licensed mental health professionals. Additionally, the Counseling Services Office can provide appropriate referrals to on- and off-campus resources for Del Mar College students. For more information, contact:

Del Mar College Counseling Center
101 Baldwin Blvd.
Harvin Center, 2nd Floor
Corpus Christi, TX  78404
Phone: (361) 698-1586
Fax: (361) 698-1649

Del Mar College employees can contact the Human Resources Office (HR) for advocacy and support. HR can assist employees with appropriate accommodations and reporting to law enforcement. Additionally, HR provides appropriate resource information for off-campus resources. For more information, contact:

Office of Human Resources
101 Baldwin Blvd.
Heldenfels Admin Building,  Suite 107
Corpus Christi, TX  78404
Phone: (361) 698-1088

A9.1.5.4.2 External Confidential Support and Resources: Students may discuss an incident with Confidential Employees or an off-campus resource (e.g. rape crisis center, doctor, psychologist, clergyperson, etc.) without concern that the person’s identity will be reported to the Title IX Officers. Employees may also seek assistance from their own personal health care provider, the clergyperson of their choice, or an off-campus rape crisis resource without concern that the person’s identity will be reported to the Title IX Officers.

The community resources that provide confidential services are:

Behavioral Health Center of Nueces County
1233 Agnes Street
Corpus Christi TX
24/7 Psychiatric crisis hotline: 1-888-767-4493
Bayview Behavioral Hospital
6629 Wooldridge Road
Corpus Christi, TX
Crisis Lane: (361) 986-8200
Christus Spohn Hospital
2606 Hospital Blvd.
Corpus Christi, TX
24/7 Crisis Line: 1-888-767-4493
Coastal Plains Community Center
Locations in Rockport, Beeville, Falfurrias, Alice, Kingsville, and Portland
24/7 Crisis Line: 1-800-841-6467
Crisis Victim Services
3833 S. Staples St. #203
Corpus Christi TX  78411
(361) 852-7540
Corpus Christi Hope House
658 Robinson St.
Corpus Christi TX  78404-2521
(361) 852-2273
Sexual Assault Legal Services & Assistance
(888) 343-4414
Purple Door
813 Buford St.
Corpus Christi TX 78404
(361) 881-8888 or (800) 580-4878
National Sexual Assault
24/7 Crisis Hotline (RAINN)
1-800-656-HOPE (4673)
Stalking Resource Center/National Center for Victims of Crime
A9.1.5.5 Anonymous Reports
In accordance with the Texas Education Code § 51.9365, Del Mar College students and employees can report sexual misconduct anonymously by submitting the online form available at Student Compliant of Sexual Misconduct Incident Form. However, the submission of an anonymous electronic report may impair Del Mar College’s ability to investigate and address the sexual misconduct. Additionally, to initiate the Title IX complaint resolution process, complainants cannot remain anonymous.
A9.1.5.6 Alternative Reporting Procedures

A student or employee will not be required to report sexual misconduct to the person alleged to have committed the conduct. Reports concerning sexual misconduct, including reports against the Title IX coordinators, may be directed to the College CEO.

A report against the College CEO may be made directly to the Board of Regents (Board). If a report is made directly to the Board, the Board will appoint an appropriate person to conduct the investigation.

A9.1.5.7 Timely Reporting

Reports of sexual misconduct should be made as soon as possible after the alleged act or knowledge of the alleged act. A failure to immediately report may impair Del Mar College’s ability to investigate and address the sexual misconduct.

A9.1.5.8 Federal Statistical Reporting Obligations

Federal law requires that certain campus officials report incidents of sexual assault, domestic violence, dating violence and stalking solely for federal statistical reporting purposes. However, all personally identifiable information is kept confidential, but statistical information must be forwarded to campus law enforcement regarding the type of incident and the general location where it occurred for publication in the Campus Security Report.

A9.1.5.9 Federal Timely Warning Reporting Obligations 

Employees and students who have been subjected to acts of sexual violence should also be aware that federal law requires College administrators issue immediate timely warnings for incidents that are confirmed to pose a substantial threat of bodily harm or danger to members of the campus community. Under these circumstances, the Complainant’s name and other identifying information is not disclosed, but the campus community will still be provided with enough information so that individuals can make safety decisions considering the immediate danger posed.

A9.1.5.10 Amnesty Policy for Del Mar College Students

In accordance with the Texas Education Code §51.284, Del Mar College will give amnesty to (i.e., not take disciplinary action against) a student who reports, in good faith, that the student was the victim of or a witness to an incident of sexual misconduct as defined by this policy. This amnesty policy applies regardless of the location at which the incident occurred or the outcome of Del Mar College’s disciplinary process regarding the incident, if any. This amnesty policy does not apply to a student who reports their own commission or assistance in the commission of sexual misconduct as defined by this policy.

A9.1.5.11 Privacy and Confidentiality

To the greatest extent possible, Del Mar College will respect the privacy of the complainant, respondent, and witnesses. Limited disclosures may be necessary in order to conduct a thorough investigation and comply with applicable law. Del Mar College will complete publicly available recordkeeping, including Clery Act reporting and disclosures, without inclusion of personally identifying information about the complainant. Additionally, Del Mar College must maintain as confidential any accommodations or supportive measures provided to the complainant or respondent, to the extent that maintaining such confidentiality will not impair Del Mar College’s ability to provide the accommodations or supportive measures.

A9.1.5.12 False Reports and Claims
A Del Mar College student who intentionally submits a false report, makes a false claim, or offers false statements will be subject to appropriate disciplinary action.
A Del Mar College employee who intentionally submits a false report, makes a false claim, offers false statements, or refuses to cooperate with a Del Mar College investigation regarding sexual misconduct will be subject to appropriate disciplinary action.
Charging an individual with a violation(s) for making a materially false statement in bad faith in the course of a complaint resolution proceeding does not constitute prohibited retaliation. However, a determination regarding responsibility, alone, is not sufficient to conclude that any party made a materially false statement in bad faith.

 

A9.1.6 Informal Resolution Process: Del Mar College’s Title IX complaint process is initiated by the alleged victim (hereafter referred to as the “complainant”), appropriate Title IX coordinator, or an official with authority to institute corrective measures on behalf of Del Mar College.

A9.1.6.1 To file a complaint, the complainant can contact the appropriate Title IX coordinator or deputy Title IX coordinator listed in the Reporting to the Appropriate Title IX Coordinator or Deputy Title IX Coordinator section of this procedure, or submit the online form available at Student Complaint of Sexual Misconduct Incident Form.

If reported orally, the complaint will be reduced to writing by the appropriate Title IX coordinator or designee.

The complaint must be signed. If the complainant is not able or willing to sign the complaint, the appropriate Title IX coordinator or designee may sign the complaint in the complainant’s stead.

A9.1.6.2 Supportive Measures

Once Del Mar College has actual knowledge of an allegation of dating violence, domestic  violence, gender-based harassment, retaliation, sex discrimination, sexual assault, sexual harassment, and/or stalking (hereafter referred to as “sexual misconduct”), the appropriate Title IX coordinator or designee will promptly contact the complainant and offer supportive measures (i.e., appropriate advocacy resources on and off-campus). 

These supportive measures and resources are available to the complainant whether or not they choose to file a formal complaint.

In the event a complaint is filed, and the appropriate Title IX coordinator or designee determines an investigation should be initiated, supportive measures will also be offered to the respondent.

A9.1.6.3 Initiation of Informal Resolution Process

Title IX permits the voluntary use of an informal resolution process after a formal complaint is filed at any time prior to a final determination being reached in the case. The parties must provide their voluntary consent in writing to participate in an informal resolution process.

Informal resolution is prohibited in any case where an employee is accused of engaging in sexual misconduct against a student.

Del Mar College will not require the parties to waive their rights to a formal process and agree to informal resolution as a condition of enrollment or employment.

Prior to initiating the informal resolution process, the appropriate Title IX coordinator will provide the parties with the required written notice of the allegations and a description of the parameters of the informal resolution process. This written notice will include a statement that either party is permitted to withdraw from the informal resolution process and resume the formal resolution process at any time prior to a final determination being reached in the case. 

A9.1.6.4 Anticipated Time Frame for Informal Resolution Process

Del Mar College will endeavor to expedite all informal resolutions. Absent extenuating circumstances, such as a request by a law enforcement or regulatory agency for Del Mar College to delay its investigation, the informal resolution process should be completed within a reasonably prompt time frame. However, Del Mar College may temporarily delay or grant a limited extension of the time frame for good cause as long as both parties are notified in writing of the delay or extension and the reason(s) for the action.

The anticipated time frame from receipt of the formal complaint through the informal resolution process, culminating with both parties signing the Informal Resolution Agreement Form, is 30 days.

A9.1.6.5 Phase 1 of the Informal Resolution Process:

A9.1.6.5.1 Meeting with Informal Resolution Facilitator: The appropriate Title IX coordinator or designee will assign an informal resolution facilitator to coordinate the informal resolution process. Del Mar College may outsource the facilitator at their discretion.

A9.1.6.5.2 The informal resolution facilitator will meet separately with both parties and their respective advisors (if the parties elect to provide their own advisors during the informal resolution process) and explain the Title IX complaint and informal resolution processes. The informal resolution facilitator will inform the parties that an informal resolution is permissible if both parties choose to participate in and willingly consent to this type of resolution in writing. The informal resolution facilitator will notify both parties that either party is permitted to withdraw from the informal resolution process and resume the formal complaint process at any time prior to a final determination being reached in the case.

A9.1.6.5.3 Both parties will have to agree in writing indicating they are voluntarily and willingly consenting to pursue the informal resolution process at this time. This form serves as written notice to both parties that they are permitted to withdraw from the informal resolution process and resume the formal complaint process at any time prior to a final determination being reached in the case. Additionally, this form stipulates that the matter will be closed once a final determination is reached and informs the parties that the formal process will not be re-initiated once both parties agree to the final determination in writing.

A9.1.6.5.4 If either party chooses to withdraw from the informal resolution process, they will be required to do so in writing. This process must be completed prior to a final determination being reached and both parties signing the Informal Resolution Agreement Form.

A9.1.6.6 Phase 2 of the Informal Resolution process: Informal Resolution Agreement

A9.1.6.6.1 After meeting with both parties and their respective advisors (if the parties elect to provide their own advisors during the informal resolution process) separately to ascertain the parameters for an informal resolution agreement, the informal resolution facilitator will present the Informal Resolution Agreement Form to both parties and clearly explain the informal resolution terms.

A9.1.6.6.2 Both parties and their respective advisors (if the parties elect to provide their own advisors during the informal resolution process) will be notified simultaneously in writing of the completed Informal Resolution Agreement Form and allowed 10 days to review and respond to the document.

A9.1.6.6.3 Any edits made to the Informal Resolution Agreement Form by either party and/or the informal resolution facilitator will be simultaneously sent in writing to both parties and their respective advisors (if the parties elect to provide their own advisors during the informal resolution process).

A9.1.6.6.4 If, after 10 days, both parties agree to the informal resolution terms, including any edits made by either party and/or the informal resolution facilitator during the review period, they will sign the final Informal Resolution Agreement Form. Both parties and their respective advisors (if the parties elect to provide their own advisors during the informal resolution process) will be provided an electronic and hard copy of the signed Informal Resolution Agreement Form for their respective records by the informal resolution facilitator or appropriate Title IX coordinator or designee.

A9.1.6.6.5 Once the final Informal Resolution Agreement Form is signed, the matter will be closed, the resolution will be non-appealable, and the formal complaint process will not be re-initiated. 

A9.1.7 Formal Resolution Process

A9.1.7.1 Receipt of Complaint

Del Mar College’s Title IX complaint process is initiated by the alleged victim (hereafter referred to as the “complainant”), appropriate Title IX coordinator, or an official with authority to institute corrective measures on behalf of Del Mar College.

A9.1.7.2 To file a complaint, the complainant can contact the appropriate Title IX coordinator or deputy Title IX coordinator listed in the Reporting to the Appropriate Title IX Coordinator or Deputy Title IX Coordinator section of this handbook, or submit the online form available at Student Compliant of Sexual Misconduct Incident Form.

If reported orally, the complaint will be reduced to writing by the appropriate Title IX coordinator or designee.

The complaint must be signed. If the complainant is not able or willing to sign the complaint, the appropriate Title IX coordinator or designee may sign the complaint in the complainant’s stead.

A9.1.7.3 Supportive Measures 

Once Del Mar College has actual knowledge of an allegation of dating violence, domestic violence, gender- based harassment, retaliation, sex discrimination, sexual assault, sexual harassment, and/or stalking (hereafter referred to as “sexual misconduct”), the appropriate Title IX coordinator or designee will promptly contact the complainant and offer supportive measures (i.e., appropriate advocacy resources on and off campus).

These supportive measures and resources are available to the complainant whether or not they choose to file a formal complaint.

In the event a complaint is filed, and the appropriate Title IX coordinator or designee determines an investigation should be initiated, supportive measures will also be offered to the respondent.

A9.1.7.4 Anticipated Time Frame for Formal Resolution Process

A9.1.7.4.1 Del Mar College will endeavor to expedite all formal complaint investigations and resolutions. Absent extenuating circumstances, such as a request by a law enforcement or regulatory agency for Del Mar College to delay its investigation, the formal complaint process should be completed within a reasonably prompt time frame. However, Del Mar College may temporarily delay or grant a limited extension of the time frame for good cause as long as both parties are notified in writing of the delay or extension and the reason(s) for the action.

A9.1.7.4.2 The anticipated time frame from receipt of the formal complaint through the investigation and live hearing phases, culminating with the hearing officer’s Written Determination of Responsibility, is 60 days.

A9.1.7.4.3  The anticipated time frame for the appeal process phase, culminating with the appeal decision-maker’s Appeal Determination or the CEO or designee’s decision (in cases where expulsion of a student or termination of an employee is recommended), is 45 days.

A9.1.7.5 Phase 1 of the Formal Resolution Process: Determination to Proceed with an Investigation

A9.1.7.5.1 The appropriate Title IX coordinator or designee will determine whether the allegation(s):

 1)  occurred while participating in or attempting to participate in Del Mar College’s education program or activity;

2) impacted a person in the United States; and/or

3) if proven, would meet the definition of sexual

A9.1.7.5.2 The alleged conduct must be so severe, pervasive, or objectively offensive that it limits or denies a student’s ability to participate in or benefit from an educational program or activity.

Note: Quid pro quo harassment, Clery Act, and VAWA offenses are not evaluated for severity, pervasiveness, or offensiveness, or denial of equal educational access because such misconduct is sufficiently serious to deprive a student of equal access.

A9.1.7.5.3 If the allegations in the complaint meet the criteria defined above, the appropriate Title IX coordinator or designee will assign an appropriate individual(s) to investigate the complaint.

A9.1.7.5.4 If the allegation(s) should be addressed through another Del Mar College process, the Title IX coordinator or designee will forward the complaint to the appropriate party.

A9.1.7.5.5 Dismissal of Complaint

If the allegations in the formal complaint do not meet one (1) or more of the criteria listed above, the complaint will be dismissed. Additionally, Del Mar College may dismiss a complaint at any time if:

a) the complainant would like to withdraw the complaint;

b) the respondent is no longer enrolled at or employed by Del Mar College; or

c) specific circumstances prevent Del Mar College from gathering evidence sufficient to reach a determination. 

If a complaint is dismissed for any of the reasons above, the appropriate Title IX coordinator or designee will notify the parties in writing of the reason(s) for the dismissal.

Even if a formal complaint is dismissed for any of the reasons above, the appropriate Title IX coordinator or designee may refer the alleged incident to the student disciplinary process or employee general complaint process for appropriate investigation and resolution. For more information on the student disciplinary process, contact the Dean of Student Engagement and Retention Office at 361-698- 1277. For more information on the employee general complaint process, contact the Human Resources Office (HR) at 361-698-1088 or hr@delmar.edu.

A9.1.7.5.5.1 Appealing the Complaint Dismissal

Either the complainant or respondent may appeal any dismissal of the complaint on the following grounds by submitting a written request to the appropriate Title IX coordinator or designee:

1) procedural irregularity that affected the outcome;

2) new evidence not reasonably available that could affect the outcome; and/or

3) conflict of interest or bias by Del Mar College’s participants that affected the outcome.

The non-appealing party will be notified the other party has appealed and will be allowed to submit a written statement in response.

A9.1.7.5.5.2 Dismissal of Complaint Appeal Procedures 

1)  The appropriate Title IX coordinator or designee will assign an individual(s) from the pool of hearing officers to conduct the dismissal of complaint appeal. For more information on hearing officers, see the Hearing Officer section under 1.7.7 of the Formal Complaint Process: Live Hearing below.

2)  The hearing officer will be free from conflicts of interest or bias for or against the parties.

3)  The hearing officer will conduct a prompt, fair, impartial, unbiased, and equitable process from receipt of the dismissal of complaint appeal to the submission of the Decision Regarding Dismissal of Complaint Appeal.

4)  The appropriate Title IX coordinator or designee will forward all information regarding the formal complaint, reason(s) for dismissal, appeal of the dismissal, and the non-appealing party’s written statement to the hearing

5)  The hearing officer will review the documentation and may, at their discretion, meet separately with the complainant and/or respondent.

6)  The hearing officer will consider whether the dismissal of the complaint is appropriate and will write a rationale explaining their decision. The hearing officer will then notify the parties and appropriate Title IX coordinator or designee in writing whether the dismissal of the complaint is upheld or overturned.

If the dismissal of the complaint is overturned, the appropriate Title IX coordinator or designee will re- initiate the Title IX complaint resolution process at the appropriate level. The Title IX complaint resolution process will resume at the same point it ended when the complaint was dismissed.

If the dismissal of the complaint is upheld, the hearing officer’s determination is final and non-appealable. However, the appropriate Title IX coordinator or designee may still refer the alleged incident to the student disciplinary process or employee general complaint process for appropriate investigation and resolution. For more information on the student disciplinary process, contact the Dean of Student Engagement and Retention Office at 361-698-1277. For more information on the employee general complaint process, contact the Human Resources Office (HR) at 361-698-1088 or hr@delmar.edu.

A9.1.7.6 Phase 2 of the Formal Resolution Process: The Investigation

A9.1.7.6.1 Investigator

Del Mar College will maintain a pool of investigators consisting of members of the Dean of Student Engagement and Retention Office and any other appropriately trained investigators designated by Del Mar College. The appropriate Title IX coordinator or designee will assign an individual(s) from the pool of investigators to investigate the complaint.

1) All investigators will receive appropriate training on at least an annual basis to function in this role.

2) The investigator will be free from conflicts of interest or bias for or against the complainant or respondent (hereafter referred to as “the parties”).

3) The investigator will conduct a prompt, fair, impartial, unbiased, and equitable process from the initial investigation to the submission of the Investigation Report.

4) Throughout the investigation, the burden of gathering evidence and burden of proof will fall on Del Mar College and the investigator, not the parties.

A9.1.7.6.2 Initiating the Investigation

The investigator will send an initial written notice containing details of the complaint and allegation(s) to both parties at the onset of the investigation.

The respondent will be presumed to be not responsible for the alleged sexual misconduct until a written determination is made at the conclusion of the Title IX complaint process. This presumption will be stated in the initial written notice provided to both parties at the onset of the investigation.

A9.1.7.6.3 Advisors' Roles During the Investigation Phase

In accordance with Title IX, both parties will have equal right to be accompanied by an advisor of their choice to interviews, meetings, and hearings with the investigator. Del Mar College will not provide an advisor for either party during this phase of the Title IX complaint process. Del Mar College retains the right to limit the role of both parties’ advisors in interviews, meetings, and hearings with the investigator.

A9.1.7.6.4 Interim Action(s) and Temporary Removal(s)

If, after engaging in an individualized safety and risk analysis, the investigator determines that an immediate threat to the physical health or safety of any student or other individual arising from the allegation of sexual misconduct justifies the temporary removal of the respondent, the investigator may recommend interim action(s) to the appropriate Title IX coordinator or designee. If the appropriate Title IX coordinator or designee approves the interim action(s), the investigator will provide the respondent with written notice of the interim action(s).

The investigator will meet with the respondent to discuss and explain the interim action(s). If the interim action(s) include a temporary removal (e.g., temporary immediate suspension, temporary removal from Del Mar College, temporary employee administrative leave):

1) The investigator will explain to the respondent their right to challenge the interim action(s) immediately after the temporary removal.

If the respondent chooses to challenge the temporary removal and submits a challenge in writing, the investigator will submit it to the Title IX Coordinator or Title IX Deputy Coordinator along with a brief rationale explaining the individualized safety and risk analysis utilized to arrive at the interim action(s). The Title IX Coordinator or Title IX Deputy Coordinator will review the documentation, consider whether the removal is appropriate, and write a rationale explaining their decision.  The Title IX Coordinator or Title IX Deputy Coordinator will thn notify the parties and investigator in writing whether the removal is upheld or overturned

A9.1.7.6.5 Investigative Interviews, Meetings, or Hearings

The investigator will meet separately with the parties, their respective advisors (if the parties elect to provide their own advisors during this phase), and witnesses.

The investigator will send written notice of any investigative interviews, meetings, or hearings to both parties and afford them sufficient time to prepare for these events.

During the initial interview, meeting, or hearing, with the parties and their respective advisors (if the parties elect to provide their own advisors during this phase), the investigator will:

1) notify the parties and their respective advisors (if the parties elect to provide their own advisors during this phase) of their rights and options, including their right to file a complaint with the S. Department of Education Office for Civil Rights (OCR);

2) explain the preponderance of the evidence standard (i.e., more likely than not to have occurred);

3) provide a list of potential disciplinary sanctions and remedies. The investigator will review and explain this document and answer any questions regarding the potential disciplinary sanctions and remedies; and

4) explain the informal resolution provisions outlined in the Informal Resolution section of this handbook.

The parties will have equal opportunity to present witnesses (including both fact and expert witnesses), inculpatory evidence (i.e., evidence that can establish an individual’s involvement in an act or guilt), and exculpatory evidence (i.e., evidence that can exonerate an individual).

The investigator will not restrict the ability of either party or their respective advisors (if the parties elect to provide their own advisors during this phase) to discuss the allegations and gather or present relevant evidence.

A9.1.7.6.6 Authorization to Obtain Treatment Records

The investigator will not access, consider, disclose, or otherwise use a party’s records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional or paraprofessional's capacity, or assisting in that capacity, and which are made and maintained in connection with the provision of treatment to the party, unless the investigator first obtains the party's voluntary, written consent to do so.

A9.1.7.6.7 Investigation Report

At the conclusion of the investigation, the investigator will write an Investigation Report that fairly summarizes the investigation and includes all evidence. The investigator will send the parties and their respective advisors (if the parties elect to provide their own advisors during this phase) the Investigation Report in electronic format or hard copy, and will give them 10 days to respond to the document prior to finalizing it.

The investigator will complete the finalized Investigation Report at least 10 days prior to the live hearing. The parties and their respective advisors (if the parties elect to provide their own advisors during this phase) will be notified simultaneously in writing of the final investigation findings, and a copy of the finalized Investigation Report will be sent to them in electronic format or hard copy by the investigator or appropriate Title IX coordinator or designee.

A9.1.7.7 Phase 3 of the Formal Resolution Process: Live Hearing

The investigation will be followed by a live hearing.

The parties and their respective advisors will be notified simultaneously in writing of the date, time, and place of the live hearing.

If a party is unable to obtain an advisor for the live hearing, Del Mar College will provide one (1) free of charge for the purpose of conducting cross-examination for the party.  The appropriate Title IX coordinator or designee will assign an appropriate advisor to the party for the live hearing.

A9.1.7.7.1 Hearing Officer

1)  The hearing officer will serve as the first (1st) decision-maker in the formal Title IX complaint process.

2)  Del Mar College will maintain a pool appointed hearing officers. The hearing officers will not be the Title IX coordinators, deputy Title IX coordinators, investigators, or hearing officer who made a determination in the complaint dismissal appeal, if applicable.

3) The appropriate Title IX coordinator or designee will assign an individual(s) from the pool of hearing officers to conduct the live hearing. Del Mar College may utilize outside resources as the hearing officer.

4) All hearing officers will receive appropriate training on at least an annual basis to function in this The hearing officer will be free from conflicts of interest or bias for or against the parties.

5) The hearing officer will conduct a prompt, fair, impartial, unbiased, and equitable process from the live hearing to the submission of the Written Determination of Responsibility.

A9.1.7.7.2 Live Hearing Procedures

The Title IX Coordinator or Title IX Deputy Coordinator can determine to conduct the live hearing in person or by video conference.

1) Specific procedures for the live hearing, including time limits for statements, rebuttal, and cross-examination, will be provided to the complainant, respondent, and their respective advisors prior to the live hearing.

2) The live hearing will be conducted by the hearing officer on the specified date and time to hear from the complainant, respondent, their respective advisors, and witnesses. Live hearings will be conducted in a designated room at the Del Mar College East Campus.

3) At either party’s request, the hearing officer will provide the parties with separate rooms and the use of appropriate technology so the hearing officer, the parties, and their respective advisors can simultaneously see and hear all questions.

4) The hearing officer must make an audio recording, video recording, or transcript of the live The hearing officer will make the audio recording, video recording, or transcript available to the parties for inspection and review after the conclusion of the live hearing.

5) The hearing officer will permit each party’s advisor to ask the other party and all witnesses any relevant questions and follow-up questions, including those bearing on credibility. Cross-examination will be conducted directly, orally, and in real time by the parties’ respective advisors and never by the parties personally.

6) Advisors’ roles will not be limited when cross-examination is permitted during the live hearing. However, the hearing officer has the responsibility to determine the relevancy of questions and explain in real time any decision not to permit a Questions and evidence concerning a complainant’s sexual predisposition or prior sexual behavior are irrelevant and not permitted, unless these questions are offered to prove that someone other than the respondent committed the alleged misconduct or to prove consent.

7) If a party or witness refuses to submit to cross-examination, the hearing officer is required to ignore that individual’s statement and reach a decision based on the remaining body of relevant However, the hearing officer is not permitted to draw and adverse inference based on the mere fact that an individual refused to submit to cross-contamination.

A9.1.7.7.3 Written Determination of Responsibility

After the live hearing, the hearing officer will deliberate on the evidence provided and determine responsibility using the preponderance of the evidence standard (i.e., more likely than not to have occurred). The hearing officer will compose a Written Determination of Responsibility which will:

1) identify the allegation(s) at issue;

2) describe the procedural steps taken throughout the case;

3) detail the findings of fact supporting the hearing officer’s determination;

4) enumerate the conclusions regarding application of Del Mar College’s Title IX policy;

5) contain a detailed a statement and rationale as to the determination for each allegation;

6) clearly state any disciplinary sanctions being imposed (or recommended in the case of expulsion of a student or termination of an employee) on the respondent and any remedies that must be provided to the complainant; and

7) describe the procedures and permissible grounds for appeal. 

The hearing officer or appropriate Title IX coordinator or designee will send the Written Determination of Responsibility simultaneously to the parties and their respective advisors in electronic format or hard copy along with information about how to file an appeal.

The Written Determination of Responsibility will become final when:

1) the stated time period to file an appeal has passed for both parties and neither party appeals, or

2)  the parties are notified that the hearing officer's determination was upheld after the appeal process has been exhausted for both parties.

A9.1.7.7.4 Potential Penalties Imposed on a Respondent

The hearing officer may impose the following penalties on a student respondent or other penalties, as appropriate:

1) Reprimand;

2) Loss of privileges

a) Removal from elected or appointed office;

b) Loss of privileges which may be consistent with the offense committed and the rehabilitation of the student.

1) Restriction from specific college buildings, areas, or facilities;

2) No contact with designated person;

3) Academic registration block; or

4) Loss of college privileges, including social or co-curricular privileges.

3) Disciplinary probation with or without loss of designated privileges for a specified period of The violation of the terms of disciplinary probation or the infraction of any College rule during the disciplinary action will result in automatic suspension.

4) Suspension for a definite period of time; and

5) Recommendation for Expulsion.

The hearing officer may impose the following penalties on an employee respondent or other penalties, as appropriate:

1) Coaching and Counseling,

2) Written Disciplinary Action,

3) Unpaid Administrative Leave, and

4) Recommendation for Termination.

A9.1.7.7.5 Potential Remedies Provided to Complainants

If a respondent is found to be responsible for committing sexual misconduct, Del Mar College must effectively implement remedies for the complainant that are designed to restore or preserve the complainant’s right to equal access to education. 

Remedies the hearing officer can offer to a student complainant include, but are not limited to:

1) Campus Change if course work is available at a different Del Mar College location;

2) Class Schedule Change;

3) Drop a Course Without an Academic Penalty;

4) Increased Security and Staff Monitoring of Certain Areas of the Campus;

5) Information Regarding and Referrals to the Appropriate Agency for a No- Contact Order, Order of Protection, Restraining Order, or Similar Lawful Order through a Civil, Criminal, or Tribal Court;

6) Late Withdrawal from a Course;

7) No Contact Directive Issued by Del Mar College;

8) Referral to Appropriate Medical Facility;

9) Referral to Appropriate Off-Campus Resources;

10) Referral to Del Mar College Campus Security Department and/or Local Law Enforcement Agency;

11) Referral to Counseling Services;

12) Specific Educational Programming for an Individual or Group;

13) Student Employment Assignment Change; and

Remedies the hearing officer can offer to an employee complainant include, but are not limited to:

1) Increased Security and Staff Monitoring of Certain Areas of the Campus;

2) Information Regarding and Referrals to the Appropriate Agency for a No- Contact Order, Order of Protection, Restraining Order, or Similar Lawful Order through a Civil, Criminal, or Tribal Court;

3) No Contact Directive Issued by Del Mar College;

4) Referral to Appropriate Medical Facility;

5) Referral to Appropriate Off-Campus Resources;

6) Referral to Del Mar College Security Department and/or Local Law Enforcement Agency;

7) Specific Educational Programming for an Individual or Group; and

8) Work Schedue Reassigment.

A9.1.7.8 Phase 4 of the Formal Resolution Process: Appeal

Either the complainant or respondent may appeal the hearing officer’s determination on the following grounds by submitting a written request to the appropriate Title IX coordinator within 10 College District business days of the hearing officer’s decision:

1) procedural irregularity that affected the outcome;

2) new evidence not reasonably available that could affect the outcome; and/or

3) conflict of interest or bias by Del Mar College’s participants that affected the outcome.

The non-appealing party will be notified the other party has appealed and will be allowed to submit a written statement in response.

A9.1.7.8.1 Appeal Decision-Maker

The appeal decision-maker will be an appropriate college official. The appeal decision-maker will not be the same individual who served as the hearing officer during the live hearing. Additionally, the appeal decision-maker(s) will not be the Title IX coordinators, deputy Title IX coordinators, or investigators.

All appeal decision-makers will receive appropriate training on at least an annual basis to function in this role.

The appeal decision-maker will be free from conflicts of interest or bias for or against the parties.

The appeal decision-maker will conduct a prompt, fair, impartial, unbiased, and equitable process from the appeal to the submission of the Appeal Determination.

A9.1.7.8.2 Appeal Procedures

The appropriate Title IX coordinator or designee will forward all information regarding the investigation, Investigation Report, and hearing officer’s Written Determination of Responsibility to the appeal decision- maker.

The appeal decision-maker will review the records and evidence and may, at their discretion, meet separately with the complainant and their advisor, the respondent, and their advisor, and/or witnesses.

A9.1.7.8.3 Appeal Determination

After the appeal, the appeal decision-maker will deliberate on the evidence provided and make a determination using the preponderance of the evidence standard (i.e., more likely than not to have occurred). The appeal decision-maker will compose an Appeal Determination, which will describe the:

1) appeal and rationale for the determination, and

2) procedures and permissible grounds for appeal.

The appeal decision-maker or appropriate Title IX coordinator or designee will send the Appeal Determination simultaneously to the parties and their respective advisors in electronic format or hard copy along with information about how to file an appeal, if applicable.

The appeal decision-maker’s determination is final and non-appealable except when expulsion of a student or termination of an employee is recommended.

A9.1.7.8.4 Expulsion and Termination Appeals to the Chief Executive Officer (CEO) or Designee

In cases where expulsion of a student or termination of an employee is recommended, either the complainant or respondent may appeal the appeal decision-maker’s determination by submitting a written request to the appropriate Title IX coordinator or designee within 10 College District business days of the appeal decision-maker’s determination.

The non-appealing party will be notified the other party has appealed and will be allowed to submit a written statement in response.

The appropriate Title IX coordinator or designee will forward all information regarding the investigation, Investigation Report, hearing officer’s Written Determination of Responsibility, and appeal decision-maker’s Appeal Determination to the CEO or designee.

The CEO or designee will review the records and evidence and may, at their discretion, meet separately with the complainant and their advisor, the respondent, and their advisor, and/or witnesses.

The CEO or designee will deliberate on the evidence provided and make a determination to affirm, modify, or reverse the recommendation for expulsion or termination.

The CEO or designee or appropriate Title IX coordinator or designee will simultaneously notify the parties and their respective advisors in writing of the CEO or designee’s decision within 10 College District business days.

The CEO or designee’s decision is final and non-appealable.

A9.1.7.8.5 Appeals to the Board of Regents

In cases where the complainant or respondent is the Chief Executive Officer (CEO), either the complainant or respondent may appeal the appeal decision-maker’s determination by submitting a written request to the Chair of the Board of Regents within ten (10) College District business days of the appeal decision-maker’s determination.

A9.1.7.8.6 Disclosure of Results of Disciplinary Proceeding

Upon written request, Del Mar College will disclose to the alleged victim of a crime of violence, as defined in Title 18, § 16, United States Code, or non-forcible sex offense (i.e., incest or statutory rape) the report on the results of any disciplinary proceeding conducted by Del Mar College against a student or employee who is the alleged perpetrator of such crime or offense. If the alleged victim is deceased as a result of such crime or offense, Del Mar College will treat the victim’s next of kin as the alleged victim.

A9.1.7.8.7 Other Policies Not Applicable

Unless expressly referenced in this policy, the requirements of any other policy or provision relating to rights or procedures for filing and hearing of a grievance or an appeal, or specifying a time within which a grievance or appeal must be filed or heard, are overruled as inapplicable to sexual misconduct complaints.

A9.1.7.8.8 Extension of Time Limits

During the pendency of the investigation and appeal process, any party may request an extension of time limits stated herein to deal with emergent exigencies. A request for an extension of time limits shall submitted to and approved by the College CEO during the investigation stage, or the independent arbitrator during the appeal stage. If the CEO is the Respondent, any such request must be made to the Board of Regents. All parties must be advised of any approved request by the party granting the request.

A9.1.8 Information for Del Mar CollEge Employees

A9.1.8.1 Employees' Duty to Report

Note: Submitting a mandatory report for incidents of sexual misconduct does not constitute filing a formal complaint for the purposes of initiating the Title IX complaint resolution process. To initiate the Title IX complaint resolution process, the complainant must submit a formal complaint to the appropriate Title IX coordinator or deputy Title IX coordinator, as outlined in the “Reporting to the Appropriate Title IX Coordinator or Deputy Title IX Coordinator” section in this document.

A9.1.8.1.1 In accordance with the Texas Education Code §51.252, a Del Mar College employee who, in the course and scope of employment, witnesses or has knowledge of information regarding the occurrence of an incident that the employee reasonably believes constitutes dating violence, sexual assault, sexual harassment, or stalking and is alleged to have been committed by or against a person who was a student enrolled at or an employee of Del Mar College at the time of the incident will promptly report the incident to Del Mar College’s Title IX coordinator or deputy Title IX coordinator. The report must include all information concerning the incident known to the reporting person that is relevant to the investigation and, if applicable, redress of the incident, including whether an alleged victim has expressed a desire for confidentiality in reporting the incident.

A9.1.8.1.2 In accordance with the Texas Education Code §51.252, an employee of Del Mar College who is designated by Del Mar College as a person with whom students may speak confidentially concerning dating violence, sexual assault, sexual harassment, or stalking, or who receives information regarding such an incident under circumstances that render the employee’s communications confidential or privileged under other law will, in making a report under this section, state only the type of incident reported and may not include any information that would violate a student’s expectation of privacy. This subsection does not affect the employee’s duty to report an incident under any other law.

A9.1.8.2 Filing a Report

Del Mar College employees can report in writing or via email to following:

Title IX Coordinator
Tammy F. McDonald
Vice President for Administration and Human Resources
101 Baldwin Blvd.
Heldenfels Administration Bldg.
Corpus Christi, TX 78404
Tmcdonal1@delmar.edu
Phone: (361) 698-2177
Deputy Title IX Coordinators:

District Employee Complaint Coordinator

Jerry Henry, SPHR, SHRM-SCP
Director of Human Resources
101 Baldwin Blvd.
Heldenfels Administration Bldg.
Corpus Christi, TX 78404
Jhenry12@delmar.edu

Phone: (361) 698-1088

District Student Complaint Coordinator
Cheryl G. Sanders
Dean of Student Engagement and Retention
101 Baldwin Blvd.
Harvin Center
Corpus Christi, TX 78404
Cgarner6@delmar.edu
Phone: (361) 698-1277
A9.1.8.3 Failure to Report
An employee that fails to report an act of sexual misconduct or knowingly makes a false report under Texas Education Code § 51.252, could be subject to termination.
A9.1.8.4 Exceptions
A Del Mar College employee is not required to make a report under this section concerning:
1) an incident in which the employee was a victim of dating violence, sexual assault, sexual harassment, or stalking; or
2) an incident in which the employee received information due to a disclosure made at a dating violence, sexual assault, sexual harassment, or stalking public awareness event sponsored by the Del Mar College or by a student organization affiliated with Del Mar College.

Page last updated July 1, 2021.