August 21, 2017

Appellate Panel (Student Misconduct)

Following a finding of insufficient evidence by the Title IX Office or a sanctioning decision by the Misconduct Sanctioning Panel, either the Reporting Party or the Respondent may file a written appeal.

A.  Composition

The Appellate Panel is composed of three individuals, at least one of whom is a faculty member, appointed by the Vice President for Student Affairs. The Appellate Panel is trained on university procedures and Title IX requirements by the Title IX Coordinator, and is advised by the Title IX Appellate Coordinator.

The Title IX Appellate Coordinator is designated by the Vice President of Student Affairs.

B.  Process

The Appellate Panel is responsible for reviewing the appeal and making recommendations to the Vice President for Student Affairs. A review by the Appellate Panel is narrowly-tailored to the provisions of this policy and relevant reasons for appeal. Appeals are not a full rehearing of the facts or findings.

The procedural rights of neutrality and equal treatment apply to the appellate process.

  1. Grounds for appeal

Appeals are documentary reviews in which no oral testimony is taken and no oral argument takes place. Appeals are determined on the merits of the documents submitted and evidence reviewed. Appellate documents should be as complete as possible.

The appeal must include the Appeal Request Cover Sheet provided by the Title IX Office or the Title IX Appellate Coordinator indicating the specific grounds for appeal, and arguments and documentation specifically relevant to and in support of the stated grounds for appeal. Appellants should refer to Guidelines for Writing Appeals, a document available from the Title IX Appellate Coordinator.

Appeals may only be brought on one or more of the following grounds:

(a)         That new evidence has become available which is sufficient to alter the findings of fact and/or conclusions of policy violation made by the Title IX Office and which the appellant was not aware of or which could not have been reasonably obtained at the time of the original review.

(b)         That the findings of fact made by the Title IX Office are not supported by substantial evidence in light of the whole record or that the conclusions of policy violations are not supported by the findings of fact.

(c)         That the sanction imposed by the Misconduct Sanctioning Panel is grossly disproportionate to the violation found.

(d)         That the Title IX Office or the Misconduct Sanctioning Panel deviated from the process set forth in this policy and such deviation had a material impact on the outcome of the investigation.

  1. Timing and procedure

The Appellate Panel will meet as needed to review and consider appeals.

Appeals must be submitted within five calendar days from: (i) receipt of the SAR from the Title IX Office in a case in which insufficient evidence is found; or (ii) receipt of sanction by the Misconduct Sanctioning Panel in a case in which a Respondent is found responsible. The Vice President of Student Affairs may deem a late submission of an appeal reasonable under extraordinary or extenuating circumstances.

Written appeals are submitted electronically to the Title IX Appellate Coordinator at titleixappeals@usc.edu.

The Title IX Appellate Coordinator receives all appeals, and within one business day provides notice to the opposing party in writing. The opposing party has five calendar days to respond. Parties are not required to file an appeal, nor required to respond to an appeal filed by the opposing party. Not responding to an appeal is not considered agreement or concession to the issues raised by the opposing party.

The Title IX Appellate Coordinator provides all appellate documents to the Appellate Panel. The Appellate Panel reviews submitted appellate documents, the SAR, the sanctions, and any supporting documents relevant to the finding of insufficient evidence or responsibility.

Appeals and final decision shall be completed within thirty calendar days of the filing of an appeal, unless the Vice President for Student Affairs determines that there is good cause to extend that period.

  1. Decision by the misconduct Appellate Panel

The Appellate Panel may make recommendations to the Vice President for Student Affairs as follows:

(a) If the Appellate Panel concludes that none of the grounds for appeal have been met, the Appellate Panel may recommend that the Vice President for Student Affairs affirm the conclusions of the Title IX Office and the sanctioning decision of the Misconduct Sanctioning Panel in their entirety.
(b) If the Appellate Panel concludes that new evidence has become available which is sufficient to alter the findings of fact and/or conclusions of policy violations made by the Title IX Office and which the appellant was not aware of or which could not have been reasonably obtained at the time of the original review, the Appellate Panel may recommend that the Vice President for Student Affairs remand the case to the Title IX Office for further investigation.
(c) If the Appellate Panel concludes that the findings of fact made by the Title IX Office are not supported by substantial evidence in light of the whole record or that the conclusions of policy violations reached by the Title IX Office are not supported by the findings of fact, it may recommend that the Vice President for Student Affairs reverse specific findings of fact or conclusions of policy violations and remand the case to the Sanctioning Review Panel for reevaluation of the sanctioning decision in light of the modified findings and conclusions.

In adjudicating an appeal on the grounds that the findings of fact were not reasonably supported by substantial evidence, Appellate Panel members may not substitute their judgment for that of the Title IX Office merely because they disagree with the findings or conclusion, nor will they make new findings of fact. Moreover, the Appellate Panel may not substitute its opinion on credibility for the judgment of the investigator who saw and heard the witnesses and parties. The role of the Appellate Panel is not to decide whether it would have reached the same factual conclusions as the Title IX Office, but rather to decide whether a reasonable fact-finder could have come to the same conclusion based on the facts in the record.  If there is a conflict in the evidence and a reasonable fact- finder could have resolved the conflict either way, the Appellate Panel may not reverse the Title IX Offices findings of fact.

The Title IX Office’s conclusions of policy violation will not be changed if supported by the findings of fact.
(d) If the Appellate Panel concludes that the sanction imposed by the Misconduct Sanctioning Panel is grossly disproportionate to the policy violation(s) found by the Title IX Office, the Appellate Panel may recommend that the Vice President for Student Affairs modify (increase or decrease) the assigned sanctions.

In adjudicating an appeal on the grounds that the sanction imposed by the Misconduct Sanctioning Panel is grossly disproportionate to the policy violation(s) found by the Title IX Office, the Appellate Panel members will not substitute their judgment for that of the Misconduct Sanctioning Panel merely because they disagree with the sanctioning decision.
(e) If the Appellate Panel concludes that the Title IX Office or the Misconduct Sanctioning Panel deviated from the process set forth in this policy and that such deviation had a material impact on the outcome of the investigation, the Appellate Panel

IX Office or to the Misconduct Sanctioning Panel with instructions to correct the deviation. If the deviation cannot be reasonably corrected, the Appellate Panel may recommend that the Vice President for Student Affairs take such other corrective action as he or she may deem appropriate.

The Title IX Appellate Coordinator is present during the Panel’s deliberations but is not a member of the Appellate Panel and does not have a vote.

C.  Final decision

The Title IX Appellate Coordinator informs the Vice President for Student Affairs of the recommendation of the Misconduct Appellate Panel in writing within seven calendar days of the conclusion of review. That time may be extended for good cause by the Vice President for Student Affairs.

The recommendations of the Misconduct Appellate Panel are accepted or modified by the Vice President for Student Affairs. The decision to modify or accept the recommendations is a matter of the Vice President’s discretion and upon his or her review of the entire record of the case.

The final decision of the Vice President for Student Affairs will be as follows:

(1) Affirm. The Vice President for Student Affairs may affirm the conclusions of the Title IX Office and the sanctioning decision of the Misconduct Sanctioning Panel in their entirety.
(2) Remand. The Vice President for Student Affairs may remand the case:

(a) To the Title IX Office for further investigation in light of new evidence or with instructions to correct a deviation from the process set forth in this policy. Both parties will be notified of the remand and will be given the opportunity to respond to any new evidence that is collected. The Title IX Office will issue a revised SAR, which will be provided to both parties and to the Misconduct Sanctioning Panel. The Misconduct Sanctioning Panel will then issue a revised sanctioning decision, which will be provided to both parties and to the Vice President for Student Affairs. Thereafter, the Vice President for Student Affairs will issue a final decision.

(b) To the Misconduct Sanctioning Panel to review modified findings of fact and/or conclusions of policy violations or with instructions to correct a deviation from the process set forth in this policy. The Misconduct Sanctioning Panel will issue a revised sanctioning decision, which will be provided to both parties and the Vice President for Student Affairs. Thereafter, the Vice President for Student Affairs will issue a final decision.

(c) Modify. The Vice President for Student Affairs may increase or decrease the assigned sanctions.

The Vice President for Student Affairs makes the final decision on appeal. Once made, this decision is final and binding upon all parties. There is no further appeal.

The Vice President for Student Affairs simultaneously provides both the Reporting Party and the Respondent the final decision in writing. Final results are available only after the appellate process has been exhausted or waived.