Southern Utah University Lawsuit - Redacted

Case 4:22-cv-00062-DN Document 6 Filed 08/31/22 PageID.
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1 INTRODUCTION
2 1. This case involves a clash between the First Amendment free speech
3 rights of a university professor and the power of a state university to compel that
4 professor to engage in what the professor considers politically sensitive speech to
5 which the professor is politically and educationally opposed. Here, a college student
6 who identifies as “non-binary,” i.e., neither male nor female, demanded that a
7 professor address the student by plural pronouns such as “they” and “them.” The
8 demand was made pursuant to a University policy which, as interpreted by school
9 officials, requires professors to address students by whatever personal pronouns the
10 student insists upon, including not only plural pronouns, but also, on demand,
11 a seemingly endless array of newly-invented pronouns such as, e.g., Zie, Sie, Ey, Ve,
12 Tey and E, to name but a few.
13 2. Although the Plaintiff Professor willingly agreed to refrain from using
14 any gender-based pronouns to address that student, and affirmatively offered to
15 address that student either by the student’s name or by the traditional singular
16 pronouns of the student’s choice, his refusal to acquiesce in the student’s demands
17 resulted in an order that any future refusal to acquiesce in those demands would result
18 in severe discipline including the professor’s dismissal, among other possible
19 sanctions.
20 JURISDICTION & VENUE
21 3. This civil rights action raises federal questions under the United States
22 Constitution, particularly the First and Fourteenth Amendments, the Civil Rights Act
23 of 1871, 42 U.S.C. § 1983, 20 U.S.C. § 1681(a) and Title IX of the U.S. Education
24 Amendments of 1972 as amended and codified at 34 CFR § 106.30.
25 4. This Court has original jurisdiction over these federal claims pursuant to
26 28 U.S.C. § 1331 (federal question jurisdiction) and 28 U.S.C. 1343 (jurisdiction over
27 civil rights actions).
28
2
COMPLAINT
Case 4:22-cv-00062-DN Document 6 Filed 08/31/22 PageID.99 Page 3 of 23
1 5. This Court has authority to award the requested declaratory relief

2 pursuant to 28 U.S.C. §§ 2201-02; the requested injunctive relief pursuant to
3 28 U.S.C. § 1343 (a) (4) and Fed. R. Civ. P. 65; and costs and attorneys’ fees under
4 42 U.S.C. § 1988.
5 6. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b) because
6 Defendants reside in this district and/or all of the acts described in this Complaint
7 occurred in this district.
8 THE PARTIES
9 7. Plaintiff Richard Bugg is a resident of Utah and a tenured professor at
10 Southern Utah University (“SUU” or “the University”), a public four-year state-
11 supported university.
12 8. Defendant Brian Swanson is, and was at all times relevant to this
13 Complaint, the Chair of the Department of Theatre, Dance, & Arts Administration at
14 SUU. He is sued in his official capacity only.
15 9. Defendant Swanson possesses the authority and responsibility for
16 governing and regulating faculty in the Department of Theatre, Dance, & Arts
17 Administration at SUU.
18 10. Defendant Swanson’s duties include overseeing Professor Bugg.
19 11. Defendant Shauna Mendini is, and was at all times relevant to this
20 Complaint, the Dean of the College of Arts and Sciences at SUU. She is sued in her
21 official capacity only.
22 12. Defendant Mendini possesses the authority and responsibility for
23 governing and regulating faculty in the College of Arts and Sciences at SUU.
24 13. Defendant Mendini’s duties include overseeing the various departments
25 that comprise the College of Arts and Sciences at SUU, including the Department of
26 English and Humanities.
27 14. Defendants Mendini and Swanson each possesses the authority to
28 interpret and enforce the SUU policies challenged herein.
3
COMPLAINT
1 15. Defendant Jon Anderson was at all relevant times the Provost and Vice
2 President for Academic Affairs for SUU. He has authorized, approved, and
3 implemented the policies that are challenged herein and that are being used to restrict
4 Professor Bugg’s expression. He is sued in his official capacity only.
5 16. Defendant Anderson has approved, confirmed, and implemented the
6 sanctions challenged herein against Professor Bugg in a discriminatory and retaliatory
7 fashion.
8 17. Defendant Jake Johnson is, and was at all times relevant to this
9 Complaint, the Title IX Coordinator at SUU. He is sued in his official capacity only.
10 18. Defendant Johnson’s duties include overseeing SUU’s Title IX office
11 and compliance efforts.
12 19. Defendant Johnson possesses the authority to enforce the SUU policies
13 challenged herein and to recommend changes to them.
14 20. Defendant Kevin Price was at all other times relevant to this Complaint
15 the Assistant Vice President, Human Resources at SUU. He is sued in his official
16 capacity only.
17 21. Defendant Kevin Price, SUU’s Responsible University Administrator,
18 possesses the authority to enforce the SUU policies challenged herein and to
19 recommend changes to them.
20 22. Defendant Price’s authority and powers included deciding and setting the
21 disciplinary sanctions in this matter.
22 23. Defendant Mindy Benson was at all relevant times the President of the
23 University. She is sued in her official capacity only.
24 24. Defendant Benson directly oversees Defendants Price and Johnson.
25 25. As president, Defendant Benson has the responsibility for final
26 policymaking authority concerning faculty members at SUU.
27 26. As president, Defendant Benson possesses the authority and
28 responsibility for governing, overseeing, and disciplining faculty members at SUU.
4
COMPLAINT
1 27. As president, Defendant Benson was and is aware of the retaliatory and
2 unconstitutional actions authorized by and occurring under the challenged policies
3 and has not instructed SUU personnel, including the other Defendants, to change or
4 alter either the policies or the actions taken pursuant to those policies to comply with
5 constitutional mandates.
6 28. As president, Defendant Benson has the authority to review, approve, or
7 reject the decisions of other SUU officials, including the other Defendants, regarding
8 the policies challenged herein.
9 29. Defendants Benson, Price, Swanson, and Johnson each has the authority
10 under the policies challenged herein to investigate, recommend disciplinary actions,
11 and impose disciplinary actions on faculty at SUU.
12 30. In executing their respective responsibilities, Defendants Benson, Price,
13 Swanson, and Johnson each implements the policies challenged herein.
14 31. Defendants Benson, Price, Swanson, and Johnson, independently and in
15 consultation with each other, are responsible for enforcing the policies challenged
16 herein and applying them to Professor Bugg.
17 32. Defendants Benson, Price, Swanson, and Johnson have failed to cause or
18 recommend any changes to the policies challenged herein or to how those policies are
19 enforced to comply with constitutional mandates.
20 33. Defendants Benson, Price, Swanson, and Johnson have failed to stop
21 SUU officials, including each other and the other Defendants, from applying the
22 policies challenged herein to faculty, including Professor Bugg.
23 34. Doe Defendants are individuals, unknown to Plaintiff at this time, who
24 exercise control over the creation, interpretations and enforcement of the policies
25 challenged herein.
26 COLOR OF LAW
27 35. The actions of each of the Defendants were taken “under color of” the
28 written policies of Southern Utah University, which are a “regulation, custom, or
5
COMPLAINT
1 usage” of the State of Utah within the meaning of 42 U.S.C. § 1983, and, to the extent
2 shown to be violative of Plaintiffs federal statutory and federal constitutional rights,
3 are actionable under 42 U.S.C. § 1983.
4 36. SUU is a recipient of federal education funding and, accordingly, is
5 required to comply with Title IX of the Education Amendments of 1972 (Title IX), as
6 amended, (CFR § 106.30), enacted to enforce the provisions of 20 U.S.C. § 1681 et
7 seq.
8 37. Defendants’ actions constituted the state’s “custom” in enforcement of
9 Title IX and are therefore addressable under 42 U.S.C. § 1983.
10 38. The actions of each of the Defendants have deprived Plaintiff of rights
11 and privileges secured by the Constitution and laws of the United States, within the
12 meaning of 42 U.S.C. § 1983.
13 BACKGROUND
14 39. SUU is a four-year public state-supported university accredited under the
15 laws of the State of Utah.
16 40. Professor Richard Bugg teaches acting at SUU and is dedicated to
17 helping students in ways that prepare them for the demanding and difficult rigors of
18 professional life as a performer. He is a tenured professor with over 30 years’
19 experience.
20 41. On September 9, 2021, the Professor’s Acting IV class met for its first
21 session of that Fall’s semester. A student1 (“Complainant”) was enrolled in Professor
22 Bugg’s class and, during that first class of the semester, demanded that Professor Bugg
23 address Complainant2 using the plural pronouns “they/them” because Complainant
24 identified as “non-binary,” i.e., not identifying as being either male or female.
25
26 1
The student’s name has been withheld for privacy reasons.
27 2
Complainant is a biological female who identifies as “non-binary,’ i.e., neither as male nor female.
28 For clarity, and to avoid unnecessary offense, all references to Complainant herein shall be to
Complainant, rather than, e.g., he, she, him, her, his or hers.
6
COMPLAINT
1 42. The term non-binary is a social construct that describes one’s preferred
2 gender description as opposed to a description of the person’s actual biological sex.
3 Although transgender persons may be biologically non-binary, the gender preference
4 of “non-binary” is also used by some who are unquestionably biological males or
5 females who are bisexual, as well as by some who are unquestionably biological males
6 or females who are homosexual.
7 43. In short, the term “non-binary” can be used both by those who are born
8 “non-binary,” but also by those who choose to so identify themselves.
9 44. Unlike biological sex, the decision whether one identifies their gender as
10 non-binary can change, and can even change frequently, over the course of one’s life.
11 45. Perhaps surprisingly, an announced desire to be referred to by non-binary
12 pronouns can even be made by a student who is strictly heterosexual but chooses to
13 be identified by non-binary pronouns as either an act of rebellion or as a show of
14 support for others.
15 46. SUU policy not only allows individuals to self-identify their gender and
16 articulate their desired pronouns but compels everyone else to not only respect, but
17 adopt, their choices.
18 47. The Professor’s position on this issue appears in the record as follows:
19
I ... am opposed to the coercion of speech that is taking place on
20 our campus and on most campuses. Asking people to use plural
21 pronouns to refer to individuals is one thing. Forcing them to do
it is another and contrary to our rights of free speech.3
22
23 48. Accordingly, the Professor declined Complainant’s demand to be
24 addressed with plural pronouns but, instead offered to use Complainant’s name or
25 whatever singular pronouns or proper name Complainant preferred in order to
26
27
28 3
This is found at Exhibit D-30 of the Written Determination discussed infra.
7
COMPLAINT
1 accommodate Complainant and make Complainant feel as comfortable as possible

2 without violating the Professor’s own deeply-held beliefs and convictions.
3 49. Although the Professor attempted to not utilize female pronouns when
4 describing Complainant (a virtually impossible task), it is admitted that he
5 unintentionally did so two or three times.
6 50. Finding the Professor’s offer unacceptable, Complainant submitted a
7 formal complaint to the University’s Title IX Office on September 15, 2021. Another
8 student in the class also submitted a complaint claiming to have been offended by the
9 Professor’s refusal to honor Complainant’s demand.
10 51. Before filing this formal complaint, Complainant expressed to
11 classmates that Complainant’s goal was to get the Professor fired because he would
12 not agree to Complainant’s demands. To further that goal, the record reflects that
13 Complainant exerted strong pressure on Complainant’s classmates to boycott the
14 Professor’s class and demanded that the University establish an alternate so-called
15 “shadow class” for those who would go along with Complainant’s plan for a boycott
16 of the Professor’s class.
17 52. The Professor’s concerns with students’ demands to be addressed by
18 their preferred personal pronouns are not limited only to Complainant’s request to be
19 addressed by plural pronouns. The University’s Undergraduate Handbook, which
20 authorized and encouraged Complainant’s request, says:
21
22 Gender Identify Announcement. Students have the right to
23 express their gender identity freely. The faculty are committed to
creating a safe positive learning environment for each and every
24 student. If a student would prefer that we use a specific gender
25 pronoun, please let faculty know during class introductions,
office hours, or by email.
26
27 53. While the Handbook does not facially compel professors to acquiesce in
28 such requests, it appears to have been so construed by SUU, as Defendant Swanson
8
COMPLAINT
1 sent a copy of it to be considered by those who were assigned to conduct the initial
2 investigation of the complaints against Professor Bugg.
3 54. To the extent the Handbook requires professors to acquiesce in students’
4 requests to be addressed by any “specific gender pronoun” they prefer, it goes even
5 beyond a requirement that a professor can be compelled to use plural pronouns to
6 describe individuals.
7 55. There are at least several dozen recently-coined specific gender pronouns
8 by which non-binary students may potentially choose to have themselves addressed.
9 As but a small example, these pronouns include not only “They” and “Them”, but
10 also, e.g., Zie, Ze, Sie, Ey, Ve, Tey, E, Zieself, Hirself, Eirself, Verself, Terself,
11 Emself, Hir, Xe, Xem, Hy, Hym, Co and Coz. Plaintiff is informed and believes that
12 there are dozens of others.
13 56. Given that a professor isn’t limited to teaching only one student at a time,
14 and the University’s policy is to accommodate the wishes of all students, it is
15 unreasonable to require a professor to learn entirely new languages of pronouns and
16 then remember which students demand recognition by which pronouns.
17 57. The Professor’s opposition to being compelled to personally use
18 whatever such pronouns a student demands violates the Professor’s strongly held
19 political belief that the compelled fluid use of such pronouns is wrong for several
20 reasons and should not be forced on the unwilling. While willing to refrain from
21 intentionally using pronouns which would make a student uncomfortable, he does not
22 believe he should be forced to use what he believes are improper pronouns.
23 58. Gender identity has become a highly charged political issue. A brief,
24 non-exhaustive, sampling from across the United States illustrates the broad,
25 pervasively political nature of gender identifying language, including pronoun use:
26  Nevada’s Governor signed into law 2019’s Bill, NV S.B. 364,
27 which in Section 3, requires certain medical facilities to
ensure that all records maintained by the facility concerning
28 a person refer to the person using the gender identity, name
9
COMPLAINT
1 and pronouns preferred by the person. Note, that while this

requires use of preferred pronouns in records it does not
2 address how such individuals are to be addressed.
3  Iowa’s Senate introduced, but failed to enact 2019’s Bill,
4 IA S.B. 2257. Directing the Dept. of Human Services to,
among other things, identify research-based instruction that
5
supports lesbian, gay, bisexual, transgender, and questioning
6 youth, including linguistic tools such as the correct use of
pronouns and names, for incorporation into necessary training
7
for department staff and for agencies or individuals licensed.
8
 Delaware’s 2017 Bill, DE H.J.R. 6, which provides “…State
9
employees not be discriminated against based on their gender
10 identity or expression, including the right to be called by their
11 preferred names and pronouns…”
12  Illinois’ Senate adopted a 2019 resolution, IL S.R. 403,

13 stating in part “[o]n May 11, 2017 the Department of Children
and Family Services updated Appendix K to Procedures 302”
14 which among other things “requires caregivers to affirm and
15 support an LGBTQ child/youth’s sexual orientation and
gender identity, including by: (a) using the child/youth’s
16 preferred name and gender pronouns (including gender-
17 neutral pronouns, such as “they/them”), including in written
documents and records when the youth agrees.”
18
19  Nebraska’s legislature in 2021’s Bill, NE L.B. 1136, failed to
adopt the Senior Care LGBTQ Discrimination Prevention
20 Act. The Act would have, among other things, identified as
21 discriminatory “Willfully and repeatedly failing to use a
resident’s preferred name or pronouns after being clearly
22 informed of the preferred name or pronouns.”
23
 Oklahoma’s House, with Senate concurring, introduced a Bill
24 (adopted on May 27, 2016), OK H.C.R. 1021, “THAT the
25 Oklahoma Legislature supports the Attorney General of the
State of Oklahoma in taking whatever action is necessary to
26 protect Oklahoma students, parents and school districts from
27 effects of the Dear Colleague Letter on Transgender Students
dated May 13, 2016, issued by the Civil Rights Division of
28 the United States Department of Justice and the Office for
10
COMPLAINT
1 Civil Rights of the United States Department of Education,

and from the overreach of the federal government on the issue
2 of the application of Title IX to transgender students and
3 gender identity.”
4  The United States House, Senate, and administrative agencies

5 have held hearings and made attempts to change U.S. statutes
and codes, more than 30 times in the past decade alone to
6 reflect politically preferred outcomes regarding expression of,
7 and protection of gender identity. The states of California,
New York, New Jersey, and the District of Columbia have
8 done the same more than 180 times.
9
10 59. To accommodate Complainant’s demand for plural pronouns would
11 require Professor Bugg to communicate views regarding human nature, social

12 dynamics, gender identity, and its impact upon the English language that not only
13 violate his political beliefs, but would also, in his opinion, be contrary to the dual good
14 educational objectives of (1) promoting clarity of expression and (2) providing
15 students with the best chance for success once out in the real world. For these various
16 reasons he does not wish to communicate by use of such plural pronouns when
17 referring to single individuals in his class.
18 60. Additionally, the compelled use of whatever pronouns are demanded by
19 any student imposes upon him an impossible and unreasonable burden of compliance.
20 61. Commencing on September 20, 2021, the University initiated a formal
21 investigation, conducted by Johnny MacLean, Caitlin Gerrity, Brian Fullerton, and

22 Jeremiah Smith, (“the investigators”).
23 62. An investigative report was issued on January 6, 2022, finding that the
24 refusal to “address [Complainant] by their personal pronouns” was in violation of

25 University Policies 5.27 and 5.60 and was “‘discrimination’ and ‘harassment’ based
26 on gender identity.” (Investigative Report page 36.)
27 63. Professor Bugg requested a hearing asserting both that his conduct did
28 not in fact violate these policies and also that if the policies were interpreted such that
11
COMPLAINT
1 he would be in violation, the policies were unconstitutional, in violation of his

2 constitutional rights.
3 64. The hearing was conducted via Zoom on March 23, 2022. On April 29,
4 2022, the Hearing Officer issued a “Written Determination” (hereafter
5 “Determination”) which was submitted to the University. The Determination found
6 that “it is more likely than not that Richard [Professor Bugg]” violated “Policies 5.60
7 and SUU Policy 5.27 in that he . . . engaged in conduct that constitutes
8 ‘discrimination’ and ‘harassment’ based on gender identity.”
9 65. The Determination found that SUU Policy 5.60’s prohibition of “sexual
10 harassment” has the following three elements: conduct based on sex which is “[1] so
11 severe, [2] pervasive, and [3] objectively offensive,” that it “effectively denies”
12 a student “equal access to [sic] University Education Program or Activity.”
13 66. SUU’s sexual harassment policies were written to mirror Title IX’s
14 prohibition of “sexual harassment,” which, pursuant to the holding of Davis v. Monroe
15 County, 526 US. 629 (1999), and the Title IX Final Rule of May 19, 2020, has
16 essentially the same three elements.
17 67. The Determination concluded that the Professor’s conduct met all three
18 elements and thus constituted “sexual harassment.” Specifically, it found that the
19 Professor’s conduct was “conduct based on sex” which was “so [1] severe,
20 [2] pervasive, and [3] “objectively offensive,” that it “effectively denie[d]”
21 Complainant “equal access to [sic] University Education Program or Activity.”
22 68. Although the Determination never specifically said that the Professor’s
23 conduct violated Title IX, it implicitly so ruled since SUU’s policies contain the same
24 three elements required to prove a sexual harassment violation of Title IX and SUU’s
25 policies were written for the purpose of enforcing Title IX requirements.
26 69. On May 3, 2022, Defendant Price, the University’s Assistant Vice
27 President, Human Resources, acting in his capacity as “Responsible University
28 Administrator under SUU Policy 5.60,” issued a letter (attached hereto as Exhibit A)
12
COMPLAINT
1 to Defendant Johnson, SUU’s Title IX Coordinator, articulating disciplinary sanctions

2 based on that Written Determination. The specific sanctions were:
3
a. Professor Richard Bugg submit to education about current
4 views and opinions of English language and grammar
5 experts and resources that using Gender-Neutral pronouns
when referring to an individual is now considered
6 grammatically correct.
7
b. This action and decision stand as written warning regarding
8 the use of preferred pronouns. If Professor Bugg continues
9 to refuse to make a good faith effort to use preferred
pronouns it will be considered an additional violation of
10 policy 5.60 and 5.27 and may result in further sanction up to
11 and including termination.
12 c. If Professor Bugg refuses to make a good faith effort to use

13 pronouns requested by SUU students, and as a result,
students refuse to register for sections of classes he teaches,
14 SUU will open additional section of those classes and
15 Professor Bugg’s pay will be reduced to offset the amounts
SUU must pay for the additional sections.”
16
17 (Emphases added)
18
19 70. Consistent with the Undergraduate Handbook, these sanctions require
20 Plaintiff to use whatever pronouns are requested by a student (i.e., the sanctions are
21 not even limited to requiring use of the two pronouns of “they/them” demanded here
22 by Complainant) and provide no defined list limiting the pronouns that could be
23 demanded under the authority of these sanctions.
24 71. On May 26, 2022, Professor Bugg appealed from the sanctions.
25 The appeal was denied on June 14, 2022, by SUU Provost Defendant Anderson
26 (see Exhibit B), who then added the following additional sanction:
27
Professor Richard Bugg must review, and edit as necessary, his
28 syllabus language to ensure it aligns with department guidance
13
COMPLAINT
1 related to gender pronouns, and submit the syllabus for approval

by the Department Chair two weeks before the start of the Fall
2 2022 semester.
3
4 FIRST CAUSE OF ACTION
5 For Declaration That the State’s Policies, as Construed by
Defendants, Violate the Freedom of Academic Speech and Freedom
6 Against Compelled Expression Guaranteed by the First and
7 Fourteenth Amendments, and For Related Injunctive Relief
(42 U.S.C. § 1983)
8
9 72. Plaintiff hereby repeats and realleges each of the factual allegations set
10 forth in this Complaint.
11 73. When Professor Bugg articulated his position regarding the use of plural
12 pronouns for addressing single individuals, he did not prohibit others from using such
13 pronouns, but merely stated his position that he, himself, would not agree to use such
14 pronouns. When he refused to use the demanded pronouns, he was expressing a
15 legitimate political position on a matter of public concern and engaging in his First
16 Amendment right against compelled expression.
17 74. Professor Bugg’s interest, as a professor at a public university, in
18 refusing to bend to newly articulated “orthodoxy” on a matter of public concern
19 outweighs Defendants’ interest in the efficient provision of services, and this is only
20 exacerbated by the fact that there is nothing efficient about a system which requires a
21 professor to use whatever pronouns a student may demand, without providing a
22 defined list of the permissible choices.
23 75. Professor Bugg’s speech on matters of public concern never prevented
24 Defendants from efficiently providing services to the public (or even threatened to
25 do so.) The school would have run efficiently if its policies articulated a politically
26 neutral one that gave professors the option of addressing non-binary students either
27 by their names or by their requested pronouns. The lack of efficiency which
28 Defendants complain of was the result of SUU’s failure to clearly articulate such a
14
COMPLAINT
1 policy. Had it done so, no unrealistic expectations would have been created and there
2 would likely not have been a boycott or any loss of efficiency.
3 76. Defendants’ interpretation and enforcement of its nondiscrimination
4 policies and their threatened future enforcement of those interpretations of policies
5 compelled speech which Plaintiff found politically unpalatable and would deter a
6 person of ordinary firmness from exercising his right to free speech in the future.
7 77. Defendants’ interpretation of the nondiscrimination policies and their
8 enforcement of those interpretations violate Professor Bugg’s right to free speech as
9 guaranteed by the First Amendment and Fourteenth Amendments to the United States
10 Constitution.
11
12 SECOND CAUSE OF ACTION
For Declaratory and Injunctive Relief for Violation of Plaintiff’s
13 First and Fourteenth Amendment Due Process Rights Due to
14 Vagueness and Overbreadth of Standards Defendants Required
Plaintiff to Meet
15 (42 U.S.C. § 1983)
16
17
78. Plaintiff hereby repeats and realleges each of the factual allegations set
18
forth in this Complaint.
19
79. At no point prior to the initiation of the disciplinary proceedings did any
20
University official or any University written proclamation or policy specifically
21
inform Plaintiff that he was required to use a student’s preferred pronouns.
22
80. Neither, prior to the initiation of the disciplinary proceedings against
23
him, did any University official or any University written proclamation or policy
24
inform Plaintiff that he was not entitled to elect to address self-declared non-binary
25
students by using the student’s name. (To the contrary, he was expressly told it would
26
be permissible to use a student’s name rather than a student’s choice of personal
27
pronouns.)
28
15
COMPLAINT
1 81. Exacerbating that lack of clarity, Defendant Swanson instructed the

2 investigators to consider the provisions of the Undergraduate Handbook in analyzing
3 whether Plaintiff had violated the school’s policies or Title IX.
4 82. As noted supra, the Handbook encourages non-binary students to request
5 that professors address them by the pronouns of the student’s choice, rather than a
6 specified list of pronouns that are compulsory if they are requested but not used.
7 83. More significantly, the order of sanctions specifically required Plaintiff
8 to use whatever pronouns are preferred by any student, without any limitation on what
9 those pronouns could be.
10 84. For each of the following distinct reasons, the sanctions and school
11 policies deny Plaintiff due process due to their vagueness and overbreadth.
12 85. First, the failure of any of SUU’s written policies to clarify that use of
13 preferred pronouns is compulsory rather than suggested, renders the sanctions against
14 Plaintiff in violation of Plaintiff’s due process right to not be subject to vague
15 requirements which impinge on his liberty.
16 86. Second, even if the Handbook and the school’s written policies enforcing
17 it had been modified to expressly state that professors must use a student’s preferred
18 pronouns, they would nonetheless still be unconstitutionally vague, and would also be
19 overbroad, because the Handbook does not provide a fixed list of optional personal
20 pronouns which, on the demand of a student, a professor must be compelled to use.
21 87. Likewise, the order of sanctions is vague and overbroad because it does
22 not provide a fixed list of optional personal pronouns which, on the demand of a
23 student, Plaintiff is compelled to use.
24 88. For each of the reasons above, the school’s policies, as construed and
25 applied by defendants, and the order of sanctions, are impermissibly vague and
26 overbroad, in violation of the Free Speech and Due Process guarantees of the First
27 and Fourteenth Amendments and cannot support any of the sanctions imposed against
28 him.
16
COMPLAINT
1
2 THIRD CAUSE OF ACTION
For Declaratory and Injunctive Relief on Grounds That Defendants
3 Imposed Content-Based Restrictions on Plaintiff’s Expression
4 Which Violated His Rights to Equal Protection in The Exercise of
Fundamental Rights
5 (42 U.S.C. § 1983)
6
7
8
90. SUU opened an additional section of the class which Plaintiff taught
9
(referred to herein as the “shadow class”) which was taught by Professor Peter Sham,
10
to accommodate students who did not want to stay in the section of the class that was
11
taught by Plaintiff.
12
91. Professor Sham “was appalled by, disappointed by, and diametrically
13
opposed to, Richard’s refusal to use Gender-Neutral Pronouns” (Determination
14
Finding of Fact 21). “[T]he first week or so” of his class were “essentially therapy
15
sessions where the students discussed what had happened and worked through it,” and
16
he did not “engage in meaningful acting exercises in the class” during that time.
17
(Exhibit D-24 to Determination.)
18
92. The Determination (at p. 17) faulted Plaintiff on the ground that “the
19
issue of whether gender-neutral pronouns should be used when referring to an
20
individual is not relevant to the subject matter of the class.” The basis for this assertion
21
of fault was provided as follows:
22
23 [U]nder the category “academic freedom, “faculty members
24 shall not use academic freedom as a pretext to teach controversial
matter that is not related to the subject matter of the course they
25 are teaching.”
26
27
28
17
COMPLAINT
1 93. However, that is precisely what Professor Sham, who was “diametrically
2 opposed” to Plaintiff’s political belief, admits he did for “the first week or so,” yet
3 Professor Sham was not faulted.
4 94. Both Professors Sham and Bugg were engaged in protected First
5 Amendment expression in discussing their views on the exact same topic, i.e., the
6 compulsory use of plural pronouns to describe individuals, but Defendants applied
7 their policies unequally in sanctioning only the views of one Professor; the one with
8 whom they disagreed.
9 95. The Defendants violated Plaintiff’s First and Fourteenth Amendment
10 rights to Free Speech and Equal Protection by permitting the expression of political
11 views by one professor while sanctioning the expression of the diametrically opposite
12 views by Plaintiff, and particularly since Plaintiff endeavored to limit the discussion
13 of those views as much as possible, in contrast to the actions of Professor Sham who
14 allowed such discussion to occupy no less than “a week or so,” to the exclusion of
15 teaching the subject matter of the class.
16
17 FOURTH CAUSE OF ACTION
For Declaratory and Injunctive Relief on Grounds That Plaintiff’s
18 Conduct Did Not In Fact Violate The School’s Published Policies
19 (42 U.S.C. § 1983)
20
23 97. The Determination uses Policies 5.27 and 5.60 to find Professor Bugg in
24 violation (Determination, pp.10-14.) A true copy of these policies is attached hereto
25 as Exhibits C and D, respectively.
26 98. Neither Policy 5.27 nor Policy 5.60, on its face, specifically requires that
27 Professors must use plural pronouns (or any other pronouns) at the request of students.
28
18
COMPLAINT
1 99. The Professor’s conduct did not in fact constitute either “discrimination”
2 or “harassment” based on gender identity pursuant to either of these two written
3 policies and Defendants erred in construing them otherwise.
4
FIFTH CAUSE OF ACTION
5 For Declaratory Relief That Plaintiff’s Conduct Did Not Violate Title IX
6 (42 U.S.C. § 1983)
7
10 101. SUU adopted Policies 5.27 and 5.60 in order to comply with the
11 requirements of Title IX.
12 102. Plaintiff was sanctioned by the University’s Title IX Coordinator
13 pursuant to a formal complaint filed with its Title IX Office.
14 103. Although the Determination did not make a specific finding on whether
15 Plaintiff’s conduct violated Title IX, its findings were based on the same findings
16 necessary to find a Title IX violation.
17 104. Title IX was enacted by the U.S. Department of Education to enforce the
18 provisions of 20 U.S.C. § 1681(a) which, in pertinent part here, says:
19
20 (a) . . . . No person in the United States shall, on the basis of sex,
be excluded from participation in, be denied the benefits of, or
21 be subjected to discrimination under any education program or
22 activity receiving Federal financial assistance.
23
105. Under the Title IX Final Rule of May 19, 2020 (see
24
https://www.federalregister.gov/documents/2020/05/19/2020-10512/
25
nondiscrimination-on-the-basis-of-sex-in-education-programs-or-activities-
26
receiving-federal) codified at 34 CFR § 106.30 (a) (2), “sexual harassment” is defined
27
to include “(2) Unwelcome conduct determined by a reasonable person to be so
28
19
COMPLAINT
1 severe, pervasive, and objectively offensive that it effectively denies a person equal
2 access to the recipient’s education program or activity.”
3 106. There is no other provision of Title IX which might reasonably be
4 applied to the Professor’s conduct as described herein and the Professor does not
5 reasonably fear complaints against him based on any other provisions of Title IX.
6 107. Plaintiff’s conduct in offering to address non-binary students by their
7 name or any traditional singular pronoun of their choice was admittedly “unwelcome”
8 to the Complainant, but was not conduct that would be “determined by a reasonable
9 person to be so severe, pervasive, and objectively offensive that it effectively denies
10 a person equal [educational] access.”
11 108. Plaintiff reasonably fears that, absent a declaration from this Court that
12 his conduct did not violate Title IX, he will be forced to defend himself from a
13 succession of future Title IX complaints filed by students with SUU’s Title IX Office
14 even if he wins his current challenges to the school’s enforcement of its own policies.
15 109. For each of the reasons above, Plaintiff respectfully seeks a Declaration
16 from this Court that it does not violate Title IX if:
17 a. a professor declines compliance with a requirement that the
18 professor must use any of an unlimited number of potential
19 pronouns that may be demanded by a self-declared non-
20 binary student; nor if
21 b. a professor declines a request to address a student by plural
22 pronouns so long as the professor refrains from using any
23 gender-based pronouns in addressing a student which that
24 student has informed him the student finds offensive and
25 further offers to address the student by the student’s name in
26 lieu of any of the student’s preferred pronouns.
27
28
20
COMPLAINT
1
SIXTH CAUSE OF ACTION
2 For Declaratory and Injunctive Relief on Grounds That Sanctions
3 Violated First and Fourteenth Amendments Because They Were Not
Limited to the Professor’s In-Class Conduct
4 (42 U.S.C. § 1983)
5
6
7
111. SUU is a small college located in Cedar City Utah, population 36,000.
8
The college has an enrollment of 11,000 (about one-third of the city.)
9
112. Professor Bugg is the founder of what used to be the Neil Simon Festival,
10
a summer stock theatre in the Cedar City area. The name was changed in 2018 to
11
SimonFest Theatre Company. It is not sponsored by the university and its productions
12
are performed at the Heritage Center Theatre in Cedar City.
13
113. Professor Bugg directs many of the productions occurring at the
14
SimonFest Theatre Company.
15
114. Many of the performers at the SimonFest Theatre Company come from
16
the student body of the University.
17
115. The Complainant herein actually auditioned for a role at the SimonFest
18
Theater Company at one time.
19
116. It is not uncommon for students who are or have been in Plaintiff’s
20
classes to encounter him either: (1) on campus but out of class; (2) in town; and/or
21
(3) at the Heritage Center Theater.
22
117. Defendants’ order of sanctions does not limit its restrictions on Plaintiff’s
23
conduct to only those uses or non-uses of pronouns occurring when he is employed
24
by SUU conducting classes. Rather, the circumstances where those restrictions apply
25
are unlimited, including all settings on and off campus.
26
27
28
21
COMPLAINT
1 118. For this reason, the sanctions against Plaintiff are at least
2 unconstitutionally overbroad, in violation of his Free Speech rights protected by the
3 First and Fourteenth Amendments to the United States Constitution.
4
5 PRAYER FOR RELIEF
6 WHEREFORE, Plaintiff prays for the following relief:
7 1. A declaratory judgment stating that the University’s interpretation of its
8 Policies 5.27 and 5.60, as applied here to Plaintiff, constitute impermissible compelled
9 expression in violation of the Free Speech and Due Process guarantees of the First
10 and Fourteenth Amendments to the United States Constitution.
11 2. A declaratory judgment stating that the University’s interpretation of its
12 Policies 5.27 and 5.60, as applied here to Plaintiff, as well as its order of sanctions,
13 are vague and overbroad, and violate the Free Speech and Due Process guarantees of
14 the First and Fourteenth Amendments to the United States Constitution.
15 3. A declaratory judgment stating that the University’s application of its
16 Policies 5.27 and 5.60 violated Plaintiff’s rights to free speech and equal protection in
17 violation of the Free Speech, Due Process and Equal Protection guarantees of the First
18 and Fourteenth Amendments to the United States Constitution.
19 4. A declaratory judgment that Plaintiff’s conduct did not in fact violate
20 SUU’s written policies.
21 5. A declaratory judgment that it is not a violation of Title IX if a professor
22 declines compliance with a requirement that the professor must use any of an
23 unlimited number of potential pronouns that may be demanded by a student.
24 6. A declaratory judgment that it is not a violation of Title IX if a professor
25 declines compliance with a request to address a student by plural pronouns, provided
26 the professor makes a good faith effort to refrain from using any gender-based
27 pronouns in addressing a student which that student has informed him the student
28
22
COMPLAINT
1 finds offensive and further offers to address the student by the student’s name in lieu
2 of any of the student’s preferred pronouns.
3 7. A declaratory judgment that, to the extent the order of sanctions
4 mandated that Plaintiff engage in certain types of compelled expression even when
5 not acting as an employee of SUU, it was at least overbroad, in violation of his First
6 and Fourteenth Amendment rights to Free Speech.
7 8. Interim and permanent injunctive relief preventing enforcement of any
8 of the sanctions imposed on Plaintiff by the Defendant as described herein.
9 9. Interim and permanent injunctive relief prohibiting Defendants from
10 investigating or sanctioning Plaintiff on the basis of any future student complaints
11 which are inconsistent with any other portions of the Court’s declaratory judgment.
12 10. Reasonable attorneys’ fees as authorized by 42 U.S.C. § 1988.
13 11. Such other and further relief as the Court may deem proper.
14
15 Dated: August 29, 2022 Respectfully submitted,
16 Jerome H. Mooney
17 WESTON, GARROU & MOONEY
18 G. Randall Garrou
19 Of Counsel to
WESTON, GARROU & MOONEY
20
21
By: __/ s / Jerome H. Mooney_______
22 Jerome H. Mooney
23 Attorneys for Plaintiff
24
25
26
27
28
23
COMPLAINT
Case 4:22-cv-00062-DN Document 6-1 Filed 08/31/22 PageID.120 Page 1 of 57
1
INDEX TO EXHIBITS
3
Exhibit A: Sanctions Issued on May 3, 2022
4 Exhibit B: Additional Sanction Imposed on June 14, 2022

5
Exhibit C: SUU Policy 5.27
6
7 Exhibit D: SUU Policy 5.60
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
COMPLAINT
10
11
12
13
EXHIBIT A
14
15 Sanctions Issued on May 3, 2022

16
17
18
19
20
21
22
23
24
25
26
27
28
COMPLAINT
May 3, 2022
Jake Johnson
[email protected]
Jake:
On Friday, April 29, 2022, I received the findings of an SUU internal review and hearing process
under SUU Policy 5.60 (informed by related definitions found in SUU Policy 5.27), effective
date August 7, 2020 (copy enclosed; the Policy was later updated in 2021). The Hearing Officer,
Steve Gordon, found that Professor Richard Bugg violated SUU’s Policy 5.60, based on a
preponderance of the evidence, in that he had engaged in harassment and discrimination on the
basis of gender identity against a student. Mr. Gordon’s Written Determination is enclosed with
this letter, and this letter serves as part of that Written Determination as to the sanctions and
remedies.
My role is as the Responsible University Administrator per page 28 of the Policy. Based on the
facts and findings in that report, I decided on the disciplinary sanctions for the Respondent,
Richard Bugg. In deciding the sanction(s), I have taken into consideration the factors listed
within the Policy (See Page 29). I also have consulted with the designee within the Provost’s
Office, Bill Heyborne, Associate Provost. The goal of these sanctions is to end the prohibited
conduct and prevent further violation of the Policy.
I am implementing the following sanctions:
1. Professor Richard Bugg submit to education about current views and opinions of English
language and grammar experts and resources that using Gender-Neutral pronouns when
referring to an individual is now considered grammatically correct.
2. This action and decision stand as a written warning regarding the use of preferred
pronouns. If Professor Bugg continues to refuse to make a good faith effort to use
preferred pronouns it will be considered an additional violation of policy 5.60 and 5.27
and may result in further sanctions up to and including termination.
3. If Professor Bugg refuses to make a good faith effort to use pronouns requested by SUU
students, and as a result, students refuse to register for sections of classes he teaches,
SUU will open additional sections of those classes and Professor Bugg’s pay will be
reduced to offset the amounts SUU must pay for the additional sections.
The following considerations were primary in my decision on these sanctions. The severity,
persistence, and the pervasiveness of the misconduct. The impact of the misconduct on the
complainant. The impact of the misconduct on the University community. The maintenance of a
safe, nondiscriminatory, and respectful working and learning environment. I also note that if
23
Professor Bugg has concerns about the reasonableness of a future request by a student as related
to use of preferred names or pronouns, he should direct those questions to me.
I also considered remedies for the Complainants in this case. It is my understanding that changes
to coursework and other requests have already been considered and adjustments made through
the Title IX Office and within the department. For that reason, no additional remedies are
included in my decision.
Appeal bases, reasons, and timelines are set out beginning on page 31 of the Policy. The appeal
officer in this case is SUU Provost Jon Anderson or his designee. Any party wanting to appeal
must submit their intent to appeal within 10 calendar days after receipt of this letter and the
enclosed Written Determination by the Hearing Officer to the Title IX Coordinator at
[email protected].
Sincerely,
Kevin Price
Assistant Vice President, Human Resources
as Responsible University Administrator under SUU Policy 5.60
24
10
11
12
13
EXHIBIT B
14
15 Additional Sanction Imposed on June 14, 2022

16
17
18
19
20
21
22
23
24
25
26
27
28
COMPLAINT
351 W University Blvd.

Cedar City, UT, 84720
(435) 586-7700
www.suu.edu
June 14, 2022
Dear and Richard Bugg,
I am writing in response to two appeals I received relating to case No. 20210032. My

preparation for this response included a review of the original complaint, the investigation, the
written determination and various appendices and other policies and documents included in the
case file.
Currently the sanctions imposed on Richard Bugg regarding the incidents included in the case
file are as follows:
1. Professor Richard Bugg submit to education about current views and opinions of English
language and grammar experts and resources that using Gender-Neutral pronouns when
referring to an individual is now considered grammatically correct.
2. This action and decision stand as a written warning regarding the use of preferred
pronouns. If Professor Bugg continues to refuse to make a good faith effort to use
preferred pronouns it will be considered an additional violation of policy 5.60 and 5.27
and may result in further sanctions up to and including termination.
3. If Professor Bugg refuses to make a good faith effort to use pronouns requested by SUU
students, and as a result, students refuse to register for sections of classes he teaches,
SUU will open additional sections of those classes and Professor Bugg’s pay will be
reduced to offset the amounts SUU must pay for the additional sections.
In response to these sanctions imposed by Kevin Price, Assistant Vice President for Human
Resources and Responsible University Administrator, and the findings from the Hearing Officer,
Steve Gordon, I received an appeal from Richard Bugg and another from .
One was received from Jerome H. Mooney of Weston, Garrou, and Mooney, who represents
Richard Bugg dated May 26, 2022. A second appeal from was received on May
25, 2022
The appeal from Jerome H. Mooney on behalf of Richard Bugg includes two requests, based on
the foundation that the sanctions are clearly unreasonable. These appeal requests are: 1) a
request to remove compelling Richard Bugg to use “plural pronouns for single individuals,
something he finds improper not for religious reasons, but for political reasons'' and 2) “the
sanctions create a “shadow class” at Professor Bugg’s expense” as “[t]his is akin to fining him if
he does not comply.”
The first appeal assumes that the use of “they” (or similar variations of the pronoun) solely refers
to a single individual. Regardless of the reasons (political, religious, etc…), this is an incorrect
statement. The current use of the pronoun “they” includes referring to a “single person who’s
gender identity is nonbinary” as noted in Finding 39. This is further supported in findings 40-44,
which incorporate current definitions of “they” from external, reliable sources.
The second ground for appeal suggests that creating a “shadow class” would be akin to fining
Richard Bugg for his failure to deploy correct and current uses of the “they” pronoun. However,
the appeal fails to recognize that the cost of a newly created section is a real cost and that the
substantial disruption to the student learning and their course has already been demonstrated,
such that University has already incurred this type of cost as a result of Richard Bugg’s policy
violation. This sanction is more akin to a cost recovery measure than a fine to Richard Bugg and
is tied directly to his conduct that violated SUU policy.
Based on this logic, the first and second reasons for appealing these sanctions are denied. This
decision is based on a current and correct usage of the pronoun “they” and cost recovery
directly associated with creating shadow sections of courses as described.
s appeal requested that the implemented sanctions remain in force and that an
additional sanction be added to include “focuses on protecting incoming students.”
In response to ’s appeal, I am adding an additional sanction to the three imposed

by Kevin Price as outlined above. This sanction relates to the syllabus statement that was at
issue in this case.
Each academic course includes learning outcomes that should be accomplished by students
who complete the course. It seems there is significant inconsistency in the syllabus statements
and policies related to various versions of the course under scrutiny. Some of these variations
(as included in various testimonies) show significant differences in introductory syllabus
statements. It seems reasonable that statements included in Richard Buggs syllabus should be
similar to the syllabi statements included in other sections of the same course, or, at least be
compliant with departmental guidance. In fact, one reading of Richard Bugg’s introductory
statement in the syllabus on political neutrality could read as if Richard was inviting political
debate rather than focusing the language on the process of acting.
The guidance included in the department’s undergraduate student handbook includes this
statement: “Gender Identity Announcement: Students have the right to express their gender
identity freely. The faculty are committed to creating a safe and positive learning environment for
each and every student. If a student would prefer that we use a specific gender pronoun, please
let faculty know during class introductions, office hours, or by email.” (Undergraduate Student
Handbook SUU CPVA TDAA. Undergraduate Student Handbook. 2020 revision, P. 12,
https://www.suu.edu/pva/ta/pdf/student-handbook-2020-revised.pdf)
Additional Sanction: Professor Richard Bugg must review, and edit as necessary, his syllabus
language to ensure it aligns with department guidance related to gender pronouns, and submit
the syllabus for approval by the Department Chair two weeks before the start of the Fall 2022
semester.
In summary, the three original sanctions as implemented by Kevin Price remain in force and a
fourth sanction is added as noted above.
This decision brings the current issue to closure, as it is the final decision of the University.
Best regards,
Jon Anderson
Provost
Cc: Dr. Brian Swanson, Department Chair

Dr. Shauna Mendini, Dean
10
11
12
13
EXHIBIT C
14
15 SUU Policy 5.27

16
17
18
19
20
21
22
23
24
25
26
27
28
COMPLAINT
Policy # 5.27
SOUTHERN UTAH UNIVERSITY Date Approved: 11/02/90
Policies and Procedures Date Amended: 08/26/10
Reviewed w/ No Changes:
Office of Responsibility: General Counsel/VP FA
Page 1 of 15
SUBJECT: NON-DISCRIMINATION / ANTI-HARASSMENT
5.27.1. INTRODUCTION:
Southern Utah University is committed to being a haven for the exchange of ideas between
people with diverse backgrounds, opinions and ideologies. In order to encourage this exchange,
the University will endeavor to provide an environment free from discrimination and harassment.
SUU complies with all state and federal laws regarding unlawful discrimination and harassment,
which include, but are not limited to: Titles VI and VII of the Civil Rights Act of 1964; Title IX
of the Educational Amendments of 1972; Sections 503 and 504 of the Rehabilitation Act of
1973; the Americans with Disabilities Act; Vietnam Era Veterans’ Readjustment Assistance Act
of 1974; Executive Order 11246 (as amended); the State of Utah Anti-Discrimination Act; and
others as applicable.
5.27.2. PURPOSE:
A. To educate and provide a clearer understanding of legal and policy

pronouncements prohibiting discrimination and harassment in the workplace or
academic environment. This policy is not intended to address student-to-student
peer discrimination or harassment. Such conduct is governed by Policy 11.2 and
13.20.
B. To prevent, at the earliest possible opportunity, conduct that is inconsistent with

these pronouncements.
C. To provide guidance in processing complaints alleging policy violations,

investigating those allegations, and implementing disciplinary or corrective action
as appropriate to the circumstances.
5.27.3. POLICY:
A. Discrimination. Intentionally dealing with a person, either preferentially or

detrimentally, because of his or her race, religion, national origin, color, sex
(gender), age, disability, marital, veteran, sexual orientation, or other legally
protected status, unless otherwise provided by statute1, constitutes unlawful
discrimination and is prohibited under this policy as well as state and federal law.
B. Harassment. Intentional behavior directed at a person primarily because of his or

her race, religion, national origin, color, sex (gender), age, disability, marital,
veteran, sexual orientation, or other legally protected status constitutes harassment
1
Veterans’ hiring preference is defined in UCA 71-10-1, et. seq.
Exhibit B - 1
Policy # 5.27
Page 2 of 15
and is prohibited under this policy, and may constitute illegal discrimination
under state and federal law.
C. Prohibited behavior or conduct includes the following:
1. That which is demeaning, ridiculing, derisive, or coercive, on a severe or

pervasive basis, resulting in a hostile or intimidating working or learning
environment;
2. That resulting in a tangible employment action being taken against an

employee, a tangible work benefit being granted or denied an employee,
or tangible effect in grading or academic advancement of a student.
a. Severe behavior refers to that which is repugnant, that which is

extremely offensive to a reasonable person, or that which occurs
with indifference to the ordinary sensibilities of a reasonable
person.
b. Pervasive behavior refers to that which occurs repeatedly or in

some pattern over a period of time, having the effect of interfering
with a person’s work or academic performance, or creating a
hostile environment. Pervasive behavior may be found in repeated
verbal or other suggestive conduct that an ordinary person would
view as vulgar, obscene, or intimating an interest in a relationship
that would be unwelcome, unprofessional or create a conflict of
interest in the employment or academic environment.
c. The more severe the behavior, the less pervasive it need be to meet
this test, and the less severe the behavior, the more pervasive it
need be to meet this test. In the case of extreme and outrageous
behavior, a single event may be deemed severe enough to meet this
test.
d. A hostile environment includes, but is not limited to, one in which

a reasonable person can establish that he or she is the target of
conduct by a supervisor, co-worker, faculty member, staff member,
volunteer, campus contractor, or student that is sufficiently severe
or pervasive to alter the conditions of his or her employment or
education. A hostile environment generally assumes that the
behavior is pervasive and directed at a victim who must work or
Exhibit B - 2
Policy # 5.27
Page 3 of 15
attend there, or is otherwise entitled or expected to be there for

work or academic purposes.
D. Behavior or conduct constituting sexual harassment is also prohibited under this

policy as well as state and federal law. Inappropriate conduct may be found
between persons of different gender, the same gender, and in instances of gender
stereotyping.
1. Sexual harassment is defined as conduct of a sexual nature, physical or

verbal, by an individual in an official University position when:
a. Submission to such conduct is made either explicitly or implicitly a

term or condition of an individual's employment or academic
standing; or,
b. Submission to or rejection of such conduct by an individual is used

as the basis for employment or academic decisions affecting that
individual.
2. Sexual harassment may also be found in conduct of a sexual nature that is

sufficiently severe or pervasive, which has the effect of altering the
conditions of an individual’s employment, or creating an abusive or
untenable academic or working environment.
a. Severe conduct may include, but is not limited to, requests for
sexual relations, physical touching, and other conduct that has the
intent or effect of conveying an unwelcome sexual suggestion,
particularly where such have been clearly declined and disapproval
expressed. However, “simple teasing,” offhand comments, and
isolated incidents (unless extremely serious) will not constitute an
abusive or untenable environment.
b. Intentional physical contact with a part of the body that is intimate

or gender specific is, by its nature, severe, and may also constitute
the crime of sexual battery or assault under state law. This conduct
is prohibited; and need not be pervasive to constitute a violation
under this policy. Anyone believing him/herself to be a victim of
such conduct is encouraged to file a complaint under this policy,
and encouraged to contact Campus Police.
Exhibit B - 3
Policy # 5.27
Page 4 of 15
E. If there is no apparent threat to, or reasonable apprehension for personal safety, a

person experiencing conduct he/she believes to constitute discrimination,
harassment, or sexual harassment is encouraged to confront the alleged violator
and clearly communicate his/her disapproval of such behavior, indicating that it is
unwelcome and/or inappropriate, and that it will not be tolerated in the future.
This effort is encouraged as a means of stopping and preventing such behavior in
the future. It is also recommended that such a confrontation be documented for
use in support of any future complaint or investigation.
F. Violators will be subject to discipline under this policy, guided but not controlled
by other University policies, and may, where the conduct warrants, be referred for
criminal prosecution. Discipline will be determined consistent with the severity
and overall nature of the behavior and need not follow any “progressive
discipline” format. Conduct found to be substantially severe and pervasive may
result in termination from employment or other disciplinary or corrective action
designed to prevent future repetitions. The imposition of disciplinary and/or
corrective action may be considered as follows:
1. In the case of a faculty member, a violation is considered to be highly

unprofessional and discipline will be guided by Policy 6.28, Section VI;
2. In the case of a classified or professional staff employee:
a. In probationary status, the alleged offender will be dismissed,

unless that is deemed inappropriate by his/her Vice President, who
will specify the appropriate discipline;
b. Not in probationary status, discipline will be guided by Policy

8.3.5, Section III., B.
3. In the case of a campus volunteer, the volunteer will not be recalled to

service. Reported incidents and any documentation will be filed with
campus police and subject to state and federal laws.
4. In the case of an on-campus contractor, the job supervisor will be notified

with the expectation that the contractor’s alleged offending employee(s) or
sub-contractor’s alleged offending employee(s) will be disciplined and re-
assigned away from the on-campus job site. A report may also be filed
with the campus police, and the alleged offender dealt with under
applicable state and/or federal laws.
Exhibit B - 4
Policy # 5.27
Page 5 of 15
5. In the case of a student violation, (e.g. proposing or intimating a sexual

relationship with a faculty member, staff member or campus volunteer),
the student will be referred to the Dean of Students and the conduct will be
addressed under Policies 11.2 and 13.20.
6. In the case of an on-campus visitor, reported incidents and any

documentation should be filed with campus police and the alleged
offender dealt with under applicable state and/or federal laws.
G. A faculty member, staff member, or campus volunteer will be subject to

disciplinary or corrective action for harassment and/or sexual harassment of
another employee or of a student, even if that harassment occurs outside of
scheduled work time, away from regular work location, or off campus.
5.27.4. BURDEN OF PROOF:
A. The accused is presumed to be innocent until it is proven by a preponderance of

the information obtained that he/she has violated this policy.
B. Anyone asserting “consent,” as excusing or mitigating an accusation of behavior

otherwise prohibited under this policy, will bear the burden of rebutting a strong
presumption to the contrary. The assertion of consent would mean that the
behavior was mutually agreeable to the involved parties. The presumption must
ordinarily be rebutted by a preponderance of information showing affirmative
statements or conduct communicating consent. Consent will not ordinarily be
inferred from a party’s or co-worker’s tolerance, or immediate failure to confront
a person or persons engaged in prohibited conduct.
1. The basis for the presumption includes, but is not limited to, the following:
a. The behavior is prohibited by this policy.
b. The behavior has become the subject of a complaint.
c. Parties are often in an unequal position where one is in a position

of power or authority and the other is a subordinate or student.
d. Behavior between two persons that is consensual can form the

basis for a third-party complaint alleging that the behavior resulted
in less favorable treatment of the non-consenting or non-
participating third party.
Exhibit B - 5
Policy # 5.27
Page 6 of 15
2. Where the presumption is rebutted, and consent is shown:
a. The consenting parties may be subject to discipline for having

consensually engaged in prohibited conduct.
b. Any discipline warranted by the prohibited conduct may, but need

not be, mitigated by the consent.
c. A third-party complaint resulting from the consensual conduct will

be considered to be equally asserted against all consenting
individuals.
C.
1. Because of the inherent differential in authority, Southern Utah University

prohibits any faculty from engaging in a romantic and/or sexual
relationship with any undergraduate or graduate student currently enrolled
at the university when one participant has direct evaluative or supervisory
authority over the other because such relationships create an inherent
conflict of interest. (See Policy 6.28. IV.J.) When such cases arise, the
individual in the evaluative or supervisory position has an obligation to
disclose the relationship to his or her administrative superior and to
cooperate in removing himself or herself from any such evaluative or
supervisory activity in order to eliminate the existing or potential conflict
of interest, or the likelihood of a complaint being filed under this policy.
Exceptions to this prohibition include legally recognized or recognizable
marriages.
2. Consensual relationships between employees in a supervisor / subordinate

relationship are also prohibited. Persons wishing to pursue such a
relationship should seek a transfer to another campus department so as to
eliminate or minimize the possibility of a complaint or conflict of interest.
3. Consensual relationships between persons in a position of lateral or equal

authority are discouraged as such may form the basis for a third-party
complaint where co-workers observe conduct that would otherwise be
prohibited under this policy, and which may be unproductive and
inappropriate in the workplace.
5.27.5. Complaint Procedure.
Exhibit B - 6
Policy # 5.27
Page 7 of 15
Anyone claiming harm from prohibited conduct who seeks investigation and remediation
through on-campus procedures, is encouraged to file a complaint and engage in the processes
provided below. The University will make reasonable efforts to ensure that the process is free
from bias, collusion, intimidation or retaliation.
A. Complaints should be brought as soon as possible, and must be filed within four
(4) months of the most recent violation. Where the interests of fairness require,
this time limit may be extended with the consensus of the Human Resources
Director, or designate (“Director”), the responsible Vice President (“Vice
President”) and University Counsel.
A person claiming discrimination or sexual harassment who desires state or

federal review, must initiate a “Request for Agency Action” with the Utah
Anti-Discrimination and Labor Division (“UALD”) within 180 days; or a
complaint with the Equal Employment Opportunity Commission (“EEOC”)
within 300 days from the from the date of last harm (not from the date that
the complaint to the University is filed or resolved).
B. An individual who experiences prohibited conduct; or an individual who is

observing or otherwise aware of such prohibited conduct is encouraged to:
1. Document the occurrence;
2. Identify any witness or witnesses;
3. Confront the offender and indicate disapproval of the conduct; and/or,
4. Continue to report to work, or other standard venue, unless the

circumstances reasonably indicate an apparent threat to, or reasonable
apprehension for personal safety.
C. An individual faculty member, staff member, administrator, student, campus

volunteer, or third-party observer may orally assert, or file a written complaint
alleging that prohibited discrimination, harassment or sexual harassment has
occurred. This may be done by an alleged victim or on behalf of an alleged
victim by a campus administrator, as circumstances dictate.
D. A complaint may be filed with the Human Resources Director, with the alleged
victim’s immediate supervisor, or with anyone in an administrative position
below the Vice President responsible for the department in which the alleged
Exhibit B - 7
Policy # 5.27
Page 8 of 15
violator is employed. Once received, all complaints must be forwarded to the

Director for investigation and recommendation back to the responsible Vice
President for final disciplinary, corrective or other appropriate action.
E. Complaints will be handled with such confidentiality as may be reasonably

available under the circumstances.
Absolute confidentiality is not and cannot be guaranteed.
F. Any supervisor who has knowledge of prohibited conduct is expected to take

immediate action intended to prevent further violation, document the action, and
provide a report to the Human Resource Office. This report may either support or
constitute a complaint as circumstances dictate.
G. Upon receiving a complaint or report of alleged violation:
1. Where the Director, on initial review, finds that the alleged violation
meets the minimum requirements of Section 5.27.3, above, an
investigation will be conducted as provided in Section 5.27.6, below. Any
violation found will be resolved in accordance with this policy; or,
2. Where the Director, on initial review, finds the complaint or information

insufficient to pursue an investigation (e.g. conduct not pervasive; but
inappropriate), the Director will schedule a meeting with the complainant,
the supervisor of the alleged violator, Legal Counsel and/or others as
appropriate to communicate this determination and to consider any
remedial action as may be appropriate.
H. Should a complaint involve the Director, a Vice President or other person

designated by this policy to make or implement a recommendation or decision,
the University President will temporarily appoint a substitute for purposes of
processing, investigating and resolving the complaint.
5.27.6. INVESTIGATIVE PROCEDURE:
A. There will be a minimum of nine (9) trained investigators selected by the Director
of Human Resources from faculty and staff. These investigators will be trained in
appropriate investigation methods. They will be composed into investigation
Exhibit B - 8
Policy # 5.27
Page 9 of 15
teams of three: One female, one male and a third assigned at random
(“Investigation Team”). The Investigation Team will not serve in an advocate
role; but rather, as neutral, impartial investigators. If during the course of their
investigation a conflict of interest becomes apparent, or is asserted by any party
relative to any member of the Investigation Team, it will be brought to the
attention of the Director of Human Resources who can consider substitution
within the Investigative Team, or other appropriate action.
B. The complainant may make specific requests relating to the investigation process
and the Investigation Team. The Investigation Team will attempt to comply with
these requests, but is not bound to do so. The Investigation Team – in
consultation with other appropriate individuals, as necessary – may take whatever
action they see as necessary and appropriate to determine the accuracy or validity
of the allegations and make such recommendations they think reasonable to
resolve the complaint.
C. Where a complaint is investigated:
1. The Investigation Team is authorized to ask questions of the complainant,

the victim (if not the complainant), the accused, and all others having
information, as their names become known to the investigators in the
course of their investigation. Investigators will have authority and
discretion to ask such questions and obtain such documents and other
information as the circumstances and details provided may require. If the
Investigation Team discovers information to substantiate violations not
asserted in the complaint, or other victims not otherwise known to the
complainant, the investigators will notify the Director who has authority
and discretion to construe the complaint to best prevent future violations
and achieve the greatest fairness in the circumstances. Instances
discovered to be outside the four month time frame in Section 5.27.4(1),
above, must be evaluated for inclusion or exclusion, as provided under
that section.
2. The complainant, the victim (if not the complainant), the accused and
others interviewed may request confidentiality or anonymity, and such
request(s) will generally be honored by the Investigation Team to the
practical extent possible, unless in their judgment such is not in the best
interest of the investigation, the University, other parties; or, is
fundamentally unfair to the accused unless it is otherwise prohibited or
affected by applicable law.
Exhibit B - 9
Policy # 5.27
Page 10 of 15
3. Once referred for investigation, the complaint will be investigated as

promptly as possible in the circumstances, and recommendations will be
forwarded to the Director of Human Resources - ideally within one month.
4. Unless the Investigation Team finds the complaint to be groundless prior

to interviewing the accused, the accused must be presented with a copy of
the complaint (or an appropriate summary, as confidentiality and
anonymity may require) and must be allowed the opportunity to respond,
explain or refute its allegations, or other information provided within 14
calendar days, before the investigation can be concluded.
5. In conducting their investigation, the Investigation Team will make

reasonable efforts to preserve the dignity, respect and reputation of all
parties and others involved.
6. Once the accused is made aware of the complaint, he/she will not
knowingly communicate with the complainant (and the alleged victim if
not the complainant) regarding the alleged violation(s) and should avoid
any conduct which could be construed as retaliatory. Proof of retaliation
may result in additional disciplinary action as provided below.
D. Results of Investigation
1. Upon concluding its investigation, if the Investigation Team, by

majority, finds:
a. That the allegations have been supported by a

preponderance of the information; or,
b. That the accusations were made falsely, as described in

5.27.8, or as a matter of vindictive or retaliatory conduct, as
described in 5.27.7, below; or,
c. That the accusations are not supported by a preponderance

of the information;
Their written findings and recommendations will be submitted to

the Director of Human Resources and the accused.
2. Upon receiving the findings and recommendations of the

Investigation Team, the Director of Human Resources will forward
Exhibit B - 10
Policy # 5.27
Page 11 of 15
these findings and recommendations to the appropriate Vice

President.
Where:
a. The findings indicate a policy violation by a tenured faculty

member, professional-in-residence (during the term of
contract), or non-probationary staff member,
1. The Vice President having line authority over the

accused will meet with him/her to review the
findings and proposed disciplinary or corrective
action.
2. The accused will have the opportunity to respond

and be heard in this meeting.
3. The accused may have a representative accompany

him/her at this meeting for advice and support – the
representative will not speak on behalf of the
accused, unless permitted by the Vice President.
4. The Vice President will meet separately with the

complainant for the same purpose, and may (in
his/her discretion) meet with the victim, if other
than the complainant, to summarize the findings and
disciplinary or other corrective action. The
complainant may also have a representative at this
meeting.
5. After hearing the accused and the complainant, the

Vice President may confer with the Investigation
Team, or others, if necessary, to be fully advised
before finalizing and imposing disciplinary or other
corrective action.
6. The affected faculty or staff member will be

notified of final disciplinary or corrective action in
writing, with a copy to his/her personnel file.
Exhibit B - 11
Policy # 5.27
Page 12 of 15
b. The findings indicate a policy violation by an adjunct

professor, a tenure-track professor, visiting faculty,
probationary staff member, or campus volunteer,
7. The Vice President may dismiss from employment

or impose corrective action on that person without
a review meeting or other process.
8. The affected person will be notified of final action

in writing, with a copy to his/her personnel file. A
campus volunteer will be notified by best available
means.
c. The findings indicate that the accusations were made

falsely or as vindictive or retaliatory conduct –
1. By a faculty member, staff member, or campus

volunteer,
i. The Vice President over the accused (where

he/she does not have line authority over the
other party) will advise the Vice President
over the complainant (or victim, if other
than the complainant). They will review the
findings and recommendations.
ii. The appropriate Vice President will then

meet with the parties involved and will
finalize and impose appropriate disciplinary
or other corrective action.
iii. The affected person will be notified of

disciplinary or other corrective action in
writing, with a copy to his/her personnel
file.
iv. A campus volunteer will be notified by best

available means.
2. By a student, the Dean of Students will be notified,
Exhibit B - 12
Policy # 5.27
Page 13 of 15
and the conduct will be addressed under Policies

11.2 and 13.20.
9. In the process of investigating a policy violation, if an Investigation Team

finds what they believe to be evidence of criminal conduct, their
information will be forwarded to the Director of Human Resources and
Campus Legal Counsel for review and referral to the County Attorney or
Attorney General's Office as appropriate. These offices have independent
discretion to pursue further review, investigation and prosecution, as they
find appropriate. Any policy violation will be addressed under paragraphs
A. and B., above.
10. If the Investigation Team determines that the allegations were not
supported, written findings to that effect will be provided to the Director
of Human Resources and the complaint dismissed.
11. The meeting with the Vice President, specified above, providing the
accused violator with the opportunity to be heard on the findings and
proposed disciplinary or other corrective action, constitutes and
fulfills all legal and policy requirements for faculty/staff due process
on the complaint.
5.27.7. RETALIATION:
A. No one may retaliate (“retaliation”) against any faculty member, staff member,
student or campus volunteer that initiates a complaint or participates in the
resolution of a complaint made under this policy.
B. Retaliation may include, but is not limited to:
1. Open hostility to any complainant, participant or others involved;
2. Exclusion or ostracism of the complainant, participant or others;
3. Creation of, or the continued existence of, a hostile work environment;
4. Special attention to or assignment of the complainant, participant or others

to demeaning duties not otherwise performed in the ordinary course of
routine employment or in the ordinary course of established course study
as provided by or reasonably inferred from the syllabus;
Exhibit B - 13
Policy # 5.27
Page 14 of 15
12. Tokenism or patronizing behavior;
13. Discriminatory treatment;
14. Subtle harassment; or
15. Imposing unreasonable time restrictions on employees in preparing

complaints or compiling information related to prohibited conduct.
C. Any act of retaliation toward the complainant, witnesses or others involved in the
investigation shall be subject to additional corrective or disciplinary action as
provided in Section 5.27.6 (D) (2) (c), above.
5.27.8. FALSE ACCUSATIONS
A. Accusations of conduct prohibited under this policy can have long-term effects on
the professional reputation and potential for career advancement of anyone so
accused.
B. Recognizing this, anyone making knowingly false or materially inaccurate

accusation(s) of prohibited conduct, if so determined in the course of evaluating a
complaint, will be subject to disciplinary or corrective action appropriate to the
circumstances as provided in Section 5.27.6 (D) (2) (c), above. Discipline may
include termination from employment or expulsion from the University.
5.27.9. RECORDS
A. All records of complaints, investigations, findings and recommendations

considered or accumulated under this policy [“records”] are classified as
“PROTECTED” under the Utah Government Records Access and Management
Act (“GRAMA”).
B. Records will be maintained and stored in the Human Resources Office. Removal
or disposal of records in the protected file may only be done with the approval of
the University President, and only after minimum retention time (as may be
provided by state law or University practice) have been met. In any case, records
will be kept for a minimum of three years from the resolution of the complaint or
investigative proceeding.
C. Supervisors will not keep separate files related to complaints of prohibited

conduct.
Exhibit B - 14
Policy # 5.27
Page 15 of 15
D. Information contained in the protected file will only be released by the University
President or the Director of Human Resources, when in compliance with the
requirements of applicable law, after consultation with Campus Legal Counsel.
E. Participants in any investigation or implementation of disciplinary or other

corrective or remedial action shall treat all information as protected and
confidential.
F. Final disposition of a complaint will be communicated to the accused violator, the

responsible Vice President, the complainant, and at the discretion of the Vice
President, the victim(s), if other than the complainant.
Exhibit B - 15
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12
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EXHIBIT D
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15 SUU Policy 5.60

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COMPLAINT
Policy # 5.60
Office of Responsibility: Title IX
Page 1 of 32
SUBJECT: SEXUAL MISCONDUCT
I. PURPOSE & POLICY STATEMENT
This policy defines and prohibits discrimination on the basis of sex, including sexual
harassment, in education programs and activities; details how to report a violation of this
policy; describes Southern Utah University resources and supportive measures to protect
those involved in the process; and outlines investigation, disciplinary, and due process
procedures for addressing reported violations of this policy. This policy applies to all
persons who are (1) employed by, attending, or affiliated with the University; (2)
participating in any University program or activity, including but not limited to trustees,
administrators, faculty, staff, students, independent contractors, volunteers, and guests;
and/or (3) visiting campus or any property owned or leased by the University.
II. REFERENCES
Americans with Disabilities Act (ADA) (as amended)

Campus Sexual Violence Elimination Act (SaVE)—Reauthorization of the Violence
against Women Act of 2013 (VAWA)
Family Educational Rights and Privacy Act (FERPA)
Heath Insurance Portability and Accountability Act (HIPAA)
Jeanne Clery Disclosure of Campus Security Police and Campus Crime Statistics Act
(Clery Act)
Title VII of the Civil Rights Act of 1964 (Title VII)
Title IX of the Higher Education Amendments Act of 1972 (Title IX)
Utah Code § 53B-27-101 et seq. Campus Advocate Confidentiality Amendments
Utah Code § 53B-28-302 Code of Conduct Violation-Report of Sexual Violence
Utah Code § 53B-28-304 Criminal Retaliation Against a Victim or a Witness
Utah Code § 63G-2 Government Records Access and Management Act (GRAMA)
Utah Code § 63G-7-301 Waivers of Immunity-Exceptions
Utah Code § 76-5-404.1 Sexual Abuse of a Child
Utah Code § 77-36 Cohabitant Abuse Procedures Act
Utah Code § 77-38 Rights of Crime Victims Act
Exhibit A - 1
Policy # 5.60
Page 2 of 32
Utah Board of Higher Education Policy R256 Student Disciplinary Processes

Utah Board of Higher Education Policy R842 Restrictions on Faculty/Staff Relationships
with Student
III. SCOPE OF THE POLICY
This policy applies to all employees of the University and any persons participating, or
attempting to participate, in any University Program or Activity. To the extent that any
other University policies address sex discrimination, sexual harassment, or retaliation, as
defined in this policy, this policy and its procedures govern.
IV. DEFINITIONS
A. Actual knowledge: Notice of sexual harassment or allegations of sexual

harassment to the Title IX Coordinator or any official of the University who has
authority to institute corrective measures on behalf of the University. Imputation
of knowledge based solely on vicarious liability or constructive notice is
insufficient to constitute actual knowledge. This standard is not met when the
only official of the University with actual knowledge is the respondent. The mere
ability or obligation to report sexual harassment or to inform a student about how
to report sexual harassment, or having been trained to do so, does not qualify an
individual as one who has authority to institute corrective measures on behalf of
the University.
B. Complainant, victim, or alleged victim: An individual who is alleged to be the

victim of conduct that could constitute sexual harassment.
C. Consent: Consent to engage in a sexual encounter must be given by all

participating parties; must be clear, knowing, and voluntary; and may be given
only by someone who is 18 years of age or older and is not mentally and/or
physically incapacitated. Consent is active, not passive. Consent requires an
affirmatively communicated willingness through words and/or actions to
participate in sexual activity. Silence, in and of itself, may not be interpreted as
consent.
D. Dating Violence: as defined at 34 U.S.C. 12291(a)(10), dating violence means

violence committed by a person (A) who is or has been in a social relationship of
a romantic or intimate nature with the victim; and (B) where the existence of such
Exhibit A - 2
Policy # 5.60
Page 3 of 32
a relationship shall be determined based on a consideration of the following

factors:
1. The length of the relationship.
2. The type of relationship.
3. The frequency of interaction between the persons involved in the

relationship.
E. Discrimination: For purposes of this policy, adverse action towards University

employees or students in the terms or conditions of employment; University
admission or education; access to University programs, services, or activities; or
other University benefits or services, on the basis of their inclusion or perceived
inclusion (in the case of sexual orientation, gender identity, or gender expression)
in the protected classes of sex, pregnancy, pregnancy-related conditions, sexual
orientation, gender identity, or gender expression that has the effect of denying or
limiting participation in a University program or activity.
F. Domestic Violence: as defined in 34 U.S.C. 12291(a)(8), domestic violence

includes felony or misdemeanor crimes 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
receiving grant monies, or by any other person against an adult or youth (ages
11-24) victim who is protected from that person’s acts under the domestic or
family violence laws of the jurisdiction.
G. Formal Complaint: A document filed by a complainant or signed by the Title IX

Coordinator alleging sexual harassment against a respondent and requesting that
the University investigate the allegation of sexual harassment. At the time of
filing a formal complaint, a complainant must be participating in or attempting to
participate in the education program or activity of the University with which the
formal complaint is filed. A formal complaint may be filed with the Title IX
Coordinator in person, by mail, or by electronic mail, by using the contact
information required to be listed for the Title IX Coordinator, and by any
additional method designated by the University. As used in this paragraph, the
phrase “document filed by a complainant” means a document or electronic
Exhibit A - 3
Policy # 5.60
Page 4 of 32
submission (such as by electronic mail or through an online portal provided for

this purpose by the University) that contains the complainant’s physical or digital
signature, or otherwise indicates that the complainant is the person filing the
formal complaint.
H. Incapacitation: An individual who is incapacitated cannot give consent to engage

in a sexual encounter. Incapacitation is defined as the physical and/or mental
inability to make informed, rational judgments. Factors that could be indications
of incapacitation include but are not limited to mental or physical disability; lack
of sleep; alcohol; illegal, date-rape, or prescription drug use; unconsciousness;
blackout; or involuntary physical restraint. Being intoxicated by drugs or alcohol
does not diminish one’s responsibility to obtain consent. The factors to be
considered when determining whether consent was given include whether the
accused knew, or whether a reasonable person should have known, that the
complainant was incapacitated.
I. Party: Complainant or respondent.
J. Preponderance of evidence: The evidentiary standard used during a sexual

misconduct investigation/review to determine if the allegations occurred and if a
University policy violation has occurred. Preponderance of evidence means it is
more likely than not, or more than 50 percent in favor, that the misconduct
occurred as alleged.
K. Respondent: Respondent means an individual who has been reported to be the

perpetrator of conduct that could constitute sexual harassment.
L. Retaliation: An action, performed directly or through others, that is aimed to

dissuade a reasonable person from engaging in a protected activity or is done in
retribution for engaging in a protected activity. Action in response to a protected
activity is not retaliatory unless (i) it has a materially adverse effect on the
working, academic, or other University-related environment of an individual and
(ii) it would not have occurred in the absence of (but for) the protected activity.
Examples of protected activities include reporting (internally or externally) a
complaint of sexual harassment in good faith, assisting others in making such a
report, or honestly participating as an investigator, witness, decision maker, or
otherwise assisting, in an investigation or proceeding related to suspected sexual
harassment.
Exhibit A - 4
Policy # 5.60
Page 5 of 32
M. Sexual assault: as defined at 20 U.S.C. 1092(f)(6)(A)(v) and the uniform crime

reporting system of the Federal Bureau of Investigation, sexual assault means any
sexual act directed against another person, without the consent of the victim,
including instances where the victim is incapable of giving consent; also unlawful
sexual intercourse, including the following:
1. Rape—Any penetration, no matter how slight, of the vagina or anus with

any body part or object, or oral penetration by a sex organ of another
person, without the consent
2. Sodomy—Oral or anal sexual intercourse with another person, without the

consent of the victim, including instances where the victim is incapable of
giving consent because of his/her age or because of his/her temporary or
permanent mental or physical incapacity
3. Sexual Assault With An Object—To use an object or instrument to

unlawfully penetrate, however slightly, the genital or anal opening of the
body of another person, without the consent of the victim, including
instances where the victim is incapable of giving consent because of
his/her age or because of his/her temporary or permanent mental or
physical incapacity
4. Fondling—The touching of the private body parts of another person for

the purpose of sexual gratification without the consent of the victim,
including instances where the victim is incapable of giving consent
because of his/her age or because of his/her temporary or permanent
mental or physical incapacity
5. Incest—Nonforcible sexual intercourse between persons who are related

to each other within the degrees wherein marriage is prohibited by Utah
law. See Utah Code section 76-7-102.
6. Statutory Rape—Nonforcible sexual intercourse with a person who is

under Utah’s statutory age of consent. See Utah Code section 76-5-401 et
seq.
N. Sexual harassment: conduct on the basis of sex that satisfies one or more of the
following: (1) An employee of the University conditioning the provision of an
aid, benefit, or service of the University on an individual’s participation in
Exhibit A - 5
Policy # 5.60
Page 6 of 32
unwelcome sexual conduct; (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 University education program or activity; or (3)
“Sexual assault” as defined in 20 U.S.C. 1092(f)(6)(A)(v), “dating violence” as
defined in 34 U.S.C. 12291(a)(10), “domestic violence” as defined in 34 U.S.C.
12291(a)(8), or “stalking” as defined in 34 U.S.C. 12291(a)(30).
O. Sexual Assault Response Team (SART): A committee of trained

interdepartmental University staff working collaboratively to provide services for
the University community by offering specialized sexual assault intervention
services, including but not limited to ensuring the immediate safety of the alleged
victim, taking interim measures as necessary, and remediating the effects of
substantiated sexual misconduct.
P. Stalking: as defined at 34 U.S.C. 12291(a)(30), stalking means engaging in a

course of conduct directed at a specific person that would cause a reasonable
person to (A) fear for their safety or the safety of others; or (B) suffer substantial
emotional distress.
Q. Supportive Measures: Non-disciplinary, non-punitive individualized services

offered as appropriate, as reasonably available, and without fee or charge to the
complainant or the respondent before or after the filing of a formal complaint or
where no formal complaint has been filed. Such measures are designed to restore
or preserve equal access to the University’s education program or activity without
unreasonably burdening the other party, including measures designed to protect
the safety of all parties or the University’s educational environment, or deter
sexual harassment. Supportive measures may include 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. The University must maintain as confidential any supportive measures
provided to the complainant or respondent, to the extent that maintaining such
confidentiality would not impair the ability of the University to provide the
supportive measures. The Title IX Coordinator is responsible for coordinating the
effective implementation of supportive measures.
Exhibit A - 6
Policy # 5.60
Page 7 of 32
R. Title IX Coordinator: The University must designate and authorize at least one
employee to coordinate its efforts to comply with its responsibilities under Title
34 of the Code of Federal Regulations, part 106, which employee must be referred
to as the “Title IX Coordinator.”
S. University community members: All persons employed by or affiliated with the

University in any way and persons participating in any University program or
activity, including but not limited to trustees, advisory board members,
administrators, faculty, staff, students, independent contractors, volunteers, and
guests or visitors to any University campus or any property owned or leased by
the University.
V. PROHIBITED CONDUCT
Sex Discrimination, Sexual Harassment, and Retaliation Prohibited.
The University does not discriminate on the basis of sex in the education program or
activity that it operates, as required by Title IX and 34 CFR part 106. The requirement
not to discriminate in education programs or activities extends to admission and
employment. Inquiries about the application of Title IX and its regulations to University
programs or activities may be referred to the Title IX Coordinator.
The University prohibits sex discrimination, sexual harassment, and retaliation as defined
in this policy. Violations of this policy include but are not limited to acts or attempts of
dating and relationship violence; domestic violence; discrimination based on sex,
pregnancy, pregnancy-related conditions, sexual orientation, gender identity, or gender
expression; hostile environment based on sex, pregnancy, pregnancy-related conditions,
sexual orientation, gender identity, or gender expression (including intimidation and
hazing/bullying); sexual harassment; sexual assault (including nonconsensual sexual
contact or nonconsensual sexual intercourse); sexual exploitation (including engaging in
sexual trafficking); and stalking.
A. Consent: All participants in the sexual activity are responsible for ensuring that
they have the consent of all involved to engage in sexual activity. Any individual
who engages in sexual activity without receiving clear, knowing, and voluntary
consent, or in which one of the parties withdraws consent at any point but is
forced to participate, has violated this policy. Sexual activity with someone
Exhibit A - 7
Policy # 5.60
Page 8 of 32
deemed unable to grant clear, knowing, and voluntary consent constitutes a

violation of this policy. This includes, but is not limited to, individuals who are:
1. Mentally and/or physically incapacitated for any reason (such as by mental

or physical disability; lack of sleep; alcohol; illegal, date-rape, or
prescription drug use; unconsciousness; blackout; or involuntary physical
restraint);
2. Under the age of 18; or
3. Forced to give consent in any way, including but not limited to by

coercion,
4. intimidation, duress, deception, threats, implied threats, and/or physical

force.
5. Consent to any one form of sexual activity does not automatically imply
consent to any other forms of sexual activity. Past consent to sexual
activity does not imply ongoing future consent. The current or past
existence of a relationship does not imply consent. Whether an individual
has taken advantage of a position of authority over an alleged victim may
be a factor in determining consent or coercion.
B. Sexual Conduct with Subordinate Employees or Students: Employees shall

not engage in sexual conduct with subordinate students or employees unless there
has been proper disclosure and potential for abuse of power has been removed.
Subordinate students and employees cannot consent, as defined in this policy, to
sexual conduct amid the potential for abuse of power. The purpose of this
restriction is to prohibit the abuse of power by employees and the exploitation of
subordinate students or employees.
1. Subordinate students are University students or applicants whose

educational opportunities could be adversely impacted by employees.
2. For purposes of this section, sexual conduct is any sexual relationship or

sharing any sexually explicit or lewd communication, image, or
photograph. Sharing sexually explicit or lewd communication, image, or
photograph does not include any communication, image, or photograph
that faculty shares with students as part of a legitimate academic exercise,
Exhibit A - 8
Policy # 5.60
Page 9 of 32
such as pedagogical requirements for specific classes such as health,

science, art, behavioral science, etc.
3. For purposes of this section, educational opportunities include admission,

receipt of financial aid, assessment of academic performance, or
placement in academic opportunities such as internships, assistantships,
and graduation.
4. All employees engaging or intending to engage in sexual conduct with a

subordinate student or employee shall immediately disclose the
relationship to their direct supervisors and the Title IX Coordinator, or be
subject to disciplinary action, up to and including termination. Supervisors
who receive such reports or who otherwise become aware of such
relationships shall promptly report the relationship to the Title IX
Coordinator, who shall work with the relevant parties to remove the
subordinate relationship to ensure compliance with Utah Code §
63G-7-301 and this policy. If the subordinate relationship cannot be
removed or otherwise appropriately managed, the employee shall be
subject to discipline, up to and including termination.
C. Retaliation Prohibited: Neither the University nor any member of the University
community may intimidate, threaten, coerce, or discriminate against any
individual for the purpose of interfering with any right or privilege secured by
Title IX or this policy, or because the individual has made a report or complaint,
testified, assisted, or participated or refused to participate in any manner in an
investigation, proceeding, or hearing under this policy.
1. Intimidation, threats, coercion, or discrimination, including charges

against an individual for policy violations that do not involve sex
discrimination or sexual harassment, but arise out of the same facts or
circumstances as a report or complaint of sex discrimination, or a report or
formal complaint of sexual harassment, for the purpose of interfering with
any right or privilege secured by Title IX or this part, constitutes
retaliation.
2. Any retaliatory threat or act of violence against victims or witnesses of

sexual violence, moreover, is a third-degree felony under Utah Code §
53B-28-304 and may be subject to criminal prosecution.
Exhibit A - 9
Policy # 5.60
Page 10 of 32
3. Complaints alleging retaliation may be filed according to the grievance

procedures for sex discrimination under this policy.
D. Nothing in this policy shall be interpreted as diminishing any party’s rights

protected under the United States Constitution or employee rights under Title VII
of the Civil Rights Act of 1964 to be free from discrimination on the basis of race,
color, religion, sex, and national origin.
VI. NOTIFICATION
The University must notify applicants for admission or employment, students,

employees, of:
A. The name or title, office address, electronic mail address, and telephone number
of the employee designated as the Title IX Coordinator.
B. The nondiscrimination policy statement contained in Section IV of this policy, the

University’s grievance procedures and grievance process, including how to report
or file a complaint of sex discrimination, how to report or file a formal complaint
of sexual harassment, and how the University will respond.
C. The University must prominently display the contact information and policy
statement described in V(a) on its website and in each handbook or catalog that it
makes available to applicants for admission and employment, students,
employees, or all unions or professional organizations holding collective
bargaining or professional agreements with the University.
VII. REPORTING
Any person may report sex discrimination, including sexual harassment (whether or not
the person reporting is the person alleged to be the victim of conduct that could constitute
sex discrimination or sexual harassment), to the Title IX Coordinator using any of the
following methods:
● in person at 351 W. University Boulevard, Bennion Building, Suite 111,

Cedar City, UT 84720 (8:00a.m. – 5:00pm business hours only)
● by mail at 351 W. University Boulevard, Cedar City, UT 84720 (anytime);
● by telephone at 435-586-5419 (anytime);
Exhibit A - 10
Policy # 5.60
Page 11 of 32
● by electronic mail: [email protected] (anytime); or

● by any other means that results in the Title IX Coordinator receiving the
person’s oral or written report.
A. Who Must Report: The following employees are officials with authority to
institute corrective measures who must report sexual harassment or other sex
discrimination to the Title IX Coordinator:
1. The president and all employees reporting directly to the president;
2. All supervisors, when reports concern their direct or indirect subordinates

as potential complainants or respondents;
3. The Vice President of Student Affairs, all employees reporting directly to

the Vice President of Student Affairs, and all college deans when reports
concern students as potential complainants or respondents.
4. Consistent with Utah Code section 62A-4a-403, anyone who reasonably

suspects any incident of sexual harassment or abuse involving a minor
shall immediately report to campus police or the local police department.
Employees who become aware of allegations involving a minor shall
notify the Title IX Coordinator and their supervisor that they have reported
the allegation to the police.
B. Who May Report: All other faculty, staff, and students who become aware of sex
discrimination or harassment are encouraged to report such issues, with the
consent of the alleged victim, to the Title IX Coordinator.
C. Who May Not Report: Licensed mental health counselors and medical
professionals working within the scope of their license, or designated advocates
authorized by the Title IX Coordinator, generally may not report incidents of
sexual harassment except with written consent or in instances of imminent danger
or when the victim is a minor or vulnerable adult.
VIII. CONFIDENTIALITY
Exhibit A - 11
Policy # 5.60
Page 12 of 32
The University must maintain as confidential any supportive measures provided to the
complainant or respondent, to the extent that maintaining such confidentiality would not
impair the University’s ability to provide the supportive measures.
The University must keep confidential the identity of any individual who has made a
report or complaint of sex discrimination, including any individual who has made a report
or filed a formal complaint of sexual harassment, any complainant, any individual who
has been reported to be the perpetrator of sex discrimination, any respondent, and any
witness, except as may be permitted by the federal Family Educational Rights and
Privacy Act, its regulations, or as required by Utah Government Records and
Management Act (GRAMA), the federal Health Information Portability and
Accountability Act (HIPAA) or other law, or to carry out the purposes of Title IX,
including the conduct of any investigation, hearing, or judicial proceeding arising under
Title IX.
The University will protect confidential communications to designated University

advocates authorized by the Title IX Coordinator, protected under the Utah Campus
Advocate Confidentiality Amendments (Utah Code § 53B-28-101 et seq.), where
disclosure is not required by applicable federal law, including Title IX, Title VII, or the
Clery Act, or consented in writing.
IX. TRAINING
The University shall train Title IX Coordinators, investigators, decision-makers, and any
person who facilitates an informal resolution process on the definition of sexual
harassment, the scope of the University’s education program or activity, how to conduct
an investigation and grievance process including live hearings, appeals, informal
resolution processes, and how to serve impartially, including by avoiding prejudgment of
the facts at issue, conflicts of interest, and bias.
A. Training materials must not rely on sex stereotypes and must promote impartial
investigations and adjudications of formal complaints of sexual harassment.
B. The University will train decision-makers how to determine issues of relevance of

questions and evidence, including when questions and evidence about the
complainant’s sexual predisposition or prior sexual behavior are not relevant, on
evidentiary standards, and on live hearing procedures.
Exhibit A - 12
Policy # 5.60
Page 13 of 32
C. The University also must ensure that investigators receive training on issues of
relevance to create an investigative report that fairly summarizes relevant
evidence.
D. The University will provide training to the Title IX Coordinator(s), hearing

officer(s), and other necessary parties on all technology to be used in Live
Hearings.
E. All materials used to train Title IX Coordinators, investigators, decision-makers,

and any person who facilitates an informal resolution process must be made
publicly available on the University’s website.
X. RECORDKEEPING
A. The Title IX Office must maintain the following records for a period of seven
years:
1. Each sexual harassment investigation including any determination

regarding responsibility and any audio or audiovisual recording or
transcript required by this policy, any disciplinary sanctions imposed on
the respondent, and any remedies provided to the complainant designed to
restore or preserve equal access to the University’s education program or
activity;
2. Any appeal and the result;
3. Any informal resolution and the result; and
4. All materials used to train Title IX Coordinators, investigators,

decision-makers, and any person who facilitates an informal resolution
process.
B. For each report to the Title IX Coordinator of sexual harassment in a University

education program or activity against a person in the United States, the Title IX
Office must create, and maintain for a period of seven years, records of any
actions, including any supportive measures, taken in response to a report or
formal complaint of sexual harassment. In each instance, the Title IX Office must
document the basis for its conclusion that its response was not deliberately
indifferent, and document that it has taken measures designed to restore or
Exhibit A - 13
Policy # 5.60
Page 14 of 32
preserve equal access to the University’s education program or activity. If the

University does not provide a complainant with supportive measures, then the
Title IX Office must document the reasons why such a response was not clearly
unreasonable in light of the known circumstances. The documentation of certain
bases or measures does not limit the University in the future from providing
additional explanations or detailing additional measures taken.
XI. PRELIMINARY REVIEW OF REPORTS AND FORMAL COMPLAINTS
A. Scope and Applicability of These Procedures: All reports and formal

complaints of sex discrimination, sexual harassment and retaliation, as defined in
this policy, are subject to the procedures set forth in this section.
B. Preliminary Review of Reports of Sexual Harassment:
General Response: Upon receiving a report of sexual harassment, the Title IX

Coordinator shall promptly contact the complainant to (1) discuss the availability
of supportive measures, (2) consider the complainant’s wishes with respect to
supportive measures, (3) inform the complainant of the availability of supportive
measures with or without the filing of a formal complaint, and (4) explain the
process for filing a formal complaint.
Emergency Removal: The University may remove a respondent from the

University’s education programs or activities on an emergency basis, provided
that the appropriate officials undertake an individualized safety and risk analysis,
determines that an immediate threat to the physical health or safety of any student,
employee, or other individual arising from the allegations of sexual harassment
justifies removal, and provides the respondent with notice and an opportunity to
challenge the decision immediately following the removal.
1. Non-student Employee Leave: A non-student employee respondent may

be placed on administrative leave in accordance.
The Title IX Coordinator must further assess the reported conduct for any Clery
obligations, including issuance of a timely warning, and report to campus or local
law enforcement when necessary.
C. Grievance Process General Principles:
Exhibit A - 14
Policy # 5.60
Page 15 of 32
1. Complainants, respondents, and witnesses shall be treated equitably and

with respect throughout the grievance proceedings.
a. The University will evaluate all relevant evidence—both

inculpatory and exculpatory—objectively and determine credibility
without respect to a person’s status as complainant, respondent, or
witness.
2. Deadlines and timeframes provided in this policy may extended for good
cause with written notice to the parties and the reasons for the extension.
Good cause may include considerations such as the absence of a party, a
party’s advisor, or witness; concurrent law enforcement activity; or the
need for language assistance or accommodation of disabilities.
a. Parties may submit a request for a temporary delay to the Title IX

coordinator. Any request for temporary delay or limited extension
should include a good cause statement and the reason(s) for the
request. If no good cause exists, Title IX Coordinator will deny the
requesting party’s request in writing.
3. Any person designated as a Title IX Coordinator, investigator, or decision

maker shall be free of conflict of interest or bias for or against
Complainants or Respondents generally or individually.
4. Respondents, complainants, and witnesses shall not knowingly make

materially false statements or knowingly submit materially false
information during the grievance process. However, a determination
regarding responsibility alone is not sufficient to conclude that any
individual proffered a material falsehood.
5. Complainants and respondents shall have supportive measures made

available and be given the opportunity to request modifications necessary
for physical and/or emotional safety.
a. Complainants, respondents, and other participants in the Title IX

process may request accommodations necessary under the
Americans with Disabilities Act (ADA) through the Title IX
Exhibit A - 15
Policy # 5.60
Page 16 of 32
Coordinator, who will refer the request to the appropriate ADA

coordinator and then implement approved accommodations.
D. Formal Complaint: A formal complaint is a document filed by a complainant or

signed by the Title IX Coordinator alleging sex discrimination, sexual harassment,
or retaliation. A formal complaint may be filed by a complainant who is
participating in or attempting to participate in an education program or activity of
the University at the time of filing the formal complaint.
1. A formal complaint shall be filed with the Title IX Coordinator in person,

by mail, or by electronic mail, by using the contact information posted for
the Title IX Coordinator in section VI above.
2. The formal complaint shall contain written notice of the allegations of sex
discrimination, sexual harassment, or retaliation, including a concise
statement describing the incident, when and where the misconduct
occurred, why the complainant believes it violates University policy, and a
proposed resolution. The complainant shall be instructed to provide and
preserve all corroborating or potentially relevant evidence in any format,
list potential witness names, and sign the statement. From this
information, the Title IX Coordinator shall prepare a Notice of
Investigation as defined in Section XII(B).
3. By filing a formal complaint, the complainant is giving consent for the

Title IX Coordinator, designated deputy coordinators, and/or investigators
to discuss the information provided with other persons who may have
relevant factual knowledge of the circumstances of the complaint, and is
authorizing the collection and examination of all records and other
documentation relevant to the complaint.
4. The Title IX Coordinator may independently initiate a formal complaint

and investigation if necessary to provide safe and nondiscriminatory
educational programs and activities, unless doing so would be clearly
unreasonable in light of the known circumstances, The Title IX
Coordinator may consider a variety of factors, including a pattern of
alleged misconduct by a particular respondent, in deciding whether to sign
a formal complaint. When the Title IX Coordinator signs a formal
complaint, the Title IX Coordinator is not a Complainant or otherwise a
Exhibit A - 16
Policy # 5.60
Page 17 of 32
party under this policy and must remain free of bias or conflict of interest
with respect to any party. In this situation, the complainant is treated as a
party, though their right to not participate is protected.
E. Consolidation of Formal Complaints: The University may consolidate formal

complaints against more than one respondent, or by more than one complainant
against one or more respondents, or by one party against the other party, where
the allegations of sexual harassment arise out of the same facts or circumstances.
F. Dismissal of the Formal Complaint: The University must investigate all

allegations in a formal complaint unless the conduct alleged in the formal
complaint:
● Would not constitute sexual harassment as defined in this policy

even if proved;
● Did not occur in the University’s education programs or activities;
or
● Did not occur against a person in the United States.
1. If the conduct falls within the criteria outlined above, the University must
dismiss the formal complaint with regard to that conduct for the purposes
of Title IX; such dismissal does not preclude investigation or action under
another provision of the University code of conduct or policy.
2. The University may dismiss the formal complaint or any allegations

therein, if at any time during the investigation or hearing:
a. A Complainant notifies the Title IX Coordinator in writing that the

Complainant wants to withdraw the formal complaint or any
allegations therein;
b. The Respondent is no longer enrolled or employed by the

University; or
c. Specific circumstances prevent the University from gathering

evidence sufficient to reach a determination as to the formal
complaint.
Exhibit A - 17
Policy # 5.60
Page 18 of 32
3. Upon a required or permitted dismissal of the formal complaint, the Title

IX Coordinator shall promptly send written notice of the dismissal and the
reason(s) therefor simultaneously to the parties.
4. Any party may appeal the dismissal of a formal complaint in accordance

with section XIX of this policy.
XII. INFORMAL RESOLUTION
The University may offer an informal resolution process only after a formal complaint is
filed. Informal resolution may include a limited inquiry into the facts, but typically does
not include an investigation. Informal resolution should be flexible enough to meet the
needs of each case, and may include mediating an agreement between the parties,
separating the parties, referring the parties to counseling programs, conducting targeted
preventive educational and training programs, or providing remedies for the individual
harmed by the offense.
Participation in the informal resolution process is voluntary; the University may not
require either party to engage in informal resolution as a condition of enrollment or
employment or enjoyment of any other right, waiver of the right to investigation and
adjudication of formal complaints of sexual harassment.
A. The University is not obligated to offer or facilitate informal resolutions. Because

each case is different, the Title IX Coordinator shall determine whether a formal
complaint of sexual harassment, discrimination, or retaliation is appropriate for
informal resolution.
B. At any time before reaching a determination regarding responsibility the Title IX

Office may facilitate an informal resolution process, such as mediation, that does
not involve a full investigation and adjudication, provided that the Title IX Office:
1. Provides to the parties a written notice disclosing: the allegations, the

requirements the informal resolution process including the circumstances
under which it precludes the parties from resuming a formal complaint
arising from the same allegations, provided, however, that at any time
prior to agreeing to a resolution, any party has the right to withdraw from
the informal resolution process and resume the grievance process with
respect to the formal complaint, and any consequences resulting from
Exhibit A - 18
Policy # 5.60
Page 19 of 32
participating in the informal resolution process, including the records that

will be maintained or could be shared;
2. Obtains the parties’ voluntary, written consent to the informal resolution

process; and
3. Does not offer or facilitate an informal resolution process to resolve

allegations that an employee sexually harassed a student.
4. The University endeavors to conclude informal resolution promptly and

shall keep a written record of all informal resolution efforts in accordance
with section IX of this policy.
C. After concluding informal resolution of a complaint, the Title IX Coordinator

shall notify the complainant and respondent of the resolution that was agreed
upon.
XIII. FORMAL INVESTIGATIONS
If a Complainant files a formal complaint or the Title IX Coordinator signs a formal

complaint, the University shall conduct a thorough, impartial investigation by
interviewing witnesses, collecting documentary evidence, and preparing a written report
of findings. The purpose of the investigation is to establish whether there is a reasonable
basis, based on a preponderance of the evidence, to conclude the Respondent violated this
policy. The University reserves the right to engage an outside investigator to conduct the
investigation. Investigations under this policy shall incorporate the following standards:
A. The burden of proof and the burden of gathering evidence sufficient to reach a
determination rests on the University and not on the parties.
1. The University shall 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’s 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 University obtains the
party’s voluntary, written consent to do so for a grievance process under
this policy.
Exhibit A - 19
Policy # 5.60
Page 20 of 32
2. The University shall presume the Respondent is not responsible for the
alleged conduct until a determination regarding responsibility is made at
the conclusion of the grievance process.
3. The University will not restrict the ability of either party to discuss the
allegations under investigation or to gather and present relevant evidence.
This section notwithstanding,
a. Retaliation is prohibited. Attempts to alter or prevent a witness’s or

party’s testimony are forms of prohibited retaliation.
b. Parties may be directed to cease communications with one another

(i.e., a “no contact order”).
c. Parties’ communications remain subject to state laws protecting

against defamation and tortious invasions of privacy, such as
intrusion upon seclusion, publication of private facts, and false
light claims.
4. The University shall provide an equal opportunity for the parties to present
witnesses, including fact and expert witnesses, and other inculpatory and
exculpatory evidence.
5. Investigators or others shall not question the complainant, or otherwise

seek evidence, regarding the Complainant’s sexual predisposition or prior
sexual conduct with anyone other than the respondent(s).
6. Parties may choose to be accompanied by an advisor of their choice, who

may be, but is not required to be, an attorney, to any related meeting or
proceeding. The advisor may not disrupt the meetings or other
proceedings or speak on behalf of the party. Generally, the advisor is
limited to listening and quietly conferring with the party. If an advisor is
disruptive even after warning, the investigator may exclude them from
meetings.
7. At any time before or during the investigation, the investigator may

recommend that the University provide support measures for the parties or
witnesses. Any individual’s intentional interference with support
Exhibit A - 20
Policy # 5.60
Page 21 of 32
measures may be considered retaliatory and a separate violation of this

policy.
8. If either party fails to participate in the investigation, the investigator(s)

may make findings without the response of that party, potentially leading
to an unfavorable outcome for that party, or the Title IX Coordinator may
dismiss the case according to section X(F) of this policy.
9. The University will provide to a party whose participation is expected or

invited, written notice of the date, time, location, participants, and purpose
of all hearings, investigative interviews, or other meetings, with sufficient
time for the party to prepare to participate.
10. The University will provide each parties with equal opportunity to inspect
and review any evidence obtained as part of the investigation that is
directly related to the allegations raised in the formal complaint, including
all inculpatory or exculpatory evidence, whether relied upon or not in
reaching findings, so that each party can meaningfully respond to the
evidence prior to the conclusion of the investigation.
The Title IX Coordinator shall choose the investigator(s), except in cases where
the Title IX Coordinator or others involved in the investigation have a conflict of
interest, in which case the University’s Office of General Counsel shall select
internal or external impartial investigator(s).
B. Upon initiating an investigation, the University shall provide the parties with a
copy of the formal complaint, a notice of investigation, and a copy of this policy.
A notice of investigation shall include statements informing the parties that the
Respondent is presumed not responsible for the alleged conduct and that a
determination of responsibility is made at the conclusion of the grievance process;
that the parties may have an advisor of their choice, who may be, but is not
required to be, an attorney, and who may inspect and review evidence; and inform
the parties of any provision in the University’s code of conduct that prohibits
knowingly making false statements or knowingly submitting false information
during a grievance process.
Exhibit A - 21
Policy # 5.60
Page 22 of 32
C. If, at any point during the investigation, the University determines a need to
investigate allegations not included in the formal complaint, the University must
provide notice of the additional allegations to the parties, if known.
D. Upon conclusion of the investigative fact-finding, the investigator(s) shall prepare

a draft report that summarizes the Complainant’s allegations and Respondent’s
responses, summarizes the relevant evidence and the material witnesses
supporting or opposing the allegation(s), and includes preliminary findings.
E. Before the report is finalized, investigators will give Complainant and Respondent
and their advisors equal opportunity to review any evidence obtained as part of
the investigation that is directly related to the allegations in the formal complaint,
including evidence upon which the University does not intend to rely in reaching
a determination of responsibility, whether inculpatory or exculpatory, in electronic
or hard copy format.
F. The parties may submit a written response or information to the investigator

within ten business days of the date of the notice of the opportunity to review the
draft report and evidence. This is the parties’ final opportunity to submit any
additional information or witnesses. In the absence of good cause, investigators
shall not consider information discoverable through the exercise of due diligence
that is not provided to the investigator(s) at this juncture.
1. Investigator(s) shall consider any written response, information, or

evidence provided by the parties.
G. The investigator(s) shall prepare a final investigation report that contains a

statement of the allegations, the positions/responses of the parties, a summary of
relevant evidence and material witnesses the investigator(s) relied on, and any
findings of fact.
1. A recommended decision of “unfounded” indicates that the investigator

believes either that there is insufficient evidence to conclude that the
event(s) occurred as alleged, or even if the event(s) occurred, it/they did
not constitute sexual harassment or retaliation.
Exhibit A - 22
Policy # 5.60
Page 23 of 32
2. A recommended decision of “inconclusive” means that the investigator

believes the evidence provided by both parties did not reach a
preponderance of evidence in favor of either party.
3. A recommended decision of “substantiated” means that the investigator

believes the events occurred as alleged by a preponderance of evidence in
favor of the complainant.
H. The Title IX Coordinator, designee, or an attorney assigned by the Office of the

General Counsel shall review each final investigation report or summary before it
is finalized to ensure compliance with this policy.
I. The final report shall be provided to the parties and their advisors, if any, in an
electronic or hard copy format, at least ten days prior to any hearing under this
policy, for their review and written response.
J. Nothing in this procedure shall be interpreted to alter the status of otherwise

at-will employees.
XIV. LIVE HEARINGS
Upon receipt of the Final Investigation Report, the Title IX Coordinator will have ten
business days to appoint a Hearing Officer or Hearing Panel.
Upon appointing a Hearing Officer or Hearing Panel (“hearing officer”), the Title IX
Coordinator will issue to the parties and the parties’ advisors, in either an electronic or
hard copy format, a Notice of Hearing containing dates, deadlines, and/or requirements
appropriate for the orderly administration of the live hearing as determined by the hearing
officer or panel assigned to the live hearing under this policy.
The Notice of Hearing will contain a statement informing the parties that the University
must, upon either party’s request, provide for a live hearing where the parties are located
in separate rooms with technology enabling the Hearing Officer and the parties to
simultaneously see and hear the party or witnesses answering questions.
XV. REQUIRED DISCLOSURES
As outlined in Section XII(I), the parties and the parties’ advisors received in either an
electronic or hardcopy format a copy of the Final Investigation Report and all evidence,
Exhibit A - 23
Policy # 5.60
Page 24 of 32
exculpatory or inculpatory—whether or not the evidence was relied upon to reach the
findings in the Final Investigation Report—related to the allegations in the Formal
Complaint.
A. Disclosure of expert testimony. A party shall disclose the identity of any person
who may be used at hearing to present expert opinion evidence to the University
and other parties no later than five business days prior to the date of the Live
Hearing.
1. Unless otherwise stipulated, this disclosure shall be accompanied by a

written report prepared and signed by the witness or party. The report shall
contain the subject matter on which the expert is expected to testify; the
substance of the facts and opinions to which the expert is expected to
testify; a summary of the grounds for each opinion; and the expert’s
qualifications of the witness.
2. A party seeking to present the testimony of an expert witness at the Live

Hearing shall certify that the individual providing the expert testimony is
qualified to offer the opinions.
3. The Hearing Officer may exclude expert testimony that is not relevant.
At least seven calendar days before the hearing date, the University, Complainant,
and Respondent must provide each other a list of witnesses and documents that
they will be presenting to the hearing officer.
B. Parties may be accompanied to the Live Hearing by the advisor, who may be, but
is not required to be, an attorney.
1. The University will not limit the choice or presence of a party’s advisor,
but the Hearing Officer may limit an advisor’s participation if the advisor
becomes unreasonably disruptive to the proceedings.
2. If an attorney appears on behalf of a party, notice served on the attorney is

considered notice to the party.
Exhibit A - 24
Policy # 5.60
Page 25 of 32
3. Advisors may participate in the Live Hearing through asking the other
party and any witnesses all relevant questions and follow-up questions,
including those challenging credibility.
4. Cross-examination at the live hearing must be conducted directly, orally,

and in real time by a party’s advisor and never by a party personally.
5. If a party does not have an advisor present at the live hearing, the
University must provide without fee or charge to that party, an advisor of
the University’s choice, who may be, but is not required to be, an attorney,
to conduct cross-examination on behalf of that party.
6. The University is not a party to the Live Hearing, but it shall be the
University, not the parties, that bears the burden of producing evidence
through the investigative report to the Hearing Officer.
7. The University must remain objective and impartial throughout the

grievance process, including impartially presenting the investigative report
to the Hearing Officer for determination.
8. The standard of proof for determining responsibility is preponderance of

the evidence.
XVI. HEARING OFFICER RESPONSIBILITIES
The Hearing Officer cannot be the same person(s) as the Title IX Coordinator or the
investigator(s).
The Hearing Officer shall regulate the course of the live hearing to obtain full disclosure
of relevant facts and to afford all parties reasonable opportunity to present their positions.
On the Hearing Officer’s or own motion or upon objection by a party’s advisor, the
Hearing officer:
A. May exclude evidence that is irrelevant or unduly repetitious.
B. Shall exclude irrelevant questions directed to a party or witness. Before a party or

witness answers a cross-examination or other question, the Hearing Officer must
Exhibit A - 25
Policy # 5.60
Page 26 of 32
first determine whether the question is relevant and explain any decision to
exclude a question as not relevant.
C. Shall exclude evidence privileged in the courts of Utah, unless the privilege at
issues is specifically waived by the parties.
D. Shall exclude questions or evidence about the Complainant(s)’ sexual

predisposition or prior sexual behavior as not relevant unless 1) questions or
evidence of the Complainant(s)’ prior sexual behavior are offered to prove that
someone other than Respondent(s) committed the conduct alleged by
Complainant(s), or 2) questions or evidence concern specific incidents of the
Complainant(s)’ prior sexual behavior with respect to Respondent(s) and are
offered to prove consent.
E. May receive documentary evidence in the form of a copy or excerpt if the copy or
excerpt contains all pertinent portions of the original document.
F. The Hearing Officer may not exclude evidence solely because it is hearsay.
G. The Hearing Officer shall afford the parties’ advisors the opportunity to conduct
cross examination.
1. If a party or witness does not submit to cross-examination at the Live

Hearing, the Hearing Officer must not rely on any statement of that party
or witness in reaching a determination regarding responsibility and cannot
draw an inference about the determination regarding responsibility based
solely on a party’s or witness’s absence for the Live Hearing or refusal to
answer cross-examination or other questions.
H. The University shall record the hearing and provide a copy or transcript of the
hearing to the parties for inspection and review.
I. The hearing shall be conducted with all parties physically present in the same
geographical location or, upon request by either party or the Hearing Officer, any
or all parties, witnesses, and other participants may appear at the Live Hearing
virtually, with technology enabling participants simultaneously to see and hear
each other.
Exhibit A - 26
Policy # 5.60
Page 27 of 32
1. Nothing in this section precludes the Hearing Officer from taking

appropriate measures necessary to preserve the integrity of the hearing.
2. After the close of the Live Hearing, the Hearing Officer or Hearing Panel
will issue a Written Determination regarding responsibility.
XVII. WRITTEN DETERMINATION
The Hearing Officer will provide the Written Determination to the Title IX Coordinator
within 20 calendar days after the Live Hearing concludes.
A. The written determination must include:
1. Identification of the allegations potentially constituting sexual harassment

as defined in this policy.
2. A description of the procedural steps taken from the receipt of the Formal
Complaint through the determination including any notifications to the
parties, interviews with the parties and witnesses, site visits, methods used
to gather other evidence, and hearings held.
3. Findings of fact supporting the determination.
4. Conclusions regarding the application of the University policy to the facts.
5. A statement of, and rationale for, the result as to each allegation, including
a determination regarding responsibility, and recommended disciplinary
sanctions for the University to impose on the Respondent, and a
recommendation of whether the University will provide remedies designed
to restore and preserve equal access to the University’s education program
or activity to the Complainant.
6. The University’s procedures and permissible bases for the Complainant

and Respondent to appeal.
B. The Hearing Officer shall provide the Written Determination to the Title IX
Coordinator, the Title IX Coordinator shall then provide the Written
Determination to the responsible University official, as outlined in the table
below, for a decision regarding Sanctions, per Section XVIII.
Exhibit A - 27
Policy # 5.60
Page 28 of 32
Respondent’s Affiliation with University Responsible University Administrator

Student Dean of Students or designee
Faculty member Director of Human Resources

(in consultation with the Provost or
designee)
Executive employee or direct report of a vice Vice president of the relevant department
president
Administration or staff member who is not an Director of Human Resources or designee
executive employee and does not report
directly to a vice president
Vice president or direct report of University University President

President
Contractor, vendor, or visitor Vice President of Finance
C. The Responsible University Administrator shall have 7 calendar days from the
date of receipt of the Written Determination to provide the Title IX Coordinator
with the Written Determination and a decision of the disciplinary sanctions the
University will impose on the Respondent, and a decision of whether the
University will provide remedies designed to restore and preserve equal access to
the University’s education program or activity to the Complainant.
D. Within 30 days of the Live Hearing, The Title IX Coordinator will provide the
Written Determination with the decision of sanctions and remedies to the parties
and their advisors simultaneously.
E. The determination regarding responsibility and sanctions becomes final either on

the date that the recipient provides the parties with the written determination of
the result of the appeal, if an appeal is filed, or if an appeal is not filed, the date on
which an appeal would no longer be considered timely.
F. Nothing in this procedure shall be interpreted to alter the status of otherwise

at-will employees.
XVIII. SANCTIONS AND REMEDIES
Exhibit A - 28
Policy # 5.60
Page 29 of 32
Upon receiving a determination of responsibility either in a Written Determination or as a

result of an informal resolution, the responsible University administrator shall promptly
determine the appropriate sanctions and remedies based on the information provided,
including offering remedies to the complainant and/or University community,
implementing changes in programs and activities, providing training, and imposing any
disciplinary sanctions. In consultation with the Title IX Coordinator and the Office of
General Counsel, (and with Human Resources when the respondent is an employee) the
responsible University administrator shall ensure any proposed sanctions and remedies
are appropriate to end the prohibited conduct, to prevent further violation of this policy,
and remedy the effects of any violation. In determining the appropriate sanction(s), the
responsible University administrator shall be guided by the following considerations:
● The severity, persistence, or pervasiveness of the misconduct;

● The nature of violence in the misconduct and/or use of weapons, drugs, or
alcohol (if applicable);
● The impact of the misconduct on the complainant;
● The impact or implications of the misconduct on the University
community;
● Prior misconduct by the respondent, including the respondent’s relevant
prior disciplinary history;
● Whether the respondent has accepted responsibility for the misconduct;
● The maintenance of a safe, nondiscriminatory, and respectful working and
learning environment; and
● Any other mitigating, aggravating, or compelling factors.
A. Respondents who are found to have violated this policy may be subject to the
following sanctions:
1. Faculty/Staff: Possible sanctions against faculty and non-faculty

employees for violations of this policy include verbal counseling, written
warning, probation, reassignment, transfer, demotion, reduction in pay,
suspension, termination of employment, and an order of no trespassing on
campus and/or in University programs, services, and activities.
2. Students: Possible sanctions against students for violations of this policy

include fines, restitution, interim suspension, suspension, suspension
Exhibit A - 29
Policy # 5.60
Page 30 of 32
withheld, warning, probation, expulsion, withholding diploma, revocation

of certificate or degree, discretionary sanction, organizational sanction,
and notation on the student’s transcript consistent with the Family
Educational Rights and Privacy Act.
3. Vendors/Contractors/Visitors: Possible sanctions against vendors,

contractors or visitors to campus who are neither students nor employees
of the University include banning the individuals from all or part(s) of the
University and/or ending business relationships with the vendors and
contractors.
B. Amnesty: Any student who makes a good faith report of sexual harassment or
sexual violence, as defined at Utah Code 53B-28-201, that was directed at them or
another person will not be sanctioned by the University for a violation related to
the use of drugs or alcohol that the University discovers because of the report.
C. The responsible University administrator shall send any proposed sanctions and
remedies—subject to a final determination on the alleged violations--in writing to
the complainant, respondent, Title IX Coordinator, and Hearing Officer. However,
the responsible University administrator, in consultation with the Title IX
Coordinator, may choose not to disclose to the complainant the sanctions, and
shall not disclose to the complainant the discipline imposed on a respondent
student, except under the following circumstances:
1. The discipline directly affects the other party, such as when the respondent
student is ordered to stay away from the other party, is transferred to
another job site, worksite, class, or is suspended or dismissed from the
University; or
2. The complainant alleged sexual harassment involving a crime of violence

or a non-forcible sex offense; or
3. The respondent student gives their written permission to disclose the

discipline.
D. The University complies with all applicable reporting requirements and reserves
the right to report findings of criminal misconduct to the police.
Exhibit A - 30
Policy # 5.60
Page 31 of 32
XIX. APPEALS
Any party may appeal a decision regarding responsibility or from the dismissal of any
portion of a formal complaint for any of the following reasons:
A. A procedural irregularity that affected the outcome of the hearing.
B. New evidence that was not reasonably available at the time of the decision or
dismissal.
C. The Title IX coordinator, the investigators, or the hearing officer had a conflict of
interest or bias for or against complainants or respondents generally or the
individual complainant or respondent that affected the outcome.
D. If the respondent has been determined responsible for sexual harassment, any
party may simultaneously appeal the decision regarding sanctions for any the
following reasons:
1. The decision-maker has a conflict of interest or bias for or against

complainants or respondents generally or the individual complaint or
respondent that affected the outcome.
2. The sanction is clearly unreasonable in light of the known circumstances.
E. The Title IX coordinator must receive written notice of a party’s intent to appeal
within 10 calendar days after receipt of the Written Determination.
F. Upon receiving an appeal, the Title IX coordinator must notify the other party
within five business days.
G. The Title IX coordinator must notify both parties of who will determine the
appeal and that person’s contact information within five business days of
receiving the appeal.
H. The person determining the appeal (“appeal officer”) is the cognizant vice
president or their designee. The appeal officer must be free of any bias or conflict
of interest with respect to any party.
Exhibit A - 31
Policy # 5.60
Page 32 of 32
I. The appeal officer must not be anyone involved in the grievance process before
the appeal.
J. The parties may submit a written statement to the appeal officer supporting or
opposing the decision of the hearing officer.
1. The appeal officer must receive any written statements within 10 calendar
days of the Title IX coordinator sending the notice to the parties.
K. The appeal officer may review all written statements, reports, evidence, and
recordings and make a written decision.
L. The appeal officer’s written report may affirm or modify the hearing officer’s
decision, remand the decision to the hearing officer, order a new investigation or
overturn the decision.
M. The appeal officer will simultaneously issue a report to both parties detailing the
decision and the rationale for the decision.
N. The appeal officer’s decision is final.
Exhibit A - 32

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Case 4:22-cv-00062-DN Document 6 Filed 08/31/22 PageID.

1 5. This Court has authority to award the requested declaratory relief

1 accommodate Complainant and make Complainant feel as comfortable as possible

1 and pronouns preferred by the person. Note, that while this

12  Illinois’ Senate adopted a 2019 resolution, IL S.R. 403,

1 Civil Rights of the United States Department of Education,

4  The United States House, Senate, and administrative agencies

11 require Professor Bugg to communicate views regarding human nature, social

21 investigation, conducted by Johnny MacLean, Caitlin Gerrity, Brian Fullerton, and

24 refusal to “address [Complainant] by their personal pronouns” was in violation of

1 he would be in violation, the policies were unconstitutional, in violation of his

1 to Defendant Johnson, SUU’s Title IX Coordinator, articulating disciplinary sanctions

12 c. If Professor Bugg refuses to make a good faith effort to use

1 related to gender pronouns, and submit the syllabus for approval

1 81. Exacerbating that lack of clarity, Defendant Swanson instructed the

4 Exhibit B: Additional Sanction Imposed on June 14, 2022

7 Exhibit D: SUU Policy 5.60

15 Sanctions Issued on May 3, 2022

I am implementing the following sanctions:

15 Additional Sanction Imposed on June 14, 2022

351 W University Blvd.

June 14, 2022

Dear and Richard Bugg,

I am writing in response to two appeals I received relating to case No. 20210032. My

In response to ’s appeal, I am adding an additional sanction to the three imposed

Cc: Dr. Brian Swanson, Department Chair

15 SUU Policy 5.27

SUBJECT: NON-DISCRIMINATION / ANTI-HARASSMENT

A. To educate and provide a clearer understanding of legal and policy

B. To prevent, at the earliest possible opportunity, conduct that is inconsistent with

C. To provide guidance in processing complaints alleging policy violations,

A. Discrimination. Intentionally dealing with a person, either preferentially or

B. Harassment. Intentional behavior directed at a person primarily because of his or

SUBJECT: NON-DISCRIMINATION / ANTI-HARASSMENT

C. Prohibited behavior or conduct includes the following:

1. That which is demeaning, ridiculing, derisive, or coercive, on a severe or

2. That resulting in a tangible employment action being taken against an

a. Severe behavior refers to that which is repugnant, that which is

b. Pervasive behavior refers to that which occurs repeatedly or in

d. A hostile environment includes, but is not limited to, one in which

SUBJECT: NON-DISCRIMINATION / ANTI-HARASSMENT

attend there, or is otherwise entitled or expected to be there for

D. Behavior or conduct constituting sexual harassment is also prohibited under this

1. Sexual harassment is defined as conduct of a sexual nature, physical or

a. Submission to such conduct is made either explicitly or implicitly a

b. Submission to or rejection of such conduct by an individual is used

2. Sexual harassment may also be found in conduct of a sexual nature that is

b. Intentional physical contact with a part of the body that is intimate

SUBJECT: NON-DISCRIMINATION / ANTI-HARASSMENT

E. If there is no apparent threat to, or reasonable apprehension for personal safety, a

1. In the case of a faculty member, a violation is considered to be highly

2. In the case of a classified or professional staff employee:

a. In probationary status, the alleged offender will be dismissed,

b. Not in probationary status, discipline will be guided by Policy