The University of Florida can remove, on an emergency basis, a Title IX Respondent entirely, or partially from its education program or employment activities, when an individualized safety and risk analysis has determined that, based on the allegations in a particular case, a Respondent represents an immediate threat to the physical health or safety of any member of the UF community.
An Emergency Removal is not tantamount to a determination of responsibility and is not a sanction. The university may remove a Respondent on an emergency basis regardless of whether a Formal Complaint has been filed or a formal investigation is underway.
Before engaging in an Emergency Removal, the University will consider the implementation of supportive measures that are less restrictive than Emergency Removal. These measures could include but are not limited to: housing changes; academic, work, or other schedule adjustments; or no-contact directives. If the supportive measures will not mitigate the health and safety risk, or if the least restrictive emergency action is removal from the campus, the Office for Accessibility and Gender Equity (OAGE) will begin the Emergency Removal process.
If UF removes a student on an emergency basis, the university will work with the student to minimize the impact of the Emergency Removal, when possible. Such mitigation steps could include alternative coursework delivery methods or other reasonable modifications.
EMERGENCY REMOVAL PROCESS
The risk analysis will follow the five-step process detailed below as required by Title IX for evaluating both the necessity of and the implementation of an Emergency Removal. The Title IX Coordinator conducts this risk analysis in conjunction with other appropriate UF offices and campus partners.
Step One: Initiate a prompt, individualized safety, and risk analysis.
- The analysis will be individualized and will not be based on generalized, hypothetical, or speculative beliefs or assumptions that a Respondent could pose a risk to someone’s physical health or safety.
- The analysis will focus upon the particular Respondent and will examine the specific circumstances “arising from the allegations of sexual harassment” posing an immediate threat to a person’s (not always the Complainant’s) physical health or safety.
- The analysis will reach a conclusion as to whether the Respondent presents (1) an “immediate threat” to (2) “the physical health or safety of any student or other individual” and whether that threat is (3) “arising from the allegations of sexual harassment.” All three of these elements must be present to justify an Emergency Removal.
- In assessing an Emergency Removal, UF will consider the anticipated timing to complete an investigation and hearing, as a removal may vary in its length and effect based upon the duration of the grievance process.
Step Two: Make the required findings of “immediate threat” “to the physical health or safety of any student or other individual” “arising from the allegations of sexual harassment.”
a. “Immediate threat”
- There must be an immediate threat that justifies and compels the Emergency Removal
- If the threat involves the Complainant or a third party, review the Complainant’s or third party’s subjective fear of a threat in relation to an objective reasonable person If the threat involves the Respondent, review available objective evidence of a credible, immediate threat of physical self-harm. This review can be in collaboration with appropriate campus partners or other offices as necessary.
- Review the Respondent’s propensity, opportunity, and ability to effectuate a stated or potential threat.
b. “To the physical health of safety of any student or other individual”
- The immediate threat must be to the “physical health or safety” of one or more individuals, who may be the Respondent (e.g., risk of physical self-harm), the Complainant, or any other individual (such as a third-party witness). The threat must be to a person’s physical health or safety. If the threat is simply to a person’s emotional health and well-being, the OAGE will initiate supportive measures only.
c. “Arising from the allegations of sexual harassment ”
- The threat must specifically arise from the allegations of sexual harassment
- A Respondent’s threat of physical self-harm after being accused of sexual harassment could justify an Emergency Removal.
Step Three: Evaluate the applicability of disability laws to the removal decision.
- A Respondent may not be subject to an Emergency Removal without full and appropriate consideration of applicable disability laws.
- If a Respondent identifies as having a disability, consult with Disability Resource Center (for students) or The Office of Accessibility and Gender Equity (for employees) to engage in the interactive process for disability accommodations as necessary in implementing the Emergency
Step Four: Consider the appropriateness of supportive measures in lieu of an emergency removal
Review whether supportive measures would be more appropriate and a less restrictive means to negate or sufficiently minimize the likelihood of harm to the physical health or safety of the individual(s). Before imposing a Respondent’s Emergency Removal, UF must ensure that its action is appropriate, that the threat to the health and safety of the relevant individual(s) cannot be alleviated by supportive measures alone, and that the Emergency Removal does not equate to or effectuate an improper bypassing of the prohibitions in §§ 106.44(a) and 106.45(b)(1)(i) against imposition of sanctions or other actions that are not supportive measures without first following the § 106.45 grievance process.
Step Five: Provide the Respondent with notice and an “immediate” opportunity to challenge the emergency removal
In all cases where UF imposes an Emergency Removal, the Respondent (regardless of status as either student or employee) will be issued a Notice of Removal letter.
Upon receiving the Notice of Removal letter, the Respondent may wish to contest the decision. If the Respondent wishes to challenge an Emergency Removal, the Respondent must within three days after receipt of the Notice of Removal submit an appeal of the Emergency Removal to the Office for Accessibility and Gender Equity .
The appeal should include the following information:
- the Respondent’s name, address, university email address and phone number;
- a full description of the Respondent’s concern; and
- a statement of the resolution requested (for example, that the Emergency Removal be modified or rescinded in its entirety).
Upon receipt of the appeal, the Office of Accessibility and Gender Equity will, as soon as practicable, provide the Respondent with notice acknowledging receipt of the appeal and will promptly initiate a Show Cause meeting to discuss the appeal; typically, a Show Cause meeting will be scheduled within one business day of the receipt of the Respondent’s appeal. This meeting is for the Respondent to show cause why the Emergency Removal should be rescinded or modified.
As noted above, a Respondent must request an Appeals Hearing with The Office of Accessibility and Gender Equity within three days of the Respondent’s receipt of the Notice of Removal. If no appeal is received within the three-day time period, objections to the Emergency Removal will be deemed waived and the Emergency Removal will be imposed.
The Appeals Hearing is not a hearing on the merits of the allegation(s), but rather is an administrative process intended to determine solely whether the Emergency Removal is appropriate.
An Appeals Hearing may be conducted in person, through videoconference, or by telephone.
At the Appeals Hearing, the Respondent may be accompanied by an Adviser of his/her/their choosing. The Adviser’s role at the Appeals Hearing is solely to provide advice to and consult with the Respondent; the Adviser shall not speak on the Respondent’s behalf or advocate for the Respondent. At the Appeals Hearing, the Respondent will be allowed to present their position regarding why they believe the Emergency Removal should not be implemented or should be modified.
The Title IX Coordinator or designee will issue a written decision following the meeting. When possible, depending on the timing of receipt of the appeal and the hearing, the written decision will be issued within three days of the issuance of the Emergency Removal. This decision will be to uphold, modify, or rescind the Emergency Removal.
The Title IX Coordinator’s decision is final. The terms of the initial Emergency Removal remain in effect while any appeal is pending and until a decision is issued.
VIOLATION OF EMERGENCY REMOVAL
Violation of the terms of an Emergency Removal under this policy will be grounds for separate discipline, which may include actions up to or including expulsion from school or termination of employment.