- Union County Public Schools
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4-7 a - Sexual Harassment (Students)
4 - Chapter 4 - Students
4-7 a Sexual Harassment (Students)
Revisions History: 12/07/2021, 08/04/2020
Related Policies & Documents: 4-7 a AG (a)
The Board acknowledges the dignity and worth of all students and employees and strives to create a safe, orderly, caring, and inviting school environment to facilitate student learning and achievement. The school system does not discriminate on the basis of sex (including pregnancy, childbirth, sexual orientation, and gender identity) in its education programs or activities and is required by Title IX of the Education Amendments Act of 1972 and federal regulations to not discriminate in such a manner. This requirement extends to admission and employment. The Board will not tolerate sexual harassment in the education program and activities of the school system. The Board takes seriously all reports and formal complaints of sexual harassment.
Individuals who believe they have been subjected to sexual harassment prohibited by this policy, have witnessed, or have reliable information that another person has been subjected to sexual harassment prohibited by this policy should use the process provided below.
The Board also provides a grievance process that is designed to achieve prompt and equitable resolution of formal complaints of sexual harassment through a formal investigation and adjudication of the allegations in the complaint or through informal resolution processes. Affected individuals are encouraged to report sexual harassment in accordance with the process below before filing a formal complaint to initiate the grievance process.
A. Prohibited Behavior
The Board expressly prohibits sexual harassment by students, employees, Board members, volunteers, or visitors. “Visitors” includes, but is not limited to, parents, family members, community members, vendors, and contractors.
Sexual harassment prohibited under Title IX and by this policy is conduct on the basis of sex occurring in a school system education program or activity that satisfies one or more of the following:
1. an employee of the school system conditioning the provision of an aid, benefit, or service of the school system on an individual’s participation in 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 the school system’s education program or activities. This determination requires consideration of all the facts and circumstances, including, but not limited to, the ages and disability statuses of the harasser and the victim and the number of individuals involved and their authority;
3. sexual assault including rape, statutory rape, fondling, and incest;
Sexual assault. A sexual assault is any one of the following offenses:
a. Rape is the penetration of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.
b. Statutory rape is sexual intercourse with a child 15 years of age or younger and the perpetrator is at least 12 years old and more than four years older than the victim.
c. Fondling is the touching, underneath the clothing, of a person’s genitalia, anus, buttocks, or breasts without the consent of the victim for purposes of sexual gratification.
d. Incest is sexual intercourse between: (i) grandparent and grandchild; (ii) parent and child/stepchild/legally adopted child; (iii) siblings of half or full blood; or (iv) uncle or aunt and nephew or niece.
4. dating violence (violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim. The existence of such a relationship is determined based on a consideration of the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship.);
5. domestic violence (violence committed by: a current or former spouse or intimate partner of the victim; a person with whom the victim shares a child in common; a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner; a person who is the parent or child of the victim, including others acting in loco parentis to a minor child; a person who is the grandparent or grandchild of the victim; a person who is a current or former member of the victim’s household; a person who is of the opposite sex of, and lives or has lived with, the victim; or a person who is of the opposite sex of, and is or was in a dating relationship with, the victim.); or
6. stalking (engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear for personal safety or the safety of others or suffer substantial emotional distress).
Consent. Where lack of consent is an element of the offense, the following definition applies: Consent is informed, freely and affirmatively given through mutually understandable words or actions that indicate a willingness to participate in the sexual activity. Consent can be withdrawn at any time. There is no consent when there is force, expressed or implied, or when coercion, intimidation, threats, or duress is used. Whether a person has taken advantage of a position of influence over another person may be a factor in determining consent. Silence or absence of resistance does not imply consent. Consent to one type of sexual activity does not amount to consent to another type of activity. Prior consent or sexual relations with the same person do not imply future consent. The fact that both people are in a relationship does not, by itself, establish consent. A person cannot consent if they are unconscious, asleep, or impaired to the extent that they do not understand what is going on. Minors under the age of 16 are incapable of giving consent to sexual activity with a person more than four years older than the minor. Consent may never be given by mentally disabled persons if their disability was reasonably knowable to a sexual partner who is not mentally disabled. Consent between parties engaging in sexual activity does not prevent the school system from taking disciplinary action against the parties for violation of any other board policy.
Conduct that satisfies this standard is not sexual harassment for purposes of this policy if the conduct occurred (1) outside the United States or (2) under circumstances in which the school system did not have substantial control over both the harasser and the context in which the harassment occurred.
All references to “sexual harassment” in this policy mean sexual harassment that meets this definition. Examples of conduct on the basis of sex that would be considered sexual harassment if the conduct satisfies the criteria above include, but are not limited to: unwelcome sexual advances; requests for sexual favors; and other verbal or physical conduct of a sexual nature, such as deliberate, unwelcome touching that has sexual connotations or is of a sexual nature; suggestions or demands for sexual involvement accompanied by implied or overt promises of preferential treatment or threats; pressure for sexual activity; continued or repeated offensive sexual flirtations, advances, or propositions; continued or repeated verbal remarks about an individual’s body; sexually degrading words used toward an individual or to describe an individual; sexual assault; sexual violence; the display of sexually suggestive drawings, objects, pictures, or written materials; posting sexually suggestive pictures of a person without the person’s consent; and forwarding pornographic material depicting a classmate or other member of the school community. Acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex-stereotyping but not involving conduct of a sexual nature may also constitute sexual harassment.
Conduct that is determined not to meet the definition above may violate other Board policies or established standards of conduct and will be treated accordingly. For example, conduct that does not meet the definition of Title IX sexual harassment above may nevertheless violate other Board policies. Nothing in this policy is intended to limit discipline for violation of other Board policies when appropriate and consistent with law.
B. Definitions
The following additional definitions apply in this policy.
1. Report. A report is an oral or written notification that an individual is an alleged or suspected perpetrator or victim of sexual harassment. Making a report initiates the interactive process with the complainant described below. No disciplinary action will be taken against a respondent for sexual harassment based on a report alone.
2. Formal Complaint. A formal complaint is a document signed and filed with the Title IX coordinator by a complainant or signed by the Title IX coordinator alleging sexual harassment against a respondent and requesting that school officials investigate the allegation(s). Filing a formal complaint initiates the grievance process set below in the Title IX Sexual Harassment Grievance Process. At the time of filing a formal complaint, a complainant must be participating in or attempting to participate in the education program or activities of the school system.
3. Complainant. The complainant is the individual(s) who is alleged to be the victim of conduct that could constitute sexual harassment.
4. Respondent. The respondent is the individual(s) who has been reported to be the perpetrator of conduct that could constitute sexual harassment.
5. Grievance Process. Grievance process is the process for investigating and reaching a final determination of responsibility for a formal complaint of sexual harassment.
6. Title IX Coordinator. The Title IX coordinator is a school official who is designated to coordinate the school system’s response to sexual harassment and allegations of sexual harassment. Contact information for the Title IX coordinator is posted on the school system’s website.
7. Supportive Measures. Supportive measures are non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the complainant or 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 school system’s education program and activities without unreasonably burdening the other party, including measures designed to protect the safety of all parties or the school system’s educational environment, or deter sexual harassment.
Supportive measures available to the parties include, but are not limited to, counseling, mental health services referral, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, escort services, mutual restrictions on contact between the parties, changes in work locations, leaves of absence, increased security and monitoring, and other similar measures determined by school officials to be necessary to protect the safety or educational or employment activities of a party.
8. Days. Days are calendar days unless specified otherwise.
9. Student(s). “Student(s)” means the student and/or the student’s parent or legal guardian unless the context clearly indicates otherwise. When the complainant or respondent is a student, references to those terms also include the student’s parent or legal guardian unless the context clearly indicates otherwise.
10. Actual Knowledge. “Actual knowledge” means a school employee has notice of sexual harassment or allegations of sexual harassment.
C. Reporting Sexual Harassment
1. Student Reports
Any student who believes he or she is a victim of sexual harassment occurring in the school system’s education programs or activities is encouraged to report the matter to the student’s principal or to the Title IX coordinator. Reports may also be made to a teacher, counselor, assistant principal, teacher assistant, or any other school employee. Students may also report sexual harassment through the tip line, but school officials may be limited in their ability to respond if the report is anonymous and does not identify the complainant.
2. Mandatory Reporting by School Employees and Board Members
Any employee or member of the Board who has actual knowledge of sexual harassment or allegations of sexual harassment occurring in the education program or any activity of the school system must report that information immediately to the Superintendent or Title IX Coordinator.
Any of the following confers “actual knowledge” and must be reported immediately:
a. a report of sexual harassment from a student or other person;
b. the employee or Board member witnesses conduct that is or reasonably could be sexual harassment; or
c. the employee or Board member discovers evidence of sexual harassment, such as sexualized graffiti on school property, or otherwise has reliable information or reason to believe that a student, employee, or other individual may have been sexually harassed in violation of this policy, even if no one has reported the sexual harassment.
Employees who observe an incident of harassment are expected to intervene to stop the conduct in situations in which they have supervisory control over the perpetrator, and it is safe to do so. An employee with actual knowledge of possible sexual harassment in violation of this policy who does not promptly report the conduct and/or take proper action as required by this subsection, or who knowingly provides false information about the incident, will be subject to disciplinary action, up to and including dismissal.
Any doubt about whether particular conduct is possible sexual harassment must be resolved in favor of reporting the conduct.
3. Reporting by Others
All other members of the school community are strongly encouraged to report any act that may constitute an incident of sexual harassment in violation of this policy to the school principal, the Title IX coordinator, or the Superintendent.
4. Content of the Report
To the extent possible, reports should be sufficient to put school officials on notice of conduct that could constitute sexual harassment. Employees making mandatory reports should provide as much detail about the alleged sexual harassment as is known, unless such disclosure would violate law or standards of professional ethics. Reports, other than mandatory reports by employees, may be made anonymously, but anonymous reports may limit the school system’s ability to respond fully if the alleged victim is not identified.
5. Time Period for Making a Report
Reports by students and third parties can be made at any time. During non-business hours, reports can be made by using the contact information for the Title IX coordinator provided on the school system’s website. A report should be made as soon as possible after disclosure or discovery of the facts giving rise to the report. Delays in reporting may impair the ability of school officials to investigate and respond to any subsequent formal complaint.
School employees and Board members with actual knowledge of sexual harassment must report that information immediately.
D. School Officials’ Response to Actual Knowledge of Sexual Harassment
As required to meet the school system’s obligations under Title IX, school officials shall respond promptly and impartially to actual knowledge of alleged sexual harassment in a manner that is not deliberately indifferent. A response that is not deliberately indifferent is one that is not clearly unreasonable in light of the known circumstances and includes, at a minimum, the provision of supportive measures to the complainant, as described in this section.
Consistent with this duty, school officials shall respond to all reports of conduct that could constitute sexual harassment in accordance with this section. However, a report alleging conduct that is not sexual harassment as defined in this policy is not subject to this policy but may be referred to appropriate school officials as a possible violation of other Board policies.
1. Title IX Coordinator Initiates Interactive Process with Complainant
Upon receiving a report of alleged sexual harassment, the Title IX coordinator shall promptly contact the complainant and the complainant’s parent or guardian confidentially. This contact must occur within five (5) days, excluding weekends, absent extenuating circumstances. The Title IX coordinator shall also notify the principal of the report and, if an employee is the complainant or respondent, the Assistant Superintendent for Human Resources.
When contacting the complainant and parent or guardian, the Title IX coordinator shall do all of the following during the contact and shall document the same:
a. offer supportive measures;
b. consider the complainant’s wishes with respect to supportive measures;
c. explain that supportive measures are available with or without the filing of a formal complaint; and
d. explain the process for filing a formal complaint with the Title IX coordinator and the response required of the school system when a complaint is filed, including all the following:
i. that a formal complaint will initiate the grievance process described below;
ii. that a formal complaint may be filed with the Title IX coordinator in person, by mail, or by electronic mail;
iii. the major steps in the grievance process, including (1) a notice of the allegations that will be provided to the respondent that includes identification of the complainant and the allegations made; (2) an investigation of the allegations of sexual harassment in which both parties will have opportunity to have an advisor, present witnesses, review evidence, pose written questions of the other party, and receive a copy of the investigative report; (3) a decision on responsibility in which a decision-maker objectively evaluates all relevant evidence and determines whether the respondent engaged in the alleged sexual harassment in violation of this policy; and (4) the opportunity for either party to appeal the decision;
iv. the approximate time frame for concluding the grievance process;
v. that school officials will treat both parties equitably by (1) providing remedies to the complainant if the respondent is found responsible, and (2) by not imposing disciplinary sanctions on the respondent without first following the grievance process;
vi. the circumstances under which a formal complaint might be consolidated with other formal complaints or dismissed; and
vii. that the Title IX coordinator may have an obligation to initiate the grievance process in the absence of a formal complaint filed by the complainant and the time frame in which that decision will be made.
2. Title IX Coordinator Arranges Implementation of Supportive Measures
After considering the complainant’s wishes, the Title IX coordinator shall arrange the effective implementation of appropriate supportive measures unless, in the exercise of good judgment, the Title IX coordinator determines that supportive measures should not be provided. If supportive measures are not provided to the complainant, the Title IX coordinator shall document why supportive measures were not provided and why not providing supportive measures is not deliberately indifferent to known sexual harassment.
If the complainant is a student with a disability, the Title IX coordinator may need to consult with appropriate school personnel to determine whether adjustments to the student’s IEP or Section 504 plan are needed to implement any supportive measures to be provided and/or whether the student’s plan necessitates any adjustment to the proposed supportive measures.
3. Title IX Coordinator Determines Whether to Sign a Formal Complaint
If the complainant declined to file a formal complaint within the designated time period following the interactive process described above, the Title IX coordinator shall determine on a case-by-case basis whether to sign, i.e., file, a formal complaint to initiate the grievance process.
The Title IX coordinator should file a formal complaint (1) if the respondent is a school employee and the complainant is a student; and (2) in other cases where, in the exercise of good judgment and in consultation with the school attorney as appropriate, the coordinator determines that a grievance process is necessary to comply with the obligation not to be deliberately indifferent to known allegations of sexual harassment. Credibility or merit of the complaint shall not be considered in making the determination.
A decision by the Title IX coordinator to sign a formal complaint is not to be construed as supportive of the complainant or in opposition to the respondent or as an indication of whether the allegations are credible or have merit, or whether there is evidence sufficient to determine responsibility. Signing a formal complaint does not make the Title IX coordinator a complainant or party to the complaint nor relieve the Title IX coordinator from any responsibilities under this policy.
The Title IX coordinator shall document the decision of whether to sign a complaint and the reasons for that decision.
4. Presumption of Non-responsibility of Respondent and Bar on Disciplinary Sanctions without Due Process
The respondent identified in any report alleging sexual harassment under this policy will be presumed not responsible for the alleged conduct until the respondent’s responsibility is conclusively established through the grievance process.
No disciplinary sanction or other action that is not a supportive measure, including but not limited to (1) short or long-term suspension, expulsion, or transfer to an alternative school or program for student-respondents and (2) suspension, demotion, or dismissal for employee-respondents, may be imposed for a violation of this policy unless the respondent agrees to a specific disciplinary sanction or action in an informal resolution or has been determined to be responsible for the sexual harassment at the conclusion of a grievance process that complies with the process below. An employee-respondent, however, may be placed on administrative leave during the pendency of the grievance process if consistent with applicable state and federal laws.
Notwithstanding the limitation just described, respondents are subject to emergency removal as described in the next paragraph.
5. Emergency Removal of Respondent from School or Employment
Any respondent is subject to removal from the school system’s education program and activities, or any part of the program or activities, on an emergency basis if a school-based threat assessment team conducts an individualized safety and risk analysis and determines that removal is justified because the person poses an immediate health or safety threat to any person arising from the allegations of sexual harassment. A removal under this subsection includes a transfer of a student to an alternative education program. A schedule change, and/or removing a student from an extracurricular activity is also considered a removal under this subsection where such action would not otherwise constitute a supportive measure.
The emergency removal may take place regardless of whether a formal complaint has been filed. However, any such removal must be consistent with federal and state law, including any applicable law protecting the rights of individuals with disabilities. The respondent shall receive notice of the removal and an opportunity to challenge the decision in an informal hearing with the Superintendent or designee immediately following the removal.
An employee may be placed on administrative leave with or without pay during the pendency of the grievance process, if consistent with state law and in accordance with any applicable requirements of state law.
The Superintendent or designee shall document all emergency removal decisions under this subsection, including the immediate threat to health or safety that justified the removal.
6. Supportive Measures
Supportive measures will be available to both the complainant and respondent before or after the filing of a formal complaint or where no formal complaint has been filed. Supportive measures will remain confidential to the extent that maintaining such confidentiality does not impair the ability to provide the supportive measures. The Title IX coordinator is responsible for coordinating the effective implementation of supportive measures.
E. Grievance Process for Formal Complaints
The Superintendent shall develop administrative guidelines establishing a grievance process for formal complaints of sexual harassment under this policy. These administrative guidelines shall also provide an informal resolution process for complainants who seek an alternate means of resolution to their complaint.
As described above, the Title IX coordinator may also initiate the grievance process, as needed.
F. Retaliation Prohibited
Any act of retaliation or discrimination against any person for the purpose of interfering with any right or privilege secured by Title IX or because the person has made a report or filed a formal complaint or testified, assisted, or participated or refused to participate in any investigation, proceeding, or hearing involving sexual harassment is prohibited. Any person who is found to have engaged in retaliation will be subject to discipline, up to and including dismissal. Complaints alleging retaliation are to be treated as claims of sex discrimination.
Records
The Title IX coordinator shall create and maintain for a period of seven years records of all reports and formal complaints of sexual harassment. For each report or formal complaint, the coordinator shall document the following:
1. any actions, including any supportive measures, taken in response to the report or formal complaint;
2. that school officials have taken measures that are designed to restore or preserve equal access to the school system’s education program and activities;
3. why school officials believe their response to the report or complaint was not deliberately indifferent; and
4. if supportive measures were not provided to the complainant, why that was not clearly unreasonable in light of the known circumstances.
In conjunction with the Superintendent, the Title IX coordinator shall also maintain for seven years all materials used to train the Title IX coordinator, investigators, decision-makers, and any person who facilitates an informal resolution process. These materials will be made publicly available on the school system’s website.
LEGAL REF.: Title VII of the Civil Rights Act of the Civil Rights Act of 1964, 42 USC 2000e et seq; N.C.G.S. 126-16; 29 C.F.R. pt. 11604; Title IX of the Education Amendments of 1972, 20 U.S.C. 1681 et seq., 34 C.F.R. pt 106 N.C.G.S. 126-16;” N.C.G.S. § 115C-400, Grimm v. Gloucester County School Board, 972 F.3d 586 (4th Cir. 2020) ; “Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties”, U.S. Department of Education, Office for civil Rights (2001); Equal Employment Opportunity Commission’s “Final Amendment Guidelines on Discrimination Because of Sex”,; 29 C.F.R. pt. 1604; Title IX of the Education Amendments of 1972, 20 U.S.C. 1681 et seq., 34 C.F.R. pt. 106 N.C.G.S. 126-16:”; N.C.G.S. § 115C-400, “Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties”, U.S. Department of Education, Office for Civil Rights (2001) Dear Colleague Letter, U.S. Department of Education, Office for Civil Rights (April 4, 2011). Enforcement of Title IX of the Education Amendments of 1972 with Respect to Discrimination Based on Sexual Orientation and Gender Identity in Light of Bostock v. Clayton County, U.S. Department of Education, Office for Civil Rights (2021)
CROSS REF.: Board Policy 3-2a, Employee Code of Ethics and Standards of Conduct; Board Policy 3-6, Staff-Student Relations; Board Policy 3-7a, Sexual Harassment (Employees); Board Policy 3-7b, Racism, Discrimination, Harassment, and Bullying Complaint Procedure for Employees; Board Policy 3-10, Grievance Procedure for Employees Board Policy 4-3, Student Discipline; Board Policy 4-3, Code of Student Conduct, Administrative Guidelines; Board Policy 4-7b, Racism, Discrimination, Harassment, and Bullying Complaint Procedure for Students; Board Policy 1-18, Grievances, Complaints, and Appeals
UNION COUNTY BOARD OF EDUCATION
APPROVED: 8/4/20
REVISED: 12/7/21
Policy References
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