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3-7 a AG (a) - Title IX Sexual Harassment Grievance Process
3 - Chapter 3 - Personnel
3-7 a AG (a) Title IX Sexual Harassment Grievance Process
Revisions History: Adopted 08/04/2020
The process provided herein is designed for those who believe that they have been sexually harassed and wish to file a formal complaint. School officials shall follow this grievance process when responding to all formal complaints of sexual harassment.
The Superintendent is responsible for notifying students and their parents or legal guardians, employees, and applicants for employment of these guidelines and ensuring that each principal or site supervisor provides a copy of these guidelines to these persons.
The following additional definitions apply.
1. Investigator. The investigator is the school official responsible for investigating and responding to a formal complaint.
2. Decision-Maker. The decision-maker is the school official responsible for making a determination regarding responsibility in response to an investigation of sexual harassment triggered by a formal complaint.
3. Investigative Report. The investigative report is a written account of the findings of the investigation conducted in response to a formal complaint.4. Remedies. Remedies are individualized measures provided to a complainant designed to restore or preserve the complainant’s equal access to the education program and activities of the school system when a respondent is found responsible for sexual harassment.
Remedial measures available to a complainant following a determination of responsibility include counseling, mental health services referral, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, escort services, mutual or one-way restrictions on contact between the parties, changes in work locations, leaves of absence, increased security and monitoring, and other measures determined by school officials to be necessary to restore or preserve the complainant’s equal access to the education program and activities, regardless of whether such measures impose a burden on the respondent or are punitive or disciplinary in nature.
5. Disciplinary Sanctions. Disciplinary sanctions are consequences imposed on a respondent when the respondent is found responsible for sexual harassment.
B. FILING A FORMAL COMPLAINT TO INITIATE THE GRIEVANCE PROCESS
A formal complaint initiates the grievance process.
1. Individuals Who May File a Formal Complaint
b. The Title IX Coordinator. If the complainant does not wish to file a formal complaint and the matter has not been adequately resolved through the provision of supportive measures, the Title IX coordinator may initiate the grievance process by signing a formal complaint. In accordance with law, only the complainant and the Title IX coordinator may initiate the grievance process; no other individuals or school officials shall have authority to do so.
2. Time Period for Filing a Formal Complaint. A complaint should be filed as soon as possible after the conduct occurs, preferably within 30 days after the complainant becomes aware of the alleged sexual harassment, unless the conduct forming the basis for the complaint is ongoing. School officials will initiate the grievance process regardless of when the formal complaint is submitted, but delays in reporting may significantly impair the ability of school officials to investigate and respond to the allegations. In addition, in some circumstances it may be necessary for the Title IX coordinator to sign a formal complaint to initiate the grievance process in order to meet the school system’s legal obligations when the coordinator is aware of sexual harassment or alleged sexual harassment and the complainant has not yet filed a formal complaint. The Title IX coordinator can do so at any time.
3. Contents of the Formal Complaint. The complaint should (1) contain the name and address of the complainant and the student’s parent or guardian if the complainant is a minor student, (2) describe the alleged sexual harassment, (3) request an investigation of the matter, and (4) be signed by the complainant or otherwise indicate that the complainant is the person filing the complaint.
4. How to File the Formal Complaint. The complaint may be filed with the Title IX coordinator in person, by mail, or by email.
5. School System’s Response to Receipt of the Formal Complaint
a. Upon receipt of a formal complaint of sexual harassment, the Title IX coordinator shall engage in an interactive process with the complainant, consider the provision of supportive measures in light of the complainant’s wishes, provide supportive measures as appropriate, unless the Title IX coordinator has already done so in response to an initial report of the same allegation of sexual harassment.b. School officials reserve the right to 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. The Title IX coordinator shall advise the complainant if the formal complaint will be consolidated with others.
c. The formal complaint initiates the grievance process as described below.
C. GENERAL PRINCIPLES OF THE GRIEVANCE PROCESS FOR FORMAL COMPLAINTS
To ensure a complete, thorough, and fair grievance process for formal complaints of sexual harassment, school officials responsible for the investigation, adjudication, or appeal of a formal complaint of sexual harassment shall comply with the following requirements. Failure by any school official to comply with these requirements or other standards or procedures established in this policy is cause for disciplinary action.
1. Equitable Treatment
Complainants and respondents must be treated equitably throughout the grievance process. Relevant evidence collected in the investigation of a formal complaint must be evaluated objectively. No individual designated as a Title IX coordinator, investigator, decision-maker, or appeal decision-maker will have a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent. Credibility determinations will not be based on a person’s status as a complainant, respondent, or witness.
The complainant and respondent shall be provided an equal opportunity to have others present during any grievance proceeding, including the opportunity to be accompanied to any related meeting or proceeding by the advisor of their choice, who may be an attorney. If a party elects to be represented by an attorney, the party should notify school officials in advance so that an attorney for the school system may also be present. Any restrictions on advisor participation in any proceeding must be applied equally to both parties.
The complainant and respondent will both be provided a description of the range of supportive measures available to them.
2. Adequate Training
The Title IX coordinator, and all persons serving as Title IX investigators, decision-makers, or appeal decision-makers shall receive training on what constitutes sexual harassment, the scope of the school system’s education program and activities, how to conduct an investigation and grievance process, and how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias. Decision-makers will be trained on any technology to be used at a live hearing and on issues of relevance of questions and evidence.
Materials used to train coordinators, investigators, decision-makers, and appeal decision-makers will not rely on sex stereotypes and shall promote impartial investigations and adjudications of sexual harassment. Copyright restrictions will be taken into consideration in selecting training materials in order to comply with the school system’s legal obligation to make all training materials available on the school system’s website.
3. Presumption of Non-Responsibility/Innocence. At all times prior to a determination regarding responsibility by the decision-maker, there will be a presumption that the respondent is not responsible for the alleged conduct.
4. Burden of Proof and Production of Evidence. The burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility will at all times rest on the school system and not on the complainant or respondent. Formal rules of evidence shall not apply in the grievance process.
5. Written Notice of Meetings and Other Proceedings. Parties whose participation is invited or expected at any hearing, investigative interview, or other meeting will be provided written notice of the event’s date, time, location, participants, and purpose with sufficient time for the party to prepare to participate.
6. Confidentiality and Privacy. The school system will keep confidential the identity of any individual who has made a report or formal complaint of sexual harassment, any complainant, any respondent, and any witness, except as may be permitted or required by law or as necessary to carry out a Title IX proceeding. A violation of this provision may constitute retaliation. All meetings, hearings, or proceedings conducted pursuant to these guidelines will be private except to the extent that the parties may be accompanied by others.
7. No Disclosure of Privileged Information. No person acting on behalf of the school system shall require, allow, rely upon, or otherwise use questions or evidence that constitute, or seek disclosure of, information protected under a legally recognized privilege, unless the privilege is properly waived.
8. Timeliness of Process.
School officials shall make a good faith effort to conduct a fair, impartial grievance process in a timely manner designed to provide all parties with a prompt and equitable resolution. It is expected that in most cases, the grievance process will be concluded through the adjudication phase within 90 days after filing the formal complaint. The Board reserves the right to extend this time frame or any deadline contained in this policy for good cause with written notice to the parties of the delay and the reason for the delay. Good cause may include but is not limited to the absence of the parties or witnesses, concurrent law enforcement activity, or the need for language assistance or accommodation of disabilities. The Title IX coordinator or other responsible school official shall make reasonable efforts to keep the complainant and respondent apprised of progress being made during any period of delay.
D. THE GRIEVANCE PROCESS FOR FORMAL COMPLAINTS: PART I – INVESTIGATION
1. Step 1 – Notice of Allegations
a. Upon the filing of a formal complaint, the Title IX coordinator shall, within five (5) school business days, provide the known parties written notice of the allegations that includes:i. notice of the allegations of sexual harassment in sufficient detail to permit the parties to prepare a response before any initial interview, including:a) the identities of the parties involved, if known;b) the conduct allegedly constituting sexual harassment; andc) the date and location of the alleged incident, if known;ii. a copy of these guidelines to give notice of the grievance process, including the investigative and adjudication procedures, and any informal resolution process available;iii. notice that the parties may have an advisor of their choice and that either party may inspect and review any evidence;iv. notice that students and employees are prohibited from knowingly making false statements or knowingly submitting false information during the grievance process; andv. a statement that the respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility will be made at the conclusion of the grievance process.b. If during the investigation, the investigator decides to investigate allegations of sexual harassment not included in the initial notice provided above, notice of the additional allegations will be provided to the parties.
2. Step 2 – Review Grounds for Dismissal of the Formal Complaint
The Title IX coordinator shall review the allegations and determine whether the formal complaint must be dismissed without further investigation because the conduct alleged in the formal complaint, even if assumed true, would not constitute sexual harassment as defined in this policy, did not occur in the school system’s education program or activities, or did not occur against a person in the United States. The complaint will not be dismissed at this stage on the basis that the allegations are frivolous, without merit, or otherwise unfounded. Upon a dismissal, the Title IX coordinator must promptly send written notice of the dismissal and reason(s) therefor simultaneously to the parties.The parties have the right to appeal the decision as provided below.The Title IX coordinator shall refer the matter that was the subject of the dismissed complaint to the principal for further action as warranted.
3. Step 3 – Initiating the Investigation
If the complaint may proceed, the Title IX coordinator shall notify the appropriate investigator, who shall investigate the formal complaint.
a. In order to provide a neutral and objective investigation, the investigator shall not be a party to the complaint under investigation. However, the Title IX coordinator, in consultation with the Superintendent, may determine that conflict of interest, bias, or other individual circumstances warrant the assignment of a different investigator.b. The investigator may request assistance from the Title IX coordinator to conduct the investigation.c. The Title IX coordinator and the investigator shall jointly assess the need for supportive measures for either party, including assessing the effectiveness of any supportive measures currently being provided to the complainant, and, as necessary, will implement appropriate measures in a timely manner and monitor the effectiveness of the measures during the pendency of the investigation and prior to a final determination regarding responsibility. Supportive measures provided to the complainant or respondent will be maintained as confidential to the extent that maintaining such confidentiality does not impair the ability to provide the supportive measures.d. The investigator shall explain the process of the investigation to the complainant and respondent.
4. Step 4 – Conducting the InvestigationThe investigator is responsible for gathering evidence sufficient to reach a determination of whether the allegations in the formal complaint are true and whether the facts as determined by the investigator establish that sexual harassment as defined in this policy occurred. In so doing, the investigator shall impartially, promptly, and thoroughly investigate the complaint.
a. The investigator shall interview all individuals who may have relevant information, including (1) the complainant; (2) the respondent; (3) individuals identified as witnesses by the complainant or respondent; and (4) any other individuals who are thought possibly to have relevant information. Prior written notice shall be provided to a party whose participation is invited or expected for any investigative interview or meeting. The investigator shall provide the complainant and respondent an equal opportunity to present fact and expert witnesses and other evidence tending to prove or disprove the allegations.c. The investigator shall not restrict the ability of either party to gather and present relevant evidence or to discuss the allegations under investigation.d. The formal complaint and the investigation will be kept confidential to the extent possible. Information may be shared only with individuals who need the information in order to investigate and address the complaint appropriately and those with a legal right to access the information. Any requests by the complainant or respondent for further confidentiality will be evaluated within the context of the legal responsibilities of the school system.The formal complaint or any allegations therein may be dismissed if at any time during the investigation or decision-making process: (1) the complainant notifies the Title IX coordinator in writing that he or she would like to withdraw the formal complaint or any allegations therein; (2) the respondent is no longer enrolled or employed by the school system; or (3) specific circumstances prevent school officials from gathering evidence sufficient to reach a determination as to the formal complaint or allegations therein. Upon dismissal, the Title IX coordinator shall promptly send written notice of the dismissal and reason(s) therefor simultaneously to the parties. The parties have the right to appeal the decision. The matter that was the subject of the dismissed complaint may be considered for action in accordance with Board policy for violation of other expected standards for students or employees.
b. Before completing the final report, the investigator shall send to each party and the party’s advisor, if any, in hard copy or electronically, all the evidence collected which is directly related to the allegations raised in the formal complaint. The parties shall have 10 days to submit a written response for the investigator’s consideration before the investigator finalizes the investigative report.c. Following the parties’ opportunity to respond to the written evidence, the investigator shall finalize the written investigative report, including a recommendation on the question of responsibility and any recommended discipline sanction.e. The investigator shall provide to the decision-maker a copy of the investigative report, the relevant evidence, and the parties’ written responses to the report and initial sets of written questions.
E. THE GRIEVANCE PROCESS FOR FORMAL COMPLAINTS: PART II – ADJUDICATION
The Superintendent or designee shall serve as the decision-maker. In his or her role as decision-maker, the Superintendent, or designee, shall provide for the exchange of questions between the parties and a decision on responsibility in a manner consistent with state law and as provided below.
1. Step 1 – Student’s Opportunity to Request a Hearing.In cases where the respondent is a student, after the investigative report has been sent to the parties, both parties shall have three school business days to request a hearing. If either party requests a hearing, the long-term suspension hearing procedures shall be followed, except that (1) both parties shall have the right to participate in the hearing to the extent required by Title IX; (2) all the evidence sent to the parties will be made available at the hearing to give each party equal opportunity to refer to such evidence during the hearing; and (3) prior to the hearing, both parties shall have a limited opportunity to submit and respond to written questions and follow-up questions as provided below.2. Step 2 – Exchange of Questions and AnswersWhether or not there will be a hearing and regardless of whether the respondent is a student, after the parties are sent the investigative report, the Superintendent, or designee, shall provide the parties an opportunity to submit written, relevant questions that the party wants asked of any other party or witness, provide each party with the answers, and allow for additional, limited follow-up questions from each party in accordance with a reasonably prompt time frame established by the Superintendent, or designee. The parties shall submit their initial set of written questions at the time they submit their response to the investigative report.3. Step 3 – Decision on the Question Regarding ResponsibilityFollowing the exchange of questions and/or hearing as described above, the Superintendent, or designee, shall decide the question regarding responsibility, any disciplinary action, and any other measures the Superintendent deems appropriate. The Superintendent, or designee, shall consider all the relevant evidence objectively, including evidence in the investigative report, any testimony of witnesses at the hearing, if one was held, and any additional information provided by the parties through the exchange of questions and responses. Based on an objective evaluation of the evidence, the Superintendent, or designee, shall determine whether the preponderance of the evidence supports a finding that the respondent is responsible for sexual harassment in violation of Policy, and if so, what disciplinary sanction will be imposed. Remedies will be provided to the complainant if the respondent is found responsible.4. Step 4 – Written Determination Regarding ResponsibilityThe Superintendent, or designee, shall issue a written determination regarding responsibility simultaneously to both parties that includes:
a. identification of the allegations potentially constituting sexual harassment under Board policy;b. 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 parties and witnesses, site visits, methods used to gather other evidence, and hearings held;c. findings of fact supporting the determination;d. conclusions regarding the application of Policy or expected standards of employee behavior to the facts including whether, the respondent engaged in prohibited sexual harassment or other proscribed conduct;f. the procedures and permissible bases for the complainant and respondent to appeal; andg. any other notices that are required to accompany the decision under state law, such as when the Superintendent imposes a long-term suspension or recommends dismissal of an employee.
F. GRIEVANCE PROCESS FOR FORMAL COMPLAINTS: PART III – APPEAL
The parties shall have the right to appeal to the Board the determination regarding responsibility, the outcome of any disciplinary proceeding, and any dismissal of a formal complaint or any allegations therein. If a party appeals both the determination regarding responsibility and the outcome of a disciplinary proceeding, both matters will be heard by the Board at the same time. If both parties appeal, the appeals will be heard at the same time.
1. Deadline and Grounds for Appeal
Either party may appeal by submitting a request in writing to the Superintendent, or designee, within three (3) school business days of receiving the determination regarding responsibility, unless the party is entitled to a longer appeal period under state law or Board policy. Any longer appeal period applicable to one party shall apply equally to the other party. The grounds for appeal may be any of the following:
b. new evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made, that could affect the outcome of the matter;
2. Notice of the Appeal
In all appeals, the other party will be notified in writing when an appeal is filed and be provided a copy of the appeal.3. Appeal Procedures
a. A panel of the Board will hear the appeal.b. Appeal procedures will be implemented equally, modified as necessary to allow equal participation of the parties.d. The Board will review the record and the written argument of the parties submitted on appeal, determine whether additional information is needed from any party, and take any other steps that the Board determines to be appropriate in order to respond to the appeal.
4. Decision on Appeal
a. After considering the record and written statements of the parties, the Board will determine whether the grounds for the appeal have been substantiated.b. If substantiated, the Board will determine the appropriate response, which may include a remand for a new investigation, a new decision, or both, or such other action as the Board determines is needed to correct the error in the original proceedings.
5. When the Decision Becomes Final
If an appeal is timely filed, the determination regarding responsibility becomes final at the conclusion of the appeal process. However, if the decision on appeal is remand, the determination regarding responsibility does not become final until that process, including any appeal of the proceedings on remand, is concluded. If an appeal is not filed, the determination regarding responsibility becomes final after the three-day appeal period.
The Superintendent shall ensure that a copy of the final decision is provided to the Title IX coordinator and shall confer with the Title IX coordinator regarding any remedies to be provided to the complainant.
G. DISCIPLINARY CONSEQUENCES, REMEDIES, AND OTHER RESPONSES FOR SUBSTANTIATED SEXUAL HARASSMENT
1. Disciplinary Consequences for Students
Disciplinary consequences for substantiated sexual harassment will be assigned in accordance with the Code of Student Conduct. In addition, the conduct also may be reported to law enforcement, as appropriate.
Nothing in these guidelines prevent disciplinary action when the evidence does not establish sexual harassment but violates other policy and/or the Code of Student Conduct.2. Disciplinary Consequences for Employees
Substantiated sexual harassment by employees is subject to discipline up to and including dismissal. In addition, the conduct may also be reported to law enforcement, as appropriate. An employee recommended for suspension, demotion, or dismissal shall have all applicable rights accorded by Board policy and state law.
Nothing will prevent disciplinary action against an employee when the evidence does not establish sexual harassment, but the conduct violates other policy or expected standards of employee behavior.
3. Consequences for Other Perpetrators
Volunteers and visitors who engage in sexual harassment will be directed to leave school property and/or be reported to law enforcement, as appropriate.A third party under the supervision and control of the school system will be subject to termination of contracts/agreements, restricted from access to school property, and/or subject to other consequences, as appropriate. Nothing in this policy will be construed to confer on any third party a right to due process or other proceedings to which student and employee respondents are entitled under this policy unless such right exists under law.
At the conclusion of the grievance process, the Superintendent or other decision-maker shall confer with the Title IX coordinator to determine the remedies to be provided to the complainant when the respondent is found responsible for sexual harassment. The Title IX coordinator shall consult with the complainant in determining appropriate remedies. The Title IX coordinator shall be responsible for the effective implementation of the remedies to be provided to the complainant.
H. INFORMAL RESOLUTION
The Board provides informal resolution processes to resolve some formal complaints of sexual harassment without a full investigation and adjudication. Informal resolution is not available unless a formal complaint is filed and will not be used to resolve formal complaints alleging that an employee sexually harassed a student. Further, school officials shall never condition an individual’s enrollment, employment, or other rights on an agreement to waive the individual’s right to a formal investigation and adjudication of a formal complaint.
The Title IX coordinator, or other school official in consultation with the Title IX coordinator, may offer the parties an informal process to resolve a formal complaint at any time prior to reaching a final determination regarding responsibility. Before using an informal resolution process, school officials must ensure that both parties have given voluntary, informed, written consent to attempt informal resolution. Accordingly, the Title IX coordinator, investigator, or decision-maker shall:
1. provide the parties (including the parent of a minor) a written notice disclosing:
a. the allegations;b. the nature and requirements of the informal resolution process, including that if the parties agree to a resolution of the matter, the agreement precludes either party from resuming a formal complaint process arising from the same allegations; andc. any consequences that could result from participating in the informal resolution process, including whether records will be maintained and could be shared; and
2. obtain the parties’ voluntary, written consent to the informal resolution process.Any agreement reached by the parties through informal resolution may include measures that are designed to restore or preserve the parties’ equal access to the education program and activities, including measures that may be punitive or disciplinary in nature.Any informal process should be completed within a reasonable period of time, not to exceed 60 days from filing the complaint unless special circumstances necessitate more time. 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.
UNION COUNTY BOARD OF EDUCATION