AAC-AR2: Title IX Sexual Harassment Grievance Procedure

  • The following procedure is designed to resolve sexual harassment and retaliation grievances by and against staff, students, parents, and third parties, as described in district policy, in a prompt and equitable manner. In accordance with Title IX of the Education Amendments Act of 1972, the district prohibits discrimination on the basis of sex, including sexual harassment, in any district education program or activity. The district shall respond when sexual harassment occurs in the district’s education program or activity against a person in the United States. District policy requires all staff to fully cooperate when asked to participate in a harassment or retaliation investigation. The procedure contained in this regulation supersedes the district’s policies regarding complaints about personnel and bullying.

    DEFINITIONS

    Actual knowledge means notice of sexual harassment is given to the Title IX Coordinator, an official with authority to institute corrective measures, or any elementary or secondary school employee. When the District has actual knowledge of alleged sexual harassment in a District education program or activity, Title IX requires the district to respond in a manner that is not clearly unreasonable in light of the known circumstances.

    Complainant is an individual who is alleged to be the victim of conduct that could constitute sex harassment.

    Document filed by a complainant is a document or electronic submission (such as by e-mail or through an online portal provided for this purpose by the district) that contains the complainant’s physical or digital signature, or otherwise indicates that the complainant is the person filing the formal complaint.

    Education program or activity includes locations, events, or circumstances over which the district exercises control over both the respondent and the context over which the sexual harassment occurred. This includes locations or events that occur on or off school property, and may include computer and internet networks, digital platforms, and computer hardware or software owned or operated by, or used in the operations of, the district.

    Exculpatory evidence means evidence tending to exonerate a respondent or helps establish their innocence of the conduct alleged.

    Formal complaint is a document filed by a complainant or signed by the Title IX Coordinator alleging sexual harassment against a respondent and requesting that the school investigate the allegation of sexual harassment.

    Inculpatory evidence means evidence that shows, or tends to show, a person's involvement in an act, or evidence that can establish guilt of the conduct alleged.

    Respondent is an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment.

    School property is defined in NDCC 15.1-19-10(6)(b) as all land within the perimeter of the school site and all school buildings, structures, facilities, and school vehicles, whether owned or leased by a school district, and the site of any school-sponsored event or activity.

    Sexual harassment is a form of harassment based on sex. It is defined as unwelcome sexual advances, requests for sexual favors, and/or other verbal, written, or physical conduct or communication of a sexual nature, that:

    • Constitutes quid pro quo harassment, meaning submission to such conduct or communication is made a term or condition, either explicitly or implicitly, of the basis for employment decisions or educational decisions or benefits for students (e.g., receiving a grade);
    • Is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the district’s education program or activity; or
    • Constitutes sexual assault, dating violence, domestic violence, or stalking as those offenses are defined in the Clery Act, 20 U.S.C. § 1092(f) and the Violence Against Women Act, 34 U.S.C. § 12291(a).

    Sexual harassment examples include, but are not limited to, the following:

    • Sexual or "dirty" jokes;
    • Sexual advances;
    • Pressure for sexual favors;
    • Unwelcome touching, such as patting, pinching, or constant brushing against another's body;
    • Displaying or distributing of sexually explicit drawings, pictures, and written materials;
    • Graffiti of a sexual nature;
    • Sexual gestures;
    • Touching oneself sexually or talking about one's sexual activity in front of others;
    • Spreading rumors about or rating other’s sexual activity or performance;
    • Remarks about an individual’s sexual orientation; and
    • Sexual violence, including rape, sexual battery, sexual abuse, and sexual coercion.

    Supportive Measures are individualized services reasonably available that are non-punitive or non-disciplinary in nature, and not unreasonably burdensome to the other party while designed to ensure equal educational access, protect safety, or deter sexual harassment. Examples of possible supportive measures include, but are not necessarily limited to, counseling, extensions of deadlines or course-related adjustments, modifications of work or class schedules, a safety plan, school escort services, mutual contact restrictions, changes in work locations, leaves of absence, increased security and monitoring of certain areas on school property, and other similar measures.

    RETALIATION PROHIBITED

    The district prohibits any person from intimidating, threatening, coercing, or discriminating against any individual, including complainants, respondents, and witnesses, for the purpose of interfering with any right or privilege secured by Title IX including but not limited to making a report or formal complaint of sexual harassment or participating (or refusing to participate) in a sexual harassment complaint investigation. This includes instances when a complaint is not substantiated. The consequences for violating this prohibition are delineated in administrative policy AAC-AP: Nondiscrimination & Anti-Harassment.

    REPORTS OF SEXUAL HARASSMENT

    Any person may report sexual harassment, whether or not the person reporting is the person alleged to be the victim of conduct that could constitute sexual harassment. A report may be filed in person, by mail, by telephone, by e-mail, or by any additional method provided by the district using the contact information for the Title IX Coordinator as set forth in policy AAC. A report may be made at any time, including during non-business hours, by using the telephone number or e-mail address, or by mail to the office address, listed for the Title IX Coordinator. A report should be filed as soon as possible after the alleged harassment or retaliation allegedly occurred. Delays in filing a report may cause difficulties in the investigation. Anonymous reports are permitted; however, the district’s ability to offer supportive measures to a complainant, or to consider whether to initiate a grievance process against the respondent, will be affected by whether the report of sexual harassment disclosed the identity of the complainant or respondent.

    With Whom Reports of Sexual Harassment May be Filed

    A report of sexual harassment may be filed with the Title IX Coordinator or with any district employee. District employees are required to report any discrimination or harassment to the Title IX Coordinator when they knew (e.g., received a report, directly observed it) or should have known it was occurring (e.g., overheard students talking about an incident, witnessed discriminatory or harassing conduct on school property or at a school activity). Failure by a district employee to report under this regulation may result in disciplinary action.

    Third-Party Assistance

    The Title IX Coordinator or other school official responsible for conducting or overseeing sexual harassment investigations is authorized to receive assistance from the district’s legal counsel throughout the process.

    Responding to Reports of Sexual Harassment

    After receiving a sexual harassment report or having actual knowledge of potentially harassing conduct, the Title IX Coordinator or designee shall promptly contact the complainant to discuss the availability of supportive measures, consider the complainant’s wishes with respect to supportive measures, inform the complainant of the availability of supportive measures with or without the filing of a formal complaint, and explain to the complainant the process for filing a formal complaint. If supportive measures are not provided to a complainant, the Title IX Coordinator or designee shall document why supportive measures were not provided and why the lack of supportive measures is not clearly unreasonable in light of the known circumstances. The Title IX Coordinator or designee shall also promptly contact the respondent, who must also be offered supportive measures.

    Supportive measures must be designed to preserve the complainant’s access to education without unreasonably burdening the respondent. Supportive measures must be coordinated by the Title IX Coordinator and kept confidential to the extent reasonably possible. Supportive measures should be equitably offered to both the complainant and the respondent and should be reasonably available before or after the filing of a formal complaint or where no formal complaint has been filed.

    Disciplinary sanctions or other actions that are not supportive measures shall not be taken against the respondent unless a formal complaint is filed and an investigation is conducted in accordance with the process set forth herein.

    EMERGENCY REMOVAL OF THE RESPONDENT STUDENT

    In the event the respondent is a student and poses an immediate threat to the physical health or safety of any student or other individual, the Title IX Coordinator may remove the respondent from the district’s education program or activity, or place the respondent on administrative leave on an emergency basis, with or without a grievance process pending. The decision whether to remove the respondent on an emergency basis may be made at any time during the grievance process, but must only be made after an individualized, fact-based analysis. An emergency removal decision may not be based on general assumptions about sex, or research that purports to profile characteristics of sex offense perpetrators, or statistical data about the frequency or infrequency of false or unfounded sexual misconduct allegations. Emergency removal decisions must comply with applicable state law regarding suspensions and applicable federal law and administrative policies regarding removal of students with disabilities.

    The Title IX Coordinator shall promptly provide notice of the emergency removal decision to the respondent explaining the reasons for the removal decision. The respondent shall have the opportunity to challenge the removal decision of the Title IX Coordinator to the building principal or other designated decision-maker, whose decision regarding removal shall be final.

    ADMINISTRATIVE LEAVE FOR THE RESPONDENT EMPLOYEE

    In the event the respondent is an employee (teacher, administrator, or ancillary staff), the Superintendent is authorized to place the respondent on administrative leave when an employee is under district and/or law enforcement investigation, and the Superintendent identifies a need to temporarily remove the employee from his/her duties and/or job placement to protect district property, school operations, students and/or other employees. If the respondent is the Superintendent or business manager, the Board President is authorized to place the Superintendent or business manager on administrative leave.

    The duration of administrative leave shall be until the investigation is complete and the Superintendent determines that the employee’s potential threat or disruption to district property, school operations, students and/or other employees has passed.

    Prior to placing an employee on administrative leave, the Superintendent may consider if a transfer or reassignment of the employee would be an appropriate alternative to administrative leave. A decision to transfer or reassign an employee shall not violate the terms of the employee’s contract with the district or negotiated agreement, if applicable.

    For certified or contract employees, administrative leave shall be with pay, and the employee shall not be required to take any applicable paid leave benefits as part of the administrative leave. For ancillary staff, administrative leave may be without pay, and the employee may be permitted to take paid leave if available under the applicable leave policies.

    FILING A FORMAL COMPLAINT

    A formal complaint regarding sexual harassment may be filed by the complainant with the Title IX Coordinator in person, by mail, by e-mail, or by any online submission system provided by the District A formal complaint may also be initiated and signed by the Title IX Coordinator. A formal complaint may not be filed anonymously by a complainant. At the time of filing a formal complaint, the complainant must be participating in or attempting to participate in an education program or activity of the district. The district must respect the complainant’s wishes with respect to whether the Title IX Coordinator initiates a formal complaint and investigation unless the Title IX Coordinator determines that signing a formal complaint to initiate an investigation over the wishes of the complainant is not clearly unreasonable in light of the known circumstances. The Title IX Coordinator is authorized to exercise discretion to consolidate formal complaints when allegations of sexual harassment arise out of the same facts or circumstances.

    WRITTEN NOTICE OF ALLEGATIONS

    Upon receipt or signing of a formal sexual harassment complaint, the Title IX Coordinator must provide written notice of the allegations to the complainant and to the respondent. The written notice must:

    1. Identify by name the known parties involved in the alleged misconduct, including the complainant and the respondent;
    2. Include known details of the misconduct that potentially constitutes sexual harassment alleged against the respondent, including the date(s), time(s), and location(s) of the alleged conduct;
    3. Advise the parties of the presumption of non-responsibility on the part of the respondent as to the allegations of sexual harassment until a determination of responsibility is made at the conclusion of the grievance process;
    4. Advise the parties of the right of each to an adult advisor of their choice, including an attorney, throughout the grievance process;
    5. Advise the parties of the prohibition against knowingly making a materially false statement or providing materially false information in connection with the allegations of sexual harassment set forth in the report or formal complaint and of any potential disciplinary actions that may result if false statements or false information are knowingly provided;
    6. Advise the parties of the informal resolution procedure, including the circumstances under which such procedure is available, and the right of the complainant to end the informal process at any time and begin the formal resolution procedure;
    7. Advise the parties of the district’s obligation to conduct a formal investigation;
    8. Advise the parties of their right to advance written notice of the date, time, location, participants, and purpose of all investigative interviews;
    9. Advise the parties of their right to review all evidence obtained as part of the investigation that is directly related to the allegations raised in the formal complaint and their right to submit a written response to the evidence prior to the conclusion of the investigation;
    10. Describe or list the range of remedies and disciplinary actions the district may impose following a determination of responsibility;
    11. Inform the parties of the standard of evidence applied by the district to all complaints of sexual harassment under Title IX;
    12. Describe the range of supportive measures available to both parties;
    13. Explain the appeal procedures; and
    14. Advise the parties not to discuss or disseminate the allegations in a manner that constitutes retaliation or unlawful tortious conduct.

    Written notice of allegations must be provided with sufficient time for the parties to prepare for an initial interview and so that both parties understand the scope of the investigation and can prepare to meaningfully participate by advancing the party’s own interests in the outcome of the matter. The Title IX Coordinator may use age-appropriate measures in choosing how to convey the information required to be included in the written notice. In the event allegations in the formal complaint change or additional potential violations are discovered, the Title IX Coordinator must promptly provide written notice of the changes or additional potential violations to the complainant and the respondent.

    INFORMAL & FORMAL RESOLUTION TIMEFRAMES

    The district is required to follow the formal resolution procedure when a formal complaint containing allegations of sexual harassment is filed. Before proceeding with the formal resolution process, the district may offer the informal resolution procedure to the complainant and the respondent when deemed appropriate and only when both parties voluntarily agree to attempt the information resolution procedure. The informal resolution procedure may not be offered to resolve allegations that an employee sexually harassed a student.

    The informal resolution procedure must be completed within no more than 30 days of the receipt or signing of a formal complaint by the Title IX Coordinator, unless the Title IX Coordinator documents good cause for a temporary or limited delay and communicates the cause for the delay to the complainant and the respondent.

    The formal resolution procedure, including any appeal process, must be completed within no more than 60 days of the receipt or signing of a formal complaint by the Title IX Coordinator or a complainant or a respondent terminating the informal resolution procedure, unless the Title IX Coordinator documents good cause for a temporary or limited delay and communicates the cause for the delay to the complainant and the respondent. 

    The district recognizes that conduct that constitutes sexual harassment may also constitute child abuse, sexual abuse, or other crimes resulting in law enforcement investigations. In such situations and when good cause exists, the Title IX resolution procedures may be temporarily delayed in order to coordinate or cooperate with a concurrent law enforcement investigation. The existence of a concurrent law enforcement investigation does not relieve the district of its obligation to respond to reports or complaints of sexual harassment as provided by Title IX and applicable regulations. 

    Prohibition on Meeting with the Respondent
    At no time during the informal or formal resolution process shall the complainant be required to meet in person, be confronted by, or speak directly with the respondent.

    INFORMAL RESOLUTION PROCEDURE

    This procedure may only be used when a formal complaint is filed containing allegations of sexual harassment, when the Title IX Coordinator deems it appropriate under the circumstances, and the complainant and respondent voluntarily consent in writing to participate in the informal resolution procedure. This procedure may not be used when the complainant is a student and the respondent is a district employee. Participation in the information resolution procedure may not be a condition of enrollment or employment, or enjoyment of any other right. The formal resolution procedure must be used whenever the informal procedure is not permitted or deemed appropriate.

    Prior to commencing the information resolution process, the Title IX Coordinator or other designated facilitator shall inform the parties of the informal resolution parameters, the potential consequences of participation in the process (e.g., no formal investigation undertaken, no admission of responsibility), and any confidentiality implications.

    Upon commencement of the informal resolution process, the Title IX Coordinator or other designated facilitator shall gather information necessary to understand the allegations set forth in the formal complaint and to facilitate the informal resolution process. Based on this information-gathering process, the Title IX Coordinator or other designated facilitator shall propose to the parties an informal resolution process, which may include, but is not limited to:

    1. Participation by the parties in mediation or other alternative dispute resolution procedure facilitated by the Title IX Coordinator, other designated facilitator, or third-party mutually agreed upon by the parties;
    2. Holding a meeting (or series of meetings) with the parties and their advisors (provided all parties consent to participation) to discuss a potential resolution;
    3. Development by Title IX Coordinator or other designated facilitator of written behavior expectations of the respondent to redirect conduct; or
    4. Arranging a documented meeting with the respondent that involves a discussion of the sex discrimination and sexual harassment policies and requirements for compliance.

    The informal resolution process may result in agreements made between the parties, facilitated by the Title IX Coordinator or other designated facilitator, that result in the provision or continuation of supportive measures, as well as disciplinary or punitive measures. These agreements may contain confidentiality requirements. Disciplinary or punitive measures may include, but are not limited to:

    1. Requiring the respondent to undergo training on harassment;
    2. Requiring the respondent to undergo counseling;
    3. Recommend alternative placement or transfer of the respondent to different class(es), building, or campus;
    4. Instituting protection mechanisms for the complainant (e.g., no-contact order, security escort, safety plan);
    5. Creation of behavioral adjustment plan for the respondent;
    6. In-school or out-of-school suspension for the respondent; or
    7. Expulsion of the respondent for a period not to exceed the remainder of the current school year provided the respondent and the respondent’s parent(s)/legal guardian(s) consent and waive any applicable due process rights in writing.

    Both the complainant and the respondent must agree to the informal resolution before it may be instituted. The Title IX Coordinator shall monitor the implementation and effectiveness of the informal resolution and initiate the formal resolution procedure if the alleged harassment persists.

    Both the complainant and the respondent have the right to terminate or withdraw from the informal resolution procedure and resume the formal resolution procedure at any time prior to agreeing to a resolution.

    FORMAL RESOLUTION PROCEDURE

    This procedure must be used whenever the informal resolution procedure is not used or is terminated before resolution. The Title IX Coordinator or other designated investigator shall conduct a fair and impartial investigation of the allegations of sexual harassment set forth in a formal complaint. If the Title IX Coordinator or other designated investigator is the respondent or has a conflict or is biased in such a manner that may prevent a fair and impartial investigation, the Superintendent shall designate another appropriate person to conduct the investigation. 

    The fact-gathering portion of the investigation must be carried out or overseen by the Title IX Coordinator or other designated investigator and may consist of interviews with the complainant, the respondent, and any others who may have witnessed or otherwise have knowledge of the circumstances giving rise to the allegations in the complaint and may involve gathering and review of other information relevant to the complaint. The Title IX Coordinator or other designated investigator will investigate formal complaints in a manner that:

    1. Keeps the burden of proof and burden of gathering evidence on the district while protecting every party’s right to consent to the use of the party’s own medical, psychological, and similar treatment records;
    2. Provides the parties equal opportunity to present facts and expert witnesses and other inculpatory and exculpatory evidence before any determination regarding responsibility is made;
    3. Does not restrict the parties from discussing the allegations or gathering evidence (e.g., gag orders) except as specifically provided herein or as required by applicable law;
    4. Gives the parties equal opportunity to select an advisor of the party’s choice (who may be, but does not need to be, an attorney);
    5. Prohibits the gathering of information protected by a legally recognized privilege (e.g., doctor-patient, attorney-client) without the appropriate party’s voluntary, written waiver;
    6. Requires written notice when a party’s participation is invited or expected for an interview or meeting; and
    7. Provides both parties an equal opportunity to review and respond to the evidence gathered during the investigation when such evidence is relevant to and directly related to the allegations set forth in the formal complaint. The parties must be provided at least 10 days to review and respond to the evidence gathered.

    The Title IX Coordinator or other designated investigator must recognize a presumption of non-responsibility on the part of the respondent until conclusion of the investigation. The investigation must be completed as soon as reasonably practical and in line with the deadlines for completion of the formal resolution procedure as set forth herein.

    INVESTIGATION REPORT

    After the investigation process is complete, the Title IX Coordinator or other designated investigator shall complete a written report summarizing the relevant evidence and provide a copy of the completed report to the complainant and the respondent.

    Within five (5) days of receipt of the investigation report, the parties may submit relevant written questions to the Title IX Coordinator or other designated investigator for the other parties and witnesses to answer before a determination regarding responsibility is reached. At no time will the complainant be required to answer questions or provide evidence regarding the complainant’s sexual behavior or predisposition unless offered to prove someone other than the respondent committed the alleged conduct.

    Upon receipt of written questions from a party, the Title IX Coordinator or other designated investigator will pass on appropriate and relevant questions to the party or witness for response. Written responses shall be promptly submitted to the Title IX Coordinator or other designated investigator, who will then provide the written responses to both parties. The parties may submit reasonable and relevant follow-up questions to the Title IX Coordinator for answer by the other party or a witness in the same manner as initial written questions.

    Within ten (10) days of receipt of the investigation report, the parties may submit a written response to the report to the Title IX Coordinator or other designated investigator. The deadline to submit a written response to the investigation report may not be delayed by the submission or pendency of written questions. Upon receipt of any written response to the report from the complainant and respondent, the Title IX Coordinator or other designated investigator shall provide a copy of the investigation report and written responses to the decision-maker.

    Standard of Evidence

    The district designates the preponderance of the evidence standard for use in all formal complaints of sexual harassment, including formal complaints against students and formal complaints against employees. To meet this standard, the decision-maker must determine that conduct constituting sexual harassment in violation of Title IX more likely than not occurred.

    Determination of Responsibility by Decision-Maker [1]

    Following provision of the investigation report to the complainant and respondent and receipt of any written responses to the report by the complainant and respondent, the Assistant Superintendent or other designated decision-maker shall reach a determination regarding responsibility by applying the preponderance of the evidence standard.

    In reaching a determination on responsibility, the Assistant Superintendent or other designated decision-maker must objectively evaluate all relevant evidence, including inculpatory and exculpatory evidence. In doing so, the Assistant Superintendent or other designated decision-maker may make credibility judgments based on, for example, factors of plausibility and consistency in party and witness statements. Corroborating evidence is not required to reach a determination of responsibility on the part of the respondent.

    If the Assistant Superintendent or other designated decision-maker determines the respondent engaged in sexual harassment in violation of Title IX, the Assistant Superintendent or other designated decision-maker must determine whether disciplinary or punitive sanctions against the respondent are warranted, and if so, what those sanctions should be. Disciplinary or punitive measures may include, but are not limited to:

    • Requiring the respondent to undergo training on harassment;
    • Requiring the respondent to undergo counseling;
    • Recommend alternative placement or transfer of the respondent to different class(es), building, or campus;
    • Instituting protection mechanisms for the complainant (e.g., no-contact order, security escort, safety plan);
    • Creation of behavioral adjustment plan for the respondent;
    • In-school or out-of-school suspension for the respondent; or
    • Recommendation of expulsion of the respondent in accordance with administrative policy FFK-AP: Suspension & Expulsion.

    In making a decision regarding disciplinary or punitive measures, the Assistant Superintendent or other designated decision-maker may consider the following criteria:

    • Ages of the parties involved;
    • Relationship between the parties involved;
    • Severity of the conduct;
    • How often the conduct occurred, if applicable, and
    • How the district resolved similar complaints, if any, in the past.

    Upon making a determination of responsibility, the Assistant Superintendent or other designated decision-maker must also determine any appropriate remedies to be offered to the complainant to restore or preserve the complainant’s equal access to education. Such remedies may include supportive measures and need not be non-disciplinary or non-punitive in nature and need not avoid burdening the respondent.

    NOTICE OF DETERMINATION OF RESPONSIBILITY

    The Assistant Superintendent or other designated decision-maker shall provide written notice of the determination of responsibility to the complainant and the respondent simultaneously. The notice of determination must identify:

    1. The allegations alleged to constitute sexual harassment,
    2. The procedural steps taken from the receipt of the formal complaint through the determination of responsibility, including notification to parties, interviews of parties and witnesses, site visits, and other methods used to gather evidence,
    3. Findings of fact supporting the determination,
    4. Conclusions regarding the application of the district’s code of conduct to the facts of the conduct allegedly constituting Title IX sexual harassment,
    5. A determination regarding responsibility for each allegation and the decision-maker’s rationale for the result,
    6. Any disciplinary sanctions the district will impose on the respondent and whether the district will provide remedies to the complainant; and
    7. Information regarding the appeals process and the district’s procedures and permissible bases for the complainant and the respondent to appeal.

    The notice of determination must not describe the individualized remedies to be provided to the complainant. The Title IX Coordinator shall communicate such remedies separately to the complainant to discuss what remedies are appropriately designed to preserve or restore the complainant’s equal access to education. The Title IX Coordinator shall create a monitoring plan to evaluate the effectiveness of the disciplinary sanctions, remedies and/or supportive measures identified in the determination of responsibility to help prevent recurrence.

    APPEAL PROCUEDURE [2]

    The complainant or the respondent may appeal the determination of responsibility, including any disciplinary sanction instituted as a result of the determination of responsibility. The complainant and the respondent may also appeal any dismissal, whether discretionary or mandatory, of a formal complaint or allegation contained in a formal complaint. An appeal must be based on the existence of one or more of the following:

    • Procedural irregularity that affected the outcome of the matter,
    • New evidence that was not reasonably available when the determination of responsibility or dismissal decision was made that could affect the outcome of the matter; or
    • The Title IX Coordinator, investigator, or decision-maker had a conflict of interest or bias that affected the outcome of the matter.

    An appeal must be submitted in writing to the Superintendent within 7 calendar days after receipt of the notice of determination or dismissal and must identify the base(s) on which the appeal is being filed. Upon receipt of an appeal, the Superintendent shall promptly provide notice of the appeal to both parties and inform them of their right to submit written statements supporting or challenging the outcome and the deadline by which such statements must be submitted.

    In considering the appeal, the Superintendent must review all relevant evidence submitted to the investigator during the investigation and any written statements filed by the complainant or respondent following initiation of appeal to determine if the determination of responsibility or dismissal decision was appropriate. The Superintendent shall provide written notice of the appeal decision and the rationale of that decision to the complainant and the respondent.  

    The determination of responsibility or dismissal decision becomes final after the time period to file an appeal has expired, or if a party does file an appeal, after notice of the appeal decision has been sent to the parties. Until the determination of responsibility is final, the district must refrain from acting on the determination of responsibility while maintaining the status quo through supportive measures designed to ensure equal access to education.

    The complainant need not file an appeal to challenge the selection of remedies resulting from a determination of responsibility. The Title IX Coordinator is responsible for effective implementation of remedies and the complainant may work with the Title IX Coordinator to select and effectively implement remedies designed to restore or preserve the complainant’s equal access to education.

    Nothing herein shall prevent the parties from seeking available judicial redress through a court of competent jurisdiction or through any applicable state or federal complaint procedures.

    DISCRETIONARY AND MANDATORY DISMISSALS

    The district may dismiss a formal complaint or allegations therein when:

    • A complainant requests the dismissal in writing to the Title IX Coordinator.
    • The respondent is no longer enrolled with or employed by the district; or
    • Specific circumstances prevent the district from gathering evidence sufficient to reach a determination regarding responsibility.

    The district must dismiss a formal complaint or allegations therein when:

    • The allegations set forth therein do not meet the definition of sexual harassment.
    • The alleged sexual harassment did not occur against a person in the United States; or
    • The alleged sexual harassment did not occur in a district education program or activity.

    The Title IX Coordinator must provide written notice of any dismissal decision to the complainant and the respondent. The dismissal notice must state the reasons for dismissal and explain the parties’ right to appeal the decision in accordance with the procedure set forth herein.

    If the allegations in a formal complaint do not meet the definition of sexual harassment, or did not occur in a district education program or activity against a person in the United States, the district must dismiss such allegations for purposes of Title IX but may still address the allegations in any manner the district deems appropriate under the district’s policies relating to code of conduct.

    TRAINING REQUIREMENTS

    The Title IX Coordinator, investigator, decision-makers, and persons who facilitate the informal resolution procedure, shall receive training. This training must include:

    1. The definition of sexual harassment contained in Title IX and associated regulations,
    2. How to identify conduct that may constitute sexual harassment,
    3. The scope of the district’s education program or activity so that the district may accurately identify situations that require a response under Title IX,
    4. How to conduct an investigation and grievance process including appeals and informal resolution processes, as applicable,
    5. How to make relevancy determinations, as applicable; and
    6. How to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, or bias.

    The district shall publish on the district website all current, up-to-date materials used to train Title IX personnel. If the district does not maintain a website, such materials shall be made available for public inspection upon request.

    RECORDS RETENTION

    The district shall maintain all records of each sexual harassment report or complaint, regardless of later dismissal or other resolution of the allegation(s), for no less than 7 years from the date of the record’s creation. This includes records relating to investigations, disciplinary sanctions, remedies, appeals, and informal resolutions. Such records include, but are not necessarily limited to, formal complaints, notes, notices, statements, reports, and audio or audiovisual recordings or transcripts, as well as training materials used to train Title IX personnel as required by Title IX.

    [1] The decision-maker must not be the same person as the Title IX Coordinator or other investigator.
    [2] The decision-maker on appeal must not be the Title IX Coordinator, the investigator, or the decision-maker on the determination of responsibility or dismissal decision.

    Adopted: 08/18/20

    Reviewed:

    Revised: