FHAB – Safe Schools: Sexual Harassment
Safe Schools
Sexual Harassment
Board Policy—
This policy addresses sex discrimination in the form of sexual harassment by students. Policy DKB addresses sex discrimination in the form of sexual harassment by employees and against employees as to their employment. Other forms of sex discrimination are addressed in Policy FA and Policy DAA. It is a violation of this policy and of Policy FHA for any student to sexually harass any other student or employee.
The District encourages all victims of sexual harassment and persons with knowledge of sexual harassment to immediately report that to the Title IX Coordinator or an administrator. Employees with knowledge of sexual harassment or possible sexual harassment are required to report that information to their supervisor and/or the Title IX Coordinator. (Failure to make such reports may result in disciplinary action according to District policy.) All complainants have the right to be free from retaliation of any kind.
No Expansion or Reduction of Other Legal Rights—
Nothing in this policy shall be construed to give any right, claim or action beyond the specific process provided in this policy. Nothing in this policy restricts rights which may be available under other District policies or under applicable laws or regulations.
Prohibition of False Statements—
Students and employees are prohibited from knowingly making false statements or knowingly submitting false information in connection with allegations of sexual harassment or a sexual harassment investigation or a sexual harassment grievance procedure. Any student or employee doing so is subject to disciplinary action.
Definitions—
- “Actual knowledge” means notice of sexual harassment or allegations of sexual harassment to any employee of the District.
- “Complainant” means an individual who is alleged to be the victim of conduct that could constitute sexual harassment.
- “Formal complaint” means a document filed by a complainant or signed by the Title IX Coordinator alleging sexual harassment against a respondent and requesting that the District investigate the allegation of sexual harassment. (The complainant must be participating or attempting to participate in a District program or activity at the time of filing.) Although the Title IX Coordinator may sign a formal complaint, the Title IX Coordinator does not thereby become the complainant or a party to the grievance proceeding.
- A “program or activity” of the District includes all locations, events, or circumstances over which the District exercised substantial control over both the respondent and the context in which the sexual harassment occurs
- “Respondent” means an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment.
- “Sexual Harassment” means conduct on the basis of sex that satisfies one or more of the following:
- An employee of the District conditioning the provision of an aid, benefit, or service of the District on an individual’s participation in unwelcome sexual conduct; or
- Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to a program or activity of the District; or
- “Sexual assault” as defined in 20 U.S.C. § 1092(f)(6)(A)(v), “dating violence” as defined in 34 U.S.C. § 12291(a)(10), “domestic violence” as defined in 34 U.S.C. § 12291(a)(8), or “stalking” as defined in 34 U.S.C. § 12291(a)(30).
“Sexual harassment” for purposes of this policy does not include all improper conduct based on sex. Conduct which is not sexual harassment may violate other District policies and be subject to disciplinary action, including under Policy DAI, DHA, DKBA, DLA, FA, FGAD, and FHA, among others.
- “Supportive measures” means 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 any District program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties or the District’s educational environment, or deter sexual harassment. Supportive measures may include counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, campus escort services, mutual restrictions on contact between the parties, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of the campus, and other similar measures.
Title IX Coordinator—
Name___________________________ Title/Position_______________________
Mailing Address__________________________________________________
Office Email _____________________ Telephone_____________________
Reports about any form of sex discrimination (including sexual harassment) may be made to the Title IX Coordinator by any person (whether or not the discrimination was directed at that person) using any of the contact methods listed above or by any other means and at any time (including during non-business hours).
District Response to Sexual Harassment—
As directed and coordinated by the Title IX Coordinator, the District shall, after receiving “actual knowledge” of “sexual harassment” in a District “program or activity” (as each of those terms are defined in this policy, respond promptly and reasonably to fulfill its obligations under Title IX. The District shall treat the complainant and respondent equitably and may not impose disciplinary actions or sanctions on a respondent before a determination of responsibility is made through the grievance procedure set out below. The response shall include prompt contact by the Title IX Coordinator with the complainant to:
- Discuss the availability of supportive measures;
- Consider the complainant’s wishes with respect to supportive measures;
- Inform the complainant that supportive measures are available with or without filing a formal complaint; and
- Explain the process for filing a formal complaint.
Regardless of whether a formal complaint is filed, the District shall respond appropriately, including implementing appropriate supportive measures as determined by the Title IX Coordinator.
In response to a formal complaint, the District shall follow the grievance procedure set out below. In appropriate circumstances, the District’s response to actual knowledge of sexual harassment may include the Title IX Coordinator signing a formal complaint to initiate the grievance procedure even when the complainant does not wish to do so.
The District may remove a respondent from a District program or activity on an emergency basis if following an individualized safety and risk analysis the District determines that an immediate threat to the physical health or safety of any student or other individual arising from the allegations of sexual harassment justifies removal and provides the respondent with notice and an opportunity to challenge the decision immediately following the removal. (However, such actions are subject to restrictions relating to change in placement under IDEA and restrictions under Section 504.)
The District may place a non-student employee respondent on administrative leave during the pendency of a grievance proceeding following a formal complaint, consistent with the District policy relating to leave relating to possible employment action.
Sexual Harassment Grievance Procedure—
The sexual harassment grievance procedure is initiated by the filing of a formal complaint with the Title IX Coordinator. The parties to the procedure are the complainant and the respondent. The complaint may be filed in person, by mail, or by email. A formal complaint can be in the form of a document or electronic submission and must either contain the physical or electronic signature of the complainant or the Title IX Coordinator or otherwise indicate that the complainant is the person filing the formal complaint.
Generally Applicable Requirements
The following standards and requirements apply generally throughout the grievance and appeal process:
- The respondent is presumed to be not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process.
- The District is to shoulder the burden of gathering evidence sufficient to reach a determination regarding responsibility and is not to place that burden on the parties.
- Legal evidentiary privileges are to be respected: The District will not require, allow, rely on, seek disclosure of, or otherwise use information protected under a legally recognized privilege unless the person holding the privilege has waived it.
- The parties will be given equal opportunity to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence.
- The District will not restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence within the procedural framework.
- The parties will have the same opportunities 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, but is not required to be, an attorney, and not limit the choice or presence of advisor for either the complainant or respondent in any meeting or grievance proceeding.
- For any investigative interviews or other meetings at which a party’s participation is expected or invited, the party will be given written notice of the date, time, location, participants, and purpose of the interview or meeting at a time sufficiently in advance to enable the party to prepare to participate.
- The time frames provided in this policy are intended to provide reasonably prompt resolution of complaints. However, the District may, for good cause and with written notice to the complainant and respondent explaining the reasons, temporarily delay the grievance process or extend a time frame for a limited time. Good cause may include (but is not limited to) considerations such as the absence of a party, a party’s advisor, or a witness, concurrent law enforcement activity, or the need for language assistance or accommodation of disabilities.
Supportive Measures During the Grievance Process
During the pendency of the grievance process, either party may request or the Title IX Coordinator may offer supportive measures as defined above, and such measures shall be provided as the Title IX Coordinator determines is appropriate.
Potential Disciplinary Sanctions for Responsible Respondents
A respondent who is found responsible following the conclusion of the grievance procedure may be subject to disciplinary action in the form of remedies that are in the nature of supportive measures for the complainant but which impose a burden on the respondent and are punitive in nature. A responsible respondent may be sanctioned by the loss of participation privileges in a District activity, including extracurricular activities. A responsible respondent may also be subject to any of the disciplinary sanctions set out in Policy FHA. The same sanctions may be imposed on a respondent who admits to being responsible for sexual harassment without challenging the charge through the formal grievance process.
Consolidation of Complaints
Where the allegations of sexual harassment arise out of the same facts or circumstances, the Title IX Coordinator may consolidate formal complaints made against more than one respondent, or made by more than one complainant against one or more respondents, or made by one party against another party. When complaints are consolidated, singular references in this policy (for example, “complainant”) also include the plural as is applicable.
Summary Dismissal of Complaint
After receiving the formal complaint, the Title IX Coordinator shall review the allegations in the complaint and make a determination whether, accepting the allegations as true, any of the following circumstances are present:
- The conduct alleged does not constitute sexual harassment as defined in this policy.
- The conduct alleged did not occur in a District program or activity.
- The conduct alleged did not occur against a person in the United States.
If any of these circumstances are present, the Title IX Coordinator shall dismiss the complaint for purposes of sexual harassment and this policy and shall promptly send simultaneous written notice of the dismissal and the reason(s) for dismissal to the parties. If the alleged conduct constitutes misconduct under other District policies regulating student or employee conduct, the Title IX Coordinator shall refer the complaint to the appropriate administrator for consideration for investigation and possible disciplinary action.
Permissive Dismissal of Complaint
At any time during the investigation of a formal complaint or the determination process, the Title IX Coordinator may dismiss a complaint or particular allegations in the complaint if:
- The complainant gives written notice to the Title IX Coordinator that the complainant wants to withdraw the formal complaint or particular allegations in the complaint;
- The respondent is a student and is no longer enrolled in the District or is an employee and is no longer employed by the District; or
- Specific circumstances prevent the District from gathering evidence sufficient to reach a determination as to the complaint or the allegations in the complaint.
If the Title IX Coordinator determines to dismiss the complaint on any of these grounds, then the coordinator shall promptly send simultaneous written notice of the dismissal and the reason(s) for dismissal to the parties.
Appointment of Investigator and Decision Maker
Upon receipt of a formal complaint, the Title IX Coordinator shall either determine that the Title IX Coordinator will investigate the complaint or shall appoint a qualified and trained District employee to investigate the complaint.
The Title IX Coordinator shall also appoint one, three, or five qualified and trained District employees to render the decision on the complaint as provided below. Neither the Title IX Coordinator nor any investigator on a complaint may serve as a decision maker.
Written Notice of Complaint
Within 7 days of receipt of a formal complaint, the Title IX Coordinator shall provide to all known parties a written notice which includes:
- Notice of the grievance procedures, including the availability of voluntary mediation as provided in this policy;
- Notice of the allegations potentially constituting sexual harassment. This notice shall include, as known at the time of the notice, the identities of the parties involved, a description of the conduct allegedly constituting sexual harassment, and the date(s) and location(s) of the alleged incident(s). This information must be provided with sufficient time for a party to prepare a response before an initial interview;
- The statement that the respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the grievance process;
- Notice that each party may have the assistance of an advisor of their choice (who may be an attorney but is not required to be an attorney);
- Notice that each party may inspect and review evidence;
- Notice that under this policy parties are prohibited from knowingly making false statements or knowingly submitting false information during the grievance process.
If during the course of the investigation the District decides to investigate allegations (about the complainant or the respondent) which are not included in the initial written notice, then the District will provide notice of the additional allegations to all known parties.
Investigation, Initial Response to Evidence, and Investigative Report
The investigation will be completed as soon as reasonably possible, and generally not more than 30 days after the investigator is assigned.
The investigation should be conducted so as to obtain the evidence necessary to make a determination regarding responsibility. Typically, this would include interviewing and/or obtaining written or recorded statements from the complainant and the respondent as well as any witnesses to the alleged conduct. It would also include gathering relevant physical and documentary evidence, including but not limited to video or audio recordings, notes, email, text messages, and social media. However, the District may not obtain, access, or use a party’s treatment records in any way unless the party has given voluntary written consent for those records to be used in the grievance process. (If the party is under 18 years old and is not attending an institution of postsecondary education, the consent must be given by the student’s parent.) For purposes of this restriction, “treatment records” means records made or maintained in connection with providing treatment to a party by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional’s or paraprofessional’s capacity, or assisting in that capacity.
Prior to the conclusion of the investigation and the completion of the investigative report, the District will provide to the parties copies of all evidence obtained in the investigation which is directly related to the allegations in the complaint, including any inculpatory or exculpatory investigation and even if the District does not intend to rely on the evidence in making a responsibility determination. The copies will be provided in either electronic format or a hard copy. Each party may, within 10 days of being provided the evidence, submit a written response to the investigator regarding the evidence.
34 CFR § 106.45(b)(1)(v), (5)(vi)
After considering the evidence and any written response by the parties to the evidence, the investigator will complete an investigative report which fairly summarizes the relevant evidence. The completed report will be provided to each party and the party’s advisor (if any) in electronic format or hard copy for review and written response. The report shall be provided at least 15 days before the time when the decision maker begins consideration of the evidence.
34 CFR § 106.45(b)(1)(v), (5)(vii)
Determination by Decision Maker
Upon the completion of the investigative report, the Title IX Coordinator shall notify the parties of the date when the decision maker will begin consideration of the evidence.
Position statement
On or before the date the decision maker begins consideration of the evidence, a party may submit a written statement which outlines the party’s position regarding the allegations and evidence and states the party’s requested determination regarding responsibility.
Written questions
Each party may, no later than 5 days before the time the decision maker begins consideration of the evidence, submit written, relevant questions that the party wants asked of any party or witness. Proposed questions may refer to or rely on any of the evidence disclosed to the parties by the investigator.
The decision maker shall determine whether each question is relevant to the allegations and to the issue of whether respondent is responsible for sexual harassment. However, questions and evidence regarding the complainant’s sexual predisposition or prior sexual behavior are not relevant unless the questions and evidence either:
- Are being offered to show that someone other than the respondent committed the alleged conduct, or
- Are being offered to show consent and concern specific instances of the complainant’s prior sexual behavior with respect to the respondent.
For any question excluded as not relevant, the decision maker must explain the decision to the party proposing the question.
The decision maker shall submit the approved questions and shall provide copies of the answers to all parties. Each party may, within 2 days of being provided answers, submit limited additional follow-up questions.
The decision maker shall determine whether follow-up questions are relevant and may also impose reasonable limitations on the number of follow-up questions allowed. The decision maker must explain to the party proposing the question any decision to exclude a follow-up question based on relevance.
The decision maker shall submit the approved follow-up questions and shall provide copies of the answers to all parties.
34 CFR § 106.45(b)(5)(vi), (6)(ii)
Written determination
After weighing the evidence and considering the materials submitted (including the investigative report and the parties’ written submissions), the decision maker shall make a determination regarding responsibility. In so doing, the decision maker shall apply a preponderance of the evidence standard. Evidence must be evaluated objectively and credibility determinations may not be based on a person’s status as a complainant, respondent, or witness.
34 CFR § 106.45(b)(1)(ii), (vii), (b)(7), (b)(7)(i)
If the decision maker consists of a panel of three or five individuals, the decision will be based on majority vote.
The decision maker will issue a written statement setting forth the determination, which must include the following elements:
- Identification of the allegations potentially constituting sexual harassment as defined above;
- 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, and methods used to gather other evidence;
- Findings of fact supporting the determination;
- Conclusions regarding the application of the District’s conduct policies (including this policy and student and employee discipline policies) to the facts;
- A statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility.
- When a respondent is found responsible for sexual harassment against the complainant, the determination shall provide appropriate remedies to the complainant, which shall be designed to restore or preserve the complainant’s equal access to the District’s program or activity.
- Such remedies may include the kinds of services which are included in “supportive measures” as defined above, but need not be non-disciplinary or non-punitive and need not avoid burdening the respondent.
- A description of the appeal procedures and the permissible grounds for appeal by the complainant or respondent (as set forth below).
34 CFR § 106.45(b)(1)(i), (b)(7)(ii)
The written determination shall be provided promptly and generally within 14 days after the date the decision maker begins consideration of the evidence. The written determination must be provided simultaneously to the parties.
34 CFR § 106.45(b)(1)(v), (b)(7)(iii)
The decision maker’s determination becomes final on the date when the time to appeal expires (if no appeal is timely filed) or on the date that the District provides the written determination on a timely appeal.
The Title IX Coordinator is responsible for the effective implementation of any remedies.
Appeal
Grounds for appeal
A complainant or a respondent may appeal a dismissal decision or the determination of the decision maker based on the following grounds:
- A procedural irregularity which affected the outcome;
- New evidence that could affect the outcome which was not reasonably available at the time the dismissal was made or the decision maker made the determination; or
- There was a conflict of interest or bias on the part of the Title IX Coordinator, an investigator, or a decision maker (either for or against complainants or respondents generally or for or against the individual complainant or respondent) that affected the outcome.
Time for appeal
An appeal must be submitted within 14 days after the decision (the notice of dismissal or the decision maker’s written determination) is provided to the party. Appeals submitted after that date will not be considered and the decision will be final.
Appeal process
The appeal must be delivered to the Title IX Coordinator, must be in writing and must identify each ground for appeal, together with supporting evidence and argument.
Upon receipt of a timely appeal, the following process will be implemented:
- The Title IX Coordinator will appoint a qualified and trained District employee as the appeal officer. This person must be someone other than a decision maker on the complaint appealed from, the Title IX Coordinator or any investigator on the complaint.
- The Title IX Coordinator will give the other party written notice of the appeal, including a copy of the appeal.
- The other party may provide a written response to the appeal within 14 days of being provided the appeal, including supporting evidence and argument.
- After the time for response has expired, the appeal officer shall consider the appeal and any response and within 14 days issue a written decision describing the result of the appeal and the rationale for that result.
- The appeal officer considers only whether the appealing party has shown that one or more of the grounds for appeal have been demonstrated. The appeal officer must not reweigh the evidence considered by the decision maker and may consider new evidence only as it is relevant to the particular ground of appeal.
- If the appeal officer determines that a ground for appeal has been established, then the appeal officer will determine what remedy is appropriate.
- The appeal officer shall provide the appeal decision simultaneously to both parties.
34 CFR § 106.45(b)(1)(v), (viii)
Mediation
Except for complaints that an employee has sexually harassed a student, after a formal complaint has been filed, the parties may engage in mediation facilitated by the District as follows. Mediation may occur at any time before the decision maker issues the written determination.
The mediator will keep all information or evidence shared with the mediator strictly confidential and will not disclose that information outside the mediation process. In the complaint proceeding, the parties may not refer to or use any statements or information received only through the mediation process. (This does not include a written agreement by the parties resolving the complaint.) Either party may withdraw from mediation for any reason at any time before the party has agreed to a resolution of the complaint.
Once mediation is initiated, the complaint process will be suspended until the mediation ends (either with signing of a written agreement by the parties or by one or both parties withdrawing from the mediation). However, if mediation is not completed within 30 days of being initiated, the complaint process will resume.
If one or both parties express interest in mediation the Title IX Coordinator will provide both parties with a written notice which describes the allegations of the complaint and which explains the requirements and conditions of the mediation process. Before mediation may proceed, both parties must have been provided the written notice above and must give voluntary written consent to participate in mediation. (If a party is a student under 18 who is not attending a postsecondary institution, this consent must be provided by the student’s parent.)
If the parties agree to mediation, the Title IX Coordinator will appoint a District employee with appropriate training to serve as the mediator. The mediator may not be the Title IX Coordinator and may not participate in the complaint resolution in any other way (may not serve as an investigator, decision maker, or appeal officer).
If the parties reach an agreement to resolve the complaint through mediation, the mediator will reduce that agreement to writing and upon signing of the agreement by the parties will provide a copy of the agreement to the Title IX Coordinator. The Title IX Coordinator will implement the agreement, subject to the coordinator’s authority to reject the agreement or request the parties to modify the agreement as needed for the District to meet its obligations under Title IX or to avoid unreasonable burdens on the District.
34 CFR § 106.45(b)(1)(v), (b)(9)
Qualification and Training—
To be qualified to serve as a Title IX Coordinator, investigator, decision maker, appeal officer, or mediator, an individual must not have a conflict of interest or bias for or against complainants or respondents generally or against a specific complainant or respondent.
The District will provide training on the following issues to Title IX coordinators, investigators, decision makers, appeal officers, and mediators:
- The definition of sexual harassment;
- The scope of the District’s programs and activities;
- How to conduct an investigation and grievance process including hearings, appeals, and mediations, as applicable;
- How to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias;
- Issues of relevance of questions and evidence, including when questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant;
- For investigators, training on issues of relevance relating to creating an investigative report that fairly summarizes relevant evidence;
Training materials must not rely on sex stereotypes and must promote impartial investigations and adjudications of formal complaints of sexual harassment. Records of training materials shall be kept for 7 years by the Title IX Coordinator and shall be made available to the public on the District’s website.
34 CFR § 106.45(b)(1)(iii), (10)(i)(D)
It is prohibited to intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX or implementing regulations or this policy, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing relating to sexual harassment or other types of sex discrimination. Prohibited retaliation includes acting with the purpose of interfering with any right or privilege secured by Title IX or implementing regulations or this policy by intimidation, threats, coercion, or discrimination. If brought for the purpose of interfering with these rights, prohibited retaliation includes charges against an individual for violations that do not involve sex discrimination or sexual harassment but arise out of the same facts or circumstances as a report or complaint of sex discrimination, or a report or formal complaint of sexual harassment. Reports of retaliation should be made as another form of sex discrimination under Policy FA (for students) or Policy DAA (for employees). Complaints regarding retaliation against a student may be raised under Policy FGE or as applicable under Policy FGAD or regarding retaliation against an employee under Policy DHC or as applicable under Policy DLA or Policy DLB.
Where a complaint involves allegations of child abuse, the complaint shall be immediately reported to appropriate authorities and the confidentiality of the information will be maintained as required by Utah Code § 62A-4a-412. (See Policy DDA.)
Records—
Records relating to sexual harassment shall be maintained by the Title IX Coordinator in a confidential manner and shall be kept for a period of at least 7 years.
The Title IX Coordinator shall create a record regarding each instance when the District has actual knowledge of sexual harassment (that is, when the District is required to respond in some way). This record shall include any actions, including any supportive measures, taken in response to a report or formal complaint of sexual harassment, shall document the basis for the conclusion that the District’s response was not deliberately indifferent, and shall document that the District has taken measures designed to restore or preserve equal access to the District’s education program or activity. If a complainant was not provided with supportive measures, then the Title IX Coordinator must document the reasons why that was not clearly unreasonable in light of the known circumstances.
In addition to the records in the prior paragraph, the Title IX Coordinator shall maintain records regarding each sexual harassment investigation, any disciplinary sanctions imposed, any remedies provided to the complainant designed to restore or preserve equal access to the District’s program or activity, and regarding any appeal (including the result).
Notice of this policy and of the name and contact information of the Title IX Coordinator shall be provided to applicants for admission or for employment, students, parents of students, employees, and employee associations. The contact information for the Title IX Coordinator shall be prominently displayed on the District’s website and in student admission materials and employment application materials. In addition, a copy of this policy shall be published on the District website and included in student admission materials, in employment application materials, in student handbooks, and in materials provided to employees. A copy of this policy shall also be provided to the appropriate officer of each employee association.