STUDENT SEXUAL HARASSMENT (4.27)

The West Fork School District is committed to providing an academic environment that treats all students with respect and dignity. Student achievement is best attained in an atmosphere of equal educational opportunity that is free of discrimination. Sexual harassment is a form of discrimination that undermines the integrity of the educational environment and will not be tolerated.

The District believes the best policy to create an educational environment free from sexual harassment is prevention; therefore, the District shall provide informational materials and training to students, parents/legal guardians/other responsible adults, and employees on sexual harassment. The informational materials and training on sexual harassment shall be age appropriate and, when necessary, provided in a language other than English or in an accessible format. The informational materials and training shall include, but are not limited to:

• the nature of sexual harassment;
• The District’s written procedures governing the formal complaint grievance process;
• The process for submitting a formal complaint of sexual harassment;
• That the district does not tolerate sexual harassment;
• That students can report inappropriate behavior of a sexual nature without fear of adverse consequences;
• The supports that are available to individuals suffering sexual harassment; and
• The potential discipline for perpetrating sexual harassment.

Definitions

“Complainant” means an individual who is alleged to be the victim of conduct that could constitute sexual harassment.

“Education program or activity” includes locations, events, or circumstances where the District exercised substantial control over both the respondent and the context in which the sexual harassment occurs.

“Formal complaint” means a document filed by a complainant or signed by the Title IX Coordinator alleging sexual harassment against a respondent and requesting an investigation of the allegation of sexual harassment.

“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:

1. A District employee:
   1. Conditions the provision of an aid, benefit, or service of the District on an individual’s participation in sexual conduct;2 or
   2. Uses the rejection of sexual conduct as the basis for academic decisions affecting that individual;
2. The conduct is:
   1. Unwelcome; and
   2. Determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the District’s education program or activity; or
3. Constitutes:
   1. Sexual assault;
   2. Dating violence
   3. Domestic violence; or
   4. Stalking.

“Supportive measures” means individualized services that are offered to the complainant or made available to the respondent designed to restore or preserve equal access to the District’s education program or activity without unreasonably burdening the other party. The supportive measures must be non-disciplinary and non-punitive in nature; offered before or after the filing of a formal complaint or where no formal complaint has been filed; and offered to either party as appropriate, as reasonably available, and without fee or charge. Examples of supportive measures include, but are not limited to: measures designed to protect the safety of all parties or the District’s educational environment, or deter sexual harassment; 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 class locations; leaves of absence; and increased security and monitoring of certain areas of the campus.

Within the educational environment, sexual harassment is prohibited between any of the following: students; employees and students; and non-employees and students.

Actionable sexual harassment is generally established when an individual is exposed to a pattern of objectionable behaviors or when a single, serious act is committed. What is, or is not, sexual harassment will depend upon all of the surrounding circumstances and may occur regardless of the sex(es) of the individuals involved. Depending upon such circumstances, examples of sexual harassment include, but are not limited to:

• Making sexual propositions or pressuring for sexual activities;
• Unwelcome touching;
• Writing graffiti of a sexual nature;
• Displaying or distributing sexually explicit drawings, pictures, or written materials;
• Performing sexual gestures or touching oneself sexually in front of others;
• Telling sexual or crude jokes;
• Spreading rumors related to a person’s alleged sexual activities;
• Discussions of sexual experiences;
• Rating other students or employees as to sexual activity or performance;
• Circulating or showing emails, web sites, profile accounts, etc. of a sexual nature;
• Intimidation by words, actions, insults, or name calling; and
• Teasing or name-calling related to sexual characteristics or the belief or perception that an individual is not conforming to expected gender roles or conduct or is homosexual, regardless of whether or not the individual self-identifies as homosexual or transgender.

Students who believe they have been subjected to sexual harassment, or the parent/legal guardian/other responsible adult of a student who believes their student has been subjected to sexual harassment, are encouraged to bring their concerns to any District staff member, including a counselor, teacher, Title IX coordinator, or administrator. If the District staff member who received a report of alleged sexual harassment is not the Title IX Coordinator, then the District staff person shall inform the Title IX Coordinator of the alleged sexual harassment. As soon as reasonably possible after receiving a report of alleged sexual harassment from another District staff member or after receiving a report directly through any means, the Title IX Coordinator shall 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.

Supportive Measures

The District shall offer supportive measures to the complainant and make supportive measures available to respondent that are designed to restore or preserve equal access to the District’s education program or activity without unreasonably burdening the other party before or after the filing of a formal complaint or where no formal complaint has been filed. The District shall provide the individualized supportive measures to the complainant unless declined in writing by the complainant and shall provide individualized supportive measures that are non-disciplinary and non-punitive to the respondent. A complainant who initially declined the District’s offer of supportive measures may request supportive measures at a later time and the District shall provide individualized supportive measures based on the circumstances when the subsequent request is received.

Formal Complaint

A formal complaint may be filed with the Title IX Coordinator in person, by mail, or by email. Upon receipt of a formal complaint, a District shall simultaneously provide the following written notice to the parties who are known:

• Notice of the District’s grievance process and a copy of the procedures governing the grievance process;
• Notice of the allegations of sexual harassment including sufficient details known at the time and with sufficient time to prepare a response before any initial interview. Sufficient details include:
• The identities of the parties involved in the incident, if known;
• The conduct allegedly constituting sexual harassment; and
• The date and location of the alleged incident, if known;
• A 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;
• That the parties may have an advisor of their choice, who may be, but is not required to be, an attorney;
• That the parties may inspect and review evidence relevant to the complaint of sexual harassment; and
• That the District’s code of conduct prohibits knowingly making false statements or knowingly submitting false information during the grievance process.

If, in the course of an investigation, the District decides to investigate allegations about the complainant or respondent that are not included in the previous notice, the District shall simultaneously provide notice of the additional allegations to the parties whose identities are known.

The District may consolidate formal complaints of allegations of sexual harassment where the allegations of sexual harassment arise out of the same facts or circumstances and the formal complaints are against more than one respondent; or by more than one complainant against one or more respondents; or by one party against the other party. When the District has consolidated formal complaints so that the grievance process involves more than one complainant or more than one respondent, references to the singular “party”, “complainant”, or “respondent” include the plural, as applicable.

When investigating a formal complaint and throughout the grievance process, a District shall:

• Ensure that the burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility rest on the District and not on the parties;
• Not require, allow, rely upon, or otherwise use questions or evidence that constitute, or seek disclosure of, information protected under a legally recognized privilege or access, consider, disclose, or otherwise use a party’s records that are made or maintained 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, and which are made and maintained in connection with the provision of treatment to the party unless the District obtains the parent, legal guardian, or other responsible adult of that party’s voluntary, written consent or that party’s voluntary, written consent if the party is over the age of eighteen (18) to do so for the grievance process;
• Provide an equal opportunity for the parties to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence;
• Not restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence;
• Provide the parties with 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;
• Provide, to a party whose participation is invited or expected, written notice of the date, time, location, participants, and purpose of all hearings, investigative interviews, or other meetings, with sufficient time for the party to prepare to participate;
• Provide both parties an equal opportunity to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in the formal complaint so that each party can meaningfully respond to the evidence prior to the conclusion of the investigation; this includes evidence:
• Whether obtained from a party or other source;
• The District does not intend to rely upon in reaching a determination regarding responsibility; and
• That is either Inculpatory or exculpatory; and
• Create an investigative report that fairly summarizes relevant evidence.

At least ten (10) days prior to completion of the investigative report, the District shall send to each party and the party’s advisor, if any, the evidence subject to inspection and review in an electronic format or a hard copy. The parties shall have at least ten (10)3 days to submit a written response to the evidence. The investigator will consider the written responses prior to completion of the investigative report. All evidence subject to inspection and review shall be available for the parties’ inspection and review at any meeting to give each party equal opportunity to refer to such evidence during the meeting.

After the investigative report is sent to the parties, the decision-maker shall:

• Provide each party the opportunity to submit written, relevant questions that a party wants asked of any party or witness;
• Provide each party with the answers;
• Allow for additional, limited follow-up questions from each party; and
• Provide an explanation to the party proposing the questions any decision to exclude a question as not relevant. Specifically, questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant, unless such questions and evidence about the complainant’s prior sexual behavior are offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or if the questions and evidence concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent.

No earlier than ten (10) days following the completion of the investigation period, the decision-maker, who cannot be the same person as the Title IX Coordinator or the investigator, shall issue a written determination regarding responsibility. The written determination shall include—

1. Identification of the allegations potentially constituting sexual harassment;
2. A description of the procedural steps taken from the receipt of the formal complaint through the determination, including:
3. Any notifications to the parties;
4. Interviews with parties and witnesses;
5. site visits;
6. Methods used to gather other evidence,; and
7. Hearings held;
8. Findings of fact supporting the determination;
9. Conclusions regarding the application of the District’s code of conduct to the facts;
10. A statement of, and rationale for, the result as to each allegation, including:
11. A determination regarding responsibility;
12. Any disciplinary sanctions imposed on the respondent; and
13. Whether remedies designed to restore or preserve equal access to the District’s education program or activity will be provided by the District to the complainant; and
14. The procedures and permissible bases for the complainant and respondent to appeal.

The written determination shall be provided to the parties simultaneously. The determination regarding responsibility shall become final on the earlier of:

• If an appeal is not filed, the day after the period for an appeal to be filed expires; or
• If an appeal is filed, the date the written determination of the result of the appeal is provided to the parties.

The District shall investigate the allegations in a formal complaint. If the conduct alleged in the formal complaint would not constitute sexual harassment as defined in this policy even if proved; did not occur in the District’s education program or activity; or did not occur against a person in the United States, then the District shall dismiss the complaint as not meeting the definition of sexual harassment under this policy. A dismissal for these reasons does not preclude action under another provision of the District’s code of conduct.

The District may dismiss the formal complaint or any allegations therein, if at any time during the grievance process:

• The complainant notifies the Title IX Coordinator in writing that the complainant would like to withdraw the formal complaint or any allegations therein;
• The respondent is no longer enrolled at the District; or
• Specific circumstances prevent the District from gathering evidence sufficient to reach a determination as to the formal complaint or allegations therein.

Upon the dismissal of a formal complaint for any reason, the District shall promptly send written notice of the dismissal and reason(s) for the dismissal simultaneously to the parties.

The District may hire an individual or individuals to conduct the investigation or to act as the determination-maker when necessary.

Appeals

Either party may appeal a determination regarding responsibility or from a dismissal of a formal complaint or any allegations therein, on the following bases:

1. The existence of a procedural irregularity that affected the outcome of the matter;
2. Discovery of 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;
3. The Title IX Coordinator, investigator, or decision-maker had a conflict of interest or bias for or against complainants or respondents generally or the individual complainant or respondent that affected the outcome of the matter; or
4. An appeal of the disciplinary sanctions from the initial determination.

For all appeals, the District shall:

1. Notify the other party in writing when an appeal is filed;
2. Simultaneously Provide all parties a written copy of the District’s procedures governing the appeal process;
3. Implement appeal procedures equally for both parties;
4. Ensure that the decision-maker5 for the appeal is not the same person as the decision-maker that reached the original determination regarding responsibility or dismissal, the investigator, or the Title IX Coordinator;
5. Provide all parties a reasonable, equal opportunity to submit a written statement in support of, or challenging, the outcome;
6. Issue a written decision describing the result of the appeal and the rationale for the result; and
7. Provide the written decision simultaneously to both parties.

Confidentiality

Reports of sexual harassment, both informal reports and formal complaints, will be treated in a confidential manner to the extent possible. Limited disclosure may be provided to:

• individuals who are responsible for handling the District’s investigation and determination of responsibility to the extent necessary to complete the District’s grievance process;
• Submit a report to the child maltreatment hotline;
• Submit a report to the Professional Licensure Standards Board for reports alleging sexual harassment by an employee towards a student; or
• The extent necessary to provide either party due process during the grievance process.

Except as listed above, the District shall keep confidential the identity of:

• Any individual who has made a report or complaint of sex discrimination;
• Any individual who has made a report or filed a formal complaint of sexual harassment;
• Any complainant;
• Any individual who has been reported to be the perpetrator of sex discrimination;
• Any respondent; and
• Any witness.

Any supportive measures provided to the complainant or respondent shall be kept confidential to the extent that maintaining such confidentiality does not impair the ability of the District to provide the supportive measures.

Emergency Removal

The District may remove a respondent from the District’s education program or activity on an emergency basis only after the completion of an individualized safety and risk analysis that 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. A removed student will be provided with notice and an opportunity to challenge the removal decision immediately following the removal.

Retaliation Prohibited

Students, or the parents/legal guardians/ other responsible adult of a student, who submit a report or file a formal complaint of sexual harassment,; testified; assisted; or participate or refused to participate in any manner in an investigation, proceeding, or hearing on sexual harassment shall not be subjected to retaliation or reprisal in any form, including threats; intimidation; coercion; discrimination; or charges for code of conduct violations that do not involve sex discrimination or sexual harassment, arise out of the same facts or circumstances as a report or formal complaint of sex discrimination, and are made for the purpose of interfering with any right or privilege under this policy. The District shall take steps to prevent retaliation and shall take immediate action if any form of retaliation occurs regardless of whether the retaliatory acts are by District officials, students, or third parties.

Disciplinary Sanctions

It shall be a violation of this policy for any student to be subjected to, or to subject another person to, sexual harassment. Following the completion of the District’s grievance process, any student who is found by the evidence to more likely than not7 have engaged in sexual harassment will be subject to disciplinary action up to, and including, expulsion. No disciplinary sanction or other action that is not a supportive measure may be taken against a respondent until the conclusion of the grievance process.

Students who knowingly fabricate allegations of sexual harassment or purposely provide inaccurate facts shall be subject to disciplinary action up to and including expulsion. A determination that the allegations do not rise to the level of sexual harassment alone is not sufficient to conclude that any party made a false allegation or materially false statement in bad faith.

Records

The District shall maintain the following records for a minimum of seven (7) years:

• Each sexual harassment investigation including:
• Any determination regarding responsibility;
• any disciplinary sanctions imposed on the respondent;
• Any remedies provided to the complainant designed to restore or preserve equal access to the District’s education program or activity;
• Any appeal and the result therefrom;
• All materials used to train Title IX Coordinators, investigators, and decision-makers;
• Any actions, including any supportive measures, taken in response to a report or formal complaint of sexual harassment, which must include:
• The basis for the District’s conclusion that its response was not deliberately indifferent; and
• Document:
• If supportive measures were provided to the complainant, the supportive measures taken designed to restore or preserve equal access to the District’s education program or activity; or
• If no supportive measures were provided to a complainant, document the reasons why such a response was not clearly unreasonable in light of the known circumstances.