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The School Board takes seriously its obligations to ensure that no student or employee suffers discrimination on the basis of sex, as defined in Title IX of the Education Amendments Act of 1972 (“Title IX”). Title IX requires that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance…” 20 U.S.C. § 1681(a). Title IX prohibits harassment of both male and female students and/or employees regardless of the sex of the harasser.
For purposes of this policy, these terms are subject to the following definitions:
- Actual knowledge means notice of sexual harassment or allegations of sexual harassment to the District’s Title IX Coordinator or any official of the recipient who has authority to institute corrective measures on behalf of the recipient, or to any employee of an elementary and secondary school.
- Coercion means the exploitation of authority, use of bribes, threats of force, or intimidation to gain cooperation or compliance.
- Consent means consent voluntarily given with sufficient knowledge and comprehension of the subject matter to enable the person giving consent to make a knowing decision without any element of force, fraud, deceit, duress, or other form of constraint or coercion.
- 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.
- Mentally incapacitated means temporarily incapable of appraising or controlling a person’s own conduct due to the influence of a narcotic, anesthetic, or intoxicating substance administered without his or her consent or due to any other act committed upon that person without his or her consent.
- Physically incapacitated means bodily impaired or handicapped and substantially limited in ability to resist or flee.
- Reasonable person means a hypothetical person in society who exercises average care, skill, and judgment in conduct and who serves as a comparative standard for determining liability.
- Respondent is defined as an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment.
- Sexual harassment is defined as conduct on the basis of sex, which satisfies one 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;
- Unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the District’s education program or activity;
- Sexual assault, which includes the following:
- Sex Offenses, Forcible—Any sexual act directed against another person, without the consent of the Complainant including instances where the Complainant is incapable of giving consent.
- Forcible Rape — Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the Complainant.
- Forcible Sodomy—Oral or anal sexual intercourse with another person, forcibly and/or against that person’s will or not forcibly or against the person’s will (non- consensually) in instances where the Complainant is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity.
- Sexual Assault With An Object—To use an object or instrument to penetrate, however slightly, the genital or anal opening of the body of another person, forcibly and/or against that person’s will or not forcibly or against the person’s will (non- consensually) in instances where the Complainant is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity.
- Forcible Fondling—The touching of the private body parts of another person (buttocks, groin, breasts) for the purpose of sexual gratification, forcibly and/or against that person’s will (nonconsensually) or not forcibly or against the person’s will in instances where the Complainant is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity.
- Sex Offenses, Non-forcible— Non-forcible sexual intercourse, such as the following:
- Incest—Non-forcible sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by West Virginia law.
- Statutory Rape—Non-forcible sexual intercourse with a person who is under the statutory age of consent in accordance with West Virginia law.
- Dating Violence, defined as: violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the Complainant. The existence of such a relationship shall be determined based on the Complainant’s statement and with consideration of the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship. For the purposes of this definition—
- Dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse.
- Dating violence does not include acts covered under the definition of domestic violence.
- Domestic Violence, defined as: a felony or misdemeanor crime of violence committed—
- By a current or former spouse or intimate partner of the Complainant;
- By a person with whom the Complainant shares a child in common;
- By a person who is cohabitating with, or has cohabitated with, the Complainant as a spouse or intimate partner;
- By a person similarly situated to a spouse of the Complainant under the domestic or family violence laws of the State of West Virginia; or
- By any other person against an adult or youth Complainant who is protected from that person’s acts under the domestic or family violence laws of West Virginia.
- Stalking, defined as: engaging in a course of conduct directed at a specific person that would cause a reasonable person to—
- Fear for the person’s safety or the safety of others; or
- Suffer substantial emotional distress.
- For the purposes of this definition—
- Course of conduct means two or more acts, including, but not limited to acts in which the stalker directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates to or about a person, or interferes with a person’s property.
- Reasonable person means a reasonable person under similar circumstances and with similar identities to the Complainant.
- Substantial emotional distress means significant mental suffering or anguish that may but does not necessarily require medical or other professional treatment or counseling.
- 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 the District’s education programs or activities without unreasonably burdening the other party, including measures designed to protect the safety of all parties or the educational environment, or deter sexual harassment. Supportive measures may include counseling, extensions of deadlines or other course-related adjustments, modifications of class or lunch schedules, changes in locker assignments, campus escort services, mutual restrictions on contact between the parties, leaves of absence, increased security and monitoring of certain areas of the campus, and other similar measures.
- Title IX is defined to include Title IX of the Education Amendments Act of 1972, 20 U.S.C. 1681 et seq., and implementing regulations promulgated by the United States Department of Education, 34, C.F.R. Part 106.
Designation of Title IX Coordinator
The District will employ a designated and authorized administrator to coordinate its compliance with Title IX. The Superintendent or a designee will notify applicants for employment, student, parents, or legal guardians of elementary and secondary school students, employees, and all unions or professional organizations holding collective bargaining or professional agreements with the District, of the name or title, office address, electronic mail address, and telephone number of the employee or employees designated as the Title IX Coordinator.
How to Report Sexual Harassment
Any person may report sex discrimination, including sexual harassment (whether or not the person reporting is the person alleged to be the victim of conduct that could constitute sex discrimination or sexual harassment), in person, by mail, by telephone, or by electronic mail, using the contact information listed for the Title IX Coordinator, or by any other means that results in the Title IX Coordinator receiving the person’s verbal or written report. Such a report may be made at any time (including during non-business hours) by using the telephone number or electronic mail address, or by mail to the office address, listed for the Title IX Coordinator.
Reports received by any other employee of an elementary or secondary school will promptly be provided to the Title IX Coordinator.
All Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process, shall receive training on the definition of sexual harassment in § 106.30, the scope of the recipient’s education program or activity, how to conduct an investigation and grievance process including hearings, appeals, and informal resolution processes, as applicable, and how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias. Decision-makers shall receive training on 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. Investigators shall receive training on issues of relevance to create an investigative report that fairly summarizes relevant evidence.
Title IX Jurisdiction
The District’s jurisdiction to investigate complaints of sexual harassment under Title IX is limited to incidents within the United States and within a school’s education program or activity. For the purposes of this policy, an “education program or activity” includes locations, events, or circumstances over which the District exercised substantial control over both the respondent and the context in which the sexual harassment occurs, and also includes any building owned or controlled by a student organization that is officially recognized by the District.
Response to Sexual Harassment
When the District has actual knowledge, with or without a formal complaint, of sexual harassment in its education program or activity against a person in the United States, it will respond promptly and in a manner that is not deliberately indifferent. The District will treat complainants and respondents equitably by offering supportive measures before the imposition of any disciplinary sanctions or other actions that are not supportive measures against a respondent. The Title IX Coordinator will promptly contact the complainant to complete an initial assessment, 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.
Removing a respondent from the School’s education program or activity on an emergency basis, requires that the School undertakes an individualized safety and risk analysis and 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. The respondent must be provided with notice and an opportunity to challenge the decision immediately following the removal. This provision may not be construed to modify any rights under the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act of 1973, or the Americans with Disabilities Act.
The District may choose to place a non-student employee respondent on administrative leave during the pendency of a grievance process. This provision may not be construed to modify any rights under Section 504 of the Rehabilitation Act of 1973 or the Americans with Disabilities Act.
Grievance Process for Formal Complaints of Sexual Harassment
- Both complainants and respondents will be treated equitably and afforded supportive measures as needed throughout the process.
- If an investigation results in a determination of responsibility for sexual harassment, remedies designed to restore or preserve equal access to the District’s education programs and activities will be assigned. Remedies may include the same individualized services as supportive measures but also may include disciplinary sanctions or other actions. Only supportive measures will be assigned prior to the conclusion of this grievance process.
- Upon receipt of a formal complaint, an impartial investigator and impartial decision-maker will be assigned and the District will provide a Notice of Grievance Process and Notice of Investigation to known parties.
- Evaluation of Evidence
- The parties will be afforded an objective evaluation of all relevant evidence and credibility determinations will not be based upon a person’s status as a complainant, respondent, or witness.
- The investigator and decision-maker shall presume that the respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process.
- Time for Resolution
- The District will issue a written determination regarding responsibility within 60 calendar days following receipt of the formal complaint.
- The time for resolution, and any then-pending deadlines, may be extended for good cause and with written notice to both parties. Good cause may include, but is not limited to, 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.
- Appeals from dismissals of formal complaints and from final determinations regarding responsibility will be resolved within 20 calendar days.
- Remedies and Disciplinary Measures. A determination of responsibility may result in disciplinary measures and remedies, which include, but are not limited to discipline measures included in Policy 4373, which defines behavior qualifying for a result. Remedies may include, without limitation: counseling services, change of schedule, proximity control, Community of Care referral, or other remedies as needed to ensure safety.
- Standard of Evidence. The District must determine that an allegation has been proven by a preponderance of the evidence in order to make a determination of responsibility.
Investigation of a Formal Complaint
- Burden of Proof. The District bears the burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility.
- Privileged Information. The District will not 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 that party’s voluntary, written consent to do so for a grievance process under this section
- Opportunity to Present Witnesses and Evidence. Either party may present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence at any time prior to the issuance of the investigative report.
- Parties’ Advisors. Either party may 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. However, neither party’s advisor will be permitted to question witnesses. Neither party’s advisor may participate in interviews or meetings in which the represented party is not a participant.
- Parental Involvement. Nothing herein is intended to supplant any legal right of a parent or guardian to act on behalf of a student.
- Written Notices. Parties will receive written notice of the date, time, location, participants, and purpose of all investigative interviews, or other meetings, with sufficient time for the party to prepare to participate if the party’s participation is invited or expected.
- Evidence Review Period.
- Any evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint, including the evidence upon which the District does not intend to rely in reaching a determination regarding responsibility and inculpatory or exculpatory evidence whether obtained from a party or other source will be provided to both parties at the conclusion of the investigator’s evidence gathering.
- Prior to completion of the investigative report, the District will 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, and the parties will have 10 calendar days to submit a written response, which the investigator will consider prior to completion of the investigative report.
- Investigative Report. Following the evidence review period, the investigator will issue an investigative report that fairly summarizes relevant evidence. The investigative report will be sent to each party and the party’s advisor, if any, for their review and written response.
- Decision Making and Q&A.
- Upon the investigator’s finalization of the investigative report, the decision-maker will begin, review, and provide an opportunity for questions and answers from the parties.
- Following receipt of the investigative report, the parties may submit written, relevant questions that a party wants asked of any party or witness within 3 calendar days. Questions may be submitted to the designated decision-maker.
- The decision-maker will provide each party with answers to any questions posed by a party. questions that a party wants asked of any party or witness within 3 calendar days. Questions may be submitted to the designated decision-maker.
- Additional follow-up questions, limited only to the scope of the prior questions, may be presented by either party within three calendar days after receipt of the decision-maker’s answers.
- Only relevant questions will be entertained. The decision-maker will explain to the party proposing the questions any decision to exclude a question as not relevant. 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.
- Determination Regarding Responsibility. At the conclusion of the investigation, and not less than 10 days after the parties receive the investigative report, the decision-maker will issue a full and final, written determination in compliance with the regulations implementing Title IX.
Informal Resolution Process
At any time after the filing of a formal complaint and prior to reaching a determination regarding responsibility, the District may facilitate an informal resolution process, such as mediation, that does not involve a full investigation and adjudication.
Prior to an informal resolution, the District will provide to the parties a written notice disclosing the allegations, the requirements of the informal resolution process including the circumstances under which it precludes the parties from resuming a formal complaint arising from the same allegations.
At any time prior to agreeing to a resolution, any party has the right to withdraw from the informal resolution process and resume the grievance process with respect to the formal complaint, and any consequences resulting from participating in the informal resolution process, including the records that will be maintained or could be shared
Informal resolution will only be pursued with the parties’ voluntary, written consent to the informal resolution process.
Allegations that an employee sexually harassed a student shall not be resolved by an informal resolution process.
Dismissal of a Formal Complaint
The District must investigate the allegations in a formal complaint. If the conduct alleged in the formal complaint would not constitute sexual harassment even if proved, did not occur in the School’s education program or activity, or did not occur against a person in the United States, then the District must dismiss the formal complaint with regard to that conduct for purposes of sexual harassment under Title IX. Such a dismissal does not preclude action under another provision of the student code of conduct or School Board policies related to employee discipline.
Additionally, the District may dismiss the formal complaint or any allegations therein, if at any time during the investigation: a 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 or employed by the recipient; or specific circumstances prevent the recipient from gathering evidence sufficient to reach a determination as to the formal complaint or allegations therein.
Upon a dismissal, the District will promptly send written notice of the dismissal and reason(s) therefore simultaneously to the parties.
- Reviewable Decisions. Parties may seek review of the following:
- The dismissal of a formal complaint under Title IX or any allegations therein; or
- A final determination regarding responsibility following the investigation of a formal complaint.
- Basis for Review. Appeals are limited to the following grounds:
- Procedural irregularity that affected the outcome of the matter;
- 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; and
- The Title IX Coordinator, investigator(s), or decision-maker(s) 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.
- Notices of Appeal.
- The decision of the District may be appealed by petitioning the Title IX Coordinator.
- Any party who files an appeal must do so in writing to the Title IX Coordinator within three school days of receiving the written determination regarding responsibility.
- The petition should state whether the appealing party challenges the finding, the remedies imposed, or both.
- The party appealing a decision must state all relevant bases for review simultaneously. Any basis not raised in the initial appeal is waived.
- Responses. The Title IX Coordinator will share the appeal with the other party and draft a response memorandum, which will also be shared with all parties. If the opposing party wishes to file a response, the response must be received by the Title IX Coordinator no later than two school days following receipt of the appeal. If additional time is needed, the Title IX Coordinator may grant an extension of one school day upon request prior to the expiration of the two-day deadline.
- Status While Pending Review. All remedies imposed by the School will be in effect during the appeal. A request may be made to the Director of Student Services for special consideration in exigent circumstances, but the presumptive stance of the School Board is that the remedies will stand. Graduation, study abroad, internships/externships, etc. do not in and of themselves constitute exigent circumstances, and students may not be able to participate in those activities during their appeal. In cases where the appeal results in reinstatement to the School or of privileges, all reasonable attempts will be made to restore the student to their prior status, recognizing that some opportunities lost may be irretrievable in the short term.
- Process for Review.
- All appeals and responses are forwarded to the Superintendent for initial review to determine if the appeal states an appropriate basis for review and is timely.
- The original finding and sanction will stand if the appeal is not timely or substantively eligible, and the decision is final.
- If the appeal is timely and presents an appropriate basis for review, the Superintendent will proceed with a substantive review of the appeal.
- Appellant’s Burden. The party requesting appellate review must show error in the original finding or sanction. The finding and sanction are presumed to have been decided reasonably and appropriately.
- New Evidence. If the Superintendent determines that new evidence should be considered, the Superintendent will return the complaint to the decision-maker to reconsider in light of the new evidence only. The decision-maker’s reconsideration is not cannot be appealed.
- Curable Procedural Error. If the Superintendent determines that a material procedural error occurred, it may return the complaint to the investigator and decision-maker with instructions to cure the error. The results of this second review with the error cured cannot be appealed.
- Incurable Procedural Error. In rare cases, where the procedural error cannot be cured (as in cases of bias), the Superintendent may order a new review of the complaint with a new decision-maker. The results of the new decision-maker’s review can be appealed, once, in accordance with the three applicable bases for appeals.
- Remedies. If the Superintendent determines that the remedies or disciplinary sanctions imposed are disproportionate to the severity of the violation, the Superintendent may increase, decrease or otherwise modify the remedies or disciplinary sanctions.
- Additional Considerations.
- All parties will be timely informed of the status of requests for appeal, the status of the appeal consideration, and the results of the appeal decision.
- An appeal is not intended to be a full rehearing of the complaint. In most cases, appeals are confined to a review of the written documentation or record of the original decision-making process and pertinent documentation regarding the grounds for appeal.
- This is not an opportunity for the Superintendent to substitute his or her judgment for that of the School merely because the Superintendent disagrees with the finding or sanction. Appeals decisions are to be deferential to the decision-maker, making changes to the finding only where there is clear error and to the sanction only if there is a compelling justification to do so.
- Remedies imposed are implemented immediately unless the Superintendent or Title IX Coordinator stays their implementation in extraordinary circumstances, pending the outcome of the appeal.
- Final Determination. The Superintendent will render a written decision describing the result of the appeal and the rationale for the result simultaneously to all parties within seven school days from receipt of the appeal. The Superintendent’s decision to deny an appeal request is final.
Retaliation and Confidentiality
- Retaliation is strictly prohibited. No person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, or proceeding.
- Intimidation, threats, coercion, or discrimination, including charges against an individual for code of conduct 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, for the purpose of interfering with any right or privilege secured by Title IX, constitutes retaliation.
- The District will keep confidential the identity of any individual who has made a report or complaint of sex discrimination, including 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, except as may be permitted by the FERPA statute or as required by law, or to carry out the purposes of 34 CFR part 106, including the conduct of any investigation, hearing, or judicial proceeding arising thereunder.
- Complaints alleging retaliation may be filed according to the grievance procedures for sexual harassment under Title IX.
The following records will be retained for a period of seven years:
- Each sexual harassment investigation to include any determination, disciplinary sanctions, remedies provided, any appeal and result, informal resolution, basis for conclusion, all documents that restore or preserve equal access, additional explanations or details of measures taken.
- All materials used to train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process. The District will make these training materials publicly available on its website, or these materials available upon request for inspection by members of the public.
Construction and Priority
Notwithstanding any other School Board policy or procedure, conduct and allegations meeting the definition of Sexual Harassment, as defined herein, shall be handled in accordance with this policy. To the extent that this policy may conflict with any other School Board policy, this policy shall prevail.