Sexual harassment of pupils is prohibited by the Board of Education. The Superintendent and school district staff will use the following methods to investigate and resolve allegations of sexual harassment of pupils engaged in by school employees, other pupils (peers), or third parties.
1. Quid Pro Quo Harassment When a school employee explicitly or implicitly conditions a pupil’s participation in an educational program or activity or bases an educational decision on the pupil’s submission to unwelcomed sexual advances, requests for sexual favors, or other favors, or other verbal, nonverbal, or physical conduct of a sexual nature. Quid Pro Quo Harassment is equally unlawful whether the pupil resists and suffers the threatened harm or submits and thus avoids the threatened harm.
2. Hostile Environment Sexual Harassment Sexual harassing conduct (which can include unwelcomed sexual advances, requests for sexual favors, or other favors, or other verbal, nonverbal, or physical conduct of a sexual nature) by an employee, by another pupil, or by a third party that is sufficiently severe, persistent, or pervasive to limit a pupil’s ability to participate in or benefit from an educational program or activity, or to create a hostile or abusive educational environment.
3. Notice – The school district has notice if it actually “knew, or in the exercise of reasonable care, should have known” about the harassment. If an agent or responsible employee of the school district received notice, the school district is deemed to have notice. The school district may receive notice in many different ways:
a. A pupil may have filed to a teacher about him/her.
a grievance or complained fellow pupils harassing
b. A pupil, parent, or other pupil may have contacted other appropriate school personnel.
c. An agent or a responsible employee of the school district may have witnessed the harassment.
d. The school district may obtain information in an indirect manner such as staff, community members, newspapers, etc.
4. Constructive Notice A school district will be in violation if the school district has “constructive notice” of a sexually hostile environment and fails to take immediate and appropriate corrective action. Constructive notice exists if the school district “should have” known about the harassment and if the school district would have found .out about the harassment through a “reasonable diligent inquiry.”
5. Gender-based Harassment – Gender-based harassment that includes acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on gender, but not involving conduct of a sexual nature, may be a form of sex discrimination if it is sufficiently severe, persistent, or pervasive and directed at individuals because of their gender.
6. Title IX of the Education Amendments of 1972 – Title IX applies to all public school districts that receive federal funds and protects pupils in connection with all the academic, educational, extra-curricular, athletic, and other programs of the school district, whether they take place in the school facilities, on the school bus, at a class or training program sponsored by the school at another location, or elsewhere. Title IX protects any “person” from sex discrimination; accordingly both male and female pupils are protected from sexual harassment engaged in by school district employees, other pupils, or third parties. Title IX prohibits sexual harassment regardless of the gender of the harasser even if the harasser and the pupil being harassed are members of the same gender. Although Title IX does not specifically prohibit discrimination on the basis of sexual orientation, sexual harassment directed at gay or lesbian pupils may constitute sexual harassment as prohibited by Title IX. Harassing conduct of a sexual nature directed toward gay or lesbian pupils may create a sexually hostile environment and therefore be prohibited under Title IX.
7. Grievance Procedure – The grievance procedure provides for prompt and equitable resolution of discrimination complaints, including complaints of sexual harassment. The grievance procedure provides the school district with a mechanism for discovering sexual harassment as early as possible and for effectively correcting problems.
8. Office Of Civil Rights (OCR) – The OCR of the United States Department of Education has federal government’s enforcement authority of Title IX.
9. Unwelcomeness In order to be actionable as harassment, sexual conduct must be unwelcomed. Conduct is unwelcomed if the pupil did not request or invite it and “regarded the conduct as undesirable or offensive.” The school district will be concerned about the issue of welcomeness if the harasser is in a position of authority.
10. Acquiescence Acquiescence in the conduct or the failure to complain does not always mean the conduct was welcome. The fact that a pupil may have accepted the conduct does not mean that he/she welcomed it. The fact that a pupil willingly participated in conduct on one occasion does not prevent him/her from indicating that the same conduct has become unwelcome on a subsequent occasion. On the other hand, if a pupil actively participates in sexual banter and discussions and gives no indication he/she objects, then the evidence generally will not support a conclusion that the conduct was unwelcomed.
11. Sufficiently Severe, Persistent, or Pervasive Conduct – In determining whether conduct is sufficiently severe, persistent, or pervasive, the conduct should be considered from a subjective and objective perspective. In making this determination, all relevant circumstances should be considered:
a. The degree to which the conduct affected one or more pupils’ behavior. The conduct must have limited a pupil’s ability to participate in or benefit from his/her education or altered the conditions of the pupils educational environment.
b. The type, frequency, and duration of the conduct.
c. The identity of and relationship between the alleged harasser and the subject or subjects of the harassment.
d. The number of individuals involved.
e. The age and gender of the alleged harasser and the subject or subjects of the harassment.
f. The size of the school, location of the incidents, and context in which they occurred.
g. Other incidents at the school.
h. Incidents of gender-based, but non-sexual harassment.
B. Grievance Procedure
The following Grievance Procedure shall be used for an allegation(s) of Harassment of Pupils by School Employees, Other Pupils, or Third Parties:
1. Reporting of Sexual Harassment Conduct
a. Any person with any information regarding actual and/or potential sexual harassment of a pupil by any school employee, other pupils, or third parties must report the information to the school Building Principal, their immediate supervisor or the Affirmative Action Officer.
(1) If the Building Principal deems it appropriate, he/she may immediately notify the parent(s) or legal guardian(s) of the alleged harasser(s) or alleged victim(s) upon receipt of any information prior to notifying the Affirmative Action Officer.
(2) The Building Principal will not disclose the name(s) of the alleged harasser(s) or alleged victim(s)to the other party.
b. The school district can learn of sexual harassment through other means such as from a witness to an incident, an anonymous letter or telephone call.
c. Nothing in the Policy and Regulation on Pupil Sexual Harassment shall preclude the Building Principal, or designee, from complying with the provisions of Policy No. 5600 – Pupil Discipline in order to maintain the health, safety and welfare of staff and/or pupils.
d. A report from the school Building Principal or an immediate supervisor will be forwarded to the school district Affirmative Action Officer within one working day, even if the school Building Principal or immediate supervisor feels sexual harassment conduct was not present.
e. Upon receipt of an allegation and/or report, the Affirmative Action Officer shall immediately notify the parent(s) or legal guardian(s) of any alleged harasser(s) and victim(s) for which a report has been filed even if the Building Principal has previously notified the parent(s) or legal guardian(s).
f. The Affirmative Action Officer shall notify the parent(s) or legal guardian(s) of all involved pupils and any other involved individuals of the process to be followed in investigating a report or complaint.
2. Affirmative Action Officer’s Investigation
a. Upon receipt of any report of potential sexual harassment conduct, the Affirmative Action Officer will begin an immediate investigation. The Affirmative Action Officer will promptly investigate all alleged complaints of sexual harassment, whether or not a formal grievance is filed and steps will be taken to resolve the situation, if needed. This investigation will be prompt, thorough, and impartial. The investigation will be completed no more than ten working days after receiving notice.
b. When a pupil or the parent(s) or legal guardian(s) of a pupil provides information or complains about sexual harassment of the pupil, the Affirmative Action Officer will initially discuss what actions the pupil or parent(s) or legal guardian(s) is seeking in response to the harassment.
c. The Affirmative Action Officer’s investigation may include, but is not limited to, interviews with all persons with potential knowledge of the alleged conduct, interviews with any pupils who may have been sexually harassed by any school employee, other pupils, or third parties and any other reasonable methods to determine if sexual harassment conduct existed.
d. The Affirmative Action Officer will request, if relevant to an investigation, the parent(s) or legal guardian(s) of any pupil involved in the investigation to assist in the investigation to determine if sexual harassment conduct exist(ed).
e. The Affirmative Action Officer will provide a copy of the Board Policy and Regulation to all persons who are interviewed with potential knowledge and to any other person the Affirmative Action Officer feels would be served by a copy of such documents.
f. The Affirmative Action Officer will explain the avenues for formal and informal action, including a description of the grievance procedure that is available for sexual harassment complaints and an explanation on how the procedure works.
g. Any person interviewed by the Affirmative Action Officer may be provided an opportunity to present witnesses and other evidence.
h. The Affirmative Action Officer and/or Superintendent may contact law enforcement agencies if there is potential criminal conduct by any party.
i. The school district administrators may take interim measures during an Affirmative Action Officer’s investigation of a complaint in order to alleviate any conditions which prohibits the pupil from assisting in the investigation.
j. If elementary or middle school pupils are involved, it may become necessary to determine the degree to which they are able to recognize that certain sexual conduct is conduct to which they can or should reasonably object and the degree to which they can articulate an objection. The Affirmative Action Officer will consider the age of the pupil, the nature of the conduct involved, and other relevant factors in determining whether a pupil had the capacity to welcome sexual conduct.
k. The Affirmative Action Officer will consider particular issues of welcomeness if the alleged harassment relates to alleged “consensual” sexual relationships between a school employee and a pupil.
(1) If elementary or middle school (grades K-8) pupils are involved, welcomeness will not be an issue. Sexual conduct between a school employee and an elementary pupil will not be viewed as consensual.
(2) If secondary (grades 9-12) pupils are involved, there is a strong presumption that sexual conduct between a school employee and a secondary pupil is not consensual.
(3) In cases involving older secondary and post secondary pupils and older secondary and post-secondary special education pupils, the Affirmative Action Officer will consider the following to determine whether a school employee’s sexual advances or other sexual conduct could be considered welcome:
(a) The nature of the conduct and the relationship of the school employee to the pupil, including the degree of influence, authority, or control the employee has over the pupil.
(b) Whether the pupil was legally or practically unable to consent to the sexual conduct in question.
l. If there is a dispute about whether harassment occurred or whether it was welcome (in a case which it is appropriate to consider whether the conduct could be welcome) determinations should be based on the totality of the circumstances. The following types of information may be helpful in resolving the dispute:
(1) Statements made by any witnesses to the alleged incident.
(2) Evidence about the relative credibility of the alleged harassed pupil and the alleged harasser.
(3) Evidence that the alleged harasser has been found to have harassed others may support the credibility of the pupil claiming harassment.
(4) Evidence of the allegedly harassed pupil’s reaction or behavior after the alleged harassment.
(5) Evidence about whether the pupil claiming harassment filed a complaint or took other action to protest the conduct soon after the alleged incident occurred.
(6) Other contemporaneous evidence such as did the pupil write about the conduct and his/her reaction to it soon after it happened in diary or letter and/or tell friends or relatives.
m. The scope of a reasonable response also may depend upon whether a pupil, or parent(s) or legal guardian(s) reporting harassment asks that the pupil’s name not be disclosed to the harasser or that nothing be done about the harassment. The Affirmative Action Officer:
(1) Will provide an overview of harassment policy [and Title IX if applicable] to the pupil, parent(s) or legal guardian(s) which shall include the prohibition of retaliation. In the event the pupil, parent(s) or legal guardian(s) request the pupil’s name remai.n confidential, the Affirmative Action Officer will inform the pupil, parent(s) or legal guardian(s) that the request may limit the school district’s ability to respond.
(2) Will evaluate the confidentiality request in the context of its responsibility to provide a safe and nondiscriminatory environment for all pupils. The factors to be considered shall be the seriousness of the alleged harassment, the age of the pupil harassed, whether there have been any other complaints or reports against the alleged harasser. And the rights of the accused individual to receive information about the accuser and the allegations if a formal proceeding with sanctions may result.
(3) May use other means available to address the harassment. Steps that may be taken to limit the effects of the alleged harassment and prevent its reoccurrence without initiating a formal complaint and revealing the identity of the complainant. These steps may require sexual harassment training at the site where the problem occurred, taking a pupil survey concerning any harassment problems that may exist, or other systematic measures where the alleged harassment occurred.
(4) By conducting a limited investigation without revealing the name of the pupil sexually harassed, may be able to learn about or confirm a pattern of harassment based on claims of different pupils that were harassed by the same individual. The Affirmative Action Officer may place an individual on notice of allegation of harassing behavior and counsel appropriately without revealing, even indirectly, the identity of the pupil who notified the school district.
3. Investigation Results
a. Upon the conclusion of the investigation, but not later than ten working days after reported, the Affirmative Action Officer will prepare a summary of findings to the parties. At the least this shall include the person(s) providing notice to the school district and the pupil(s) who were alleged to be sexually harassed.
b. The Affirmative Action Officer shall make a determination whether sexual harassment conduct was present.
c. If the Affirmative Action Officer concludes sexual harassment conduct was not, or is not present, the investigation is concluded.
d. If the Affirmative Action Officer determines that sexual harassment has occurred, the school district administrators and staff shall take reasonable, age-appropriate, and effective corrective action, including steps tailored to the specific situation. Appropriate steps will be taken to end the harassment such as counseling, warning, and/or disciplinary action, as specified in pupil and/or staff discipline policies and regulations. The steps will be based on the severity of the harassment or any record of prior incidents or both. A series of escalating consequences may be necessary if the initial steps are ineffective in stopping the harassment.
e. In the event the Affirmative Action Officer determines a hostile environment exists, the school district administrators and staff shall take steps to eliminate the hostile environment. The school district administrators may need to deliver special training or other interventions to repair the educational environment. Other measures may include directing the harasser to apologize to the harassed pupil, dissemination of information, distribution of new policy statements or other steps to communicate the message that the Board does not tolerate harassment and will be responsive to any pupil that reports such conduct.
f. In some situations, the school district administrators may need to provide other services to the pupil that was harassed if necessary to address the effects of the harassment on that pupil. Depending on the type of harassment found, these additional services may include an independent re-assessment of the harassed pupil’s work, re-taking a course with a different instructor, tutoring and/or other measures that are appropriate to the situation.
g. The school district administrators will take steps to avoid any further sexual harassment and to prevent any retaliation against the pupil who made the complaint, was the subject of the harassment, or against those who provided the information or were witnesses. The Affirmative Action Officer will inform the sexually harassed pupil and his/her parent how to report any subsequent problems and make follow-up inquiries to see if there has been any new incidents or retaliation.
h. All sexual harassment grievances and accompanied investigation notes will be maintained in a confidential file by the Affirmative Action Officer.
4. Affirmative Action Officer’s Investigation Appeal Process
a. Any person found by the Affirmative Action Officer’s investigation to be guilty of sexual harassment conduct, or any pupil who believes they were sexually harassed but not supported by the Affirmative Action Officer’s investigation, may appeal to the Superintendent. The superintendent will make his/her determination within ten working days of receiving the appeal.
b. Any person who is not satisfied with the Superintendent’s determination may appeal to the Board. The Board will make its determination within forty-five calendar days of receiving an appeal from the Superintendent’s determination.
C. Office Of Civil Rights (OCR) Case Resolution
Parents or pupils not satisfied with the resolution of an allegation of sexual harassment by the school district officials or the Board may request the Office of Civil Rights (OCR) of the United States Department of Education to investigate the allegations.
1. Any alleged victim of sexual harassment may appeal a decision of the Affirmative Action Officer, Superintendent, or the Board to the Office of Civil Rights (OCR) .
2. Any person may report an allegation of sexual harassment to the OCR at any time. If the OCR is asked to investigate or otherwise resolve incidents of sexual harassment of pupils, including incidents caused by employees, other pupils, or third parties, OCR will consider whether:
a. The school district has a policy prohibiting sex discrimination under Title IX and an effective Title IX grievance procedure;
b. The school district appropriately investigated or otherwise responded to allegations of sexual harassment; and
c. The school district has taken immediate and appropriate corrective action responsive to Quid Pro Quo or Hostile Environment Harassment.
3. If the school district officials have taken the steps described in 2 above, the OCR will consider the case against the school district resolved and take no further action other than monitoring compliance with any agreement between the school district and the OCR. This shall apply in cases in which the school district was in violation of Title IX, as well as those in which there has been no violation of Title IX.
Issued: 21 April 2005