429P - Prohibition Against Harassment and Retaliation

    1. Policy Statement

      It is the policy of the School Board of Frederick County to maintain an educational environment and workplace that is free from sexual harassment and other unlawful forms of harassment. The School Board therefore prohibits harassment against students, employees, or others that is based on race, color, national origin, ancestry, age, religion, political affiliation, sex, sexual orientation, gender, gender identity, disabilities, military status, genetic information, marital status, pregnancy, childbirth or related medical conditions, or any other characteristic protected by law or this policy, as well as on a belief that such characteristic exists, (referred to in this policy as “Prohibited Harassment”), at school or any school sponsored activity.

      It is a violation of this policy for any student or school personnel to engage in Prohibited Harassment at school or any school sponsored activity. Further, it is a violation of this policy for any school personnel to tolerate Prohibited Harassment at school or any school sponsored activity, by students, school personnel, or third parties participating, observing or otherwise engaging in school sponsored activities. It is also a violation of this policy for any student or school personnel to retaliate against anyone who files a complaint of Prohibited Harassment, participates in such proceeding, or otherwise opposes harassment of any student or school personnel.

      For purposes of this policy, school personnel include School Board members, employees, agents, volunteers, contractors, or other persons subject to the supervision and control of the school division.

      The Frederick County Public School Division (“FCPS” or the “Division”) shall:

      • promptly investigate all complaints, written or verbal, of Prohibited Harassment at school or any school sponsored activity;

      • promptly investigate all complaints, written or verbal, of retaliation against anyone who files a complaint of harassment, participates in such proceeding, or otherwise opposes harassment of any student or school personnel;

      • promptly take appropriate action to stop any Prohibited Harassment or retaliation;

      • take appropriate action against any student or school personnel who violates this policy and provide appropriate remedies to restore equal access to the educational environment, educational activity, and/or workplace; and

      • take any other action reasonably calculated to end and prevent further harassment and/or retaliation of school personnel or students.

    2. Definitions

      1. Compliance Officer The Compliance Officer is the person designated to receive complaints of harassment referred by the Title IX Coordinator and oversee the response to and the investigation of those complaints as described below. The Frederick County School Board has designated the Assistant Superintendent for Administration as the Compliance Officer and the Executive Director of Human Resources as the Alternate Compliance Officer.

      2. Consent Consent is the clear, unambiguous, and voluntary agreement between the participants to engage in specific sexual activity.

      3. Prohibited Harassment Prohibited Harassment includes any of the following conduct:

        1. Sexual Harassment Prohibited by Title IX This is conduct on the basis of sex that satisfies one or more or the following:

          1. an employee of the School Board conditioning the provision of an aid, benefit, or service of the School Board on an individual’s participation in unwelcome sexual conduct;

          2. 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 School Board’s education program or activity; or

          3. “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).

        2. Harassment Based on Sex This is all other forms of harassment on the basis of sex, which may include the use of cell phones or the internet, that is not included within the definition of Sexual Harassment Prohibited by Title IX. Examples of such harassment may include, without limitation, sexual conduct or communication that substantially or unreasonably interferes with an individual’s employment or education, or creates an intimidating, hostile or offensive employment or educational environment (i.e. the conduct is sufficiently serious to limit a student’s or employee’s ability to participate in or benefit from the educational program or work environment). Examples of conduct that may constitute Harassment Based on Sex include:

          • unwelcome, sexually motivated advances or physical conduct, such as inappropriate patting, pinching, or other sexually motivated physical contact;

          • unwelcome repeated sexual flirtation, propositions, remarks, or requests for sexual favors;

          • sexual slurs, leering, epithets, threats, verbal abuse, derogatory comments or sexually degrading descriptions;

          • graphic comments about an individual’s body or overly personal conversation of a sexual nature;

          • sexual jokes, notes, stories, drawings, gestures or pictures;

          • spreading sexual rumors;

          • touching an individual’s body or clothes in a sexual way;

          • displaying sexually suggestive objects, pictures, cartoons or posters; and

          • impeding or blocking movement in a sexually intimidating manner.

        3. Harassment Based on Race, National Origin, Disability, Religion, and Other Prohibited Basis This includes all other forms of harassment prohibited in Section I above, including physical or verbal conduct, which may include use of cell phones or the internet, relating to an individual’s race, national origin, disability, religion, or other prohibited basis, when the conduct:

          • has the purpose or effect of creating an intimidating, hostile or offensive working or educational environment;

          • has the purpose or effect of substantially or unreasonably interfering with an individual’s work or education; or

          • otherwise is sufficiently serious to limit an individual’s employment opportunities or to limit a student’s ability to participate in or benefit from the education program.

          Examples of conduct which may constitute harassment based on race, national origin, disability, religion, or other prohibited basis may include:

          • graffiti containing racially offensive language;

          • name calling, jokes or rumors;

          • physical acts of aggression against a person or their property because of that person’s race, national origin, disability, religion, or other prohibited basis;

          • slurs, negative stereotypes, and hostile acts which are based on another’s race, national origin, religion disability, or other prohibited basis;

          • written or graphic material, containing ethnic comments or stereotypes, which is posted or circulated and that is intended to degrade, intimidate, or threaten individuals based on their race, national origin, disability, religion, or other prohibited basis.

        4. Additional Prohibited Behavior Behavior that is not unlawful or specifically prohibited above may nevertheless be unacceptable for the educational environment or the workplace. Demeaning or otherwise harmful actions are prohibited, particularly if directed at personal characteristics including, but not limited to, an individual’s socioeconomic status. Any allegations of additional prohibited behavior consistent with this term will be investigated and decided consistent with the processes specified under this policy, to the extent applicable.

      4. Title IX Title IX refers to 20 U.S.C. §§ 1681-1688 and the implementing regulations.

      5. Title IX Coordinator The Title IX Coordinator is the person designated to coordinate efforts to comply with this policy and Title IX. The Title IX Coordinator may be contacted at TitleIXCoordinator@fcpsk12.net.

    3. Complaint of Prohibited Harassment

      Any student or school personnel who believes he or she has been the victim of Prohibited Harassment by a student, school personnel, or a third party should report the alleged harassment to the Title IX Coordinator or to any school personnel. The alleged harassment should be reported as soon as possible, and the report generally should be made within fifteen (15) school days of the occurrence. Further, any student who has knowledge of conduct which may constitute Prohibited Harassment should report such conduct to the Title IX Coordinator or to any school personnel. Any school personnel who has notice that a student or other school personnel may have been a victim of Prohibited Harassment shall immediately report the alleged harassment to the Title IX Coordinator. Any complaint that involves the Title IX Coordinator should be reported to the Superintendent. Any complaint that involves the Superintendent must be reported to the School Board Chair.

      The complainant should use the Report of Harassment Form (Personnel 506R-Appendix- Complaint of Discrimination/Prohibited Harassment and/or Retaliatory Form) to make complaints of harassment. However, oral reports and other written reports are also accepted. The complaint, and identity of the complainant and respondent, will be disclosed only to the extent necessary to fully investigate the complaint and only when such disclosure is required or permitted by law. Additionally, a complainant who wishes to remain anonymous shall be advised that such confidentiality may limit the Division’s ability to fully respond to the complaint.

      After receiving a complaint, the Title IX Coordinator makes an initial determination whether the allegations may be Sexual Harassment Prohibited by Title IX. If the allegations may be, the Title IX Grievance Process in Section V below is followed. If the allegations cannot be Sexual Harassment Prohibited by Title IX, then the complaint is referred to the Compliance Officer who follows the procedure in Section IV below.

      The Title IX Coordinator also determines whether the allegations may also constitute criminal conduct and ensures that law enforcement officials are notified if necessary. If the allegations may also constitute child abuse, then those allegations must be reported to the Department of Social Services in accordance with Policy 508P Child Abuse and Neglect Reporting.

    4. Procedure for Complaints Referred to Compliance Officer

      1. Formal Procedure

        1. Generally The Compliance Officer will:

          • receive complaints of harassment referred by the Title IX Coordinator;

          • conduct or oversee the investigation of any alleged harassment referred by the Title IX Coordinator;

          • assess the needs of the Division in connection with complaints referred by the Title IX Coordinator;

          • arranges necessary training;

          • ensures that the investigation is conducted by an impartial investigator who is trained in the requirements of equal employment/education opportunity; and

          • oversee that the parties are provided appropriate interim measures.

        2. Investigation Process

          1. Notice of Investigation Upon receiving a referral of a complaint of alleged Prohibited Harassment from the Title IX Coordinator, the Compliance Officer shall immediately authorize or undertake an investigation. The investigation may be conducted by school personnel or a third party designated by the Division (the “Investigator”). The investigation shall be completed as soon as practicable, which generally should be not later than fourteen (14) calendar days after the referral of the complaint to the Compliance Officer. Upon receiving the complaint, the Compliance Officer shall acknowledge receipt of the complaint by giving written notice that the complaint has been received to both the complainant and the respondent within three school days. Also upon receiving the complaint, the Compliance Officer shall determine whether interim measures should be provided to either party pending the outcome of the investigation. Such interim measures may include, but are not limited to, separating the complainant and the respondent. The parties shall simultaneously be notified in writing if the Compliance Officer determines that more than 14 school days will be required to investigate the complaint. This written notice must include the reason for the extended investigation and the date by which the investigation is expected to conclude.

          2. Investigation and Review The investigation may consist of personal interviews with the complainant, the respondent, and any others who may have knowledge of the alleged harassment or the circumstances giving rise to the complaint. The investigation will consider witnesses and evidence from both the complainant and the respondent. The investigation may also consist of the inspection of any other documents or information deemed relevant by the investigator.

            In determining whether alleged conduct constitutes a violation of this policy, the Division shall consider, at a minimum: (1) the surrounding circumstances; (2) the nature of the behavior; (3) past incidents or past or continuing patterns of behavior; (4) the relationship between the parties; (5) how often the conduct occurred; (6) the identity of the alleged perpetrator in relation to the alleged victim (i.e. whether the alleged perpetrator was in a position of power over the alleged victim); (7) the location of the alleged harassment; (8) the ages of the parties and (9) the context in which the alleged incidents occurred. Whether a particular action or incident constitutes a violation of this policy requires a case-by-case determination based on all of the facts and circumstances revealed after a complete and thorough investigation.

          3. Investigation Report The Compliance Officer will issue a written report to the Superintendent upon completion of the investigation. If the complaint involves the Superintendent, then the report shall be sent to the School Board. The report shall include a determination of whether the preponderance of the evidence, meaning whether it is more likely than not, indicates that this policy was violated and recommendations for corrective action, if any.

          4. Cooperation All employees shall cooperate with any investigation of alleged harassment conducted under this policy or by an appropriate state or federal agency.

        3. Action by the Superintendent

          Within five (5) school days of receiving the investigation report, the Superintendent or designee shall issue a decision regarding (1) whether this policy was violated and (2) what action if any should be taken. This decision must be provided in writing simultaneously to each party. If the Superintendent or designee determines that it is more likely than not that Prohibited Harassment occurred in violation of this policy, the School Division will take prompt, appropriate action to address and remedy the violation, as well as prevent any recurrence. Such action may include discipline up to and including a recommendation for expulsion or discharge. Whether or not the Superintendent or designee determines that Prohibited Harassment occurred, the Superintendent or designee may determine that school-wide or Division-wide training will be conducted and/or that appropriate remedial measures be provided to either or both parties.

        4. Appeal

          Either party may appeal the decision of the Superintendent or designee to the School Board within five (5) calendar days of receiving the decision. Notice of appeal must be filed with the Superintendent, who shall forward the record to the School Board. The School Board shall make a decision within 30 calendar days of receiving the record. The School Board may ask for oral or written argument from either party, the Superintendent, and any other individual the School Board deems relevant. Written notice of the School Board’s decision will be given to each party simultaneously.

          Employees may choose to pursue their complaints under this policy through the relevant employee grievance procedure (509P, Personnel – Grievance Procedures) instead of the complaint procedure in this policy.

      2. Compliance Officer Informal Procedure

        If the complainant and the respondent agree, their principal, designee, or supervisor may arrange for them to resolve the complaint informally with the help of a counselor, administrator, or other professional employee or third party.

        If the complainant and the respondent agree to resolve the complaint informally, they shall each be informed that they have the right to abandon the informal procedure at any time in favor of the initiation of the Compliance Officer Formal Procedures set forth above in Section IV(A). The principal, designee, or supervisor shall notify each party and the Compliance Officer in writing when the complaint is resolved.

    5. Procedure for Complaints involving Sexual Harassment Prohibited by Title IX

      1. Definitions For purposes of this section of the policy, the following definitions shall apply:

        1. Actual Knowledge Actual Knowledge means notice of Sexual Harassment Prohibited by Title IX or allegations of Sexual Harassment Prohibited by Title IX to either the Title IX Coordinator, any official of the school division who has authority to institute corrective measures, or to any employee of an elementary or secondary school.

        2. Complainant The Complainant is an individual who is alleged to be the victim of conduct that could constitute Sexual Harassment Prohibited by Title IX.

        3. Formal Complaint A Formal Complaint is the document filed by the Complainant or signed by the Title IX Coordinator alleging Sexual Harassment Prohibited by Title IX against the Respondent(s) and requesting that the allegation be investigated. A Formal Complaint may be filed with the Title IX Coordinator in person, by mail, or by electronic mail. When the Title IX Coordinator signs a Formal Complaint, the Title IX Coordinator is not a complainant or otherwise a party. The allegations in a Formal Complaint must be investigated. The Title IX Grievance Process below describes the Division’s response to a Formal Complaint.

        4. Program or Activity The School Board’s Program or Activity is defined to include locations, events or circumstances over which the School Board exercises substantial control over both the Respondent and the context in which the sexual harassment occurs.

        5. Respondent The Respondent is an individual who has been reported to be the perpetrator of conduct that could constitute Sexual Harassment Prohibited by Title IX.

        6. Supportive Measures Supportive Measures are 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 School Board’s educational Program or Activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties, the work and 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 locations, leaves of absence, increased security or monitoring of parts of the school or school related activity, and other similar measures. Any Supportive Measures provided to the Complainant or Respondent are maintained as confidential, to the extent that maintaining such confidentiality does not impair the ability to provide Supportive Measures. The Title IX Coordinator is responsible for coordinating the effective implementation of Supportive Measures.

      2. Title IX Grievance Process

        1. Generally

          Any person may report Sexual Harassment Prohibited by Title IX (whether or not the person reporting is the person alleged to be the victim of conduct that could constitute Sexual Harassment Prohibited by Title IX), either 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. The reporting party may use the Report of Harassment Form (Personnel 506R-Appendix- Complaint of Discrimination/Prohibited Harassment and/or Retaliatory Form). Such a report may be made at any time, including 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.

          Complainants and Respondents are to be treated equitably throughout the Title IX Grievance Process. Examples of equitable treatment include Supportive Measures being offered to each party and by following this Grievance Process before the imposition of any disciplinary sanctions or other corrective action against the Respondent. Remedies are designed to restore or preserve equal access to the School Board’s education program or activity.

          Nothing herein precludes a Respondent from being removed from the School Board’s education Program or Activity on an emergency basis, provided that an individualized threat assessment 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 that the Respondent is provided with notice and an opportunity to challenge the decision immediately following the removal. Nothing herein precludes a non-student employee Respondent from being placed on administrative leave during the pendency of a grievance process.

          Applicants for employment, enrolling students, enrolled students, parents or legal guardians, employees, and professional organizations having an agreement with the School Board are notified:

          • of the name or title, office address, electronic mail address, and telephone number of the Title IX Coordinator; and

          • that the School Board does not discriminate on the basis of sex in its education Program or Activity and that it is required by Title IX not to discriminate in such a manner. The notification states that the requirement not to discriminate extends to enrollment and employment and that inquiries about the application of Title IX may be referred to the Title IX Coordinator, the Assistant Secretary for Civil Rights of the United States Department of Education, or both.

          The School Board prominently displays the contact information for the Title IX Coordinator and this policy on its website and in each handbook or catalog it makes available to persons listed above.

          Any Title IX Coordinator, investigator, decision-maker, or any person who facilitates an informal resolution process may not have a conflict of interest or bias for or against complainants or respondents generally or an individual Complainant or Respondent.

          Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process receives training on the definition of Sexual Harassment Prohibited by Title IX, the scope of the School Board’s education Program or Activity, how to conduct an investigation and grievance process including appeals, informal resolution processes, and how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias. Decision-makers 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 receive training on issues of relevance in order to create investigative reports that fairly summarize relevant evidence.

          This grievance process does not allow, rely upon, or otherwise use questions or evidence that constitute, or seek disclosure of, information protected under a legally recognized privilege unless the person holding such privilege has waived the privilege.

          The standard of evidence used to determine responsibility is preponderance of the evidence. All relevant evidence is evaluated objectively, including both inculpatory and exculpatory evidence. Credibility determinations are not based on a person’s status as a Complainant, Respondent, or witness. The Respondent is presumed not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of this grievance process. A finding of responsibility may result in disciplinary action up to and including expulsion for students or dismissal of employees.

        2. Procedure in Response to a Formal Complaint

          1. Initial Contact with Complainant The Title IX Coordinator will promptly contact the Complainant to offer 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, explain the process for filing a Formal Complaint, and consider the Complainant’s wishes with respect to a Formal Complaint.

          2. Dismissal of Formal Complaints A Formal Complaint or any allegations therein must be dismissed if the conduct alleged in the complaint:

            • would not constitute sexual harassment prohibited by Title IX even if proved,

            • did not occur in the School Board’s education Program or Activity, or

            • did not occur against a person in the United States.

            Such a dismissal does not preclude action under Section IV above (Procedure for Complaints Referred to Compliance Officer) or another provision of the School Board’s code of conduct or the Superintendent’s Standards of Student Conduct.

            A Formal Complaint or any allegations therein may be dismissed 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 School Board; or

            • specific circumstances prevent the investigator from gathering evidence sufficient to reach a determination as to the Formal Complaint or allegations therein.

          3. Notice of Allegations On receipt of a Formal Complaint, the Title IX Coordinator gives the following written notice to the parties who are known:

            • notice of the grievance process, including any informal resolution process;

            • notice of the allegations potentially constituting Sexual Harassment Prohibited by Title IX, 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 Prohibited by Title IX, and the date and location of the alleged incident, if known;

            • notice 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 the parties may have an advisor of their choice, who may be, but is not required to be, an attorney, and may inspect and review evidence; and

            • notice of the provisions of this policy and any provisions in the School Board’s code of conduct or the Superintendent’s Standards of Student Conduct that prohibit knowingly making false statements or knowingly submitting false information during the grievance process.

            If, in the course of an investigation, the investigator decides to investigate allegations about the Complainant or Respondent that are not included in the notice previously provided, notice of the additional allegations is provided to the parties whose identities are known.

          4. Investigation of the Formal Complaint When investigating a Formal Complaint and throughout the grievance process, the burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility rests on the School Board and not on the parties, provided that a party’s records that are made or maintained by a physician, 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 are not accessed, considered, disclosed or otherwise used without the voluntary, written consent of the party’s parent, or the party if the party is an eligible student, to do so for this grievance procedure. The following procedures apply during the investigation and before a determination is made:

            1. Notice to Parties Any party whose participation is invited or expected is provided 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.

            2. Witnesses and Evidence The parties have an equal opportunity to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence during the investigation. The ability of the parties to discuss the allegations under investigation or to gather and present relevant evidence is not restricted.

            3. Advisor The parties have the same opportunities to have an advisor present in a non-participatory role 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. The choice or presence of an advisor for either the Complainant or Respondent is not limited in any meeting or grievance proceeding.

            4. Evidentiary Review and Response The investigator provides 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 a Formal Complaint, including the evidence that will not be relied upon in reaching a determination regarding responsibility and inculpatory or exculpatory evidence, whether obtained from a party or other source, so that each party can meaningfully respond to the evidence prior to conclusion of the investigation. Prior to the completion of the investigative report, the investigator must 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 must have at least 10 days to submit a written response, which the investigator will consider prior to completion of the investigative report.

            5. Investigation Report The investigator creates an investigative report that fairly summarizes relevant evidence and, at least 10 days prior to the time a determination regarding responsibility is made, sends to each party and the party’s advisor, if any, the investigative report in an electronic format or a hard copy, for their review and written response.

            6. Submission of Questions After the investigator has sent the investigative report to the parties and before reaching a determination regarding responsibility, the decision-maker must afford each party the opportunity to submit written, relevant questions that the party wants asked of any party or witness, provide each party with the answers, and allow for additional, limited follow-up questions from each party. 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. The decision-maker(s) must explain to the party proposing the question any decision to exclude a question as not relevant.

          5. Determination Regarding Responsibility The decision-maker, who cannot be the same person as the Title IX Coordinator or the investigator, must issue a written determination regarding responsibility within 10 working days of receiving the report. The written determination must include:

            • identification of the allegations potentially constituting Sexual Harassment Prohibited by Title IX;

            • 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 School Board’s code of conduct or the Superintendent’s Standard of Student Conduct to the facts;

            • a statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility, any disciplinary sanctions imposed on the Respondent, and whether remedies designed to restore or preserve equal access to the School Board’s education Program or Activity will be provided to the Complainant; and

            • the procedures and permissible bases for the Complainant and Respondent to appeal.

            The decision-maker must provide the written determination regarding responsibility to the parties simultaneously. The decision-maker’s findings are final if an appeal is not timely received.

            The Title IX Coordinator is responsible for effective implementation of any remedies.

          6. Appeals Either party may appeal a determination regarding responsibility or from a dismissal of a Formal Complaint (or any allegations therein) within 5 school days. The appeal must be submitted to the Title IX Coordinator and will proceed only on the following bases:

            • 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, 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.

            As to all appeals, the Title IX Coordinator:

            • notifies the other party in writing when an appeal is filed and implements appeal procedures equally for both parties;

            • ensures that the decision-maker for the appeal is not the same person as the decision-maker that reached the determination regarding responsibility or dismissal, the investigator, or the Title IX Coordinator; and

            • ensures that the decision-maker for the appeal complies with the standards set forth in Title IX and this policy.

            The appeal decision-maker:

            • gives both parties a reasonable, equal opportunity to submit a written statement in support of, or challenging, the outcome;

            • reviews the evidence gathered by the investigator, the investigator’s report, and the decision-maker’s written decision;

            • issues a written decision describing the result of the appeal and the rationale for the result; and

            • provides the written decision simultaneously to both parties and the Title IX Coordinator.

        3. Timelines

          1. The following timelines apply to this Title IX Grievance Process:

            • The investigative report will be provided to the parties within 35 days from the date the Formal Complaint is filed.

            • A decision will be issued within 10 working days from the date the investigative report is submitted to the decision-maker.

            • Either party may appeal the decision-maker’s findings within 5 working days from the date the written determination regarding responsibility is given to the parties.

            • Any appeal will be resolved with 15 calendar days from the filing of the appeal.

          2. The above timelines may be extended as follows:

          3. If the parties agree to an informal resolution process, these deadlines are tolled from the time one party requests an informal resolution process until either the time the other party responds, if that party does not agree to the informal resolution process, or until either party withdraws from the informal resolution process; or

          4. Temporary delays or the limited extension of time frames for good cause with written notice to the Complainant and the Respondent of the delay or extension and the reasons for the action are permitted. Good cause may include considerations such as the absence of a party, a party’s advisor or a witness; concurrent law enforcement activity; disciplinary processes required by law or School Board policy; or the need for language assistance or accommodation of disabilities.

      3. Informal Resolution Process

        At any time during the Title IX Grievance Process and prior to reaching a determination regarding responsibility, the parties may participate in an informal resolution process, such as mediation, that does not involve a full investigation and determination of responsibility. When one party requests an informal resolution process, the other party must respond to the request within 3 school days. The informal resolution process must be completed within 10 school days of the agreement to participate in the process.

        The informal resolution process may be facilitated by a trained educational professional, consultant, or other individual selected by the Title IX Coordinator under the following conditions:

        • the parties are provided 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; provided, however that at any time prior to agreeing to a resolution, any party has the right to withdraw from the informal resolution process, resume the Title IX Grievance Process with respect to the Formal Complaint, and be informed of any consequences resulting from participating in the informal resolution process, including the records that will be maintained or could be shared;

        • the parties, voluntarily and in writing, consent to the informal resolution process; and

        • the informal resolution process cannot be used to resolve allegations that an employee sexually harassed a student.

        If the matter is resolved to the satisfaction of the parties, the facilitator shall document the nature of the complaint and the resolution, have both parties sign the documentation and receive a copy, and forward it to the Title IX Coordinator. If the matter is not resolved, the Formal Complaint process is resumed.

        Parties cannot be required to participate in an informal resolution process.

        An informal resolution process is not offered unless a Formal Complaint is filed.

      4. Recordkeeping

        The Title IX Coordinator will maintain on behalf of the School Board for a period of seven years records of:

        • each investigation of allegations of Sexual Harassment Prohibited by Title IX including any determination regarding responsibility and any audio or audiovisual recording or transcript, if any, required under the Title IX regulations, any disciplinary sanctions imposed on the Respondent, and any remedies provided to the Complainant designed to restore or preserve equal access to School Board’s education Program or Activity;

        • any appeal and the result therefrom;

        • any informal resolution and the result therefrom; and

        • all materials used to train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process. These materials will also be made available on the School Board’s website.

        For each response required under the above Grievance Procedure, the School Board must create, and maintain for a period of seven years, records of any actions, including any Supportive Measures, taken in response to a report or Formal Complaint of Sexual Harassment Prohibited by Title IX. In each instance, the Title IX Coordinator will document the basis for the conclusion that the Division’s response was not deliberately indifferent, and document that it has taken measures designed to restore or preserve equal access to its education Program or Activity. If a Complainant was not provided Supportive Measures, then the Title IX Coordinator will document the reasons why such a response was not clearly unreasonable in light of the known circumstances.

    6. Retaliation

      Retaliation against students or school personnel who report harassment or participate in any related proceedings is prohibited. The school division shall take appropriate action against students or school personnel who retaliate against any student or school personnel who reports alleged harassment or participates in related proceedings. The Title IX Coordinator will inform persons who make complaints, who are the subject of complaints, and who participate in related investigations how to report any subsequent problems.

    7. Right to Alternative Complaint Procedure

      Nothing in this policy shall deny the right of any individual to pursue other avenues of recourse to address concerns relating to Prohibited Harassment including initiating civil action, filing a complaint with outside agencies, or seeking redress under state or federal law.

    8. Prevention and Notice of Policy

      Training to prevent harassment prohibited by law or by this policy is included in employee and student orientations as well as employee in-service training.

      This policy is (1) displayed in prominent areas of each division building in a location accessible to students, parents and school personnel (2) included in the student and employee handbooks; and (3) sent to parents of all students within 30 calendar days of the start of school. Further, all students, and their parents/guardians, and employees are notified annually of the names and contact information of the Title IX Coordinator and Compliance Officers.

    9. False Charges

      Students or school personnel who knowingly make false charges of harassment shall be subject to disciplinary action as well as any civil or criminal legal proceedings.

     

    Legal Reference(s):
    20 U.S.C. Section(s) 1681-1688.

    29 U.S.C. Section(s) 794.

    42 U.S.C. Section(s) 2000d-2000d-7.

    42 U.S.C. Section(s) 2000e-2000e-17.

    42 U.S.C. Section(s) 2000ff-1.

    34 C.F.R. 106.2, 106.8,106.9, 106,30, 106.44, 106.45, 106.71.

    Bostock v. Clayton County Ga., 140 S.Ct. 1731 (2020).

    Code of Virginia, 1950 as amended, §§ 2.2-3900, 2.2-3901, 2.2.3902, 22.1-23.3, 22.1-295.2.
    8 VAC 20-81-100(N)

     

    Cross Reference(s):
    Policy 217P, Administration- Non-Discrimination

    Policy 402P, Students- Code of Student Conduct

    Regulation 402R-A, Students- Code of Student Conduct

    Policy 403P, Students- Equal Educational Opportunity/Non-Discrimination

    Policy 504P, Personnel- Equal Employment Opportunity/Non-Discrimination

    Policy 506P, Personnel- Prohibition Against Harassment and Retaliation

    Regulation 506R, Personnel-Appendix: Complaint of Discrimination/Prohibited Harassment and/or Retaliatory Conduct Form

    Policy 508P, Personnel-Child Abuse and Neglect Reporting

    Policy 509P, Personnel- Grievance Procedures

    Policy 567P, Personnel- Acceptable Computer System Use

    Regulation 567R-D, Personnel- Maintaining Appropriate and Professional Relationships with Students

    Policy 623P, Community Relations- Service Animals in Public Schools



    Adopted: June 27, 1994
    Amended: September 4, 2001
    Amended: December 15, 2009
    Amended: October 18, 2011
    Amended: August 18, 2020
    Amended: March 16, 2021
    Amended: June 15, 2021