3205 Procedure – Sexual Harassment of Students Prohibited

A.    Introduction

Consistent with policy 3205, this procedure establishes a process for a prompt, thorough, and equitable investigation of allegations of sexual harassment, and establishes the appropriate steps to resolve such situations. If sexual harassment is found to have occurred, the district will take immediate action to eliminate the harassment, prevent its reoccurrence, and address its effects. Throughout this procedure, the phrase “sexual harassment” has the definition stated in policy 3205.

This procedure applies to allegations by or on behalf of any district student that has been sexually harassed or sexually assaulted in or related to the school environment, whether by other students, district employees, or third parties involved in district activities. The district has jurisdiction over these complaints pursuant to Title IX of the Education Amendments of 1972, Chapter 28A.640 RCW, and Chapter 392-190 WAC.

B.     Definitions

As used in this procedure:

1.      “Complaint” means a complaint or allegation that (1) is in writing; and (2) sets forth the specific acts, conditions, or circumstances alleged to violate applicable anti-sexual harassment laws.

2.      “Complainant” means the person filing a complaint or, where the context indicates, may refer to the victim of sexual harassment if a complaint was filed by someone on behalf of another person.

C.    Staff Responsibilities

1.      Title IX officer

The Title IX officer is designated by the superintendent to coordinate compliance with Title IX. The Title IX officer’s core responsibilities under this procedure include tracking the district’s response to formal complaints of sexual harassment, determining the appropriate response and remedial actions, and identifying and addressing any patterns or systemic problems revealed by such complaints. Accordingly, the Title IX officer shall have knowledge of all Title IX requirements, of the district’s own policies and procedures on sex discrimination, and of all formal complaints throughout the district that raise Title IX issues. The Title IX officer shall monitor and coordinate the district’s compliance with the requirements of Title IX, Chapter 28A.640 RCW, and this procedure.

The Title IX officer is:

Steve Morse, Director of Teaching and Learning

Bellingham Public Schools

1306 Dupont Street

Bellingham, WA 98225

360.676.6470, ext. 4456

steve.morse@bellinghamschools.org

The name and contact information for the Title IX officer shall be available on the district’s Title IX webpage and shall be posted in other locations as described in this procedure.

2.      School Principals

The principal of each school shall be responsible for posting required notices at schools, accepting informal reports, conducting appropriate informal investigations, converting informal reports into formal complaints where deemed appropriate, directing formal complaints to the Title IX officer, and implementing any school-based remedies.

In the event that the school principal knows of an alleged sexual assault, the principal shall immediately inform both the Title IX officer and appropriate other agencies, such as law enforcement. As with other district staff, the internal reporting responsibilities contained in this procedure do not relieve principals of their mandatory legal obligations to report immediately suspected child abuse or neglect to Child Protective Services or local law enforcement under Chapter 26.44 RCW.

3.      Staff

Those district staff members responsible for reporting alleged instances of sexual harassment, as identified in this section, shall report to either a school principal or the Title IX officer.

The internal reporting responsibilities contained in this procedure do not relieve district staff members of their mandatory legal obligations to report immediately suspected child abuse or neglect to Child Protective Services or local law enforcement under Chapter 26.44 RCW.

All bus drivers, campus security personnel, principals, office of student affairs personnel, and teachers are responsible for reporting any instances of sexual harassment that they personally witness or that are reported to them by any person. In addition, at the elementary school level, all district staff members are responsible for reporting any instances of sexual harassment that they personally witness or that an elementary age student reports directly to them.

District employees who provide or support the provision of counseling, advocacy, health, mental health, or sexual-assault related services to students are not, in all circumstances, required to report instances of sexual harassment that they learn about in the course of their duties providing such services. However, this paragraph does not relieve any employee, including counselors and nurses, of his or her mandatory duty to report suspected child abuse or neglect under Chapter 26.44 RCW.

4.      No Conflict of Interest

The Title IX officer shall not have other job responsibilities that may create a conflict of interest or the appearance of a conflict with his or her duties under this procedure. If a specific report or complaint could present such a conflict, the matter shall be referred to the Assistant Superintendent of Human Resources.

D.    Timeliness of Complaints

A complaint described in this procedure must be filed within one year from the date of the occurrence that is the subject matter of the complaint. However, this complaint filing deadline shall not apply if the complainant was prevented from filing due to: (1) specific misrepresentations by the district that it had resolved the problem forming the basis of the complaint; or (2) withholding of information that the district was required to provide under WAC 392-190-065 or WAC 392-190-005.

E.     Notices to Complainants

All notices and decisions provided to the complainant as described herein shall be provided in a language the complainant can understand. This may require language assistance for complainants with limited English proficiency in accordance with Title VI of the Civil Rights Act of 1964.

F.     Informal Process for Resolution

Anyone may use informal procedures to report and resolve concerns of sexual harassment. Informal reports shall be directed to the school principal, other school administrators, or any teacher. Such a report shall be treated informally and need not be reported to the Title IX officer unless the report is converted into a formal complaint, either by the reporting individual or by the staff member receiving the report. A staff member shall convert into a complaint any informal report involving adults, an incident of severe harassment, or a recurring perpetrator. A staff member shall also convert into a complaint any informal report that could not be resolved to the satisfaction of all concerned. During the course of the informal process, the principal or other involved staff member shall notify the reporting individual of his or her right to file a formal complaint with the Title IX officer.

The reporting individual may request an informal meeting with the principal to resolve his or her concerns. If unable to resolve the issue through this meeting, or if the reporting individual chooses not to pursue this informal process, the reporting individual may submit a formal complaint to the principal or to the Title IX officer.

G.    Formal Process for Resolution

Anyone may initiate a formal complaint of sexual harassment even if the informal resolution process was initially utilized.

Complaints may be submitted by mail, fax, e-mail, or hand delivery to any school or district administrator, including the Title IX officer. A school or district administrator who receives a complaint that meets the criteria described in Section B(1) shall promptly notify the Title IX officer.

The Title IX officer shall ensure compliance with all district responsibilities under this section.

1.      Level One: Complaint to the District

i.      Investigation

Upon receipt of a complaint, the district shall provide the complainant a copy of this procedure.

The district shall conduct a prompt and thorough investigation into the allegations described in the complaint. The investigation shall be performed in a reliable and impartial manner. During the investigation process, the omplainant and any accused party or parties will have an equal opportunity to present relevant evidence. A student may have a trusted adult with him or her during any district-initiated investigatory activities.

All complaints shall be evaluated using a preponderance of evidence standard, meaning that the district shall evaluate whether it is more likely than not that the alleged sexual harassment occurred. Because students can experience the continuing effects of off-campus harassment in the educational setting, the district will consider the effects of off-campus conduct when evaluating whether there is a hostile environment on campus.

If a law enforcement agency is also investigating the reported incident, the district must avoid interfering with that investigation and, as a result, may delay the district’s investigation only so long as necessary for the law enforcement officials to gather evidence. Where such a delay is necessary, the district shall take interim measures to protect the complainant in the educational setting and shall inform the complainant when the district resumes its investigation.

The district and the complainant may agree at any time to resolve the complaint in lieu of an investigation. If the complaint is resolved to the satisfaction of the parties involved, no further action is necessary under this procedure.

Otherwise, when the investigation is completed, the Title IX officer shall ensure that the superintendent is provided a full written report of the complaint and the results of the investigation.

ii.      Superintendent’s Response

The superintendent shall respond to the complainant with a written decision as expeditiously as possible, but in no event later than thirty (30) calendar days following the district’s receipt of the complaint, unless otherwise agreed to by the complainant or if exceptional circumstances related to the complaint require an extension of the time limit. In the event an extension is needed, the district shall notify the complainant in writing of the reason for the extension and the anticipated response date. At the time the district responds to the complainant, the district shall send a copy of the superintendent’s response to the Office of the Superintendent of Public Instruction (“OSPI”). Where appropriate, the district shall also notify the alleged perpetrator of the outcome of the investigation and appropriate notice of his or her right to appeal any discipline or corrective action imposed by the district.

The superintendent’s decision shall include, at a minimum: (1) a summary of the results of the investigation; (2) where appropriate, a statement as to whether a preponderance of the evidence establishes that the complainant was sexually harassed; (3) where appropriate, a statement as to whether evidence establishes that the district has failed to comply with the requirements of Chapter 392-190 WAC or the OSPI guidelines adopted pursuant to WAC 392-190-005; (4) a list of corrective measures deemed necessary to correct any noncompliance or sexual harassment, including assurance that the district will take steps to prevent recurrence and remedy effects on the complainant and others, if appropriate; and (5) notice of the complainant’s right to appeal to the district’s Board of Directors as set forth in state law and this procedure and the necessary filing information, including identification of where and to whom the appeal must be filed.

Corrective measures deemed necessary by the superintendent, in consultation with other appropriate district staff, will be instituted as quickly as possible, but in no event more than thirty (30) calendar days following the superintendent’s mailing of a written decision to the complainant, unless otherwise agreed to by the complainant or unless, where applicable, the alleged perpetrator is appealing the imposition of discipline and the district is prevented by due process considerations or a lawful order from imposing the discipline until the appeal process is concluded.

Either during the course of the investigation or in the superintendent’s response, the district shall inform the complainant, the victim, and/or his or her parent/guardian regarding how to report any subsequent problems. Where appropriate, the district will conduct follow-up inquiries to see whether there have been any new incidents of sexual harassment or any instances of retaliation and will promptly respond and appropriately address continuing or new problems.

2.      Level Two: Appeal to the Board of Directors

If a complainant disagrees with the superintendent’s written decision, the complainant may appeal the decision to the district’s board of directors (“board”) by filing a written notice of appeal with the board’s secretary. This notice of appeal must be filed on or before the tenth (10th) calendar day following the date upon which the complainant received the superintendent’s response.

The board shall schedule a hearing where both the complainant and the district shall be allowed to present such evidence, witnesses, and testimony as the board deems relevant and material. Depending on the allegations in the complaint, other individuals may be allowed to present evidence and witnesses if necessary to satisfy due process considerations. A hearing is not required if the complainant agrees in writing that such a hearing is unnecessary. The board shall render a written decision within thirty (30) calendar days following the filing of the notice of appeal, unless otherwise agreed to by the complainant, and shall provide the complainant with a copy of the decision. The board’s decision shall include (1) notice of the complainant’s right to appeal to the Superintendent of Public Instruction as set forth in state law and this procedure and (2) the necessary filing information, including identification of where and to whom the appeal must be filed. The district shall send a copy of the board’s decision on appeal to OSPI.

3.      Level Three: Appeal to the Superintendent of Public Instruction

If a complainant disagrees with the board’s decision, or if the district fails to comply with this procedure, the complainant may file an appeal with OSPI.

An appeal must be received by OSPI on or before the twentieth (20th) calendar day following the date upon which the complainant received written notice of the board’s decision, unless OSPI grants an extension for good cause. Appeals to OSPI may be submitted by mail, fax, electronic mail, or hand delivery.

An appeal to OSPI must be in writing and include: (1) a description of the specific acts, conditions, or circumstances alleged to violate applicable anti-sexual harassment laws; (2) the name and contact information, including address, of the complainant; (3) the name and address of the district subject to the appeal; (4) a copy of the initial complaint submitted to the district and copies of any written decisions from the district or the board ; and (5) a proposed resolution of the appeal or other relief requested. If the allegations regard a specific student, the complainant must also include the name and address of the student, or in the case of a homeless child or youth, contact information.

Upon receipt of an appeal, OSPI may initiate an investigation, which may include conducting an independent on-site review. OSPI may also investigate additional issues related to the appeal that were not included in the initial complaint or appeals to the district superintendent or the board. Following the investigation, OSPI will make an independent determination as to whether the district has failed to comply with RCW 28A.642.010 or chapter 392-190 WAC and will issue a written decision to the complainant and the district that addresses each allegation in the appeal and any other noncompliance issues it has identified. The written decision will include corrective actions deemed necessary to correct noncompliance and any documentation the district must provide to demonstrate that corrective action has been completed.

All corrective actions shall be completed within the timelines established by OSPI in the written decision unless OSPI grants an extension. If timely compliance is not achieved, OSPI may take action including but not limited to referring the district to appropriate state or federal agencies empowered to order compliance.

An appeal to OSPI may be resolved at any time when, before the completion of the investigation, the complainant or the district voluntarily agrees to resolve the appeal or underlying complaint. OSPI may provide technical assistance and dispute resolution methods to resolve an appeal or the underlying complaint.

4.      Level Four: Administrative Hearing

A complainant or the district that desires to appeal OSPI’s written decision may file a written notice of appeal with OSPI within thirty (30) calendar days following the date of receipt of OSPI’s written decision. OSPI shall conduct a formal administrative hearing in conformance with the Administrative Procedures Act, Chapter 34.05 RCW.

H.    Mediation

At any time during the complaint procedure set forth herein, the district may, at its own expense, offer mediation. The complainant and the district may agree to extend the complaint process deadlines in order to pursue mediation.

The purpose of mediation is to provide both the complainant and the district an opportunity to resolve disputes and reach a mutually acceptable agreement through the use of an impartial mediator. Mediation must be voluntary and requires the mutual agreement of both parties. It may be terminated by either party at any time during the mediation process. It may not be used to deny or delay a complainant’s right to utilize the complaint procedures.

Mediation must be conducted by a qualified and impartial mediator who (1) shall not be an employee of any school district, public charter school, or other public or private agency that is providing education related services to a student who is the subject of the complaint being mediated and (2) shall not have a personal or professional conflict of interest. A mediator is not considered an employee of the district solely because he or she is paid to serve as a mediator.

If the parties reach agreement through mediation, they may execute a legally binding agreement that sets forth the resolution and states that all discussions that occurred during the course of mediation will remain confidential and may not be used as evidence in any subsequent complaint, due process hearing or civil proceeding. The agreement must be signed by the complainant and a district representative who has authority to bind the district.

I.       Alternative Processes

Utilizing this procedure does not prohibit or restrict anyone from reporting a crime to local law enforcement or from pursuing other remedies and procedures afforded by local, state, or federal laws.

Example of alternative complaint procedures include filing a complaint with the United States Department of Education Office for Civil Rights (OCR) within 180 calendar days of the date of the alleged sexual harassment or filing a complaint with the Washington State Human Rights Commission (WSHRC) within six (6) months of the date of the alleged sexual harassment.

OCR’s local contact information is:

(206) 607-1600

TTY/TDD/Voice: (800) 877-8339

OCR.Seattle@ed.gov

www.ed.gov/ocr

WSHRC’s contact information is:

(360) 753-6770 or (800) 233-3247 (toll-free)

TTY: (800) 300-7525

www.hum.wa.gov

The district may hold in abeyance the formal resolution process described in this procedure pending the outcome of any proceeding in state or federal court or before a local, state, or federal agency in which the same claim or claims are at issue, whether under RCW 28A.640.040, 28A.642.040, or any other law. If the district holds the process in abeyance, the Title IX officer shall nevertheless take appropriate steps to prevent retaliation or any further sexual harassment.

Nothing in this procedure prohibits or restricts the processing of grievances by an employee bargaining representative and/or a member of a bargaining unit pursuant to grievance procedures established at the district level by local bargaining agreement.

J.      Discipline and Remedial Action

The district shall take prompt, equitable, and remedial action within its authority on informal reports and formal complaints alleging sexual harassment that come to the district’s attention.

Engaging in sexual harassment shall result in appropriate discipline or other sanctions against offending students or staff. Others who engage in sexual harassment on district property or while at district activities may have their access to district property and activities restricted or contracts cancelled, as appropriate.

The district affirms its commitment that persons found to have been subjected to sexual harassment shall have appropriate district services made reasonably available to them and adverse consequences of sexual harassment shall be reviewed and remedied as appropriate.

K.    Confidentiality

Anyone reporting incidents of sexual harassment or filing a complaint may ask that his or her name or any victim’s name not be disclosed to the alleged perpetrators or that no investigation or disciplinary action be pursued to address the alleged sexual harassment.

The Title IX officer or designee shall evaluate all requests for confidentiality and any requests that the district not pursue an investigation or disciplinary action. While the Title IX officer or designee shall consider seriously all requests for confidentiality, the district cannot guarantee that such requests will be followed considering, among other things, the district’s responsibility to provide a safe and nondiscriminatory environment for all students.

The Title IX officer or designee shall inform a person requesting confidentiality that there are situations where disclosure is required despite a request for confidentiality in order for the district to satisfy mandatory reporting laws, Title IX obligations, or other legal requirements. The Title IX officer or designee shall also inform the person that honoring his or her request may limit its ability to respond fully to the incident, including pursuing any disciplinary action against the alleged perpetrator. The district shall also explain that there are protections against retaliation, and that school officials shall not only take steps to prevent retaliation but also take strong responsive action if it occurs. If the person still desires confidentiality or asks that the district not investigate or seek action against the alleged perpetrator, the district will attempt to honor the request and shall take reasonable steps to respond to the report or complaint consistent with the request, unless disclosure is required.

L.     Reprisal, Retaliation, and False Accusations

No one’s status with the district shall be adversely affected because of his or her use of this procedure.

It is unlawful for any district student or employee to intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with his or her right to file a report or complaint under this procedure. It is also unlawful for any district student or employee to harass, demote, discipline, or otherwise retaliate against anyone because they filed a report or complaint or because they participated in an investigation. The district shall take reasonable steps to protect complainants and witnesses against interference or retaliation by students, employees, or others.

No one shall knowingly or with reckless disregard for the truth make or corroborate false accusations of sexual harassment. However, withdrawal of or failure to prove a claim of sexual harassment is not equivalent to a false allegation. Appropriate discipline or other sanctions may be imposed on individuals who knowingly or with reckless disregard for the truth make or corroborate false accusations of sexual harassment.

M.   Dissemination

In each school building, on each school’s website, and in district administration buildings, the district shall prominently post (1) a copy of policy 3205, (2) age-appropriate information on reporting sexual harassment; (3) information about where detailed procedures may be found; and (4) the name and contact information for the Title IX officer. Copies of policy 3205 and superintendent procedure 3205P shall be available in multiple languages and may be obtained upon request at any school or at the district office.

Reference to the district’s sexual harassment policy and procedures shall be included in any district or school publication specific to students, parents/guardians, staff members, or volunteers that sets forth the rules, regulations, procedures, and standards of conduct for the school or the district, for example student or staff handbooks.

At least once each year, the district shall publish notice in a manner that is reasonably calculated to inform all students, parents/guardians, and employees about the name, office address, and telephone number of the Title IX officer and about the district’s sexual harassment complaint procedures.

N.    Education and Prevention

As a proactive measure to prevent sexual harassment and violence, the Title IX officer shall develop and implement preventive education programs aimed at encouraging students and employees to report incidents of sexual harassment to the appropriate school and law enforcement authorities. The Title IX officer shall ensure that students and employees are provided with age-appropriate information, including curriculum, on the recognition of, response to, and prevention of sexual harassment and on their rights and responsibilities under this and other district policies and rules. This information shall be provided at student, staff, and volunteer orientation sessions and may be provided on other appropriate occasions.

The information provided on the recognition of sexual harassment shall include examples of sexual harassment. For example, sexual harassment may include demands for sexual favors in exchange for preferential treatment or something of value; making unwelcome, offensive, or inappropriate sexually suggestive remarks comments, gestures, or jokes; making remarks of a sexual nature about a person or about a person’s appearance, gender, or conduct; or standing too close to or inappropriately touching, cornering, or stalking a person.

The Title IX officer, designee, and other staff involved in the investigation of and response to allegations of sexual harassment shall be provided with detailed information regarding recommended practices for investigating and responding to instances of sexual harassment, such as those requirements and recommendations discussed in guidance documents from the United States Department of Education’s Office of Civil Rights. Certificated staff will be reminded of their legal responsibility to report suspected child abuse, and how that responsibility may be implicated by some allegations of sexual harassment. Regular volunteers will get the portions of this component of orientation relevant to their rights and responsibilities.

O.    Annual Report

The Title IX officer is responsible for ensuring that the district complies with any data or information reporting requirements of Title IX, Chapter 28A.640 RCW, and this procedure.

The Title IX officer shall prepare an annual report to the superintendent at the conclusion of each school year. The annual report shall include a discussion of: when, where, and how the district disseminated information required by this procedure; any relevant training and curriculum given to staff or students; and a summary of formal complaints made in the previous year. This summary shall indicate, at a minimum, the number of formal complaints, the most common types of harassment experienced, the number of incidents of sexual violence, the most common types of remedies applied, and the number of appeals.

P.     Periodic Review

In every odd numbered year, the Title IX officer shall review the use and efficacy of policy 3205 and this procedure. The Title IX officer shall include any recommended policy or procedure changes arising from this review in the annual report to the superintendent. The Title IX officer may convene an ad hoc committee to assist in this review. If convened, the ad hoc committee shall be composed of representatives of certificated and classified staff, volunteers, students, and parents/guardians.

 

Adopted: 1/14/16
Revised: 1/14/16