Dismissal Prior to a Determination of Responsibility:
The District will dismiss the formal complaint if:
- the conduct alleged in the formal complaint would not constitute sexual harassment as defined in § 106.30;
- if the conduct as alleged did not occur in a District education program or activity; or
- If the conduct did not occur in the United States.
Dismissal on these grounds does not preclude the District from taking disciplinary action against a named respondent on some basis other than sexual harassment.
The District may dismiss a formal complaint or any allegations therein, if at any time during the investigation or hearing:
- a complainant notifies a Title IX Coordinator in writing that the complainant would like to withdraw the formal complaint or any allegations therein;
- the respondent is no longer enrolled or employed by the recipient; or
- specific circumstances prevent the District from gathering evidence sufficient to reach a determination as to the formal complaint or allegations therein.
Any discretionary dismissal requires approval by the Superintendent or Superintendent’s designee upon recommendation by a Title IX Coordinator.
If a formal complaint is dismissed the District will promptly issue written notice of the dismissal and reason(s) therefor simultaneously to the parties.
Official Roles in the Formal Complaint Process
Individuals serving in official roles in the formal complaint process must be trained as required by law. Training materials will be made available on the District’s website.
No person acting in an official role in the grievance process shall proceed in that role if they have a conflict of interest for or against any complainant or respondent. Any concern regarding a conflict of interest should be raise in writing with a Title IX Coordinator. Concerns about a conflict of interest attributable to a Title IX Coordinator should be submitted to the Superintendent in a prompt manner.
A Title IX Coordinator may serve as an Investigator in the formal complaint process or may direct that another employee shall serve in that capacity. The Investigator is responsible for compiling the evidence and any other investigative work product that is to be presented to the decision maker.
The Decision Maker will make decisions concerning responsibility, remediation and discipline based on the materials provided by the Investigator. A Title IX Coordinator may not serve as a Decision Maker.
The Formal Complaint Process with Standard Timelines.
The District has the primary responsibility for gathering evidence and meeting any burden of proof.
Any stage in the formal complaint process may delayed temporarily for good cause. Examples of good cause include but are not limited to: law enforcement involvement, absence of a party, witness or advisor, translation or accommodation needs, or a state of emergency. When the there is reason to delay the process, the District should issue written notice to both parties explaining the reason for the delay.
A District Title IX Coordinator or designee will issue written notice to all known parties to a complaint within five (5) business days of receipt of a formal complaint.
APPENDIX B - NOTICE OF FORMAL GRIEVANCE OF SEXUAL HARASSMENT includes prompts for the required elements of the written notice.
The Investigator will collect and compile evidence in a prompt manner. The evidence collection process should be completed within thirty (30) days unless there is good cause for delay.
All parties will have any equal opportunity to present evidence and the District will not restrict a party’s ability to discuss the allegations or gather and present evidence.
Parties will have equal opportunities to be present at interviews and formal proceedings. Parties who are invited or expected to attend any investigative interview, hearing, or other meeting should receive advance written notice with the date, time, participants, purpose, and location. In any instance that a party may be present their advisor may be present as well.
The District may conduct interviews outside the presence of all observing parties if (unofficial) transcripts or recordings of the interviews are made available in the evidence shared with the parties. Interviews may be redacted as appropriate prior to sharing if content is not relevant to the complaint or is otherwise privileged or legally protected from disclosure.
All parties (including their advisors, if any) will have an equal opportunity to review the evidence directly related to the allegations in the formal complaint. Related evidence can include evidence that the District does not intend to rely on as well as exculpatory or inculpatory evidence from any source. Access to the evidence shall be provided to the parties prior to the completion of the investigator’s report and in time to give the parties at least ten (10) days to submit a written response which can include supplemental evidence. The investigator will review any timely supplemental submissions evidence prior to completing the investigator’s report.
Within five (5) business days after the expiration of the ten (10) day period for submitting written responses to the evidence, the Investigator will issue a report (“the investigator’s report”) that catalogues and summarizes relevant evidence.
The investigator’s report and the relevant evidence it catalogues will be shared with all parties and the Decision Maker on the date of issue.
The parties may submit objections to the investigator’s report any time within ten (10) business days from its issuance. The objections should be made available to all parties at the time of submission. Parties may submit rebuttals to objections within five (5) business days.
With or without a hearing, each party will have the opportunity to submit proposed questions to be asked of any party or witness who has had their statements quoted, included or referenced in the report or relevant evidence.
If there is no hearing, the questions must be submitted in writing to the Investigator and the Decision Maker within ten (10) days of the issuance of the investigator’s report.
If there is no hearing, the questions must be submitted in writing to the Investigator and the Decision Maker within ten (10) days of the initial sharing of the report and relevant evidence.
If there is no hearing, the Decision Maker has five (5) business days from the expiration of the submission period to approve any propounded questions as appropriate and should be allowed. The key determining factor is whether the questions seek relevant and non-privileged information. The Decision Maker may modify questions based on concerns regarding relevance, privilege and the form of the question. The Decision Maker may also submit their own questions for parties and witnesses at this time.
If there is no hearing, the Investigator will make reasonable and prompt efforts to propound the questions approved and issued by the Decision Maker to parties and witnesses for whom the questions are directed. The Investigator will use the means and method that the Investigator deems appropriate to seek answers. The answers to questions that the Investigator obtains will be shared with the Decision Maker and the parties upon the completion of this process. Parties are required to answer questions that the Decision Maker has approved. If non-party witnesses are unavailable or otherwise unwilling to answer questions that will be noted by the Investigator. This process should be completed in twenty (20) days unless there is good cause to extend the time.
If there is no hearing, the parties have five (5) business days to submit follow-up questions in writing to the Investigator and the Decision Maker. The Decision Maker will have five (5) business days from the expiration of the submission period to approve, modify and submit their own follow-up questions to the Investigator. The Investigator is then charged with making reasonable and prompt efforts to propound questions based as described above. The process of propounding follow-up questions and obtaining responses should be completed in fourteen (14) days unless there is good cause to extend the time.
The Decision Maker will issue a decision within ten (10) business days of the conclusion of the supplemental questioning process.
Parties who are unable to submit or receive timely electronic communications will receive assistance from the District upon request.
Notes on Evidence
Evidence about the complainant's sexual predisposition or prior sexual behavior are not relevant, unless such evidence is 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 District will not require, allow, or use evidence or questions that constitute or seek legally privileged information, unless the privilege is waived.
The District will not access, consider, disclose, or otherwise use a party's records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional's or paraprofessional's capacity, or assisting in that capacity, and which are made and maintained in connection with the provision of treatment to the party, unless the recipient obtains that party's voluntary, written consent to do so in a grievance process.
Educational records are largely irrelevant to allegations of sexual harassment. Examples of relevant educational records are records describe instances where harassment is alleged to have taken place or include information that tends to demonstrate means, opportunity, intent or motive of harassment or allegations of harassment. The Investigator should minimize the scope of the disclosure of educational records in possession of the District to portions that are materially relevant to a particular sexual harassment dispute.
Questions as to whether behavior is a manifestation of a disability is not a defense to allegations of sexual harassment under the proceeding described in this regulation. If a manifestation determination is required, it will take place outside of the formal complaint process. The relevance or review of an educational record in a manifestation determination proceeding does not establish relevance in a sexual harassment proceeding.
The District may establish more extensive rules or standards of evidence for sexual harassment complaints as it deems appropriate.
Determination of Responsibility
The decision maker, who cannot be the investigator or the Title IX coordinator, shall make objective evaluations of all available evidence, both inculpatory and exculpatory, and will not make credibility determinations based on a party’s status as complainant, respondent, or witness.
The decision maker will apply the preponderance of evidence standard to the facts presented and will issue a written determination of responsibility that:
- Identifies the allegations that potentially constitute sexual harassment;
- Describes the District’s procedural steps taken from the receipt of the complaint to the determination;
- Includes findings of fact supporting the determination;
- Includes conclusions regarding application of the code of conduct or relevant conduct-based policies to the facts;
- Includes a statement of, and a rationale for, the result as to each allegation, including a determination of responsibility, any disciplinary sanctions, and whether remedies to restore or preserve equal access to the recipient’s education program or activity will be provided to the complainant; and
- Includes procedures and permissible basis for appeals.
Note: With respect to item “e” above, disciplinary sanctions include possible sanctions that could result and issue from a subsequent Fair Dismissal Act hearing or student disciplinary hearing.
The decision maker will issue their decision using APPENDIX C – DETERMINATION OF RESPONSIBILITY FORM.
The determination of responsibility will be shared by the District with all the parties simultaneously.
Parties to a formal complaint process have the right to appeal a determination of responsibility, or the District’s dismissal of a complaint or any allegations therein, for the following reasons:
- A procedural irregularity that affected the outcome;
- New evidence that was not reasonably available at the time of the determination and could affect the outcome;
- Conflict of interest on the part of a Title IX coordinator, investigator, or decision maker that affected the outcome.
A written appeal must be filed in writing with the Office of the Superintendent within ten (10) days of the issuance of the Determination of Responsibility.
Upon receipt of the written appeal, the District will ensure that written notice is provided to all parties of the appeal and provide all parties an equal opportunity to submit a written statement in support of, or challenging, the determination of responsibility. At the conclusion of the appeal the District will issue a written decision that will be provided to all parties simultaneously.
The Appellate Reviewer may not be a Title IX coordinator, investigator, or initial decision maker, and may not have a conflict of interest or bias against the parties. The decision maker must be trained in accordance with 34 CFR 106.45(b)(1)(iii).
Implementation of Remedies:
A Title IX Coordinator is responsible for effective implementation of any remedies.
The District will keep records related to reports of alleged sexual harassment for a minimum of seven years, including investigation records, disciplinary sanctions, remedies, appeals, and records of any action taken, including supportive measures. (See APPENDIX D - ADMINISTRATIVE RECORD OF INVESTIGATION AND RESPONSE FORM)
Retaliation against any person for the purpose of interfering with Title IX rights or because the person has participated or refused to participate in any manner in a proceeding under Title IX regulations is prohibited. Complaints of retaliation may be addressed under the District’s Title IX grievance process.