Procedure 3205 - Sexual Harassment of Students Prohibited

Anyone may initiate a formal complaint of sexual harassment, even if the informal complaint process is being utilized. At any level in the formal complaint process under state law, the district will take interim measures to protect the complainant before the final outcome of the district’s investigation. The same allegations may qualify as a sexual harassment allegation under federal Title IX regulations, which require actions in addition to the process for investigating sexual harassment allegations under state law. 

The following process will be followed: 

Filing of Complaint 

• All formal complaints will be in writing and will set forth the specific acts, conditions or circumstances alleged to have occurred and to constitute sexual harassment. The Title IX Coordinator may draft the complaint based on the report of the complainant for the complainant to review and approve. The superintendent or Title IX Coordinator may also conclude that the district needs to conduct an investigation based on information in his or her possession, regardless of the complainant's interest in filing a formal complaint.
• The time period for filing a complaint is one year from the date of the occurrence that is the subject matter of the complaint. However, a complaint filing deadline may not be imposed 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. 
• Complaints may be submitted by mail, fax, e-mail or hand-delivery to the district Title IX Coordinator, Tory Christensen, Assistant Superintendent, Secondary at 6972 Keene Rd West Richland, WA, 509-967-6000, tory.christensen@rsd.edu. Any district employee who receives a complaint that meets these criteria will promptly notify the Coordinator. 

Investigation and Response 

• The Title IX Coordinator will receive and investigate all formal, written complaints of sexual harassment or information in the coordinator’s possession that they believe requires further investigation. The Coordinator will delegate his or her authority to participate in this process if such action is necessary to avoid any potential conflicts of interest. Upon receipt of a complaint, the Coordinator will provide the complainant a copy of this procedure. 
• Investigations will be carried out in a manner that is adequate in scope, reliable, and impartial. During the investigation process, the complainant and accused party or parties, if the complainant has identified an accused harasser(s), will have an equal opportunity to present witnesses and relevant evidence. Complainants and witnesses may have a trusted adult with them during any district-initiated investigatory activities. The school district and complainant may also agree to resolve the complaint in lieu of an investigation. 
• When the investigation is completed, the Coordinator will compile a full written report of the complaint and the results of the investigation. 

Sexual Harassment Complaint under Title IX 

The Title IX Coordinator will assess whether a formal complaint of sexual harassment meets the criteria for a Title IX complaint. If so, the district will implement investigation and response procedures under state law, as well as the following additional procedures as required by Title IX regulations. 

Under federal law, the term “sexual harassment” means: 

• an employee of the district conditioning the provision of an aid, benefit, or service on an individual’s participation in unwelcome sexual conduct; 
• conduct that creates a “hostile environment,” meaning 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 education program or activity; or 
• “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). 

Supportive Measures under Title IX 

Once any district employee knows, or in the exercise of reasonable care should know, about possible sexual harassment, the Title IX Coordinator must contact the complainant and offer to provide the complainant with supportive measures. See “interim measures” required under state law above for a similar requirement. Supportive measures must be offered to the complainant, before or after the filing of a formal complaint, or where no formal complaint has been filed. Supportive measures may also be provided to the respondent. Supportive measures are non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the complainant or respondent. Supportive measures should be designed to restore or preserve access to the District’s education program or activity without unreasonably burdening the other party. Supportive measures may include, but are not limited to, 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, leaves of absence, increased security and monitoring of certain areas of the campus, and other similar measures. 

When Additional Title IX Procedures are Required 

The district will implement additional Title IX procedures in response to a sexual harassment complaint when the alleged conduct constitutes sexual harassment as defined by Title IX regulations, and: 

• The written complaint is filed by the complainant of the alleged sexual harassment, by the complainant’s legal guardian, or by the Title IX Coordinator; 
• The complaint requests that the district investigate the allegation(s) of sexual harassment, as defined under Title IX regulations; 
• The complaint is against a named respondent who, at the time of the alleged harassment, was under the control of the school district (such as a student, employee, or volunteer); 
• The alleged sexually harassing conduct occurred in the United States; and 
• The complainant is participating in or attempting to participate in the district’s educational program or activity at the time. 

If the formal complaint is determined to meet the criteria for a Title IX complaint, the district must respond promptly in a manner that is not deliberately indifferent. “Deliberately indifferent” means that the district’s response is clearly unreasonable in light of the known circumstances. The district’s investigation and determination regarding responsibility shall be completed within 30 days unless the parties agree to a different timeline. 

The district will acknowledge receipt of the formal complaint by providing the following written notice to the respondent and complainant: 

• Notice of the complaint, investigation, and grievance processes. 
• Notice of the allegations of sexual harassment with sufficient time for the parties to prepare a response before any initial interview and with sufficient detail. Such sufficient detail includes the identities of the parties involved in the incident if known, the conduct allegedly constituting sexual harassment, and the date and location of the alleged incident if known. 
• Notice that the parties may have an advisor of their choice who may be an attorney or non-attorney, and who may inspect and review evidence of the alleged sexual harassment.
• Notice that the respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility for alleged sexual harassment is made at the conclusion of the grievance process. 
• Notice of any provision in student conduct policies and procedures that prohibits false statements or submitting false information. 

Title IX Informal Resolution Process, See state Informal Complaint Process, above 

At any time prior to a determination regarding responsibility for alleged sexual harassment as defined by Title IX regulations, the district may permit a complainant to waive the formal complaint grievance process in favor of an informal resolution process not involving a full investigation and adjudication, provided that the district obtains the parties’ voluntary, written consent, the district does not offer informal resolution of sexual harassment allegations against a respondent who is an employee of the district, and the district provides the parties with written notice disclosing the allegations, the requirements for the informal resolution process, and the circumstances in which the parties would be precluded from continuing with a formal resolution process for the same allegations. 

A party has the right to withdraw from the informal resolution process and resume the formal Title IX grievance process at any time prior to agreeing to a resolution. The district may not require the waiver of the right to an investigation and adjudication of formal complaints of sexual harassment under Title IX as a condition of enrollment, employment, or enjoyment of any other right, nor may the district require the parties to participate in an informal resolution process. 

Title IX Formal Resolution Process 

The district must investigate allegations contained in a formal complaint. If the conduct alleged would not constitute sexual harassment under Title IX regulations even if proved, did not occur in the district’s education program or activity, or did not occur against a person in the United States, then the recipient must dismiss the formal complaint under Title IX. Such dismissal does not preclude action under another provision of district policy or procedure or under sexual harassment investigation procedures as required by state law. 

The district’s investigation of a Title IX complaint must: 

• Ensure that the district bears the burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility for the alleged sexual harassment. The district may 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 or assisting in their professional capacity and made and maintained in connection with the provision of treatment to the party unless the district obtains the party’s voluntary, written consent to do so. 
• Provide an equal opportunity for the parties to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence; 
• Not restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence; 
• Provide the parties with the same opportunities to have others present 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 an attorney or non-attorney. The district will apply any restrictions regarding the extent to which an advisor may participate equally to both parties; • Provide to a party whose participation is invited or expected written notice of the date, time, location, participants, and purpose of all hearings, interviews, or other meetings, with sufficient time for the parties to prepare to participate; 
• Prior to the completion of an investigative report, provide an equal opportunity for the parties to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in the formal complaint so that each party can meaningfully respond to the evidence prior to the conclusion of the investigation. This includes evidence that the district does not intend to rely on in reaching a determination of responsibility for the alleged sexual harassment, regardless of the source of the evidence. The parties will have at least ten (10) days to submit a written response for the investigator to consider prior to completion of the investigative report. 
• At least ten (10) days prior to a determination regarding responsibility, create an investigative report that fairly summarizes relevant evidence, and send the investigative report in an electronic or hard copy format to each party and each party’s advisor for their review and written response. 
• After transmitting the investigative report to the parties, but before reaching a final determination regarding responsibility, the decision maker must give each party the opportunity to submit written, relevant questions that a 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 they are offered to prove that someone other than the respondent committed the conduct alleged by the complainant or unless they concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent. The decision-maker must explain to the party proposing the questions any decision to exclude a question as not relevant. 

The district’s Title IX investigative and grievance process is not required to include investigative hearings. 

At the conclusion of the investigation, the decision-maker (superintendent or designee) must issue a written determination of responsibility regarding the alleged sexual harassment. The district may choose whether the decision-maker will apply a preponderance of the evidence standard or a clear and convincing evidence standard in Title IX investigations, provided that the same standard will apply to all investigations whether the respondent is a student or an employee. 

The superintendent’s written determination must be issued to the parties simultaneously and must include the following: 

• Identification of the allegations potentially constituting sexual harassment under Title IX regulations; 
• A description of the procedural steps taken from the time of the district’s receipt of the formal complaint through the determination, including any notifications to the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, and hearings held;
• Findings supporting the determination; 
• Conclusions regarding the application of the district’s code of conduct policies 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 education program or activity will be provided to the complainant; and 
• The procedures and bases for appealing the superintendent’s determination. 

Title IX Investigation Appeals 

The district must offer both parties an appeal from the superintendent’s determination regarding responsibility or from the district’s dismissal of any allegations contained in a formal complaint, in addition to the complainant’s right to appeal under state requirements and the respondent’s potential appeal rights under student discipline provisions of district policy and state requirements. 

A party may appeal the determination regarding responsibility on the following bases: 

• Procedural irregularity affecting the outcome of the matter; 
• New evidence that was not reasonably available at the time the determination regarding responsibility was made that could affect the outcome of the matter; 
• The Title IX coordinator, investigator(s), or decision-maker(s) had a conflict of interest or bias for or against complainants or respondents generally or individually that affected the outcome of the matter; or 
• Additional bases as determined by the district. 

Regarding appeal, the district must: 

• Provide written notice to the other party when an appeal is filed; 
• Implement appeal procedures equally for both parties; 
• Ensure that the decision-maker for the appeal is not the same decision-maker who reached the determination regarding responsibility or dismissal, the investigator, or the Title IX Coordinator; 
• Ensure that the decision-maker for the appeal has received the training required for decision-makers as required by this procedure. 
• Provide both parties with a reasonable, equal opportunity to submit a written statement in support of or challenging the outcome of the initial determination; and 
• Issue a written decision describing the result of the appeal and the rationale for the result. 

Emergency Removals for alleged sexual harassment under Title IX 

These additional Title IX sexual harassment procedures do not preclude a school district from removing a student from school on an emergency basis consistent with Policy and Procedure 3200 – Student Conduct Expectations and Reasonable Sanctions and the associated student discipline regulations for emergency expulsion. 

Title IX Investigation Recordkeeping 

The district will maintain records of each Title IX sexual harassment investigation, including any determination regarding responsibility and any audio or audiovisual recording or transcript; any disciplinary sanctions imposed on the respondent, and any remedies provided to the complainant; and any appeal from the result of a determination regarding responsibility, for a period of seven years. 

The district must maintain records of any actions, including supportive measures, taken in response to a report or formal complaint of sexual harassment under Title IX, for a period of seven years. 

Superintendent Response, State Requirements 

• The superintendent will respond in writing to the complainant and the alleged perpetrator within thirty (30) calendar days of 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 will 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 must send a copy of the response to the office of the superintendent of public instruction. 
• The response of the superintendent or designee will include: 1) a summary of the results of the investigation; 2) a statement as to whether a preponderance of the evidence establishes that the complainant was sexually harassed; 3) if sexual harassment is found to have occurred, the corrective measures the district deems necessary, including assurance that the district will take steps to prevent recurrence and remedy its effects on the complainant and others, if appropriate; 4) notice of the complainant’s right to appeal to the school board and the necessary filing information; and 5) any corrective measures the district will take, remedies for the complainant (e.g., sources of counseling, advocacy and academic support), and notice of potential sanctions for the perpetrator(s) (e.g., discipline). 
• The superintendent’s or designee’s response will be provided in a language the complainant can understand and may require language assistance for complainants with limited English proficiency in accordance with Title VI of the Civil Rights Act of 1964. If the complaint alleges discriminatory harassment by a named party or parties, the coordinator will provide the accused party or parties with notice of the outcome of the investigation and notice of their right to appeal any discipline or corrective action imposed by the district. 
• Any corrective measures deemed necessary will be instituted as quickly as possible, but in no event more than thirty (30) days after the superintendent's mailing of a written response, unless the accused is appealing the imposition of discipline and the district is barred by due process considerations or a lawful order from imposing the discipline until the appeal process is concluded. Staff may also pursue complaints through the appropriate collective bargaining agreement process or anti-discrimination policy. 
• The district will inform the complainant and their parent/guardian how to report any subsequent problems. Additionally, the district will conduct follow-up inquiries to see if there have been any new incidents or instances of retaliation, and to promptly respond and appropriately address continuing or new problems. Follow-up inquiries will follow a 

  timeline agreed to by the district and complainant. 

Notice of Appeal and Hearing 

• If a complainant disagrees with the superintendent’s or designee’s written decision, the complainant may appeal the decision to the district board of directors, by filing a written notice of appeal with the secretary of the board within ten (10) calendar days following the date upon which the complainant received the response. 
• The board will schedule a hearing to commence by the twentieth (20th) calendar day following the filing of the written notice of appeal, unless otherwise agreed to by the complainant and the superintendent or for good cause. 
• Both parties will be allowed to present such witnesses and testimony as the board deems relevant and material. 

Board Decision, State Requirements 

• Unless otherwise agreed to by the complainant, the board will render a written decision within thirty (30) calendar days following the filing of the notice of appeal and provide the complainant with a copy of the decision. 
• The decision will be provided in a language that the complainant can understand, which may require language assistance for complainants with limited English proficiency in accordance with Title VI of the Civil Rights Act. 
• The decision will include notice of the complainant’s right to appeal to the Superintendent of Public Instruction and will identify where and to whom the appeal must be filed. The district will send a copy of the appeal decision to the office of the superintendent of public instruction. 

Filing of Complaint, State Requirements 

• If a complainant disagrees with the decision of the board of directors, or if the district fails to comply with this procedure, the complainant may file a complaint with the superintendent of public instruction. 
• A complaint must be received by the Superintendent of Public Instruction on or before the twentieth (20) calendar day following the date upon which the complainant received written notice of the board of directors’ decision, unless the Superintendent of Public Instruction grants an extension for good cause. Complaints may be submitted by mail, fax, electronic mail, or hand delivery. 
• A complaint 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 complaint; 4) A copy of the district’s complaint and appeal decision, if any; and 5) A proposed resolution of the complaint or relief requested. If the allegations regard a specific student, the complaint must also include the name and address of the student, or in the case of a homeless child or youth, contact information. 

Investigation, Determination and Corrective Action, State Requirements 

• Upon receipt of a complaint, the Office of the Superintendent of Public Instruction may initiate an investigation, which may include conducting an independent on-site review. OSPI may also investigate additional issues related to the complaint that were not included in the initial complaint or appeal to the superintendent or 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 complaint and any other noncompliance issues it has identified. The written decision will include corrective actions deemed necessary to correct noncompliance and documentation the district must provide to demonstrate that corrective action has been completed. 
• All corrective actions must 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. 

A complaint may be resolved at any time when, before the completion of the investigation, the district voluntarily agrees to resolve the complaint. OSPI may provide technical assistance and dispute resolution methods to resolve a complaint. 

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

Other Complaint Options 

Office for Civil Rights (OCR), U.S. Department of Education: OCR enforces several federal civil rights laws, which prohibit discrimination in public schools on the basis of race, color, national origin, sex, disability, and age. File complaints with OCR within 180 calendar days of the date of the alleged discrimination. 

206-607-1600 ǀ TDD: 1-800-877-8339 ǀ OCR.Seattle@ed.gov ǀ www.ed.gov/ocr 

Washington State Human Rights Commission (WSHRC): WSHRC enforces the Washington Law Against Discrimination (RCW 49.60), which prohibits discrimination in employment and in places of public accommodation, including schools. File complaints with WSHRC within six months of the date of the alleged discrimination. 

1-800-233-3247 ǀ TTY: 1-800-300-7525 ǀ www.hum.wa.gov 

Mediation 

At any time during the complaint procedure set forth in WAC 392-190-065 through 392-190-075, a 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 may not: 

1) 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; or 2) Have a personal or professional conflict of interest. A mediator is not considered an employee of the district or charter school or other public or private agency solely because he or she serves 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.