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PURPOSE OF POLICY

TSBVI supports all efforts to be more proactive in the elimination of disruptive behavior at school, school-sponsored events and during school travel. Such behavior includes “bullying” (See Policy FFI), disrespect of fell students and school personnel, and other forms of harassment. Harassment for any reason (on the basis of race, ethnicity, gender, actual or perceived sexual orientation, gender identity, disability, age and religion) against students or employees will not be tolerated and appropriate discipline measures will be taken against offenders. In-Service programs to train all school personnel and volunteers to recognize and prevent harassment against or by employees and students will be provided annually and upon hiring/selection. Complaints will be promptly investigated and elimination of harassment is the goal.

This Policy shall apply to all students, employees, and any third party who contracts with TSBVI to provide services to students or employees, upon TSBVI property or during any school program or activity.

While all forms of sex-based discrimination are prohibited at TSBVI, the purpose of this policy is to address, and only to address, sexual harassment (as defined in Title IX and its implementing regulations), that occurs within the educational programs and activities of the School, and to provide a grievance process for investigating and reaching a final determination of responsibility for a formal complaint of sexual harassment. While TSBVI must respond to all “reports” it receives of sexual harassment, the Title IX Grievance Process is initiated only with the filing of a formal complaint.

For harassing conduct which does not meet the definition of sexual harassment under Title IX and this Policy, TSBVI’s response will be governed under other applicable laws and Board policies, such as FB, FFI or other disciplinary procedures.

SEXUAL HARASSMENT UNDER TITLE IX

TSBVI must develop and implement a sexual harassment policy to be included in the School improvement plan. Education Code 37.083 [See BQ]

Sexual abuse of a student by an employee, when there is a connection between the physical sexual activity and the employee's duties and obligations as a school employee, violates a student's constitutional right to bodily integrity. Sexual abuse may include fondling, sexual assault, or sexual intercourse. U.S. Const. Amend. 14; Doe v. Taylor ISD, 15 F.3d 443 (5th Cir. 1994)

TSBVI’s mistreatment of a complainant or respondent in response to a formal complaint of sexual harassment may constitute discrimination on the basis of sex under Title IX. 34 C.F.R 106.45; 20 U.S.C. 1681 [See also FB regarding Title IX]

SEXUAL HARASSMENT PROHIBITED

TSBVI prohibits sexual harassment in the school system education program or activity (regardless of location), based on a person’s race, color, sex, sexual orientation or gender identity, national origin, disability, religion or other basis prohibited by law.

Employees shall not tolerate harassment of students and shall make reports as required at Reporting Procedures, below.

DEFINITION OF SEXUAL HARASSMENT

Sexual harassment of students is conduct that is so severe, pervasive, or objectively offensive that it can be said to deprive the victim of access to the educational opportunities or benefits provided by the School. However, sexual harassment does not include simple acts of teasing and name-calling among school children, even when the comments target differences in gender. Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999)

Prohibited harassment includes dating violence as defined by this policy.

Examples of Harassment

Examples of prohibited harassment may include offensive or derogatory language directed at another person’s religious beliefs or practices, accent, skin color, or need for accommodation; threatening, intimidating, or humiliating conduct; offensive jokes, name calling slurs, or rumors; physical aggression or assault; display of graffiti or printed material promoting racial, ethnic, or other negative stereotypes; or other kinds of aggressive conduct such as theft or damage to property.

SEXUAL HARASSMENT

By An Employee

Sexual harassment of a student by a School employee includes both welcome and unwelcome sexual advances; requests for sexual favors; sexually motivated physical, verbal, or nonverbal conduct; or other conduct or communication of a sexual nature when:

  1. A School employee causes the student to believe that the student must submit to the conduct in order to participate in a school program or activity, or that the employee will make an educational decision based on whether or not the student submits to the conduct; or
  2. The conduct is so severe, persistent, or pervasive that it:
    1. Affects the student’s ability to participate in or benefit from an educational program or activity, or otherwise adversely affects the student’s educational opportunities; or
    2. Creates an intimidating, threatening, hostile, or abusive educational environment.

Romantic or inappropriate social relationships between students and School employees are prohibited. Any sexual relationship between a student and a School employee is always prohibited, even if consensual.

By Others

Sexual harassment of a student, including harassment committed by another student under the School’s disciplinary authority, includes unwelcome sexual advances; requests for sexual favors; or sexually motivated physical, verbal, or nonverbal conduct when the conduct is so severe, persistent, or pervasive that it:

  1. Affects a student’s ability to participate in or benefit from an educational program or activity, or creates an intimidating, threatening, hostile, or offensive educational environment;
  2. Has the purpose or effect of substantially or unreasonably interfering with the student’s academic performance; or
  3. Otherwise adversely affects the student’s educational opportunities.

Examples

Examples of sexual harassment of a student may include, but are not limited to, sexual advances; touching intimate body parts or coercing physical contact that is sexual in nature; jokes or conversations of a sexual nature; and other sexually motivated conduct, communications, or contact.

Necessary or permissible physical contact such as assisting a child by taking the child’s hand, comforting a child with a hug, or other physical contact not reasonably construed as sexual in nature is not sexual harassment.

DATING VIOLENCE

Dating Violence

TSBVI must adopt and implement a dating violence policy to be included in the campus improvement plan. Education Code 37.083 [See BQ]

Dating violence occurs when a person in a current or past dating relationship uses physical, sexual, verbal, or emotional abuse to harm, threaten, intimidate, or control the other person in t a dating relationship, as defined by Family Code 71.0021. Teachers and administrators shall be trained in safety planning, enforcement of protective orders and school-based alternatives to protective orders. TSBVI must provide counseling for affected students and provide awareness education for students and parents. Education Code 37.083, .0831 [See BQ]

For purpose of this policy, dating violence is considered prohibited harassment if the conduct is so severe, persistent, or pervasive that the conduct:

  1. Affects a student’s ability to participate in or benefit from an educational program or activity, or creates an intimidating, threatening, hostile, or offensive educational environment;
  2. Has the purpose or effect of substantially or unreasonably interfering with the student’s academic performance; or
  3. Otherwise adversely affects the student’s educational opportunities.

Examples

Examples of dating violence against a student may include physical or sexual assaults; name-calling; put-downs; or threats directed at the student, the student’s family members, or members of the student’s household. Additional examples may include destroying property belonging to the student, threatening to commit suicide or homicide if the student ends the relationship, attempting to isolate the student from friends and family, stalking, threatening a student’s spouse or current dating partner, or encouraging others to engage in these behaviors.

Designation of Title IX Coordinator

The Superintendent has designated Susan Hauser to coordinate efforts to comply with its responsibilities under Title IX; this position is referred to as the “Title IX Coordinator.” See Exhibit A for contact information.

Parties Entitled to Notice

TSBVI must notify applicants for admission and employment, students, parents or legal guardians, employees, and all professional organizations holding professional agreements with the School (“Parties Entitled to Notice”) of the name, title, office address, electronic mail address, and telephone number of the employee designated as the Title IX Coordinator. 34 CFR 106.8(a)

Notification of Policy

TSBVI must notify the Parties Entitled to Notice, above, that the School does not discriminate on the basis of sex in the education program or activity that it operates, and that it is required by Title IX not to discriminate in such a manner. The notification must state that the requirement not to discriminate in the education program or activity extends to admission and employment, and that inquiries about the application of Title IX to such may be referred to the Title IX Coordinator, or to the assistant secretary for civil rights of the Department of Education, or both. 34 CFR 106.2(d), .8(b)(1)

CORRECTIVE ACTION

The TSBVI Principals, Residential Directors, Director of Human Resources, and the Superintendent shall address alleged harassment of students by employees and shall take corrective measures to address the harassment after investigation. These responsible employees will help the student connect to the Title IX Coordinator. (See Exhibit A for contact information) A school official who has authority to address alleged harassment by employees on the School’s behalf shall take corrective measures to address the harassment or abuse. Gebser v. Lago Vista ISD, 524 U.S. 274 (1998); Doe v. Taylor ISD, 15 F.3d 443 (5th Cir. 1994)

RESPONDING TO STUDENT-STUDENT SEXUAL HARASSMENT

After investigation, the School must reasonably respond to or prevent known student-on-student harassment where the harasser is under the School’s disciplinary authority. Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999) Discipline will occur after investigation of reported harassment as discussed below. OTHER PROHIBITED HARASSMENT

  1. Affects a student’s ability to participate in or benefit from an educational program or activity, or creates an intimidating, threatening, hostile, or offensive educational environment;
  2. Has the purpose or effect of substantially or unreasonably interfering with the student’s academic performance; or
  3. Otherwise adversely affects the student’s educational opportunities.

Reporting

Any person may report sex discrimination, including sexual harassment (whether or not the person reporting is the person alleged to be the victim), 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. Such a report may be made at any time (including during nonbusiness hours) by using the telephone number or electronic mail address, or by mail to the office address, listed for the Title IX Coordinator. [See Exhibit A]

Note: To distinguish the process described below from TSBVI’s general grievance policies [see DGBA, FNG, and GF], this policy refers to the grievance process required by Title IX regulations for responding to formal complaints of sexual harassment as TSBVI’s “Title IX formal complaint process.”

Complaint Procedures

TSBVI must adopt and publish procedures that provide for the prompt and equitable resolution of student and employee complaints alleging any action that would be prohibited by Title IX and a Title IX formal complaint process that complies with 34 CFR 106.45 for formal complaints as defined below.

TSBVI must provide notice to the Parties Entitled to Notice, above, of the School’s procedures and Title IX formal complaint process, including how to report or file a complaint of sex discrimination, and how it will respond.

The requirements of this provision apply only to sex discrimination occurring against a person in an educational program or activity in the United States.

34 CFR 106.8(c)–(d)

TSBVI REPORTING PROCEDURES

Any student who believes that he or she has experienced prohibited harassment should immediately report the alleged acts to a teacher, counselor/social worker, or principal, or directly to the Title IX Coordinator.

Any School employee who receives notice that a student has or may have experienced prohibited harassment is required to immediately report the alleged acts to the Title IX Coordinator designated in Exhibit A.

Any other person who knows or believes that a student has experienced prohibited harassment should immediately report the alleged acts to the Title IX Coordinator designated in Exhibit A.

Reports of known or suspected child abuse or neglect shall be made as required by law. (See Policy FFG)

Timely Reporting

Reports of harassment shall be made as soon as possible after the alleged acts. A failure to promptly report alleged harassment may impair the School’s ability to investigate and address the harassment.

Oral or written reports of prohibited harassment shall normally be made to the Principal or Title IX Coordinator. A person shall not be required to report harassment to the alleged harasser; nothing in this policy prevents a person from reporting harassment directly to the Superintendent.

A report against the Title IX Coordinator may be made directly to the Superintendent; a report against the Superintendent may be made directly to the Board.

If there is reason to believe that the behavior might rise to the definition of abuse, an investigation and corrective action shall be done in accord with Policy FFG and Administrative Procedure P.1.7.

NOTIFICATION OF REPORT

Upon receipt of a report of harassment, a Principal shall immediately notify the Title IX Coordinator named in Exhibit A to this policy.

NOTICE TO PARENTS

Notice to Parents

The Title IX Coordinator shall promptly notify the parent(s) of any student alleged to have experienced prohibited harassment by a School employee or another adult associated with the School. In cases of student-to-student harassment, the School shall promptly notify the parent(s) of any student alleged to have experienced harassment when the allegations presented, if proven, would constitute sexual harassment or other prohibited harassment as defined by TSBVI policy.

Response to Sexual Harassment

Definitions

“Actual knowledge” means notice or awareness of sexual harassment or allegations of sexual harassment to the School’s Title IX Coordinator or any official of TSBVI who has authority to institute corrective measures on behalf of TSBVI, or to any employee of an elementary and secondary school. Imputation of knowledge based solely on vicarious liability or constructive notice is insufficient to constitute actual knowledge. This standard is not met when the only official of the School with actual knowledge is the respondent. The mere ability or obligation to report sexual harassment or to inform a student about how to report sexual harassment, or having been trained to do so, does not qualify an individual as one who has authority to institute corrective measures on behalf of TSBVI. “Notice” as used in this paragraph includes, but is not limited to, a report of sexual harassment to the Title IX Coordinator.

“Complainant” means an individual who is alleged to be the victim of conduct that could constitute sexual harassment.

“Consent” is not defined by the Title IX regulations, nor do the regulations require schools to adopt a particular definition of consent with respect to sexual assault. However, a minor student at TSBVI cannot legally consent to assault or sex with an adult.

“Formal complaint” means a document filed by a complainant, the complainant’s parent or guardian, or signed by the Title IX Coordinator alleging sexual harassment against a respondent and requesting that TSBVI investigate the allegation of sexual harassment. At the time of filing a formal complaint, a complainant must be participating in or attempting to participate in the education program or activity of the School where the formal complaint is filed. A formal complaint may be filed with the Title IX Coordinator in person, by mail, or by electronic mail, by using the contact information required to be listed for the Title IX Coordinator, and by any additional method designated by TSBVI. As used in this paragraph, the phrase “document filed by a complainant” means a document or electronic submission (such as by electronic mail) that contains the complainant’s physical or digital signature, or otherwise indicates that the complainant is the person filing the formal complaint. Where the Title IX Coordinator signs a formal complaint, the Title IX Coordinator is not a complainant or otherwise a party to a Title IX formal complaint, and must comply with the requirements of the Title IX formal complaint process, including the informal resolution process.

“Respondent” means an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment.

“Sexual harassment” means conduct on the basis of sex that satisfies one or more of the following:

  1. A school employee making an aid, benefit, or service of the School conditioned upon 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 can be said to deprive the victim of effectively denies a person equal access to the educational opportunities or benefits provided by the school. Sexual harassment does not include simple acts of teasing and name-calling among school children, however, even when the comments target differences in gender. Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999)
  3. “Sexual assault” as defined in 20 U.S.C. 1092(f)(6)(A)(v), “dating violence” as defined in 34 U.S. 12291(a)(10), “domestic violence” as defined in 34 USC 12291(a)(8), or “stalking” as defined in 34 USC12291(a)(30).

“Supportive measures” means nondisciplinary, nonpunitive 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’s education program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties or the School’s 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, mutual restrictions on contact between the parties, changes in work or School-provided housing locations, leaves of absence, increased security and monitoring of certain areas of the campus, and other similar measures. TSBVI must maintain as confidential any supportive measures provided to the complainant or respondent, to the extent that maintaining such confidentiality would not impair the ability of the School to provide the supportive measures. The Title IX Coordinator is responsible for coordinating the effective implementation of supportive measures.

“Days” means school calendar days when the business offices are open, but shall exclude weekends and non-weekend days when TSBVI is closed (e.g., designated holidays, or any weekday during which TSBVI is closed).

“Decision Maker” means persons with the job duty of making initial determinations of responsibility or deciding appeals with respect to formal complaints of harassment under the Title IX Grievance Process.

“Determination of Responsibility” is the formal finding by the decision maker that the Respondent (accused) did or did not sexually harass the accused, as defined by Title IX.

34 CFR 106.2, .30(a)

Deliberate Indifference

If TSBVI has actual knowledge of sexual harassment in an education program or activity of the School, it must respond promptly in a manner that is not deliberately indifferent. A School is deliberately indifferent only if its response to sexual harassment is clearly unreasonable in light of the known circumstances.

Education Program or Activity

For the purposes of 34 CFR 106.30 [see Definitions, above] and 106.45 [see Process for Title IX Formal Complaint, below], “education program or activity” includes locations, events, or circumstances over which the School exercised substantial control over both the respondent and the context in which the sexual harassment occurs.

34 CFR 106.44(a)

Title IX Coordinator Response

The Title IX Coordinator must promptly contact the complainant to discuss the availability of 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, and explain to the complainant the process for filing a formal complaint. The Title IX Coordinator must respond in this manner with or without a formal complaint and document all such actions. 34 CFR 106.44(b)(1)

Supportive Measures

TSBVI’s response must treat complainants and respondents equitably by offering supportive measures and by following a process that complies with 34 CFR 106.45 before the imposition of any disciplinary sanctions or other actions that are not supportive measures against a respondent. [See Process for Title IX Formal Complaint, below] [For Emergency Removal procedures, see below.]

Constitutional Restrictions

The Department of Education may not deem TSBVI to have satisfied the School’s duty to not be deliberately indifferent under Title IX based on the School’s restriction of rights protected under the U.S. Constitution, including the First Amendment, Fifth Amendment, and Fourteenth Amendment.

34 CFR 106.44(a)

Response to a Formal Complaint

In response to a formal complaint, TSBVI must follow a process that complies with 34 CFR 106.45 [see Process for Title IX Formal Complaint, below]. 34 CFR 106.44(b)(1)

Emergency Removal

The Title IX regulations do not stop a School from removing a respondent from TSBVI’s education program or activity on an emergency basis, provided that the School:

  1. Undertakes an individualized safety and risk analysis;
  2. 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
  3. Provides the respondent with notice and an opportunity to challenge the decision immediately following the removal.

This provision may not be construed to modify any rights under the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act of 1973, or the Americans with Disabilities Act.

34 CFR 106.44(c)

Administrative Leave

The Title IX regulations do not prohibit TSBVI from placing a nonstudent employee respondent on administrative leave during the pendency of a Title IX formal complaint. This provision may not be construed to modify any rights under Section 504 of the Rehabilitation Act of 1973 or the Americans with Disabilities Act. 34 CFR 106.44(d)

Process for Title IX Formal Complaint

For the purpose of addressing formal complaints of sexual harassment, TSBVI’s process must comply with the following requirements. Any provisions, rules, or practices other than those required by TSBVI’s Title IX formal complaint process must:

  1. Treat complainants and respondents equitably by providing remedies to a complainant where a respondent has been determined responsible for sexual harassment, and by following a process that complies with the Title IX regulations before the imposition of any disciplinary sanctions or other actions that are not supportive measures against a respondent. Remedies must be designed to restore or preserve equal access to TSBVI’s education program or activity. Such remedies may include the same individualized services described as supportive measures; however, remedies need not be nondisciplinary or nonpunitive and need not avoid burdening the respondent;
  2. Require an objective evaluation of all relevant evidence—including both inculpatory and exculpatory evidence and provide that credibility determinations may not be based on a person’s status as a complainant, respondent, or witness;
  3. Require that any individual designated by TSBVI as a Title IX Coordinator, investigator, decision-maker, or any person designated by the School to facilitate an informal resolution process, not have a conflict of interest or bias for or against complainants or respondents generally, or an individual complainant or respondent. TSBVI must ensure that Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process, receive training on the definition of sexual harassment, the scope of TSBVI’s education program or activity, how to conduct an investigation and Title IX formal complaint process including appeals, and informal resolution processes, and how to serve impartially, such as by avoiding prejudgment of the facts at issue, conflicts of interest, and bias. TSBVI must ensure that 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.
  4. TSBVI also must ensure that investigators receive training on issues of relevance to create an investigative report that fairly summarizes relevant evidence. [See Investigation of a Formal Complaint, below] Any materials used to train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process, must not rely on sex stereotypes and must promote impartial investigations and adjudications of formal complaints of sexual harassment;
  5. Include a presumption that the respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the Title IX formal complaint process;
  6. Include reasonably prompt time frames for conclusion of the Title IX formal complaint process, including reasonably prompt time frames for filing and resolving appeals and informal resolution processes if TSBVI offers informal resolution processes. And it must include a process that allows for the temporary delay of the Title IX formal complaint process 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. Good cause may include considerations such as the absence of a party, a party’s advisor, or a witness; concurrent law enforcement activity; or the need for language assistance or accommodation of disabilities;
  7. Describe the range of possible disciplinary sanctions and remedies or list the possible disciplinary sanctions and remedies that the School may implement following any determination of responsibility;
  8. State that the standard of evidence to be used to determine responsibility is the preponderance of the evidence standard, apply the same standard of evidence for formal complaints against students as for formal complaints against employees, including faculty, and apply the same standard of evidence to all formal complaints of sexual harassment;
  9. Include the procedures and permissible bases for the complainant and respondent to appeal;
  10. Describe the range of supportive measures available to complainants and respondents; and
  11. Not require, 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.

34 CFR 106.45(b)(1)

Notice of Allegations

Upon receipt of a formal complaint, TSBVI must provide the following written notice to the parties who are known:

  1. ­­­­­of the alleged incident, if known.

The written notice must include a statement that the respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the Title IX formal complaint process. The written notice must inform the parties that they may have an advisor of their choice, who may be, but is not required to be, an attorney and may inspect and review evidence [see Investigation of a Formal Complaint, below]. The written notice must inform the parties of any provision in the School’s code of conduct that prohibits knowingly making false statements or knowingly submitting false information during the Title IX formal complaint process.

If, in the course of an investigation, the School decides to investigate allegations about the complainant or respondent that are not included in the Notice of Allegations, above, TSBVI must provide notice of the additional allegations to the parties whose identities are known.

34 CFR 106.45(b)(2)

Dismissal of a Formal Complaint

TSBVI must investigate the allegations in a formal complaint. If the conduct alleged in the formal complaint would not constitute sexual harassment even if proved, did not occur in TSBVI’s education program or activity, or did not occur against a person in the United States, then TSBVI must dismiss the formal complaint with regard to that conduct for purposes of sexual harassment under Title IX; such a dismissal does not preclude action under another provision of TSBVI’s code of conduct.

TSBVI may dismiss the formal complaint or any allegations therein, 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 TSBVI or specific circumstances prevent TSBVI from gathering evidence sufficient to reach a determination as to the formal complaint or allegations therein.

Upon a dismissal required or permitted pursuant to 34 CFR 106.45(b)(3), TSBVI must promptly send written notice of the dismissal and reason(s) therefor simultaneously to the parties.

Consolidation of Formal Complaints

TSBVI may consolidate formal complaints as to allegations of sexual harassment against more than one respondent, or by more than one complainant against one or more respondents, or by one party against the other party, where the allegations of sexual harassment arise out of the same facts or circumstances. Where a Title IX formal complaint process involves more than one complainant or more than one respondent, references in this provision to the singular “party,” “complainant,” or “respondent” include the plural, as applicable.

34 CFR 106.45(b)(3)–(4)

Investigation of a Formal Complaint

When investigating a formal complaint and throughout the Title IX formal complaint process, TSBVI must:

  1. Ensure that the burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility rests on the School and not on the parties provided that TSBVI cannot 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 School obtains that party’s voluntary, written consent to do so for a Title IX formal complaint (if a party is not an “eligible student,” as defined in 34 CFR 99.3 then the School must obtain the voluntary, written consent of a “parent,” as defined in 34 CFR 99.3) [see FL at Education Records];
  2. Provide an equal opportunity for the parties to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence;
  3. Not restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence;
  4. Provide the parties with the same opportunities to have others present during any Title IX formal complaint 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, and not limit the choice or presence of advisor for either the complainant or respondent in any meeting or Title IX formal complaint proceeding; however, TSBVI may establish restrictions regarding the extent to which the advisor may participate in the proceedings, as long as the restrictions apply equally to both parties;
  5. Provide, to a party whose participation is invited or expected, written notice of the date, time, location, participants, and purpose of all hearings, investigative interviews, or other meetings, with sufficient time for the party to prepare to participate;
  6. Provide 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 upon which the School does not intend to rely 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 completion of the investigative report, the School 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 ten days to submit a written response, which the investigator will consider prior to completion of the investigative report. TSBVI must make all such evidence subject to the parties’ inspection and review available to give each party equal opportunity to refer to such evidence, including for purposes of written cross-examination; and
  7. Create an investigative report that fairly summarizes relevant evidence and send 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.

34 CFR 106.45(b)(5)

INVESTIGATION OF THE CLAIM BY TSBVI 

If a claim is reported orally, the School official shall reduce the report to written form. Even anonymous complaints or rumors may be investigated, or an inquiry opened to resolve the matter.

An equitable investigation of a Title IX complaint requires a trained investigator to gather, analyze and document the available evidence to support reliable decisions, objectively evaluate the credibility of witnesses, synthesize all available evidence (both inculpatory and exculpatory) and consider the unique and complex circumstances of each complaint.

Once an investigation is opened, the School must provide written notice to the accused of the potential violation of the sexual misconduct policy with sufficient details (policy violated, precise misconduct, date and location of alleged incident). Sufficient time to prepare a response must be provided before the initial interview.

Upon receipt or notification of a report or inquiry, the Title IX Coordinator with advice of General Counsel shall determine whether the allegations, if proven, would constitute sexual harassment or other prohibited harassment as defined by School policy. If so, the Title IX Coordinator shall immediately authorize or undertake an investigation by a person free of actual or reasonably perceived conflicts of interest and biases for or against any party.

If appropriate, the School shall promptly take interim action to prevent harassment during the course of an investigation. (See School Action below)

The fair, impartial investigation may be conducted by the designated School official or by a third party designated by the School, such as an outside attorney. When appropriate, the Principal shall be informed of the investigation.

The investigation may consist of gathering evidence, personal interviews with the person making the report, the person against whom the report is filed, and others with knowledge of the circumstances surrounding the allegations. The investigation may also include analysis of other information or documents related to the allegations. Finding of facts will be determined by a preponderance of the evidence to determine whether or not misconduct has occurred and whether a hostile environment has been created that must be redressed.

The School’s obligation to conduct an investigation is not satisfied by the fact that a criminal or regulatory investigation regarding the same or similar allegations is pending.

CONCLUDING THE IMPARTIAL INVESTIGATION

Absent extenuating circumstances, the investigation should be completed within ten school days from the date of the report; however, the investigator shall take additional time if necessary to complete a thorough investigation. If delayed, the Title IX Coordinator will provide written notice to the parties of the reason for the delay.

The investigator shall prepare a written report of the investigation. The report shall be reviewed by the School’s General Counsel and filed with the TSBVI Title IX Coordinator. Notification of the outcome of the investigation shall be provided to both parties in compliance with the Family Educational Rights and Privacy Act (FERPA).

SCHOOL ACTION

During an investigation, interim measures may be required for both the student’s and the accused’s safety. Supportive measures may include counseling, extension of time or other course-related adjustments, modifications of work or class schedules, safety escorts, restrictions on contact between the parties, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of campus or similar accommodations.

After conclusion of the Title IX grievance process, corrective action may include additional training for those involved in the complaint, a comprehensive education program for the campus, counseling for the victim and student accused, follow-up inquiries to determine if any new incidents or any instances of retaliation have occurred, increasing staff monitoring or parent involvement.

If the results of an investigation indicate that prohibited harassment occurred or school policy has been violated, the School shall promptly respond by taking appropriate disciplinary or corrective action reasonably calculated to address the harassment and/or retaliation and prevent recurrence of sexual misconduct to remedy its discriminatory effects.

TSBVI may take disciplinary action based on the results of an investigation, even if the School concludes that the conduct did not rise to the level of harassment or bullying prohibited by law or School policy, but such action must not be retaliatory.

After the School has sent the investigative report to the parties pursuant to 34 CFR 106.45(b)(5)(vii) [see Investigation of a Formal Complaint, above] and before reaching a determination regarding responsibility and possible consequences by the decision-maker, each party must be given the opportunity to submit written, relevant questions that a party wants asked of any party or witness, provide each party with the written 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(if the student is legally competent to give consent). The decision-maker must explain to the party proposing the questions, any decision to exclude a question as not relevant. 34 CFR 106.45(b)(6)(ii)

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. To reach this determination, the School must apply the standard of evidence described at Process for Title IX Formal Complaint, above.

The written determination must include:

  1. Identification of the allegations potentially constituting sexual harassment;
  2. 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, methods used to gather other evidence, and supportive measures;
  3. Findings of fact supporting the determination;
  4. Conclusions regarding the application of the TSBVI code of conduct to the facts;
  5. A statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility, any disciplinary sanctions the School imposes on the respondent, and whether remedies designed to restore or preserve equal access to TSBVI’s education program or activity will be provided by the School to the complainant; and
  6. TSBVI’s procedures and permissible basis for the complainant and respondent to appeal.

The School must provide the written determination to the parties simultaneously. The determination regarding responsibility becomes final either on the date that the School provides the parties with the written determination of the result of the appeal, if an appeal is filed, or if an appeal is not filed, the date on which an appeal would no longer be considered timely.

34 CFR 106.45(b)(7)(i)–(ii)

Implementation of Remedies

The Title IX Coordinator is responsible for effective implementation of any remedies. 34 CFR 106.45(b)(7)(iv )

Appeals

TSBVI must offer both parties an appeal from a determination regarding responsibility, and from TSBVI’s dismissal of a formal complaint or any allegations therein, on the following basis:

  1. Procedural irregularity that affected the outcome of the matter;
  2. 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
  3. The Title IX Coordinator, investigator, or decision-maker had a conflict of interest or bias for or against complainant(s) or respondent(s) generally or the individual complainant or respondent that affected the outcome of the matter.

TSBVI may offer an appeal equally to both parties on additional grounds. As to all appeals, the School must:

  1. Notify the other party in writing when an appeal is filed and implement appeal procedures equally for both parties;
  2. Ensure that the decision-maker for the appeal is not the same person as the decision-maker that reached the determination regarding responsibility or dismissal, nor the investigator, nor the Title IX Coordinator;
  3. Ensure that the decision-maker for the appeal complies with the standards in the Title IX regulations regarding conflict of interest and bias [see Process for Formal Title IX Complaint, item 3, above];
  4. Give both parties a reasonable, equal opportunity to submit a written statement in support of, or challenging, the outcome;
  5. Issue a written decision describing the result of the appeal and the rationale for the result; and
  6. Provide the written decision simultaneously to both parties.

34 CFR 106.45(b)(8)

If a sexual harassment complaint is dismissed for lack of jurisdiction (because the conduct does not fit the definition of sexual harassment), a student, including a complainant or respondent, may choose to appeal through TSBVI Policy FNG, beginning at the appropriate level. A complainant shall be informed of his or her right to file a complaint with the United States Department of Education Office for Civil Rights.

Informal Resolution

TSBVI may not require as a condition of enrollment or continuing enrollment, or employment or continuing employment, or enjoyment of any other right, waiver of the right to an investigation and adjudication of formal complaints of sexual harassment consistent with Title IX. Similarly, TSBVI may not require the parties to participate in an informal resolution process and may not offer an in- formal resolution process unless a formal complaint is filed. However, at any time prior to reaching a determination regarding responsibility, TSBVI may facilitate an informal resolution process, such as mediation, that does not involve a full investigation and appeal provided that the School:

  1. Provides to the parties a written notice disclosing:
    1. The allegations;
    2. 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 and resume the Title IX formal complaint process with respect to the formal complaint; and
    3. Any consequences resulting from participating in the informal resolution process, including the records that will be maintained or could be shared;
  2. Obtains the parties’ voluntary, written consent to the informal resolution process; and
  3. Does not offer or facilitate an informal resolution process to resolve allegations that an employee sexually harassed a student.

34 CFR 106.45(b)(9)

Records Retention

In implementing this policy, the District will comply with state and federal laws regarding the confidentiality of student and employee records. Information and records regarding any disciplinary sanctions imposed on an employee or student will be maintained and disclosed in the same manner as any other disciplinary record.

The Compliance Coordinator will retain investigation files for a time period of no less than 7 years, and investigation determination notices will be permanently retained in individual employee and student files. Where a charge or civil action alleging discrimination, harassment, or retaliation has been filed, all relevant records will be retained until final disposition of the matter.

TSBVI must maintain the following specific records for a period of seven years:

  1. Each sexual harassment investigation including any determination regarding responsibility, any disciplinary sanctions imposed on the respondent, and any remedies provided to the complainant designed to restore or preserve equal access to TSBVI’s education program or activity;
  2. Any appeal and the result therefrom;
  3. Any informal resolution and the result therefrom; and
  4. All materials used to train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process. TSBVI must make these training materials publicly available on its website for review by members of the public.

For each response required under Title IX Coordinator Response, above, TSBVI 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. In each instance, TSBVI must document the basis for its conclusion that its response was not deliberately indifferent, and document that it has taken measures designed to restore or preserve equal access to the School’s education program or activity.

If TSBVI does not provide a complainant with supportive measures, then the School must document the reasons why such a response was not clearly unreasonable in light of the known circumstances. The documentation of certain bases or measures does not limit the School in the future from providing additional explanations or detailing additional measures taken.

34 CFR 106.45(b)(10); See Policy CPC and FL

Retaliation Prohibited

No TSBVI employee or other person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under Title IX.

Examples of retaliation may include threats, rumor spreading, ostracism, assault, destruction of property, unjustified punishments, or unwarranted grade reductions. Unlawful retaliation does not include petty slights or annoyances, but reported conduct will be reviewed in the totality of circumstances to protect complainant against a hostile environment.

Intimidation, threats, coercion, or discrimination, including charges against an individual for code of conduct violations that do not involve sex discrimination or sexual harassment, but arise out of the same facts or circumstances as a report or complaint of sex discrimination, or a report or formal complaint of sexual harassment, for the purpose of interfering with any right or privilege secured by Title IX, constitutes retaliation.

Complaints alleging retaliation may be filed according to the Process for Title IX Formal Complaint above.

The exercise of rights protected under the First Amendment does not constitute retaliation prohibited by Title IX.

Charging an individual with a code of conduct violation for making a materially false statement in bad faith in the course of a Title IX formal complaint proceeding does not constitute retaliation prohibited by Title IX, provided, however, that a determination regarding responsibility, alone, is not sufficient to conclude that any party made a materially false statement in bad faith.

34 CFR 106.71(a)–(b)

Confidentiality

TSBVI must keep confidential the identity of any individual who has made a report or complaint of sex discrimination, including any individual who has made a report or filed a formal complaint of sexual harassment, any complainant, any individual who has been reported as the perpetrator of sex discrimination, any respondent, and any witness, except as may be permitted by the Family Educational Rights and Privacy Act (FERPA) statute, 20 U.S.C. 1232g, or FERPA regulations, 34 CFR part 99, or as required by law, or to carry out the purposes of 34 CFR part 106, including the conduct of any investigation, hearing, or judicial proceeding arising thereunder. 34 CFR 106.71(a)

Privacy

To the greatest extent possible, the School shall respect the privacy of the complainant, persons against whom a report is filed, and witnesses. Limited disclosures may be necessary in order to conduct a thorough investigation and comply with applicable law. Confidentiality shall be preserved as required by state and federal law.

False Claims

A student who intentionally makes a false claim, or offers false statements shall be subject to appropriate disciplinary action.

Prohibited Conduct

In this policy, the term “prohibited conduct” includes discrimination, harassment, dating violence, and retaliation as defined by this policy, even if the behavior does not rise to the level of unlawful conduct.

ACCESS TO POLICY AND PROCEDURES

Information regarding this policy and related procedures shall be distributed annually to School employees and volunteers, and included in the Parent and Student Handbook and the Employee Handbook. Copies of the policy and procedures shall be readily available in the Principals’ offices and the School's website must prominently display the contact information for the Title IX Coordinator and this nondiscrimination policy along with related procedures.

TSBVI must not use or distribute a publication stating that the School treats applicants, students, or employees differently on the basis of sex except as such treatment is permitted by Title IX.

34 CFR 106.8(b)(2)

 

Adopted:         1/26/07

Amended:        11/20/15, 5/31/19, 8/28/20

Reviewed: