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AP 118 - Title IX Sexual Harassment Greivance Procedures, Requirements and Definitions1 AP118 118 Administrative Procedure Title IX Sexual Harassment Grievance Procedure, Requirements, and Definitions Scope of Procedure This Title IX Grievance Process applies to all members of Idaho Falls School District 91’s community, including students, employees, and Board members as well as District patrons, guests, visitors, volunteers, and invitees. Purpose of This Policy and Procedure Idaho Falls School District 91 is committed to providing a workplace and educational environment, as well as other benefits, programs, and activities, which are free from sex and gender-based harassment, discrimination, and retaliation. Accordingly, the District prohibits harassment and discrimination on the basis of sex, sexual orientation, gender, gender identity, and pregnancy, as well as retaliation against individuals who report allegations of sex and gender-based harassment and discrimination, file a formal complaint, or participate in a grievance process. Students, employees, or other members of the District community who believe that they have been subjected to sex or gender-based harassment, discrimination, or retaliation should report the incident to the Title IX Coordinator, who will provide information about supportive measures and the applicable grievance procedure. Violations of this District procedure or its related policy may result in discipline to either students or employees. Guiding Principles Title IX requires school districts to put into place policies and procedures that promote the goal of Title IX, specifically, to prohibit discrimination based on sex, and to respond appropriately if and when sex discrimination occurs or may occur. Title IX explains that when an appropriate official at the District has “actual knowledge” of “sexual harassment” of a student or employee that occurs in one of its educational programs or activities, the District must respond promptly and in a manner that is not “deliberately indifferent.” This standard does not require a perfect response; rather, it requires a response that is not “clearly unreasonable” in light of the known circumstances over which the District exercises control. Grievance Procedure 1. Receipt of a Complaint, Report, or Information Alleging Sexual Harassment Upon receipt of a complaint or report (whether verbal or written) of possible sexual harassment, the District shall first determine whether to initiate a formal or informal response. Thus, any and all complaints, reports, or information received by any District employee that sexual harassment is occurring or has occurred shall be immediately 2 AP118 forwarded to the District’s Title IX Coordinator or other designated employee for review and action as appropriate. The Title IX Coordinator (Coordinator) shall promptly contact the complainant or reporting party and discuss with them the availability of supportive measures, and will consider the complainant’s wishes with respect to the provision of supportive measures. The Coordinator shall explain the availability of these measures to the complainant with or without the filing of a “formal complaint.” During this initial meeting, the Coordinator or designee shall explain to the complainant the process for filing a written formal complaint, and shall provide assistance to the complainant to ensure the written formal complaint is properly prepared and submitted. Emergency Removal (of students): Nothing in this procedure prevents the District from removing a respondent from a District education program or activity on an emergency basis, provided that an individualized safety and risk analysis is performed by the Coordinator and Superintendent who determine that an immediate threat to the physical health or safety of any student or other individual arise from the allegations of sexual harassment that justify removal. The Coordinator and Superintendent shall provide 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 and requirements under the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act of 1973, or the Americans with Disabilities Act. Administrative Leave (of employees). Nothing in this procedure precludes the District from placing a non-student employee respondent on administrative leave during the pendency of a grievance investigation under this procedure. Notwithstanding the above, prior to placing an employee respondent on administrative leave, the Coordinator or designee shall ensure any rights provided by Section 504 of the Rehabilitation Act of 1973 and/or the Americans with Disabilities Act are not impaired or violated. 2. Providing Supportive Measures If an informal complaint is filed, (for instance, because the complainant does not wish to file a written formal complaint,) as well as during the pendency of the investigation and the decision concluding a formal complaint, the following supportive measures may be implemented to restore or preserve the complainant’s access to the District’s educational programs without unreasonably burdening the other party (also referred to herein as respondent). Supportive measures may include actions taken to protect the safety of all parties or the District’s educational environment, or which otherwise deter sexual harassment from occurring in the future. Additional supportive measures may include, but are not limited to: counseling, the availability of a safe place or person in the event complainant feels threatened or uncomfortable, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, escort services at school, mutual restriction of contact between the parties, changes in work locations, leaves of absence, increased security and/or 3 AP118 monitoring of locations where prohibited conduct has occurred or may occur in the future, as well as additional measures to protect the complainant, provided the supportive measures initiated are not punitive to the respondent. 3. Filing a Written Formal Complaint Upon receipt of a written formal complaint, the Coordinator or designee is required to provide written notice to all known complainants and respondents of the allegations and the resulting investigation. A. General Notice Requirements: The notice will include the District’s Title IX grievance process as well as information regarding the District’s informal resolution process. B. Specific Notice Requirements: The written notice shall include the following information: i. Information describing the alleged conduct potentially constituting sexual harassment, including sufficient details known at the time the notice is prepared to allow the parties to prepare a response prior to the investigator’s initial interview, and shall be delivered to the parties in enough time to allow their preparation for the initial interview. ii. Sufficient details include but are not limited to the identities of the parties involved, the conduct allegedly constituting sexual harassment, the date(s), and location(s) of the incident(s). iii. A statement that the respondent is presumed to not be responsible for the alleged conduct, and that a determination of responsibility will not be made until the conclusion of the grievance process. iv. A statement informing the parties that they are entitled to have an advisor or representative of their choosing who may be, though is not required to be, an attorney, and that the advisor is authorized to review all evidence submitted in the matter. v. The notice must inform the parties that District policy and procedure prohibit knowingly making false statements or knowingly submitting false information to the investigator or at any other time during the grievance process. vi. The notice must warn the parties that retaliation is prohibited. Accordingly, the parties must by informed that no District 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 this procedure, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an 4 AP118 investigation, proceeding, or hearing under this procedure. Retaliation includes circumstances where intimidation, threats, coercion, or discrimination are made for the purpose of interfering with any right or privilege secured by Title IX or this procedure. This includes threatening 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. The District shall keep confidential the identity of: a. 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; b. Any complainant; c. Any individual who has been reported to be the perpetrator of sex discrimination; d. Any respondent; and e. Any witness except: a. As may be permitted by FERPA ( 20 U.S.C. § 1232g) or a FERPA regulation (34 CFR Part 99); b. As required by law; or c. To carry out the purposes of this procedure, including the conduct of any investigation, hearing, or judicial proceeding arising thereunder. Complaints alleging retaliation may be filed as an additional charge or counter-charge under these procedures. C. Additional Charges: If, during the course of the investigation, it is determined based on the information gathered that additional allegations or charges are warranted, an amended notice shall be prepared and submitted to the parties including the new allegations and charges as appropriate. D. Consolidation: The Coordinator may consolidate two or more formal complaints into a single action provided that the allegations of sexual harassment and retaliation arise out of a common set of facts or circumstances and if in the course of an investigation, it is determined that: i. There is more than one respondent and/or more than one complainant; or ii. There are cross-complaints, or additional complaints raised by the original complainant against the original respondent (such as retaliation), or by the respondent against any other party. 5 AP118 4. Conduct of the Investigation, Informal Resolution In the course of their investigation, the District’s Coordinator and designees shall comply with the following requirements. Investigation A. Burden of Investigation: The burden of gathering evidence sufficient to make a determination of responsibility is the responsibility of the District’s investigator(s) and not the parties. However, the District’s investigator is not authorized to access a party’s records that are made or maintained by a health care provider such as a physician, psychiatrist, psychologist, or other recognized health care provider, if the record was made in the course of providing treatment to the party, unless and until written consent from an authorized person is provided to obtain such privileged records for purposes of investigating and resolving the allegations of the formal complaint. B. Evidence Offered by Parties: The parties shall be provided an equal opportunity to call witnesses, including fact and expert witnesses, as well as other inculpatory and exculpatory evidence. C. No Restrictions: The ability of the parties to discuss the allegations under investigation or to gather and present evidence shall not be restricted. D. Equal Representation Rights: All parties shall have the same opportunity to have others present, or to be represented by the advisor of their choice throughout the grievance process, including attendance at related meetings or proceedings. E. Notice of Interviews and Hearings: Adequate notice of the purpose, date, time, place, and the identities of all participants involved shall be provided to any party whose participation at a hearing, interview, or meeting is invited or expected, and allowing sufficient time for the party to prepare and fairly participate. F. Evidentiary Considerations: The investigation shall not consider: i. Incidents not directly related to the possible violation, unless they evidence a pattern; ii. The character of the parties; or iii. Questions and evidence about the complainant’s sexual predisposition or prior sexual behavior, 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, 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. 6 AP118 G. Right to Inspect Evidence: All parties shall be provided equal access to inspect and review any or all evidence gathered during the investigation related to the allegations of the formal complaint, whether or not relied upon or referred to in the investigator’s report. This will ensure that the parties can respond to the evidence prior to the conclusion of the investigation. Prior to completion of the investigation report, the investigator shall provide the parties and their respective advisors, when advisors are identified, a secured electronic or hard copy of the evidence subject to inspection. The parties must have at least ten school days to submit a written response which the investigator shall consider prior to completion of the investigative report. All such evidence shall be made available to all parties at any hearing to give the parties equal opportunity to refer to such evidence during the hearing, including cross-examination of adult parties. H. Investigative Report: At least ten school days prior to a hearing, or other time of determination regarding responsibility, the investigator shall send to all parties and their advisors, if any, by electronic format or hard copy, a copy of the investigative report for the parties’ review and written response. The parties’ responses shall be made part of the record. Informal Resolution: The informal resolution process may include mediation, or other meeting of the parties that does not involve a full investigation and adjudication of the complaint. The District may not require the parties to participate in an informal resolution process. Informal resolution is available only if a written formal complaint was submitted to the Coordinator. If these conditions are satisfied, then at any time during the course of an investigation, but prior to the time of the Decision-Maker’s final determination of responsibility, the parties may request the Coordinator to initiate the informal resolution by process. In so doing, the Coordinator is required to comply with the following: A. Provide the parties with written notice informing them of the allegations at issue and the requirements of the resolution process. These requirements include the fact that a written agreement signed by the parties that resolves the allegations at issue will preclude the parties from resuming the formal complaint process that arose from the same allegations. The parties will also be informed that at any time prior to reaching a resolution, any party has the right to withdraw from the informal resolution process and resume the grievance process with respect to the formal complaint, and will be notified that the records submitted or discussed during the informal process will be maintained by the District as part of the record, and may be used by the Decision- Maker to determine responsibility. B. Require the parties submit voluntary, written consent to participate in the informal resolution process. C. Ensure that the informal resolution process is not made available to resolve allegations that an employee sexually harassed a student. 7 AP118 D. An informal resolution, signed and agreed to by the parties thereto, is not appealable. Dismissal of a Formal Complaint: A written formal complaint may be dismissed by the Coordinator under any of the following circumstances, and prior to a finding of responsibility: A. After investigating the allegations of the written formal complaint, dismissal is required if: i. The Coordinator or designee determines that the conduct alleged in the complaint, even if proven, would not constitute sexual harassment as defined herein; or ii. The alleged conduct did not occur in a District education program or activity; or iii. The alleged conduct did not occur against a person in the United States. Dismissal of the Title IX formal complaint, however, does not preclude action under another provision of the District’s Code of Conduct or other District Policy. B. If the Complainant notifies the Coordinator in writing that he or she would like to withdraw the formal complaint or any allegations contained therein. C. If the respondent is no longer enrolled or employed by the District. D. If specific circumstances exist which prevent the investigator from gathering evidence sufficient to reach a determination regarding the merits of the formal complaint or allegations therein. Upon dismissing a formal complaint, the Coordinator shall simultaneously inform the parties in writing that the complaint has been dismissed, and shall identify the reason(s) for the dismissal. This decision may be appealed in accordance the Appeals portion of this procedure, below. 5. Decision-Maker’s Participation If the matter is not dismissed for one of the reasons set forth above and is not resolved by the parties through the informal resolution process then, (following completion of the investigation, including issuance of the investigator’s final investigation report,) the matter shall be submitted to the Decision-Maker for review and issuance of a determination of responsibility. The Decision-Maker cannot make a determination regarding responsibility until ten school days after the date the final investigation report is transmitted to the parties and the Decision-Maker, unless all parties and the Decision-Maker agree to an expedited timeline. The Coordinator shall designate a single Decision-Maker, and inform the parties and their advisors. 8 AP118 The Decision-Maker(s) may not have had any previous involvement with the investigation. Those who have served as investigators in the investigation cannot serve as Decision- Makers. Those who are serving as advisors for any party cannot serve as Decision-Makers in that matter. The Coordinator is also prohibited from serving as a Decision-Maker in the matter. All objections to any Decision-Maker must be raised in writing. Any written objection must detail the rationale for the objection and must be submitted to the Coordinator no later than two school days after being notified of the Decision-Maker’s identity. Decision-Makers shall not be removed unless the Coordinator concludes that the Decision-Maker’s bias or conflict of interest precludes a fair and impartial consideration of the evidence. The Coordinator shall give the Decision-Maker(s) a list of the names of all parties, witnesses, and advisors. Upon review thereof, if any Decision-Maker believes they cannot make an objective determination, they must recuse themselves from the proceedings. If a Decision- Maker is unsure whether a bias or conflict of interest exists, they shall immediately disclose their concern(s) to the Coordinator and simultaneously inform the parties and their advisors. No less than ten business days prior to any meeting or the decision-making phase of the process, the Coordinator or the Decision-Maker shall send notice to all parties. Once mailed, emailed, or received in-person, Notice will be presumptively delivered. The Notice shall contain the following: A. A description of the alleged violation(s), a list of all policies allegedly violated, a description of the applicable procedures, and a statement of the potential sanctions that could result. B. The time, date, and location of any meeting. C. Any technology that will be used to facilitate the meeting. D. The name and contact information of the Decision-Maker, along with an invitation to object to any Decision-Maker on the basis of demonstrated bias. Such objections must be raised with the Coordinator at least two school days prior to the meeting. E. Information on whether the meeting will be recorded and, if so, information on access to the recording for the parties after the meeting. F. A statement that if any party does not appear at the scheduled meeting, the meeting will only be rescheduled for compelling reasons. G. Notification that the parties may have the assistance of an advisor of their choosing at the meeting. H. A copy of all the materials provided to the Decision-Maker(s) about the matter. I. An invitation for the parties to review and submit a written response to the final investigation report within seven school days of the date of the notice. J. An invitation to each party to submit to the Decision-Maker any written, relevant questions they want the Decision-Maker to ask of any other party or witness within seven school days of the date of the notice. K. An invitation to each party to submit to the Decision-Maker an impact statement, pre- meeting, that the Decision-Maker will review during any sanction determination. 9 AP118 L. An invitation to contact the Coordinator to arrange any disability accommodations, language assistance, and/or interpretation services that may be needed at any meeting or in the decision-making process, at least three school days prior to the meeting/final determination. M. Whether parties can or cannot bring mobile phones or devices into the meeting. Meetings for possible violations that occur near or after the end of a school year, assuming the respondent is still subject to Policy 118 and Administrative Procedure 118AP, and are unable to be resolved prior to the end of the school year will typically be held as soon as possible given the availability of the parties, but no later than immediately upon the start of the following school year. The District will implement appropriate supportive measures intended to correct and remediate any hostile environment while the resolution is delayed. A. Evidentiary Consideration by the Decision-Maker: Whether at a hearing or through an exchange of questions, only relevant, credible evidence will be admitted into evidence and considered by the Decision-Maker. Any evidence that the Decision- Maker determines is relevant and credible may be considered. The Decision-Maker will not consider: i. Incidents not directly related to the possible violation, unless they evidence a pattern; ii. The character of the parties; or iii. Questions and evidence about the complainant’s sexual predisposition or prior sexual behavior, 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, 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. Previous disciplinary action of any kind involving the respondent may be considered in determining an appropriate sanction upon a determination of responsibility. This information may only be considered at the sanction stage of the process and cannot be shared with the Decision-Maker until that time. The parties may each submit a written impact statement for the consideration of the Decision-Maker(s) at the sanction stage of the process when a determination of responsibility is reached. B. Exchange of Questions Procedure: At the time the matter is referred to the Decision-Maker, the Coordinator shall initiate an exchange of questions procedure, and shall so inform all parties and their advisors. Upon their selection, the Decision- Maker shall review the evidence and issue a determination of responsibility based on the following circumstances and procedures. 10 AP118 C. Exchange of Questions Procedure: After the Coordinator or designee has submitted the investigative report to the parties pursuant to this procedure and before reaching a determination regarding responsibility, the Decision-Maker shall provide each party an opportunity to submit written, relevant questions that party desires to ask of any party or witness, and shall subsequently provide each party with the answers. The Decision-Maker will also allow for additional, limited follow-up questions from each party to the other, and provide both with complete copies of the answers. Upon receipt of the proposed questions, the Decision-Maker will review the proposed questions and determine which questions will be permitted, disallowed, or rephrased. The Decision-Maker shall limit or disallow any questions that are irrelevant, repetitive (and thus irrelevant), or abusive. The Decision-Maker shall have full authority to decide all issues related to questioning and determinations of relevance. The Decision-Maker may ask a party to explain why a question is or is not relevant from their perspective. The Decision-Maker shall explain any decision to exclude a question as not relevant or to reframe it for relevance. Whether a hearing is held or not, questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant: i. 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 ii. 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. This basis for asking questions or presenting evidence shall not be allowed if the respondent is an adult, non-student employee, because consent is not a recognized defense in cases where the complainant is a student and the respondent is an employee. The Decision-Maker, after any necessary consultation with the parties, investigator(s), and/or Coordinator, shall provide the parties and witnesses with: i. The relevant written questions to be answered; and ii. A deadline for the parties and witnesses to submit written responses to the questions and any appropriate follow-up questions or comments by the parties. The exchange of questions and responses by the parties and witnesses shall be concluded within a ten-school day period. 6. Decision Making Process and Determination Requirements Following its review of the evidence submitted by the investigator and the parties, the Decision-Maker, (who cannot be the Coordinator) shall issue a written determination of responsibility. To reach this determination, the District’s burden of proof —preponderance of 11 AP118 the evidence - must be described, and the burden satisfied, before the respondent can be found responsible for sexual harassment in violation of Title IX. The written determination of responsibility shall include the following information: A. Identification of the allegations potentially constituting sexual harassment in violation of Title IX. B. A description of the procedural steps taken from receipt of the written formal complaint through the determination, including notifications to the parties, interviews of the parties and witnesses, site visits, methods used to obtain other evidence, and hearings used. C. Findings of fact supporting the determination. D. Conclusions regarding application of the District’s code of conduct to the facts. E. A statement of and rationale for the determination as to each allegation, including any determination regarding responsibility, any disciplinary action to be imposed on the respondent, and identification of remedies and measures, if any, that will be provided to restore or preserve equal access to the District’s educational programs and activities to be provided to the complainant. F. Considerations for disciplinary action. Factors considered when determining discipline may include, but are not limited to: i. The nature, severity of, and circumstances surrounding the violation(s); ii. The respondent’s disciplinary history; iii. Previous allegations or allegations involving similar conduct; iv. The need for discipline to bring an end to the Title IX sexual harassment; v. The need for discipline to prevent the future recurrence of Title IX Sexual harassment; vi. The need to remedy the effects of the Title IX sexual harassment; vii. The impact on the parties; and viii. Any other information deemed relevant by the decision-maker G. The discipline imposed shall be implemented as soon as is feasible, either upon the outcome of any appeal or upon the expiration of the window to appeal if no appeal is requested. The sanctions described in this process are not exclusive of, and may be in addition to, other actions taken or sanctions imposed by external authorities. H. Identification of the procedures for filing an appeal and the permissible grounds for complainant or respondent to base their appeal. 12 AP118 The Decision-Maker shall simultaneously provide their written determination to all parties. The determination becomes final either, (where an appeal is filed,) on the date the parties are provided copies of the written determination of the result of the appeal; or, (if no appeal is filed,) the date on which an appeal would no longer be considered timely. The Coordinator is responsible for the effective implementation of any and all remedies set forth in the written determination of responsibility. In the event a student expulsion is recommended, pursuant to and in accordance with the requirements of Idaho Code § 33-205, the Coordinator shall ensure that an expulsion hearing is scheduled and heard by the Board of Trustees. 7. Appeals Any party may file a request for appeal in writing with the Coordinator within three school days of the delivery of the notice of a final decision. A single appeal decision-maker shall chair the appeal. No appeal decision-maker will have been involved in the process previously, including any dismissal appeal that may have been heard earlier in the process. The request for appeal shall be forwarded to the appeal chair for consideration to determine whether the request meets the grounds for appeal. This review is not a review of the merits of the appeal, but solely a determination as to whether the request meets the grounds and is filed in a timely manner. Appeals shall be limited to the following grounds: A. Procedural irregularity that affected the outcome of the matter; B. 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; C. The Coordinator, investigator, or Decision-Maker had a conflict of interest or bias for or against complainants or respondents generally or the specific complainant or respondent that affected the outcome of the matter; Appeal procedure: Upon receipt of a valid appeal, the Coordinator shall: A. Notify the other party in writing that an appeal has been filed, and implement the appeal procedure fairly and equally for both parties. B. Ensure the appeal decision-maker(s) is not: 13 AP118 i. The same person(s) as the Decision-Maker(s) that issued the written determination of responsibility; ii. The person who issued the dismissal; iii. The investigator; or iv. The Coordinator. C. Ensure the appeal decision-maker has been trained in accordance with the requirements of this grievance procedure. D. The appealing party shall have ten school days following the delivery of the notice of the appeal to submit a written statement in support of the appeal and challenging the outcome. The responding party shall have ten school days following the delivery of the appealing party’s statement in support of appeal to submit the responding party’s written statement in opposition to the appeal (and supporting the outcome that is the subject of the appeal). In the event the parties and the appeal decision-maker agree to a different briefing schedule (whether allowing more or less time), the time allowed to prepare a written statement shall be the same for all parties. E. Issue a written decision describing the result of the appeal and identifying the bases and rationale for the decision. F. Provide the written decision simultaneously to all parties. Requirements of the Title IX Grievance Procedure The following requirements apply to the conduct of the Title IX Grievance procedure set forth above. 1. Equitable treatment of the parties: At all times, both complainants and respondents shall be equitably treated by providing remedies to a complainant until a determination of responsibility for sexual harassment has been made against the respondent. No sanction or discipline may be imposed against the respondent unless and until the process required by this procedure has been completed. Until a final determination of responsibility has been issued only “supportive measures” may be initiated that are non-disciplinary or non- punitive and avoid burdening the respondent. Any and all final remedies, however, must be designed to restore or preserve equal access to the District’s education program or activity. Such remedies may include the same individualized services described as ‘‘supportive measures;’’ however, following the decision, such remedies need not be non-disciplinary or non-punitive and need not avoid burdening the respondent 2. Objective evaluation of the evidence: The formal grievance process involves an objective evaluation of all relevant evidence obtained, including evidence that supports the conclusion the respondent engaged in a violation of policy or procedure and evidence that supports the conclusion the respondent did not. Credibility determinations may not 14 AP118 be based solely on an individual’s status or participation as a complainant, respondent, or witness. 3. Lack of bias: Any individual materially involved in the administration of the formal grievance process including the Coordinator, investigator, decision-maker and appeal decision-maker may neither have nor demonstrate a conflict of interest or bias for a party generally, or for a specific complainant or respondent. 4. Title IX training of District participating staff: Any individual designated by the District as a Coordinator, investigator, decision-maker, or any person designated by the District to facilitate an informal resolution process, cannot have a conflict of interest or bias for or against complainants or respondents generally, or against any individual complainant or respondent. The District shall ensure that Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process, receives training on the definition of “sexual harassment” set forth in this procedure, the scope of the District’s education program or activity, how to conduct an investigation and grievance process including hearings, appeals, and informal resolution processes, as applicable, and how to serve impartially, including by avoiding prejudgment of the facts at issue, conflicts of interest, and bias. The District shall 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, as required by this procedure. The District shall also ensure that investigators receive training on issues of relevance to create an investigative report that fairly summarizes relevant evidence, as set forth in this procedure. All materials used to train Coordinators, investigators, decision-makers, and any persons facilitating an informal resolution process, shall not rely on stereotypes based on gender, and must promote impartial investigations and adjudications of formal complaints of sexual harassment, and provide guidance therefor. 5. Presumption of innocence: The District presumes that the respondent is not responsible for the reported misconduct unless and until a final determination is made, in accordance with this procedure, that Policy 118 or Administrative Procedure 118AP prohibiting sex discrimination and sexual harassment has been violated. 6. Promptness: Investigations are completed promptly, normally within 30 school days, though some investigations may take longer, depending on the nature, extent, and complexity of the allegations; availability of witnesses; police involvement; and other factors. The District shall make a good faith effort to complete the investigation as promptly as possible and will communicate regularly with the parties to update them on the progress and timing of the investigation. Notwithstanding the above, The District may undertake a delay in its investigation, lasting from several days to a few weeks, if circumstances require. Such circumstances include but are not limited to a request from law enforcement to temporarily delay the 15 AP118 investigation, the need for language assistance, the absence of parties and/or witnesses, and/or a need for accommodations for disabilities or health conditions. The District shall communicate in writing the anticipated duration of the delay and the reason for it to the parties and provide the parties with status updates if necessary. The District will promptly resume its investigation and formal grievance process as soon as feasible. During such a delay, the District will implement supportive measures as deemed appropriate. District action(s) or processes may be delayed, but are not stopped by, civil or criminal charges involving the underlying incident(s). Dismissal or reduction of those criminal charges may or may not impact on the District’s action(s) or processes. 7. Description of sanctions. The following describes the range of sanctions that may be implemented following a finding of responsibility. Student Discipline: The following are the usual sanctions that may be imposed upon students singly or in combination: A. A warning; B. Required counseling; C. A required substance abuse treatment program; D. Exclusion from participating in extracurricular activities or other District programs/activities; E. Alternative placement; F. Suspension, which may be in-school, out-of-school, long-term, short-term, extended, or other suspensions; G. Expulsion (in compliance with I.C. § 33-205); and H. Other actions: In addition to or in place of the above sanctions, the District may assign any other sanctions deemed appropriate. Employee Sanctions: Sanctions for an employee may include: A. A verbal or written warning; B. A performance improvement plan or management process; C. Enhanced supervision, observation, or review; D. Required counseling; E. Required training or education; F. Probation; G. Denial of pay increase or pay grade; H. Loss of oversight or supervisory responsibility; I. Demotion; J. Transfer; K. Reassignment; L. Assignment to a new supervisor; M. Restriction of professional development resources; 16 AP118 N. Suspension with pay; O. Suspension without pay; P. Termination (in compliance with I.C. § 33-513(5), in the case of certificated employees); Q. Other actions: In addition to or in place of the above sanctions, the District may assign any other sanctions as deemed appropriate. 8. Burden of proof. When determining whether the respondent is responsible for violating Policy 118 or Administrative Procedure 118AP by discriminating based on sex and/or for sexual harassment as defined herein, the decision-maker shall apply the [preponderance of the evidence standard, which means the evidence proves on a more likely than not basis that respondent violated the policy or procedure.] 9. Appeals. Any party may file a request for appeal in writing to the Coordinator within three school days of the delivery of the notice of a final outcome. 10. Supportive measures: Supportive measures are non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the parties. Supportive measures are designed to restore or preserve access to the District’s education program or activity, including measures designed to protect the safety of all parties or the District’s educational environment, and/or deter Title IX sexual harassment. Examples of supportive measures may include, but are not limited to: A. Referral to counseling, medical, and/or other healthcare services; B. Referral to the Employee Assistance Program; C. Referral to community-based service providers; D. Visa and immigration assistance; E. Education of the school community or community subgroup(s); F. Altering work arrangements for employees; G. Safety planning; H. Providing school safety escorts; I. Providing transportation accommodations; J. Implementing contact limitations, such as no contact orders, between the parties (note: allegations of violations of a no contact order will be investigated as collateral misconduct under this process); K. Academic support, extensions of deadlines, or other course or program-related adjustments; L. Emergency warnings; M. Class schedule modifications, withdrawals, or leaves of absence; N. Increased security and monitoring of certain areas of the school; and O. Any other actions deemed appropriate by the Coordinator. 11. Recognition of privileges: At no time during this grievance procedure may any evidence (whether through testimony or documents) be required, admitted, relied upon, or otherwise obtained by asking questions or admitting evidence that constitutes, or seeks 17 AP118 disclosure of, information protected by a legally recognized privilege, unless the person holding the privilege has knowingly and freely waived the privilege. 12. Recordkeeping; A. The District shall maintain for a period of seven years records of: i. Each sexual harassment investigation including any determination regarding responsibility including any audio or audiovisual recording, any disciplinary sanctions imposed on the respondent, and any remedies provided to the complainant designed to restore or preserve equal access to the District’s education program or activity; ii. Any appeal and the result therefrom; iii. Any informal resolution and the result therefrom; and iv. All materials used to train Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process. The District shall make these training materials publicly available on its website. B. For each response to a report of harassment or discrimination based on sex, the District shall 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, the District shall document the basis for its conclusion that its response was not deliberately indifferent, and document that it took measures designed to restore or preserve equal access to the District’s education program or activity. If the District does not provide a complainant with supportive measures, then the Coordinator must document the reasons why such a response was not clearly unreasonable in light of the known circumstances (i.e., was not a result of sex discrimination). The documentation of certain bases or measures does not limit the District in the future from providing additional explanations or detailing additional measures taken or to be taken. Title IX Grievance Procedure Definitions The following definitions apply to the identified terms used in this procedure: “Actual knowledge” means notice of sexual harassment or allegations of sexual harassment to: 1. The District’s Coordinator; or 2. Any District official possessing the authority to institute corrective measures on behalf of the District; or 3. Any employee of the District. 18 AP118 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 District 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 the District. “Notice” as used in this paragraph includes, but is not limited to, a report of sexual harassment to the Coordinator as set forth in this procedure. “Complainant” means an individual who is alleged to be the victim of conduct that could constitute sexual harassment. Under circumstances where a sexual assault is alleged by a student against an adult, non-student employee, the District does not recognize the defense of “consent,” however it is defined. Where the parties are both adults, however, the following definition of “consent” will apply: Consent occurs where there is a knowing, voluntary, and clear grant of permission, by word or action, to engage in sexual activity. Individuals may experience the same interaction in different ways. Therefore, it is the responsibility of each party to determine that the other has consented before engaging in the activity. If consent is not clearly provided prior to engaging in the activity, consent may be ratified by word or action at some point during the interaction or thereafter, but clear communication from the outset is strongly encouraged. Consent may be withdrawn. A person cannot consent if they are unable to understand what is happening or is disoriented, helpless, asleep, or unconscious, for any reason, including by alcohol or other drugs. It is a violation of policy if a respondent engages in sexual activity with someone who is incapable of giving consent, or is otherwise incapacitated. “Incapacitation” occurs when someone cannot make rational, reasonable decisions because they lack the capacity to give knowing, informed consent. For example, they cannot understand the “who, what, when, where, why, or how” of their sexual interaction. “Formal Complaint” means a document filed by a complainant, or signed by the Coordinator, alleging sexual harassment against a respondent and requesting that the District investigate the allegation of sexual harassment. At the time of filing a formal complaint, the complainant must be participating in or attempting to participate in the educational programs or activities of the District. A formal complaint may be filed with the Coordinator in person, by mail, or by electronic mail, or by using the contact information listed on the District’s website. As used in this paragraph, the phrase “document filed by a complainant” means a document or electronic submission, (such as by electronic mail or through an online portal provided for this purpose by the District,) that contains the complainant’s physical or digital signature, or otherwise indicates that the complainant is the person filing the formal complaint. Where the Coordinator signs a formal complaint, the Coordinator is not a complainant or otherwise a party to this grievance procedure, and must otherwise comply with the requirements of this procedure. Respondent means an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment. 19 AP118 Sexual harassment means conduct on the basis of sex that satisfies one or more of the following: 1. “Quid pro quo” harassment, which occurs when a District employee conditions the provision of a District benefit, service, or assistance on an individual’s participation in unwelcome sexual conduct; 2. “Hostile Environment,” which is defined as unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to District education program or activity; or 3. Physical threats and attacks, including “sexual assault,” defined as forcible and non- forcible sex offenses as defined in the Clery Act, or dating violence, domestic violence, or stalking as defined in the Violence Against Women Act. “Supportive measures” means non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the complainant or the respondent in cases where either no formal complaint has been filed, or both before and/or after the filing of a formal complaint. Such measures are designed to restore or preserve equal access to the District’s education program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties or the District’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 services, mutual restrictions on contact between the parties, changes in work locations, leaves of absence, increased security and monitoring of certain areas of the campus, and other similar measures. The District shall maintain as confidential any supportive measures provided to the complainant or respondent, provided that maintaining such confidentiality will not impair the ability of the District to provide the supportive measures. The Coordinator is responsible for coordinating the effective implementation of all supportive measures. “Elementary school” and “secondary school” as used in this procedure refer to a local educational agency, as defined in the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act, a preschool, or a private elementary or secondary school, and include this District. Revision of These Procedures The District reserves the right to make changes to these procedures as necessary, Once those changes are posted online, they shall be in effect. If laws or regulations change or court decisions alter the requirements in a way that impacts these procedures, this document shall be construed to comply with the most recent government regulations or holdings. References: 34 CFR Part 106 Nondiscrimination on the Basis of Sex in Educational Programs or Activities Receiving Federal Financial Aid 20 AP118 Procedure History: Promulgated on: 11/18/2020 Revised on: Reviewed on: 118-F1 Idaho Falls School District 91 STUDENTS 118F1 Notice of Investigation & Allegation Template Note: May also be used for initial Interview Request [DATE] [ADDRESSEE (RESPONDENT AND PARENT/LEGAL GUARDIAN] [MAILING ADDRESS OR (IF DELIVERED VIA EMAIL) EMAIL ADDRESS] Dear [ADDRESSEE]: On [DATE] the [NAME OF OFFICE] received a formal complaint from [COMPLAINANT] (“complainant”) alleging that you may have engaged in behavior that potentially violates District policy, including misconduct alleged on [DATE(S)] at [LOCATION(S)]. Specifically, it is alleged that you [APPROPRIATELY DETAILED DESCRIPTION]. This letter serves as formal notice that the District will be conducting a prompt, thorough, and impartial investigation of these allegations pursuant to the procedures detailed in the Policy 118: [LINK]. The District’s Title IX Sexual Harassment Grievance Procedure is compliant with applicable federal and state law, including the 2020 Title IX implementing regulations. A copy of this notice has also been provided to the complainant. Specifically, you are alleged to have violated the following provision(s) of the Policy 118 Sexual Harassment, Discrimination and Retaliation Policy: [ALL POTENTIALLY APPLICABLE POLICY SECTIONS] [ALL POTENTIALLY APPLICABLE SANCTIONS THAT COULD RESULT] You are considered “not responsible” for violating District policy, unless and until a preponderance of the evidence proves that a violation of policy has occurred. The burden is on the District to gather evidence, investigate the allegations, summarize all relevant evidence in a final investigation report, and make a final determination of responsibility (subject to appeal). No determination of responsibility will made until the conclusion of the process and after the parties have been given an opportunity to inspect, review, and respond to all directly related and/or relevant evidence obtained by the District. Should the allegations need to be modified, or if additional allegations emerge over the course of this investigation, this office will provide you with an updated and revised Notice of Investigation and Allegations. 118-F2 Below, you will find details included to ensure that the District process is transparent to you, so that you fully understand your rights and the District’s procedures. 1. The District’s applicable procedures can be found online at [LINK]. If you need a hardcopy or accessible copy of these procedures, you should direct a request to [INDIVIDUAL OR DEPARTMENT] with contact information. 2. You are expected to preserve any evidence in your possession related to the allegations. Examples include, but are not limited to, screenshots of social media posts or electronic conversations (e.g., Snapchat, Facebook Messenger, WhatsApp, TikTok, text messages, etc.), written communication, audio or video recordings, photos, receipts, call logs, or any other relevant information. 3. Please plan to bring all evidence, documents, and items that you believe will be helpful to the investigator(s) to your interview or provide them beforehand. Originals are preferred to copies, and all materials should be in unaltered form. Expect that you will be asked to verify the accuracy and authenticity of evidence you provide. If information is stored on an electronic device (e.g., cell phone) it is recommended that you be able to show the device itself to the investigator(s) during the interview. 4. You may not record any meetings pursuant to this process. Doing so is a violation of Procedure 118AP. If the District records any meeting related to the investigation, a copy of the recording will be made available to you. 5. Breaks are permitted during the interview, upon request. 6. You should plan to be available for the interview for at least [LENGTH OF TIME]. 7. You may bring materials into the interview that are relevant to the investigation, but no other materials, bags, backpacks or personal items are permitted. Your phone should be silenced if you will have one with you. 8. You will be permitted to ask questions of the investigator(s), and should be prepared for them to ask many questions of you. Your honesty and cooperation are expected. You are expected to maintain decorum during the interview and to respect the serious nature of the proceedings. 9. The District cannot obligate you to participate in the interview. If you do not intend to attend, please notify [PERSON] at [CONTACT INFORMATION]. 10. Your rights in the process are detailed throughout the District’s procedures. 118-F3 Investigation and Interview [INVESTIGATOR(S)] has/have been assigned to this matter. The investigator(s) are neutral professionals whose role is to objectively collect and compile all available information relevant to the allegations and compose a thorough, detailed investigation report. They will be [taking notes AND/OR recording] during the interview. A summary or transcript of your interview will be provided to you following the interview and you will be asked to verify its accuracy, in writing, to the investigator(s). If you have any questions regarding the qualifications or training of the investigator, please feel free to contact me directly. Similarly, if you have a concern that the investigator is potentially biased or has a conflict of interest, you must raise that issue with me prior to your scheduled interview. At this time, we ask you to schedule an interview with the District’s investigator(s). Two suggested times that work for an appointment to interview you are below, and we have already checked to make sure that these times work with your class schedule. Please contact the investigator(s) at [CONTACT INFORMATION] to confirm which of these times work best for you. 1. [OPTION 1] 2. [OPTION 2] [SPECIFY ANY MEETING PROCEDURES OR CONDITIONS IF THE STUDENT/EMPLOYEE HAS BEEN SUBJECT TO EMERGENCY REMOVAL.] [ONLY INCLUDE IF ISSUING A NO CONTACT ORDER BETWEEN THE PARTIES: No Contact Order Effective immediately, I am instituting a no contact order that prohibits you and the complainant from having direct or indirect contact with one another. This information will also be provided to the complainant and other appropriate officials as needed. This order is not a determination that Policy 3085 has been violated. If you have questions or concerns about the no contact order, please contact me.] Advisors You have the right to an advisor of your choosing, who can be an attorney, to accompany you to all meetings, interviews, and hearings and to assist you in this process. If you would prefer that the school/district appoint a school/district-trained advisor for you, please let me know as soon as possible. Upon request, a pre-interview meeting between you, your advisor, and the investigator(s) to explain the District process and answer any questions may be arranged by contacting the investigator. 118-F4 Retaliation This letter also serves as a reminder that District policy prohibits retaliation, as defined in Procedure 118AP. Retaliation exists when an individual harasses, intimidates, or takes other adverse actions against a person because of that person’s participation in an investigation or because of their support of someone involved in an investigation. The District will impose sanctions on any faculty, student, or staff member found to be engaging in retaliation, and on individuals who encourage third parties to retaliate on their behalf. If you experience any retaliation, please contact me immediately. False Statements and/or False Information Please also be reminded that Procedure 118AP prohibits making false statements and knowingly providing false information in the course of a District grievance process. To ensure that the investigator can obtain as much accurate and objective information about this matter as possible, please do not suggest to any witness that they distort or align their accounts. Should it be alleged that you have violated these rules, the District reserves the right to address those allegations inside of this process or to address the allegations as a separate matter pursuant to Board Policy 1005.8. Confidentiality You have the right to discuss this matter with your advisor and others, but the District will conduct this investigation confidentially, meaning that it will only share information as permitted or required by law. The District asks for your discretion in what you choose to share and hopes that you will respect the private and sensitive nature of these allegations. The complainant has been provided with the same information. Campus Resources I understand that receiving this notice may result in many questions and potential distress. I encourage you to avail yourself of any of the following resources that you may find helpful as you work to resolve this matter. [OPTIONAL: Counselor {SERVICES PROVIDED AND CONTACT INFORMATION} {ANY OTHER INTERNAL OR EXTERNAL APPLICABLE SUPPORTIVE SERVICES} {DESCRIPTION OF SERVICES PROVIDED AND CONTACT INFORMATION}] 118-F5 Disability Services If you or another individual needs reasonable accommodations due to a qualifying disability in order to fully and meaningfully participate in this process, please contact [OFFICE] at [PHONE NUMBER] prior to any meeting or interview in which reasonable accommodations may be needed. Should you have any questions about the process and/or the interview, please contact your investigator(s) for this matter at [PHONE NUMBER] or [EMAIL ADDRESS]. Sincerely, [NAME] Title IX Coordinator [CONTACT INFORMATION] 118F-2 Idaho Falls School District 91 STUDENTS 118F2 Sexual Misconduct Reporting Form for Students School ______________________________________________ Date ___________________ Student’s Name________________________________________________________________ (If you feel uncomfortable leaving your name, you may submit an anonymous report, but please understand that an anonymous report will be much more difficult to investigate. We assure you that we’ll use our best efforts to keep your report confidential.) Who was responsible for the harassment or incident(s)? ________________________________ _____________________________________________________________________________ Describe the incident(s): _________________________________________________________ _____________________________________________________________________________ _____________________________________________________________________________ Date(s), time(s), and place(s) the incident(s) occurred: _________________________________ _____________________________________________________________________________ _____________________________________________________________________________ Were other individuals involved in the incident(s)? yes no If so, name the individual(s) and explain their roles: ___________________________________ _____________________________________________________________________________ _____________________________________________________________________________ _____________________________________________________________________________ Did anyone witness the incident(s)? yes no If so, name the witnesses: ________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ 118F-2 Did you take any action in response to the incident? yes no If yes, what action did you take? __________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ Were there any prior incidents? yes no If so, describe any prior incidents: _________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ Signature of complainant________________________________________________________ Signatures of parents/legal guardian________________________________________________