Policy - ACAA-R

POLICY: ACAA-R

EFFECTIVE DATE: 11-04-20

CANCELS SHEET DATED: 12-16-15

REPLACES POLICY: ACAA-RB

REVIEWED BY POLICY COMMITTEE: 09-23-20

STUDENT DISCRIMINATION AND HARASSMENT

COMPLAINT PROCEDURE

The RSU #74 Board has adopted these student procedures in order to provide prompt and equitable resolution of reports and complaints of unlawful discrimination and harassment of students, including sexual harassment, as described in policies AC – Nondiscrimination/Equal Opportunity and Affirmative Action and ACAA – Harassment and Sexual Harassment of Students.

Complaints alleging unlawful harassment or discrimination against RSU #74 employees based on a protected category should be addressed through the RSU #74 Board’s Employee Discrimination/Harassment and Title IX Sexual Harassment Complaint Procedures (ACAB-R).

Any individual who is unsure about whether unlawful discrimination or harassment has occurred and/or or which complaint procedure applies is encouraged to contact the Affirmative Action Officer/Title IX Coordinator.

Please contact the RSU #74 Central Office for the name and contact information for the Affirmative Action/Title IX Coordinator.

I. DEFINITIONS

For purposes of these complaint procedures, the following definitions will be used. The Affirmative Action Officer/Title IX Coordinator shall assess all reports and complaints to ensure that they are addressed under the appropriate policy and complaint procedure.

A. Discrimination/Harassment Complaint Procedure Definitions

1. “Discrimination or harassment”: Discrimination or harassment on the basis of an individual’s membership in a protected category, which, for students, includes race, color, sex, sexual orientation, gender identity, religion, ancestry, national origin or disability.

2. “Discrimination”: Treating individuals differently, or interfering with or preventing them from enjoying the advantages or privileges afforded to others because of their membership in a protected category.

3. “Harassment”: Oral, written, graphic, electronic or physical conduct relating to an individual’s actual or perceived membership in a protected category that is sufficiently severe, pervasive or persistent so as to interfere with or limit that individual’s ability to participate in the school unit’s programs or activities by creating a hostile, intimidating or offensive environment.

4. “Sexual harassment”: Under Maine law, this means unwelcomes sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature in the following situations:

a. Submission to such conduct is made either explicitly or implicitly a term or condition of a student’s educational benefits;

b. Submission to or rejection of such conduct by a student is used as the basis for decisions on educational benefits; or

c. Such conduct has the purpose and effect of substantially interfering with a student’s academic performance or creates an intimidating, hostile or offensive environment.

5. “Sexual orientation”: Under Maine law, this means a person’s “actual or perceived heterosexuality, bisexuality, homosexuality or gender identity or expression.”

6. “Gender identity”: Under Maine law, this means “the gender-related identity, appearance, mannerisms or other gender-related characteristics of an individual, regardless of the individual’s assigned sex at birth.”

7. “Complaint” is defined as an allegation that a student has been discriminated against or harassed on the basis of race, color, sex, sexual orientation, gender identity, religion, ancestry, national origin or disability (and not otherwise addressed in the Title IX regulations and Section 3 of ACAA-R).

8. Complaints of bullying not involving the protected categories or definitions described above may be addressed under Board Policy JICK – Bullying and Cyberbullying of Students.

B. Title IX Sexual Harassment Complaint Procedure Definitions

1. “Sexual Harassment”: Under the federal Title IX regulations, sexual harassment includes the following conduct on the basis of sex which takes place within the context of the school unit’s education programs and activities:

a. “Quid pro quo” sexual harassment by a school employee: Conditioning a school aid, benefit or service (such as a better grade or a college recommendation) on an individual’s participation in unwelcome sexual conduct;

b. “Hostile environment” sexual harassment: Unwelcome conduct based on sex that a reasonable person would determine is so severe, pervasive and objectively offensive that it effectively denies an individual’s equal access to the school unit’s education programs and activities; or

c. Sexual assault, dating violence, domestic violence and stalking as these terms are defined in federal laws.

2. “Report”: Under the Title IX regulations, any individual may make a report of sexual harassment involving a student, whether the individual is the alleged victim or not. School employees are required to report possible incidents of sexual harassment involving a student. A report must be made to the Affirmative Action Officer/Title IX Coordinator. A report triggers certain actions by the AAO/Title IX Coordinator for the alleged victim of sexual harassment, but an investigation is not conducted unless a “Formal Complaint” is filed.

3. “Formal Complaint”: Under the Title IX regulations, the alleged victim of sexual harassment can file a written complaint that triggers the complaint procedure in Section 3 of ACAA-R. Only a student and/or their parent/legal guardian (and in certain circumstances, the AAO/Title IX Coordinator) may file a formal complaint.

“Student”: For the purposes of this procedure, a student is an individual who is enrolled or participating in the school unit’s education programs and activities, or is attempting to enroll or participate.

II. TITLE IX HARASSMENT, OR SEXUAL HARASSMENT COMPLAINT PROCEDURE

A. How to Make A Formal Complaint (Written report):

1. An alleged RSU #74 student victim and/or their parent/legal guardian may file a formal written complaint requesting investigation of alleged Title IX sexual harassment. The written complaint must include basic information concerning the allegation of sexual harassment (i.e., date, time, location, individual(s) who allegedly engaged in sexual harassment, description of allegation).

RSU #74 Students who need assistance in preparing a formal written complaint, are encouraged to consult with the RSU #74 AAO/Title IX Coordinator.

2. In certain circumstances, the RSU #74 AAO/Title IX Coordinator may file a formal complaint even when the alleged victim chooses not to. Examples include if the respondent (person alleged to have engaged in sexual harassment) has been found responsible for previous sexual harassment or there is a safety threat within the school unit). In such cases, the alleged victim is not a party to the case, but will receive notices as required by the Title IX regulations at specific points in the complaint process.

3. In accordance with the Title IX regulations, the RSU #74 AAO/Title IX Coordinator must dismiss a formal complaint under this Title IX procedure if: a) the conduct alleged in the formal complaint does not constitute sexual harassment under the Title IX regulations and this policy; or b) if the conduct alleged did not occur within the scope of the school unit’s education programs and activities, or c) did not occur in the United States.

4. In accordance with the Title IX regulations, the RSU #74 AAO/Title IX Coordinator may dismiss a formal complaint under this Title IX procedure if: a) a complainant withdraws the formal complaint, or withdraws particular allegations within the complaint; b) the respondent is no longer employed by or enrolled in the school unit; or c) there are specific circumstances that prevent the school unit from gathering evidence sufficient to reach a determination regarding the formal complaint. However, if the conduct potentially violates other policies or laws, it may be addressed through the applicable Board policy/procedure.

5. If a formal complaint is dismissed under this Title IX procedure, the RSU #74 AAO/Title IX Coordinator will promptly and simultaneously send written notices to the parties explaining the reasons. Parties have the opportunity to appeal dismissals in accordance with subsection H below.

6. If the conduct alleged in a formal complaint potentially violates other laws, Board policies and/or professional expectations, the school unit may address the conduct under Section G or another applicable Board policy/procedure.

B. Emergency Removal or Administrative Leave

The RSU #74 Superintendent may remove a student from education programs and activities on an emergency basis, or place an employee on administrative leave during the complaint procedure:

1. If there is a determination (following an individualized safety and risk analysis) that there is an immediate threat to the physical health or safety of an individual arising from the allegations of sexual harassment. Examples of such circumstances might include, but are not limited to, a continued threat of violence against a complainant by a respondent, or a respondent’s threat of self-harm due to the allegations.

2. The respondent (and in the case of a student, their parent/legal guardian will be provided notice of the emergency removal or administrative leave, and will be provided an opportunity to challenge the decision following the removal (this is an opportunity to be heard, not a hearing). The respondent has the burden to demonstrate why the emergency removal or administrative leave was unreasonable.

3. Any such decision shall be made in compliance with any applicable disability laws, including the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act and the Americans with Disabilities Act.

C. Notice to Parties of Formal Complaint

1. The RSU #74 Title IX Coordinator will provide to the parties written notice of the formal complaint and allegations of sexual harassment potentially constituting prohibited conduct under the Title IX regulations and this procedure. The notice shall include:

· Notice regarding the complaint procedure and the availability of an informal resolution process;

· Sufficient details known at the time (including identities of parties, if known; the conduct alleged; and the date and location of the alleged incident, if known), with sufficient time to prepare before any initial interview (not less than five business days);

· As required by the Title IX regulations, a statement that the respondent is presumed not responsible for the alleged conduct and that a determination of responsibility will be made at the conclusion of the complaint); and that the parties may inspect and review evidence;

· Notice that the parties may each have an advisor of their choice (who may be an attorney), and that the parties may inspect and review evidence;

· Notice that knowingly making false statements or submitting false information during the complaint process is prohibited and may result in disciplinary action;

· Notice of the name of the investigator, with sufficient time (no less than three business days) to raise concerns of conflict of interest or bias.

2. If additional allegations become known at a later time, notice of the additional allegations will be provided to the parties.

3. The RSU #74AAO/Title IX Coordinator will discuss supportive measures with each party and implement such measures as appropriate.

D. Informal Resolution Process

After a formal complaint has been filed, and if the RSU #74 AAO/Title IX Coordinator believes the circumstances are appropriate, the RSU #74 AAO/Title IX Coordinator may offer the parties the opportunity to participate in an informal resolution process to resolve the complaint without completing the investigation and determination process. Informal resolutions cannot be used to resolve a formal complaint where a student is the complainant and the respondent is an employee.

Informal resolutions can take many forms, depending on the particular case. Examples include, but are not limited to, facilitated discussions between the parties; restorative justice; acknowledgment of responsibility by a respondent; apologies; disciplinary actions against a respondent or a requirement to engage in specific services; or supportive measures. Both parties must voluntarily agree in writing to participate in an informal resolution process, and either party can withdraw from the process at any time. The Superintendent must agree to the terms of any informal resolution reached between the parties. If an informal resolution agreement is reached, it must be signed by both parties and the school unit. Any such signed agreement is final and binding according to its terms.

If an informal resolution process does not resolve the formal complaint, nothing from the informal resolution process may be considered as evidence in the subsequent investigation or determination.

E. Investigation

1. The complaint will be investigated by a trained internal or external individual designated by the RSU #74 Superintendent and AAO/Title IX Coordinator. Any complaint about an employee who holds a supervisory position shall be investigated by a person who is not subject to that supervisor’s authority. Any complaint about the Superintendent should be submitted to the Chair of the Board, who should consult with legal counsel concerning the handling and investigation of the complaint.

2. The investigator shall consult with the RSU #74 AAO/Title IX Coordinator as agreed during the investigation process.

3. If the complaint is against a RSU #74 employee of the school unit, rights conferred under an applicable collective bargaining agreement shall be applied, to the extent they do not conflict with the Title IX regulatory requirements.

4. Privacy rights of all parties to the complaint shall be maintained in accordance with applicable state and federal laws.

5. The investigator will:

a. Meet with each party after they have received appropriate notice of any meeting and its purpose, with sufficient time to prepare.

b. Allow parties to have their advisor at all meetings related to the complaint, although advisors may not speak on behalf of a party or interfere with the process.

c. Allow parties a reasonable opportunity to identify witnesses and submit favorable and unfavorable evidence.

d. Interview witnesses and conduct such other activities that will assist in ascertaining facts (site visits, review of documents, etc.).

e. Consider evidence that is relevant and directly related to the allegations in the formal complaint.

f. During the course of the investigation, provide both parties with an equal opportunity to inspect and review any evidence that is obtained in the investigation that is directly related to the allegations in the formal complaint (including evidence which the school unit does not intend to rely upon in reaching a determination of responsibility), and favorable and unfavorable evidence.

g. Prior to completion of the investigation report, provide each party and advisor (if any) the evidence subject to inspection and review, and provide the parties with ten calendar business days to submit a written response.

h. Consider the parties’ written responses to the evidence prior to completing the investigation report.

i. Create an investigative report that fairly summarizes relevant evidence and send the report to the parties and advisors (if any), for their review and written responses within ten business days of receipt.

j. After receipt of the parties’ written responses (if any), forward the investigation report and party responses to the assigned decision maker.

6. The investigation shall be concluded within 40 business days if practicable. Reasonable extension of time for good reason shall be allowed.

F. Determination of Decision, Process, and Responsibility:

1. The decision maker shall provide the parties with the opportunity to submit written, relevant questions that the party wants asked of another party or witness within five business days of when the decision maker received the investigation report and party responses.

a. The decision maker shall explain to a party proposing questions if the decision maker excludes a question as not relevant.

2. Each party shall be provided the opportunity to review the responses of another party and/or witness, and to ask limited written follow-up questions within five business days of receiving the answers.

3. Each party will receive a copy of the responses to any follow-up questions.

4. The decision maker shall review the investigation report, the parties’ responses and other relevant materials, applying the preponderance of the evidence standard (“more likely than not”).

5. The decision maker shall issue a written determination, which shall include the following:

a. Identification of all the allegations potentially constituting sexual harassment as defined in the Title IX regulations and this policy;

b. A description of the procedural steps taken from receipt of the formal complaint through the determination, including notifications to the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, and meetings held;

c. A determination regarding responsibility as to each allegation and findings of fact supporting the determinations;

d. A statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility, any disciplinary sanctions the school unit imposes on the respondent, and whether remedies designed to restore or preserve equal access to the school unit’s programs and activities will be provided to the complainant;

e. The RSU #74 school unit’s appeal procedure and permissible bases for the parties to appeal the determination.

6. The written determination shall be provided to the parties simultaneously. The determination concerning responsibility becomes final either on the date that the school unit provides the parties with the written determination of the results of the appeal, if an appeal is filed, or if an appeal is not filed, the date on which the appeal would no longer be considered timely.

G. Remedies, Discipline and Other Actions

1. Remedies

Remedies are measures used to ensure that the complainant has equal access to the school unit’s education programs and activities following the decision maker’s determination. Such remedies may include supportive measures, and may include other appropriate measures, depending upon the determination and the needs of the complainant. The Title IX Coordinator is responsible for implementing remedies and providing any needed assistance to the Complainant.

2. Discipline and Other Actions - Students

The following are of the types of discipline and other actions that may be imposed on a student when there is a determination that they are responsible for one or more violations involving sexual harassment:

· In or out of school suspension.

· Expulsion.

· Restorative justice.

· Requirement to engage in education or counseling program.

3. Discipline and Other Actions – Employees

The following are examples of the types of disciplinary actions that may be imposed on an employee when there is a determination that they are responsible for one or more violations involving sexual harassment:

· Written warning.

· Probation.

· Demotion.

· Suspension without pay.

· Discharge.

The following are examples of other types of actions that may be imposed on an employee when there is a determination of responsibility:

· Performance improvement plan.

· Counseling.

· Training.

· Loss of leadership/stipend position.

H. Appeals

The parties have the opportunity to appeal a determination regarding responsibility, and from dismissals of formal complaints. Under the Title IX regulations, appeals are allowed on the following grounds:

1. A 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 of the formal complaint was made, that could affect the outcome of the matter; or

3. The Title IX Coordinator, investigator, or decision maker had a conflict of interest or bias for or against complainants or respondents generally, or the individual complainant or respondent that affected the outcome of the matter.

An appeal must be filed in writing within five business days of receiving the determination, stating the grounds for the appeal and including any relevant documentation in support of the appeal. Appeals submitted after this deadline are not timely and shall not be considered.

1. Appeals must be filed with the Superintendent, who will consider the appeal.

2. The RSU #74 Superintendent shall notify the other party in writing of the appeal and will allow both parties to submit a written statement in support of, or challenging, the determination of the decision maker.

3. The RSU #74 Superintendent shall conduct an impartial review of the appeal, including consideration of the written record of the matter, and may consult with legal counsel or other school unit officials in making their decision.

4. The RSU #74 Superintendent shall issue a written decision describing the result of the appeal and rationale for the result, and provide the written decision simultaneously to the parties. The decision will either deny the appeal; grant the appeal and remand to the decision maker for further consideration; or grant the appeal by revising the disciplinary or other action(s).

I. Records

Records in connection with sexual harassment reports and the complaint process shall be maintained for a minimum of seven years.

Legal Reference: Americans with Disabilities Act (42 U.S.C. §12101 et seq., as amended; 28 C.F.R. § 35.107)

Section 504 of the Rehabilitation Act of 1973 (Section 504) (29 U.S.C. § 794 et seq., as amended; 34 C.F.R. § 104.7)

Title IX of the Education Amendments of 1972 (20 USC § 1681, et seq.); 34 C.F.R. Part 106

Clery Act (20 U.S.C. §1092(f)(6)(A)(v) - definition of sexual assault)

Violence Against Women Act (34 U.S.C. § 1092(f)(6)(A)(v) – definition of sexual assault; 34 U.S.C. § 12291(a)(10) – dating violence; 34 U.S.C. §12291(a)(3) – definition of stalking; 34 U.S.C. §12291(a)(8) – definition of domestic violence)

Title VI of the Civil Rights Act of 1964 (42 USC § 2000d)

Maine Human Rights Act, 5 MRSA § 4551 et seq.

20-A MRSA § 6553

MHRC/MDOE Joint Rule Chapter 94-348 and 05-071, ch. 4

Cross Reference: ACAA-R – Student Discrimination/Harassment and Title IX Sexual Harassment Complaint Procedures

AC – Nondiscrimination/Equal Opportunity and Affirmative Action

ACAD – Hazing

GBEB – Staff Conduct with Students

JFCK – Student Use of Cellular Telephones and Other Electronic Devices

JICIA – Weapons, Violence and School Safety

JICK – Bullying