FILE:  JAAA

Cf:  GAEAA, JCDAF

Cf:  JCEA, JGCE

TITLE IX GRIEVANCE PROCEDURES FOR STUDENT REPORTS OR

COMPLAINTS OF SEXUAL HARASSMENT

When an East Baton Rouge Parish School Board (EBRPSS) staff member or employee has actual knowledge of sexual harassment as defined below involving a student, the response by the administration is required to be prompt and, in a manner, not deliberately indifferent.  The response must treat complainants and respondents equitably and offer supportive measures to both.  The Title IX Coordinator, Investigator(s), or Decision-Maker(s) must be free of any conflict of interest or bias for or against complainants or respondents generally or the individual complainant or respondent that may affect the outcome of the report or complaint.  This policy applies to all EBRPSS students, employees, and non-employee volunteers, to the elected members of the School Board.

DEFINITIONS

1. “Actual knowledge” means notice of sexual harassment or allegations of sexual harassment as defined below to Title IX Coordinator or to any employee. Imputation of knowledge based solely on vicarious liability or constructive notice is insufficient to constitute actual knowledge.  Actual knowledge does not exist if the only person with actual knowledge is the “respondent” as defined below.
   
   

2. “Administrative leave” means placing an employee respondent on administrative leave during the pendency of a grievance process.  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 or regulations promulgated thereunder.
   
   

3. “Advisor” is an individual who either the complainant or the respondent may have to support that party during the course of the complaint process.  The advisor need not be an attorney.  The advisor is at the party’s sole expense, if any.  The advisor may inspect and review all evidence obtained as part of the investigation that is directly related to the allegations raised in the formal complaint.
   
   

4. “Complainant” means a student who is alleged to be the victim of conduct that could constitute sexual harassment as defined below.
   
   

5. “Consent” for sexual activity may be manifest in the voluntary words or actions of a student over the age of 12 to someone not greater than three (3) years older than the student, conveying a willingness to engage in a sexual act.  Consent does not include the following:  (a) a student’s words or actions conveyed to a school district employee; (b) words or actions of a student who is incapable of resisting or of understanding the nature of the act by reason of a stupor or abnormal condition of mind produced by an intoxicating agent or any cause and the offender knew or should have known of the student’s incapacity, and (c) words or actions of a student who has mental or physical infirmities which the offender knew or should have known to be significant.
   
   

6. “Decision-Maker” is someone other than the Title IX Coordinator or Investigator. For the EBRPSS the Decision-Maker is the Supervisor of Child Welfare & Attendance.  The Decision-Maker issues a written determination regarding responsibility based on the complaint investigative report.
   
   

7. “Education program or activity” includes any school, administrative building and any EBRPSS location, event, or circumstance over which the EBRPSS and its employees and staff have or exhibit substantial control over students and the context in which harassment occurred.  Use of EBRPSS resources such as e-mail, the Internet, postal mail, handwritten, or other communications are possible methods of sexual harassment as defined below.
   
   

8. “Emergency removal” means removing a respondent student from EBRPSS’s education program or activity on an emergency basis, provided that the Title IX Coordinator undertakes an individualized safety and risk analysis, and 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.  The Title IX Coordinator also 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.
   
   

9. “Formal complaint” means a document filed by a complainant (victim) or signed by the Title IX Coordinator alleging sexual harassment (as defined below) against a respondent and requesting an investigation of an allegation of sexual harassment.  The complaint may be filed with the Title IX Coordinator in person, by mail, and/or by electronic means. “Document filed by complainant “ means a document or electronic submission, such as by electronic mail or through an online portal and contains the complaint’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.
   
   

10. “Investigator” is the person designated by the Title IX Coordinator to investigate allegations which may constitute “sexual harassment” (as defined below) and to produce an investigate report.  The Investigator may be the Title IX Coordinator, but in no instance can the Investigator also be the “Decision-Maker” (as defined above).
    
    

11. “Notice” results whenever any EBRPSS employee, Title IX Coordinator, or any official with authority witnesses sexual harassment (as defined below); hears about sexual harassment or sexual allegations from a victim or a third party (e.g., the victim’s parent or guardian, friend, or peer); receives a written or verbal report about sexual harassment or allegations of sexual harassment; or by any other means.
    
    

12. “Respondent” means a student or employee who has been reported to be the perpetrator of conduct that could constitute sexual harassment (as defined below).
    
    

13. “Sex discrimination” is treatment of or denial of a benefit to a person on the basis of their sex.
    
    

14. “Sexual harassment” means for the purpose of only this grievance procedure, conduct on the basis of sex that satisfies one or more of the following:

15. “Standard of evidence” is a preponderance of evidence which means a finding that is more likely than not that the sexual harassment occurred.  The standard is met when a finder of fact has determined with 50.1% certainty that the sexual harassment occurred.
    
    

16. “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 before or after filing of a formal complaint or where no formal complaint has been filed.  Such measures are designed to restore or preserve equal access to EBRPSS’s education program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties, the EBRPSS’s educational environment, or to deter sexual harassment.  Supportive measures may include counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, mutual restrictions on contact between the parties, changes in work or school locations, leaves of absence, increased security and monitoring of certain areas of the campus, and other similar measures.  The Title IX Coordinator 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 to provide the supportive measures.  The Title IX Coordinator is responsible for coordinating the effective implementation of supportive measures.
    
    

17. “Title IX Coordinator” is the person designated by the EBRPSS School Board and who may designate an Investigator, as appropriate.  The Title IX Coordinator is authorized to coordinate all compliance efforts regarding Title IX including employment, athletic participation, and housing for EBRPSS.  For this grievance procedure regarding sexual harassment (as defined above), the Title IX Coordinator is the initial contact and responsible for its overall compliance.  The Title IX Coordinator’s name, office and email addresses, and phone number, must be posted on the EBRPSS’s website and in each handbook or catalog that it makes available to applicants for admission and employment, students, parents or legal guardians of students, and employees.
    
    

18. “Title IX” refers to Title IX of the Education Amendments of 1972 (20 USC 1681 et. seq.) and the regulations promulgated thereunder.  Title IX prohibits discrimination on the basis of sex in education programs and activities that receive Federal financial assistance, including the EBRPSS.

REPORT PROCEDURE

1. Any student who believes he or she has been the victim of sexual harassment as a result of conduct defined above as sexual harassment by another student or by any EBRPSS employee or staff member is encouraged to report the matter to the Title IX Coordinator or any EBRPSS employee.
   
   

2. Any person such as parent/guardian, principal, school administrator, teacher, friend, or bystander may report sexual discrimination, including sexual harassment whether or not the person reporting is the person alleged to be the victim of conduct that could constitute discrimination or sexual harassment.  The report should be made to the Title IX Coordinator.
   
   

3. Reports may be made by mail, telephone or email 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.
   
   

4. Reports may be made at any time, including non-business hours, by using the telephone or electronic mail address to the Title IX Coordinator’s office.
   
   

5. Upon actual knowledge or notice of alleged sexual harassment (as defined above) of a student, the Title IX Coordinator must promptly within 24 hours contact the complainant student and as appropriate parent/guardian to determine the available facts involving the report and to discuss all options, including the availability of supportive measures and consider the complainant’s wishes with respect to supportive measures.  Supportive measures (as defined above) are available with or without the filing of a formal complaint.
   
   

6. The report of an alleged sexual harassment (as defined above) must be sufficiently clear and explicit so that it can be recognized as a legitimate report of sexual harassment or retaliation.  A report must, at a minimum, include: (a) a description of an alleged act of sexual harassment, including the date(s), time(s), and place(s) it is alleged to have occurred; (b) identity of the alleged victim; (c) identity of the alleged harasser; and (d) identity of the reporting person.
   
   

7. The Title IX Coordinator must notify the complainant student and as appropriate parent/guardian of the right to file a formal complaint.
   
   

8. The Title IX Coordinator must explain to the complainant student and as appropriate parent/guardian how to file a complaint.
   
   

9. In the event the complainant student decides not to file a complaint, or the Title IX Coordinator does not file a complaint, the report is closed without further action.  The report and any provided supportive measures remain confidential and such information may not be released.  The Title IX Coordinator is to maintain the report as a confidential document for seven (7) years.

COMPLAINT PROCEDURE

Upon receipt of a formal written complaint filed by a complainant student or signed by the Title IX Coordinator, the Title IX Coordinator must immediately provide written notice to the known parties, containing a copy of these grievance procedures, including the informal resolution process and appeals processes.  Such written notice must contain the following elements:

1. Notice of the allegations of sexual harassment potentially constituting “sexual harassment” (as defined above) to include sufficient details known at the time and allowing time to prepare a response before any initial interview or other proceeding.  Sufficient details include the identities of the known parties involved in the incident, the conduct allegedly constituting sexual harassment, and the date and location of the alleged incident, if known.
   
   

2. A statement that the complainant and respondent will be treated equitably by providing remedies for a complaint when the determination of responsibility for sexual harassment has been made against the respondent and by following this grievance process before imposing against a respondent any disciplinary sanctions or other actions that are not supportive measures.  Remedies must be designed to restore or preserve equal access to the EBRPSS’s education program or activities and include individual services such as “supportive measures”; however, remedies can be disciplinary or punitive and need not avoid burdening the respondent.
   
   

3. A statement that the respondent is presumed not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the investigation process by another person as the Decision-Maker.
   
   

4. Notice informing each party that they may have an advisor of their choice, who may be, but is not required to be, an attorney and who may inspect and review all evidence obtained as part of the investigation that is directly related to the allegations raised in the formal complaint.
   
   

5. Notice of any provision in the EBRPSS’s code of conduct that prohibits knowingly making false statements or knowingly submitting false information during the complaint process.
   
   

6. A statement that, if, in the course of an investigation, the Title IX Coordinator or designated Investigator decides to investigate allegations about the complainant or respondent that are not included in the notice provided pursuant to this section, the Title IX Coordinator must provide written notice of the additional allegations to the parties whose identities are known.
   
   

7. Notice that the Title IX Coordinator 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 complaint process involves more than one complainant or more than one respondent, references in this section to the singular “party,” “complainant,” or “respondent” include the plural, as applicable.
   
   

8. Notice that, if the respondent is an EBRPSS employee, such employee may be placed on administrative leave during the pendency of a grievance process.

INVESTIGATION OF A FORMAL COMPLAINT

When investigating a formal complaint and throughout the grievance process, the Title IX Coordinator and Investigator will:

1. Ensure that the burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility rest on the Title IX Coordinator and Investigator and not on the parties.  However, the Title IX Coordinator and Investigator 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 a party, unless the Title IX Coordinator obtains that party’s parent/guardian voluntary, written consent to do so for a complaint process under this section.  If the party is of age of majority, then such individual may provide the written consent.
   
   

2. Provide an equal opportunity for the parties to present witnesses, including fact and expert witnesses, to submit written questions for the other party/witness to answer provided the Title IX Coordinator determines the questions to be relevant, and other inculpatory and exculpatory evidence to the Title IX Coordinator or Investigator.
   
   

3. Not restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence to the Title IX Coordinator or Investigator.
   
   

4. Not allow as relevant evidence 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 by the complainant, or if the questions and evidence concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent.  The Title IX Coordinator or Investigator must explain to the party proposing the questions any decision to exclude a question or evidence as not relevant.
   
   

5. Provide to a party written notice of the date, time, location, participants, and purpose of all investigative interviews or other meetings or proceedings, with sufficient time for the party to prepare to participate.  The party may be accompanied by an advisor.  The notice is to include information if the interview or other meetings will be conducted in a virtual manner using ZOOM, Microsoft Team, Skype, or similar digital platforms.  The Title IX Coordinator will create an audio or audiovisual recording, or transcript, of any live interview or meeting and make it available to the parties for inspection and review.
   
   

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.  This includes the evidence upon which the Title IX Coordinator or Investigator does not intend to rely on to reach a determination regarding responsibility and inculpatory or exculpatory evidence whether obtained from a party or other source.  The purpose is so each party can meaningfully respond to the evidence prior to conclusion of the investigation.
   
   

7. Prior to completion of the investigative report, the Title IX Coordinator or Investigator 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 have ten (10) calendar days to submit a written response, which the Title IX Coordinator or Investigator will consider prior to completion of the investigative report.  The Title IX Coordinator must make all such evidence subject to the parties’ inspection and review, to give each party equal opportunity to review.
   
   

8. Create an investigative report resulting from an objective evaluation of all relevant evidence, including both inculpatory and exculpatory evidence with credibility determinations without regard to a person’s status as a complainant, respondent, or witness.  The report is to fairly summarizes relevant evidence and to be sent to each party and the party’s advisor, if any, in an electronic format or a hard copy for their review and written response.

DETERMINATION REGARDING RESPONSIBILITY

After the Title IX Coordinator sends the investigative report to the parties and before the Decision-Maker reaches a determination regarding responsibility, the Decision-Maker(s) must afford each party seven (7) calendar days for the opportunity to submit written, relevant questions that a party wants asked of any party or witness, provide each party with the answers, and allow for additional, limited follow-up questions from each party.

The Decision-Maker(s), who cannot be the same person(s) as the Title IX Coordinator or the Investigator(s), must issue a written determination regarding responsibility.  To reach this determination, the Decision-Maker must apply the standard of evidence described in the Definitions section of this procedure.  The written determination must include—

1. Identification of the allegations potentially constituting sexual harassment (“sexual harassment” as defined in the Definitions section of this procedures);
   
   

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 interviews or other proceedings held;
   
   

3. Findings of fact supporting the determination;
   
   

4. Conclusions regarding the application of the EBRPSS’s 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 to be imposed on a respondent, and whether the remedies are designed to restore or preserve equal access to the EBRPSS’s education program or activity will be provided by the Decision-Maker to the complainant; and
   
   

6. The EBRPSS procedures and permissible bases for the complainant or respondent to appeal.
   
   

7. The Decision-Maker must provide the written determination to the parties simultaneously.
   
   

8. The determination regarding responsibility becomes final either on the date that the Decision-Maker provides the parties with the written determination of the result of an appeal, if an appeal is filed, or, if an appeal is not filed, on the date on which an appeal would no longer be considered timely.
   
   

9. The Title IX Coordinator is responsible for effective implementation of any remedies.

APPEALS

1. Both parties may appeal within seven (7) calendar days from a determination regarding responsibility, or from the Title IX Coordinator or the Decision-Maker’s dismissal of a formal complaint or any allegations therein, on the following bases:

2. For all appeals, the Superintendent of Schools or designee must:

INFORMAL RESOLUTION

An informal resolution process to resolve allegations that an employee sexually harassed a student is not allowed and may not be used.  This process may only be used when all the parties are students and in accordance with the following parameters:

1. The Title IX Coordinator or Investigator 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 this section.
   
   

2. The student parties may not be required to participate in an informal resolution process under this section and may not be offered an informal resolution process unless a formal complaint has been filed by a student complainant or one signed by the Title IX Coordinator.
   
   

3. At any time prior to reaching a determination regarding responsibility the Title IX Coordinator may facilitate an informal resolution process, such as mediation, that does not involve a full investigation and adjudication, provided that the Title IX Coordinator –

DISMISSAL OF A FORMAL COMPLAINT

1. The Title IX Coordinator must review the allegations made in a formal complaint. If the conduct alleged in the formal complaint would not constitute “sexual harassment” (as defined above) even if proved; did not occur in the EBRPSS’s education program or activity; or did not occur against a person in the United States, then the Title IX Coordinator must dismiss the formal complaint.  Such a dismissal does not preclude action under another provision of the EBRPSS’s code of conduct.
   
   

2. The Title IX Coordinator 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 EBRPSS; or specific circumstances prevent the Title IX Coordinator from gathering evidence sufficient to reach a determination as to the formal complaint or allegations therein.
   
   

3. Upon a dismissal required or permitted pursuant to paragraphs 1 or 2 of this section, the Title IX Coordinator must promptly send written notice of the dismissal and reason(s) therefor simultaneously to the parties.

RECORDKEEPING

The Title IX Coordinator must maintain for a period of seven (7) 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 Title IX Coordinator must document the basis for the conclusion that any response was not deliberately indifferent and must document the measures taken and designed to restore or preserve equal access to the EBRPSS’s education program or activity.  If a complainant was not provided with supportive measures, then the Title IX Coordinator 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 Title IX Coordinator in the future from providing additional explanations or detailing additional measures taken.  In addition, the following must also be maintained:

1. Each sexual harassment investigation including any determination regarding responsibility and any audio or audiovisual recording or transcript, any disciplinary sanctions imposed on the respondent, and any remedies provided to the complainant designed to restore or preserve equal access to the EBRPSS’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.  All training materials must be publicly available on the EBRPSS website.

RETALIATION IS PROHIBITED

1. Retaliation of any nature against any student or employee who makes a report or complaint or who participates in any investigation under this policy is a serious violation of the EBRPSS’s sex discrimination policy.  Such retaliation is considered an act of sexual harassment itself; therefore, reports and complaints of such retaliation are handled in the same manner as those of sexual harassment.  All references to “sexual harassment” in this policy and the related procedures shall also include retaliation.  No 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 policy, 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 meeting under this procedure.  Intimidation, threats, coercion, or discrimination constitute retaliation.  These prohibited actions 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 or 34 CFR part 106 (the Title IX regulations).
   
   The Title IX Coordinator 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 to be the perpetrator of sex discrimination, any respondent, and any witness (except as may be permitted by the FERPA statute (20 USC 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, or judicial proceeding arising thereunder).  Complaints alleging retaliation may be filed according to these procedures.

2. Specific circumstances.

SPECIAL SITUATIONS

If the victim of the alleged sexual harassment is a minor student and if the alleged harassment falls within the definition of abuse as found in School Board's policy JGCE, Child Abuse, then all school employees with knowledge shall be considered mandatory reporters and the allegations must be reported to child protection or law enforcement as provided by state law and the School Board policy on child abuse.  Such reporting must be made in addition to any procedures for handling sexual harassment or any other complaints.

Any EBRPSS employee who has reason to believe that a sexual offense has occurred under Louisiana law or that constitutes prohibited sexual conduct between an educator and a student must immediately report such information to the Title IX Coordinator who will file a report with the appropriate local or state law enforcement agency.  Failure to make such report may result in disciplinary action against the employee, up to and including possible termination.

TRAINING

The Title IX Coordinator, Investigator(s), Decision-Maker(s), and any person who facilitates an informal resolution process, must receive training on the definition of sexual harassment as stated in this procedure, the scope of the EBRPSS’s education program or activity, how to conduct an investigation and grievance process including interviews, 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.  All Decision-Makers must receive training on any technology to be used 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. Investigators must receive training on issues of relevance to create an investigative report that fairly summarizes relevant evidence.  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.

POLICE AND MEDICAL RESOURCES

A student who experiences any form of sexual assault is strongly encouraged to seek immediate medical care.  Students may undergo a medical exam to properly collect and preserve physical evidence of any sexual assault with or without police involvement.  If the incident occurred on an EBRPSS campus or in East Baton Rouge, call to report 911.

TITLE IX COMPLAINTS OTHER THAN THOSE REGARDING SEXUAL HARASSMENT

Employees, students and applicants for admission or employment may submit complaints of violations of Title IX, other than sexual harassment complaints, to the School Board’s Title IX Coordinator.  Investigative procedures regarding such complaints are those set forth in School Board policy, GAMC, Investigations.

New policy:  August 20, 2020

Ref:    42 USC 2000e (Civil Rights-Definitions)

29 CFR 1604.11 (Guidelines on Discrimination Because of Sex-Sexual Harassment)

34 CFR 106 et seq. (Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance)

La. Rev. Stat. Ann. §§14:41, 14:42, 14:42.1, 17:81

Board minutes, 8-20-20

East Baton Rouge Parish School Board