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ACAA-R2 - STUDENT SEX DISCRIMINATION/HARASSMENT COMPLAINT PROCEDURE

ACAA-R2 - STUDENT SEX DISCRIMINATION/HARASSMENT COMPLAINT PROCEDURE

The Board has adopted this student procedure in order to provide prompt and equitable resolution of reports and complaints of unlawful sex discrimination, including allegations of sexual harassment and other forms of sex-based harassment, as described in Policies AC – Nondiscrimination/Equal Opportunity and Affirmative Action and ACAA – Harassment of Students.  

Although the specific provisions under Title IX and Maine law differ somewhat in regard to sex discrimination and sexual/sex-based harassment, the Board has chosen to address all such complaints under this procedure, which meets all Title IX and Maine law requirements.   

Complaints alleging unlawful discrimination or harassment of a student on the basis of other protected categories (race; color; religion; ancestry or national origin; and disability) are addressed under ACAA-R1 – Student Discrimination and Harassment Complaint Procedure.

Complaints alleging unlawful discrimination and harassment of an employee are addressed under ACAB-R1 - Employee Discrimination and Harassment Complaint Procedure or ACAB-R2 – Employee Sex Discrimination/Harassment Complaint Procedure.

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

Heidi Early

Affirmative Action Officer/Title IX Coordinator

MSAD #35

180 Depot Road, Eliot, ME 03903

207-439-2438

heidi.early@rsu35.org

Section 1.  Definitions  

For purposes of this complaint procedure, the following definitions will be used. 

  1. “Quid pro quo” harassment by a school employee, agent, or other person authorized by the school unit to provide aid, benefit, or service under an education program or activity, explicitly or impliedly conditioning the provision of such aid, benefit, or service on the individual’s participation in unwelcome sexual conduct.

  2. “Hostile environment” harassment: Unwelcome sex-based conduct that, based on the totality of the circumstances, is subjectively and objectively offensive and is so severe or pervasive that it limits or denies an individual’s ability to participate in or benefit from the school unit’s education program or activity (i.e., creates a hostile environment). A school unit is obligated to address a sex-based hostile environment under its education program or activity, even when some conduct alleged to be contributing to the hostile environment occurred outside the recipient's education program or activity. Whether a hostile environment has been created is a fact-based inquiry that includes consideration of a number of factors.

  1. Sexual assault, dating violence, domestic violence, and stalking, as these terms are defined below or in the Title IX regulations. 

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

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

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

 

Section 2.  Complaint Procedure

This procedure should be used to address any report or complaint of sex discrimination or sexual/sex-based harassment of a student. 

  1. Any school unit employee (except for designated confidential employees) who receives a report or has reason to believe that a student may have been discriminated against or harassed on the basis of sex is required to promptly notify the Affirmative Action Officer/Title IX Coordinator.

  2. Confidential employees who receive a report that a student may have experienced sex discrimination or sexual/sex-based harassment must inform the person making the report that the employee is designated “confidential” and inform them of the circumstances in which the employee is not required to make a report to the Affirmative Action Officer/Title IX Coordinator.  The confidential employee will provide the reporter with the Affirmative Action Officer/Title IX Coordinator’s contact information and explain that the Affirmative Action Officer/Title IX Coordinator may be able to offer and coordinate supportive measures, initiate an informal resolution process, or initiate an investigation under this complaint procedure.

  3. Students (and others) who believe that they or another student has been discriminated against or harassed on the basis of sex should report their concern promptly to the Affirmative Action Officer/Title IX Coordinator.  The report will be documented by the Affirmative Action Officer/Title IX Coordinator.

  4. The individual making the report should provide basic, available information orally or in writing concerning the allegation (i.e., individuals involved, date, time, location, and type of allegation). If the information is conveyed orally, the Affirmative Action Officer/Title IX Coordinator will document it.

  5. If an individual is unsure as to whether unlawful discrimination or harassment has occurred, they are encouraged to discuss the matter with the Affirmative Action Officer/Title IX Coordinator.

  6. Individuals will not be retaliated against for reporting suspected discrimination or harassment or for participating in an investigation.  Retaliation is illegal under federal/state nondiscrimination laws and Board policies, and any retaliation will result in disciplinary action, up to and including termination for employees and expulsion for students.

  7. The Superintendent will be promptly notified of all reports of alleged discrimination or harassment of a student.

  8. Students and others are encouraged to utilize this complaint procedure.  However, individuals are hereby notified that they also have the right to report incidents of discrimination or harassment to:

  1. The Affirmative Action Officer/Title IX Coordinator will treat complainants and respondents equitably through the complaint procedure.

  2. If the individual making the report is the alleged victim, or if the alleged victim is identified by the individual making the report, the Affirmative Action Officer/Title IX Coordinator will meet with the alleged victim to discuss the allegations and supportive measures that may be appropriate in the particular circumstances and to explain the complaint procedure.

If the alleged victim is unknown to the Affirmative Action Officer/Title IX Coordinator, the person who made the report will be notified of the availability of the complaint procedure.

  1. Supportive Measures

  1. If the Affirmative Action Officer/Title IX Coordinator reasonably determines that the conduct alleged does not involve illegal discrimination or harassment, the school unit is not obligated to initiate the complaint process and may dismiss the complaint (See Subsection C.1. below).  If the alleged conduct potentially violates other laws, Board policies/procedures, or professional expectations (in the case of employees), the matter may be referred to the Superintendent and/or other appropriate administrator(s) to address as deemed appropriate.  

  2. In response to a complaint alleging prohibited sex discrimination or sexual/sex-based harassment, the Affirmative Action Officer/Title IX Coordinator will initiate the complaint process or the informal resolution process (if available and appropriate) according to this procedure.  When feasible, the decision to initiate an investigation or informal resolution process or dismiss the complaint will be made within ten (10) school days of receipt of the complaint.  

  3. In certain circumstances, the Affirmative Action Officer/Title IX Coordinator may initiate the investigation process, even when the alleged victim chooses not to, after any or all allegations are withdrawn by the alleged victim, or when an informal resolution process is not initiated or is terminated.  To make this fact-specific determination, the Affirmative Action Officer/Title IX Coordinator will consider, at a minimum:

If, after considering these and any other factors that may be relevant, the Affirmative Action Officer/Title IX Coordinator determines that the alleged conduct presents an imminent and serious threat to the health or safety of the complainant or other individuals, or that the alleged conduct prevents the school unit from ensuring equal access to its education programs and activities, the Affirmative Action Officer/Title IX Coordinator may initiate a complaint.

  1. If the Affirmative Action Officer/Title IX Coordinator initiates a complaint, the complainant will receive prior notice, and any reasonable safety concerns will be addressed. 

  2. The Affirmative Action Officer/Title IX Coordinator will confirm the initiation of an investigation or informal resolution process in writing to both parties. The communication will include a) a copy of the complaint procedure; b) sufficient information available at the time to allow the parties to respond to the allegations (including the identities of the parties involved, the conduct alleged to constitute sex discrimination or sexual/sex-based harassment, and the date(s) and location(s) of the alleged incident(s); c) notice that retaliation is prohibited; and d) notice that the parties are entitled to an equal opportunity to access the relevant and not otherwise impermissible evidence.  

  3. Regardless of whether an investigation is initiated, the Affirmative Action Officer/Title IX Coordinator will take appropriate, prompt, and effective steps to ensure that discrimination or harassment does not continue or recur.  The Affirmative Action Officer/Title IX Coordinator will also coordinate supportive measures, as appropriate.

  4. If a complainant or respondent is a student with a disability, the Affirmative Action Officer/Title IX Coordinator will consult with one or more members of the student’s IEP team or 504 Team, if any, to determine how to comply with the requirements of the IDEA and Section 504 during the course of the complaint procedure.

  5. If the Affirmative Action Officer/Title IX Coordinator decides to investigate additional allegations of discrimination or harassment made by the complainant against the respondent after the parties received notice of the complaint, the Affirmative Action Officer/Title IX Coordinator will notify the parties of the additional allegations in writing.

  6. The Affirmative Action Officer/Title IX Coordinator may consolidate complaints of discrimination or harassment against more than one respondent, by more than one complainant against one or more respondents, or by one party against another party when the allegations arise out of the same facts or circumstances.  

  7. The school unit will presume that the respondent is not responsible for alleged discrimination or harassment until a determination is made at the conclusion of the investigation.

  8. The school unit will take reasonable steps to protect the privacy of the parties and witnesses during the complaint procedure and will comply with applicable state and federal privacy laws.  These steps will not restrict the ability of the parties to obtain and present evidence, including by speaking to witnesses; consult with their family; confidential employees/resources; or otherwise prepare for and participate in the complaint procedure.  

  1. The Affirmative Action Officer/Title IX Coordinator may dismiss a complaint in the following circumstances:

  1. Upon dismissal, the Affirmative Action Officer/Title IX Coordinator will promptly notify the complainant (and the respondent if they had received notice of the complaint allegations) of the basis for the dismissal and provide the opportunity to appeal the dismissal.

  2. Dismissals may be appealed on the following bases:

  1. An appeal of a complaint dismissal must be made in writing to the Affirmative Action Officer/Title IX Coordinator within five (5) school days and state the basis for the appeal. 

  2. If the dismissal is appealed, the Affirmative Action Officer/Title IX Coordinator shall:

  1. When a complaint is dismissed, the Affirmative Action Officer/Title IX Coordinator will, at a minimum:

  1. The Affirmative Action Officer/Title IX Coordinator will document actions taken during the appeal process.

The Superintendent may remove a student from education programs and activities on an emergency basis during the complaint procedure, provided:

  1. There is a determination, following an individualized safety and risk analysis, that a student respondent presents an imminent and serious threat to the health or safety of a complainant, or any students, employees, or other persons arising from the allegations of discrimination or harassment, that justifies emergency removal. 

  2. The respondent and the student’s parent/legal guardian will be provided with an immediate opportunity to challenge the decision following the removal, and has the burden of demonstrating that such removal is unreasonable.

  3. Any such removal shall be made in compliance with any applicable disability laws, including the IDEA, Section 504, and the Americans with Disabilities Act.

  4. The Affirmative Action Officer/Title IX Coordinator will document actions taken during the emergency removal process.

[Note:  An employee may be placed on administrative leave during a complaint procedure, pursuant to the school unit’s customary process regarding administrative leave of employees]

  1. Informal resolution is not permitted in cases where a student is the complainant and an employee is the respondent to alleged sex discrimination or harassment.

  2. The Action Officer/Title IX Coordinator may, if appropriate, offer the parties the opportunity to resolve the complaint through an informal resolution process at any point prior to an investigation or determination of responsibility.  Engaging in an informal resolution process is voluntary on the part of each party.  The Affirmative Action Officer/Title IX Coordinator also may decline to pursue an informal resolution despite a party’s request (for example, if the alleged conduct presents a future risk of harm to the complainant or others).

  3. Both (or all) parties must voluntarily agree in writing to participate in an informal resolution process, and a party may withdraw from the process at any time.  The parties will not be required to attend meetings together unless they voluntarily agree to do so.

  4. Before initiating an informal resolution process, the Affirmative Action Officer/Title IX Coordinator will ensure that the parties receive notice of: i.) the allegations; ii.) the requirements of the informal resolution process; ii.) the right of any party to withdraw from the process and initiate or resume the investigation process; iv.) that the parties’ agreement to an informal resolution would preclude them from initiating or resuming the investigation; v.) potential terms that may be requested or offered in an informal resolution agreement, including notice that an agreement is binding on the parties; and vi.) what information the school unit will maintain regarding the informal resolution process.

  5. The facilitator for the informal resolution process must be trained, cannot be the same person as the investigator or decisionmaker in the matter, and must not have a conflict of interest or bias regarding parties to such matters generally or to an individual complainant or respondent.  

  6. The Superintendent must agree to the terms of any informal resolution reached between the parties, considering whether the resolution is in the best interest of the parties and the school unit in light of the particular circumstances, applicable laws/regulations, and Board policies.

  7. If an informal resolution agreement is reached, it will be agreed to in writing by both parties and the Affirmative Action Office/Title IX Coordinator. Any such agreement is final and binding on the parties.

  1. The complaint will be investigated by a trained internal or external individual designated by the Superintendent and the Affirmative Action Officer/Title IX Coordinator.  The investigator shall not have a conflict of interest or bias against complainants or respondents generally, or an individual complainant or respondent, and will consult with the Affirmative Action Officer/Title IX Coordinator during the investigation process.

  2. Any complaint about an employee who holds a supervisory position will be investigated by a person not subject to that supervisor’s authority.  Any complaint about the Superintendent will be submitted to the Board Chair, who will consult with legal counsel concerning the handling and investigation of the complaint.

  3. The burden is on the school unit, and not the parties, to gather sufficient evidence (through the investigation) in order to determine whether illegal discrimination or harassment occurred.

  4. The investigator shall provide an opportunity for the complainant and respondent to be heard as part of the investigation. The parties will not be required to attend meetings together.

  5. The parties may suggest witnesses to be interviewed and/or submit materials that they believe are relevant to the allegations and complaint.

  6. The investigator will evaluate evidence that is relevant and not otherwise impermissible, including both inculpatory and exculpatory evidence.  Credibility determinations will not be based on a person’s status as a complainant, respondent, or witness.

  1. The following types of evidence, and questions seeking that evidence, are impermissible:

b. A party’s or witness’s records that are made or maintained by a physician, psychologist, or other recognized professional or paraprofessional in connection with the treatment to the party or witness, unless the school unit obtains that party’s or witness’s voluntary, written consent for use in the complaint procedure; and

  1. The investigator will provide each party with the opportunity to review the evidence that is relevant to the allegations of discrimination or harassment (and not otherwise impermissible), and to respond to it.

  2. The Affirmative Action Officer/Title IX Coordinator and investigator will take reasonable steps to prevent and address the parties’ unauthorized disclosure of information and evidence obtained solely through the complaint procedure.  Disclosure of such information and evidence for the purposes of administering administrative proceedings or litigation related to the complaint is authorized.

  3. The investigator will conclude the investigation and issue a written report to the Affirmative Action Officer/Title IX Coordinator within forty (40) school days, if feasible.  

  1. The standard used to determine whether illegal discrimination or harassment occurred is the preponderance of the evidence standard (“more likely than not”).

  2. The decision maker will review the investigation report and the evidence gathered (as appropriate) and will have the discretion to conduct additional interviews of parties and/or witnesses if needed to assess credibility.   

  3. The decision maker will make a written determination of responsibility/non-responsibility in regard to each allegation and the reasons, which shall be shared with the Affirmative Action Officer/Title IX Coordinator and the parties. 

  4. In general, the Affirmative Action Officer/Title IX Coordinator will notify the parties of the determination decision(s) within five (5) school days of the determination being reached.  Reasonable extensions of time may be approved by the Affirmative Action Officer/Title IX Coordinator for good reason. The notification will include the permissible bases for appeal and the deadline for receipt of appeals. 

  5. If there is a determination that the respondent is responsible for violations, the appropriate administrator will make decisions as to appropriate disciplinary action and remedies.

  6. The Affirmative Action Officer/Title IX Coordinator shall, as appropriate:

  1. A determination of responsibility becomes final on the date that the Affirmative Action Officer/Title IX Coordinator provides the parties with the written determination of the results of the appeal if an appeal is filed.  If an appeal is not filed, the determination of responsibility becomes final on the date on which the appeal would no longer be considered timely.

  2. The school unit will not discipline a party, witness, or others participating in the complaint procedure for making a false statement or for engaging in consensual sexual conduct based solely on the determination that sex discrimination or sexual/sex-based harassment occurred.

  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(s).  Such remedies may include supportive measures and may include other appropriate measures, depending on the determination(s) and the needs of the complainant.  The Affirmative Action Officer/Title IX Coordinator is responsible for implementing remedies and providing any needed assistance to the complainant.

  1. Discipline and Other Actions

Examples of disciplinary and other actions that may be imposed on a student when there is a determination that they are responsible for one or more violations of sexual/sex-based harassment include suspension, expulsion, restorative justice, required education or counseling, and other measures.  

Examples of disciplinary actions that may be imposed on an employee when there is a determination that they are responsible for one or more violations of sexual/sex-based harassment include: written warning, probation, counseling, demotion, suspension without pay, termination.  

  1. After the conclusion of the investigation and decision maker determination(s), the complainant or respondent may seek an appeal of the findings based on the following factors:

  1. The appeal must be made in writing to the Affirmative Action Officer/Title IX Coordinator within five (5) school days and state the basis for the appeal.

  2. The Superintendent is responsible for making a determination on the appeal.  The Superintendent will conduct an impartial review of the appeal, including consideration of the written record in the case, and may consult with legal counsel or other school unit officials in making their decision.

  3. The Superintendent will issue the appeal determination in writing within ten (10) school days of receipt of the appeal, if feasible.

  4. The Superintendent’s decision is final.

 

Section 3.   Recordkeeping

The Affirmative Action Officer/Title IX Coordinator shall maintain a record of documents and action in each case, and records of trainings provided, for a period of seven (7) years.



Cross References:

AC – Nondiscrimination/Equal Opportunity and Affirmative Action

ACAA – Harassment of Students

ACAA-R1 – Student Discrimination and Harassment Complaint Procedure

ACAB – Harassment of Employees

ACAB-R1 – Employee Discrimination and Harassment Complaint Procedure

ACAB-R2 – Employee Sex Discrimination/Harassment Complaint Procedure

JIE - Pregnant Students



Policy Adopted: November 20, 2024

 

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