Regulation-Code-ACAA-R

Title IX Sexual Harassment

Section A: Foundation and Basic Commitments

Regulation Title: Title IX Sexual Harassment
Regulation Code: ACAA-R

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Title IX Coordinator

The Superintendent shall appoint an employee as the “Title IX Coordinator.” The Title IX Coordinator is the primary school contact for receiving reports or complaints of sex discrimination, including sexual harassment.  If the Title IX Coordinator is the respondent, the complaint shall be filed with the Superintendent.

Title IX Coordinator:
Maricela Meza
Employee Relations Department
1010 East 10th Street, #7
Tucson, Arizona 85719
E-mail: Maricela.Meza@tusd1.org
Telephone: (520) 225-6739

Notice
A link to the Title IX Sexual Harassment policy shall be provided directly off the main page of the Tucson Unified website.

The Title IX Coordinator’s contact information shall be prominently displayed on the school website.

The District shall provide notice of any exceptions to the school community.

The District shall provide written notice to the community of the Title IX Coordinator’s contact information, and upon initial adoption or revision of Policy ACAA Title IX Sexual Harassment.

The District shall incorporate reference to Policy ACAA Title IX Sexual Harassment in handbooks or catalogs provided to:

A.  Current students and employees;
B.  Applicants for employment;
C.  Parents or guardians of elementary and secondary students

Response to Sexual Harassment
The Superintendent shall create a specific Title IX grievance procedure for formal complaints as specified in this Regulation.

When the District has actual knowledge of sexual harassment in an education program or activity of the District against a person in the United States, it shall respond promptly in a manner that is not deliberately indifferent.

A.  “Actual knowledge” means notice of sexual harassment or allegations of sexual harassment to a District’s Title IX Coordinator or to any employee.
B.  An “education program or activity” includes locations, events, or circumstances over which the District exercised substantial control over both the respondent and the context in which the sexual harassment occurs, and also includes any building owned or controlled by a student organization that is officially recognized by the District.
C.  A District is “deliberately indifferent” only if its response to sexual harassment is clearly unreasonable in light of the known circumstances.

Equal Treatment
The District’s initial response to any report of sexual harassment must treat complainants and respondents equally by offering supportive measures to both and must follow the established grievance process before disciplining a respondent.

Even if no formal complaint has been filed, the Title IX Coordinator shall promptly:
A.  Contact the complainant to discuss the availability of supportive measures;
B.  Consider the complainant’s wishes with respect to supportive measures;
C.  Inform the complainant of the availability of supportive measures with or without the filing of a formal complaint; and
D.  Explain to the complainant the process for filing a formal complaint.

Supportive Measures:
Supportive measures are 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 the filing of a formal complaint or where no formal complaint has been filed. Such measures are designed to restore or preserve equal access to the 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, and other similar measures. The District shall maintain as confidential any supportive measures provided to the complainant or respondent, to the extent that maintaining such confidentiality would not impair the ability of the District to provide the supportive measures.

The Title IX Coordinator is responsible for coordinating the effective implementation of supportive measures.

Removal of Respondent
The District may remove a respondent from the District’s education program or activity on an emergency basis, provided that the District undertakes an individualized safety and risk analysis, determines that an immediate threat to the physical health or safety of any student or other individual arising from the allegations of sexual harassment justifies removal, and 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.

The District may place a non-student employee respondent on administrative leave during the pendency of a grievance process in response to a formal complaint. This provision may not be construed to modify any rights under Section 504 of the Rehabilitation Act of 1973 or the Americans with Disabilities Act.

Filing a Formal Complaint
“Formal complaint” means a document filed by a complainant or signed by the Title IX 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, a complainant must be participating in or attempting to participate in the education program or activity of the District with which the formal complaint is filed. A formal complaint may be filed with the Title IX Coordinator in person, by mail, or by electronic mail, by using the contact information listed above, and by any additional method designated by the District that results in the Title IX Coordinator receiving the complaint.

District Response to a Formal Complaint
For the purpose of addressing formal complaints of sexual harassment, this grievance process shall comply with the following basic elements:

A.  Provide written notice to all parties upon receipt of complaint, which must include:
  1. Notice of the District’s formal grievance process, including any informal resolution process;
  2. Notice of the allegations, including sufficient details to allow respondent to prepare a response (such as the identities of the parties involved in the incident, if known, the conduct allegedly constituting sexual harassment, and the date and location of the alleged incident);
  3. A statement that the respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the grievance process;
  4. Notice that the parties may have an advisor of their choice, who may be, but is not required to be, an attorney, and may inspect and review evidence; and
  5. Notice of any provision in the District’s code of conduct that prohibits knowingly making false statements or providing false information in the grievance process.
B.  Treat complainants and respondents equitably;
C.  Require an objective evaluation of all relevant evidence;
D.  Require that the Title IX Coordinator, investigator, decision-maker, or any person designated by the District to facilitate an informal resolution process, be properly trained and not have a conflict of interest against complainants and respondents generally or against the particular complainant and respondent;
E.  Include a presumption that the respondent is not responsible for the alleged conduct until a determination has been made at the conclusion of the grievance process;
F.  Include reasonably prompt timeframes for the conclusion of the grievance process;
G.  Describe or list the possible disciplinary sanctions and remedies that may be implemented following a determination of responsibility;
H.  State that the District uses a preponderance of evidence standard to determine responsibility;
I.  Include the procedures and permissible reasons for appeal by a respondent or a complainant;
J.  Describe the range of supportive measures available to complainants and respondents; and
K.  Not require, allow, or use evidence or questions that constitute or seek legally privileged information, unless the privilege is waived.

Dismissal
If the conduct alleged in a formal complaint does not meet the Title IX definition of sexual harassment as established in Governing Board policy, did not occur in the District’s education program or activity, or did not occur against a person in the United States, then the District shall dismiss the allegations for purposes of Title IX but may still address the allegations in any manner the District deems appropriate under other District policies.

The District may dismiss a formal complaint or any allegations therein, if at any time:
  1. The complainant notifies the Title IX Coordinator in writing that the complainant would like to withdraw the formal complaint or any allegations therein;
  2. The respondent is no longer enrolled or employed by the District; or
  3. Specific circumstances prevent the District from gathering evidence sufficient to reach a determination as to the formal complaint or allegations therein.
Upon dismissal of a formal complaint or any allegations therein, the District shall promptly send written notice of the dismissal, including the reasons for the dismissal, simultaneously to the parties.

Investigative Report
When investigating a formal complaint and throughout the grievance process, the District shall:
  1. Ensure that Title IX personnel (Title IX Coordinators, investigators, decision-makers, people who facilitate any informal resolution process) are free from conflicts of interest or bias for or against complainants or respondents.
  2. Ensure that the burden of proof and the burden of gathering evidence rests on the District and not on the parties, except that certain treatment records cannot be obtained without voluntary, written consent of a party;
  3. Provide an equal opportunity for the parties to present witnesses and evidence;
  4. Not restrict the ability of either party to discuss the allegations or to gather and present evidence;
  5. Provide the parties with the same opportunities to have others present during any meeting or grievance proceeding;
  6. Provide, to a party whose participation is invited or expected, written notice of the date, time, location, participants, and purpose of any meeting or grievance proceeding, with sufficient time for the party to prepare to participate;
  7. Provide both parties an equal opportunity to inspect and review any evidence so that each party can meaningfully respond to the evidence prior to the conclusion of the investigation (prior to completion of the investigative report, the investigator will send to each party and the party’s advisor, if any, a copy of all evidence gathered during the investigation and will allow the parties at least ten (10) days to submit a written response to any of the evidence); and
  8. Create an investigative report that fairly summarizes relevant evidence and, at least ten (10) days prior to a determination of responsibility, send to each party and the party’s advisor, if any, the investigative report in an electronic format or hard copy, for their review and written response.
Determination of Responsibility
After the District has sent the investigative report to the parties and before reaching a determination regarding responsibility, the decision-makers(s) shall afford each party 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. Questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant, unless such questions and evidence are offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or if the questions and evidence are offered to prove consent.

The decision-maker(s), who cannot be the same person(s) as the Title IX Coordinator or the investigator(s), shall apply a preponderance of the evidence standard of proof and shall issue a written determination regarding responsibility that includes:
  1. Identification of the allegations potentially constituting sexual harassment;
  2. A description of the procedural steps taken from the receipt of the formal complaint through the determination, including any notifications to the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, and hearings held;
  3. Findings of fact supporting the determination;
  4. Conclusions regarding the application of the District’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 the District imposes on the respondent, and whether remedies designed to restore or preserve equal access to the District’s education program or activity shall be provided by the District to the complainant; and
  6. The District’s procedures and permissible bases for the complainant and respondent to appeal.
The District shall provide the written determination to the parties simultaneously.

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

Appeals
The District shall offer both parties the right to appeal from a determination regarding responsibility and from a dismissal of a formal complaint or any allegations therein, on the following bases:
  1. Procedural irregularity that affected the outcome of the matter;
  2. New evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made, that could affect the outcome of the matter; and
  3. The Title IX Coordinator, investigator(s), or decision-makers(s) had a conflict of interest or bias for or against complainants or respondents generally or the individual complainant or respondent that affect the outcome of the matter.
In the absence of any of these appealable issues, the determination is final.

As to all appeals, the District shall:
  1. Notify the other party in writing when an appeal is filed and implement appeal procedures equally for both parties;
  2. Ensure that the decision-maker(s) for the appeal is not the same person as the decision-maker(s) that reached the determination regarding responsibility or dismissal, the investigator(s), or the Title IX Coordinator;
  3. Ensure that the decision-maker(s) for the appeal does not have a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent;
  4. Give both parties a reasonable, equal opportunity to submit a written statement in support of, or challenging, the outcome;
  5. Issue a written decision describing the result of the appeal and the rational for the result; and
  6. Provide the written decision simultaneously to both parties.
Informal Resolution Process
The District 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.

Similarly, the District may not require the parties to participate in an informal resolution process and may not offer an informal resolution process unless a formal complaint is filed. However, at any time prior to reaching a determination regarding responsibility during a formal complaint process, the District may facilitate an informal resolution process, such as mediation, that does not involve a full investigation and adjudication, provided that the District:
  1. Provides to the parties a written notice disclosing:
    1. The allegations;
    2. The requirements of the informal resolution process, including the circumstances under which it precludes the parties from resuming a formal complaint arising from the same allegations, provided, however, that at any time prior to agreeing to a resolution, any party has the right to withdraw from the informal resolution process and resume the grievance process with respect to the formal complaint; and
    3. Any consequences resulting from participating in the informal resolution process, including the records that shall be maintained or could be shared;
  2. Obtains the parties’ voluntary, written consent to the informal resolution process; and
  3. Does not offer or facilitate an informal resolution process to resolve allegations that an employee sexually harassed a student.
Record Keeping
The District shall maintain for a period of seven (7) years records of:
  1. Each sexual harassment investigation including:
    1. Any determination regarding responsibility;
    2. Any disciplinary sanctions imposed on the respondent; and
    3. Any remedies provided to the complainant designed to restore or preserve equal access to the District’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. The District shall make these training materials publicly available on its website.
The District shall create and maintain for a period of seven (7) years, records of any actions, including 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 has taken measures designed to restore or preserve equal access to the District’s education program or activity. If a District does not provide a complainant with supportive measures, then the District shall 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 District in the future from providing additional explanations or detailing additional measures taken.

Confidentiality
Complaints will be kept confidential to the extent possible given the need to investigate, the requirements of the grievance procedure set forth above, and the need to act on investigative results.

Training
  1. The Superintendent shall assure routine training of Title IX personnel (Title IX Coordinators, investigators, decision-makers, people who facilitate any informal resolution process).
  2. Training will include training on the definition of sexual harassment in the Final Rule, the scope of the school’s education program or activity, how to conduct an investigation and grievance process including 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.
  3. A school must ensure that decision-makers receive training on any technology to be used at a live hearing.
  4. A school’s decision-makers and investigators must receive training on issues of relevance, including how to apply the rape shield protections provided only for complainants.
  5. Training shall include a presumption that the respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process.
  6. The District shall post materials used to train Title IX personnel on the District websites, or make materials available for members of the public to inspect.
  7. Training shall include reasonably prompt time frames for conclusion of the grievance process, including appeals and informal resolutions, with allowance for short-term, good cause delays or extensions of the time frames. T
  8. Training shall describe the range, or list, the possible remedies a school may provide a complainant and disciplinary sanctions a school might impose on a respondent, following determinations of responsibility.
  9. Training shall include how to present written Findings, including a statement as to whether the school has chosen to use the preponderance of the evidence standard, or the clear and convincing evidence standard, for all formal complaints of sexual harassment (including where employees and faculty are respondents).
  10. Training shall describe the school’s appeal procedures, and the range of supportive measures available to complainants and respondents, including the fact that a school’s grievance process must not use, rely on, or seek disclosure of information protected under a legally recognized privilege, unless the person holding such privilege has waived the privilege.
  11. Training shall include the requirement that any provisions, rules, or practices other than those required by the Final Rule that a school adopts as part of its grievance process for handling formal complaints of sexual harassment, must apply equally to both parties.


ADOPTED: December 8, 2021 (SLT Review)

CROSS REF:

Policy ACAA – Title IX Sexual Harassment