A student accused of sexual harassment pursuant to
Title IX of the Education Amendments Act of 1972 (Title IX) definition and Board
Policy JB, entitled “Equal Educational Opportunities,” shall be afforded the following procedures. In emergency situations, these procedures may be modified so long as reasonable efforts are made to provide substantially similar opportunities for the procedural safeguards.
These procedures must be implemented for sexual harassment claims if they meet the definition under Title IX and/or Board Policy JB before any discipline consequence is given to the respondent, unless an emergency removal of the respondent is required due to an immediate threat of physical health or safety to others. The definition for “sexual harassment” as outlined in Title IX and Board Policy JB includes: (1) an OCPS employee conditioning the provision of an aid, benefit, or service of the school on an individual’s participation in unwelcome sexual conduct; (2) unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity; or (3) sexual assault as defined in 20 U.S.C. 1092(f)(6)(A)(v), “dating violence” as defined in 34 U.S.C. 12291(a)(10), “domestic violence” as defined in 34 U.S.C. 12291(a)(8), or “stalking” as defined in 34 U.S.C. 12291(a)(30).
The initiation of these procedures does not prohibit the school from implementing supportive measures which are designed to protect the safety of all parties and/or the educational environment.
The student discipline investigation as detailed throughout this Code shall be conducted after these Title IX procedures have been completed. Nothing in the section prohibits the school from implementing discipline consequences if the respondent is found to have committed an offense in the Code through the discipline investigation, regardless of whether the Title IX complaint was dismissed.
For reference, as used in this section, the “complainant” is the individual who is the alleged victim and the “respondent” is the individual who has been reported to be the perpetrator of the conduct.
TITLE IX PROCEDURES
Step 1: A school must follow these procedures within twenty-four (24) hours or no more than two (2) school days when the school has actual knowledge of sexual harassment occurring in an OCPS education program or activity. Education activity or program includes location, events, or circumstances over which OCPS has exercised substantial control over both the respondent and the context in which the sexual harassment occurred. A report may be made by any person with knowledge of sexual harassment incidents occurring.
If the school believes the alleged sexual harassment constitutes a crime, the matter shall be immediately reported to the School Resource Officer or appropriate law enforcement agency. If the alleged sexual harassment may constitute child abuse it shall be immediately reported to the Florida Department of Children and Families (DCF). If the alleged sexual harassment is against an OCPS employee, the Title IX Coordinator or school administrator shall immediately notify OCPS Professional Standards.
Step 2: The school-based Title IX Coordinator must promptly notify the complainant of available supportive measures and explain the process for filing a formal complaint. If there is an immediate threat to the physical health or safety to others, then the respondent shall be removed from the school under the emergency removal provisions in Title IX and/or Board Policy JB.
Step 3: The complainant or parent/guardian of the complainant must file a formal written complaint with the school alleging sexual harassment against a respondent and requesting an investigation of the allegations within ten (10) school days of the alleged misconduct occurring. The school-based Title IX Coordinator may also file the formal written complaint on behalf of the complainant if a written complaint is not received from the complainant or parent/guardian. At the time of filing the complaint the complainant must be participating in or attempting to participate in the educational program or activity of the school where he/she is filing the complaint in order for the school to investigate under Title IX and Board Policy JB; however, this provision does not prohibit the school from continuing with a discipline investigation.
Step 4: If a formal complaint is filed, the school must immediately determine if: (1) the allegations meet the definition of sexual harassment under Title IX and/or Board Policy JB; (2) the conduct occurred in an OCPS education program or activity; and (3) the allegation is against a person in the United States. If the allegations meet the above criteria the school shall continue with the following procedures as detailed herein and provided in Board Policy JB. If the allegations do not meet the above criteria the school shall dismiss the formal complaint and conduct a discipline investigation as detailed in the Code. The complainant must be notified of the dismissal within twenty-four (24) hours or no more than two (2) school days.
The complainant may request an appeal from the decision of the school to dismiss the formal complaint as outlined under Title IX and Board Policy JB, The request for an appeal should be provided to the principal within two (2) school days of notice of the dismissal. Failure to request an appeal within two (2) school days shall be deemed a waiver of the appeal.
Step 5: If the complaint is not dismissed, then the school must provide the respondent and complainant and his/her parent/guardian written notice of the allegations against the respondent upon the receipt of the sexual harassment complaint within two (2) school days. The respondent and complainant may elect to have an advisor of their choice to assist them throughout the Title IX process. The advisor may be an attorney, but is not required to be.
Step 6: The respondent shall be afforded the opportunity to prepare a response regarding the complaint and provide that response during the initial interview. The respondent shall have no less than two (2) school days from the date of the written notice to prepare a response and conduct the initial interview; the time to provide the response and conduct the initial interview shall not exceed five (5) school days. This time may be modified for good cause as outlined in Title IX and/or Board Policy JB.
Step 7: The Title IX Coordinator/Investigator must conduct a Title IX investigation into the allegations of the sexual harassment. Both the respondent and complainant will be given an equal opportunity to: present witnesses; present evidence; and inspect and review all evidence related to the investigation once the investigation is complete. The investigation must be completed and evidence provided to the respondent and complainant within five (5) school days of the initial interviews with the complainant and respondent, whichever interview is later.
Step 8: After the evidence is provided, the respondent and complainant will be given ten (10) school days to review and submit a written response to the evidence for the Title IX Coordinator/Investigator to consider before the Title IX Coordinator/investigator completes his/her investigative report. If a response is not received within ten (10) days the Title IX Coordinator/Investigator will deem the non-response as a waiver and continue with his/her investigative report.
Step 9: After reviewing the evidence and responses, the Title IX Coordinator/Investigator shall create an investigative report summarizing his/her findings. The investigative report will be provided to the respondent and complainant for review. Both the respondent and complainant will have no more than two (2) school days to provide written relevant questions to the Title IX Coordinator/investigator to be asked of any party or witness. The party or witness has no more than two (2) school days to respond to the questions. Responses will be provided to the complainant and respondent by the Title IX Coordinator/Investigator. The respondent and complainant will then have no more than two (2) school days to provide no more than five (5) written relevant follow-up questions. The party or witness has no more than two (2) school days to respond to the follow-up questions. The respondent and complainant will have ten (10) days from receipt of the investigative report to provide a written response to the investigative report.
Step 10: The investigative report and written responses will be provided to the Principal/Decision-maker. If a response is not received within ten (10) days, the Principal/Decision-maker will deem the non-response as a waiver and continue with his/her determination of responsibility.
Step 11: The Principal/Decision-maker shall issue a written determination regarding the responsibility of the respondent to the respondent and complainant within three (3) school days. The Principal/Decision-maker shall apply the preponderance of the evidence standard when making his/her determination. The school-based Title IX Coordinator will be responsible for the implementation of all remedies stated in the written determination. The determination of responsibility will become final after two (2) school days if an appeal of the determination is not requested.
Step 12: If either the respondent or complainant do not agree with the Principal/Decision-maker’s determination, either party may appeal the decision in writing to the Principal/Decision-maker. A request for an appeal must be made within two (2) school days of issuance of the determination of responsibility. An appeal will be granted if: (1) procedural issues affected the outcome; (2) there is new evidence that becomes available that could affect the outcome; or (3) there was a conflict of interest or bias by the Title IX Coordinator/Investigator or Principal/Decision-maker against the respondent or complainant. The respondent and complainant shall have three (3) school days to submit a written statement challenging or supporting the determination of responsibility issued by the Principal/Decision-maker. If a statement is not received within three (3) school days, the appeals decision-maker will deem the non-response as a waiver and continue with his/her decision regarding the appeal. The appeals decision-maker will review the statements, if available, the investigative report, and the determination of responsibility before submitting his/her written decision to the respondent and complainant. The written appeals determination describing the result and rationale for the decision must be provided simultaneously to the complainant and respondent and his/her parent/guardian within five (5) school days. The decision of the appeals decision-maker will become final upon issuance.
Additional Guidelines
- No recipient or other person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX, or 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 hearing.
- Intimidation, threats, coercion, or discrimination, including charges against an individual for Code of Student 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 this part, constitutes retaliation.
- Schools are required to keep confidential the identity of the following individuals: any individual who makes a report or complaint of sex discrimination; any individual who makes a report or filed a formal complaint of sexual harassment; any complainant; any respondent; any individual reported to be the perpetrator of sex discrimination; and any witness. Disclosure of the aforementioned individuals may be permitted according to the FERPA or as required by law.
- A Code of Student Conduct violation for making a materially false statement in bad faith during the course of the grievance process does not constitute retaliation. A determination regarding responsibility alone is insufficient to conclude that any party made a materially false statement in bad faith.