Policy 1710 – Nondiscrimination On The Basis Of Sex In Education Programs Or Activities (Title IX)

The ��ϲʽ�� (the “��ϲʽ��”) does not discriminate on the basis of sex in any of its education programs or activities and it complies with Title IX of the Education Amendments Act of 1972 (“Title IX”) and its implementing regulations, concerning any individual in the ��ϲʽ��’s education programs and activities. Pursuant to the ��ϲʽ��’s Title IX obligations, the ��ϲʽ�� prohibits sexual harassment that occurs within its education programs and activities. The ��ϲʽ�� is further committed to eliminating sexual harassment by taking appropriate action to determine whether sexual harassment has occurred, and if it has, to provide persons who have experienced sexual harassment with supportive measures as reasonably necessary to restore or preserve access to the ��ϲʽ��’s education programs and activities. The ��ϲʽ�� is committed to responding to Title IX sexual harassment or allegations of sexual harassment in a prompt manner that is not deliberately indifferent under circumstances in which the federal regulations deem the ��ϲʽ�� to have actual knowledge of such sexual harassment.

The process and procedures described herein apply exclusively to reports and complaints brought under this Policy.

TITLE IX SEXUAL HARASSMENT PROHIBITED

An individual, including a ��ϲʽ�� employee or agent, a ��ϲʽ�� student, or other third party, engages in Title IX sexual harassment whenever that individual engages in conduct on the basis of another individual’s sex that satisfies one or more of the following:

A ��ϲʽ�� employee conditions the provision of an aid, benefit, or service of the ��ϲʽ�� on an individual’s participation in unwelcome sexual conduct (“quid pro quo”);
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 ��ϲʽ��’s education program or activity; or
“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).
1. “Sexual assault” means any sexual act directed against another person, without the consent of the victim, including instances where the victim is incapable of giving consent. Sexual assault includes rape, sodomy, sexual assault with an object, fondling, incest, and statutory rape.
  1. Rape is penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim, including instances where the victim is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity. Attempted rape is included.
  2. Sodomy is oral or anal sexual intercourse with another person, without the consent of the victim, including instances where the victim is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity.
  3. Sexual Assault with an Object is using an object or instrument to unlawfully penetrate, however slightly, the genital or anal opening of the body of another person, without the consent of the victim, including instances where the victim is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity. An “object” or “instrument” is anything used by the offender other than the offender’s genitalia.
  4. Fondling is the touching of the private body parts of another person for the purpose of sexual gratification, without the consent of the victim, including instances where the victim is incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity.
  5. Incest is sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by State law.
  6. Statutory Rape is sexual intercourse with a person who is under the statutory age of consent as defined by Wis. Stat. §§ 948.02 or 948.09, or whose status as a student prohibits such sexual contact per Wis. Stat. §948.095.
  7. Other Sexual Contact includes the intentional emission of bodily fluids on the complainant, or at the direction of the Respondent, for the purposes of sexual gratification as defined in Wis. Stat. § 940.225(5)(b).
2. “Domestic violence” includes felony or misdemeanor crimes of violence committed by:
  1. A current or former spouse or intimate partner of the victim;
  2. A person with whom the victim shares a child in common;
  3. A person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner;
  4. A person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction in which the crime occurred; or
  5. Any other person against an adult or youth victim who is protected from that person’s acts under the domestic or family violence laws of the jurisdiction in which the crime occurred.
3. “Dating violence” means violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim. The existence of such a relationship shall be determined based on consideration of the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship.
4. “Stalking” means engaging in a course of conduct directed at a specific person that would cause a reasonable person to – (1) fear for the person’s safety or the safety of others; or (2) suffer substantial emotional distress.

Examples of sexual harassment include, but are not limited to, touching, crude jokes or pictures, discussions of sexual experiences, teasing related to sexual characteristics, spreading rumors related to a person’s alleged sexual activities, rape, and sexual abuse.

This Policy does not apply to sexual harassment that occurs off ��ϲʽ�� property and outside the scope of the ��ϲʽ��’s education programs or activities or sexual harassment that occurs outside of the United States.

DEFINITIONS

Actual Knowledge refers to notice of sexual harassment or allegations of sexual harassment to the ��ϲʽ��’s Title IX Coordinator(s), any ��ϲʽ�� official who has authority to institute corrective measures on behalf of the ��ϲʽ��, or any employee.

Complainant means an individual who is alleged to be the victim of conduct that could constitute sexual harassment.

Consent refers to words or actions that a reasonable person could understand as an agreement to engage in the sexual conduct at issue. A person may be incapable of giving consent because of age or because of temporary or permanent mental or physical incapacity. A person who is incapacitated is incapable of giving consent.

Day(s) Unless otherwise specifically stated herein, “day(s)” means calendar days.

Education program or activity refers to all operations of the ��ϲʽ�� over which the ��ϲʽ�� exercises substantial control over both the Respondent and the context in which the alleged sexual harassment occurs.

Eligible student means an individual who is participating in or attempting to participate in an education program or activity of the ��ϲʽ��.

Exculpatory evidence is evidence that tends to clear or excuse a Respondent from allegations of sexual harassment.

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 ��ϲʽ�� investigate the allegation(s).

Inculpatory evidence is evidence that tends to establish a Respondent’s responsibility for alleged sexual harassment.

Respondent means an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment.

Supportive measures mean 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. Supportive measures may include, but are not limited to, counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, additional supervision or planned accompaniment, mutual restrictions on contact between the parties, changes in work locations, leaves of absence, increased security, supervision, monitoring of certain areas of school grounds, and other similar measures.

Third parties include, but are not limited to, guests and visitors on ��ϲʽ�� property, vendors doing business with or seeking to do business with the ��ϲʽ�� or the School Board, and other individuals who come in contact with members of the ��ϲʽ�� community at school-related events or activities.

Title IX Coordinator is the individual responsible for coordinating the ��ϲʽ��’s efforts to comply with its obligations under Title IX and Title IX regulations. This policy will refer to the “Title IX Coordinator” in the singular form. The ��ϲʽ�� has two designated Title IX Coordinators, and the singular term as used throughout this policy can mean either of the coordinators. The Title IX Coordinators are:

Julie Housaman
Chief of Academics
3600 52nd Street
Kenosha, WI 53144
(262) 359-6311
jhousama@kusd.edu
William Haithcock
Chief of Schools
3600 52nd Street
Kenosha, WI 53144
(262) 359-6008
whaithco@kusd.edu

MAKING A REPORT

Any person may report sex discrimination, including sexual harassment, to the Title IX Coordinator or any other ��ϲʽ�� employee with whom the person feels comfortable reporting the allegations to, in person, by mail, by telephone, or by electronic mail. If the report is made to a ��ϲʽ�� employee, they shall forward the report to the Title IX Coordinator within two (2) days. Any ��ϲʽ�� employee who fails to do so may be disciplined, up to and including discharge.

In the event that the Title IX Coordinator is the individual alleged to have engaged in sexual harassment, report may be submitted to the Superintendent or another ��ϲʽ�� employee, who will notify the Superintendent of the report or complaint. In such cases, the Superintendent shall serve as the Title IX Coordinator for the purposes of addressing that specific report or complaint.

REVIEWING REPORTED SEXUAL HARASSMENT

When a report of sexual harassment is made, the Title IX Coordinator and/or designee will contact the Complainant within two (2) days to discuss the availability of supportive measures, consider the Complainants wishes with respect to supportive measures, inform the Complainant of the availability of supportive measures with or without the filing of a formal complaint, and explain to the Complainant the process for filing a formal complaint.

If the Complainant does not file a formal complaint, the Title IX Coordinator has the authority to sign a formal complaint and trigger the ��ϲʽ��’s Title IX grievance process if: (1) the Complainant is not an eligible student and therefore is ineligible to file a formal complaint, or (2) the Complainant chooses not to file a formal complaint but the Title IX Coordinator finds that the ��ϲʽ��’s interests are substantial enough that the matter should be investigated and resolved through the grievance process without the Complainant’s direct cooperation. Upon signing a formal complaint, the Title IX Coordinator does not become a complainant or a party to the complaint, and any Complainant who is identified in relation to the allegations retains their status as a Complainant in connection with the grievance process.

Further, the Title IX Coordinator will analyze the report to determine whether the allegations implicate another or additional ��ϲʽ�� or Board policy, which would require another or additional processes. These policies include 4111 – Employee Anti-Harassment, 5110.1 – Student Equal Opportunity and Non-discrimination in Education, 5110.2 – Nondiscrimination Guidelines Related to Students Who Are Transgender and Students Nonconforming to Gender Role Stereotypes, 5111 – Bullying, 5540 – Abuse/Neglect, and 4112 – Violence in the Workplace.

The Title IX Coordinator may also remove a student Respondent from the ��ϲʽ��’s education program or activity on an emergency basis if the Title IX Coordinator finds that the Respondent poses an immediate threat to the physical health or safety of any student or other individual involved after conducting an individualized safety and risk analysis. If the Respondent is a non-student ��ϲʽ�� employee, the ��ϲʽ�� may place the Respondent on administrative leave during the pendency of the grievance process. If the Respondent is a third-party, the ��ϲʽ�� retains broad discretion to prohibit such persons from ��ϲʽ�� property at any time and for any reason. Any such emergency removal will be in accordance with all relevant ��ϲʽ�� Policies and all relevant state and federal law.

FORMAL TITLE IX COMPLAINT GRIEVANCE PROCESS

Before beginning the grievance process, the Title IX Coordinator will consider whether there is a basis for dismissal of the formal complaint or any of the specific allegations. This determination may also be made while the formal complaint is pending. The following scenarios warrant either mandatory dismissal or permissive dismissal.

The formal complaint or specific allegations in the formal complaint must be dismissed if the conduct alleged in the formal complaint:
1. Would not constitute sexual harassment as defined under Title IX even if proved;
2. Did not occur within the ��ϲʽ��’s education program or activity; or
3. Did not occur against a person in the United States.
The formal complaint or specific allegations in the formal complaint may be dismissed if any of the following apply:
1. The Complainant notifies the Title IX Coordinator in writing that they would like to withdraw the formal complaint or any allegations therein; or
2. The Respondent is no longer enrolled in the ��ϲʽ�� or no longer employed by the ��ϲʽ��;
3. Specific circumstances prevent the ��ϲʽ�� from gathering evidence sufficient to reach a determination.

If the formal complaint is dismissed, the Title IX Coordinator or their designee will promptly send written notice of dismissal and the reasons for dismissal to all parties. This decision may be appealed through the appeal process described in this policy.

If the formal complaint is not dismissed, the ��ϲʽ��’s Title IX grievance process must be initiated. At a minimum, the ��ϲʽ��’s grievance process shall:

Treat Complainants and Respondents equitably by providing remedies to a Complainant where the Respondent is determined to be responsible for sexual harassment and by following a grievance process that complies with Title IX before the imposition of any disciplinary sanctions or other actions against a Respondent.
Require an objective evaluation of all relevant evidence and provide that credibility determinations may not be based on a person’s status as a Complainant, Respondent, or witness.
Require that any person designated by the ��ϲʽ�� as a Title IX Coordinator, investigator, decision-maker, or informal process facilitator not have any conflict of interest or bias for or against the Complainant or Respondent or complainants or respondents generally.
Require that any person designated by the ��ϲʽ�� as a Title IX Coordinator, investigator, decision-maker, or informal process facilitator receive training on the definition of sexual harassment, the scope of the ��ϲʽ��’s education program or activity, how to conduct an investigation and grievance process, and how to serve impartially.
Require that any person designated by the ��ϲʽ�� as an investigator receive training on issues of relevance to produce an investigative report that fairly summarizes relevant evidence.
Require that any person designated by the ��ϲʽ�� as a decision-maker receive training 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.
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.
Include reasonably prompt timeframes for conclusion of the grievance process.
Describe the range of possible disciplinary sanctions and remedies the ��ϲʽ�� may implement following any determination of responsibility.
Base all decisions on the preponderance of evidence standard, which means the evidence must show that sexual harassment more likely than not did occur and more likely than not the Respondent committed the sexual harassment at issue.
Include the procedures and permissible bases for the Complainant and Respondent to appeal.
Describe the range of supportive measures available to Complainants and Respondents.
Not require, allow, rely upon, or otherwise use questions or evidence that constitute, or seek disclosure of, information protected under a legally recognized privilege, unless the person holding such privilege has waived the privilege.

The ��ϲʽ�� will seek to conclude the grievance process, which includes an investigation and determination of responsibility, within ninety (90) calendar days of receipt of the formal complaint. The grievance process may be followed by an appeal process which will be conducted in a timely manner as described in this policy.

INFORMAL INVESTIGATION

At any point after a formal complaint has been filed but before reaching a determination of responsibility under the full grievance process, the ��ϲʽ�� may ask the parties if they wish to consider addressing the situation through an informal resolution process facilitated by the ��ϲʽ��. Informal resolution shall be strictly voluntary. Informal resolution will not be an option if the formal complaint includes allegations that a ��ϲʽ�� employee or third-party adult sexually harassed a student or allegations of sexual assault.

The informal resolution process allows the parties to attempt a resolution of the formal complaint without a full investigation and determination of responsibility. Both the Complainant and Respondent must agree to informal resolution and provide voluntary written consent. If the informal resolution is not successful, the ��ϲʽ�� will complete the full investigation and adjudication of the formal complaint under the grievance process.

INVESTIGATION

During the investigation, both parties have the right to present witnesses, present inculpatory and exculpatory evidence, and have others present during any grievance proceeding. Both parties have the right to inspect and review any evidence obtained as part of the investigation.

The investigator is tasked with completing an investigative report which fairly summarizes all relevant evidence. Prior to the completion of the investigative report, the investigator will send each party all evidence subject to inspection and the parties will have ten (10) days to review and submit a written response if they choose. The investigator will consider any written response when completing the final investigative report which will be provided to the decision-maker.

DETERMINATION OF RESPONSIBILITY

The Title IX Coordinator will appoint a decision-maker to then issue a determination of responsibility. After the investigator provides the decision-maker with the report, the decision-maker will afford each party the opportunity to submit written, relevant questions that a party wants asked of any party or witness, provide the party or witness with the questions, and allow for additional time for limited follow-up questions. The decision-maker will then issue a written determination regarding responsibility.

The written determination regarding responsibility will include all of the following:

Identification of the allegations potentially constituting sexual harassment under Title IX;
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;
Findings of fact supporting the determination;
Conclusions regarding the application of the relevant legal standards and the ��ϲʽ��’s code of conduct (i.e., ��ϲʽ�� policies and rules that apply to the party in question); and
A statement of, and rationale for, the result as to each allegation, including all of the following:
1. A determination regarding responsibility;
2. Any disciplinary sanctions the ��ϲʽ�� imposes on the Respondent or, in cases where a particular disciplinary sanction is beyond the direct authority of the decision-maker, a statement of the disciplinary sanction(s) that the decision-maker is recommending as an appropriate consequence;
3. Whether the ��ϲʽ�� will provide the Complainant with any remedies designed to restore or preserve the Complainant’s equal access to the ��ϲʽ��’s education program or activity;
4. The ��ϲʽ��’s procedures and permissible bases for the Complainant and Respondent to appeal. If a formal complaint of Title IX sexual harassment also constitutes a complaint of pupil discrimination under Wis. Admin. Code PI ch. 9, the ��ϲʽ�� may also use this notice to inform the Complainant of their right to appeal any adverse final determination of their complaint under state law to the State Superintendent of Public Instruction (DPI), as well as the procedures for making such an appeal to DPI.
5. The decision-maker or a designee acting on his/her behalf must provide the written determination to the parties simultaneously.
6. Disciplinary sanctions and any remedies that could not be offered as supportive measures shall not be enforced until the determination of the complaint becomes final.

APPEAL

Both parties have the right to file a written appeal from a determination regarding responsibility or from the Title IX Coordinator’s dismissal of a formal complaint or any allegations therein. A written appeal must be filed with the Title IX Coordinator within five (5) days of the determination regarding responsibility. An appeal may be based on any of the following and must have affected the outcome of the matter:

A procedural irregularity;
New evidence that was not reasonably available at the time the determination regarding responsibility was made;
The Title IX Coordinator, investigator, or decision-maker had a conflict of interest of bias for or against complainants or respondents generally, or the individual Complainant or Respondent; and
The initial decision was substantively erroneous in that the facts did not adequately support the conclusion.

The appeal decision-maker will issue a written decision describing the result of the appeal and the rationale for that result. The determination of responsibility becomes final when the time for filing an appeal has passed or, if an appeal is filed, at the point when the appeal decision-maker’s decision is delivered to the Complainant and the Respondent.

ENFORCEMENT

If an individual is found to be responsible for Title IX sexual harassment at the conclusion of the grievance process, the ��ϲʽ�� may impose disciplinary sanctions which depend on the nature of the misconduct and the individual’s status as an employee, student, or third-party.

Possible disciplinary sanctions available to students include, but are not limited to, suspension or expulsion from school consistent with Board Policies and Wis. Stat. § 120.13(1), suspension of eligibility to participate in co-curricular activities or other ��ϲʽ��-sponsored events. The ��ϲʽ�� may also restrict or deny permission to be present on ��ϲʽ�� property or at certain ��ϲʽ��-sponsored events or activities. This provision does not modify any student’s rights under the Individuals with Disabilities Education Act or Section 504 of the Rehabilitation Act of 1973.

Possible disciplinary sanctions available to ��ϲʽ�� employees will be imposed in accordance with Board Policies and the Employee Handbook, and include, but are not limited to, a formal reprimand, a demotion or other disciplinary reassignment, suspension from work, contract nonrenewal, termination of employment, or restrictions on permission to be present on ��ϲʽ�� property or at certain ��ϲʽ��-sponsored events.

Possible disciplinary sanctions available to third parties include, but are not limited to, suspension or termination of a ��ϲʽ��-authorized role (e.g., volunteer), termination or nonrenewal of third-party contracts, and restrictions on permission to be present on ��ϲʽ�� property or at ��ϲʽ��-sponsored events or activities.

Any individual making a knowingly false accusation regarding sexual harassment will likewise be subject to disciplinary action in accordance with Board Policy and the Code of Classroom Conduct.

RETALIATION PROHIBITED

The ��ϲʽ�� prohibits any form of retaliation against anyone who, in good faith, has made a report or complaint, assisted, or participated or refused to participate in any manner in a proceeding under this policy. Retaliation includes intimidation, threats, coercion, and discriminatory treatment. Complaints alleging retaliation may be filed according to the grievance procedures set forth under Board Policy 5110.1.

Any individual who retaliates against other for reporting or complaining of violations of this policy or for participating in any manner in this policy will be subject to disciplinary action, up to and including discharge, with regard to ��ϲʽ�� employees, suspension and expulsion, with regard to students, and all remedies available to the Board, with regard to third parties.

The exercise of rights protected under the First Amendment of the United States Constitution shall not constitute retaliation prohibited under this policy.

APPLICATION OF THE FIRST AMENDMENT

The Board shall construe and apply this policy consistent with the First Amendment of the United States Constitution. In no case will a Respondent be found to have committed sexual harassment based on the expressive conduct that is protected by the First Amendment.

AUTORITY

The Board has the authority to appoint Title IX Coordinators, who have the responsibility of selecting appropriately trained individuals to carry out the requirements of Title IX and act as an investigator, advisor, informal resolution facilitator, decision-maker, or appeal decision-maker.

CONFIDENTIALITY

The ��ϲʽ�� will keep confidential the identity of any individual who has made a report or filed a formal complaint alleging Title IX sexual harassment, including any Complainant, any Respondent, and any witness, except as may be permitted by the Family Educational Rights and Privacy Act and its implementing regulations, or as required by any state or other federal law, or to carry out the purposes of the federal Title IX regulations, including the conduct of any investigation, hearing, or judicial proceeding arising under the federal Title IX regulations.

CONSOLIDATION OF FORMAL COMPLAINTS

The Title IX Coordinator may choose to 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.

OTHER AVAILABLE REMEDIES

Nothing in this Policy precludes an individual from filing a criminal complaint with outside law enforcement agencies. Further, nothing within this Policy shall preclude individuals from filing a discrimination complaint or request for enforcement directly with the U.S. Department of Education’s Office for Civil Rights, as authorized by federal law.

NOTICE

The ��ϲʽ�� will provide notice of this policy by making it available on the ��ϲʽ��’s website and each handbook that the ��ϲʽ�� makes available to persons entitled to a notification.

RECORDKEEPING

The ��ϲʽ�� will maintain all records required by state and federal law which have been created or obtained in response to a report or a formal complaint of sexual harassment for seven (7) years.

TRAINING

The ��ϲʽ�� will provide training to all appropriate individuals regarding sexual discrimination, sexual harassment, sexual violence, and Title IX. The ��ϲʽ�� will also provide additional training to all staff responsible for implementing the complaint procedures. The ��ϲʽ�� will make its training materials publicly available on its website and if a person is unable to access the ��ϲʽ��’s website, the Title IX Coordinator will make the training materials available upon request for inspection by members of the public.

LEGAL REF.:

20 U.S.C. § 1681 et seq., Title IX of the Education Amendments Act of 1972
20 U.S.C. § 1092(f)(6)(A)(v)
34 U.S.C. § 12291(a)(10)
34 U.S.C. § 12291(a)(8)
34 U.S.C. § 12291(a)(30)
Wis. Stat. § 111.32(13)
Wis. Stat. § 118.13
Wis. Stat. § 120.13(1)

CROSS REF.:

4111 Employee Anti-Harassment
4224 Employee Code of Ethics
5110.1 Student Equal Opportunity, Non-Discrimination and Anti-Harassment in Education
5110.2 Nondiscrimination Guidelines Related to Students Who Are Transgender and Students Nonconforming to Gender Role Stereotypes
5111 Bullying
5540 Abuse/Neglect

ADMINISTRATIVE REGULATIONS:

34 C.F.R. Part 106
Wis. Admin. Code PI ch. 9

AFFIRMED: September 27, 2022.

REVISED:

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