FFDA(LEGAL) - FREEDOM FROM DISCRIMINATION, HARASSMENT, AND RETALIATION: SEX AND SEXUAL VIOLENCE

Note: This policy addresses complaints of sex discrimination, sexual harassment, sexual assault, dating violence, domestic violence, stalking, and retaliation targeting students. For additional legally referenced material relating to discrimination, harassment, and retaliation, including the Clery Act, see FA(LEGAL). For sex discrimination, sexual harassment, sexual assault, dating violence, domestic violence, stalking, and retaliation targeting employees, see DIAA.

Section I: Title IX

Definitions

Complainant

Respondent

Education Program or Activity

Sexual Harassment

  1. An employee of the recipient conditioning the provision of an aid, benefit, or service of the recipient 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 recipient'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).

Formal Complaint

Actual Knowledge

Supportive Measures

Notice of Nondiscrimination

Title IX Coordinator

Grievance Procedures

Process for Formal Complaints

Conflict of Interest Prohibited
Training
Time Frames
Presumption of Responsibility Prohibited
Information Subject to Privilege
Evaluation of Evidence and Credibility Determinations
Standard of Evidence
Supportive Measures
Sanctions and Remedies
Appeals
Additional Procedures

Reporting

Formal Complaint Filing

Consolidation of Complaints

Notice of Allegations

  1. Notice of the recipient's grievance process that complies with 34 C.F.R. 106.45, including any informal resolution process.
  2. Notice of the allegations of sexual harassment potentially constituting sexual harassment as defined in 34 C.F.R. 106.30, including sufficient details known at the time and with sufficient time to prepare a response before any initial interview. Sufficient details include the identities of the parties involved in the incident, if known, the conduct allegedly constituting sexual harassment under Section 106.30, and the date and location of the alleged incident, if known. The written notice must include 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. The written notice must inform the parties that they may have an advisor of their choice, who may be, but is not required to be, an attorney, under 34 C.F.R. 106.45(b)(5)(iv), and may inspect and review evidence under Section 106.45(b)(5)(vi). The written notice must inform the parties of any provision in the recipient's code of conduct that prohibits knowingly making false statements or knowingly submitting false information during the grievance process.

Response to Sexual Harassment

Response to Formal Complaint

Informal Resolution

  1. Provides to the parties a written notice disclosing: the allegations, 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 any consequences resulting from participating in the informal resolution process, including the records that will 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.

Investigation

  1. Ensure that the burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility rest on the recipient and not on the parties provided that the recipient 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 the party, unless the recipient obtains that party's voluntary, written consent to do so for a grievance process under this section.
  2. Provide an equal opportunity for the parties to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence.
  3. Not restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence.
  4. Provide the parties with the same opportunities to have others present during any grievance proceeding, including the opportunity to be accompanied to any related meeting or proceeding by the advisor of their choice, who may be, but is not required to be, an attorney, and not limit the choice or presence of advisor for either the complainant or respondent in any meeting or grievance proceeding; however, the recipient may establish restrictions regarding the extent to which the advisor may participate in the proceedings, as long as the restrictions apply equally to both parties.
  5. Provide, to a party whose participation is invited or expected, written notice of the date, time, location, participants, and purpose of all hearings, investigative interviews, or other meetings, with sufficient time for the party to prepare to participate.
  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, including the evidence upon which the recipient does not intend to rely in reaching a determination regarding responsibility and inculpatory or exculpatory evidence whether obtained from a party or other source, so that each party can meaningfully respond to the evidence prior to conclusion of the investigation. Prior to completion of the investigative report, the recipient 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 must have at least ten days to submit a written response, which the investigator will consider prior to completion of the investigative report. The recipient must make all such evidence subject to the parties' inspection and review available at any hearing to give each party equal opportunity to refer to such evidence during the hearing, including for purposes of cross-examination.
  7. Create an investigative report that fairly summarizes relevant evidence and, at least ten days prior to a hearing, if a hearing is required under this section or otherwise provided, or other time of determination regarding responsibility, send to each party and the party's advisor, if any, the investigative report in an electronic format or a hard copy, for their review and written response.

Hearings

Conduct of Hearing

Cross-Examination

Relevance
Refusal to Submit to Cross-Examination

Recording

Determination Regarding Responsibility

  1. Identification of the allegations potentially constituting sexual harassment as defined in 34 C.F.R. 106.30;
  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 recipient'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 recipient imposes on the respondent, and whether remedies designed to restore or preserve equal access to the recipient's education program or activity will be provided by the recipient to the complainant; and
  6. The recipient's procedures and permissible bases for the complainant and respondent to appeal.

Dismissal of Complaint

Appeals

  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-maker(s) had a conflict of interest or bias for or against complainants or respondents generally or the individual complainant or respondent that affected the outcome of the matter.
  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 complies with the standards set forth in 34 C.F.R. 106.45(b)(1)(iii);
  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 rationale for the result; and
  6. Provide the written decision simultaneously to both parties.

Confidentiality

Retaliation Prohibited

Removal or Leave

Publication

Title IX Coordinator and Notice of Non-discrimination

Grievance Procedures and Process

Training Materials

Recordkeeping

  1. Each sexual harassment investigation including any determination regarding responsibility and any audio or audiovisual recording or transcript required under 34 C.F.R. 106.45(b)(6)(i), any disciplinary sanctions imposed on the respondent, and any remedies provided to the complainant designed to restore or preserve equal access to the recipient'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.

Section II: State Law

Definitions

Dating Violence, Sexual Assault, and Stalking

Sexual Harassment

  1. In the employment context, unreasonably interferes with a person's work performance or creates an intimidating, hostile, or offensive work environment; or
  2. In the education context, is sufficiently severe, persistent, or pervasive that the conduct interferes with a student's ability to participate in or benefit from educational programs or activities.

Employee

Course and Scope of Employment

Sexual Assault Policy

  1. Definitions of prohibited behavior;
  2. Sanctions for violations;
  3. Protocol for reporting and responding to reports of sexual harassment, sexual assault, dating violence, and stalking that complies with the electronic reporting requirement in 19 Administrative Code 3.7;
  4. Interim measures to protect victims of sexual harassment, sexual assault, dating violence, or stalking pending the institution's disciplinary process, including protection from retaliation, and any other accommodations or supportive measures available to those victims at the institution. This section is not intended to limit an institution's ability to implement accommodations to others as needed; and
  5. A statement regarding:
    1. The importance of a victim of sexual harassment, sexual assault, dating violence, or stalking going to a hospital for treatment and preservation of evidence, if applicable, as soon as practicable after the incident;
    2. The right of a victim of sexual harassment, sexual assault, dating violence, or stalking to report the incident to the institution and to receive a prompt and equitable resolution of the report; and
    3. The right of a victim of a crime to choose whether to report the crime to law enforcement, to be assisted by the institution in reporting the crime to law enforcement, or to decline to report the crime to law enforcement.
  1. To the greatest extent practicable based on the number of counselors employed by the institution, ensure that each alleged victim or alleged perpetrator of an incident of a sexual harassment, sexual assault, dating violence, and stalking and any other person who reports such an incident are offered counseling provided by a counselor who does not provide counseling to any other person involved in the incident; and
  2. Notwithstanding any other law, allow an alleged victim or alleged perpetrator of an incident of sexual harassment, sexual assault, dating violence, and stalking to drop a course in which both parties are enrolled without any academic penalty.

Education Code 51.282(a), (e); 19 TAC 3.4(a), (d)(2)(C)

Review

Distribution

  1. Including the policy in the student handbook and personnel handbook or the institution's equivalent(s); and
  2. Creating and maintaining a web page dedicated solely to the policy that is easily accessible through a clearly identifiable link on the institution's homepage.

Responsible Employee

Reporting

Employee Reporting Required

Exception from Reporting
  1. An incident in which the person was a victim of sexual harassment, sexual assault, dating violence, or stalking;
  2. An incident of which the person received information due to a disclosure made at a sexual harassment, sexual assault, dating violence, or stalking public awareness event sponsored by a postsecondary educational institution or by a student organization affiliated with the institution; or
  3. A sexual harassment, sexual assault, dating violence, or stalking incident in which the person has either learned of the incident during the course of his or her institution's review or process or has confirmed with the person or office overseeing the review or process, that the incident has been previously reported.
Contents of Report
Limitations on Reporting
Designated Confidential Employees
Confidential Employees Under Other Law
Medical Providers
Multiple Confidential Employees
Reporting Under Other Law
Failure to Report or False Report

Student Advocate

Electronic Reporting

  1. Allow for anonymous reporting; and
  2. Be easily accessible via a clearly identifiable link on the institution's website home page.

Reporting on Reports

Title IX Coordinator
  1. The investigation of those reports;
  2. The disposition, if any, of any disciplinary processes arising from those reports; and
  3. The reports for which the institution determined not to initiate a disciplinary process, if any.

Education Code 51.253(a)–(b); 19 TAC 3.6(a)–(b)

Chief Executive Officer
  1. The number of reports received under Section 3.5;
  2. The number of investigations conducted as a result of those reports;
  3. The disposition, if any, of any disciplinary processes arising from those reports;
  4. The number of those reports for which the institution determined not to initiate a disciplinary process, if any; and
  5. Any disciplinary actions taken under 19 Administrative Code 3.8.

Investigations

Request Not to Investigate

  1. The seriousness of the alleged incident;
  2. Whether the institution has received other reports of sexual harassment, sexual assault, dating violence, or stalking committed by the alleged perpetrator or perpetrators;
  3. Whether the alleged incident poses a risk of harm to others; and
  4. Any other factors the institution determines relevant.

Notice of Decision

Confidentiality

  1. Persons employed by or under contract with the postsecondary educational institution to which the report is made who are necessary to conduct an investigation or the report or any related hearings;
  2. A law enforcement officer as necessary to conduct a criminal investigation of the report;
  3. A health-care provider in an emergency, as determined necessary by the institution;
  4. The person or persons alleged to have perpetrated the incident, to the extent required by other law; and
  5. Potential witnesses to the incident as necessary to conduct an investigation of the report and to the extent required by other law.
  1. An alleged victim;
  2. A person who reports an incident to an institution;
  3. A person who sought guidance from the institution concerning an incident;
  4. A person who participated in the institution's investigation of an incident; or
  5. A person who is alleged in a report made to an institution to have committed or assisted in the commission of sexual harassment, sexual assault, dating violence, or stalking, if after completing an investigation, the institution determines the report to be unsubstantiated or without merit.

Retaliation Prohibited

Employees

Exception
  1. Reports an incident of sexual harassment, sexual assault, dating violence, and stalking perpetrated by the employee; or
  2. Cooperates with an investigation, a disciplinary process, or a judicial proceeding relating to an allegation that the employee perpetrated an incident of sexual harassment, sexual assault, dating violence, and stalking.

Any Person

Awareness

Orientation on Policy

Prevention and Outreach Program

  1. Address a range of strategies to prevent sexual harassment, sexual assault, dating violence, and stalking, including a public awareness campaign; a victim empowerment program; primary prevention; bystander intervention; and risk reduction; and
  2. Provide students with information regarding the protocol for reporting incidents of sexual harassment, sexual assault, dating violence, and stalking, including the name, office location, and contact information of the institution's Title IX coordinator, by:
    1. Emailing the information to each student at the beginning of each semester or other academic term; and
    2. Including the information in the institution's orientation, which may be provided online.

Education Code 51.282(d); 19 TAC 3.4(d)

Equal Access

Memoranda of Understanding

  1. Local law enforcement agencies;
  2. Sexual harassment, sexual assault, dating violence, or stalking advocacy groups; and
  3. Hospitals or other medical resource providers.

Education Code 51.289; 19 TAC 3.13

Compliance

Weatherford College

FFDA(LEGAL)-LJC

UPDATE 39

DATE ISSUED: 7/23/2020