Board Policy on Sexual Harassment

Board Policy 5145.7

Board Policy 5145.7

San Francisco Unified School District and County Office of Education

Board Policy 5145.7

Sexual Harassment

This Board Policy applies to the San Francisco Unified School District and the County Office of Education.

The Governing Board is committed to maintaining a safe school environment that is free from harassment and discrimination.  Sexual harassment is a form of sex discrimination under Title IX of the Education Amendments of the Civil Rights Act of 1972 and is prohibited by both federal and state laws. The Board prohibits sexual harassment of students by other students, employees or other persons, at school or at school-sponsored or school-related activities. The United States Department of Education, Office for Civil Rights has defined sexual harassment as "unwelcome conduct of a sexual nature determined by a reasonable person to be so severe, pervasive, and objectively offensive, that it effectively denies a person equal access to the District's education program and activity. Sexual harassment also includes conduct where a student access to District aid, benefit, or services are conditioned on thr students participation in unwelcome sexual conduct, or incidents of sexual assault, dating violence, domestic violence, and stalking."

The Board also prohibits harassment, intimidation, threatening, or other retaliatory behavior or action against any person who reports, files a complaint or testifies about, or otherwise supports a complainant in alleging sexual harassment.

 

Instruction/Information

The Superintendent or designee shall ensure that all District students receive age-appropriate information on sexual harassment. Such instruction and information shall include:

  1. What acts and behavior constitute sexual harassment, including the fact that sexual harassment could occur between people of the same sex and could involve sexual violence;
     
  2. A clear message that students do not have to endure sexual harassment under any circumstance;
     
  3. Encouragement to report observed incidents of sexual harassment even where the alleged victim of the harassment has not complained;
     
  4. A clear message that student safety is the District's primary concern, and that any separate rule violation involving an alleged victim or any other person reporting a sexual harassment incident will be addressed separately and will not affect the manner in which the sexual harassment complaint will be received, investigated or resolved;
     
  5. Information about the District's procedure for investigating complaints and the person(s) to whom a report of sexual harassment should be made;
     
  6. Information about the rights of students and parents/guardians to file a civil or criminal complaint, as applicable.

 

Response to Report of Sexual Harassment

The District strongly encourages any student who feels that they are being or have been sexually harassed on school grounds or at a school-sponsored or school-related activity in the United States to immediately contact their  teacher, the principal, or any other available school employee.  Any District employee who receives a report or observes an incident of sexual harassment shall notify the principal or a District compliance officer.

In the initial contact by the Principal or designee to the Complainant, the Principal or designee will:

(i) inform the Complainant of the availability of supportive measures;

(ii) consider the Complainant's wishes with respect to supportive measures;

(iii) inform the Complainant of the availability of supportive measures with or without the filing of a formal complaint; and

(iv) explain to the Complainant the process for filing a formal complaint.

Complaints regarding sexual harassment shall be investigated and resolved in accordance with law and District procedures specified within this Board Policy and in Administrative Regulation (AR), 5145.7 Sexual Harassment.  

Principals are responsible for notifying students and parents/guardians that formal complaints of sexual harassment can be filed under this Board Policy and AR 5145.7 and where to obtain a copy of the procedures.

The Superintendent or designee shall take appropriate actions to reinforce the District's sexual harassment policy.

 

Filing a Formal Title IX Complaint

If an individual has been a victim of sexual harassment, they may file a written, formal complaint. A written formal complaint shall be presented to the District Title IX Coordinator, who shall maintain a log of complaints received. For purposes of the formal complaint, the individual who is alleged to be the victim of the conduct that could constitute sexual harassment will be referred to as the "complainant" and the individual who has been reported to be the perpetrator of the conduct will be referred to as the "respondent". The filing of a formal complaint will trigger the formal grievance investigation and procedures outlined below.

A formal complaint may be filed in person, by mail, or by email with the Title IX Coordinator. The complaint may also be submitted to your school site administrator. Any administrator who receives a formal complaint is required to promptly provide the complaint to the Title IX Coordinator. The Title IX Coordinator can be contacted at:

 

Office of Equity/Title IX Coordinator

555 Franklin Street, 3rd Floor

Telephone: (415) 355-7334

Fax: (415) 355-7333

Email: equity@sfusd.edu

 

All complaints shall be filed in accordance with the following:

 

  1. The allegations in the report, if found true, would constitute sexual harassment under Title IX
     
  2. At the time of filing, the Complainant must be participating in or attempting to participate in an education program or activity provided by the District
     
  3. The alleged sexual harassment occurred within the District's education program or activity against a person in the United States
     
  4. The formal complaint must be made in writing and include the Complainant's (or their legal guardian's) physical or digital signature, or otherwise indicate that the Complainant is the person filing the formal complaint.

In order to provide meaningful due process to all parties, when a Complainant decides to initiate a formal Title IX complaint, the Complainant may not remain anonymous from the Respondent. The Complainant and the Respondent will receive written notice upon the filing of a formal complaint.

The Title IX Coordinator may also sign a formal Title IX complaint when all other circumstances and jurisdictional requirements are met, including consideration of the best interests of the Complaint and the Complainant's wishes regarding how the District responds to the report.

If a Complainant is unable to put a complaint in writing due to conditions such as a disability or illiteracy, District staff shall assist in filing the complaint.

 

Formal Grievance Procedure

Upon receipt of the formal complaint, the District will conduct an investigation into the allegations and render a determination with regard to those allegations in compliance with this Board Policy and with the procedures detailed in AR 5147.7

An investigator will be assigned the task of gathering evidence related to the allegations. The investigation may include interviewing the parties or witnesses, as well as reviewing relevant evidence. All parties will have equal opportunity to present witnesses and any evidence related to the allegations. Ten school days prior to the conclusion of the investigation, the Complainant and Respondent will be provided a copy of the investigative report and the opportunity to provide a written response to the Investigator. The Investigator will create an investigative report that fairly summarizes the relevant evidence.

After the parties receive the investigative report, the parties will have ten school days to submit to the Decision-Maker written, relevant questions that a party wants asked of any party or witness. The Decision-Maker will determine the relevancy of the questions and allow limited follow-up questions and provide responses from each party. The report and parties' response will be submitted to the Decision-Maker for deliberation.

The Decision-Maker will conduct an evaluation of all relevant evidence and will issue a written determination regarding responsibility to both parties.

A party may appeal the final determination or dismissal of a complaint within 5 (five) school days of the issuance of the written determination on the following bases:

  1. A procedural irregularity occurred that affected the outcome of the matter (ie: the procedure described in this policy was not properly followed);
     
  2. There is new evidence, that was not reasonably available at the time the determination was made, that would affect the outcome of the matter; or
     
  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.

 

Dismissal of a Formal Complaint

If the conduct alleged in the formal complaint would not constitute sexual harassment as defined above, did not occur in a District education program or activity, or did not occur against a person in the United States, then the formal complaint must be dismissed. The dismissal of a formal complaint does not preclude action under another provision of District policy. The formal complaint may also be dismissed if a Complainant submits, in writing, their request to withdraw the complaint, if the Respondent is no longer enrolled or employed by the District, or if circumstances prevent the District from gathering evidence sufficient to reach a determination.

Prompt written notice of the dismissal will be sent to the parties should the complaint be dismissed.

 

Informal Resolution

At anytime after a formal complaint has been filed, but prior to reaching a determination, the parties may agree to participate in an informal resolution process (such as a mediation) that does not involve a full investigation and adjunction process. The District cannot require that parties participate in the informal resolution process. Prior to reaching a resolution, either party may withdraw from the informal resolution process and resume the formal complaint process.

This process is not available where the complaint alleges that an employee sexually harassed a student.

 

Supportive Measures

Supportive measures are non-disciplinary, non-punitive individualized services offered to the complainant or the respondent. Supportive measures may include, for example, wellness check-in's, extensions of deadlines or other course related adjustments, or placing the individuals involved in separate classes or transferring a student to a class taught by a different teacher, in accordance with law and Board policy. A formal complaint need not be filed to receive supportive measures. Upon receiving a report of sexual harassment, the Title IX Coordinator or designee must promptly contact the parties to discuss the availability of supportive measures. The Title IX Coordinator is responsible for coordinating the effective implementation of supportive measures.

 

Disciplinary Actions

Any student who engages in sexual harassment or sexual violence at school or at a school-sponsored or school-related activity is in violation of this policy and shall be subject to disciplinary action and/or interventions in accordance with board policies. California law also permits discipline for unwelcome sexual advances, requests for sexual favors, and other verbal, visual, or physical conduct of a sexual nature made by someone from or in the educational setting.  For students in grades 4-12, disciplinary action may include suspension and/or expulsion, provided that, in imposing such discipline, the entire circumstances of the incident(s) shall be taken into account.

Any staff member found to have engaged in sexual harassment or sexual violence toward any student shall be subject to discipline up to and including dismissal in accordance with applicable policies, laws, and/or collective bargaining agreements.

Individuals experiencing harassment or discrimination also always have the right to file a civil complaint or a formal grievance with the Office for Civil Rights:

 

Office for Civil Rights (OCR)

U.S. Department of Education
50 Beale Street, Suite 7200
San Francisco, CA 94105-1813
Telephone: (415) 486-5555
Facsimile: (415) 486-5570

Email: OCR@ed.gov

Web: http://www.ed.gov/ocr

 

Legal Reference:

EDUCATION CODE

200-262.4 Prohibition of discrimination on the basis of sex

48900 Grounds for suspension or expulsion

48900.2 Additional grounds for suspension or expulsion; sexual harassment

48904 Liability of parent/guardian for willful student misconduct

48980 Notice at beginning of term

CIVIL CODE

51.9 Liability for sexual harassment; business, service and professional relationships

1714.1 Liability of parents/guardians for willful misconduct of minor

GOVERNMENT CODE

12950.1 Sexual harassment training

CODE OF REGULATIONS, TITLE 5

4600-4687 Uniform complaint procedures

4900-4965 Nondiscrimination in elementary and secondary education programs

UNITED STATES CODE, TITLE 20

1221 Application of laws

1232g Family Educational Rights and Privacy Act

1681-1688 Title IX, discrimination

UNITED STATES CODE, TITLE 42

1983 Civil action for deprivation of rights

2000d-2000d-7 Title VI, Civil Rights Act of 1964

2000e-2000e-17 Title VII, Civil Rights Act of 1964 as amended

CODE OF FEDERAL REGULATIONS, TITLE 34

99.1-99.67 Family Educational Rights and Privacy

106.1-106.71 Nondiscrimination on the basis of sex in education programs

COURT DECISIONS

Donovan v. Poway Unified School District, (2008) 167 Cal.App.4th 567

Flores v. Morgan Hill Unified School District, (2003, 9th Cir.) 324 F.3d 1130

Reese v. Jefferson School District, (2001, 9th Cir.) 208 F.3d 736

Davis v. Monroe County Board of Education, (1999) 526 U.S. 629

Gebser v. Lago Vista Independent School District, (1998) 524 U.S. 274

Oona by Kate S. v. McCaffrey, (1998, 9th Cir.) 143 F.3d 473

Doe v. Petaluma City School District, (1995, 9th Cir.) 54 F.3d 1447

 

Management Resources:

CSBA PUBLICATIONS

Providing a Safe, Nondiscriminatory School Environment for Transgender and Gender-Nonconforming Students, Policy Brief, February 2014

Safe Schools:  Strategies for Governing Boards to Ensure Student Success, 2011

U.S. DEPARTMENT OF EDUCATION, OFFICE FOR CIVIL RIGHTS PUBLICATIONS

Questions and Answers on Title IX and Sexual Violence, April 2014

Dear Colleague Letter:  Sexual Violence, April 4, 2011

Sexual Harassment:  It's Not Academic, September 2008

Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, January 2001

WEB SITES

CSBA:  http://www.csba.org

California Department of Education: http://www.cde.ca.gov

U.S. Department of Education, Office for Civil Rights:  http://www.ed.gov/about/offices/list/ocr

 

 

 

Please note that compare references, or “cf”, refer to CSBA model policies and do not necessarily indicate that the San Francisco Unified School District has adopted the referenced policy.

 

Cross References

Second Reading: September 8, 2020

Rules Committee: September 3, 2020

First Reading: August 25, 2020

Revised: June 14, 2016

Revised: September 29, 2015

Revised: June 26, 2012 (Resolution #126-12Sp2)

Revised: March 14, 2006 (Resolution # 61-10Sp2)

First Adopted: March 2, 1976 (Resolution #62-3Sp1)