7.6 Sexual Harassment

Sexual Harassment

SFUSD Board Policy 5145.7 

SFUSD Administrative Regulation 5145.7

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 the student's 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 for Students

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.

 

 

Reporting Sexual Harassment + Filing a Formal Complaint

Reporting Sexual Harassment

Any person may report sex discrimination, including sexual harassment, at any time in person, by mail, by telephone or by email using the contact information listed below for the Title IX Coordinator.  Reports may also be filed with any SFUSD school’s administration team.  If a District employee becomes aware of a potential Title IX violation, they are responsible for notifying their school site administrator or District Title IX Coordinator.  Regardless of who has made the report, any person who has been the victim of alleged sexual harassment that meets the criteria under Title IX will promptly be contacted by the Title IX Coordinator or designee and will be informed of their right under Title IX to file a formal complaint and the process to do so. 

 

Any time sex discrimination and/or sexual harassment is reported to the school’s administration and/or Title IX Site Officer, the school principal or designee will:

  • inform the Complainant of the availability of supportive measures with or without filing a formal complaint and consider the Complainant's wishes with respect to supportive measures;
  • explain Title IX proceedings and rights to the Complainant; and 
  • notify the Complainant of the process for filing a formal complaint, if they choose.

 

All formal complaints will be reviewed by a district compliance officer to determine if the conduct is within the district’s jurisdiction and that it reaches the legal definition of sexual harassment. Complaints that meet this criteria shall be investigated and resolved in accordance with law and District procedures specified within this Board Policy and in Administrative Regulation A.R. 5145.7.  

Filing a Formal Complaint

If an individual has been a victim of sexual harassment or sex-based discrimination or is the parent/guardian of a student who has been a victim of sexual harassment or sex-based discrimination, they may file a written, formal complaint. A written formal complaint shall be signed by either physical or digital signature and shall be presented to the District Title IX Coordinator using the contact information above, who shall maintain a log of complaints received. A formal complaint may be filed in person, by mail, or by email with the District Title IX Coordinator. The complaint may also be submitted to your school site administrator or Title IX Site Officer. Any administrator who receives a formal complaint is required to promptly provide the complaint to the District Title IX Coordinator. 

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.

Upon receipt of the formal complaint, the Title IX Coordinator will evaluate the complaint as filed and gather additional information as needed to determine if it meets the criteria for a Title IX investigation.  The filing of a signed formal complaint will trigger the formal grievance procedures outlined below.

All complaints shall be evaluated in accordance with the following:

  1. The allegations in the report, if validated through the preponderance of relevant and available evidence, constitutes sexual harassment under federal Title IX regulations and Board policy; and
  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; and
  3. The alleged sexual harassment occurred within the District's jurisdiction as defined by federal Title IX policy, which specifies that the incident must have occurred in the United States and on school grounds and/or within the District’s education programs or activities, and  
  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.

There is no statute of limitations for the filing of Title IX Complaints as long as the Complainant is enrolled or seeking enrollment or employment in the District.

The District may consolidate formal complaints in the even that allegations of sexual harassment are made against one or more Respondent by the same Complainant, or by more than one Complainant against one or more Respondents, where the allegations of sexual harassment arise out of the same facts or circumstances.  

With or without a formal complaint, the District will respond promptly in a manner that is not deliberately indifferent to any reports or actual knowledge of sexual harassment within the educational program against a person in the United States.  The District will treat all Complainants and Respondents equitably by offering supportive measures to all parties, presuming that the Respondent is not responsible for the alleged conduct unless and until a determination regarding responsibility is made at the conclusion of the complaint process, and following a complaint process that complies with 34 CFR 106.45 before the imposition of any disciplinary or punitive actions.

Any complaint that does not meet the criteria for sexual harassment under Title IX or that regards conduct that occurred outside of the District’s educational program or activity will be referred for investigation and follow-up under the appropriate District policy.

Conduct that Does Not Fall Under Title IX

Incidents that do not rise to the level of sexual harassment as defined by Title IX and in this policy may violate other District polices and will be addressed accordingly. Conduct that does not meet the criteria outlined in Title IX but that may still cause a substantial interference with a student's health, academic performance, or ability to participate in school services will be investigated by the school site in an accordance with the District's Bullying & Harassment policy (BP 5131.2/AR 5131.2)

Conduct Occurring Off-Campus/Outside-of-School

Any prohibited conduct that occurs off campus or outside of school-related or school-sponsored programs or activities cannot be investigated under Title IX Policy.  However, should conduct occurring outside of the District’s education program or activity cause a continuing effect on any student and/or create a hostile school environment for the Complainant or victim of the conduct, the matter shall be referred to the school site for investigation and follow-up under the District's Bullying & Harassment policy. While discipline is not permitted for conduct that did not occur within the District’s educational program or activities, school sites should nonetheless provide appropriate and reasonable supportive measures and other remedies to any student who reports an off-campus incident. 

Pursuant to California Education Code section 48900, et. seq., a student may be suspended or expelled for sexual harassment related to school activity or school attendance that occur at any time, including but not limited to:

  1. While on school grounds;
  2. While going to or coming from school;
  3. During the lunch period whether on or off the campus; and
  4. During, or while going to or coming from, a school sponsored activity.

While discipline is not permitted for conduct that is not school related, school sites should nonetheless provide supportive measures to a student who reports an off-campus incident.

 

Retaliation

The San Francisco Board of Education prohibits retaliation in any form for the filing of a complaint, the reporting of instances of discrimination, or participation in complaint procedures.  Such participation shall not in any way affect the status, work assignment of the complainant or the grades of a student/complainant.

 

Formal Title IX Grievance Procedures

Any complaint that is formally filed with the Office of Equity shall be addressed in the manner described below.  For purposes of the formal complaint, the individual who is alleged to be the victim of sexual harassment will be referred to as the "Complainant" and the individual who has been accused of sexual harassment will be referred to as the "Respondent."  Respondents are considered “not responsible” for the alleged conduct unless and until a determination regarding responsibility is made at the conclusion of the complaint process outlined below. 

Upon receipt of any formal complaint that meets the federal criteria for a Title IX violation, the District will conduct a prompt and equitable investigation into the allegations and render a determination with regard to those allegations in compliance with 34 CFR 106.45, Board Policy 5145.7, and with the procedures detailed in this Administrative Regulation. 

Supportive Measures

When an incident of sexual harassment is reported, the principal/designee or Title IX Coordinator shall take immediate steps necessary to stop the harassment, protect students and/or ensure their access to the education program. The Title IX Coordinator or the principal or designee, shall promptly contact the parties to discuss supportive measures. Supportive measures are nondisciplinary, non-punitive individualized services offered to the Complainant and/or the Respondent. A formal complaint need not be filed to receive supportive measures. 

In consultation with appropriate school personnel and the Party and/or their parent/guardian, the Title IX Coordinator or their designee shall determine whether supportive measures are necessary to restore or preserve access to the educational program. The Title IX Coordinator, in coordination with school site staff, is responsible for ensuring the effective implementation of supportive measures. 

Supportive measures may include but are not limited to:

  • Safety plans
  • Wellness check-ins
  • Extensions of deadlines or other course related accommodations
  • Schedule adjustments
  • Other appropriate and reasonably available supports

To the extent possible, supportive measures shall not disadvantage the complainant or victim of the alleged harassment nor should they unreasonably burden the Respondent.

The school should notify the Complainant of the options to avoid contact with the Respondent. The school should also ensure that the Complainant is aware of the resources and assistance, such as counseling, that are available to them. As appropriate, supportive measures shall be considered even when a student chooses to not file a formal complaint or when the sexual harassment occurs off school grounds or outside school-sponsored or school-related programs or activities.  Every reasonable effort will be made to keep all supportive measures confidential. 

Notice of Investigation and Allegations (NOIA)

If a formal complaint is filed, the Title IX Coordinator will issue a written Notice of Investigation and Allegations simultaneously to all parties.  

 

  • The District's complaint process, including any informal resolution processes available
  • The allegations potentially constituting sexual harassment with sufficient details known at the time, including the identity of the parties involved in the incident if known, the conduct allegedly constituting sexual harassment, and the date and location of the alleged incident, if known. Such notice shall be provided with sufficient time for the parties to prepare a response before any initial interview. If, during the course of the investigation, new Title IX allegations arise, the Title IX Coordinator shall provide written notice of the additional allegations
  • A statement that the Respondent is presumed not responsible for the alleged conduct and that determination regarding responsibility is made at the conclusion of the investigation process
  • The opportunity for parties to have an advisor of their choice who may be, but is not required to be, an attorney, and the ability to inspect and review evidence
  • The prohibition against knowingly making false statements or knowingly submitting false information during the complaint process
  • The ability for either party to, at any time, notify the Title IX Coordinator should they have concerns regarding conflict of interest or bias regarding any of the persons involved

 

If, in the course of an investigation, the District decides to investigate allegations not included in the original Notice of Investigation and Allegations, the District will provide an amended notice in writing to all parties. 

Investigation Procedures

The District, and not any party, maintains the burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility.  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.  

All parties will have the same opportunity to have others present during any complaint proceeding, including the opportunity to be accompanied by their Title IX Advisor. However, the District maintains the right to establish restrictions regarding who may be present at any related proceedings and the extent to which any advisor may participate in proceedings. 

 

The Investigator shall:

  • Provide written notice of all investigative interviews or other meetings to any individual whose participation is invited or expected with sufficient time for the party to prepare to participate. Notice will include the date, time, location, participants, and purpose of the meeting.
  • Not restrict any party from discussing the allegations under investigation or from gathering and presenting relevant evidence. 
  • Provide the parties with the same opportunities to have a Title IX Advisor present.  The District shall not limit the choice or presence of advisor for either Complainant or Respondent, though the District may establish restrictions regarding the extent to which the advisor may participate that apply equally to both parties.
  • Objectively gather all relevant evidence, including both inculpatory and exculpatory evidence, and determine credibility in a manner that is not based on a person's status as Complainant, Respondent, or Witness
  • Ensure that the District cannot access, consider, disclose, or otherwise use records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional assisting in treatment to the party unless the District obtains that party’s or their parent’s voluntary, written consent to do so for the complaint process.  

 

The Investigator will summarize all relevant evidence and information in a written investigative report that shall include any evidence that is directly related to the allegations raised in the formal complaint, including evidence the District does not intend to rely upon when reaching a determination of responsibility.  The draft investigation report will be simultaneously provided to both parties and their advisors at least ten (10) days prior to the conclusion of the investigation.  Both parties and their advisors will have an equal opportunity to inspect and review the draft investigation report and submit a written response prior to the finalization of the investigation report and its referral to the Decision-Maker.  The Investigator will review any written response to the draft investigation report and incorporate the information and evidence therein as appropriate. 

Determination

After the parties and the Decision-Maker receive the investigative report, the parties will have ten (10) business 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 responses from each party. The report and the parties' responses will be submitted to the Decision-Maker to evaluate as appropriate. 

The Decision-Maker will carefully review all relevant evidence, including both inculpatory and exculpatory evidence, and provide that credibility determinations are not based on a person’s status as Complainant, Respondent, or witness. Using the preponderance of evidence standard, the Decision-Maker will arrive at a determination as to whether there is enough evidence to state that it is more likely than not that the sex discrimination or sexual harassment occurred as alleged. 

The Decision-Maker will simultaneously issue to both parties a written determination that includes: the allegations that potentially constitute sexual harassment under Title IX; a description of the procedural steps taken from the receipt of the complaint through the determination; findings of fact supporting the determination; conclusions regarding the application of the District’s code of conduct to the facts; a statement of and rationale for the result of each allegation, including a determination of responsibility; any remedies that will be provided to restore or preserve equal access; and, in the event that a Respondent is found responsible for violating this Board Policy, appropriate disciplinary action. The written determination will also include information about the District’s procedures and bases for appeal.

The Decision-Maker cannot be the same person as the Title IX Coordinator or the Investigator.

The determination regarding responsibility becomes final either on the date the District provides the parties with the written determination or, if an appeal is filed, on the date the District provides parties with the written determination of the appeal. 

The Title IX Coordinator shall be responsible for coordinating an effective implementation of any remedies outlined by the Decision-Maker.

Appeals

A party may appeal the final determination or dismissal of a complaint within five (5) business 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 against the individual 
    Complainant or Respondent that affected the outcome of the matter.

Upon receipt of an appeal, the District will:

  • Notify any other parties in writing and ensure appeal procedures are implemented equally for all parties,
  • Ensure that the Decision-Maker for the appeal is not the same person as the Decision-Maker who reached the initial determination, the Investigator, or the Title IX Coordinator,
  • Ensure that the Decision-Maker does not have a conflict of interest or bias for or against Complainants or Respondents individually or in general, and
  • Provide all parties with a reasonable, equal opportunity to submit a written statement in support of, or challenging, the outcome.

The Title IX Appeal Officer will provide a written decision describing the result of the appeal and the rationale for that result simultaneously to both parties within 30 days of receipt of the initial appeal. 

The District's decision may be further appealed to the California Department of Education within thirty (30) days of the written decision. Either party has the right to file a complaint with the U.S. Department of Education's Office of Civil Rights within one hundred eighty (180) days of the date of the most recently alleged misconduct.

 

OTHER APPEAL INFORMATION

Office for Civil Rights

Complaints with the Office for Civil Rights must ordinarily be filed within 180 days of the last act of discrimination. For more information, parties should visit their website: https://www2.ed.gov/about/offices/list/ocr/complaintintro.html

U.S. Department of Education
Office for Civil Rights
Lyndon Baines Johnson Department of Education Bldg
400 Maryland Avenue, SW, Washington, DC 20202-1100
Email: OCR@ed.gov
Fax: 202-453-6012

California Department of Education

If the person disagrees with the findings of the District’s Title IX Investigation he/she has the right to appeal those findings within 30 days of receiving the decision to the California Department of Education. In addition, an appeal to the Department can be filed should the district fail to provide a written response. This appeal must be received by the Department within 15 days of the date the response was due.

For any questions about or to submit an appeal, parties should contact the the Education Equity UCP Office by email at eeucpo@cde.ca.gov.

 

See the full Handbook and downloadable, translated PDFs at sfusd.edu/Handbook.

Timeframes

The formal grievance procedure shall be completed within a reasonably prompt timeframe after the submission of a formal complaint. Every effort will be made to complete all procedures, including for filing and resolving appeals and for any informal resolution process, within ninety (90) business days, however this timeframe may extend beyond 90 days for good cause. Good cause may include, but are not limited to, the following considerations: school being out of session; absence of a party or witnesses; delay in scheduling interviews; delays necessary for the adequate translation of any written materials; and/or concurrent law enforcement or other agency activity. In the event of a temporary delay, any Complainant or Respondent will be notified in writing of the extension and the reasons for the action.  Any party may request an informal status report in writing to the Title IX Coordinator at any time throughout the investigation.

Dismissal of a Formal Complaint

The District must investigate the allegations in any formal complaint of sex discrimination or sexual harassment that is submitted to the Office of Equity unless:

  • the conduct alleged in the formal complaint would not constitute sexual harassment as defined in this policy
  • the conduct did not occur in direct relationship to a District education program or activity, or did not occur against a person in the United States, 
  • the complainant and/or respondent is no longer enrolled or seeking enrollment in the District 

If the conduct as alleged in the formal complaint meets one of the criteria above, then the formal complaint must be dismissed.  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.

The dismissal of a formal complaint does not preclude action under another provision of District policy. Incidents that do not rise to the level of sexual harassment as defined in this policy must still be investigated by the school site in an accordance with the District's Bullying & Harassment Policies (BP 5131.2/AR 5131.2). Incidents that occurred prior to August 14, 2020 must still be investigated by the school site in accordance with the previous Board Policy and Administrative Regulation 5145.7

Prompt written notice of the dismissal will be sent to the parties should the complaint be dismissed.  If the alleged conduct falls under a different District policy, the Office of Equity will refer the complaint to the school site administrator for further follow up and/or investigation.  

Remedies

Informal Resolution

At any time 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 or restorative action) that does not involve a full investigation and adjudication process. The District may not require anyone to waive their right to an investigation as a condition of their enrollment or employment, can the District require parties to participate in an informal resolution process.  The District will only undergo an Informal Resolution if it has obtained all parties’ voluntary, written consent. 

If all involved parties agree to participate in an Informal Resolution, the District shall provide a written notice including: the allegations; the requirements of the informal resolution process; the circumstances that would preclude the parties from resuming a formal complaint; any party’s right to withdraw from the informal resolution process; and any consequences resulting from participating in the informal resolution process, including notice of the records that will be maintained or could be shared. 

Prior to reaching a resolution, either party may withdraw from the informal resolution process and resume the formal complaint process.  If the complaint is determined not to meet the criteria for a Title IX violation, all involved parties may agree to participate in an informal resolution process rather than proceeding to seek formal investigation and resolution through another Board policy.  

As a condition of engaging in Informal Resolution, parties shall agree that statements made, or evidence shared, during the Informal Resolution process will not be considered during any subsequent Formal Grievance Process unless all parties consent.

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

 

Emergency Removal

The District may remove a Respondent from the District's programs and activities on an emergency basis whether the grievance process is underway or not.  An emergency removal requires the District to conduct an individualized safety and risk analysis to determine whether the Respondent could pose an immediate threat to the physical health or safety of any student or other individual. An immediate risk may be identified based on the alleged conduct as well as the Respondent's actions and behaviors before or after the incident.

Applicable disability laws must be taken into consideration in the removal decision, and the risk assessment must include a consideration of the appropriateness of supportive measures in lieu of an emergency removal. The Respondent has the right to receive notice of the emergency removal and an opportunity to challenge the decision immediately.

 

Corrective/Disciplinary Action

The District shall not impose any disciplinary or punitive sanctions against a Respondent, other than supportive measures, until the complaint procedure as outlined above has been completed and a determination of responsibility has been made.

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 Education Code 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, discipline for sexual harassment may include suspension and/or expulsion pursuant to California Education Code. If it is determined that a student at any grade level has committed sexual assault or sexual battery at school or a school-sponsored activity, the student shall be recommended for expulsion.  

Other actions that may be taken with a student who is determined to be responsible for sexual harassment include, but are not limited to: 

  • Transfer from a class or a school
  • Parent/guardian conference
  • Education of the student regarding the impact of the conduct on others
  • Positive behavior support
  • Referral of the student to a Student Success Team (SST)
  • Denial of participation in extracurricular or co-curricular activities or privileges
  • Suspension from school for up to five (5) days

If an employee is found to have committed sexual harassment, sexual violence, or acts of retaliation in response to a complaint of sex discrimination or sexual harassment, the District shall take appropriate disciplinary action, up to and including dismissal, in accordance with applicable law and collective bargaining agreement.

Roles & Definitions

Title IX Coordinator

District Title IX Coordinator: The District designates the Title IX Coordinator as the responsible employee to coordinate its efforts to comply with Title IX of the Education Amendments of 1972 and California Education Code 234.1, as well as to coordinate the investigation and resolution of sexual harassment complaints outlined in this policy and in BP 5145.7. The Title IX Coordinator may be contacted at:

 

Eva Kellogg

Office of Equity/Title IX Coordinator

555 Franklin Street, 3rd Floor

Telephone: (415) 355-7334

Email: Equity@sfusd.edu

Formal Grievance Procedure Roles

Investigator: The individual responsible for gathering evidence related to the allegations. The investigator will create an Investigation Report which shall summarize the relevant evidence. The Report shall be submitted to the Decision-Maker for consideration.

 

Decision-Maker: The individual responsible for evaluating all relevant evidence in order to make a determination regarding the formal complaint/ The Decision-Maker is responsible for issuing a written determination of findings to the parties. The Decision-Maker cannot by the Title IX Coordinator.

 

Title IX Appeal Officer: The individual responsible for evaluating an appeal for the final determination of a formal complaint. The Title IX Appeal Officer may not be the investigator, decision-maker, or Title IX Coordinator.

 

Definition: Sexual Harassment

The Title IX regulations define sexual harassment as conduct on the basis of sex that satisfies one of more of the following:

  1. An employee of the District conditioning the provision of an aid, benefit, or service of the recipient on an individual's participation in unwelcome sexual conduct;
  2. 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 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. 1229(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).
  4. Sexual Harassment that does not fit into the definition of sexual harassment under Title IX, will be investigated under the appropriate board policy.

Definition: Sexual Assault

A sexual act directed against another person done without the consent of the victim, including instances where the victim is incapable of giving consent. Sexual assault includes the following conduct:

  1. Rape: The 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 consent of the victim.
  2. Fondling: The touching of private body parts of another person for the purpose of sexual gratification, without consent of the victim.
  3. Incest: Sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law
  4. Statutory Rape: Sexual intercourse with a person who is under the statutory age of consent.

Definition: Dating + Domestic Violence

Dating Violence: Violence committed by a person who is or has been in a relationship of a romantic or intimate nature with the victim.
 

Domestic Violence: A crime of violence committed by a person who is:

  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 where the violence occurred; or
  5. By any other person against an adult or youth victim who is protected from the person's acts under the domestic or family violence laws where the violence occurred.

Definition: Stalking

Engaging in a course of conduct directed at a specific person that would cause a response person to fear for their safety/the safety of others, or suffer substantial emotional distress
 

Definition: Consent

The agreement by both parties to engage in sexual conduct or activity. Consent is informed, knowing, and voluntary and can be communicated through clear words or actions. Consent cannot be obtained through the use of physical force, threats, intimidating behavior, or coercion. Consent cannot be given by someone who is known, or should have been known to be, mentally, or physically incapacitated.
 

Definition: Education Program or Activity

District jurisdiction in Title IX matters includes locations, events, or circumstances in which the District has exercised substantial control over both the respondent and the context in which the sexual harassment occurred. Some, but not all activities, that are not within the scope of the District's Education Program or Activity are: student or family-hosted events; transportation to/from school not on school-provided transit; and incidents that occur before or after school while off campus
 

Definition: Supportive Measures

Non-disciplinary, non-punitive individualized services offered to the Complainant and/or the Respondent in order to preserve or restore equal access to the educational program or services. Supportive measures must be offered as appropriate and reasonably available to both parties. Supportive measures must be offered as appropriate and reasonably available to both parties. Supportive measures cannot unreasonably benefit or punish another student.  All supportive measures will remain confidential to the extent that doing so will not impair the District’s ability to implement supports. 
 

Definition: Informal Resolution

Voluntary processes, such as mediation or restorative actions, that may present a way of resolving sexual harassment allegations outside the formal complaint process. Informal resolution may be offered only after a formal complaint has been filed and the parties understand what the grievance process entails and can decide whether to voluntarily attempt informal resolution as an alternative.

Notifications + Record-Keeping

Mandatory Reporting Requirements

District employees who have reasonable suspicion of child abuse, including sexual abuse, harassment, and assault, shall immediately report that suspicion pursuant to Penal Code 11165.7 and Board Policy 5141.4. A report shall be made regardless of the identity of the accused person, including reports in which the accused person is a District employee, student or third party.

Record-Keeping

For a period of seven (7) years, the District must maintain records of:

  • Each sexual harassment investigation including any determination of responsibility and a record of the remedies and/or disciplinary sanctions imposed
  • Any appeal 
  • Any informal resolution
  • All materials used to train Title IX Coordinators, Investigators, Decision-Makers, and Informal Resolution Facilitators
  • Any actions, including supportive measures, taken in response to any report or formal complaint of sexual harassment, including documentation that its response was not deliberately indifferent and that the District took appropriate measures designed to restore or preserve equal access

Record of these actions will enable the District to monitor, address, and prevent repetitive harassing behavior in District schools. In accordance with District policy, upon completion of the investigation, the Director of Equity will destroy all interview notes and recordings. The rest of the case file will be retained in accordance with the District policy for seven (7) years.

Notice of Sexual Harassment Policies & Procedures

The following information shall be posted publicly on the District website:

  1. The name and contact information for the District Title IX Coordinator, including their phone number and email address. 
  2. The rights of a pupil and the public and the responsibilities of the District under Title IX, including links to those rights and responsibilities as outlined by the Office for Equal Opportunity and the U.S. Department of Education (ED) Office of Civil Rights (OCR)
  3. The District's Sexual Harassment policy, including the definition of discrimination and harassment based on sex as described in Section 230 and the rights set forth in EC 234.6(b)(3). 
  4. Links to the CDE’s Title IX information
  5. Information about how to file a formal Title IX Complaint, including any information regarding statute of limitations and links to the U.S. ED OCR complaints form, their contact information, and any information they provide about how a Complainant might further pursue the complaint 
  6. All materials used to train the Title IX Coordinator, investigators, decision-makers, and any person who facilitates an informal resolution process will be made publicly available on the District's website.
     

In addition, a copy of the District's sexual harassment policy and regulation, as well as a notice that the District does not discriminate on the basis of sex within the education program or activity, shall:

  1. Be included in the notifications that are sent to parents/guardians at the beginning of each school year  (Education Code 48980; 5 CCR 4917);
  2. Be displayed in a prominent location in the main administrative office or other area where notices of District rules, regulations, procedures, and standards of conduct are posted (Education Code 231.5);
  3. Be posted on any District-supported social media regarding topics of sex discrimination or sexual harassment 
  4. Be provided as part of any orientation program conducted for new students at the beginning of each quarter, semester, or summer session (Education Code 231.5);
  5. Appear in any school or District publication that sets forth the school's or District's comprehensive rules, regulations, procedures, and standards of conduct (Education Code 231.5);
  6. Be included in the student handbook.
  7. Be provided to employees and employee organizations; and
  8. Be posted in every student bathroom or locker room on middle school and high school campuses.
  9. Be provided to applicants for admission and employment, including a statement that the District’s requirement not to discriminate eastenders to admission and employment 

 

Any inquiries about the application of Title IX can be referred to the District’s Title IX Coordinator, to the Office of Civil Rights Assistant Secretary, or both. 

SFUSD Board Policy + Administrative Regulations

Board Policy 5145.7: Sexual Harassment (full text)

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)

Administrative Regulation: 5145.7 (full text)

San Francisco Unified School District and County Office of Education

Administrative Regulation 5145.7

Sexual Harassment

 

This Administrative Regulation applies to the San Francisco Unified School District and the County Office of Education.

The complaint procedures described in this administrative regulation shall be used to address any complaint governed by Title IX of the Education Amendments of 1972 alleging that a student, while in an education program or activity in which a district school exercises substantial control over the context and Respondent, was subjected to one or more of the following forms of sexual harassment: 

  1. A District employee conditioning the provision of an aid, benefit, or service of the District on a student or 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 District'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. 1229(a)(8), or "stalking" as defined in 34 U.S.C. 12291(a)(30).
     

Applicability of Other District Policies

Incidents that do not rise to the level of sexual harassment as defined by Title IX and in this policy may violate other District polices and will be addressed accordingly. Conduct that does not meet the criteria outlined in Title IX but that may still cause a substantial interference with a student's health, academic performance, or ability to participate in school services will be investigated by the school site in an accordance with the District's Bullying & Harassment policy (BP 5131.2/AR 5131.2)

 

Definitions

Formal Title IX Complaint: A document filed by a complainant alleging sexual harassment against a respondent and requesting that the District investigate the allegation of sexual harassment. The Title IX Coordinator may also file a formal complaint
 

Sexual Harassment:

 

  1. The Title IX regulations define sexual harassment as conduct on the basis of sex that satisfies one of more of the following:
  2. An employee of the District conditioning the provision of an aid, benefit, or service of the recipient on an individual's participation in unwelcome sexual conduct;
  3. 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 recipient's education program or activity; or
  4. "Sexual Assault" as defined in 20 U.S.C. 1092(f)(6)(A)(v), "dating violence" as defined in 34 U.S.C. 1229(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).
  5. Sexual Harassment that does not fit into the definition of sexual harassment under Title IX, will be investigated under the appropriate board policy.

 

Sexual Assault: A sexual act directed against another person done without the consent of the victim, including instances where the victim is incapable of giving consent. Sexual assault includes the following conduct:

  1. Rape: The 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 consent of the victim.
  2. Fondling: The touching of private body parts of another person for the purpose of sexual gratification, without consent of the victim.
  3. Incest: Sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law
  4. Statutory Rape: Sexual intercourse with a person who is under the statutory age of consent.

 

Dating Violence: Violence committed by a person who is or has been in a relationship of a romantic or intimate nature with the victim.
 

Domestic Violence: A crime of violence committed by a person who is:

  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 where the violence occurred; or
  5. By any other person against an adult or youth victim who is protected from the person's acts under the domestic or family violence laws where the violence occurred.

 

Stalking: Engaging in a course of conduct directed at a specific person that would cause a response person to fear for their safety/the safety of others, or suffer substantial emotional distress
 

Consent: The agreement by both parties to engage in sexual conduct or activity. Consent is informed, knowing, and voluntary and can be communicated through clear words or actions. Consent cannot be obtained through the use of physical force, threats, intimidating behavior, or coercion. Consent cannot be given by someone who is known, or should have been known to be, mentally, or physically incapacitated.
 

Education Program or Activity: District jurisdiction in Title IX matters includes locations, events, or circumstances in which the District has exercised substantial control over both the respondent and the context in which the sexual harassment occurred. Some, but not all activities, that are not within the scope of the District's Education Program or Activity are: student or family-hosted events; transportation to/from school not on school-provided transit; and incidents that occur before or after school while off campus
 

Supportive Measures: Non-disciplinary, non-punitive individualized services offered to the Complainant and/or the Respondent in order to preserve or restore equal access to the educational program or services. Supportive measures must be offered as appropriate and reasonably available to both parties. Supportive measures must be offered as appropriate and reasonably available to both parties. Supportive measures cannot unreasonably benefit or punish another student.  All supportive measures will remain confidential to the extent that doing so will not impair the District’s ability to implement supports. 
 

Informal Resolution: Voluntary processes, such as mediation or restorative actions, that may present a way of resolving sexual harassment allegations outside the formal complaint process. Informal resolution may be offered only after a formal complaint has been filed and the parties understand what the grievance process entails and can decide whether to voluntarily attempt informal resolution as an alternative.

 

 

 

Roles

District Title IX Coordinator: The District designates the Title IX Coordinator as the responsible employee to coordinate its efforts to comply with Title IX of the Education Amendments of 1972 and California Education Code 234.1, as well as to coordinate the investigation and resolution of sexual harassment complaints outlined in this policy and in BP 5145.7. The Title IX Coordinator may be contacted at:

 

Eva Kellogg

Office of Equity/Title IX Coordinator

555 Franklin Street, 3rd Floor

Telephone: (415) 355-7334

Email: Equity@sfusd.edu

 

 

Complainant: An individual who is alleged to be the victim of conduct that could constitute sexual harassment, as defined by Title IX and this policy .
 

Respondent: An individual who has been reported to have performed conduct that could constitute sexual harassment, as defined by Title IX and this policy.
 

Intake Assessor: The individual responsible for receiving the initial complaint. The intake assessor may be school site personnel or district staff. During the intake assessment period, this individual shall:

  • Inform the Complainant of the availability of supportive measures
  • Consider the Complainant's wishes with respect to supportive measures;
  • Inform the Complainant of the availability of supportive measures with or without the filing of a formal complaint;
  • Explain to the Complainant the process for filing a formal complaint and the formal grievance procedures
  • Review the formal complaint, if filed, consult with the District Title IX Coordinator to determine the appropriate board policy for investigation and follow up.

 

Investigator: The individual responsible for gathering evidence related to the allegations. The investigator will create an investigative report which shall summarize the relevant evidence. The report shall be shared with the Complainant and Respondent and submitted to the Decision-Maker for consideration.
 

Decision-Maker: The individual responsible for evaluating all relevant evidence in order to make a determination regarding the formal complaint. The Decision-Maker is responsible for issuing a written determination of findings to the parties. The Decision-Maker cannot by the Title IX Coordinator.
 

Title IX Appeal Officer: The individual responsible for evaluating any submitted appeals of the final determination of a formal complaint. The Title IX Appeal Officer may not be the investigator, decision-maker, or Title IX Coordinator.

 

Any individual designated as a Title IX Coordinator, Investigator, Decision-Maker, or Informal Resolution facilitator shall not have any conflict of interest or bias for or against Complainants or Respondents generally or individually. 

The District will ensure that all persons serving as Title IX Coordinator, Investigator, Decision-Maker, and/or Informal Resolution Facilitator receives training on:

  • The definition of sexual harassment
  • The scope of the District’s education program or activity
  • How to conduct an investigation and complaint process
  • How to serve impartially, including avoiding prejudgment of facts, conflicts of interest, and bias
  • How to use any technology that will be used throughout grievance proceedings 
  • How to address issues of relevance
  • How to create an investigative report that fairly summarizes relevant evidence and information

All materials used to train Title IX Coordinators, Investigators, and Decision-Makers, and Informal Resolution Facilitators will not rely upon sex stereotypes and will promote impartial investigations. 

 

Reporting Sexual Harassment

Any person may report sex discrimination, including sexual harassment, at any time in person, by mail, by telephone or by email using the contact information listed below for the Title IX Coordinator.  Reports may also be filed with any SFUSD school’s administration team.  If a District employee becomes aware of a potential Title IX violation, they are responsible for notifying their school site administrator or District Title IX Coordinator.  Regardless of who has made the report, any person who has been the victim of alleged sexual harassment that meets the criteria under Title IX will promptly be contacted by the Title IX Coordinator or designee and will be informed of their right under Title IX to file a formal complaint and the process to do so. 

 

Any time sex discrimination and/or sexual harassment is reported to the school’s administration and/or Title IX Site Officer, the school principal or designee will:

  • inform the Complainant of the availability of supportive measures with or without filing a formal complaint and consider the Complainant's wishes with respect to supportive measures;
  • explain Title IX proceedings and rights to the Complainant; and 
  • notify the Complainant of the process for filing a formal complaint, if they choose.

 

All formal complaints will be reviewed by a district compliance officer to determine if the conduct is within the district’s jurisdiction and that it reaches the legal definition of sexual harassment. Complaints that meet this criteria shall be investigated and resolved in accordance with law and District procedures specified within this Board Policy and in Administrative Regulation AR, 5145.7.  

 

 

Filing a Formal Complaint

If an individual has been a victim of sexual harassment or sex-based discrimination or is the parent/guardian of a student who has been a victim of sexual harassment or sex-based discrimination, they may file a written, formal complaint. A written formal complaint shall be signed by either physical or digital signature and shall be presented to the District Title IX Coordinator using the contact information above, who shall maintain a log of complaints received. A formal complaint may be filed in person, by mail, or by email with the District Title IX Coordinator. The complaint may also be submitted to your school site administrator or Title 
IX Site Officer. Any administrator who receives a formal complaint is required to promptly provide the complaint to the District Title IX Coordinator. 

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.

Upon receipt of the formal complaint, the Title IX Coordinator will evaluate the complaint as filed and gather additional information as needed to determine if it meets the criteria for a Title IX investigation.  The filing of a signed formal complaint will trigger the formal grievance procedures outlined below.

 

All complaints shall be evaluated in accordance with the following:

  1. The allegations in the report, if validated through the preponderance of relevant and available evidence, constitutes sexual harassment under federal Title IX regulations and Board policy; and
  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; and
  3. The alleged sexual harassment occurred within the District's jurisdiction as defined by federal Title IX policy, which specifies that the incident must have occurred in the United States and on school grounds and/or within the District’s education programs or activities, and  
  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.

There is no statute of limitations for the filing of Title IX Complaints as long as the Complainant is enrolled or seeking enrollment or employment in the District.

The District may consolidate formal complaints in the even that allegations of sexual harassment are made against one or more Respondent by the same Complainant, or by more than one Complainant against one or more Respondents, where the allegations of sexual harassment arise out of the same facts or circumstances.  

With or without a formal complaint, the District will respond promptly in a manner that is not deliberately indifferent to any reports or actual knowledge of sexual harassment within the educational program against a person in the United States.  The District will treat all Complainants and Respondents equitably by offering supportive measures to all parties, presuming that the Respondent is not responsible for the alleged conduct unless and until a determination regarding responsibility is made at the conclusion of the complaint process, and following a complaint process that complies with 34 CFR 106.45 before the imposition of any disciplinary or punitive actions.

Any complaint that does not meet the criteria for sexual harassment under Title IX or that regards conduct that occurred outside of the District’s educational program or activity will be referred for investigation and follow-up under the appropriate District policy.

 

Formal Grievance Procedure

Any complaint that is formally filed with the Office of Equity shall be addressed in the manner described below.  For purposes of the formal complaint, the individual who is alleged to be the victim of sexual harassment will be referred to as the "Complainant" and the individual who has been accused of sexual harassment will be referred to as the "Respondent."  Respondents are considered “not responsible” for the alleged conduct unless and until a determination regarding responsibility is made at the conclusion of the complaint process outlined below. 

Upon receipt of any formal complaint that meets the federal criteria for a Title IX violation, the District will conduct a prompt and equitable investigation into the allegations and render a determination with regard to those allegations in compliance with 34 CFR 106.45, Board Policy 5145.7, and with the procedures detailed in this Administrative Regulation. 

 

Supportive Measures

When an incident of sexual harassment is reported, the principal/designee or Title IX Coordinator shall take immediate steps necessary to stop the harassment, protect students and/or ensure their access to the education program. The Title IX Coordinator or the principal or designee, shall promptly contact the parties to discuss supportive measures. Supportive measures are nondisciplinary, non-punitive individualized services offered to the Complainant and/or the Respondent. A formal complaint need not be filed to receive supportive measures. 

In consultation with appropriate school personnel and the Party and/or their parent/guardian, the Title IX Coordinator or their designee shall determine whether supportive measures are necessary to restore or preserve access to the educational program. The Title IX Coordinator, in coordination with school site staff, is responsible for ensuring the effective implementation of supportive measures. 

Supportive measures may include but are not limited to:

  • Safety plans
  • Wellness check-ins
  • Extensions of deadlines or other course related accommodations
  • Schedule adjustments
  • Other appropriate and reasonably available supports

To the extent possible, supportive measures shall not disadvantage the complainant or victim of the alleged harassment nor should they unreasonably burden the Respondent.

The school should notify the Complainant of the options to avoid contact with the Respondent. The school should also ensure that the Complainant is aware of the resources and assistance, such as counseling, that are available to them. As appropriate, supportive measures shall be considered even when a student chooses to not file a formal complaint or when the sexual harassment occurs off school grounds or outside school-sponsored or school-related programs or activities.  Every reasonable effort will be made to keep all supportive measures confidential. 

 

Notice of Investigation and Allegations

If a formal complaint is filed, the Title IX Coordinator will issue a written Notice of Investigation and Allegations simultaneously to all parties.  

 

  • The District's complaint process, including any informal resolution processes available
  • The allegations potentially constituting sexual harassment with sufficient details known at the time, including the identity of the parties involved in the incident if known, the conduct allegedly constituting sexual harassment, and the date and location of the alleged incident, if known. Such notice shall be provided with sufficient time for the parties to prepare a response before any initial interview. If, during the course of the investigation, new Title IX allegations arise, the Title IX Coordinator shall provide written notice of the additional allegations
  • A statement that the Respondent is presumed not responsible for the alleged conduct and that determination regarding responsibility is made at the conclusion of the investigation process
  • The opportunity for parties to have an advisor of their choice who may be, but is not required to be, an attorney, and the ability to inspect and review evidence
  • The prohibition against knowingly making false statements or knowingly submitting false information during the complaint process
  • The ability for either party to, at any time, notify the Title IX Coordinator should they have concerns regarding conflict of interest or bias regarding any of the persons involved

 

If, in the course of an investigation, the District decides to investigate allegations not included in the original Notice of Investigation and Allegations, the District will provide an amended notice in writing to all parties. 

 

Investigation

The District, and not any party, maintains the burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility.  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.  

All parties will have the same opportunity to have others present during any complaint proceeding, including the opportunity to be accompanied by their Title IX Advisor. However, the District maintains the right to establish restrictions regarding who may be present at any related proceedings and the extent to which any advisor may participate in proceedings. 

 

The Investigator shall:

  • Provide written notice of all investigative interviews or other meetings to any individual whose participation is invited or expected with sufficient time for the party to prepare to participate. Notice will include the date, time, location, participants, and purpose of the meeting.
  • Not restrict any party from discussing the allegations under investigation or from gathering and presenting relevant evidence. 
  • Provide the parties with the same opportunities to have a Title IX Advisor present.  The District shall not limit the choice or presence of advisor for either Complainant or Respondent, though the District may establish restrictions regarding the extent to which the advisor may participate that apply equally to both parties.
  • Objectively gather all relevant evidence, including both inculpatory and exculpatory evidence, and determine credibility in a manner that is not based on a person's status as Complainant, Respondent, or Witness
  • Ensure that the District cannot access, consider, disclose, or otherwise use records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional assisting in treatment to the party unless the District obtains that party’s or their parent’s voluntary, written consent to do so for the complaint process.  

 

The Investigator will summarize all relevant evidence and information in a written investigative report that shall include any evidence that is directly related to the allegations raised in the formal complaint, including evidence the District does not intend to rely upon when reaching a determination of responsibility.  The draft investigation report will be simultaneously provided to both parties and their advisors at least ten (10) days prior to the conclusion of the investigation.  Both parties and their advisors will have an equal opportunity to inspect and review the draft investigation report and submit a written response prior to the finalization of the investigation report and its referral to the Decision-Maker.  The Investigator will review any written response to the draft investigation report and incorporate the information and evidence therein as appropriate. 

 

 Determination

After the parties and the Decision-Maker receive the investigative report, the parties will have ten (10) business 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 responses from each party. The report and the parties' responses will be submitted to the Decision-Maker to evaluate as appropriate. 

The Decision-Maker will carefully review all relevant evidence, including both inculpatory and exculpatory evidence, and provide that credibility determinations are not based on a person’s status as Complainant, Respondent, or witness. Using the preponderance of evidence standard, the Decision-Maker will arrive at a determination as to whether there is enough evidence to state that it is more likely than not that the sex discrimination or sexual harassment occurred as alleged. 

The Decision-Maker will simultaneously issue to both parties a written determination that includes: the allegations that potentially constitute sexual harassment under Title IX; a description of the procedural steps taken from the receipt of the complaint through the determination; findings of fact supporting the determination; conclusions regarding the application of the District’s code of conduct to the facts; a statement of and rationale for the result of each allegation, including a determination of responsibility; any remedies that will be provided to restore or preserve equal access; and, in the event that a Respondent is found responsible for violating this Board Policy, appropriate disciplinary action. The written determination will also include information about the District’s procedures and bases for appeal.

The Decision-Maker cannot be the same person as the Title IX Coordinator or the Investigator.

The determination regarding responsibility becomes final either on the date the District provides the parties with the written determination or, if an appeal is filed, on the date the District provides parties with the written determination of the appeal. 

The Title IX Coordinator shall be responsible for coordinating an effective implementation of any remedies outlined by the Decision-Maker.

 

Appeals

A party may appeal the final determination or dismissal of a complaint within five (5) business 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 against the individual 
    Complainant or Respondent that affected the outcome of the matter.

Upon receipt of an appeal, the District will:

  • Notify any other parties in writing and ensure appeal procedures are implemented equally for all parties,
  • Ensure that the Decision-Maker for the appeal is not the same person as the Decision-Maker who reached the initial determination, the Investigator, or the Title IX Coordinator,
  • Ensure that the Decision-Maker does not have a conflict of interest or bias for or against Complainants or Respondents individually or in general, and
  • Provide all parties with a reasonable, equal opportunity to submit a written statement in support of, or challenging, the outcome.

The Title IX Appeal Officer will provide a written decision describing the result of the appeal and the rationale for that result simultaneously to both parties within 30 days of receipt of the initial appeal. 

The District's decision may be further appealed to the California Department of Education within thirty (30) days of the written decision. Either party has the right to file a complaint with the U.S. Department of Education's Office of Civil Rights within one hundred eighty (180) days of the date of the most recently alleged misconduct.

 

Timeframes

The formal grievance procedure shall be completed within a reasonably prompt timeframe after the submission of a formal complaint. Every effort will be made to complete all procedures, including for filing and resolving appeals and for any informal resolution process, within ninety (90) business days, however this timeframe may extend beyond 90 days for good cause. Good cause may include, but are not limited to, the following considerations: school being out of session; absence of a party or witnesses; delay in scheduling interviews; delays necessary for the adequate translation of any written materials; and/or concurrent law enforcement or other agency activity. In the event of a temporary delay, any Complainant or Respondent will be notified in writing of the extension and the reasons for the action.  Any party may request an informal status report in writing to the Title IX Coordinator at any time throughout the investigation.

 

Dismissal of a Formal Complaint

The District must investigate the allegations in any formal complaint of sex discrimination or sexual harassment that is submitted to the Office of Equity unless:

  • the conduct alleged in the formal complaint would not constitute sexual harassment as defined in this policy
  • the conduct did not occur in direct relationship to a District education program or activity, or did not occur against a person in the United States, 
  • the complainant and/or respondent is no longer enrolled or seeking enrollment in the District 

If the conduct as alleged in the formal complaint meets one of the criteria above, then the formal complaint must be dismissed.  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.

The dismissal of a formal complaint does not preclude action under another provision of District policy. Incidents that do not rise to the level of sexual harassment as defined in this policy must still be investigated by the school site in an accordance with the District's Bullying & Harassment Policies (BP 5131.2/AR 5131.2). Incidents that occurred prior to August 14, 2020 must still be investigated by the school site in accordance with the previous Board Policy and Administrative Regulation 5145.7

Prompt written notice of the dismissal will be sent to the parties should the complaint be dismissed.  If the alleged conduct falls under a different District policy, the Office of Equity will refer the complaint to the school site administrator for further follow up and/or investigation.  

 

 

Remedies

 

Informal Resolution

At any time 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 or restorative action) that does not involve a full investigation and adjudication process. The District may not require anyone to waive their right to an investigation as a condition of their enrollment or employment, can the District require parties to participate in an informal resolution process.  The District will only undergo an Informal Resolution if it has obtained all parties’ voluntary, written consent. 

If all involved parties agree to participate in an Informal Resolution, the District shall provide a written notice including: the allegations; the requirements of the informal resolution process; the circumstances that would preclude the parties from resuming a formal complaint; any party’s right to withdraw from the informal resolution process; and any consequences resulting from participating in the informal resolution process, including notice of the records that will be maintained or could be shared. 

Prior to reaching a resolution, either party may withdraw from the informal resolution process and resume the formal complaint process.  If the complaint is determined not to meet the criteria for a Title IX violation, all involved parties may agree to participate in an informal resolution process rather than proceeding to seek formal investigation and resolution through another Board policy.  

As a condition of engaging in Informal Resolution, parties shall agree that statements made, or evidence shared, during the Informal Resolution process will not be considered during any subsequent Formal Grievance Process unless all parties consent.

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

 

Emergency Removal

The District may remove a Respondent from the District's programs and activities on an emergency basis whether the grievance process is underway or not.  An emergency removal requires the District to conduct an individualized safety and risk analysis to determine whether the Respondent could pose an immediate threat to the physical health or safety of any student or other individual. An immediate risk may be identified based on the alleged conduct as well as the Respondent's actions and behaviors before or after the incident.

Applicable disability laws must be taken into consideration in the removal decision, and the risk assessment must include a consideration of the appropriateness of supportive measures in lieu of an emergency removal. The Respondent has the right to receive notice of the emergency removal and an opportunity to challenge the decision immediately.

 

Corrective/Disciplinary Action

The District shall not impose any disciplinary or punitive sanctions against a Respondent, other than supportive measures, until the complaint procedure as outlined above has been completed and a determination of responsibility has been made.

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 Education Code 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, discipline for sexual harassment may include suspension and/or expulsion pursuant to California Education Code. If it is determined that a student at any grade level has committed sexual assault or sexual battery at school or a school-sponsored activity, the student shall be recommended for expulsion.  

Other actions that may be taken with a student who is determined to be responsible for sexual harassment include, but are not limited to: 

  • Transfer from a class or a school
  • Parent/guardian conference
  • Education of the student regarding the impact of the conduct on others
  • Positive behavior support
  • Referral of the student to a Student Success Team (SST)
  • Denial of participation in extracurricular or co-curricular activities or privileges
  • Suspension from school for up to five (5) days

If an employee is found to have committed sexual harassment, sexual violence, or acts of retaliation in response to a complaint of sex discrimination or sexual harassment, the District shall take appropriate disciplinary action, up to and including dismissal, in accordance with applicable law and collective bargaining agreement.

 

Off-campus/Outside of School-Related Conduct

Any prohibited conduct that occurs off campus or outside of school-related or school-sponsored programs or activities cannot be investigated under Title IX Policy.  However, should conduct occurring outside of the District’s education program or activity cause a continuing effect on any student and/or create a hostile school environment for the Complainant or victim of the conduct, the matter shall be referred to the school site for investigation and follow-up under the District's Bullying & Harassment policy. While discipline is not permitted for conduct that did not occur within the District’s educational program or activities, school sites should nonetheless provide appropriate and reasonable supportive measures and other remedies to any student who reports an off-campus incident. 

 

Mandatory Reporting Requirements

District employees who have reasonable suspicion of child abuse, including sexual abuse, harassment, and assault, shall immediately report that suspicion pursuant to Penal Code 11165.7 and Board Policy 5141.4. A report shall be made regardless of the identity of the accused person, including reports in which the accused person is a District employee, student or third party.

 

Record-Keeping

For a period of seven (7) years, the District must maintain records of:

  • Each sexual harassment investigation including any determination of responsibility and a record of the remedies and/or disciplinary sanctions imposed
  • Any appeal 
  • Any informal resolution
  • All materials used to train Title IX Coordinators, Investigators, Decision-Makers, and Informal Resolution Facilitators
  • Any actions, including supportive measures, taken in response to any report or formal complaint of sexual harassment, including documentation that its response was not deliberately indifferent and that the District took appropriate measures designed to restore or preserve equal access

Record of these actions will enable the District to monitor, address, and prevent repetitive harassing behavior in District schools. In accordance with District policy, upon completion of the investigation, the Director of Equity will destroy all interview notes and recordings. The rest of the case file will be retained in accordance with the District policy for seven (7) years.

 

Notice of Sexual Harassment Policies and Procedures

The following information shall be posted publicly on the District website:

  1. The name and contact information for the District Title IX Coordinator, including their phone number and email address. 
  2. The rights of a pupil and the public and the responsibilities of the District under Title IX, including links to those rights and responsibilities as outlined by the Office for Equal Opportunity and the U.S. Department of Education (ED) Office of Civil Rights (OCR)
  3. The District's Sexual Harassment policy, including the definition of discrimination and harassment based on sex as described in Section 230 and the rights set forth in EC 234.6(b)(3). 
  4. Links to the CDE’s Title IX information
  5. Information about how to file a formal Title IX Complaint, including any information regarding statute of limitations and links to the U.S. ED OCR complaints form, their contact information, and any information they provide about how a Complainant might further pursue the complaint 
  6. All materials used to train the Title IX Coordinator, investigators, decision-makers, and any person who facilitates an informal resolution process will be made publicly available on the District's website.
     

In addition, a copy of the District's sexual harassment policy and regulation, as well as a notice that the District does not discriminate on the basis of sex within the education program or activity, shall:

  1. Be included in the notifications that are sent to parents/guardians at the beginning of each school year  (Education Code 48980; 5 CCR 4917);
  2. Be displayed in a prominent location in the main administrative office or other area where notices of District rules, regulations, procedures, and standards of conduct are posted (Education Code 231.5);
  3. Be posted on any District-supported social media regarding topics of sex discrimination or sexual harassment 
  4. Be provided as part of any orientation program conducted for new students at the beginning of each quarter, semester, or summer session (Education Code 231.5);
  5. Appear in any school or District publication that sets forth the school's or District's comprehensive rules, regulations, procedures, and standards of conduct (Education Code 231.5);
  6. Be included in the student handbook.
  7. Be provided to employees and employee organizations; and
  8. Be posted in every student bathroom or locker room on middle school and high school campuses.
  9. Be provided to applicants for admission and employment, including a statement that the District’s requirement not to discriminate extends to admission and employment 

 

Any inquiries about the application of Title IX can be referred to the District’s Title IX Coordinator, to the Office of Civil Rights Assistant Secretary, or both. 

 

State References

 

5 CCR 4600-4670 - Uniform complaint procedures

5 CCR 4900-4965 - Nondiscrimination in elementary and secondary education programs

Civ. Code 1714.1 - Liability of parent or guardian for act of willful misconduct by a minor

Civ. Code 51.9 - Liability for sexual harassment; business, service and professional relationships

Ed. Code 200-262.4 - Educational equity; prohibition of discrimination on the basis of sex

Ed. Code 48900 - Grounds for suspension and expulsion

Ed. Code 48900.2 - Additional grounds for suspension or expulsion; sexual harassment

Ed. Code 48904 - Liability of parent/guardian for willful student misconduct

Ed. Code 48980 -Notice at beginning of term

Gov. Code 12950.1 - Sexual harassment training

 

Federal References

 

20 USC 1221 - Application of laws

20 USC 1232g - Family Educational Rights and Privacy Act (FERPA) of 1974

20 USC 1681-1688 - Title IX, discrimination

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

34 CFR 99.1-99.67 - Family Educational Rights and Privacy

42 USC 1983 - Civil action for deprivation of rights

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

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

 

 

Cross References

Amended: 10/12/2022

Amended: August 3, 2021

Amended: January 8, 2020

Adopted: September 29, 2015

§

 

 

This page was last updated on February 26, 2024