Administrative Regulation on Sexual Harassment

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: 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.

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.
 

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:

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.

Formal Grievance Procedure

Any complaint that is formally filed with the Office of Equity shall be addressed using the procedures outlined below.

Filing a Complaint

A student who is the alleged victim of sexual harassment or the student's parent/guardian may submit a report of sexual harassment to the District's Title IX Coordinator using the contact information listed above. Upon receipt of the 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.
 

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 so they can determine whether it is appropriate to file a formal complaint on behalf of the victim in situations when a safety threat exists (even if the alleged victim chooses not to file a formal complaint.)

Any complaint that does not rise to the level of Title IX will be referred for investigation and follow-up under the appropriate District policy.

Supportive Measures

When an incident of sexual harassment is reported, the principal or designee, in consultation with the Title IX Coordinator and, as appropriate, the victim, shall determine whether supportive measures are necessary . Supportive measures are nondisciplinary, non-punitive individualized services offered to the complainant or the respondent. A formal complaint need not be filed to receive supportive measures.

Upon receiving a report of sexual harassment, the Title IX Coordinator must promptly contact the parties to discuss supportive measures. The Title IX Coordinator, in coordination with school site staff, is responsible for ensuring the effective implementation of supportive measures. The principal/designee or Title IX Coordinator shall take immediate measures necessary to stop the harassment, protect students and/or ensure their access to the education program. To the extent possible, such supportive measures shall not disadvantage the complainant or victim of the alleged harassment nor should they unreasonably burden the Respondent.

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

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 available 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.

Written Notice of Allegations

If a formal complaint is filed, the District Title IX Coordinator shall provide the known parties with written notice of the following:

• The District's complaint process, including any informal resolution processes
   
• 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

Investigation

All parties will have equal opportunity to provide evidence in support of their account of events. Evidence may include, but is not limited to: witness statements, electronic messages, images and/or video evidence. Parties may also provide a list of relevant witnesses whose statements will be taken into account.

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 must include the date, time, location, participants, and purpose of the meeting.
   
• Not restrict the ability of either party to discuss the allegations under investigation or to gather and present relevant evidence.
   
• Provide the parties with the same opportunities to have others present during any grievance proceedings, though the District may establish restrictions that apply equally to both parties.
   
• Objectively evaluate all relevant evidence and determine credibility in a manner that is not based on a person's status as Complainant, Respondent, or Witness

The Investigator will summarize the findings of all collected evidence and provide this in a written report to the Decision-Maker and both parties.

Decision

The Decision-Maker will carefully review all evidence collected and summarized by the Investigator and determine responsibility for the alleged conduct. The Decision-Maker cannot be the same person as the Title IX Coordinator or the Investigator.
 

After receipt of the investigative report, the parties will have the opportunity to submit written, relevant questions that they want asked of any party or witness. Both parties will have the opportunity to provide the answers and to present limited follow up questions.
 

The Decision-Maker shall issue, and simultaneously provide to both parties, a written decision as to whether the Respondent is responsible for the alleged conduct. This decision shall be made using the "preponderance of evidence" standard. The written determination must include the allegations, a description of the steps taken to investigate the incident, findings of fact supporting the determination, conclusions regarding violation of District policy and rationale for such determination, and procedures for appeal

Appeals

All parties have the right to appeal the findings in the written determination if the party believes a procedural irregularity affected the outcome, new evidence is available that could affect the outcome, or a conflict of interest or bias by the Title IX Coordinator, Investigator, or Decision-Maker affected the outcome.

The Head of the Student and Family Services Division, or another District designee shall fulfill the role of the Title IX Appeal Officer. The Title IX Appeal Officer may not be the Investigator, the Decision-Maker, or Title IX Coordinator.

Written notice will be sent out to parties upon filing of an appeal. Parties will have ten (10) business days to submit a written statement in support of, or challenging, the appeal. The Title IX Appeal officer will issue a written decision describing the result of the appeal and the basis for that finding. The appeal decision will be issued by the Title IX Appeal Officer within 30 business 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 reasonable timeframe after the submission of a formal complaint. Every effort will be made to complete all procedures 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; or concurrent law enforcement or other agency activity. 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

If the conduct alleged in the formal complaint would not constitute sexual harassment as defined in this policy, did not occur in direct relationship to 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. 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 occured 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

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.

Remedies

Informal Resolution

The Complainant may, at any time during the proceedings, request that informal resolution processes be utilized in lieu of completion of formal grievance procedures. , An appropriately trained representative of the school site staff or District, as determined by the needs of a situation and the parties involved, shall serve as the Informal Resolution Facilitator. Parties will be informed of the informal resolution process including the circumstances under which it precludes the parties from resuming a formal complaint arising from the allegations and any consequences resulting from participating in the informal resolution process. Both parties must provide voluntary, written consent to the informal resolution process.

Informal resolution processes may include, but are not limited to facilitated mediation and restorative actions.

Written notice of the conclusion of the informal resolution process will be sent to both parties.

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 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 has been completed and a determination of responsibility has been made.

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

When an employee is found to have committed sexual harassment or retaliation, 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. These complaints, if they have a continuing effect on or create a hostile school environment for the Complainant or victim of the conduct shall be referred to the schools site for investigation and follow up under the District's Bullying & Harassment policy.

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.

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

The Superintendent or designee shall maintain a record of:

• All reported formal complaints of sexual harassment; and
   
• Any actions, including supportive measures, taken in response to a report or formal complaint of sexual harassment; and
   
• All materials used to train the Title IX Coordinator, Investigator, and Decision-Maker, and any person who facilitates informal resolution processes or other related processes at school site

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 7 years.

Notice of Sexual Harassment Policies and Procedures

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

1. The contact information of the District Title IX Coordinator, including the title of the name of the Title IX Coordinator, office address, e-mail address, and telephone number;
2. The District's Sexual Harassment policy; and
3. 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 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 District-supported social media. 
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.

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