7.6 Sexual Harassment

Sexual Harassment

(SFUSD Board Policy 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 persons who reports, files a complaint, or testifies about, or otherwise spports a complainant in alleging sexual harassment.

i. Definitions

  1. Complainant: An individual who is alleged to be the victim of conduct that could constitute sexual harassment, as defined below.
  2. Respondent: An individual who has been reported to have performed conduct that could constitute sexual harassment, as defined below.
  3. Formal Complaint: A document filed by a complainant alleging sexual harassment against a respondent and requesting that the District investigate th allegation of sexual harassment. The Title IX Coordinator may also file a formal complaint.
  4. Title IX Sexual Harassment: The Title IX regulations define sexual harassment as conduct on the basis of sex that satisfies one of more of the following:
    • a. 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;
    • b. 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 recipients education program or activity; or
    • c. "Sexual assault" as defined in 20 U.S.C. 1092(f)(6)(A)(v), "dating violence" as defined in 34 U.S.C. 12291(a)(10), "domestic violence" as defined in 34 U.S.C. 12291(a)(8), or "stalking" as defined in 34 U.S.C. 12291(a)(30).
  5. 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:
    • 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.
    • Fondling: The touching of private body parts of another person for the purpose of sexual gratification, without consent of the victim.
    • Incest: Sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law
    • Statutory Rape: Sexual intercourse with a person who is under the statutory age of consent.
  6. Dating Violence: Violence committed by a person who is or has been in a relationship of a romantic or intimate nature with the victim.
  7. Domestic Violence: A crime of violence committed by a person who is:
    • A current or former spouse or intimate partner of the victim;
    • A person with whom the victim shares a child in common;
    • A person who is cohabitating with, or has cohabitated with, the victim as a spouse or intimate partner;
    • A person similarly situated to a spouse of the victim under the domestic or family violence laws where the violence occurred; or
    • 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.
  8. Stalking: Engaging in a course of conduct directed at a specific person that would cause a response person to fear for the persons safety/the safety of others, or suffer substantial emotional distress
  9. 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.
  10. Education Program or Activity: Locations, events, or circumstances over which the District has exercised substantial control over both the respondent and the context in which the sexual harassment occurred.
  11. Supportive Measures: Non-disciplinary, non-punitive individualized services offered to the complainants or the respondent.

ii. 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.

iii. 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:

  1. inform the Complainant of the availability of supportive measures;
  2. consider the Complainant's wishes with respect to supportive measures;
  3. inform the Complainant of the availability of supportive measures with or without the filing of a formal complaint; and
  4. explain to the Complainant the process for filing a formal complaint.

iv.  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.

v. Formal Grievance Procedure

District Roles
The following administrative roles shall compromise the team implementing the formal Title IX grievance procedure.

  1. 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.
  2. 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.
  3. 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.

Title IX Investigation

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 Board Policy 5145.7 and with the procedures detailed in AR 5145.7

The 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.Written notice of all investigative interviews or other meetings must be provided to any individual whose participation is invited or expected to be provided with sufficient time for the party to prepare to participate. Notice must include the date, time, location, participants, and purpose of the meeting.

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.

Parties will have the opportunity to select an advisor of their choice to accompany them to any related meeting or proceedings related to the formal complaint.

Title IX Decision

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 cannot be the same person as the Title IX Coordinator or the investigator. The Decision-Maker will conduct an evaluation of all relevant evidence and will issue a written determination regarding responsibility to both parties.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. The written determination must be provided to the parties simultaneously.

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

Title IX Appeal

The Chief of Student, Family, Community Support Division, or their designee, shall fulfill the role of the Title IX Appeal Officer. The Title IX Appeal Officer may be not the investigator, the Decision-Maker, or Title IX Coordinator. Written notice will be sent out to parties upon the filing of an appeal. Parties will have ten (10) school days to submit a written statement in support of, or challenging, the appeal. The Title IX Officer will issue a written decision describing the result of the appeal and the basis for that finding.

Prohibition Against Bias

The Title IX Coordinator, Investigator, Decision-Maker, Title IX Appeal Officer and any individual designated to facilitate an informal resolution process may not have a conflict of interest or bias for or against complainants or respondents generally or an individual Complainant or Respondent.
 

Timeframes

The formal grievance procedure shall be completed within ninety (90) school days after the submission of a formal complaint. Extensions to this timeframe will be allowed for good cause and written notice of such extensions will be provided to both the Complainant and the Respondent. 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.

vi.  Dismissal of a Formal Title IX Complaint

If the conduct alleged in the formal complaint would not constitute sexual harassment as defined above, 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. 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.

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)

vii. Title IX 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) that does not involve a full investigation and adjudication 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.

viii. Conduct That Does Not Reach the Level of Title IX Sexual Harassment Level 

Incidents that do not rise to the level of sexual harassment as defined under Title IX and BP 5145.7  may violate other District polices and will be addressed accordingly. Harassing conduct, including sexual harassment, that may not rise to the level of Title IX sexual harassment will be investigated by the school site in an accordance with the District's Bullying & Harassment policy (BP 5131.2/AR 5131.2)

ix. 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 does not fall within the Jurisdiction of Title IX and will be regarded as bullying and/or harassment in violation of District policy if it has a continuing effect on or creates a hostile school environment for the complainant or victim of the conduct.

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.

x.  Title IX Supportive Measures

When an incident of sexual harassment is reported, the principal or designee, in consultation with the Title IX Coordinator, shall determine whether supportive measures are necessary pending the results of the investigation. Supportive measures are nondisciplinary, 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 shall 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. The principal/designee or Title IX Coordinator shall take immediate measures necessary to stop the harassment and 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.

Supportive interim measures may include wellness check-ins, extensions of deadlines or other course related adjustments, 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. 

xi. Notifications

A copy of the District’s Sexual Harassment Policy shall:

  1. The Sexual Harassment Policy will be distributed to school sites (High School, Middle School, and Elementary School and the Child Development Centers) with instructions that it must be posted in all main office spaces, including staff lounges and student government rooms; main administration building, including Counseling/Dean offices; Wellness Center facilities; and/or other prominent locations where notices are regularly posted regarding rules, regulations, procedures, or standards of conduct..
  2. A Sexual Harassment Policy Poster will be posted in each restroom and locker room for Middle and High School Sites.
  3. Each year the Sexual Harassment Policy will be printed in the Handbook which is distributed to all parents.
  4. The Sexual Harassment Policy will be posted on the SFUSD Website under the Office of Equity.
  5. The Sexual Harassment Policy shall be included in any other notifications that are sent to parents/guardians at the beginning of each school year. (CA Education Code 48980)
  6. The Sexual Harassment Policy shall be displayed in a prominent location near the school principal’s office. (CA Education Code 212.6)
  7. The Sexual Harassment Policy shall be provided as part of any orientation program conducted for new students at the beginning of each quarter, semester, or summer session. (CA Education Code 212.6)
  8. The Sexual Harassment Policy shall appear in any school or district publication that sets forth the schools’ or District’s comprehensive rules, regulations, procedures, and standards of conduct. (CA Education Code 212.6)
  9. The Sexual Harassment Policy shall be provided to employees and employee organizations.

xii. Disciplinary measures 

  1. Any student who engages in sexual harassment of anyone at school or at a school-sponsored or school-related activity is in violation of this policy and shall be subject to disciplinary action. For students in grades 4 through 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. 
  2. The District will also take any appropriate action against any employee who engages in sexual harassment/discrimination.

xiii. 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.

xiv. Title IX Appeal Information

1. SFUSD APPEAL INFORMATION

This final determination of responsibility concludes the Title IX investigation. Either party can appeal the final determination on the following basis:

  • Procedural irregularity that affected the outcome of the matter;
  • New evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made, that could affect the outcome of the matter; and 
  • 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.

The appeal will be decided by a neutral party and not be decided by the investigator, decision-maker or Title IX Coordinator.  Both parties will be given a reasonable, equal opportunity to submit a written statement in support of, or challenging, the outcome.  A final written appeal decision will be issued within 20 school days of receipt of the appeal request describing the result of the appeal and the rationale for the result.  The appeal decision will be provided simultaneously to both parties.  

Appeals may be submitted to the Office of Equity at Equity@sfusd.edu within 5 school days of receipt of this complaint. 

2. 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.

This page was last updated on August 19, 2022