I. Title IX – Generally
Title IX of the Education Amendments of 1972, 20 U.S.C. §1681 et seq. (“Title IX”), are designed to eliminate discrimination from discrimination based on sex in educational programs or activities that receive federal financial assistance. Title IX states: “No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any academic, extracurricular, research, occupational training, or other education program or activity operated by a recipient which receives Federal financial assistance.”
Freire Charter School Wilmington (“the School”) is committed to maintaining a safe and healthy educational and work environment in which no member of the School community is, on the basis of sex, sexual orientation, gender identity, and/or gender expression excluded from participation in, denied the benefits, of or subjected to discrimination in any program or activity of the School.
It is the policy of The School to prohibit all sexual and/or gender-based harassment (“Sexual Harassment”); to prevent incidents of Sexual Harassment from denying or limiting an individual’s ability to participate in or benefit from The School’s programs; to provide education and training to the school community around Sexual Harassment; as well as to adopt appropriate grievance procedures to provide for timely, appropriate, and equitable response and remedy to any instance of Sexual Harassment as required by Title IX. The School’s Title IX Policy and Grievance Procedures apply only to conduct falling within the scope of Title IX. Complaints regarding conduct outside the scope of The School’s Title IX Policy and Grievance Procedure will be handled using the appropriate School Policy, Procedure, or Rule found in the Student and Family or Employee Handbooks.
The School’s Title IX Policy and Grievance Procedures apply to all individuals participating in and attempting to participate in the School’s educational program or activity (collectively, “members of the school community”). Any individual with questions about The School’s Title IX Policy and Grievance Procedures, or who would like to make a report or file a formal complaint of sex and/ or gender- based discrimination or sexual harassment may contact The School’s designated Title IX Coordinator, to the Assistant Secretary at the U.S. Department of Education, or both.
II. Educational Equity and Non-Discrimination in School and Classroom Practices
The purpose of this policy is to ensure that the School has an appropriate procedure for responding to Title IX violations consistent with the requirements of Title IX and its regulations, 34 C.F.R. Chapter 106 as well as Title VII of the Civil Rights Act.
B. Delegation of Responsibility
The CEO or his or her designee shall be responsible for ensuring the implementation of this Policy.
III. Sexual Harassment
- “Sexual Harassment” refers to unwelcome conduct on the basis of sex and/ or gender identity/expression that satisfies one or more of the following:
- i. Any instance of quid pro quo harassment by a school employee: An employee of the School conditioning the provision of an aid, benefit, or service of the School on an individual’s participation in unwelcome sexual conduct;
- ii. Any instance of harassment creating a hostile educational/ work environment: 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 School’s education program or activity; or
- iii. “Sexual assault” as defined in the Clery Act (20 U.S.C. §1092(f)(6)(A)(v)), “dating violence”, “domestic violence”, or “stalking” as defined in the Violence Against Women Act “VAWA” (34U.S.C.§12291(a)(8-30)).
- Violation(s) of The School’s Transgender and Non-Gender Conforming Student Policy and/or The School’s Pregnant, Parenting, and Married Student Policy may be in violation of The School’s Title IX prohibition on sex and/or gender-based discrimination and will be subject to The School’s Title IX Policies and Procedures.
This policy applies to sexual harassment that is committed by any member of the school community when the misconduct occurs within a School program or activity. Specifically, The School has jurisdiction over locations, events, or circumstances where the School exercises substantial control over both the Respondent and the context in which the sexual harassment occurred. The School’s Title IX Policy jurisdiction is limited to conduct occurring in the United States.
The School is committed to creating an environment that encourages individuals to come forward if they have experienced or witnessed sexual harassment. However, The School cannot promise absolute confidentiality to any party. Further, School employees cannot promise confidentiality to any student who reports possible sexual harassment to them.
The School shall not require, allow, rely upon, or otherwise use questions or evidence that constitute, or seek disclosure of, information protected under a legally recognized privilege, unless the person holding such privilege has waived the privilege. The School will make every reasonable effort to maintain the confidentiality of and protect the privacy and identity of all parties and witnesses confidential, except as otherwise permitted by the Family Educational Rights and Privacy Act “FERPA” (20 USC §1232g; 34 CFR Part 99), as required by law, or as necessary to conduct proceedings under Title IX.
D. Retaliation Prohibited
Retaliation against an individual who files a good faith complaint in accordance with either formal or informal procedures, or against an individual who participates in or cooperates with an investigation, is prohibited. Such retaliation will result in the same disciplinary action applicable to one who engages in harassment. Reporting harassment will not affect the reporting individual’s status with respect to either an employee’s future employment or work assignments or a student’s future academic opportunity, progress or record. Any individual who believes they have been retaliated against in violation of this Policy must immediately contact the Title IX Coordinator. However, the exercise of rights protected under the First Amendment does not constitute prohibited retaliation.
E. Intentionally False Accusations Prohibited
False accusations of harassment made in bad faith over the course of any complaint, investigation, hearing, or other proceeding under this Policy, can have serious effects on innocent individuals. Therefore, it is prohibited to accuse an individual of harassment intentionally in bad faith. Such intentionally false accusations will result in disciplinary action.
Procedures for Reporting and Responding to Sexual Harassment
The CEO of Freire Charter School Wilmington (“the School”) adopts these procedures pursuant to the Title IX Policy.
REPORTING SEXUAL HARASSMENT
I. Student Reporting Obligations
Each student shall respect the rights of other students with the goal of creating and maintaining an atmosphere free from all forms of Sexual Harassment. Students shall be informed that they may choose to report Sexual Harassment complaints to the Head of School, teachers, counselors, nurses, administrators, or other trusted adult employees. All employees should be trained to refer complaints of Sexual Harassment to the Head of School or other designated employees.
II. Employee Reporting Obligations
Each staff member shall maintain an educational environment free from all forms of Sexual Harassment. Any School employee who becomes aware of Sexual Harassment has an affirmative obligation to report immediately to the Head of School, Title IX Coordinator, or their immediate supervisor. Failure of any employee to report Sexual Harassment may result in disciplinary action against the employee.
III. Reporting to Law Enforcement
In cases involving potential criminal conduct, the School shall report the circumstances of Sexual Harassment to law enforcement officials and the district attorney’s office when required by law.
IV. Time Frames for Reporting and Response
The School directs that all complaints of Sexual Harassment shall be investigated promptly pursuant to the applicable grievance procedure referenced below and corrective action shall be taken when allegations are verified. Complaints should be submitted as soon as possible after Sexual Harassment takes place to maximize The School’s ability to respond promptly and equitably. The School may not be able to fully investigate a formal complaint against an individual who is no longer affiliated with The School. Under these circumstances, The School will still consider whether it can offer supportive measures to the Complainant or proceed under another applicable law, policy, procedure, etc.
The School shall conclude the grievance process within a reasonable period, including acting with reasonable promptness for filing and resolving appeals and informal resolution processes. The School shall allow for temporary delay of the grievance process or the limited extension of time frames for good cause with written notice to the Complainant and the Respondent of the delay or extension and the reasons for the action. Good cause may include considerations such as the absence of a party, a party’s advisor, or a witness; concurrent law enforcement activity; or the need for language assistance or accommodation of disabilities.
I. Initial Meeting with Complainant:
A. Upon receipt of a complaint, the Title IX Coordinator will promptly contact the Complainant to schedule a meeting with the Complainant to discuss 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, and explain to the Complainant the process for filing a formal complaint.
B. At the initial meeting with the Complainant, the Title IX Coordinator will seek to determine how the Complainant wishes to proceed. The Complainant may opt for an informal resolution, a formal resolution, or to not proceed with a resolution. Supportive measures must be offered whether or not the Complainant chooses any of these options.
- Supportive measures are non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the Complainant or the Respondent before or after the filing of a formal complaint or where no formal complaint has been filed.
- Such measures are designed to restore or preserve equal access to The School’s education program or activity without unreasonably burdening the other party, including measures designed to protect the safety of all parties or The School’s educational environment, or deter sexual harassment.
- Supportive measures may include counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, campus escort services, mutual restrictions on contact between the parties, changes in work location, leaves of absence, increased security and monitoring of certain areas of the campus, and/ or other similar measures.
- The School is required to maintain as confidential any supportive measures provided to the Complainant or respondent, to the extent maintaining such confidentiality would not impair the ability of the School to provide the supportive measures.
- The Title IX Coordinator is responsible for coordinating the effective implementation of supportive measures.
C. If the Complainant wishes to proceed with either formal or informal resolution, a written document must be
filed by the Complainant or signed by the Title IX coordinator alleging harassment against the Respondent
(the “formal complaint”).
II. Procedural Standards Maintained During Grievance Process
A. Objective Evaluation of Evidence: The School shall undertake an objective evaluation of all relevant evidence, including both inculpatory and exculpatory evidence. The School may not base credibility determinations on a person’s status as a Complainant, Respondent, or witness.
B. Conflict of Interest: The Title IX Coordinator, investigator, decision-maker, or any person designated by The School to facilitate an informal resolution process, shall not have a conflict of interest or bias for or against Complainants or Respondents generally or an individual Complainant or Respondent.
C. Presumption of Innocence: The School presumes the Respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process.
A. Upon receipt of a formal complaint, The School must provide the following written notice to the parties who
- notice of The School’s grievance process, including any informal resolution process;
- notice of the allegations of sexual harassment potentially constituting sexual harassment, including sufficient details known at the time and with sufficient time to prepare a response before any initial interview (sufficient details include the identities of the parties involved in the incident, if known, the conduct allegedly constituting sexual harassment, and the date and location of the alleged incident, if known);
- a statement that the Respondent is presumed not responsible for the alleged conduct and that a determination regarding responsibility is made at the conclusion of the grievance process;
- notice that the parties may have an advisor of their choice, who may be, but is not required to be, an attorney, and may inspect and review evidence;
- notice that The School’s code of conduct prohibits knowingly making false statements or knowingly submitting false information during the grievance process.
B. If, in the course of an investigation, The School decides to investigate allegations about the Complainant or Respondent that are not included in the notice, the School will provide notice of the additional allegations to the parties whose identities are known.
A. To begin the investigation, the Title IX Coordinator shall designate an investigator(s). The investigator(s) must be appropriately trained in conducting Title IX investigations, unbiased, and have no conflicts of interest in the present case. The investigator(s) serves as a neutral fact-finder and shall interview both parties, relevant witnesses, and gather and review evidence relevant to the outcome of the complaint.
B. The School must investigate allegations in any formal complaint and send written notice to both the Complainant and Respondent of the allegations upon receipt of a formal complaint. When investigating a formal complaint and throughout the grievance process, The School must:
- ensure the burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility rests on The School and not on the parties;
- not access, consider, disclose, or otherwise use a party’s records that are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional or paraprofessional acting in the professional’s or paraprofessional’s capacity, or assisting in that capacity, and which are made and maintained in connection with the provision of treatment to the party, unless The School obtains that party’s voluntary, written consent to do so for a grievance process under this section;
- provide an equal opportunity for the parties to present witnesses, including fact and expert witnesses, and other inculpatory and exculpatory evidence;
- 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 proceeding, including the opportunity to be accompanied to any related meeting or proceeding by the advisor of their choice, who may be, but is not required to be, an attorney, and not limit the choice or presence of advisor for either the Complainant or Respondent in any meeting or grievance proceeding; however, The School may establish restrictions regarding the extent to which the advisor may participate in the proceedings, as long as the restrictions apply equally to
- provide, to a party whose participation is invited or expected, written notice of the date, time, location, participants, and purpose of all hearings, investigative interviews, or other meetings, with sufficient time for the party to prepare to participate;
- provide both parties an equal opportunity to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in a formal complaint, including the evidence upon which The School does not intend to rely in reaching a determination regarding responsibility and inculpatory or exculpatory evidence whether obtained from a party or other source, so each party can meaningfully respond to the evidence prior to conclusion of the investigation.
C. Prior to completion of the investigative report, The School must send each party and the party’s advisor, if any, the evidence subject to inspection and review in an electronic format or a hard copy, and the parties must have at least 10 days to submit a written response, which the investigator will consider prior to completion of the investigative report;
- The School must make all such evidence subject to the parties’ inspection and review available at any hearing to give each party equal opportunity to refer to such evidence during the hearing, including for purposes of cross-examination; and
- create an investigative report that fairly summarizes relevant evidence and, at least 10 days prior to a hearing or other time of determination regarding responsibility, send to each party and the party’s advisor, if any, the investigative report in an electronic format or a hard copy, for their review and written response
D. The School may consolidate formal complaints as to allegations of sexual harassment against more than one Respondent, or by more than one Complainant against one or more Respondents, or by one party against the other party, where the allegations of sexual harassment arise out of the same facts or circumstances
A. If the conduct alleged in the formal complaint would not constitute sexual harassment, even if proved, did not occur in The School’s education program or activity, or did not occur against a person in the United States, The School must dismiss the formal complaint with regard to that conduct for purposes of sexual harassment under Title IX and its regulations; such a dismissal does not preclude action under another provision of the School’s code of conduct.
B. The School may dismiss the formal complaint or any allegations therein, if at any time during the investigation or hearing:
- a Complainant notifies the Title IX Coordinator in writing that the Complainant would like to withdraw the formal complaint or any allegations therein;
- the Respondent is no longer enrolled or employed by The School; or
- specific circumstances prevent The School from gathering evidence sufficient to reach a determination as to the formal complaint or allegations therein.
C. Upon a dismissal required or permitted pursuant to these provisions, The School will promptly send written notice of the dismissal and reason(s) therefore simultaneously to the parties.
VI. Exchange of Written Questions/ Hearing
A. The School is permitted, but not required, to conduct a live hearing.
- With or without a hearing, after The School has sent the investigative report to the parties and before reaching a determination regarding responsibility, the decision-maker(s) must afford each party the opportunity to submit written, relevant questions that a party wants asked of any party or witness, provide each party with the answers, and allow for additional, limited follow-up questions from each party;
- With or without a hearing, questions and evidence about the Complainant’s sexual predisposition or prior sexual behavior are not relevant, unless such questions and evidence about the Complainant’s prior sexual behavior are offered to prove someone other than the Respondent committed the conduct alleged by the Complainant, or if the questions and evidence concern specific incidents of the Complainant’s prior sexual behavior with respect to the Respondent and are offered to prove consent. The decision-maker(s) must explain to the party proposing the questions any decision to exclude a question as not relevant.
VII. Determination of Responsibility
A. The decision-maker(s) is responsible for determining whether the conduct alleged in the formal complaint constitutes a violation of this Policy and any other applicable School policies, procedures, or rules. The decision-maker(s) cannot be the same person(s) as the investigator(s), The decision-maker(s) must be impartial and unbiased, have no conflicts of interest, and have training required by Title IX.
B. The decision-maker(s) must issue a written determination regarding responsibility based on the preponderance of the evidence standard, or whether it is more likely than not the Respondent violated the School’s Title IX Policy. The written determination must include—
- identification of the allegations potentially constituting sexual harassment;
- description of the procedural steps taken by The School from the formal complaint through the determination, including any notifications to the parties, interviews with parties and witnesses, site visits, methods used to gather other evidence, and hearings held;
- findings of fact supporting the determination;
- conclusions regarding the application of The School’s code of conduct to the facts; and
- a statement of, and rationale for, the result as to each allegation, including a determination regarding responsibility, any disciplinary sanctions The School imposes on the Respondent, and whether remedies designed to restore or preserve equal access to The School’s education program or activity will be provided by the School to the Complainant; and
- The School’s procedures and permissible bases for the Complainant and Respondent to appeal.
C. The School must provide the written determination to the parties simultaneously; the determination regarding responsibility becomes final either on the date The School provides the parties with the written determination of the result of an appeal, if an appeal is filed, or if an appeal is not filed, the date on which an appeal would no longer be considered timely.
D. The Title IX Coordinator is responsible for effective implementation of any remedies.
A. Sanctions and remedies will be determined on a case-by-case basis by the decision-maker(s), where authorized to do so.
B. Sanctions: substantiated charge against a The School employee or agent will subject such employee or agent to disciplinary action, up to and including termination of employment. A substantiated charge against a student shall subject such student to disciplinary action, up to and including suspension or expulsion. The decisionmaker(s) may impose or recommend any sanction that it finds to be fair and proportionate to the violation and in accordance with The School Policy.
C. Remedies include but are not limited to, counseling, changes or modifications in scheduling, provision of additional supervision, or other actions deemed appropriate under the circumstances present in the case. The Title IX Coordinator shall be responsible for implementing proposed remedies.
IX. Informal Resolution
A. Upon the filing of a formal complaint, a Complainant who does not wish to pursue formal resolution/investigation may request a less formal proceeding, known as the “Informal Resolution”. During the Complainant’s initial intake meeting, the Title IX Coordinator will assess the severity of the alleged harassment and the potential risk of others in the school community to determine if an informal resolution may be appropriate.
B. The School may not require the parties to participate in an informal resolution process under this section and may not offer an informal resolution process unless a formal complaint is filed. The School may not require as a condition of enrollment or continuing enrollment, or employment or continuing employment, or enjoyment of any other right, waiver of the right to an investigation and adjudication of formal complaints of sexual harassment consistent with this section. However, at any time prior to reaching a determination regarding responsibility, The School may facilitate an informal resolution process, such as mediation, that does not involve a full investigation and adjudication.
C. Informal resolution cannot be used to resolve allegations involving an employee sexually harassing a student.
- The Informal Resolution requires the Title IX Coordinator to
- i. obtain the parties’ voluntary and written consent to the informal resolution process; and
- ii. provide the parties with written notice disclosing: the allegations, the requirements of the informal resolution process including the circumstances under which it precludes the parties from resuming a formal complaint arising from the same allegations, provided, however, that at any time prior to agreeing to a resolution, any party has the right to withdraw from the informal resolution process and resume the formal grievance process with respect to the formal complaint, and any consequences resulting from participating in the informal resolution process, including the records that will be maintained or could be shared.
X. Complainant Does Not Wish to Pursue any Resolution Following a Report of Sexual Harassment
A. If the Complainant does not wish to pursue formal or informal resolution and/ or requests that their report remain confidential, the Title IX Coordinator will inform the Complainant that The School’s ability to respond to the alleged sexual harassment may be limited. The Title IX Coordinator will consider the following in regard to the Complainant’s request:
- The seriousness of the alleged Sexual Harassment;
- Whether there have been other Complainants of Sexual Harassment against the same Respondent; and
- The Respondent’s right to receive information about the allegations, including the name of the Complainant.
B. The Title IX Coordinator will only initiate a formal complaint under these Procedures against the wishes of the Complainant where required by federal or state law, regulation, or rule.
C. Even if The School cannot take disciplinary action against the Respondent because the Complainant insists on confidentiality or that the complaint not be resolved, The School reserves the authority to implement supportive measures or other appropriate actions to promote a safe learning environment for the Complainant and/or the entire school community.
A. Both parties have the right to appeal from a determination regarding responsibility, and from The School’s dismissal of a formal complaint or any allegations therein, on the following bases:
- 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.
- additional bases as determined by The School.
B. As to all appeals, the School will:
- notify the other party in writing when an appeal is filed and implement appeal procedures equally for both parties;
- ensure the decision-maker(s) for the appeal is not the same person as the decision-maker(s) that reached the determination regarding responsibility or dismissal, the investigator(s), or the Title IX Coordinator;
- ensure the decision-maker(s) for the appeal does not have a conflict of interest or bias for or against Complainants or Respondents generally or an individual Complainant or Respondent and has been properly trained in Title IX;
- give both parties a reasonable, equal opportunity to submit a written statement in support of, or challenging, the outcome;
- issue a written decision describing the result of the appeal and the rationale for the result; and
- provide the written decision simultaneously to both parties.
XII. Grievance Procedure for Behavior Outside the Scope of Sexual Harassment.
The School recognizes that students have the right to request redress of complaints. In addition, the School believes that the inculcation of respect for established procedures is an important part of the educational process. Accordingly, individual and group complaints that fall outside of the definition of Sexual Harassment as it applies to Title IX, shall be recognized and processed consistent with the controlling policy or policies, as appropriate. Specifically, The School will utilize the policies and procedures outlined in our Student and Family Handbook as well as our Employee Handbook to address these types of complaints.
A. The School will maintain the following records for seven (7) years:
- Each sexual harassment investigation, including determinations, audio or video recordings, disciplinary sanctions, and any remedies provided to the Complainant;
- Any appeal records and the result of the appeal;
- Any informal resolution;
- Materials used by The School to train Title IX Coordinators investigators, decision makers, and those who facilitate informal resolution under this Policy; and
- Records of any actions, including supportive measures, taken in response to a report or formal complaint of sexual harassment.
XIV. Implementation of Policy:
A. The CEO is responsible for implementing this policy. Implementation will include, but is not limited to, the following activities:
- Education: The CEO or his or her designee will plan and implement appropriate programs to educate staff and students about Sexual Harassment, and about this policy and its procedures.
- i. Programs for staff will include mandatory training seminars or in-service programs which will reach all professional and support staff.
- ii. Programs for students will be age appropriate.
- iii. The School will ensure that individuals who serve as Title IX Coordinators, Title IX Investigators, Decision- Makers, Appeal Decision Makers, and facilitators of the informal resolution process have adequate training as required by Title IX.
- Communication: The CEO or his or her designee will implement a plan to communicate the policy and written procedures to students, parents or guardians and School employees and agents. Information about Sexual Harassment and this policy shall be distributed with such frequency and in such a form as to ensure that all students and School employees and agents are aware of the various forms that Sexual Harassment can take, The School’s prohibition of Sexual Harassment, and the procedures that are available to enforce the policy.