ACAA – SEXUAL HARASSMENT
The District is committed to a school environment which is free from sexual harassment and conducive to all students’ educational opportunities. Sexual harassment can inhibit a student’s educational opportunities and an employee’s work. Sexual harassment of students attending school in the District or students from other schools who are at a District activity, and sexual harassment of school employees, school volunteers, parents, guests, visitors and vendors of the District shall also not be tolerated and is strictly prohibited.
All students, school employees, school volunteers, parents, guests, visitors and vendors shall conduct themselves in a civil and responsible manner and in a manner consistent with school policies. This policy prohibiting sexual harassment shall apply to all students, school employees, school volunteers, parents, guests, visitors and vendors while on school property, while attending or participating in school activities, on school-owned property or on non-school property, while in any school-owned or leased vehicle, while at a school bus stop, or when in a private vehicle located on school property during school or during school activities.
The District shall investigate all reported instances involving sexual harassment. Attempts to informally or voluntarily resolve the complaint should not delay the commencement of the District’s investigation. Unless a different person is designated by the Superintendent to conduct the investigation, the school administrator of the school attendance center where the sexual harassment is alleged to have occurred is responsible for investigating the alleged sexual harassment. Allegations of sexual harassment may also be reported by the administration to other authorities, including but not limited to law enforcement.
The District will maintain confidentiality to the maximum extent possible under the circumstances. However, a person reporting sexual harassing conduct must understand that should the administrator who is investigating the report determine there is reasonable cause to suspect that sexual harassment did occur which could result in administrative discipline or a referral to the School Board, the person alleged to have sexually harassed another person may have the right to know the identity of the person(s) making the report in order that he/ she may have an opportunity to defend himself/herself.
The District strictly prohibits retaliation against any person because he or she has made a report, testified, assisted, or participated in the investigation of a report of alleged sexual harassment. Retaliation includes, but is not limited to, any form of verbal or physical reprisal or adverse pressure. The person(s) alleged to have sexually harassed another person shall not directly or indirectly (such as through a third person) harass, pressure, or retaliate against any other person because of the complaint being reported. A violation of this provision may lead to separate disciplinary action based on the retaliation. Any person who believes he or she is being subjected to retaliation because of his or her involvement with a sexual harassment report should immediately contact a school administrator.
Students who violate this policy shall be subject to appropriate disciplinary action, up to and including expulsion. Employees who violate this policy shall be subject to appropriate disciplinary action, up to and including termination of employment. School volunteers, parents, guests, visitors, and vendors who violate this policy may be prohibited from being on school property.
Complaints against school employees and complaints related to bullying are addressed through other school district policies and not through this policy.
SECTION 2 – SEXUAL HARASSMENT DEFINED
Sexual harassment is defined as sexually oriented words and actions which tend to annoy, alarm or be physically or verbally abusive toward another person and which serve no legitimate or valid purpose regardless of the intent of the person accused of the sexually harassing conduct. Not all harassment falls within the definition of sexual harassment (i.e., harassment that is of a sexual nature). Other laws, regulations and policies also prohibit inappropriate conduct and provide a means for addressing inappropriate conduct should it occur.
Sexual harassment is a specific type of harassment which is prohibited under this policy. Examples of sexual harassment include, but not limited to:
1. Unwelcome sexual flirtations, advances or propositions;
2. Verbal comments, jokes, or abuse of a sexual nature;
3. Graphic verbal comments about an individual’s body;
4. Sexually degrading words used to describe an individual;
5. Displaying pornographic material;
6. Physical contact or language of a sexually suggestive nature.
SECTION 3 – SEXUAL HARASSMENT REPORTING PROCEDURE
Any individual who believes that he or she has been or is being subjected to sexual harassment or has reason to suspect another person has been or is being subjected to sexual harassment should immediately report it to a teacher, guidance counselor, or school administrator. The report may be made verbally or in writing. A report may be made anonymously, although disciplinary action may not be based solely on an anonymous report. If disciplinary action is being requested, the individual reporting the sexual harassment will be asked to either submit a signed written complaint or sign a completed Sexual Harassment Report Form, Exhibit ACAA-E(1), verifying the accuracy of its content. The written complaint or Sexual Harassment Report Form must include the following:
the date the written complaint was filed or the Sexual Harassment Report Form was completed,
the school employee receiving the complaint (if applicable),
the name of the person reporting the sexual harassment,
the address/phone # of the person reporting the sexual harassment,
the specific conduct or nature of the sexual harassment complaint including the person(s) alleged to have sexually harassed the complaining party or another person, the date(s) and location where the conduct occurred, witnesses, etc.,
the date the school employee completed the form (if applicable),
the date and signature of the person reporting the sexual harassment .
If the signed written complaint was given to a teacher or guidance counselor, or if the Sexual Harassment Report Form was completed by a teacher or guidance counselor, the teacher or guidance counselor shall forward the complaint or Sexual Harassment Report Form to the teacher’s building school administrator.
SECTION 4 – Procedure for Addressing Sexual Harassment Complaints
STEP 1: School Administrator Investigation and Determination.
Should there be a report which alleges a District student, employee, school volunteer, parent, guest, visitor or vendor has been subjected to sexual harassment, an investigation into the alleged sexual harassment will be initiated. The District’s investigation may include, but is not limited to, such things as interviewing individuals with actual or possible knowledge regarding the conduct in question, identifying facts related to the conduct in question, identifying when and over what period of time the conduct is to have occurred, determining whether the conduct negatively affects the educational opportunities or employment condition of the victim, identifying prior history of a similar nature by any of the individuals involved, and attempting to obtain possible verification from other persons. The investigation by the school administrator responsible for the investigation shall be conducted promptly and completed in a reasonable time frame given the nature of the complaint. Unless the nature of the complaint and investigation dictate otherwise, the investigation should be completed and determination made by the school administrator on the merits of the complaint within thirty (30) calendar days of receipt of the complaint.
The person alleged to have sexually harassed another person will be notified that a complaint has been filed pursuant to this policy and that the complaint is being investigated. The name of the person making the complaint will not be disclosed to the person alleged to have violated this policy unless and until the investigation results in a determination that there is reasonable cause to suspect that sexual harassment did occur.
Upon reasonable suspicion by the school administrator responsible for the investigation that the allegation of sexual harassment may be true, the employee, student or third person accused of sexual harassment conduct shall be notified in writing that reasonable suspicion exists that the complaint may be valid, including a statement of the facts supporting the determination that reasonable suspicion exists, and the name of the alleged victim.
The person alleged to have sexually harassed another person in violation of this policy shall be afforded an opportunity to respond to the allegation of sexual harassment but is not required to submit a response.
Pending the outcome of the investigation the school administrator responsible for conducting the investigation may take such action consistent with school policy and state law as deemed appropriate in order to facilitate the investigation and protect the rights of all persons involved. If there is reasonable suspicion to believe that a third person sexually harassed a student, employee or guest while at school or at a school activity on non-school property in violation of this policy, the administration may prohibit that person from being on school property or at school activities.
At the conclusion of the investigation, the school administrator shall make a determination as to whether sexual harassment did occur or whether the facts are insufficient to determine that a determination that sexual harassment occurred. The complainant and the person alleged to have sexually harassed another person will receive written notice of the school administrator’s determination. Should the school administrator conclude that sexual harassment did occur, the school administrator shall take such action as deemed appropriate, which may include imposing disciplinary consequences on the person found to have violated this policy prohibiting sexual harassment.
STEP 2: Appeal to the Superintendent
The following procedure shall be used to address an appeal of the school administrator’s decision in Step 1 to the Superintendent:
1. If either party is not satisfied with the school administrator’s decision, or if the school administrator does not render a written decision within fourteen (14) calendar days of the request for a decision on the merits of the complaint, that party may appeal to the Superintendent by filing form ACAA-E(2). The appeal must be filed within ten (10) calendar days of receipt of the school administrator’s written decision, or ten (10) days of the deadline for the school administrator’s written decision, whichever comes first. The appealing party must attach the school administrator’s written decision.
2. Within fourteen (14) calendar days from the date the appeal was filed, the Superintendent shall render a decision in writing. All parties shall receive copies of the decision. The Superintendent shall uphold, reverse, modify the school administrator’s decision, or the Superintendent may refer the matter back to the school administrator for further investigation and supplemental decision which decision may restate, modify or reverse the school administrator’s initial decision. A supplemental decision by the school administrator after a referral back to the school administrator is subject to appeal to the Superintendent. The time frame for rendering a decision by the Superintendent may be extended by the Superintendent for good cause and upon written notification to all parties, which notification shall identify the reason for the extension and the date on or before which the decision shall be rendered.
STEP 3: Appeal to the Board
If either party is not satisfied with the Superintendent’s decision, or if the Superintendent does not render a written decision within fourteen (14) calendar days of the receipt of the appeal, that party may appeal to the School Board by filing with the Business Manager using Form ACAA-E(3) within ten (10) calendar days of receipt of the Superintendent’s written decision, or ten (10) days of the deadline for the Superintendent’s written decision, whichever comes first. The appeal shall be in writing and the appealing party must attach to the appeal the school administrator’s written decision, the appeal to the Superintendent, and the Superintendent’s written decision or notice of the Superintendent’s failure to render a written decision.
The following procedure shall be used by the Board to address an appeal of the Superintendent’s decision on the merits related to a sexual harassment complaint:
1. Upon receipt by the Board President/Chairperson of an appeal by the Complainant, a copy of the appeal shall be given to the person alleged to have violated the sexual harassment policy.
2. Upon receipt of an appeal, the Board shall at its next meeting schedule a date, time and location for the appeal hearing.
3. The following procedure shall be applicable at the appeal hearing before the Board:
A. The Board shall appoint a board member or a person who is not an employee of the school district as the hearing officer;
B. Within thirty (30) calendar days of an appeal being filed with the Board, the Board shall conduct a hearing in executive session;
C. The Complainant, person alleged to have violated the bullying policy, and Superintendent each have the right to be represented at the hearing;
D. The Board shall make a verbatim record of the hearing by means of an electronic or mechanical device or by court reporter. This record and any exhibits must be sealed and must remain with the hearing officer until the appeal process has been completed;
E. The issue on appeal is whether the Superintendent’s decision should be upheld, reversed or modified;
F. All parties shall be given the opportunity to make an opening statement, with the appealing party being given the first opportunity, followed by the other party, and then the Superintendent;
G. The appealing party shall present his or her case first, and the other party shall then present his or her case. Both parties shall have the opportunity to ask questions of the other’s witnesses. The hearing officer and board members may ask questions of any witness;
H. The Superintendent shall present the basis of his/her decision which led to the appeal. Both parties shall have the opportunity to ask the Superintendent questions. The hearing officer and board members may also ask questions of the Superintendent;
I. Unless a witness is a party to the appeal, witnesses may be present only when testifying unless the hearing officer rules otherwise. All witnesses must take an oath or affirmation administered by the School Board president, hearing officer or other person authorized by law to take oaths and affirmations;
J. The hearing officer shall admit all relevant evidence. The hearing officer may limit unproductive or repetitious evidence. The strict rules of evidence do not apply. Moran v. Rapid City Area School Dist., 281 N.W.2d 595. 602 (S.D. 1979).
K. All parties shall be given the opportunity to make a closing statement, with the appealing party having the first opportunity, followed by the other party, and then the Superintendent. The appealing party shall be given the opportunity for a brief rebuttal;
L. After the evidentiary hearing, the Board shall continue to meet in executive session for deliberations. No one other than the hearing officer may meet with the Board during deliberations. The Board may seek advice during deliberation from an attorney who has not represented any of the parties to the hearing. Consultation with any other person during deliberation may occur only if a representative of both parties and Superintendent are present. The Board may, in its sole discretion, continue the proceedings and make a final decision on the appeal at a later date. Within twenty (20) calendar days of the hearing, the Board shall render its decision and issue its written Findings of Fact, Conclusions of Law and Decision. The time frame for rendering a decision may be extended by the Board President for good cause and upon written notification to both parties and the Superintendent, and the notification shall identify the reason for the extension and the date on or before which the decision shall be rendered;
M. The decision of the School Board must be based solely on the evidence presented at the hearing and must be formalized by a motion made in open meeting. The Board will convene in open session and a motion to uphold, reverse, or modify the Superintendent’s decision shall be made and voted upon. Findings of Fact, Conclusions of Law and Decision, consistent with the Board motion shall be in writing and approved by the Board. Both parties, the school administrator and the Superintendent will receive copies after the Findings of Fact, Conclusions of Law and Decision are approved by the Board.
N. Following the Board hearing, should the Board determine there has been a violation of this policy prohibiting sexual harassment, Board action may include but is not limited to the following: (1) suspend or expel a student from any or all school programs, including but not limited to classes, extracurricular activities, or attendance at school activities; (2) pursuant to statute, reprimand, suspend without pay, or terminate the contract of an employee, or (3) prohibit a third person from being on school property or at school activities for such time as may be determined by the Board.
O. If either party is dissatisfied with the Board’s decision, that party may appeal the decision by filing an appeal pursuant to law.