DRAFT 106.1R4 Grievance Procedure

This regulation discusses the steps required in handling complaints of sex discrimination when the allegation is that an individual(s) engaged in conduct that constitutes sex discrimination. 

The following individuals can make a complaint of sex discrimination including complaints of sex-based harassment, and request the District to investigate and make a decision about alleged Title IX violations:  a complainant, a parent, guardian or other authorized legal representative with the legal right to act on behalf of the complainant, the Title IX Coordinator. 

The following individuals can make complaints of sex discrimination but not sex-based harassment: any student or employee, any person other than a student or employee who was participating or attempting to participate in the recipient’s education program or activity at the time of the alleged sex discrimination.

The district’s designated Title IX Coordinator is Linda Russell, Director of Human Resources, 641-842-6551, linda.russell@kcsd.k12.ia.us.

The District will treat complainants and respondents equitably.  The District requires that the Title IX Coordinator and any other District official involved in facilitating these grievance procedures not have a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent.  The District presumes that the respondent is not responsible for the alleged sex discrimination until a determination is made at the conclusion of its grievance procedures.

1. Timeframes for Investigation, Decision and Appeal

The District has established the following timeframes for the major stages of the grievance procedures: Generally the District will attempt to complete the investigation and make a determination regarding responsibility within twenty (20) school days of receipt of a complaint. However, the District may alter or extend this time with notice to both parties. The time it takes to complete the resolution of a sexual harassment complaint may vary based on the complexity of the investigation and the severity and extent of the alleged conduct, as well as on whether there is a parallel criminal investigation, or if school breaks occur during the process.  The Investigator will issue a written decision to all parties.

The complaint is closed after the Investigator has issued the written decision, unless within 10 calendar days after receiving the decision, either party appeals the decision to the superintendent by making a written request detailing why they believe the decision should be reconsidered. Within 30 working days, the superintendent shall affirm, reverse, amend the decision, or direct the Investigator to gather additional information. The superintendent shall notify the complainant, respondent, and the Investigator of the decision within 5 working days of the decision.

The decision of the superintendent shall be final.

The District has also established the following process that allows for the reasonable extension of timeframes on a case-by-case basis for good cause with notice to the parties that includes the reason for the delay: the Investigator will determine whether, based on the complexity of the issues or quantity of the evidence to review, an extension is warranted.  If an extension is warranted, the Title IX Coordinator or Investigator will notify all parties to the complaint and provide a reasonable amended timeframe by which a decision will be issued.

II.             Privacy and Neutrality of the Grievance Process

The District will take reasonable steps, including requiring the parties to protect the privacy of the parties and witnesses during its grievance procedures, however, absolute confidentiality for the parties cannot be guaranteed. These steps will not restrict the ability of the parties to obtain and present evidence, including by speaking to witnesses; consult with their family members, confidential resources, or advisors; or otherwise prepare for or participate in the grievance procedures. The parties cannot engage in retaliation, including against witnesses.

The District will objectively evaluate all evidence that is relevant and not otherwise impermissible including both inculpatory and exculpatory evidence. Credibility determinations will not be based on a person’s status as a complainant, respondent, or witness.

The following types of evidence, and questions seeking that evidence, are impermissible (i.e., will not be accessed or considered, except by the District to determine whether one of the exceptions listed below applies; will not be disclosed; and will not otherwise be used), regardless of whether they are relevant:

• Evidence that is protected under a privilege recognized by Federal or State law or evidence provided to a confidential employee, unless the person to whom the privilege or confidentiality is owed has voluntarily waived the privilege or confidentiality;
• A party’s or witness’s records that are made or maintained by a physician, psychologist, or other recognized professional or paraprofessional in connection with the provision of treatment to the party or witness, unless The District obtains that party’s or witness’s voluntary, written consent for use in its grievance procedures; and
• Evidence that relates to the complainant’s sexual interests or prior sexual conduct, unless evidence about the complainant’s prior sexual conduct is offered to prove that someone other than the respondent committed the alleged conduct or is evidence about specific incidents of the complainant’s prior sexual conduct with the respondent that is offered to prove consent to the alleged sex-based harassment. The fact of prior consensual sexual conduct between the complainant and respondent does not by itself demonstrate or imply the complainant’s consent to the alleged sex-based harassment or preclude determination that sex-based harassment occurred.

III.    Notice of Allegations:

Upon initiation of the District’s Title IX grievance procedures, The District will notify the parties of the following:

• The District’s Title IX grievance procedures and any informal resolution process;

• Sufficient information available at the time to allow the parties to respond to the allegations, including the identities of the parties involved in the incident(s), the conduct alleged to constitute sex discrimination, and the date(s) and location(s) of the alleged incident(s);
• Retaliation is prohibited; and
• The parties are entitled to an equal opportunity to access the relevant and not otherwise impermissible evidence or an accurate description of this evidence. [If the District provides a description of the evidence: The parties are entitled to an equal opportunity to access the relevant and not otherwise impermissible evidence upon the request of any party.]

If, in the course of an investigation, the District decides to investigate additional allegations of sex discrimination by the respondent toward the complainant that are not included in the notice provided or that are included in a complaint that is consolidated, the District will notify the parties of the additional allegations.

IV.  Investigation:

The Title IX Coordinator will designate an Investigator to conduct an investigation into any formal complaint. The Investigator must be appropriately trained and 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.

The District will provide for adequate, reliable, and impartial investigation of complaints.

The burden is on the District—not on the parties—to conduct an investigation that gathers sufficient evidence to determine whether sex discrimination occurred.

The District will provide an equal opportunity for the parties to present fact witnesses and other inculpatory and exculpatory evidence that are relevant and not otherwise impermissible.

The District will review all evidence gathered through the investigation and determine what evidence is relevant and what evidence is impermissible regardless of relevance.

The District will provide each party with an equal opportunity to access the evidence that is relevant to the allegations of sex discrimination and not otherwise impermissible, in the following manner:

• The District will provide an equal opportunity to access either the relevant and not otherwise impermissible evidence, or an accurate description of this evidence. If the District provides a description of the evidence: the District will provide the parties with an equal opportunity to access the relevant and not otherwise impermissible evidence upon the request of any party;
• The District will provide a reasonable opportunity to respond to the evidence or the accurate description of the evidence; and
• The District will take reasonable steps to prevent and address the parties’ unauthorized disclosure of information and evidence obtained solely through the grievance procedures. Disclosures of such information and evidence for purposes of administrative proceedings or litigation related to the complaint of sex discrimination are authorized.

The District will provide a process that enables the Investigator to question parties and witnesses to adequately assess a party’s or witness’s credibility to the extent credibility is both in dispute and relevant to evaluating one or more allegations of sex discrimination. The District will provide to the parties prior written notice of the date, time, and location, of any interview of that party.  Advisors may attend the interview in an observational capacity only. Advisors will not be permitted to ask questions, intervene, or answer on behalf of any party or witness.

V.      Determination of Responsibility:

Following an investigation and evaluation of all relevant and not otherwise impermissible evidence, The District will:

• Use the preponderance of the evidence standard of proof to determine whether sex discrimination occurred. The standard of proof requires the decisionmaker to evaluate relevant and not otherwise impermissible evidence for its persuasiveness. If the decisionmaker is not persuaded under the applicable standard by the evidence that sex discrimination occurred, whatever the quantity of the evidence is, the decisionmaker will not determine that sex discrimination occurred.
• Notify the parties in writing of the determination whether sex discrimination occurred under Title IX including the rationale for such determination, and the procedures and permissible bases for the complainant and respondent to appeal, if applicable;
• Not impose discipline on a respondent for sex discrimination prohibited by Title IX unless there is a determination at the conclusion of the grievance procedures that the respondent engaged in prohibited sex discrimination.
• If there is a determination that sex discrimination occurred, the Title IX Coordinator will, as appropriate:
  
  • Coordinate the provision and implementation of remedies to a complainant and other people the District identifies as having had equal access to the District education program or activity limited or denied by sex discrimination;
  • Coordinate the imposition of any disciplinary sanctions on a respondent, including notification to the complainant of any such disciplinary sanctions; and
  • Take other appropriate prompt and effective steps to ensure that sex discrimination does not continue or recur within the District education program or activity.
• Comply with the grievance procedures before the imposition of any disciplinary sanctions against a respondent; and
• Not discipline a party, witness, or others participating in the grievance procedures for making a false statement or for engaging in consensual sexual conduct based solely on the determination whether sex discrimination occurred.

VI.     Dismissal and Appeal of a Complaint:

The District may dismiss a complaint of sex discrimination if:

• The District is unable to identify the respondent after taking reasonable steps to do so;
• The respondent is not participating in The District education program or activity and is not employed by The District;

• The complainant voluntarily withdraws any or all of the allegations in the complaint, the Title IX Coordinator declines to initiate a complaint, and The District determines that, without the complainant’s withdrawn allegations, the conduct that remains alleged in the complaint, if any, would not constitute sex discrimination under Title IX even if proven; or
• The District determines the conduct alleged in the complaint, even if proven, would not constitute sex discrimination under Title IX. Before dismissing the complaint, The District will make reasonable efforts to clarify the allegations with the complainant.

Upon dismissal, The District will promptly notify the complainant of the basis for the dismissal. If the dismissal occurs after the respondent has been notified of the allegations, then The District will also notify the respondent of the dismissal and the basis for the dismissal promptly following notification to the complainant, or simultaneously if notification is in writing.

The District will notify the complainant that a dismissal may be appealed and will provide the complainant with an opportunity to appeal the dismissal of a complaint. If the dismissal occurs after the respondent has been notified of the allegations, then The District will also notify the respondent that the dismissal may be appealed. Dismissals may be appealed on the following bases:

• Procedural irregularity that would change the outcome;
• New evidence that would change the outcome and that was not reasonably available when the dismissal was made; and
• The Title IX Coordinator, investigator, or decisionmaker had a conflict of interest or bias for or against complainants or respondents generally or the individual complainant or respondent that would change the outcome.

If the dismissal is appealed, The District will:

• Notify the parties of any appeal, including notice of the allegations, if notice was not previously provided to the respondent;
• Implement appeal procedures equally for the parties;
• Ensure that the decisionmaker for the appeal did not take part in an investigation of the allegations or dismissal of the complaint;
• Ensure that the decisionmaker for the appeal has been trained consistent with the Title IX regulations;
• Provide the parties a reasonable and equal opportunity to make a statement in support of, or challenging, the outcome; and
• Notify the parties of the result of the appeal and the rationale for the result.

When a complaint is dismissed, The District will, at a minimum:

• Offer supportive measures to the complainant as appropriate;
• If the respondent has been notified of the allegations, offer supportive measures to the respondent as appropriate; and
• Take other prompt and effective steps, as appropriate, through the Title IX Coordinator to ensure that sex discrimination does not continue or recur within The District education program or activity.

VII.     Appeal of Determinations, if offered: