BOCES TITLE IX PROCEDURES
Under Title IX, Sexual harassment means conduct on the basis of sex that satisfies one or more of the following:
- An employee of the recipient conditioning the provision of an aid, benefit, or service of the recipient on an individual’s participation in unwelcome sexual conduct;
- 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 recipient’s education program or activity; or
- “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).
If contacted by a potential alleged victim of sexual harassment, the Title IX Coordinator will explain the process for filing a formal complaint, which initiates an investigation into the sexual harassment allegations.
A formal complaint is a document filed by an alleged victim or signed by the Title IX Coordinator alleging sexual harassment against an individual and requesting that the BOCES investigate the allegation of sexual harassment. The formal complaint must be a written document but need not be in any specific form.
The BOCE’s Title IX Coordinator will promptly contact the alleged victim of sexual harassment and discuss the availability of supportive measures regardless of whether the alleged victim chooses to file a formal complaint or not.
Potential supportive measures shall include:
- Extensions of deadlines or other adjustments,
- Modifications of work schedules,
- Mutual restrictions on contact between the parties,
- Changes in work locations,
- Leaves of absence,
- Increased security and monitoring of certain areas.
The Title IX coordinator shall discuss and determine the complainant’s wishes with respect to supportive measures.
The formal complaint investigation and process will only be triggered when the complainant files a formal complaint.
The BOCES will investigate the complaint, and make determinations regarding a complaint's allegations using a preponderance of evidence standard.
The Title IX Coordinator, investigator, decision-maker or facilitator of an informal resolution process, if applicable, shall not have a conflict of interest or bias for or against alleged victims or the accused. Any such individual with a conflict of interest or bias shall be required to recuse himself or herself.
The roles of Title IX Coordinator, investigator, and decision-maker shall be held by different persons.
- Throughout the Title IX process BOCES will, among other things:
- Treat alleged victims and those accused equitably.
- Perform an objective evaluation of all available evidence.
- Presume that the accused is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process.
- Provide reasonably prompt time frames for the conclusion of the grievance process, appeals and informal resolution process, if available.
- Describe the range of possible disciplinary sanctions and remedies or list the possible disciplinary sanctions and remedies that the BOCES may implement.
- Ensure that no information protected by a legal privilege such as the attorney-client privilege may be used for any purpose or be sought through disclosure unless the person holding the privilege has waived such privilege.
Upon receipt of a formal complaint, BOCES will provide written notice to the alleged victim and the accused in sufficient time to allow the accused to prepare a response before an initial interview. The written notice shall be issued no less than five (5) calendar days prior to the initial interview.
The notice to the alleged victim and accused will include, among other items:
- Information regarding the BOCE’s grievance process and the BOCE’s informal resolution process.
- The conduct allegedly constituting sexual harassment, and if known, the identities of the parties involved in the incident, as well as the date and location of the alleged incident.
- A statement that the accused is presumed not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process.
- Notification that the parties may inspect and review evidence.
- Policies regarding knowingly making false statements or submitting false information during the grievance process.
- Notification that after commencing an investigation of a formal complaint, BOCES may decide to also investigate allegations that were not included in the initial notice to the parties. In that case, the BOCES will provide notice of the additional allegations to the parties.
Upon receipt of a formal complaint, the BOCES Title IX Coordinator will assign an investigator.
The assigned BOCES harassment investigator will:
- Gather additional information through interviews of the complainant, respondent, and witnesses and synthesize the information in a report.
- The investigator has the discretion to determine the relevance of any witness or other evidence and may exclude information in preparing the investigation report if the information is irrelevant, immaterial, or more prejudicial than informative.
- Produce a written report that contains the relevant information and facts learned during the investigation, and may include direct observations and reasonable inferences drawn from the facts and any consistencies or inconsistencies between the various sources of information. The investigator may exclude statements of personal opinion by witnesses and statements as to general reputation for any character trait, including honesty. The investigator will not make a finding or recommended finding of responsibility. The investigator’s report will include credibility assessments based on their experience with the complainant, respondent, and witnesses, as well as the evidence provided.
- The investigator’s written report will be provided to both parties and their representatives, if any.
During the formal complaints process, the parties shall have an equal opportunity to:
- Present witnesses and to gather and present relevant evidence.
- Have others present during any grievance proceeding, including the representative of their choice who may be, but is not required to be, an attorney.
- Inspect and review all evidence obtained as part of the investigation that is directly related to the allegations in the complaint.
Dismissal of a formal complaint will only occur when:
- The conduct alleged in the formal complaint would not constitute sexual harassment even if proved, or did not occur in the BOCES education program or activity.
- Such a dismissal does not preclude action under another provision of the recipient’s code of conduct.
- 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 BOCES; or specific circumstances prevent the BOCES from gathering evidence sufficient to reach a determination as to the formal complaint or allegations therein.
- If a complaint is dismissed, the decision-maker will send written notice of the dismissal and reason(s) therefor simultaneously to the parties
Prior to issuing a written determination, the decision-maker(s) will 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. 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 that 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.
Following the question and answer process and upon receipt of the investigative report, the decision-maker shall issue a written determination. The decision-maker’s written determination shall address:
- The allegations,
- The procedural steps taken in the case at hand,
- The findings of fact,
- The applicability of code of conduct and local rules to the facts, and
- The result with corresponding rationale for each addressed allegation, including a determination of responsibility, disciplinary sanctions, and whether remedies to restore or preserve access will be provided.
Following a decision-maker’s written determination, either party may appeal the written determination or dismissal of the complaint.
An appeal must be submitted to the Title IX Coordinator within 7 calendar days of receipt of the determination or dismissal (as applicable) and must identify all information a party wishes to have considered on appeal. Any appeal statement will be shared with the other party, who will have 48 hours to submit a response to the Title IX Coordinator. The appeal and any response will be considered by a decision-maker other than the decision-maker who issued the determination or dismissal that is being appealed.
Grounds for an appeal are limited to the following:
- Procedural irregularity that affected the outcome of the matter; and/or
- 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/or
- The Title IX Coordinator, investigator(s), or any decision-maker 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; and/or
- The sanction is inappropriate.
A decision responding to the written appeal will be issued to the parties and the Title IX Coordinator within 30 calendar days.