Current through Register Vol. 24-24, December 15, 2024
(1)
Purpose.
Highline College recognizes its responsibility to investigate,
resolve, implement corrective measures, and monitor the educational environment
and workplace to stop, remediate, and prevent discrimination on the basis of
sex, as required by Title IX of the Education Amendments Act of 1972, Title VII
of the Civil Rights Act of 1964, the Violence Against Women Reauthorization
Act, and Washington state's law against discrimination, and their implementing
regulations. To this end, Highline College has enacted the Highline College
Policy XXXX - Discrimination, Harassment and Retaliation and adopted the
following Title IX grievance procedure for receiving and investigating sexual
harassment allegations arising during educational programs and activities. Any
individual found responsible for violating the college's Title IX policy is
subject to disciplinary action up to and including dismissal from the college's
educational programs and activities and/or termination of employment.
Application of this Title IX grievance procedure is restricted
to allegations of "sexual harassment," as that term is defined in 34 C.F.R.
Part 106.30 . Nothing in this procedure limits or otherwise restricts the
college's ability to investigate and pursue discipline based on alleged
violations of other federal, state and local laws, their implementing
regulations, and other college policies prohibiting gender discrimination
through processes set forth in the college's code of student conduct,
employment contracts, discrimination, harassment and retaliation policy, and
collective bargaining agreements.
(2)
Definitions.
For purposes of this Title IX grievance procedure, the
following terms are defined as follows:
(a)
Consent means knowing,
voluntary, and clear permission by word or action, to engage in mutually agreed
upon sexual activity. Each party has the responsibility to make certain that
the other has consented before engaging in the activity. For consent to be
valid, there must be at the time of the act of sexual intercourse or sexual
contact actual words or conduct indicating freely given agreement to have
sexual intercourse or sexual contact.
A person cannot consent if they are unable to understand what
is happening or are disoriented, helpless, asleep or unconscious for any
reason, including due to alcohol or other drugs. An individual who engages in
sexual activity when the individual knows, or should know, that the other
person is physically or mentally incapacitated has engaged in noncon-sensual
conduct.
Intoxication is not a defense against allegations that an
individual has engaged in nonconsensual sexual conduct.
(b)
Complainant - An individual
who is alleged to be the victim of conduct that could constitute sexual
harassment.
(c)
Respondent - An individual who has been reported to be the
perpetrator of conduct that could constitute sexual harassment.
(d)
Formal complaint - A writing
submitted by the complainant or signed by the Title IX coordinator alleging
sexual harassment against a respondent and requesting that the college conduct
an investigation.
(e)
Educational program or activity includes locations, events, or
circumstances over which the college exercised substantial control over both
the respondent and the context in which the alleged sexual harassment occurred.
It also includes any building owned or controlled by a student organization
officially recognized by the college.
(f)
Grievance procedure - The
process the college uses to initiate, informally resolve, and/or investigate
allegations that an employee or student has violated Title IX provisions
prohibiting sexual harassment.
(g)
Supportive measures are nondisciplinary, nonpunitive
individualized services offered as appropriate, as reasonably available, and
without fee or charge to the complainant or the respondent regardless of
whether the complainant or the Title IX coordinator has filed a formal
complaint. Supportive measures restore or preserve a party's access to the
college's educational programs and activities without unreasonably burdening
the other party, as determined through an interactive process between the Title
IX coordinator and the party. Supportive measures include measures designed to
protect the safety of all parties and/or the college's educational environment
and/or to deter sexual harassment or retaliation. Supportive measures may
include, but are not limited to:
(i)
Counseling and other medical assistance;
(ii) extensions of deadlines or other
course-related adjustments;
(iii)
modifications of work or class schedules;
(v) increased security or monitoring of
certain areas of campus; and
(vi)
imposition of orders prohibiting the parties from initiating contact with one
another in housing or work situations at Highline College as well as at
college-sponsored events or activities. Determinations about whether to impose
a one-way no contact order must be made on a case-by-case basis. If supportive
measures are not provided, the Title IX coordinator must document in writing
why this was clearly reasonable under the circumstances.
(h)
Summary suspension means an
emergency suspension of a student respondent pending investigation and
resolution of disciplinary proceedings pursuant to the procedure and standards
set forth in WAC
132I-125-350.
(i)
Sexual harassment - For
purposes of these Title IX grievance procedures, sexual harassment occurs when
a respondent engages in the following discriminatory conduct on the basis of
sex:
(i) Quid pro quo harassment. A college
employee conditioning the provision of an aid, benefit, or service of the
college on an individual's participation in unwelcome sexual conduct.
(ii) Hostile environment. Unwelcome conduct
that a reasonable person would find to be so severe, pervasive, and objectively
offensive that it effectively denies a person equal access to the college's
educational programs or activities or college employment.
(iii) Sexual assault. Sexual assault includes
the following conduct:
(A) Nonconsensual
sexual intercourse. Any actual or attempted sexual intercourse (anal, oral, or
vaginal), however slight, with any object or body part, by a person upon
another person, that is without consent and/or by force. Sexual intercourse
includes anal or vaginal penetration by a penis, tongue, finger, or object, or
oral copulation by mouth to genital contact or genital to mouth
contact.
(B) Nonconsensual sexual
contact. Any actual or attempted sexual touching, however slight, with any body
part or object, by a person upon another person that is without consent and/or
by force. Sexual touching includes any bodily contact with the breasts, groin,
mouth, or other bodily orifice of another individual, or any other bodily
contact in a sexual manner.
(C)
Incest. Sexual intercourse or sexual contact with a person known to be related
to them, either legitimately or illegitimately, as an ancestor, descendant,
brother, or sister of either wholly or half related. Descendant includes
stepchildren and adopted children under the age of eighteen.
(D) Statutory rape. Consensual intercourse
between a person who is eighteen years of age or older, and a person who is
under the age of sixteen.
(E)
Domestic violence. Physical violence, bodily injury, assault, the infliction of
fear of imminent physical harm, sexual assault, or stalking committed by a
person with whom the victim shares a child in common, by a person who is
cohabitating with or has cohabitated with the victim as a spouse, by a person
similarly situated to a spouse of the victim under the domestic or family
violence laws of the state of Washington, or by any other person against an
adult or youth victim who is protected from that person's acts under the
domestic or family violence laws of the state of Washington,
RCW
26.50.010.
(F) Dating violence. Physical violence,
bodily injury, assault, the infliction of fear of imminent physical harm,
sexual assault, or stalking committed by a person:
(I) Who is or has been in a social
relationship of a romantic or intimate nature with the victim; and
(II) Where the existence of such a
relationship shall be determined based on a consideration of the following
factors:
(aa) The length of the
relationship;
(bb) The type of
relationship; and
(cc) The
frequency of interaction between the persons involved in the
relationship.
(G) Stalking. Engaging in a course of conduct
directed at a specific person that would cause a reasonable person to:
(I) Fear for their safety or the safety of
others; or
(II) Suffer substantial
emotional distress.
(j)
Title IX administrators are
the Title IX coordinator, Title IX investigators, the student conduct manager,
student conduct committee members, deputy Title IX coordinator, deputy safety
coordinator, hearing officer, employee disciplinary officer, and
college-provided advisors assigned to the parties by the college during Title
IX disciplinary proceedings.
(k)
Title IX coordinator is responsible for processing Title IX
complaints and conducting and/or overseeing formal investigations and informal
resolution processes under this grievance procedure. Among other things, the
Title IX coordinator is responsible for:
(i)
Accepting and processing all Title IX reports, referrals, and formal
complaints.
(ii) Executing and
submitting a formal complaint when appropriate and necessary.
(iii) Handling requests for
confidentiality.
(iv) Determining
during the grievance procedure:
(A) Whether a
formal complaint should be dismissed either in whole or in part, and if
so;
(B) Providing notice to both
parties about why dismissal was necessary or desirable; and
(C) Referring the complaint to the
appropriate disciplinary authority for proceedings outside the jurisdiction of
Title IX.
(v)
Maintaining accurate records of all complaints, reports, and referrals, and
retaining investigation files, complaints, reports, and referrals in compliance
with the applicable records retention schedules or federal or state law,
whichever is longer.
(vi) Assigning
and overseeing investigations.
(vii) Engaging in an interactive process with
both parties to identify and provide supportive measures that ensure during the
investigation and disciplinary processes that the parties have equitable access
to educational programs and activities and are protected from further
discrimination or retaliation.
(viii) Upon completion of an investigation,
issuing or overseeing the issuance of a final investigation report to the
parties and the appropriate disciplinary authority in compliance with this
grievance procedure.
(ix)
Recommending nondisciplinary corrective measures to stop, remediate, and/or
prevent recurrence of discriminatory conduct to disciplinary authorities and
other college administrators.
(3)
Principles for Title IX grievance
procedure.
(a) Respondent shall be
presumed not responsible for the alleged conduct unless or until a
determination of responsibility is reached after completion of the grievance
and disciplinary processes.
(b)
Before imposing discipline, the college is responsible for gathering and
presenting evidence to a neutral and unbiased decision maker establishing
responsibility for a Title IX violation by a preponderance of the
evidence.
(c) The college shall
treat both the complainant and respondent equitably by providing complainant
with remedies against respondent who has been found responsible for sexual
harassment through application of the institution's Title IX grievance and
applicable Title IX disciplinary procedures and by providing respondent with
Title IX procedural safeguards contained in this Title IX grievance procedures
and in the applicable Title IX disciplinary procedures.
(d) The investigator shall base investigation
results on all relevant evidence, including both exculpatory and inculpatory
evidence.
(e) Formal and informal
resolutions will be pursued within reasonably prompt time frames with
allowances for temporary delays and extensions for good cause shown. The Title
IX coordinator or designee will respond to reports of sexual harassment within
three business days. It is expected that complaints addressed through an
informal process will be resolved within ninety days. It is expected that
complaints addressed through the formal investigation and hearing process will
be resolved in one hundred five days. Grounds for temporary delay include, but
are not limited to, breaks in the academic calendar, unusual circumstances
where employees are unable to work on campus, weather conditions, a natural
disaster, or lack of participation from the complainant or respondent. Good
cause supporting a request for an extension includes, but is not limited to: A
college party, a party's advisor or a witness being unavailable, concurrent law
enforcement activity, the need for language assistance or accommodation of
disabilities, or unforeseen circumstances causing the Title IX coordinator to
be unavailable for more than three business days during the grievance process.
Both parties will receive written notice of any temporary delay or extension
for good cause with an explanation of why the action was necessary.
(f) A respondent found responsible for
engaging in sexual harassment may receive discipline up to and including
dismissal from the college. A description of other possible disciplinary
sanctions and conditions that may be imposed against students can be found in
WAC 132-125-125.
An employee found responsible for sexual harassment may
receive discipline up to and including dismissal from employment. A description
of possible disciplinary sanctions and conditions that may be imposed against
employees can be found at Supplemental Title IX Employee Disciplinary Hearing
Procedures, Article 806 of the Highline College Education Association (HCEA)
Bargaining Agreement, and Article 27 of the Washington public employees
association (WPEA) bargaining agreement.
In proceedings against an employee respondent, the parties may
appeal the employee disciplinary decision to the president pursuant to the
Supplemental Title IX Employee Disciplinary Procedures.
(g) Title IX administrators may not require,
allow, rely upon, or otherwise use questions or evidence that seeks disclosure
of privileged communications, unless the privilege has been effectively waived
by the holder. This provision applies, but is not limited to, information
subject to the following:
(i) Spousal/domestic
partner privilege;
(ii)
Attorney-client and attorney work product privileges;
(iii) Privileges applicable to members of the
clergy and priests;
(iv) Privileges
applicable to medical providers, mental health therapists, and
counselors;
(v) Privileges
applicable to sexual assault and domestic violence advocates; and
(vi) Other legal privileges identified in
RCW
5.60.060.
(4)
Title IX administrators - Free from
bias - Training requirements.
(a)
Title IX administrators shall perform their duties free from bias or
conflicts.
(b) Title IX
administrators shall undergo training on the following topics:
(i) The definition of sexual harassment under
these procedures;
(ii) The scope of
the college's educational programs and activities;
(iii) How to conduct an
investigation;
(iv) How to serve
impartially without prejudgment of facts, conflicts of interest or
bias;
(v) Use of technology used
during any investigation or hearing;
(vi) The relevance of evidence and questions;
and
(vii) Effective report
writing.
(c) All Title
IX administrator training materials shall be available on the college's Title
IX web page.
(5)
Filing a complaint.
Any employee, student, applicant, or visitor who believes that
they have been the subject of sexual harassment should report the incident or
incidents to the college's Title IX coordinator identified below. If the
complaint is against that Title IX coordinator, the complainant should report
the matter to the president's office for referral to an alternate
designee.
Complaints may be submitted in writing or verbally. For
complainants who wish to submit a written complaint, a formal complaint form is
available online at incident reporting form.
Name: Summer Korst
Title: Title IX Coordinator
Office: Human Resources, Building 99, Room 200
Email: skorst@highline.edu
Phone: 206-592-3812
(6)
Confidentiality.
(a) The college will seek to protect the
privacy of the complainant to the fullest extent possible, consistent with the
legal obligation to investigate, take appropriate remedial and/or disciplinary
action, and comply with the federal and state law, as well as college policies
and procedures. Although the college will attempt to honor complainants'
requests for confidentiality, it cannot guarantee complete confidentiality.
Determinations regarding how to handle requests for confidentiality will be
made by the Title IX coordinator.
(b) The Title IX coordinator will inform and
attempt to obtain consent from the complainant before commencing an
investigation of alleged sexual harassment. If a complainant asks that their
name not be revealed to the respondent or that the college not investigate the
allegation, the Title IX coordinator will inform the complainant that
maintaining confidentiality may limit the college's ability to fully respond to
the allegations and that retaliation by the respondent and/or others is
prohibited. If the complainant still insists that their name not be disclosed
or that the college not investigate, the Title IX coordinator will determine
whether the college can honor the request and at the same time maintain a safe
and nondiscriminatory environment for all members of the college community,
including the complainant. Factors to be weighed during this determination may
include, but are not limited to:
(i) The
seriousness of the alleged sexual harassment;
(ii) The age of the complainant;
(iii) Whether the sexual harassment was
perpetrated with a weapon;
(iv)
Whether the respondent has a history of committing acts of sexual harassment or
violence or has been the subject of other sexual harassment or violence
complaints or findings;
(v) Whether
the respondent threatened to commit additional acts of sexual harassment or
violence against the complainant or others; and
(vi) Whether relevant evidence about the
alleged incident can be obtained through other means (e.g., security cameras,
other witnesses, physical evidence).
(c) If the college is unable to honor a
complainant's request for confidentiality, the Title IX coordinator will notify
the complainant of the decision and ensure that complainant's identity is
disclosed only to the extent reasonably necessary to effectively conduct and
complete the investigation in compliance with this grievance
procedure.
(d) If the college
decides not to conduct an investigation or take disciplinary action because of
a request for confidentiality, the Title IX coordinator will evaluate whether
other measures are available to address the circumstances giving rise to the
complaint and prevent their recurrence, and implement such measures if
reasonably feasible.
(7)
Complaint resolution.
The Title IX resolution processes are initiated when the Title
IX coordinator's office receives a written complaint alleging that a
respondent(s) sexually harassed a complainant and requesting that the college
initiate an investigation (a formal complaint). A formal complaint must be
either submitted by the complainant or signed by the Title IX coordinator on
behalf of the complainant. Formal complaints submitted to the Title IX
coordinator may be resolved through either informal or formal resolution
processes. The college will not proceed with either resolution process without
a formal complaint.
For purposes of this Title IX grievance procedure, the
complainant must be participating in or attempting to participate in a college
education program or activity at the time the formal complaint is filed.
(a)
Informal resolution.
Under appropriate circumstances and if the impacted and
responding parties agree, they may voluntarily pursue informal resolution
during the investigation of a concern. Informal resolution is not appropriate
when the allegations involve a mandatory reporting situation, an immediate
threat to the health, safety or welfare of a member of the college community,
or in cases where an employee is alleged to have sexually harassed a
student.
If an informal resolution is appropriate, the impacted party
and the responding party may explore remedies or resolution through:
(i) Guided conversations or communications
conducted by the Title IX coordinator/HRO representative or a mutually agreed
upon third party;
(ii) Structured
resolution process conducted by a trained mediator; or
(iii) Voluntarily agreed on alterations to
either or both of the parties' work or class schedules or student housing
arrangements.
If the parties agree to an informal resolution process, the
college will commence the process within ten days after the parties agree to
this option and conclude within ninety days of beginning that process, subject
to reasonable delays and extensions for good cause shown. The informal process
is voluntary. Either the impacted or responding party may withdraw from the
informal resolution process at any time, at which point the formal
investigation process will resume.
If the impacted and responding party voluntarily resolve a
report, the college will record the terms of the resolution in a written
agreement signed by both parties and provide written notice to both parties
that the report has been closed.
(b)
Formal resolution.
Formal resolution means that the complainant's allegations of
sexual harassment will be subjected to a formal investigation by an impartial
and unbiased investigator. The investigator will issue a report of the
investigation findings. Upon completion of the investigation, the investigator
will submit the final investigation report to the appropriate disciplinary
authority to determine whether disciplinary proceedings are
warranted.
(8)
Emergency removal.
If a student respondent poses an immediate threat to the
health and safety of the college community or an immediate threat of
significant disruption to college operations, the college's student conduct
officer may summarily suspend a respondent pursuant to WAC 132-125-350, pending
final resolution of the allegations. Nothing in this grievance procedure
prohibits the college from placing nonstudent employees on administrative leave
pending final resolution of the allegations.
(9)
Investigation notices.
Upon receiving a formal complaint and determining that
allegations comport with Title IX claims, the college will provide the parties
with the following notices containing the following information:
(a) Notice of formal and informal resolution
processes. A description of the college's grievance resolution procedures,
including the informal resolution procedure.
(b) The investigator will serve the
respondent and the complainant with a notice of investigation in advance of the
initial interview with the respondent to allow the respondent sufficient time
to prepare a response to the allegations and to inform the complainant that the
college has commenced an investigation. The investigation notice will:
(i) Include the identities of the parties (if
known), a description of the conduct alleged constituting Title IX sexual
harassment, and the time and location of the incident (if known).
(ii) Confirm that the respondent is presumed
not responsible for the alleged conduct and that the college will not make a
final determination of responsibility until after the grievance and
disciplinary processes have been completed.
(iii) Inform parties that they are both
entitled to have an advisor of their own choosing, who may be an
attorney.
(iv) Inform parties they
have a right to review and inspect evidence.
(v) Inform parties about student conduct code
provisions and employment policies that prohibit students and employees from
knowingly submitting false information during the grievance and disciplinary
processes.
(c) Amended
investigation notice. If during the course of the investigation, the college
decides to investigate Title IX sexual harassment allegations about the
complainant or respondent that are not included in the investigation notice,
the college will issue an amended notice of investigation to both parties that
includes this additional information.
(d) Interview and meeting notices. Before any
interviewing or meeting with a party about Title IX allegations, the college
shall provide the party with a written notice identifying the date, time,
location, participants, and purpose of the interview or meeting with sufficient
time, at least five days, for the party to prepare for the interview or
meeting.
(10)
Investigation process - Dismissal.
(a) Mandatory dismissal - The Title IX
coordinator will dismiss the Title IX allegations, if during the course of a
formal investigation under the Title IX grievance process, the investigator
determines that the alleged misconduct in the formal complaint:
(i) Does not meet the definition of sexual
harassment under Title IX, even if proved; or
(ii) Did not occur in the context of a
college educational program or activity; or
(iii) Occurred outside the United
States.
(b)
Discretionary dismissal - The college may dismiss a Title IX claim in whole or
in part, if:
(i) The complainant notifies the
Title IX coordinator in writing that they would like to withdraw the formal
complaint in whole or in part;
(ii)
Respondent is no longer enrolled with or employed by the college; or
(iii) Specific circumstances prevent the
college from gathering evidence sufficient to complete the investigation of the
Title IX allegations in whole or in part.
(c) The Title IX coordinator will provide
both parties written notice if Title IX allegations are dismissed with an
explanation for the dismissal.
(d)
Mandatory or discretionary dismissal of a Title IX claim does not preclude the
college from investigating and pursuing discipline based on allegations that a
respondent violated other federal or state laws and regulations, college
conduct policies, and/or other codes and contractual provisions governing
student and employee conduct.
(11)
Investigation process -
Consolidation of formal complaints.
When multiple sexual harassment allegations by or against
different parties arise out of the same facts or circumstances, the college may
consolidate the investigation of formal complaints, provided consolidation can
be accomplished in compliance with confidentiality protections imposed by the
Family Educational Records and Privacy Act (FERPA). This includes instances in
which complainant and respondent have lodged formal complaints against one
another or when allegations of sexual assault are lodged by a single
complainant against multiple respondents, or when multiple complainants lodge
sexual assault complaints against single or multiple
respondents.
(12)
Investigation process - Required procedures.
During the investigation, the investigator:
(a) Will provide the parties with equal
opportunity to present relevant statements, and other evidence in the form of
fact or expert witnesses and inculpatory or exculpatory evidence.
(b) Will not restrict the ability of either
party to discuss the allegations under investigation or gather and present
relevant evidence, except when a no contact order has been imposed based on an
individualized and fact specific determination that a party poses a threat to
the health, safety or welfare of another party and/or witnesses or when contact
with a party and/or witness is prohibited by court order. A college-imposed no
contact shall be no broader than is necessary to protect the threatened party
or witness and must provide the impacted party or their advisor with
alternative means of gathering and presenting relevant evidence from the
protected witness and/or party.
(c)
Will allow each party to be accompanied by an advisor of their choosing, who
may be an attorney, to any grievance related meeting or interview. Advisors'
roles during the investigation meetings or interviews will be limited to
providing support and advice to the party. Advisors will not represent or
otherwise advocate on behalf of the parties during the investigation process.
An attorney representing a party must enter a notice of appearance with the
Title IX coordinator and the investigator at least five days before the initial
interview or meeting they plan to attend, so that the college can secure its
own legal representation, if necessary.
(d) The investigator will provide both
parties and their respective advisors with an equal opportunity to review the
draft investigation report and to inspect and review any evidence obtained
during the investigation that is directly related to the allegations raised in
the formal complaint, including inculpatory or exculpatory evidence, regardless
of its source, as well as evidence the investigator does not intend to rely in
the final investigation report. After disclosure, each party will receive ten
days in which to submit a written response, which the investigator will
consider prior to completion of the investigation report. If a party fails to
submit a written response within ten days, the party will be deemed to have
waived their right to submit comments and the investigator will finalize the
report without this information.
(e) The investigator will forward the final
report to the Title IX coordinator, who distributes the report and evidence to
the parties, as well as the disciplinary authority responsible for determining
whether pursuing disciplinary action is warranted.
Statutory Authority:
RCW
28B.50.140. 12-16-111, § 132I-300-020,
filed 8/1/12, effective 9/1/12. Statutory Authority: Chapter 34.05 RCW et seq.,
RCW
28B.50.100 and
28B.50.140. 92-15-115, §
132I-300-020, filed 7/21/92, effective
8/21/92.