We wanted to take a moment to discuss the petition we created in May and thank all of the signatures we received. We were truly overwhelmed by the support and we would not be in the position we are today without the help of the community. After receiving over 1,000 signatures, we presented to the BVSD school board our demands for the revised Title IX policy. Working alongside some of the members of the BVSD administration, we hope to keep a high standard of Title IX to protect survivors of sexual violence and maintain the integrity of the original legislation.
Where BVSD Addressed our 7 Demands in their New Title IX Policy
After talking at a board meeting back in May about our petition, we got the opportunity to make additions and revisions to the Redline Title IX Policy in early August. We did our best to address all 7 of our demands in the new policy by counteracting some of the regressive changes to the survivors rights. Below, we will explain where in the new AC-R2 policy our demands are addressed.
1. "We demand for there to be systems in place that allow the survivors to continue to feel safe within the school and supported by their school regardless of the location of the alleged crime".
Under the new regulations, schools are mandated to dismiss all Title IX complaints of alleged incidents that occurred outside of an education program or activity. Despite the restriction of an investigation, we made sure that survivors who experience off-campus abuse are entitled to supportive measures in the first step of a procedure before even asking where the incident occurred. Supportive measures include, but are not limited to, schedule changes, a leave of absence, safety escorts, academic support, and more. On the bottom of page 6 of the AC-R2 document, it states "Upon the School District’s receipt of actual knowledge of alleged sexual harassment, the Title IX Coordinator or designee shall contact the Complainant(s) and Respondent(s) to offer supportive measures and to discuss with Complainant the process for filing a formal complaint". Additionally, the dismissal of a complaint does not remove a school's ability to apply sanctions to the respondent. Since sexual violence is a policy violation of the Student Code of Conduct, respondents can still be suspended, expelled, or receive any other punishment that is outlined in the district's discipline system. The new regulations also grants schools "Emergency Removal" powers which don't require an on-campus incident to be exercised. Emergency Removal, as defined on page 2, is "following the receipt of a report of sexual harassment against a student, the School District may remove a student respondent partially or entirely from its educational programs or activities on a temporary emergency basis". The district is required to do an individualized risk assessment on the respondent and if the respondent is determined to be an immediate threat to the school community, they will be removed. All in all, the dismissal of off campus complaints does not dismiss BVSD's obligation to remedy the situation as outlined in the in the policy.
2. "We demand that there should be a similar 60-day timeline that is enforced throughout all investigations with cases regarding issues under Title IX".
In the new regulations, Betsy DeVos removed the school's obligation to conduct an investigation in 60 days. This allows for a lackadaisical and slow investigation that can be harmful to survivors. In the policy, we made it so that the district is still obligated to finish the investigation in around 60 days to maintain urgency and care in responding to complaints. On page 7, it states "generally, the timeframe from the issuance of a notice of investigation through the release of the written determination shall not exceed sixty (60) calendar days, unless good cause is shown. If there is a need for a delay, the investigator or decision-maker shall notify both parties in writing of the delay and the reason for it". Since it is now written in policy that a 60 day investigation must be maintained, they are required to follow these guidelines and are being held to a higher standard.
3."We demand that when possible, all cases of sexual violence be taken to account no matter the school of attendance and there are systems in place that attempt to bring justice to survivors throughout all complaints and cases".
The new regulations state that if an assault happens in an education program or activity but the respondent does not attend the same school as the complainant, the complainant can't pursue a case against them. An example of where this would occur is a student going to a school dance with someone from a different BVSD school and getting assaulted. However, if both students attend BVSD schools, the district is still obligated to respond. This is because all schools within BVSD are in consortium and we required the district to define an education program of activity. An education program or activity as defined on page 2 is "Locations, events, or circumstances over which the School District exercises substantial control over both the Complainant and Respondent and the context in which the sexual harassment occurs". A school is required by law to investigate all complaints that occur under their jurisdiction (such as school dances) so the school district must respond to these cases. They are not allowed to be dismissed because they occurred in a place where the school was liable.
4. "We demand that as a district, Boulder Valley School District maintains a zero-tolerance policy with all cases of sexual violence and pursue investigations to the best of their ability, no matter the gravity. In this, they can stay true to the intentions of Title IX that emphasize the importance of sexual violence protocol".
The new regulations severely limited the definition of sexual harassment to three different instances and is not inclusive of all forms of harassment. This means some complaints could be dismissed if they do not meet "the so severe and pervasive" standard of harassment. However, we asked the district to view all harassment as severe and pervasive by having a zero tolerance policy. To be inclusive of all forms of harassment, the district has their own definition of sexual harassment in the code of conduct and policy AC-R that is broader and more inclusive. Any form of harassment is a violation of policy of the code of conduct of AC-R and can warrant a Title IX investigation. On page 1, it states "The School District is committed to maintaining an equitable learning and working environment that addresses all student and employee misconduct appropriately, whether under this Policy regulation, other Board policy, employment agreement or applicable law. Other types of sex-based or gender-based discrimination or harassment are addressed in District Policy Regulation AC-R. Nothing in this policy shall be construed to prohibit discipline for conduct which, although it does not rise to the level of sexual harassment as defined by this Policy regulation, otherwise violates other District policies. Likewise, nothing in this policy regulation prohibits the School District from providing safety planning and support for any student or employee".
5. "We demand that unregulated mediation not be seen as a viable resolution to a sexual violence conflict. Mediation should only be used under the regulation and surveillance of a trauma-informed mediator. The survivor should be given readily available crisis support resources prior to and post mediation".
Mediation can be extremely harmful and triggering to survivors, especially with the lack of regulations put on this route by the new policy. We are not allowed to remove mediation as a solution form but we are making it as regulated as possible to support survivors. In BVSD's policy on page 6, it states "When agreement is required, the party’s agreement must be voluntary, non-coerced, and documented in writing. Informal resolution is not available in cases where a School District employee is alleged to have sexually harassed a student". The new policy also requires regulated mediation by a trauma-informed mediator: "Alternate resolution, one form of informal resolution, references mediation, restorative practices, transformative justice, and similar methods that must only be used when designed and facilitated by well-trained individuals. Due to the specialized training required, BVSD may use community partners as third party facilitators with the consent of all the parties. Alternate resolution is rarely appropriate or advisable in cases involving violent incidents, dangerous patterns, or threats".
6. "We demand that all cases of sexual violence and grievance reports be handled with urgency and care as well as the institution take responsibility and accountability for any mishandlings of Title IX cases."
The new regulations make it almost impossible to pursue a case against a school district because schools are protected from legal sanctions as long as they are proven not to be "deliberately indifferent" to a complaint. This could create a lack of urgency and response to Title IX complaints which is absolutely unacceptable. This is why we created a detailed policy, with specific deadlines, timelines, and a list of all of the party's rights during and investigation so that there is a document to hold BVSD accountable to. Since this is written into policy, they are required to follow all of these steps by law. The detail is what holds them accountable to respond to complaints.
7. "We demand that all reports of sexual violence made to other staff members or students be mandatorily reported to the Title IX Coordinator or principal to ensure that action must be required to be taken. Additionally, students need to be taught who to report incidents to and be made readily aware of who the Title IX Coordinator is".
The new regulations state that if a report of sexual violence is not given directly to a school principal of Title IX Coordinator, the complaints can be dismissed. This is why in policy we made BVSD state on page 4 that "all District employees shall notify the Title IX Coordinator of any reports of alleged sexual harassment immediately when practical and no later than twenty-four (24) hours following receipt of a report". This means all reports must get directly to the Title IX Coordinator so they have an obligation to respond to every complaint received.