Sex-Based Misconduct Policy

Appalachian State University Academy at Middle Fork Sex-Based Misconduct Policy

I. Introduction

Appalachian State University Academy at Middle Fork (hereinafter “Academy”) acknowledges the dignity and worth of all students and employees and strives to create a safe, caring, and inviting school environment to facilitate student learning and achievement. The purpose of this policy is to support the Academy’s commitment to providing an institutional environment free from discrimination and harassment of sex-based misconduct, as well as to provide an administrative framework & oversight for reporting, investigating, adjudicating, and resolving violations of this policy.

II. Scope

  1. This policy applies to all members of the Academy community, including students, employees, board members, volunteers, visitors, and others who participate in programs, activities, or conduct business on behalf of the Academy. “Visitors” include parents and other family members, individuals from the community, vendors, contractors, and other persons doing business with or performing services on behalf of the Academy.

  2. This policy applies to incidents of sex-based misconduct or retaliation when at least one elementary or secondary student is a complainant or respondent.

  3. This policy does not apply in instances when an elementary or secondary student is not a complainant or respondent. For sex-based misconduct or retaliation for non-students or non-elementary or secondary students, please refer to Appalachian Policy 112 – Sex-Based Misconduct.

  4. This policy applies to behavior that takes place: (1) in any Academy building or on any Academy premises before, during or after school hours; (2) on any bus or other vehicle as part of any school activity; (3) at any bus stop; (4) during any school-sponsored activity or extracurricular activity; (5) at any time or place when the individual is subject to the authority of school personnel or administrators; (6) at any time or place when the behavior has a direct and immediate effect on maintaining order and discipline in the schools; or (7) at any other locations, event, or circumstance where the Academy exercises substantial control over both the respondent and the context in which alleged sex-based misconduct occurs.

III. Definitions

  1. Advisor – A person chosen by a Party, or appointed by the Academy, to accompany the Party to meetings related to the grievance process, and advise and assist the Party throughout the process.

  2. Complainant – Any person who has alleged to be the victim of conduct that could constitute Sex-Based Misconduct or Retaliation, including a parent on behalf of their child.

  3. Formal Complaint – A document submitted by a Complainant or signed by the Title IX Coordinator requesting the Academy to investigate an allegation involving: (a) Sex-Based Misconduct against a Respondent, or (b) Retaliation against an individual who is engaging in protected activities under this policy.

  4. Decision-Maker – The Principal or designee will be the Decision-Makers for all formal grievances under this policy, unless a conflict is determined in which case the Title IX Coordinator will appoint a Decision-Maker.

  5. Education Program or Activity – Locations, events, or circumstances where the Academy exercises substantial control over both the Respondent and the context in which the alleged Sex-Based Misconduct occurs.

  6. Finding - A conclusion based upon a preponderance of the evidence that the conduct did or did not occur as alleged (as in a “finding of fact”).

  7. Investigator – An individual charged by the Title IX Coordinator with gathering testimonial and documentary evidence about an alleged violation of Sex-Based Misconduct and compiling the information into an investigation report.

  8. Respondent – Any individual who has been reported to be the perpetrator of conduct that could constitute Sex-Based Misconduct or Retaliation.

  9. Party or Parties – A reference to a Complainant(s) and Respondent(s), either separately or collectively.

  10. Sex – As referenced in this policy encompasses sex, gender, gender expression, gender identity, and sexual orientation, as defined by federal and state law, and UNC system policies.

  11. Sex-Based Misconduct – Any conduct that involves the harassment or discrimination of an individual based on Sex, including instances involving sexual assault, dating violence, domestic violence, or stalking.

  12. Academy Safety Assessment Team – A group that consists of Academy administrators established to assess both immediate and potential threats to the Academy community, including those who could potentially impact the Academy’s educational mission. In reviewing reports of Sex-Based Misconduct and Retaliation, the team shall assess the need and utility of implementing supportive measures and interim actions to maintain a safe and non-discriminatory environment for the Academy community.

  13. Title IX - The federal civil rights legislation first enacted in 1972 and codified at 20 U.S. Code §§ 1681-1688, and accompanying Federal Regulations at 34 CFR § 106.

  14. Title IX Coordinator – Appalachian’s Director of Title IX Compliance who oversees the implementation and administration of this policy.

IV. Prohibited Conduct

All members of the Academy community are prohibited from engaging in Sex-Based Misconduct and Retaliation (collectively referred to in this policy as, “Prohibited Conduct”). The following conduct identifies categories of Prohibited Conduct:

  1. Sexual Harassment, includes:
    1. 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 Academy’s Education Program or Activity; or

    2. Quid Pro Quo Sexual Harassment, defined as, an employee of the Academy conditioning the provision of an aid, benefit, or service of the Academy on an individual’s participation in unwelcome sexual conduct; or

    3. Sexual Assault, defined as, any sexual act directed against another person, without the consent of the Complainant, including instances where the Complainant is incapable of giving consent. Sexual Assault includes,
      1. the penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the Complainant; or
      2. the touching of the private body parts of another person for the purpose of sexual gratification, without the consent of the Complainant; or
      3. sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law; or
      4. sexual intercourse with a person who is under the statutory age of consent.

        (At the Academy, students shall not engage in sexual or intimate conduct at school. In instances where Academy Students are both the Complaint(s) and Respondent(s), and it is identified that the Complainant(s) has provided consent and capable of providing consent, then the matter will be addressed pursuant to the Academy’s Student Behavior policy and Code of Conduct); or

    4. Dating Violence, defined as, violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the Complainant. The existence of such a relationship shall be determined based on a consideration of the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship. Dating violence includes, but is not limited to, sexual or physical abuse or the threat of such abuse. Dating violence does not include acts covered under the definition of Domestic Violence; or

    5. Domestic Violence, defined as, any violence that may constitute felony or misdemeanor crime of violence committed: (a) by a current or former spouse or intimate partner of the Complainant, (b) by a person with whom the Complainant shares a child in common, (c) by a person who is cohabitating with or has cohabitated with the Complainant as a spouse or intimate partner, (d) by a person similarly situated to a spouse of the Complainant under the domestic or family violence laws of North Carolina, or (e) by any other person against an adult or youth Complainant who is protected from that person’s acts under the domestic or family violence laws of North Carolina; or

    6. Stalking, defined as, engaging in a “course of conduct” directed at a specific person that would cause a reasonable person to fear for the person’s safety or the safety of others; or “suffer substantial emotional distress.” Under this section, “course of conduct” is defined as two or more acts, including, but not limited to, acts in which the stalker directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates to or about a person, or interferes with a person’s property; and “substantial emotional distress” is defined as a significant mental suffering or anguish that may but does not necessarily require medical or other professional treatment or counseling.

  2. Sex-Based Discrimination, includes:
    Conduct based on an individual's Sex that is an unlawful or otherwise prohibited preference for, or detrimental treatment of, one individual compared to other individuals. The conduct must be sufficiently serious to unreasonably interfere with or limit:
    1. an employee or employment applicant's access to employment, terms, conditions or benefits of employment (e.g., hiring, advancement, assignment, etc.); or
    2. a student or admission applicant's ability to participate in, access or benefit from Academy programs, services, or activities (e.g., admission, academic standing, grades, assignments, etc.); or
    3. a volunteer or visitor's ability to participate in, access or benefit from or deliver Academy programs or services.

  3. Retaliation, includes:
    Any adverse action against an individual, or an individual's spouse, partner, or other person with a close personal relation, for: (a) making or supporting a claim of Sex-Based Misconduct, (b) opposing any Sex-Based Misconduct, (c) participating in the reporting, investigation, or resolution of alleged violation(s) under this policy, or (d) otherwise engaging in a protected activity under Academy associated policies. Examples of Retaliation include intimidation, threats, coercion, or adverse employment or educational actions.

    Acts of alleged Retaliation should be reported immediately to the Title IX Coordinator and will be promptly investigated. The Academy will take all appropriate and available steps to protect individuals who fear that they may be or have been subjected to Retaliation.

  4. Related Terms. As used in Section 4, the following definitions and understandings apply:
  • Force. The use of physical violence or physical imposition to gain sexual access. Force also includes threats, intimidation (implied threats), or coercion that is intended to overcome resistance or produce consent.

  • Coercion. Unreasonable pressure for sexual activity.

  • Consent. For consent to be present, it must be knowing and voluntary, with clear permission, by word or action, to engage in sexual activity.
    • For consent to be valid, there must be a clear expression in words or actions that the other individual consented to that specific conduct.
    • Consent can also be withdrawn once given, as long as the withdrawal is reasonably and clearly communicated. If consent is withdrawn, that activity must cease.
    • Consent to some contact when permitted cannot be presumed to be consent for other activity.
    • Proof of consent or non-consent is not a burden placed on either Party involved in an incident. Instead, the burden remains on the Academy to determine whether its policy has been violated. The existence of consent is based on the totality of the circumstances evaluated from the perspective of a reasonable person in the same or similar circumstances.
  • Incapacitation. A person cannot consent if they are unable to understand what is happening or is disoriented, helpless, asleep, or unconscious, for any reason. As stated above, a Respondent violates this policy if they engage in activity with someone incapable of giving consent.

  • Defense to a Charge of Sexual Assault with an Incapacitated Party. It is a defense to a violation that the Respondent neither knew, nor should have known, the Complainant to be physically or mentally incapacitated. “Should have known” is an objective reasonable person standard.

V. Reporting, Generally

Any person who believes they have been discriminated against or harassed in violation of this policy, or retaliated against for activities protected under this policy, by an individual that falls under the scope of this policy should inform the Title IX Coordinator, the Academy’s designated Deputy Title IX Coordinator, or any other school official designated to receive such complaints.

Reports of Prohibited Conduct, by all individuals, may be made by contacting the Title IX Coordinator by email of phone referenced below. Reports may also be made online through the Title IX – Interpersonal Violence Report Form.

VI. Mandatory Reporter

All employees who have knowledge or notice of Sex-Based Misconduct or Retaliation involving a student are considered “Mandatory Reporters.” Upon receiving any information that may indicate the occurrence of Prohibited Conduct based on Sex involving a student, Mandatory Reporters are required to report the information to the Office of Title IX Compliance as promptly as possible, but in no event after seventy-two (72) hours. Mandatory Reporters may also be referred to as “Responsible Employees.”

Employees who observe an incident of Prohibited Conduct are expected to intervene and stop the conduct in situations they have supervisory control over the Respondent and it is safe to do so.
If an employee knows of an incident involving Prohibited Conduct and the employee fails to report the conduct, take proper action, or knowingly provides false information in regard to the incident, then the employee’s actions may result in grounds for disciplinary action, up to and including termination.

VII. Anonymous Reporting

Except for Mandatory Reporters, individuals may make anonymous reports concerning Prohibited Conduct, and all reports will be investigated to the extent of the information available.

VIII. Responding to Reports

The Title IX Coordinator or designee shall be responsible for ensuring that each Formal Complaint or notice of an alleged violation of Prohibited Conduct is responded to promptly.

IX. Supportive Measures

The Title IX Coordinator or designee will reach out to students and employees who fall under the scope of this policy and may have experienced Prohibited Conduct. Individuals will be offered resources, options for reporting, and supportive measures.

Supportive Measures are non-disciplinary and non-punitive individualized services offered as appropriate, as reasonably available without fee or charge, to the Complainant or the Respondent. Supportive measures may be offered before or after the filing of a Formal Complaint, as well as when no Formal Complaint has been filed. Such measures are designed to restore or preserve equal access to the Academy’s Education Program or Activity without unreasonably burdening the other Party. Additionally, supportive measures include measures designed to protect the safety of all Parties and the Academy’s educational environment.

Examples of supportive measures may include: counseling; extensions of deadlines or other course-related adjustments; modifications of work or class schedules; school escort services; mutual restrictions on contact between the Parties; changes in work or housing locations; leaves of absence; increased security and monitoring of certain areas of the Academy; and other similar measures. Supportive measures may include referrals to both confidential and private resources.

The Academy will maintain as confidential any supportive measures provided to the Complainant or Respondent to the extent that maintaining such confidentiality would not impair the ability of the institution to provide supportive measures. The Title IX Coordinator is responsible for coordinating the effective implementation of supportive measures.

Supportive measures will be offered to individuals involved in reports of Sex-Based Misconduct whether or not they file a Formal Complaint.

X. Emergency Removal

In relation to alleged violations of this policy, a Respondent can be removed entirely or partially from Education Program or Activities on an emergency basis. An individualized safety and risk analysis must be performed that indicates an immediate threat to the physical health or safety of any student or other individual. The Title IX Coordinator or designee in conjunction with the Academy Safety Assessment Team will perform the safety and risk analysis using standard risk assessment processes to decide if an emergency removal is appropriate. Respondents will be presented with an opportunity to challenge and appeal any decisions of an emergency removal. Appeals for emergency removal should be submitted to the Title IX Coordinator. The Title IX Coordinator will assign an administrator to review the appeal who was not involved in the initial assessment of emergency removal. All decisions made after the appeal of the emergency removal are final.

XI. Filing a Formal Complaint

The Title IX Coordinator or designee is responsible for receiving Formal Complaints from a Complainant, as well as informing Complainants of all rights available to them including the right to an Advisor, file a Complaint, report to law enforcement, or report anonymously. There are only two circumstances where a Formal Complaint will proceed through a formal grievance process:

  1. Formal Complaint Filed by a Complainant. A Complainant may submit a Formal Complaint to the Title IX Coordinator alleging Prohibited Conduct against a Respondent. Upon receipt of a Formal Complaint, the Title IX Coordinator or designee will review all supportive measures and resolution options with the Complainant and their Advisor, and determine if an Investigation is the most appropriate means to address the complaint. The Title IX Coordinator will investigate the allegation(s) if there are no procedural grounds for dismissal or an informal resolution.

  2. Formal Complaint Signed by the Title IX Coordinator. The Title IX Coordinator has the discretion over whether the Academy will proceed with a formal review when the Complainant does not wish to file a Formal Complaint. In deciding, the Title IX Coordinator will evaluate the situation in light of the duty to ensure the safety of the Academy and to comply with federal and state law, and may sign a Formal Complaint to initiate the grievance process upon completion of an appropriate safety assessment made by the Title IX Coordinator and the Principal or designee. The Academy’s ability to remedy and respond to notice may be limited if the Complainant does not want the Academy to proceed with the grievance process.

    The safety assessment will be based on the results of a threat assessment that shows a compelling risk to health or safety that requires the Academy to pursue a formal grievance process to protect the Academy community. A compelling risk to health or safety may result from evidence of patterns of misconduct, predatory conduct, threats, abuse of minors, use of weapons, or violence. Furthermore, the Title IX Coordinator will consider the effects on the availability of evidence and the Academy’s ability to pursue a formal grievance fairly and effectively, if the Complainant chooses not to participate in the Title IX resolution process.

XII. Proceeding with a Formal Complaint

  1. Determination to Dismiss a Formal Complaint.
    A decision by the Title IX Coordinator to dismiss a Formal Complaint before instituting a formal grievance is appealable by any Party under the procedures for appeal below. The decision not to dismiss is also appealable by any Party claiming that dismissal is required or appropriate. A Complainant who decides to withdraw a Formal Complaint may later request to reinstate it or refile it. Upon any dismissal, the Academy will promptly send written notice of the dismissal and the rationale for doing so simultaneously to the Parties.

  2. Title IX Mandatory Dismissal of a Formal Complaint
    The Academy must dismiss a Formal Complaint, if at any time before or during the investigation, if it is determined that:
    1. the conduct alleged in the Formal Complaint would not constitute Prohibited Conduct as defined within this policy, even if proved; or
    2. the conduct did not occur in an Educational Program or Activity; or
    3. the conduct did not occur against a person in the United States; or
    4. at the time of filing a Formal Complaint, the conduct did not occur within the scope of this policy.

      However, if a formal complaint is dismissed under Title IX it may be investigated and adjudicated under other Academy policies and procedures.

  3. Discretionary Dismissal
    The Academy, at the sole discretion of the Title IX Coordinator, or designee, may dismiss a Formal Complaint, if at any time during the investigation:
    1. a Complainant notifies the Title IX Coordinator in writing that the Complainant would like to withdraw the Formal Complaint or any allegations therein; or
    2. the Respondent is no longer enrolled in or employed by the Academy, as applicable; or
    3. specific circumstances prevent Appalachian from gathering evidence sufficient to reach a determination as to the Formal Complaint or allegations therein.

  4. Rights Reserved to the Academy
    Dismissing a Formal Complaint under Title IX is solely a procedural requirement under Title IX and does not limit the Academy authority to address a complaint with an appropriate process or remedy consistent other Academy policies.

XIII. Notice of Investigation

If it is determined that an investigation will be initiated, then an Investigator will be assigned and Parties will receive a notice of investigation.

XIV. Advisors

The Parties may have up to two (2) Advisors of their choice who may, but are not required to, be an attorney. Parties will be assigned an Advisor if they do not obtain one themselves, but will be permitted to choose whether or not they want to utilize the Advisor. An Advisor may be present during interviews; however, they are not permitted to speak or ask questions during interviews. Parties are required to respond for themselves and responses provided by an Advisor will not be considered by the Investigator or Decision Maker. The Title IX Coordinator will provide guidance before interviews to assist Advisors with the appropriate processes to consult with their advisee during interviews.

The Complainant retains all rights and status as a Complainant irrespective of their level of participation. Typically, when the Complainant chooses not to participate, the Advisor may be appointed as proxy for the Complainant throughout the process, acting to ensure and protect the rights of the Complainant. However, the Advisor will not be able to provide evidence or testimony.

XV. Informal Resolutions

The Title IX Coordinator may facilitate an informal resolution between the Parties after a Formal Complaint has been filed. A Respondent who wishes to initiate an informal resolution after a Formal Complaint has been filed should contact the Title IX Coordinator.

Before implementing an informal resolution process, the Academy will provide the Parties with written notice of the reported misconduct and any sanctions or measures that may result from participating in such a process. The Academy will obtain voluntary, written confirmation that all Parties wish to resolve the matter through informal resolution before proceeding and will not pressure the Parties to participate in informal resolution.

Any Party participating in an informal resolution can stop the process at any time and begin or resume the formal grievance process. Additionally, an informal resolution may be entered at any time before a determination of responsibility has been made by the Academy.

When an informal resolution is accomplished, the appropriate sanction or responsive actions will be promptly implemented to effectively stop the Prohibited Conduct, prevent its recurrence, and remedy the effects of the discriminatory conduct, both on the Complainant and the community.

XVI. Respondent Acceptance of Full Responsibility

The Respondent may accept responsibility for all or part of the alleged policy violations at any point during the resolution process. If the Respondent indicates an intent to accept responsibility for all of the alleged misconduct, the formal process will be paused, and the Title IX Coordinator will determine whether informal resolution can be used.

If informal resolution is applicable, the Title IX Coordinator will determine whether all Parties and the Academy can agree on responsibility, sanctions, and/or remedies. Upon agreement of the Parties, the Title IX Coordinator or designee, in collaboration with the appropriate administrative official(s), will implement a Finding that the Respondent is in violation of Prohibited Conduct and the agreed-upon sanctions or remedies.

This result of an informal resolution is not subject to appeal once all Parties indicate their written assent to all agreed-upon terms of the resolution. When the Parties cannot agree on all terms of resolution, the formal grievance process will resume at the same point where it was paused.

XVII. Investigations and Questioning of Other Party

Investigations will be conducted by trained Investigators in the Office of Title IX Compliance in accordance with the Appalachian’s Sex-Based Misconduct Procedures available on the Office of Title IX Compliance website. However, after a final investigative report is provided to the Parties and the Decision-Maker, rather than providing the report before a hearing, the Decision-Maker will afford the Parties, for ten (10) business days after receipt of the investigative report, an opportunity to:

  • submit written, relevant questions that a Party wants asked of any Party or witness;
  • provide each Party the answers; and
  • allow for additional, limited follow-up questions for 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 Formal Complaint 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 Formal Complaint and are offered to prove consent.

XVIII. Determination Regarding Responsibility

After receipt of the investigative report and submission of questions and answers, the Decision-Maker will review the investigative report, the accompanying evidence, and the submission of questions and answers that were received after the final investigative report was provided to the Parties.

After this review the Decision-Maker will render a written determination regarding responsibility that complies with Title IX, which shall include a determination of sanctions, if applicable. The Decision-Maker in their discretion may meet individually with the Parties and their Advisors before rendering a decision on responsibility and sanctions.

XIX. Appeal

  1. Appeal of Finding of Responsibility - Appeals must be written and submitted to the Title IX Coordinator or designee within five (5) business days of receiving the Decision-Makers written Formal Complaints. Appeals must include a rationale and supporting evidence for any of the grounds for appeals listed below.

  2. Grounds for Appeals - The Complainant or Respondent may appeal the Decision Maker(s) Finding of responsibility or decision to dismiss the Formal Complaint on any of these three bases: (1) procedural irregularity that affected the outcome of the matter; (2) 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; or (3) the Title IX Coordinator, Investigator(s), or Decision-Maker(s) had a conflict of interest or bias for or against Complainants or Formal Complaints generally or the individual Complainant or Formal Complaint that affected the outcome of the matter.

  3. Decision Regarding Appeals of Responsibility
    Appeals will be reviewed by a trained appellate officer or appeals panel assigned by the Title IX Coordinator or designee

  4. Sanctions During Pendency of Appeals
    Sanctions shall not be imposed during the pendency of any appeals, of either the Decision-Maker(s) decision regarding responsibility or the sanctions themselves.

XX. Title IX Coordinators

The following individuals will coordinate the Academy’s efforts to comply with and carry out its responsibilities under federal non-discrimination laws. These responsibilities include investigating any complaints communicated to school officials alleging noncompliance with Title IX, or alleging actions which would be prohibited by this law.

Title IX Coordinator
Jeff Lamoureaux
Appalachian State University Director of Title IX Compliance
Office of Title IX Compliance
828-262-2144
lamoureauxjt@appstate.edu

Deputy Title IX Coordinator
Darron Daniels
Director of Student Affairs and Emergency Management
Appalachian State University Academy at Middle Fork
danielsdl1@appstate.edu