WSR 15-09-064
PROPOSED RULES
CLARK COLLEGE
[Filed April 14, 2015, 2:07 p.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 15-05-059.
Title of Rule and Other Identifying Information: Revise WAC 132N-300-001 and 132N-300-010, nondiscrimination and harassment statement of policy and grievance procedure and WAC 132N-125-035 Code of student conduct prohibited student conduct.
Hearing Location(s): Ellis Dunn Community Room, Gaiser Student Center, Clark College, 1933 Ft. Vancouver Way, Vancouver, WA 98663, on May 27, 2015, at 5:00 p.m.
Date of Intended Adoption: June 29, 2015.
Submit Written Comments to: Mr. Bob Williamson, Vice-President of Administrative Services, Clark College, Mailstop BRD 159, 1933 Ft. Vancouver Way, Vancouver, WA 98663, e-mail bwilliamson@clark.edu, fax (360) 992-2884, by May 25, 2015.
Assistance for Persons with Disabilities: Contact Aaron Hodukavich by May 25, 2015, (360) 992-2065 or video phone (360) 991-0910.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The proposed new revision is necessary to comply with the latest Title IX, Violence Against Women Act (VAWA), and campus SaVE requirements.
Reasons Supporting Proposal: The proposed new revision is necessary to comply with the latest Title IX, VAWA, and campus SaVE requirements.
Statutory Authority for Adoption: RCW 28B.50.140.
Statute Being Implemented: RCW 28B.50.140.
Rule is necessary because of federal law, Title IX, VAWA, and campus SaVE.
Name of Proponent: [Clark College], governmental.
Name of Agency Personnel Responsible for Drafting, Implementation, and Enforcement: Bob Williamson, Clark College, Mailstop BRD 159, 1933 Ft. Vancouver Way, Vancouver, WA 98663, (360) 992-2289.
No small business economic impact statement has been prepared under chapter 19.85 RCW. Not required, there will be no impact on small business if the proposed code is adopted.
A cost-benefit analysis is not required under RCW 34.05.328. Costs associated with implementing and enforcing these rules are already accounted for in the college's budget.
April 3, 2015
Robert D. Williamson
Vice-President of
Administrative Services
AMENDATORY SECTION (Amending WSR 14-12-024, filed 5/27/14, effective 7/7/14)
WAC 132N-125-035 Prohibited student conduct.
The college may impose disciplinary sanctions against a student who commits, or aids, abets, incites, encourages or assists another person to commit, an act(s) of misconduct which include, but are not limited to, the following:
(1) Academic dishonesty. Any act of academic dishonesty including, but not limited to, cheating, plagiarism, and fabrication.
(a) Cheating includes using or any attempt to use, give or obtain unauthorized assistance relating to the completion of an academic assignment.
(b) Plagiarism includes taking and using as one's own, without proper attribution, the ideas, writings, or work of another person in completing an academic assignment.
(c) Self-plagiarism may also include the unauthorized submission for credit of academic work that has been submitted for credit in another course.
(d) Fabrication includes falsifying data, information, or citations in completing an academic assignment and also includes providing false or deceptive information to an instructor concerning the completion of an assignment.
(e) No student shall be allowed to withdraw from a course or from the college to avoid the consequences of academic dishonesty.
(2) Other dishonesty. Any other acts of dishonesty, such acts include, but are not limited to:
(a) Forgery, alteration, submission of falsified documents or misuse of any college document, record, or instrument of identification;
(b) Tampering with an election conducted by or for college students; or
(c) Furnishing false information, or failing to furnish correct information, in response to the request or requirement of a college officer or employee.
(3) Obstruction or disruption. Obstruction or disruption of:
(a) Any instruction, research, administration, disciplinary proceeding, or other college activity, including the obstruction of the free flow of pedestrian or vehicular movement on college property or at a college activity; or
(b) Any activity that is authorized to occur on college property, whether or not actually conducted or sponsored by the college. Participation in any activity which unreasonably disrupts the operations of the college or infringes on the rights of another member of the college community, or leads or incites another person to engage in such an activity.
(4) Assault, physical abuse, verbal abuse, threat(s), intimidation, harassment, bullying, stalking or other conduct which harms, threatens, or is reasonably perceived as threatening the health or safety of another person or another person's property. For purposes of this subsection:
(a) Bullying is physical or verbal abuse, repeated over time, and involving a power imbalance between the aggressor and victim.
(b) Stalking is intentional and repeated following of another person, which places that person in reasonable fear that the perpetrator intends to injure, intimidate, or harass that person. Stalking also includes instances where the perpetrator knows or reasonably should know that the person is frightened, intimidated, or harassed, even if the perpetrator lacks such an intent.
(5) Cyber misconduct. Cyberstalking, cyberbullying, or online harassment. Use of electronic communications including, but not limited to, electronic mail, instant messaging, electronic bulletin boards, and social media sites to harass, abuse, bully, or engage in other conduct which harms, threatens, or is reasonably perceived as threatening the health or safety of another person. Prohibited activities include, but are not limited to, unauthorized monitoring of another's e-mail communications directly or through spyware, sending threatening e-mails, disrupting electronic communications with spam or by sending a computer virus, sending false messages to third parties using another's e-mail identity, nonconsensual recording of sexual activity, and nonconsensual distribution of a recording of sexual activity.
(6) Property violation. Attempted or actual damage to, or theft or misuse of, real or personal property or money of:
(a) The college or state;
(b) Any student or college officer, employee, or organization;
(c) Any other member of the college community or organization; or
(d) Possession of such property or money after it has been stolen.
(7) Failure to comply with directive. Failure to comply with the direction of a college officer or employee who is acting in the legitimate performance of his or her duties, including failure to properly identify oneself to such a person when requested to do so.
(8) Weapons. Possession or use of firearms, explosives, dangerous chemicals, or other dangerous weapons, which can be used to inflict bodily harm or to damage real or personal property is prohibited on the college campus, at any other facilities leased or operated by the college, or at any activity under the administration or sponsorship of the college. Exceptions to this policy are permitted when the weapon is used in conjunction with an approved college instructional program, is carried by duly constituted law enforcement officer, or is otherwise permitted by law.
(9) Hazing. Hazing includes, but is not limited to, any initiation into a student organization or any pastime or amusement engaged in with respect to such an organization that causes, or is likely to cause, bodily danger or physical harm, or serious mental or emotional harm to any student.
(10) Alcohol, drug, and tobacco violations.
(a) Alcohol. The use, possession, delivery, sale, or being visibly under the influence of any alcoholic beverage, except as permitted by law and applicable college policies.
(b) Marijuana. The use, possession, delivery, sale, or being visibly under the influence of marijuana or the psychoactive compounds found in marijuana and intended for human consumption, regardless of form. While state law permits the recreational use of marijuana, federal law prohibits such use on college premises or in connection with college activities.
(c) Drugs. The use, possession, delivery, sale, or being under the influence of any legend drug, including anabolic steroids, androgens, or human growth hormones as defined in chapter 69.41 RCW, or any other controlled substance under chapter 69.50 RCW, except as prescribed for a student's use by a licensed practitioner.
(d) Tobacco, electronic cigarettes, and related products. Consistent with its efforts to promote wellness, fitness, and a campus environment conducive to work, study, and activities for staff, students, and the public, Clark College maintains a tobacco-free campus. The use of tobacco, electronic cigarettes, and related products in any building owned, leased, or operated by the college or in any location is prohibited. "Related products" include, but are not limited to, cigarettes, pipes, bidi, clove cigarettes, waterpipes, hookahs, chewing tobacco, and snuff.
(11) Lewd conduct. Conduct which is obscene, lewd, or indecent.
(12) Disorderly conduct. Conduct which disrupts campus operations or the educational environment, is disturbing the peace, or assisting or encouraging another person to disturb the peace.
(13) Discriminatory conduct. Discriminatory conduct which harms or adversely affects any member of the college community because of her/his race; color; national origin; sensory, mental or physical disability; use of a service animal; gender, including pregnancy; marital status; age (40+); religion; creed; genetic information; sexual orientation; gender identity; veteran's status; or any other legally protected classification. Such finding is considered an aggravating factor in determining a sanction for such conduct.
(14) Sexual misconduct. The term "sexual misconduct" includes sexual harassment, sexual intimidation, and sexual violence.
(a) Sexual harassment. The term "sexual harassment" means unwelcome conduct of a sexual nature, including unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature that is sufficiently serious as to deny or limit, and that does deny or limit, based on sex, the ability of a student to participate in or benefit from the college's educational program or that creates an intimidating, hostile, or offensive environment for other campus community members.
(b) Sexual intimidation. The term "sexual intimidation" incorporates the definition of "sexual harassment" and means threatening or emotionally distressing conduct based on sex including, but not limited to, nonconsensual recording of sexual activity or the distribution of such recording.
(c) Sexual violence. ((The term "sexual violence" incorporates the definition of "sexual harassment" and means a physical sexual act perpetrated without clear, knowing, and voluntary consent, such as committing a sexual act against a person's will, exceeding the scope of consent, or where the person is incapable of giving consent including rape, sexual assault, sexual battery, sexual coercion, sexual exploitation, gender- or sex-based stalking. The term further includes acts of dating or domestic violence. A person may be incapable of giving consent by reason of age, threat or intimidation, lack of opportunity to object, disability, drug or alcohol consumption, or other cause.)) "Sexual violence" is a type of sexual discrimination and harassment. Nonconsensual sexual intercourse, nonconsensual sexual contact, domestic violence, dating violence, and stalking are all types of sexual violence.
(i) Nonconsensual sexual intercourse is any sexual intercourse (anal, oral, or vaginal), however slight, with any object, 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.
(ii) Nonconsensual sexual contact is any intentional sexual touching, however slight, with any 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.
(iii) Domestic violence includes asserted violent misdemeanor and felony offenses committed by the victim's current or former spouse, current or former cohabitant, person similarly situated under domestic or family law, or anyone else protected under domestic or family violence law.
(iv) Dating violence means violence by a person who has been in a romantic or intimate relationship with the victim. Whether there was such a relationship will be gauged by its length, type, and frequency of interaction.
(v) Stalking means intentional and repeated harassment or following of another person, which places that person in reasonable fear that the perpetrator intended to injure, intimidate, or harass that person. Stalking also includes instances where the perpetrator knows or reasonably should know that the person is frightened, intimidated, or harassed, even if the perpetrator lacks such intent.
(vi) Consent: 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 he or she is unable to understand what is happening or is 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 nonconsensual conduct.
Intoxication is not a defense against allegations that an individual has engaged in nonconsensual sexual conduct.
(15) Harassment. Unwelcome and offensive conduct including verbal, nonverbal, or physical conduct, that is directed at a person because of such person's protected status and that is sufficiently serious as to deny or limit, and that does deny or limit, the ability of a student to participate in or benefit from the college's educational program or that creates an intimidating, hostile, or offensive environment for other campus community members. Protected status includes a person's race; color; national origin; sensory, mental or physical disability; use of a service animal; gender, including pregnancy; marital status; age (40+); religion; creed; genetic information; sexual orientation; gender identity; veteran's status; or any other legally protected classification. See "Sexual misconduct" for the definition of "sexual harassment." Harassing conduct may include, but is not limited to, physical conduct, verbal, written, social media, and electronic communications.
(16) Retaliation. Retaliation((, intimidation, threats, or coercion against anyone who asserts a right protected by)) against any individual for reporting, providing information, exercising one's rights or responsibilities, or otherwise being involved in the process of responding to, investigating, or addressing allegations or violations of federal, state, or local law, or college policies including, but not limited to, student conduct code provisions prohibiting discrimination and harassment((, or who cooperates in an investigation)).
(17) Theft or misuse of electronic resources. Theft or other misuse of computer time or other electronic information resources of the college. Such misuse includes, but is not limited to:
(a) Unauthorized use of such resources or opening of a file, message, or other item;
(b) Unauthorized duplication, transfer, or distribution of a computer program, file, message, or other item;
(c) Unauthorized use or distribution of someone else's password or other identification;
(d) Use of such time or resources to interfere with someone else's work;
(e) Use of such time or resources to send, display, or print an obscene or abusive message, text, or image;
(f) Use of such time or resources to interfere with normal operation of the college's computing system or other electronic information resources;
(g) Use of such time or resources in violation of applicable copyright or other law;
(h) Adding to or otherwise altering the infrastructure of the college's electronic information resources without authorization; or
(i) Failure to comply with the student computing resources policy. http://www.clark.edu/student_services/computing_resources/policy.php
(18) Unauthorized access. Unauthorized possession, duplication, or other use of a key, keycard, or other restricted means of access to college property, or unauthorized entry onto or into college property.
(19) Safety violations. Safety violations include any nonaccidental conduct that interferes with or otherwise compromises any college policy, equipment, or procedure relating to the safety and security of the campus community, including tampering with fire safety equipment and triggering false alarms or other emergency response systems.
(20) Abuse or misuse of any procedures. Abuse or misuse of any of the procedures relating to student complaints or misconduct including, but not limited to:
(a) Failure to obey a subpoena;
(b) Falsification or misrepresentation of information;
(c) Disruption or interference with the orderly conduct of a proceeding.
(d) Interfering with someone else's proper participation in a proceeding;
(e) Destroying or altering potential evidence or attempting to intimidate or otherwise improperly pressure a witness or potential witness;
(f) Attempting to influence the impartiality of, or harassing or intimidating, a student conduct committee member; or
(g) Failure to comply with any disciplinary sanction(s) imposed under this student conduct code.
(21) Motor vehicles. Operation of any motor vehicle on college property in an unsafe manner or in a manner which is reasonably perceived as threatening the health or safety of another person.
(22) Violation of other laws or policies. Violation of any federal, state, or local law, rule, or regulation or other college rules or policies, including college traffic and parking rules.
(23) Ethical violation. The breach of any generally recognized and published code of ethics or standards of professional practice that governs the conduct of a particular profession for which the student is taking a course or is pursuing as an educational goal or major.
In addition to initiating discipline proceedings for violation of the student conduct code, the college may refer any violations of federal, state, or local laws to civil and criminal authorities for disposition. The college shall proceed with student disciplinary proceedings regardless of whether the underlying conduct is subject to civil or criminal prosecution.
AMENDATORY SECTION (Amending WSR 98-19-066, filed 9/18/98, effective 10/19/98)
WAC 132N-300-001 Statement of policy.
(((1))) The college affirms a commitment to freedom from discrimination for all members of the college community. The responsibility for, and the protection of, this commitment extends to students, faculty, administration, staff, contractors, and those who develop or participate in college programs. It encompasses every aspect of employment and every student and community activity. The college expressly prohibits discrimination ((against any person)) on the basis of race, ((sex, creed, religion,)) color, national origin, age, perceived or actual physical or mental disability, pregnancy, genetic information, sex, sexual orientation, gender identity, marital status, ((the presence of any physical, sensory or mental disability, or status as a disabled or Vietnam-era veteran)) creed, religion, honorably discharged veteran or military status, or use of a trained guide dog or service animal. Harassment is a form of discrimination.
(((2) Definitions.
(a) Sexual harassment is a form of sex discrimination which involves the inappropriate introduction into the work or learning situation of sexual activities or comments that demean or otherwise diminish one's self worth on the basis of gender. Unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature constitute sexual harassment under any of the following conditions:
(i) When submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment or academic standing.
(ii) When submission to or rejection of such conduct by an individual is used as the basis for employment or academic decisions affecting such individual.
(iii) When such conduct has the purpose or effect of unreasonably interfering with an individual's work or academic performance or creating an intimidating, hostile, offensive working or educational environment.
Sexual harassment often involves relationships of unequal power and contains elements of coercion—as when compliance with requests for sexual favors becomes a criterion for granting work, study, or grading benefits. However, sexual harassment may also involve relationships among equals, e.g., student to student, as when repeated sexual advances or demeaning verbal behavior have a harmful effect on a person's ability to study or work.
Gender discrimination is the process of making a distinction in favor of, or against, a person or persons on the basis of sex rather than on individual merit. If gender is taken into account when making a decision regarding an employee, except when it is a bona fide occupational qualification or is otherwise authorized by law, or if an employee is sexually harassed, that person has been subjected to gender discrimination.
(b) Racial harassment is defined as physical or verbal conduct that is maliciously intended to harass, intimidate, or humiliate a person or persons on account of race, color, or national origin and that causes severe emotional distress, physical injury or damage or destruction to the property of another, or threatens and places a specific person or group of persons in reasonable fear of harm.
(c) Disabilities. People with disabilities are persons with a physical, mental, or sensory impairment which substantially limits one or more major life activities. An individual is disabled if he or she meets at least any one of the following tests:
(i) He or she is substantially impaired with respect to a major life activity; or
(ii) He or she has a record of such an impairment; or
(iii) He or she is regarded as having such an impairment.
(d) Disabled veteran. A person entitled to disability compensation under laws administered by the U.S. Department of Veterans Affairs, or a person whose discharge or release from active duty was for a disability incurred or aggravated in the line of duty.
(e) Vietnam-era veteran. A person who served on active duty for a period of more than one hundred eighty days, any part of which occurred between August 5, 1964, and May 7, 1975, and was discharged or released from duty with other than a dishonorable discharge.))
AMENDATORY SECTION (Amending WSR 98-19-066, filed 9/18/98, effective 10/19/98)
WAC 132N-300-010 Grievance procedure.
(((1) Any person who believes she or he has been discriminated against or harassed by Clark College or its employee(s) or agent(s) on the basis of race, sex, creed, religion, color, national origin, age, sexual orientation, marital status, the presence of any physical, sensory or mental disability, or status as a disabled or Vietnam-era veteran, may lodge a formal grievance. The college president delegates investigation of grievances on the basis of disability or disabled or Vietnam-era veteran status to the ADA Compliance Officer (ADACO). The college president delegates investigation of all other discrimination/harassment grievances to the college's affirmative action officer (AAO).
(a) Complaints should be filed within one hundred eighty days from the most recent incident. Where extraordinary circumstances are shown, the one hundred eighty-day limit may be waived by the ADACO or AAO.
(b) If the individualized education program (IEP) of a student provides for enrollment at Clark College or contracted special education or related services to be provided by the college, the school district which developed the IEP shall remain responsible for insuring that the requirements of chapter 392-172 WAC and the Individuals with Disabilities Education Act, 20 U.S.C. secs. 1400 et seq., including review and revisions to the IEP, are met.
(2)(a) Step 1: Informal meeting. In an attempt to informally resolve the concern, the complainant may request a meeting with the individual believed to have committed the discriminatory act (the respondent) or with the appropriate supervisor or president's designee. The time period in which attempts to informally resolve the concern are made shall not exceed thirty working days from the time the complaint is lodged.
(b) Step 2: Formal grievance procedure. The complainant may initiate a formal grievance.
(i) A formal grievance must be filed in writing and must set forth the specific grievance(s) raised by the complainant, including the dates, times, places, and circumstances surrounding his or her complaint. A form for this purpose is available from the ADACO or AAO; however, any written document is acceptable. Formal complaints may not be filed by e-mail.
(ii) Upon receipt of the grievance, the ADACO or AAO will conduct an investigation which includes, but is not limited to, interview(s) with the complainant, the respondent, and any additional persons necessary to determine the merit(s) of the complaint. The investigation should be completed within thirty working days.
(iii) Upon completion of the investigation, the ADACO or AAO will present a written report, including findings and conclusions to the complainant and the respondent. The report may include a recommendation by the ADACO or AAO for appropriate disciplinary or corrective action, or the report may be sent to the designated dean or administrator to determine appropriate disciplinary or corrective action.
(iv) If the complaint is found to be false and malicious, the ADACO or AAO will notify the designated dean or administrator for possible disciplinary action against the complainant.
(c) Step 3: Presidential appeal. If the complaint is not resolved at Step 2 the complainant may appeal to the college president.
(i) The appeal must be made in writing within twenty-one days after the report is issued.
(ii) Within twenty days after receiving the appeal, the college president or the president's designee will conduct the presidential review and report the results in writing to both the complainant and the respondent. The college president may affirm or modify the report, remand the case for further investigation, or dismiss the appeal.
(iii) The written results of the presidential review will be considered final. No further intra-institutional appeal exists.
(3) If desired, inquiries or appeals beyond the institutional level may be directed to:
(a) Equal employment opportunity commission.
(b) Washington state human rights commission.
(c) Regional director, office of civil rights, department of education.)) (1) Introduction.
Clark College recognizes its responsibility for investigation, resolution, implementation of corrective measures, and monitoring the educational environment and workplace to stop, remediate, and prevent discrimination on the basis of race, color, national origin, age, perceived or actual physical or mental disability, pregnancy, genetic information, sex, sexual orientation, gender identity, marital status, creed, religion, honorably discharged veteran or military status, or use of a trained guide dog or service animal, as required by Titles VI and VII of the Civil Rights Act of 1964, Title IX of the Educational Amendments of 1972, Sections 504 and 508 of the Rehabilitation Act of 1973, the Americans with Disabilities Act and ADA Amendments Act, the Age Discrimination Act of 1975, the Violence Against Women Reauthorization Act and Washington state's law against discrimination, chapter 49.60 RCW and their implementing regulations. To this end, Clark College has enacted policies prohibiting discrimination against and harassment of members of these protected classes. Any individual found to be in violation of these policies will be subject to disciplinary action up to and including dismissal from the college or from employment.
The responsibility for, and the protection of this commitment, extends to students, faculty, administration, staff, contractors, and those who develop or participate in college programs. It encompasses every aspect of employment and every student and community activity.
Any person who believes she or he has been discriminated against or harassed by Clark College or its employee(s) or agent(s) on the basis of any status listed in subsection (1) of this section, may request informal assistance and/or lodge a formal grievance. If the complaint is against that designee, the complainant should report the matter to the president's office for referral to an alternate designee.
The college president designates investigation of grievances on the basis of race, creed, religion, color, national origin, age, political affiliation, and/or marital status to: Associate vice-president of human resources and Title IX coordinator, human resources, Baird administration building (BRD) 133, 360-992-2619. The college president designates investigation of grievances on the basis of sex, sexual orientation, gender identity, or gender expression to: Special advisor for diversity and equity and Title IX deputy coordinator, office of diversity and equity, Gaiser hall (GHL) 214, 360-992-2355, and dean of student success and retention and Title IX deputy coordinator, student affairs office, Gaiser hall (GHL) 204, 360-992-2900. The college president designates investigation of grievances on the basis of any physical, sensory or mental disability, or status as a disabled, or honorably discharged veteran or military status to: ADA compliance coordinator, disability support services, Penguin Union building (PUB) 013, 360-992-2065.
The presidential designee:
• Will accept all complaints and referrals from college employees, applicants, students, and visitors.
• Will make determinations regarding how to handle requests by complainants for confidentiality.
• Will keep accurate records of all complaints and referrals for the required time period.
• May conduct investigations or delegate and oversee investigations conducted by a designee.
• May impose interim remedial measures to protect parties during investigations of discrimination or harassment.
• Will issue written findings and recommendations upon completion of an investigation.
• May recommend specific corrective measures to stop, remediate, and prevent the recurrence of inappropriate conduct.
The college encourages the timely reporting of any incidents of discrimination or harassment. Complaints may be submitted in writing or orally. For complainants who wish to submit a written complaint, a formal complaint form is available online at http://www.clark.edu/clark-and-community/about/policies-procedures/grievance_procedure.php. Hardcopies of the complaint form are available at the following locations on campus: Office of diversity and equity, Gaiser hall (GHL) 214; student affairs office, Gaiser hall (GHL) 204; or human resources office, Baird administration building (BRD) 133.
(2) Definitions.
(a) Complainant: Employee(s), applicant(s), student(s), or visitors(s) of Clark College who alleges that she or he has been subjected to discrimination or harassment due to his or her membership in a protected class.
(b) Complaint: A description of facts that allege violation of the college's policy against discrimination or harassment.
(c) Consent: 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 he or she is unable to understand what is happening or is 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 nonconsensual conduct.
(d) Discrimination: Unfavorable treatment of a person based on that person's membership or perceived membership in a protected class. Harassment is a form of discrimination.
(e) Harassment: A form of discrimination consisting of physical or verbal conduct that denigrates or shows hostility toward an individual because of their membership in a protected class or their perceived membership in a protected class. Harassment occurs when the conduct is sufficiently severe and/or pervasive and so objectively offensive that it has the effect of altering the terms or conditions of employment or substantially limiting the ability of a student to participate in or benefit from the college's educational and/or social programs. Petty slights, annoyances, offensive utterances, and isolated incidents (unless extremely serious) typically do not qualify as harassment. Examples of conduct that could rise to the level of discriminatory harassment include, but are not limited to, the following:
(i) Epithets, jokes, ridicule, mockery or other offensive or derogatory conduct focused upon an individual's membership in a protected class.
(ii) Verbal or physical threats of violence or physical contact directed toward an individual based upon their membership in a protected class.
(iii) Making, posting, e-mailing, texting, or otherwise circulating demeaning or offensive pictures, cartoons, graffiti, notes or other materials that relate to race, ethnic origin, gender or any other protected class.
(f) Protected class: Persons who are protected under state or federal civil rights laws, including laws that prohibit discrimination on the basis of race, color, national origin, age, perceived or actual physical or mental disability, pregnancy, genetic information, sex, sexual orientation, gender identity, marital status, creed, religion, honorably discharged veteran or military status, or use of a trained guide dog or service animal.
(g) Resolution: The means by which the complaint is finally addressed. This may be accomplished through informal or formal processes, including counseling, mediation, or the formal imposition of discipline sanction.
(h) Respondent: Person or persons who are members of the campus community who allegedly discriminated against or harassed another person or persons.
(i) Sexual harassment: A form of discrimination consisting of unwelcome, gender-based verbal, written electronic and/or physical conduct. Sexual harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person's gender. There are two types of sexual harassment.
(i) Hostile environment sexual harassment occurs when the conduct is sufficiently severe and/or pervasive and so objectively offensive that it has the effect of altering the terms or conditions of employment or substantially limiting the ability of a student to participate in or benefit from the college's educational and/or social programs.
(ii) Quid pro quo sexual harassment occurs when an individual in a position of real or perceived authority, conditions the receipt of a benefit upon granting of sexual favors.
Examples of conduct that may qualify as sexual harassment include:
• Persistent comments or questions of a sexual nature.
• A supervisor who gives an employee a raise in exchange for submitting to sexual advances.
• An instructor who promises a student a better grade in exchange for sexual favors.
• Sexually explicit statements, questions, jokes, or anecdotes.
• Unwelcome touching, patting, hugging, kissing, or brushing against an individual's body.
• Remarks of a sexual nature about an individual's clothing, body, or speculations about previous sexual experiences.
• Persistent, unwanted attempts to change a professional relationship to an amorous relationship.
• Direct or indirect propositions for sexual activity.
• Unwelcome letters, e-mails, texts, telephone calls, or other communications referring to or depicting sexual activities.
(j) Sexual violence: Is a type of sexual discrimination and harassment. Nonconsensual sexual intercourse, nonconsensual sexual contact, domestic violence, dating violence, and stalking are all types of sexual violence.
(i) Nonconsensual sexual intercourse is any sexual intercourse (anal, oral, or vaginal), however slight, with any object, 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.
(ii) Nonconsensual sexual contact is any intentional sexual touching, however slight, with any 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.
(iii) Domestic violence includes asserted violent misdemeanor and felony offenses committed by the victim's current or former spouse, current or former cohabitant, person similarly situated under domestic or family violence law, or anyone else protected under domestic or family violence law.
(iv) Dating violence means violence by a person who has been in a romantic or intimate relationship with the victim. Whether there was such relationship will be gauged by its length, type, and frequency of interaction.
(v) Stalking means intentional and repeated harassment or following of another person, which places that person in reasonable fear that the perpetrator intends to injure, intimidate, or harass that person. Stalking also includes instances where the perpetrator knows or reasonably should know that the person is frightened, intimidated, or harassed, even if the perpetrator lacks such intent.
(3) Who may file a complaint.
Any employee, applicant, student or visitor of the college may file a complaint. Complaints may be submitted in writing or verbally. The college encourages the timely reporting of any incidents of discrimination or harassment. For complainants who wish to submit a written complaint, a formal complaint form is available online at http://www.clark.edu/clark-and-community/about/policies-procedures/grievance_procedure.php. Hardcopies of the complaint form are available at the following locations on campus: Diversity center - GHL 214, vice-president of student affairs office - GHL 204, human resources office - BRD 133. Any person submitting a discrimination complaint shall be provided with a written copy of the college's antidiscrimination policies and procedures.
(4) Confidentiality and right to privacy.
Clark College will seek to protect the privacy of the complainant to the full 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 Clark College policies and procedures. Although Clark 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 presidential designee.
Confidentiality requests and sexual violence complaints. The presidential designee will inform and obtain consent from the complainant before commencing an investigation into a sexual violence complaint. If a sexual violence complainant asks that his or her name not be revealed to the respondent or that the college not investigate the allegation, the presidential designee 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 his or her name not be disclosed or that the college not investigate, the presidential designee 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:
• The seriousness of the alleged sexual violence;
• The age of the complainant;
• Whether the sexual violence was perpetrated with a weapon;
• Whether the respondent has a history of committing acts of sexual violence or violence or has been the subject of other sexual violence complaints;
• Whether the respondent threatened to commit additional acts of sexual violence against the complainant or others; and
• Whether relevant evidence can be obtained through other means (e.g., security cameras, other witnesses, physical evidence).
If the college is unable to honor a complainant's request for confidentiality, the presidential designee 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.
If the college decides not to conduct an investigation or take disciplinary action because of a request for confidentiality, the presidential designee will evaluate whether other measures are available to limit the effects of the harassment and prevent its recurrence and implement such measures if reasonably feasible.
(5) Investigation procedure.
Upon receiving a discrimination complaint, the college shall commence an impartial investigation. The presidential designee shall be responsible for overseeing all investigations. Investigations may be conducted by the presidential designee or his or her designee. If the investigation is assigned to someone other than the presidential designee, the presidential designee shall inform the complainant and respondent(s) of the appointment of an investigator.
(a) Interim measures. The presidential designee may impose interim measures to protect the complainant and/or respondent pending the conclusion of the investigation. Interim measures may include, but are not limited to, imposition of no contact orders, rescheduling classes, temporary work reassignments, referrals for counseling or medical assistance, and imposition of summary discipline on the respondent consistent with the college's student conduct code or the college's employment policies and collective bargaining agreements.
(b) Investigation. Complaints shall be thoroughly and impartially investigated. The investigation shall include, but is not limited to, interviewing the complainant and the respondent, relevant witnesses, and reviewing relevant documents. The investigation shall be concluded within a reasonable time, normally sixty days barring exigent circumstances. At the conclusion of the investigation the investigator shall set forth his or her findings and recommendations in writing. If the investigator is a designee, the investigator shall send a copy of the findings and recommendations to the presidential designee. The presidential designee shall consider the findings and recommendations and determine, based on a preponderance of the evidence, whether a violation of the discrimination and harassment policy occurred and, if so, what steps will be taken to resolve the complaint, remedy the effects on any victim(s), and prevent its recurrence. Possible remedial steps may include, but are not limited to, referral for voluntary training/counseling, development of a remediation plan, limited contact orders, and referral and recommendation for formal disciplinary action. Referrals for disciplinary action will be consistent with the student conduct code or college employment policies and collective bargaining agreements.
(c) Written notice of decision. The presidential designee will provide each party and the appropriate student services administrator or appointing authority with written notice of the investigative findings and of actions taken or recommended to resolve the complaint, subject to the following limitations:
(i) The complainant shall be informed in writing of the findings and of actions taken or recommended to resolve the complaint, if any, only to the extent that such findings, actions or recommendations directly relate to the complainant, such as a finding that the complaint is or is not meritorious or a recommendation that the accused not contact the complainant.
(ii) The complainant may be notified generally that the matter has been referred for disciplinary action.
(iii) The respondent shall be informed in writing of the findings and of actions taken or recommended to resolve the complaint and shall be notified of referrals for disciplinary action.
Both the complainant and the respondent are entitled to review any final findings, conclusions, and recommendations, subject to any FERPA confidentiality requirements.
(d) Informal dispute resolution. Informal dispute resolution processes, like mediation, may be used to resolve complaints, when appropriate. Informal dispute resolution shall not be used to resolve sexual discrimination complaints without written permission from both the complainant and the respondent. If the parties elect to mediate a dispute, either party shall be free to discontinue mediation at any time. In no event shall mediation be used to resolve complaints involving allegations of sexual violence.
(e) Final decision/reconsideration. Either the complainant or the respondent may seek reconsideration of the decision by the presidential designee. Requests for reconsideration shall be submitted in writing to the presidential designee within seven days of receiving the decision. Requests must specify which portion of the decision should be reconsidered and the basis for reconsideration. If no request for reconsideration is received within seven days, the decision becomes final. If a request for reconsideration is received, the presidential designee shall respond within seven days. The presidential designee shall either deny the request or, if the presidential designee determines that the request for reconsideration has merit, issue an amended decision. Any amended decision is final and no further reconsideration is available.
(6) Publication of antidiscrimination policies and procedures.
The policies and procedures regarding complaints of discrimination and harassment shall be published and distributed as determined by the president or president's designee. Any person who believes he or she has been subjected to discrimination in violation of college policy will be provided a copy of these policies and procedures.
(7) Limits to authority.
Nothing in this procedure shall prevent the college president or designee from taking immediate disciplinary action in accordance with Clark College policies and procedures, and federal, state, and municipal rules and regulations.
(8) Nonretaliation, intimidation, and coercion.
Retaliation by, for, or against any participant (including complainant, respondent, witness, presidential designee, or investigator) is expressly prohibited. Retaliatory action of any kind taken against individuals as a result of seeking redress under the applicable procedures or serving as a witness in a subsequent investigation or any resulting disciplinary proceedings is prohibited and is conduct subject to discipline. Any person who thinks he/she has been the victim of retaliation should contact the presidential designee immediately.
(9) Criminal complaints.
Discriminatory or harassing conduct may also be, or occur in conjunction with, criminal conduct. Criminal complaints may be filed with the following law enforcement authorities:
Vancouver Police Department
605 E. Evergreen Blvd.
Vancouver, WA 98661
360-487-7400
vanpd@cityofvancouver.us
Clark County Sheriff's Office
707 W. 13th Street
Vancouver, WA 98660
Mailing address: P.O. Box 410
Vancouver, WA 98666
Main phone: 360-397-2211
sheriff@clark.wa.gov
The college will proceed with an investigation of harassment and discrimination complaints regardless of whether the underlying conduct is subject to civil or criminal prosecution.
(10) Other discrimination complaint options.
Discrimination complaints may also be filed with the following federal and state agencies:
Washington State Human Rights Commission
http://www.hum.wa.gov/index.html
U.S. Department of Education Office for Civil Rights
http://www2ed.gov/about/offices/list/ocr/index.html
Equal Employment Opportunity Commission
http://www.eeoc.gov/