WSR 20-18-002
[Filed August 20, 2020, 8:34 a.m., effective August 20, 2020, 8:34 a.m.]
Effective Date of Rule: Immediately upon filing.
Purpose: To adopt new Title IX grievance procedures as mandated by the United States Department of Education.
Citation of Rules Affected by this Order: Amending WAC 495C-121-200 through 495C-121-230.
Statutory Authority for Adoption: RCW 28B.50.140; WSR 14-11-070.
Other Authority: United States Department of Education 34 C.F.R. Part 106.
Under RCW 34.05.350 the agency for good cause finds that state or federal law or federal rule or a federal deadline for state receipt of federal funds requires immediate adoption of a rule.
Reasons for this Finding: Per new regulations detailed in 34 C.F.R. Part 106 (Docket ID ED-2018-OCR-0064), adopting the revised Title IX grievance procedures was mandated by August 14, 2020.
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 1, Repealed 0; Federal Rules or Standards: New 0, Amended 1, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 1, Repealed 0.
Number of Sections Adopted at the Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's own Initiative: New 0, Amended 0, Repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.
Number of Sections Adopted using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.
Date Adopted: August 13, 2020.
Joyce Loveday
WAC 495C-121-240Purpose.
Clover Park Technical College (CPTC) 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 Educational Amendments 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, CPTC has enacted a Title IX policy and adopted the following Title IX grievance procedure for receiving and investigating sexual harassment allegations arising during education programs and activities. Any individual found responsible for violating CPTC's Title IX policy is subject to disciplinary action up to and including dismissal from CPTC'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 CPTC'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 CPTC's code of student conduct, employment contracts, employee handbooks, and collective bargaining agreements.
WAC 495C-121-250Definitions.
For purposes of this Title IX grievance procedure, the following terms are defined as follows:
(1) "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 nonconsensual conduct. Intoxication is not a defense against allegations that an individual has engaged in nonconsensual sexual conduct.
(2) "Complainant" means an individual who is alleged to be the victim of conduct that could constitute sexual harassment.
(3) "Respondent" means an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment.
(4) "Formal complaint" means a writing submitted by the complainant or signed by the Title IX coordinator alleging sexual harassment against a respondent and requesting that CPTC conduct an investigation.
(5) "Education program or activity" includes locations, events, or circumstances over which CPTC 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 CPTC.
(6) "Grievance procedure" is the process CPTC uses to initiate, informally resolve, and/or investigate allegations that an employee or student has violated Title IX provisions prohibiting sexual harassment.
(7) "Supportive measures" are nondisciplinary, nonpunitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the complainant or 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 CPTC's education 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 CPTC's educational environment and/or to deter sexual harassment or retaliation. Supportive measures may include, but are not limited to, (a) counseling and other medical assistance, (b) extensions of deadlines or other course-related adjustments, (c) modifications of work or class schedules, (d) leaves of absence, (e) increased security or monitoring of certain areas of campus, and (f) imposition of orders prohibiting the parties from contacting one another in housing or work situations. 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.
(8) "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 495C-121-190.
(9) "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:
(a) Quid pro quo harassment. A CPTC employee conditioning the provision of an aid, benefit, or service of CPTC on an individual's participation in unwelcome sexual conduct.
(b) 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 CPTC's educational programs or activities or CPTC employment.
(c) Sexual assault. Sexual assault includes the following conduct:
(i) 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.
(ii) 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.
(iii) 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.
(iv) 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.
(d) 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.
(e) 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:
(A) The length of the relationship;
(B) The type of relationship; and
(C) The frequency of interaction between the persons involved in the relationship.
(f) 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.
(10) "Title IX administrators" are the Title IX coordinator, Title IX investigators, the student conduct officer, student conduct committee members, conduct review officer, and CPTC provided advisors assigned to the parties by CPTC during Title IX disciplinary proceedings.
(11) "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:
(a) Accepting and processing all Title IX reports, referrals, and formal complaints.
(b) Executing and submitting a formal complaint when appropriate and necessary.
(c) Handling requests for confidentiality.
(d) Determining during the grievance procedure:
(i) Whether a formal complaint should be dismissed either in whole or in part, and if so;
(ii) Providing notice to both parties about why dismissal was necessary or desirable; and
(iii) Referring the complaint to the appropriate disciplinary authority for proceedings outside the jurisdiction of Title IX.
(e) 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.
(f) Conducting investigations or assigning and overseeing investigations.
(g) 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 education programs and activities and are protected from further discrimination or retaliation.
(h) 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.
(i) Recommending nondisciplinary corrective measures to stop, remediate, and/or prevent recurrence of discriminatory conduct to disciplinary authorities and other CPTC administrators.
WAC 495C-121-260Principles for Title IX grievance procedure.
(1) 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.
(2) Before imposing discipline, CPTC 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.
(3) CPTC 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.
(4) The investigator shall base investigation results on all relevant evidence, including both exculpatory and inculpatory evidence.
(5) Formal and informal resolutions will be pursued within reasonably prompt time frames with allowances for temporary delays and extensions for good cause shown. Grounds for temporary delay include, but are not limited to, school breaks, illness/health concerns, timing in the quarter (finals, registration, etc.), and other reasonable scheduling issues. Good cause supporting a request for an extension includes, but is not limited to: A party, a party's advisor, or a witness being unavailable, concurrent law enforcement activity, and the need for language assistance or accommodation of disabilities. Both parties will receive written notice of any temporary delay or extension for good cause with an explanation of why the action was necessary.
(6) A respondent found responsible for engaging in sexual harassment may receive discipline up to and including dismissal from CPTC. A description of other possible disciplinary sanctions and conditions that may be imposed against students can be found in WAC 495C-121-060.
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 in the applicable collective bargaining agreement, the applicable college policy, and/or the employee handbook.
(7) In proceedings against a student respondent, the parties may appeal the student conduct committee's ruling to the president pursuant to WAC 495C-121-110 and supplemental Title IX student conduct code procedures, WAC 495C-121-230.
In proceedings against an employee respondent, the parties may appeal the employee disciplinary decision to the president within fourteen calendar days.
(8) 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:
(a) Spousal/domestic partner privilege;
(b) Attorney-client and attorney work product privileges;
(c) Privileges applicable to members of the clergy and priests;
(d) Privileges applicable to medical providers, mental health therapists, and counselors;
(e) Privileges applicable to sexual assault and domestic violence advocates; and
(f) Other legal privileges identified in RCW 5.60.060.
WAC 495C-121-270 Title IX administratorsFree from biasTraining requirements.
(1) Title IX administrators shall perform their duties free from bias or conflicts.
(2) Title IX administrators shall undergo training on the following topics:
(a) The definition of sexual harassment under these procedures;
(b) The scope of CPTC's educational programs and activities;
(c) How to conduct an investigation;
(d) How to serve impartially without prejudgment of facts, conflicts of interest, or bias;
(e) Use of technology used during an investigation or hearing;
(f) The relevance of evidence and questions; and
(g) Effective report writing.
(3) All Title IX administrator training materials shall be available on CPTC's Title IX webpage.
WAC 495C-121-280Filing 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 CPTC's Title IX coordinator identified below. If the complaint is against the Title IX coordinator, the complainant should report the matter to the president's office for referral to an alternate designee.
Name: Kirk Walker
Title: Director HR, Title IX Coordinator
Office: 253-589-5533
WAC 495C-121-290Confidentiality.
(1) CPTC 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 CPTC policies and procedures. Although CPTC 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.
(2) 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 CPTC not investigate the allegation, the Title IX coordinator will inform the complainant that maintaining confidentiality may limit CPTC'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 CPTC not investigate, the Title IX coordinator will determine whether CPTC can honor the request and at the same time maintain a safe and nondiscriminatory environment for all members of the CPTC community, including the complainant. Factors to be weighed during this determination may include, but are not limited to:
(a) The seriousness of the alleged sexual harassment;
(b) The age of the complainant;
(c) Whether the sexual harassment was perpetrated with a weapon;
(d) 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;
(e) Whether the respondent threatened to commit additional acts of sexual harassment or violence against the complainant or others; and
(f) Whether relevant evidence about the alleged incident can be obtained through other means (e.g., security cameras, other witnesses, physical evidence).
(3) If CPTC 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.
If CPTC 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.
The following sections of the Washington Administrative Code are repealed:
WAC 495C-121-200
Supplemental definitions.
WAC 495C-121-210
Supplemental sexual misconduct procedures.
WAC 495C-121-220
Supplemental complaint process.
WAC 495C-121-230
Supplemental appeal rights.