Addressing Alleged Acts of Sexual Harassment

Procedural Overview Under Title IX of the Education Amendments of 1972 (20 U.S.C. 1681) and its implementing regulations (34 C.F.R. 106), sexual harassment is a form of prohibited sex discrimination. Title IX provides that, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving Federal financial assistance.” The South Carolina Technical College System is committed to fostering an environment that is free from unlawful discrimination on the basis of sex, including sexual harassment and sexual assault. Any questions regarding Title IX may be referred to the college’s Title IX coordinator. Each college must prominently display the contact information required for the Title IX coordinator (name or title, telephone number, e-mail address, and office address) on its website, if any, and in each handbook, catalog, or publication that it makes available to persons entitled to a notification. In addition, colleges should include contact information for the U.S. Department of Education’s Office of Civil Rights. The Student Code for the South Carolina Technical College System (SBTCE Procedure 3-2-106.1) sets forth the rights and responsibilities of the individual student, identifies behaviors that are not consistent with the values of college communities, and describes the procedures that will be followed to adjudicate cases of alleged misconduct. The Student Code for Addressing Alleged Acts of Sexual Harassment (SBTCE Procedure 3-2-106.2) applies to behavior or complaints alleging acts of sexual harassment on college property, or in an education program or activity. This Code does not apply to persons outside of the United States. In order to proceed through the sexual harassment grievance process detailed herein, a formal complaint must be filed with or by a Title IX coordinator and meet the following elements.

1. The alleged activity falls within the definition of sexual harassment as defined in Section II (CC.);
2. The alleged activity occurred within a college’s education program or activity; and
3. The alleged activity occurred against a person physically located in the United States.

Complaints reported to the college’s Title IX coordinator which do not meet the above elements shall be adjudicated under the grievance process outlined in the Student Code for the South Carolina Technical College System (SBTCE Procedure 3-2-106.1). The Nondiscrimination, Anti-Harassment, and Sexual Misconduct procedure of the South Carolina Technical College System (SBTCE Procedure 8-5-101.1) shall apply in situations where complaints are made against employees of a college. Any person may report sex discrimination, including sexual harassment (whether the person reporting is the person alleged to be the victim of conduct that could constitute sex discrimination or sexual harassment) to the Title IX Coordinator at any time, including nonbusiness hours, via the phone number, e-mail address or office mailing address listed for the Title IX coordinator. Irrespective of whether a report of sexual harassment is anonymous, a college with actual knowledge of sexual harassment or allegations of sexual harassment in the college’s education program or activity against a person in the United States must respond promptly in a manner that is not deliberately indifferent, meaning not clearly unreasonable in light of the known circumstances. In some cases, campus authorities may become aware of allegations of sexual harassment via local law enforcement. These allegations may also be addressed by this Procedure. The State Board for Technical and Comprehensive Education and its member colleges encourage the prompt reporting of sexual harassment to campus security and local law enforcement. The complainant may also file a criminal report regarding the alleged conduct. However, Title IX investigations are separate from criminal investigations. In some cases, colleges may need to temporarily delay the fact-finding portion of a Title IX investigation while law enforcement gathers evidence. Contact information for local law enforcement and campus security is available on the colleges’ websites. Retaliatory acts, which may include giving students failing grades, preventing students from participating in school activities, and threatening expulsion against any individual who exercises his or her rights under Title IX are considered to be discrimination and are unlawful. Colleges are prohibited from intimidating, threatening, coercing, or discriminating against any individual for the purpose of interfering with any right or privilege secured by Title IX.

Definitions When used in this document, unless the context requires other meaning,

1. “Actual Knowledge” means notice of sexual harassment or allegations of sexual harassment to a college’s Title IX coordinator or any official of the college who has authority to institute corrective measures on behalf of the college.
2. An “Advisor” is someone who is present to help the complainant or respondent understand the proceedings and to conduct cross-examination on behalf of the party during a live hearing.
3. An “Appeals Officer” is a person designated by a college to hear an appeal of a dismissal of a formal complaint or a decision-maker determination.
4. D. An “Approved Method of Notification” means any communication from college personnel through a communication channel to which the student has consented, or which confirms receipt of the communication by the student, such as a hand-delivered letter, restricted mail delivery services, or e-mail. A student who communicates with the college via e-mail or otherwise provides an e-mail address in connection with communications relating to a grievance thereby consents to the service of documents and all other correspondence associated with the grievance by e-mail, and the date and time of such e-mail(s) shall be deemed the date and time of service.
5. “Chief Student Services Officer” means the Administrative Officer at the college who has overall management responsibility for student services, or his/her designee.
6. “Close of Business” means the time that the administrative offices of the college close on that specific workday.
7. “College” means any college in the South Carolina Technical College System.
8. “Complainant” means an individual who is alleged to be the victim of conduct that could constitute sexual harassment.
9. “Consent” is clear, knowing, and voluntary agreement. Consent is active, not passive. Silence, in and of itself, cannot be interpreted as consent. Consent can be given by words or actions, as long as those words or actions create mutually understandable clear permission regarding willingness to engage in (and the conditions of) sexual activity. Consent to any one form of sexual activity cannot automatically imply consent to any other forms of sexual activity. Previous relationships or prior consent cannot imply consent to future sexual acts.
10. “Dating Violence” means violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim, where the existence of such a relationship shall be determined based on a consideration of the following factors: the length of the relationship; the type of relationship; and the frequency of interaction between the persons involved in the relationship.
11. A “Decision-Maker” is someone (who cannot be the same person as the Title IX coordinator or the investigator) who issues a written determination with findings of fact, conclusions about whether the alleged conduct occurred, rationale for the result as to each allegation, any disciplinary sanctions imposed on the respondent, and whether remedies will be provided to the complainant.
12. “Domestic Violence” includes felony or misdemeanor crimes of violence committed by a person who is a current or former spouse or intimate partner of the victim, or person similarly situated to a spouse of the victim; is cohabitating or has cohabitated with the victim as a spouse or intimate partner; shares a child in common with the victim; or commits acts against youth or adult victim who is protected from those acts under the family or domestic violence laws of the jurisdiction. Such acts may include the use or attempted use of physical abuse or sexual abuse, or a pattern of any other coercive behavior committed, enabled, or solicited to gain or maintain power and control over a victim, including verbal, psychological, economic, or technological abuse that may or may not constitute criminal behavior.
13. “Education Program or Activity” includes locations, events, or circumstances over which the college exercised substantial control over both the respondent and the context in which the sexual harassment occurs, and includes any building owned or controlled by a student organization that is officially recognized by the college.
14. “Exculpatory Evidence” is evidence that creates a reasonable doubt that a respondent engaged in the conduct alleged in a complaint.
15. “Fondling” is the touching of the private parts of another person for the purpose of sexual gratification without the consent of the victim, including instances where the victim is incapable of giving consent because of his/her age or because his/her temporary or permanent mental incapacity.
16. “Formal Complaint” means a document filed by a complainant with the Title IX coordinator or signed by the Title IX coordinator alleging sexual harassment against a respondent and requesting that the college investigate the allegation of sexual harassment. A report of behavior to the Title IX coordinator or other college official does not constitute a formal complaint.
17. “Incest” is sexual intercourse between persons who are related to each other within degrees wherein marriage is prohibited by law (see S.C. Code Ann. § 16-15-20).
18. “Inculpatory Evidence” is evidence indicating that a respondent engaged in the conduct alleged in the complaint.
19. “Instructional Days” means any weekday (M-F) in which classes are in session.
20. “Instructor” means any person employed by the college to conduct classes.
21. An “Investigator” is someone who acts as a neutral party in the investigation and provides a detailed, unbiased report regarding the findings of the investigation.
22. “Official with Authority” means an official of the college with authority to institute corrective measures. Officials with authority are those personnel designated by a college who would be considered to have actual knowledge upon receiving notice of alleged sexual harassment.
23. “Preponderance of the Evidence” is the standard used to evaluate the evidence for purposes of making findings and drawing conclusions for an investigation or hearing conducted under this Procedure. The preponderance of evidence standard means it is more likely than not that the conduct complained of occurred.
24. A “Report” is notice from a complainant of alleged sexual harassment, other than a formal complaint, made to the Title IX coordinator or an official with authority.
25. “Rape” is 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 victim.
26. “Respondent” means an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment.
27. “Retaliation” is adverse action taken against an individual for engaging in protected activity. No college or other person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by 34 C.F.R. Part 106 (Title IX), or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under Title IX. Intimidation, threats, coercion, or discrimination, including charges against an individual for code of conduct violations that do not involve sex discrimination or sexual harassment but arise out of the same facts or circumstances as a report or complaint of sex discrimination, or a report or formal complaint of sexual harassment, for the purpose of interfering with any right or privilege secured by Title IX, constitutes retaliation.
28. “Sexual Assault” is defined as rape, fondling, incest, and statutory rape as defined herein.
29. “Sexual Harassment” means conduct on the basis of sex that satisfies one or more of the following: (1) An employee of the college conditioning the provision of an aid, benefit, or service of the college on an individual’s participation in unwelcome sexual conduct (i.e. quid pro quo); (2) 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 college’s education program or activity; or (3) sexual assault, dating violence, domestic violence, or stalking as defined herein.
30. “Staff” means any person employed by the college for reasons other than conducting classes.
31. “Stalking” means engaging in a course of conduct directed at a specific person that would cause a reasonable person to (1) fear for his or her safety or the safety of others; or (2) suffer substantial emotional distress. For the purposes of this definition: “Course of conduct” means two or more acts, including, but not limited to, acts 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; “reasonable person” means a person of ordinary prudence and action under the circumstances in which the course of conduct occurs; and “substantial emotional distress” means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.
32. “Statutory rape” is sexual intercourse with a person who is under the statutory age of consent (see S.C. Code Ann. § 16-3-655)
33. “Student” means an individual currently enrolled in a program and/or registered for the current or upcoming academic term.
34. “Supportive Measures” are non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the complainant or the respondent. Supportive Measures may include counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, campus 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 campus, and other similar measures.
35. A “Third–Party Reporter” is an individual who files a complaint on behalf of another individual alleging violation of this policy.
36. A “Title IX Coordinator” is an employee designated by the college to coordinate its efforts to comply with and carry out its responsibilities under 34 C.F.R. Part 106 (Title IX), including any investigation of any complaint communicated to such college alleging its noncompliance with Title IX or alleging any actions which would be prohibited by Title IX.

Receipt of Reports and Formal Complaints

1. Reports. A report of alleged sexual harassment to a Title IX coordinator or any official of the college who has authority constitutes actual knowledge. The college must maintain a list of college personnel who are considered officials with authority to institute corrective measures and may name additional responsible employees who must report sexual harassment to the Title IX coordinator. An official with authority who receives a report of alleged sexual harassment must promptly notify the Title IX coordinator of the report. A report is not considered to be a formal complaint but initiates the offering of supportive measures.
2. Formal Complaints. A Title IX coordinator may receive a formal complaint alleging sexual harassment by phone, mail, e-mail, or any other approved method of notification. Receipt of a formal complaint must be acknowledged in writing by the Title IX coordinator to the complainant within three (3) instructional days of submission of the complaint. Formal complaints may be initiated by a complainant or the Title IX coordinator. Upon determining a formal complaint meets the elements set forth in Section I of this Procedure, the college’s sexual harassment grievance process is initiated.

Supportive Measures Upon receiving or being made aware of a report alleging sexual harassment, regardless of whether a formal complaint has been filed, the Title IX coordinator must provide supportive measures to both the complainant and the respondent. The Title IX coordinator is responsible for coordinating the effective implementation of supportive measures and must consider a complainant’s wishes with respect to measures provided. Measures provided shall be kept confidential unless disclosure is necessary to provide the measures, such as in the case of a no-contact order. Such measures should restore or preserve equal access to the education program or activity without unreasonably burdening the other party.

Interim suspension or expulsion of a respondent is not included in the list of supportive measures. Emergency removal of a respondent from an educational program or activity is allowable only after conducting a safety and risk analysis and determining there is an immediate threat to the physical health or safety of any student or other individual arising from the allegations of sexual harassment that justifies removal. The respondent must be provided with notice of the removal and an opportunity to challenge the decision immediately following the removal. Such a challenge must be made to the Title IX coordinator in writing through an approved method of notification within two (2) instructional days of the removal and include a rationale for why the emergency removal should be rescinded. A respondent may not be subject to an emergency removal without full and appropriate consideration of applicable disability laws, such as Section 504 of the Rehabilitation Act and the Americans with Disabilities Act, in order to preserve equal education access.

Sexual Harassment Grievance Process The sexual harassment grievance process must include reasonably prompt time frames determined by the college and written into policy for conclusion of the grievance process (from the filing of a formal complaint to the written determination by the decisionmaker), informal resolutions, and appeals. The college’s policy must also include an explanation and examples of time extensions beyond the published policy, and such extensions must be temporary and justified by good cause.

Dismissal of a Formal Complaint The college must dismiss formal complaints alleging sexual harassment if the conduct in the alleged complaint does not meet the definition of sexual harassment as contained herein; if the conduct did not occur in the college’s education program or activity; or if the conduct did not occur against a person in the United States. However, the complaint may be investigated under the Student Code for the South Carolina Technical College System (SBTCE Procedure 3-2-106.1) if it violates a college’s student code of conduct.

A college may dismiss a formal complaint under this Procedure if, at any time, a complainant notifies the Title IX coordinator that the he or she wishes to withdraw the complaint; if the respondent is no longer enrolled at the college; or if specific circumstances prevent the college from gathering evidence sufficient to reach a determination. If a formal complaint is dismissed, written notice containing reason(s) for the dismissal must be made by an approved method of notification and provided to both parties. Dismissal of a formal complaint can be appealed.