Academy at Elkin

Title IX and Sex/Gender-Based Misconduct Procedures

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Appalachian State University Academy at Elkin Title IX and Sex/Gender-Based Misconduct Procedures

I. Introduction

The Appalachian State University Academy at Elkin (“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 these procedures is to support the Academy’s commitment to providing an institutional environment free of sex and gender-based misconduct (collectively “Prohibited Conduct”), as well as to provide an administrative framework and oversight for reporting, investigating, adjudicating, and resolving alleged violations of Policy 112: Title IX and Sex/Gender-Based Misconduct. Complainants and Respondents are treated equitably throughout the procedures outlined below.

The Title IX Coordinator is responsible for overseeing institutional compliance with Title IX, the Violence Against Women Reauthorization Act of 2013 (“VAWA”), and other federal and state laws and mandates. The Title IX Coordinator can be reached as follows:

Title IX Coordinator/Director of Title IX Compliance
123 I.G. Greer Hall
ASU Box 32053
(828) 262-2144
titleix@appstate.edu

II. Scope

  1. These procedures apply 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” includes any person who may virtually or physically interact with the Academy and shall apply to: parents, family members, legal guardians, individuals from the community, vendors, contractors, and other persons doing business with or performing services on behalf of the Academy.
  2. These procedures apply to incidents of Prohibited Conduct when at least one Academy student is a Complainant or Respondent (individually referred to as “Party” or collectively as “Parties”).
  3. These procedures do not apply in instances when an Academy student is not a Complainant or Respondent. Title IX and Sex/Gender-Based Misconduct or Retaliation for non-students or non-Academy students shall be governed by Appalachian Policy 112: Title IX and Sex/Gender-Based Misconduct.
  4. These procedures apply to alleged incidents that take 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, events, or circumstances where the Academy exercises substantial control over both the Respondent and the context in which alleged Prohibited Conduct occurs.

III. Definitions

  1. 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 Title IX and Sex/Gender-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.
  2. Advisor: A person chosen by either Party to accompany the Party to meetings related to these procedures and to advise and assist the Party on the process. The Party can identify their own Advisor or request that an Advisor be appointed by the Academy.
  3. Appellate Officer: An individual with authority to decide appeals following a decision of responsibility and/or sanctions.
  4. Complainant: An individual alleged to be the victim of Prohibited Conduct. This may include a parent on behalf of their child in the event the child is under 18 years of age.
  5. Consent: For consent to be present, it must be knowing and voluntary, with clear permission, by word or action, to engage in sexual activity. No student under the age of 16 is able to consent to any sexual activity.
  6. Day: A business day in which the Academy is in normal operation.
  7. Decision-Maker: The Academy Principal, or designee, shall be the Decision-Maker for all formal grievances within these procedures, unless a conflict of interest and/or bias is determined, in which case the Title IX Coordinator will appoint a Decision-Maker.
  8. Education Program or Activity: Includes locations, events, or circumstances over which the Academy exercises substantial control over both the Respondent and the context in which the alleged Prohibited Conduct occurred.
  9. 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”).
  10. Formal Complaint: A document filed and signed by a Complainant or the Title IX Coordinator against a Respondent and requesting that the Academy initiate an informal or formal resolution process.
  11. Investigator: A neutral fact-finder tasked by the Title IX Coordinator with gathering testimonial and documentary evidence about the allegation(s) and compiling the information into an investigative report.
  12. Party or Parties: A reference to a Complainant(s) and Respondent(s), either separately or collectively.
  13. Preponderance of the Evidence: A standard of proof which requires a determination, based on the facts provided, that the allegations at issue are more likely true than not. Where the evidence reflects a greater than 50% chance that the allegations are true, the preponderance of the evidence standard is met.
  14. Respondent: Any individual alleged to be the perpetrator of Prohibited Conduct.
  15. 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.
  16. Sex/Gender-Based Prohibited Conduct: Misconduct that is not regulated by Title IX due to the location or nature of the incident.
  17. Title IX: Title IX of the Education Amendments of 1972 protects individuals from discrimination based on sex in education programs or activities that receive federal financial assistance.
  18. Title IX Coordinator: Appalachian State University’s Director of Title IX Compliance. The Director oversees compliance with Title IX, the Violence Against Women’s Act (VAWA), and other federal and state laws and mandates. This official oversees the implementation and administration of Policy 112. References to the Title IX Coordinator throughout these procedures may also encompass a designee.
  19. Title IX Prohibited Conduct: Misconduct on the basis of sex that is regulated by Title IX.
  20. Title IX Prohibited Conduct Process: A method of case resolution to address Title IX Prohibited Conduct, which complies with the requirements of the Title IX regulations.

IV. Prohibited Conduct

All members of the Academy community are prohibited from engaging in Title IX and Sex/Gender-Based Misconduct and Retaliation (collectively referred to in this policy as, “Prohibited Conduct”) regardless of the sex, gender, gender expression, gender identity, sexual orientation, and/or pregnancy of the Complainant or Respondent. The following conduct identifies categories of Prohibited Conduct:

  1. Title IX Prohibited Conduct
    Title IX Prohibited Conduct is the following misconduct that occurred in the United States and in the University’s education program or activity.

    1. Quid Pro Quo Sexual Harassment is conduct in which an employee of the Academy conditions the provision of an aid, benefit, or service of the Academy on an individual’s participation in unwelcome sexual conduct. 

      Quid pro quo sexual harassment applies whether the condition proposed is communicated expressly or implied. Examples of quid pro quo harassment include but are not limited to:

      1. A teacher offers a student a higher grade in a class in exchange for having sex with or going on a date with the teacher;
      2. A supervisor offers an employee a career advancement opportunity in exchange for having sex or going on a date with the supervisor; or
      3. An employee is offered an opportunity to serve on a University committee by another employee in exchange for a sexual relationship.
    2. Sexual Harassment is unwelcome conduct on the basis of sex that a reasonable person would determine is so severe, pervasive, and objectively offensive that it effectively denies a person equal educational access to the Academy’s education programs or activities. Such conduct includes unwelcome conduct of a sexual nature and may consist of unwelcome conduct based on sex or sex stereotyping.
      1. Intent Not Required. Sexual Harassment may exist regardless of the Respondent’s intent to cause harm.
      2. Evaluating Conduct. In assessing whether the unwelcome conduct is so severe, pervasive, and objectively offensive that it effectively denies a person equal access, the Academy shall use a Reasonable Person Standard that will take into account the totality of known circumstances in a particular situation, including but not limited to:
        1. The frequency, nature, and severity of the conduct;
        2. The age, disability status, and other characteristics of the parties;
        3. Whether the conduct was physically threatening;
        4. The effect of the conduct on the Complainant’s mental or emotional state;
        5. Whether the conduct was directed at more than one person;
        6. Whether the conduct arose in the context of other discriminatory conduct; and
        7. Whether the conduct unreasonably interfered with the Complainant’ educational or work performance and/or Academy programs or activities. 

          The term “effectively denies” does not require a Complainant to be entirely or physically excluded from educational opportunities and may be established when the conduct undermines and detracts from the student’s education experience or the employee’s performance.
    3. Sexual Assault is any sexual act directed against another person, without their consent, or instances in which the Complainant is incapable of giving consent. This includes the following sex offenses:1 
      1. Rape is 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.
      2. Fondling is the touching of the private body parts of another person (buttocks, groin, breasts), for the purpose of sexual gratification, without the consent of the Complainant.
      3. Incest is sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by North Carolina law.2
      4. Statutory Rape is sexual intercourse with a person who is under the statutory age of consent in the State of North Carolina, pursuant to North Carolina General Statutes.3 
    4. Dating Violence4 is conduct defined as violence on the basis of sex committed by a person (i) who is or has been in a social relationship of a romantic or intimate nature with the Complainant; and (ii) where the existence of such a relationship shall be determined based on a consideration of the following factors:
      1. The length of the relationship;
      2. The type of relationship; and
      3. 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.
    5. Domestic Violence is defined as violence on the basis of sex committed (i) by a current or former spouse or intimate partner of the Complainant; (ii) by a person with whom the Complainant shares a child in common; (iii) by a person who is cohabitating with or who has cohabitated with the Complainant as a spouse or intimate partner; (iv) by a person similarly situated to a spouse of the Complainant under the domestic or family violence laws of the State of North Carolina; or (v) 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.
    6. Sex-Based Stalking5 is defined as engaging in a Course of Conduct, on the basis of sex, 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.
      1. Course of Conduct. Course of conduct means two or more acts, including, but not limited to, acts in which a person directly, indirectly, or through third parties, by any actions, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates to or about another person, or interferes with another person’s property.
      2. Substantial Emotional Distress. Substantial emotional distress means significant mental suffering or anguish that may but does not necessarily require medical or other professional treatment or counseling.
  2. Sex/Gender-Based Prohibited Conduct 

    Sex/Gender-Based Prohibited Conduct that is not regulated by Title IX due to the location or nature of the incident is also prohibited by the Academy.
    1. Sex/Gender-Based Discrimination 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.);
      2. A student or prospective student’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.
    2. Sex/Gender-Based Quid Pro Quo Harassment is conduct where an employee or student of the Academy conditions the provision of an aid, benefit, or service on an individual’s participation in unwelcome sexual conduct. 

      Quid pro quo harassment applies whether the condition proposed by the employee or student is communicated expressly or implied. Examples of quid pro quo harassment include but are not limited to:
      1. A teacher offers a student a higher grade in class in exchange for having sex with or going on a date with the teacher;
      2. A supervisor offers an employee a career advancement opportunity in exchange for having sex with or going on a date with the supervisor; or
      3. A student is offered a leadership opportunity by a fellow student in exchange for a sexual relationship.
    3. Sex/Gender-Based Hostile Environment Harassment exists when unwelcome conduct on the basis of an individual’s perceived or actual sex/gender is sufficiently severe, persistent, or pervasive that it effectively denies a person equal educational access. Such conduct includes unwelcome conduct of a sexual nature and may consist of unwelcome conduct based on sex or sex stereotyping.
      1. Intent Not Required. Unwelcome conduct may exist regardless of the Respondent’s intent to cause harm.
      2. Evaluating Conduct. In assessing whether the unwelcome conduct is so severe, persistent, or pervasive that it effectively denies a person equal access, the Academy uses a Reasonable Person Standard that takes into account the totality of known circumstances in a particular situation, including but not limited to:
        1. The frequency, nature, and severity of the conduct;
        2. The age, disability status, and other characteristics of the parties;
        3. Whether the conduct was physically threatening;
        4. The effect of the conduct on the Complainant’s mental or emotional state;
        5. Whether the conduct was directed at more than one person;
        6. Whether the conduct arose in the context of other discriminatory conduct;
        7. Whether the conduct unreasonably interfered with the Complainant’ educational or work performance and/or Academy programs or activities;
        8. Whether the conduct implicates concerns related to academic freedom or protected speech.

          The term “effectively denies” does not require a Complainant to be entirely physically excluded from educational opportunities and may be established when the conduct so undermines and detracts from the student’s education experience or the employee’s performance.

          A hostile environment can be created by persistent or pervasive conduct or by a single or isolated incident, if sufficiently severe. The more severe the conduct, the less need there is to show a repetitive series of incidents to prove a hostile environment, particularly if the conduct is physical. A single incident of non-consensual sexual contact or non-consensual sexual intercourse, for example, may be sufficiently severe to constitute a hostile environment. In contrast, the perceived offensiveness of a single verbal or written expression, standing alone, is typically not sufficient to constitute a hostile environment.
    4. Non-Consensual Sexual Contact is any intentional (not incidental or accidental) sexual touching, however slight, with any object or body part, performed by a person upon another such person, without consent.

      Non-Consensual Sexual Contact includes intentional touching of the breasts, buttocks, groin, or genitals, whether clothed or unclothed, or intentionally touching another with any of these body parts; and making another touch you or themselves with or on any of these body parts.
    5. Non-Consensual Sexual Intercourse is any penetration, however slight, with any object or body part, performed by a person upon another person, without consent.

      Non-Consensual Sexual Intercourse includes vaginal penetration by a penis, object, tongue, or finger, anal penetration by a penis, object, tongue, or finger, and any contact, no matter how slight, between the mouth of one person and the genitalia of another person.
    6. Sexual Exploitation occurs when a person takes non-consensual or abusive sexual advantage of another for their own advantage or benefit, or to benefit or advantage anyone other than the one being exploited, and when that behavior does not otherwise constitute one of the other forms of Prohibited Conduct offenses. Examples of Sexual Exploitation include, but are not limited to:
      1. Causing the incapacitation of another person (through alcohol, drugs, or any other means) for the purpose of comprising that person’s ability to give consent;
      2. Allowing third parties to observe private sexual activity from a hidden location (e.g., closet) or through electronic means (e.g., live streaming of images);
      3. Prostituting another person;
      4. Non-consensual video, photo, or audio-taping of sexual activity and/or a person’s intimate parts, including the dissemination or posting of said sexual activity;
      5. Observing another person while they undress, are naked, or are engaging in sexual activity without their consent;
      6. Knowingly transmitting or exposing another person to a sexually transmitted infection or virus without the other’s knowledge; and
      7. Exposing one’s genitals in non-consensual circumstances or inducing another to expose their genitals.
    7. Intimate Partner Violence includes any act of violence or threatened act of violence that occurs between individuals who are involved or have been involved in a sexual, dating, spousal, or other intimate relationship. Intimate partner violence includes “dating violence” and “domestic violence,” as defined by VAWA. Existence of such a relationship shall be determined based on a consideration of the following factors:
      a. Length of the relationship;
      b. Type of relationship; and
      c. Frequency of interaction between the persons involved in the relationship.

      Intimate Partner Violence can include, but is not limited to, the following:

      1. Physical violence is when a person hurts or tries to hurt a partner by hitting, kicking, or using another type of physical force.

      2. Sexual violence is forcing or attempting to force a partner to participate in a sex act, sexual touching, or a non-physical sexual event (e.g., sexting) when the partner does not or cannot consent.

      3. Psychological aggression is the use of verbal and non-verbal communication with the intent to harm another person mentally or emotionally and/or to exert control over another person.

    8. Stalking is defined as 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.
      1. Course of Conduct means two or more acts, including, but not limited to, acts in which a person directly, indirectly, or through third parties, by any actions, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates to or about another person, or interferes with another person’s property.
      2. Substantial Emotional Distress means significant mental suffering, distress, or anguish that may, but does not necessarily require medical, mental health, or other professional treatment.
  3. Retaliation

    No Academy community member may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by these procedures, or because the individual has made a referral or complaint, provided information regarding a referral or complaint, assisted, participated or refused to participate in any manner in an investigation, proceeding, or hearing under these procedures.

    Seeking charges against a student Complainant for Student Behavior Policy/Code of Conduct violations that do not involve sex discrimination or sexual harassment, but arise out of the same facts or circumstances as a referral or complaint of sex discrimination or sexual harassment for the purpose of interfering with these procedures, constitutes retaliation.

    Complaints alleging retaliation should be reported immediately to the Title IX Coordinator and will be promptly addressed in accordance with these procedures.

  4. Related Terms. As used in Section IV, the following definitions and understandings apply:
    1. Coercion. Unreasonable pressure for sexual activity. Coercive conduct differs from seductive conduct based on factors such as the type and/or extent of the pressure used to obtain consent. When someone makes clear by words or actions that they do not want to engage in certain sexual activity, that they want to stop, or that they do not want to go past a certain point of sexual interaction, continued pressure beyond that point can be coercive.
    2. Consent. For consent to be present, it must be knowing and voluntary, with clear permission, by word or action, to engage in sexual activity. No student under the age of 16 is able to consent to any sexual activity.
    3. Force. The use of physical violence and/or physical imposition to gain sexual access. Force also includes threats, intimidation (implied threats), and coercion intended to overcome resistance or produce consent. Sexual activity that is forced is, by definition, non-consensual, but non-consensual sexual activity is not necessarily forced. Silence or the absence of resistance alone is not consent. The absence of resistance does not demonstrate consent. While resistance is not required or necessary, it is a clear demonstration of non-consent.
    4. Incapacitation. A person cannot consent if they are unable to understand what is happening or are disoriented, helpless, asleep, or unconscious for any reason, including by alcohol, medication, or other drugs.
      1. Incapacitation occurs when someone cannot make rational, reasonable decisions because they cannot give knowing/informed consent (e.g., understanding the “who, what, when, where, why, or how” of their sexual interaction).
      2. Incapacitation is determined by considering all relevant indicators of an individual’s state and is not synonymous with intoxication, impairment, blackout, and/or being drunk.
      3. Incapacitation also includes a person whose incapacity results from a temporary or permanent physical or mental health condition, intellectual disability, and/or involuntary physical restraint.

V. Reporting

Any person who believes they have been discriminated against or harassed in violation of Policy 112, or retaliated against for activities protected under Policy 112, 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 – Referral Form.

VI. Mandatory Reporter

All Appalachian State University employees as well as Academy employees who have knowledge or notice of Title IX and Sex/Gender-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 of receiving the information.

Employees who observe an incident of Prohibited Conduct are expected to intervene and stop the conduct in situations which they have supervisory control over the potential 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, the employee may be subject to discipline, up to and including termination.

VII. Anonymous Reporting

Except for Mandatory Reporters, individuals, including a Complainant, may report allegations of Prohibited Conduct anonymously. While the Academy will work to appropriately respond to and remedy the allegations reported anonymously, please be advised the Academy’s response may be limited. If a Complainant is requesting anonymity, the Title IX Coordinator will honor their request to the extent they are able after assessing any health and safety issues impacting the campus community.

VIII. Initial Assessment

Upon receipt of information regarding Prohibited Conduct, the Title IX Coordinator will make an initial assessment to determine if the alleged Prohibited Conduct falls under Policy 112 and respond to any immediate health or safety concerns raised by the information. The Title IX Coordinator or their designee will communicate with all reporters to acknowledge receipt of the report and provide information, as necessary, regarding subsequent appropriate action.

IX. Academy Campus Safety Assessment

The Title IX Coordinator may determine at any point during the procedures that the Academy Safety Assessment Team should conduct a Campus Safety Assessment of a Respondent.

Academy Campus Safety Assessment Team. The Academy Safety Assessment Team will include at a minimum: (i) the Title IX Coordinator, (ii) the Academy Principal, or designee, (iii) the Academy Resource Officer, (iv) the Academy Social Worker, and (v) a representative from the Appalachian Police Department. The Team may also include members such as the Academy Behavior Support Interventionist, the Academy School Counselor, or members from the Appalachian Office of Disability Resources, Counseling for Faculty/Staff, and/or Counseling and Psychological Services. The Title IX Coordinator will strive to have representatives from the areas above but has the discretion to make an assessment without a representative from each area.

An individualized safety and risk analysis must be performed in the event an immediate threat to the physical health or safety of any student or other individual exists. The Title IX Coordinator, 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. The Team conducts determinations under the presumption that the Respondent is not responsible for any alleged policy violation(s). 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.

Assessment Considerations. The Academy Safety Assessment Team will determine whether the reported information and any other available information provides a rational basis for concluding that there is a threat to the health or safety of the Complainant or any other member of the Academy community. The determination of the Team will be based upon a review of the totality of the known circumstances and will be guided by a consideration of the following risk factors:

  1. Whether the Respondent has prior arrests, is the subject of prior reports and/or complaints related to any form of Prohibited Conduct as outlined in these procedures;
  2. Whether the Respondent has a history of failing to comply with any Academy No Contact Directive, other Academy protective measures, and/or any judicial protective order;
  3. Whether the Respondent has threatened to commit violence or any form of Prohibited Conduct as outlined in these procedures;
  4. Whether the Prohibited Conduct involved multiple Respondents or Complainants;
  5. Whether the Prohibited Conduct involved physical violence. “Physical violence” means exerting control over another person through physical force. Examples of physical violence include hitting, punching, slapping, kicking, restraining, strangling, and brandishing or using any weapon;
  6. Whether the report reveals a pattern of Prohibited Conduct;
  7. Whether the Prohibited Conduct was facilitated through the use of “date-rape” or similar drugs or intoxicants;
  8. Whether the Prohibited Conduct occurred while the Complainant was unconscious, physically helpless, or unaware that the Prohibited Conduct was happening;
  9. Whether the Complainant is (or was at the time of the Prohibited Conduct) a minor (under 18); and/or
  10. Whether any other aggravating circumstances or signs of predatory behavior are present.

X. Supportive Measures

The Title IX Coordinator or designee will communicate with students and employees who fall under the scope of Policy 112 and may have experienced Prohibited Conduct. Individuals will be offered supportive measures, resources, and options for reporting.

Supportive Measures are non-disciplinary, non-punitive individualized services offered as appropriate, reasonably available, and without fee or charge to the Complainant or the Respondent. Supportive measures may be offered before or after the filing of a formal complaint or where no formal complaint has been filed. Such measures are designed to restore or preserve equal access to the Academy’s education programs or activities without unreasonably burdening either party. These measures are designed to protect the safety of all parties of the Academy’s educational environment and deter sexual harassment. Supportive measures may be temporary or permanent.

Supportive measures may include, but are not limited to: counseling, modifications of work or class schedules, school escort services, mutual no-contact directives between the parties, changes in work locations, leaves of absence, increased security and monitoring of certain areas of the Academy, and other similar measures. The Academy will maintain the privacy of any supportive measures provided under these procedures to the extent practicable. Supportive measures may include referrals to both confidential and private resources.

The Title IX Coordinator is responsible for coordinating the effective implementation of supportive measures.

XI. Formal Complaint

A formal complaint may be submitted from a Complainant’s official University email account, through the report form provided by the Title IX Coordinator, or in hard copy if signed. If the Complainant does not wish to file a formal complaint at the time of incident, they may choose to file one later.

  1. Formal Complaint Filed by a Complainant. If a formal complaint is filed by a Complainant, the Title IX Coordinator or designee will review and determine whether or not procedural grounds exist which would require a dismissal or Informal Resolution. In the event supportive measures may be appropriate, all potential measures and resolution options shall be discussed with the Complainant and their Advisor. For more information about Advisors and their roles within the process, please refer to section XIV below. The Title IX Coordinator will also assign an Investigator to investigate the allegation(s) as required.
  2. Formal Complaint Signed by the Title IX Coordinator. Where the Title IX Coordinator has determined that a Complainant’s request not to file a formal complaint cannot be honored because the request would impede the Academy’s ability to ensure the safety of either the Complainant or other members of the campus community, the Title IX Coordinator may file a formal complaint. The Title IX Coordinator is not a Complainant or party under these procedures. In such cases, the Title IX Coordinator will notify the Complainant that the Academy intends to proceed with an investigation, but the Complainant is not required to participate in the investigation or any other actions undertaken by the Academy. Written notice will be provided to all parties and include a notice of allegations and the identification of parties, if known. The Title IX Coordinator will provide information regarding the pending resolution even if the Complainant does not participate in the investigation or other actions.
  3. Consolidation of Formal Complaints. Where the allegations arise out of the same facts or circumstances, the Title IX Coordinator has the discretion to consolidate formal complaints:
    1. Against more than one Respondent;
    2. By more than one Complainant against one or more Respondents; or
    3. By one party against the other party (e.g. Counter-Complaint).
  4. Counter-Complaints. The Academy permits the filing of Counter-Complaints made in good faith. Counter-Complaints may be resolved through the same investigation as the initial formal complaint, or pursued after a resolution of the initial formal complaint, in which case a delay may occur. When Counter-Complaints are not made in good faith, they will be considered retaliatory and may be reviewed and investigated pursuant to these procedures.

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 a dismissal is required or appropriate. Should a formal complaint be dismissed due to a request from the Complainant to withdraw the formal complaint, the Complainant may later request to reinstate or refile the complaint. 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 Title IX Coordinator must dismiss a formal complaint under Title IX, if at any time during these procedures, it is determined that:
    1. the allegation(s) in the formal complaint would not constitute Title IX Prohibited Conduct even if proved;
    2. the allegation(s) in the formal complaint did not occur in an Academy educational program or activity;
    3. the allegation(s) did not occur against a person in the United States; or
    4. at the time of filing a formal complaint, the Complainant was not participating in or attempting to participate in the Academy’s education program or activity.

      A Title IX mandatory dismissal does not preclude the Academy from resolving allegations through the Sex/Gender-Based Prohibited Conduct Process when a formal complaint has been submitted.
  3. Discretionary Dismissal
    The Title IX Coordinator may dismiss a formal complaint if at any time during these procedures it is determined:
    1. the allegation(s) in the formal complaint would not constitute Sex/Gender-Based Prohibited Conduct even if proved;
    2. a Complainant notifies the Title IX Coordinator in writing that the Complainant would like to withdraw the formal complaint or any allegations therein;
    3. the Respondent is no longer enrolled in or employed by the Academy; or
    4. specific circumstances prevent the Academy from gathering evidence sufficient to reach a determination as to the formal complaint or allegations therein.

XIII. Notice of Investigation

If it is determined that an investigation will be initiated, then an Investigator will be assigned and the parties will receive a Notice of Investigation and Allegation(s).

XIV. Advisors

Each Party is permitted to have an Advisor accompany them for all meetings and interviews within these procedures. The parties may select whomever they wish to serve as their Advisor as long as the Advisor is not an employee involved in intake or an individual who is a part of the adjudication process. The Academy may appoint an Advisor, without fee or charge, to any party if the party chooses. If a Party chooses to obtain an advisor apart from one appointed by the Academy, the Party will be responsible for all potential costs associated with obtaining that advisor. In the event one party has an attorney as their Advisor, the Academy is not obligated to provide an attorney as the other party’s 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.

Expectations and Decorum. An Advisor will be required to complete specific paperwork regarding these procedures and the parameters of student or employee confidentiality before serving as an Advisor. If an Advisor interferes with the procedures, the Title IX Coordinator may remove them from the role.

XV. Informal Resolutions

Once a formal complaint has been filed and has not been subject to a mandatory or discretionary dismissal, either party may voluntarily request in writing to initiate an Informal Resolution. The request must come prior to reaching a determination regarding responsibility. The Academy may then, at the discretion of the Title IX Coordinator, facilitate an Informal Resolution that does not involve a full investigation and hearing. If the Title IX Coordinator determines that this is an appropriate resolution option, both parties must provide voluntary, written consent to proceed with the informal process.

At any time before reaching a final agreement, all parties have the right to withdraw from the Informal Resolution process and request a Formal Resolution process, or resume an investigation and hearing that has previously been initiated in regards to the formal complaint.

Note, however, that an Informal Resolution is not available where an employee is alleged to have engaged in Title IX Prohibited Conduct directed at a student.

  1. Notice. Before agreeing to participate in a voluntary, Informal Resolution process, the parties will receive written notice setting forth:
    1. A summary of the formal complaint including allegations;
    2. The requirements of the Informal Resolution process, including the circumstances under which it precludes the parties from resuming a formal complaint arising from the same allegations; and
    3. Any outcomes (i.e., sanctions, job actions, remedies, etc.) resulting from participating in the Informal Resolution process, including the records that will be maintained or could be shared.
  2. Facilitator. The Title IX Coordinator or an appointed trained facilitator will oversee the parties’ Informal Resolution. Either party should notify the Title IX Coordinator immediately if they believe that the facilitator has a conflict of interest or bias. Should the parties not reach an agreement and pursue or resume the Formal Resolution process, the facilitator may not be called as a witness in a hearing under these procedures.
  3. Agreement Process. The facilitator will meet separately with the parties to discuss possible resolutions to the formal complaint and to ascertain each party’s perspective regarding responsibility and sanctions. If the facilitator identifies a potential resolution, the facilitator will send all parties a proposed resolution in an electronic format and give the parties three (3) days to submit a written response, either agreeing with the proposed terms, suggesting changes to the agreement, or declining the proposed terms. The facilitator will correspond with the parties about any proposed modifications and send an updated resolution, if applicable. Parties will then have an additional three (3) days to consider the offered resolution. If all parties agree in writing to the Informal Resolution, the Resolution becomes final and may not be appealed. Should the parties not reach an agreement or a party does not fully participate in the Informal Resolution process (e.g., not meeting with the facilitator to discuss proposed terms), this process will end, and the formal resolution process may continue. In cases involving an employee Respondent, the appropriate office (Human Resources) must approve the proposed resolution before it is offered.
    1. Limitation. An Informal Resolution may not be an agreement to “waive” a hearing following an investigation in the Formal Resolution process.
    2. Determination. The agreement will include one of the following determinations which may result in sanctions and/or remedies (as outlined in Section XVIII):
      1. Assignment of No Finding to Respondent; or
      2. Assignment of Full or Partial Responsibility to Respondent.

When an Informal Resolution is accomplished, the appropriate sanction(s) 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. Investigations and Questioning of Other Party

Once a formal complaint has been filed and has not been subject to a mandatory and discretionary dismissal, a Formal Resolution process may commence if (i) there is a request by either party to pursue the Formal Resolution process or (ii) the Title IX Coordinator signed the formal complaint. Investigations will be conducted by trained Investigators in the Office of Title IX Compliance in accordance with the Appalachian’s Title IX and Sex/Gender-Based Misconduct Procedures available on the Office of Title IX Compliance website. An Investigator is a neutral fact-finder. Parties should notify the Title IX Coordinator immediately if they believe that the appointed Investigator has a conflict of interest or bias.

After a final investigative report is provided to the parties and the Decision-Maker, the Decision-Maker will afford the parties ten (10) business days to:

  • submit written, relevant questions that a party wants asked of any party or witness;
  • provide each party the answers to submitted questions; 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 Respondent committed the conduct alleged, or
  • if the questions and evidence concern specific incidents of the Complainant’s prior sexual behavior with respect to the Respondent and are offered to prove consent.

XVII. 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.

XVIII. Range of Sanctions

  1. Sanctions

    Where there is a finding of responsibility, the Academy may impose one or more sanctions on the Respondent and/or provide remedies to the Complainant designed to restore or preserve equal access to the Academy’s education program or activity. In keeping with the Academy’s commitment to foster an environment that is safe, inclusive, and free from discrimination and harassment, these procedures provide wide latitude to impose sanctions and/or remedies that are tailored to the facts and circumstances of the formal complaint, the impact of the conduct on the Complainant and the Academy community, and accountability of the Respondent. The imposition of sanctions and/or remedies is intended to eliminate the Prohibited Conduct, prevent its recurrence, and remedy its effects while supporting the Academy’s educational mission and legal obligations.
    1. Factors to Be Assessed in Sanctioning. In assessing any sanction in light of a finding of responsibility, the Academy shall, at a minimum, consider the following:
      1. The nature and severity of the conduct and the degree of any damage, injury, or harm resulting from it;
      2. The impact of the conduct on the Complainant or other relevant parties;
      3. The impact of implications of the conduct on the Academy and the Academy community;
      4. Prior or subsequent misconduct of the Respondent, including the Respondent’s relevant prior discipline history;
      5. Maintenance of a safe and respectful educational environment;
      6. Information provided in an impact or mitigation statement;
      7. Any other mitigating, aggravating, or compelling circumstances relevant to the misconduct; and
      8. The professional judgment of the Decision-Maker.
    2. Range of Sanctions

      The range of sanctions for Prohibited Conduct by a Respondent may include, alone or in combination, but are not limited to, any of the following: [Note: Failure to comply with any administered sanction(s) resulting from an Informal or Formal Resolution process, or implemented remedies such as a No Contact Directive may result in a referral for review of additional policy violations.] Additionally, any other sanction(s) determined appropriate may be included.
      1. Warning. Official disciplinary action conveying to the Respondent that their behavior was unacceptable and that any future violation of Prohibited Conduct as outlined in these Procedures may result in more severe disciplinary action, including a New Classroom Placement, Out-of-School Suspension, or Expulsion.
      2. Loss of Privileges. Removing the ability for the Respondent to engage in specific privileges for a specified period of time.
      3. Participation in Educational Programming. Participation in educational programming, which may include Restorative Circle(s)/Restorative Meeting(s), Administrative Conference(s) with the Respondent, Modeling Appropriate Behavior activities, initial Counseling intake, evaluation, and compliance with any recommendations, reflection pieces, or other activities.
      4. Parental/Guardian Contact. Sending official Academy notification to the parent/guardian of the Respondent regarding the outcome from these Procedures.
      5. Letter of Apology. A letter, drafted by the Respondent, addressed to the Complainant providing an apology for the Respondent’s actions of Prohibited Conduct.
      6. No Contact Directive. A restriction of contact with other specified members of the Academy.
      7. New Classroom Placement. A placement of the Respondent to a new classroom within the Respondent’s grade level at the Academy.
      8. Out-of-School Suspension. Separation of the Respondent from the Academy for a specified number of days. During the period of Out-of-School Suspension, the Respondent is not permitted to be present on Academy premises or to be engaged in Academy-sponsored activities.
      9. Expulsion. Permanent separation of the Respondent from the Academy. The Respondent is not permitted to be present on Academy premises or to be engaged in Academy-sponsored activities.
  2. Remedies

    In addition to sanctions, specific remedies may be necessary to restore or preserve the Complainant’s equal access to the Academy’s education program or activity. Remedies, unless they directly affect the Respondent, will not be disclosed to the Respondent. Remedies may include Supportive Measures (Section X) and other remedies that burden the Respondent, including but not limited to:

    1. Imposition or extension of a No Contact Directive;

    2. Reimbursement for counseling or other medical expenses related to Prohibited Conduct;

    3. Imposition or extension of academic modifications;

    4. Imposition or extension of increased monitoring, supervision, and/or security at locations or in connection with activities where the Prohibited Conduct occurred or is likely to reoccur;

    5. Targets or broad-based educational programming or training for relevant persons or groups;

    6. Imposition of one or more restorative remedies to encourage a Respondent to develop insight about the Prohibited Conduct, learn about the impact of that Prohibited Conduct on the Complainant and the Academy community, and identify how to prevent that Prohibited Conduct in the future;

    7. Imposition of any other remedial or protective measures that are tailored to achieve the goals of these procedures to promote a safe, nondiscriminatory environment.

XIX. Appeals and Response to Notice of Outcome

Parties will be given an opportunity to submit a written statement against (“Appeal”) or in support (“Response”) of the final determination.

An appeal is an objective, independent review designed primarily to detect any significant errors in the investigation or outcome of a formal complaint, including the dismissal of a formal complaint. The result of an Informal Resolution is not subject to appeal. The appeal is not an opportunity for a party to reexamine each aspect of the Decision-Maker’s decision or seek a de novo (i.e. from the beginning) review. Instead, the basis for the appeal is to focus on specific aspects of the written final determination, such as procedural irregularities, that could have affected the outcome of the formal complaint.

The response is an opportunity for parties to submit a statement in support of the final determination. Parties may wish to provide this response should an appeal be filed by the other party, or to document their support of the outcome of the formal complaint.

  1. Timeline for Submission. Appeals and responses must be written and submitted to the Title IX Coordinator within five (5) business days of notice of a dismissal or a formal complaint or of receiving a Notice of Outcome from a Formal Resolution. Appeals must include a rationale and supporting evidence for any of the grounds for appeals listed below.
  2. Grounds for Appeal. The Complainant or Respondent may file an appeal 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; and
    3. the Title IX Coordinator, Investigator(s), or Decision-Maker(s) had a conflict of interest or bias for or against Complainants or Respondents generally or the individual Complainant or Respondent that affected the outcome of the matter.
  3. Appeal Process.
    1. Notice of Appeal. The Title IX Coordinator will simultaneously notify all parties in writing when an appeal is filed.
    2. Designation of Appellate Officer. Within three (3) days of receiving an appeal, the Title IX Coordinator will assign the appeal to a trained Appellate Officer who was not previously involved in any process as outlined in these procedures.
    3. Appeal Packet. The Title IX Coordinator will provide the Appellate Officer with an Appeal Packet containing the following: (i) the appeal; (ii) the non-appealing party’s response to the Notice of Outcome, if provided; (iii) the Final Investigative Report; (iv) the Decision-Maker(s)’s written determination; (v) any information reviewed and considered by the Investigator or Decision-Maker(s); and (vi) all evidence submitted to the Investigator or Decision-Maker(s).
    4. Appeal Outcome. The Appellate Officer has the authority to: (i) affirm all or part of the decision (which includes the determination of responsibility, as well as the sanction(s)); and/or (ii) recommend the case be referred to the same or new Investigator(s) or Decision-Maker(s) for further consideration.
    5. Notice of Appeal Outcome. The Appellate Officer, with assistance from the Title IX Coordinator, will issue the outcome of the appeal within ten (10) days of receiving the Appeal Packet unless the Appellate Officer requests an extension of the timeline from the Title IX Coordinator for good cause. The appeal outcome letter will explain the result of the appeal and the rationale for the Appellate Officer’s decision.
  4. Sanctions During Pendency of Appeals
    Sanctions shall not be imposed during the pendency of any appeals.

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
Josh Cutchens
Appalachian State University Interim Director of Title IX Compliance
Office of Title IX Compliance
828-262-2144
cutchensjb@appstate.edu

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

1Title IX regulation 34 C.F.R. ⸹ 106.30(a) defines “Sexual Assault” as the forcible and non-forcible sex offenses in the Clery Act at 20 U.S.C. 1092(f)(6)(A)(v).

2 N.C.G.S. ⸹ 14-178.

3 N.C.G.S. ⸹ 14-27.25; N.C.G.S. ⸹ 14-27.23.

4 The Title IX regulation at 34 C.F.R. ⸹ 106.30(a) defines “Dating and Domestic Violence” as defined in 34 U.S.C. 12291(a)(8) and 34 U.S.C. 12291(a)(10).

5 The Title IX regulation at 34 C.F.R. ⸹ 106.30(a) defines Stalking as defined in 34 U.S.C. 12291(a)(30).