CUNY Policy on Sexual Misconduct

General Session Fall 2021

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INTRODUCTION �TO THE POLICY

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CUNY Policy on Sexual Misconduct� (“The Policy”)�

• Defines prohibited Sexual Misconduct
• Outlines resources available to those affected by Sexual Misconduct
• Details CUNY’s procedures for investigating and adjudicating allegations of Sexual Misconduct

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The Policy also:

• Prohibits Retaliation and Knowingly Submitting False Information and Evidence
• Identifies Confidential and Responsible Employees
• Addresses/prohibits certain Intimate Relationships
• Identifies the role of the Title IX Coordinator
• Discusses CUNY/Campus specific Training Obligations

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The Policy is based on federal, state and local laws:�

• Federal law – Title IX
• State law – New York Education Law Article 129-B (“Enough is Enough”)
• Local law – New York City Human Rights Law
• Every time there is a change in the law, CUNY must review and revise this Policy.
• UPDATE: March 2021 – the Biden administration directed the Secretary of Education with the Attorney General to review the May 2020 regulations.
• UPDATE: July 2021- A federal district court in Massachusetts has struck down one of the most controversial requirements of the 2020 Title IX Final Rules prohibiting decision-makers from considering statements not subject to cross-examination in their determinations, finding it to be “arbitrary and capricious.”
• UPDATE: August 2021 - OCR indicated that they would cease on the prohibition against statements not subject to cross-examination Post-secondary institutions are no longer subject to this portion of the provision.

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GOALS FOR THIS TRAINING…�

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This training is designed to:

• Address the following, required training topics:
• The definition of Title IX Sexual Harassment
• How to conduct an investigation and grievance process in compliance with the revised Policy and Title IX regulations
• Some specific topics we will address:
• The scope of CUNY’s education program or activity
• How to serve impartially
• Issues of relevance

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This training is designed to train the following PSM Stakeholders:�

• Title IX Coordinators and Title IX Investigators
• Members of the CUNY-wide Sexual Misconduct Panel (who will serve as decisionmakers on the Adjudication and Appeals Committees)
• Informal Resolution Facilitators
• CUNY-appointed cross examination advisors
• Presenters
• Student Conduct Officers
• Designated Campus Presenters
• Human Resources Staff

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In addition to this general training session, CUNY is providing the following, specialized and role specific trainings:�

• CUNY-wide Sexual Misconduct Panel – Including Chairpersons (October 20, 2021 – 10:00 a.m. – 1:00 p.m.)
• CUNY-appointed cross examination advisors (October 21, 2021 – 10:00 a.m. – 1:00 p.m.)
• Title IX Coordinators Training (October 22, 2021 – 10:00 a.m. – 1:00 p.m.
• Presenters Training (October 27, 2021 – 10:00 a.m. – 1:00 p.m.)
• Informal Resolution Facilitators Training (designed for Facilitators and Title IX Coordinators) (November 4, 2021 – 10:00 a.m. – 1:00 p.m.)
• Zoom Technical Training (TBD)

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Summary of Major Changes to PSM, necessitated by the regulations�

• Two sets of procedures
• Title IX Sexual Harassment
• Non-Title IX Sexual Misconduct
• Title IX Grievance Process
• Non-Title IX Sexual Misconduct Process

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CUNY’s Two Procedure Structure:��Title IX Sexual Harassment �&�Non-Title IX Sexual Misconduct�

• Why two sets of procedures?
• The strict and complex Title IX Grievance Procedure for Title IX Sexual Harassment matters are not required when Sexual Misconduct falls outside the scope of Title IX Sexual Harassment
• CUNY determined that it would not use the Title IX Grievance Procedure for Non-Title IX Sexual Misconduct matters

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CUNY �Policy on Sexual Misconduct�

Initial Evaluation of Allegations

• Upon learning of allegations of Sexual Misconduct – 

Evaluate:  Do the allegations fall within the definition of Title IX Sexual Harassment?

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• Alleged behavior, if true, constitutes Title IX Sexual Harassment; AND at the time the report was filed, Complainant is participating, or attempting to participate in CUNY's educational program or activity

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T9 Sexual Harassment Matters

Non-T9 Sexual Misconduct Matters

Promptly Offer supportive measures *template*

Promptly offer supportive measures *template*

Is there a Title IX Formal Complaint? 

Yes

Formal Resolution

 (Investigation/Hearing)

No

Internal close out memo after unsuccessful attempts to contact complainant, etc.

Appeal Adjudication Committee Determination of Responsibility to Appeals Committee

Yes

Informal 

Resolution

No

Report sent to President

Referral for

discipline

No

disciplinary 

action

Student Respondents Disciplinary Hearing

Appeal  Adjudication Committee decision to 

Appeals Committee

Employee Respondent

In accordance with CUNY policies, rules and CBAs

Yes

No

Dismissal of Formal Complaint prior to Resolution

*template*

Appeal dismissal to University T9 Director

Is there a Non-Title IX Sexual Misconduct Allegation?

• Complainant refuses to cooperate
• Lack of Jurisdiction
• Insufficient Evidence

Investigation

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Informal Resolution

Close out memo to the file

Title IX Sexual Harassment Matters

• If conduct meets the USDOE definition of Title IX Sexual Harassment – must follow Title IX Grievance Procedure
• Parties are entitled to the Title IX Grievance Procedure if the alleged conduct meets the Title IX Sexual Harassment definition

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The USDOE defines�Title IX Sexual Harassment as…

Conduct on the basis of sex that occurs in CUNY’s education program or activity against a person in the United States and that satisfies one or more of the following: (1) a CUNY employee conditioning the provision of an aid, benefit, or service of CUNY on an individual’s participation in unwelcome sexual conduct; (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 CUNY’s education program or activity; or (3) Sexual Assault, Dating Violence, Domestic Violence, or Stalking as defined in this Policy.

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• Title IX Sexual Harassment��Conduct on the basis of sex that occurs in CUNY’s education program or activity against a person in the United States and that satisfies one or more of the following: ��(1) a CUNY employee conditioning the provision of an aid, benefit, or service of CUNY on an individual’s participation in unwelcome sexual conduct; ��(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 CUNY’s education program or activity; or ��(3) Sexual Assault, Dating Violence, Domestic Violence, or Stalking as defined in this Policy.��

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• “On the basis of sex”
• The Regulations don’t specify what this means
• CUNY’s policy interprets “based on sex” to include sexual orientation, gender, gender expression and gender identity, including transgender status.

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• Title IX Sexual Harassment��Conduct on the basis of sex that occurs in CUNY’s education program or activity against a person in the United States and that satisfies one or more of the following: ��(1) a CUNY employee conditioning the provision of an aid, benefit, or service of CUNY on an individual’s participation in unwelcome sexual conduct; ��(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 CUNY’s education program or activity; or ��(3) Sexual Assault, Dating Violence, Domestic Violence, or Stalking as defined in this Policy.���

• “that occurs in CUNY’s education program or activity...”

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• “Education Program or Activity” is defined in the regulations to “includes locations, events, or circumstances over which the recipient exercised substantial control over both the respondent and the context in which the sexual harassment occurs, and also includes any building owned or controlled by a student organization that is officially recognized by a postsecondary institution.”106.44(a)

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“that occurs in CUNY’s education program or activity...”�

• Off campus activity does not necessarily mean the behavior is outside CUNY’s education program or activity
• Off campus that likely is within CUNY’s education program or activity:
• CUNY sponsored trips or CUNY-related travel
• CUNY sponsored events held off campus
• Off campus review session organized by a TA
• Off campus that likely is not within CUNY’s education program or activity:
• Off campus review session organized by students
• Off campus social gatherings among students
• Off campus domestic/dating violence

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“that occurs in CUNY’s education program or activity...”

• Key questions (If the answer is “yes” to any of these questions, consider the off-campus behavior as part of CUNY’s education program or activity)
• (1) Did the off-campus incident occur as part of CUNY’s “operations”?
• (2) Did CUNY exercise substantial control over the respondent and the context in which the incident occurred?
• Did CUNY fund, promote or sponsor the event or circumstance where the incident occurred?
• (3) Did the incident occur at an off-campus building owned or controlled by a student organization officially recognized by CUNY?

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“That occurs in CUNY’s education program or activity...”

• What about electronic behavior?
• Yes. “[P]rogram or activity” encompass “all of the operations of” such recipients, and such “operations” may certainly include computer and internet networks, digital platforms, and computer hardware or software owned or operated by, or used in the operations of, the recipient.

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• Title IX Sexual Harassment��Conduct on the basis of sex that occurs in CUNY’s education program or activity against a person in the United States and that satisfies one or more of the following: ��(1) a CUNY employee conditioning the provision of an aid, benefit, or service of CUNY on an individual’s participation in unwelcome sexual conduct; ��(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 CUNY’s education program or activity; or ��(3) Sexual Assault, Dating Violence, Domestic Violence, or Stalking as defined in this Policy.�

• “Against a person in the United States …”

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• Title IX Sexual Harassment��Conduct on the basis of sex that occurs in CUNY’s education program or activity against a person in the United States and that satisfies one or more of the following: ��(1) a CUNY employee conditioning the provision of an aid, benefit, or service of CUNY on an individual’s participation in unwelcome sexual conduct; ��(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 CUNY’s education program or activity; or ��(3) Sexual Assault, Dating Violence, Domestic Violence, or Stalking as defined in this Policy.�

• Quid Pro Quo
• “Something for something”

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• Title IX Sexual Harassment��Conduct on the basis of sex that occurs in CUNY’s education program or activity against a person in the United States and that satisfies one or more of the following: �(1) a CUNY employee conditioning the provision of an aid, benefit, or service of CUNY on an individual’s participation in unwelcome sexual conduct; ��(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 CUNY’s education program or activity; or ��(3) Sexual Assault, Dating Violence, Domestic Violence, or Stalking as defined in this Policy.�

• Hostile Environment
• “Severe, Pervasive and Objectively Offensive”
• Must meet all three
• Denies a person equal access to CUNY’s education program or activity
• Denied Equal access, not total access

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• Title IX Sexual Harassment��Conduct on the basis of sex that occurs in CUNY’s education program or activity against a person in the United States and that satisfies one or more of the following: ��(1) a CUNY employee conditioning the provision of an aid, benefit, or service of CUNY on an individual’s participation in unwelcome sexual conduct; ��(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 CUNY’s education program or activity; or ��(3) Sexual Assault, Dating Violence, Domestic Violence, or Stalking as defined in this Policy.

• Regulations require Clery/VAWA definitions
• CUNY’s Policy cites to CUNY’s definitions, which encompass the Clery/VAWA definitions
• To note - First and Third prongs do not need to satisfy the “severe, pervasive and objectively offensive” standard

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WHAT ABOUT...�

• Sex based harassment that does not meet the severe, pervasive and objectively offensive standard?
• A sexual assault between students that occurs at a private residence?
• Sexual Misconduct with a reasonable connection to CUNY, that occurs outside the United States?

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Summary of Major Changes to PSM, necessitated by the regulations�

• Two sets of procedures
• Title IX Sexual Harassment
• Non-Title IX Sexual Misconduct
• Title IX Grievance Process
• Non-Title IX Sexual Misconduct Process

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Non-Title IX Sexual Misconduct Matters

• Prohibited Sexual Misconduct that does not meet the USDOE definition of Title IX Sexual Harassment
• A different process which largely mirrors the CUNY investigation and adjudication process that existed under previous versions of the Policy, with a few changes and updates.

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CUNY �Policy on Sexual Misconduct�

Initial Evaluation of Allegations

• Upon learning of allegations of Sexual Misconduct – 

Evaluate:  Do the allegations fall within the definition of Title IX Sexual Harassment?

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• Alleged behavior, if true, constitutes Title IX Sexual Harassment; AND at the time the report was filed, Complainant is participating, or attempting to participate in CUNY's educational program or activity

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T9 Sexual Harassment Matters

Non-T9 Sexual Misconduct Matters

Promptly Offer supportive measures *template*

Promptly offer supportive measures *template*

Is there a Title IX Formal Complaint? 

Yes

Formal Resolution

 (Investigation/Hearing)

No

Internal close out memo after unsuccessful attempts to contact complainant, etc.

Appeal Adjudication Committee Determination of Responsibility to Appeals Committee

Yes

Informal 

Resolution

No

Report sent to President

Referral for

discipline

No

disciplinary 

action

Student Respondents Disciplinary Hearing

Appeal  Adjudication Committee decision to 

Appeals Committee

Employee Respondent

In accordance with CUNY policies, rules and CBAs

Yes

No

Dismissal of Formal Complaint prior to Resolution

*template*

Appeal dismissal to University T9 Director

Is there a Non-Title IX Sexual Misconduct Allegation?

• Complainant refuses to cooperate
• Lack of Jurisdiction
• Insufficient Evidence

Investigation

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Informal Resolution

Close out memo to the file

Summary of Major Changes to PSM, necessitated by the regulations�

• Two sets of procedures
• Title IX Sexual Harassment
• Non-Title IX Sexual Misconduct
• Title IX Grievance Process
• Non-Title IX Sexual Misconduct Process

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Title IX Grievance Process - From Start to Finish�

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Title IX Formal Complaint�

• Initiates the Title IX Grievance Process
• Required before the grievance process can proceed
• Receipt requires that CUNY follow the Title IX Grievance Process

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• What is a Title IX Formal Complaint?
• In short: “A document alleging Title IX Sexual Harassment against a respondent.”
• But, it’s not that simple - Form and Substance requirements:

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Title IX Formal Complaint�

• Form
• Filed by a complainant (or a Title IX Coordinator – those circumstances to be addressed in that breakout session)
• Physical document, email or electronic submission
• Complainant’s physical or digital signature or otherwise indicates that the complainant is the person filing the complaint

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• CUNY Sexual Misconduct Allegation Form
• A tool, not a requirement
• CUNY is prohibited from requiring that a complainant utilize a specific institutional form for this purpose

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Title IX Formal Complaint (cont).

• Substance
• Must allege behavior, which if true, meets the definition of Title IX Sexual Harassment
• There is no requirement of a detailed statement of facts in the Regulations
• But to meet the “severe, pervasive and objectively offensive standard” - some level of detail would be required to ensure the allegations met the definition of Title IX Sexual Harassment
• Requesting that CUNY investigate the allegations
• Is there a statute of limitations?
• No, but the requirement that a complainant be participating in or attempting to participate in CUNY’s education program or activity at the time of filing the Title IX Formal Complaint operates as a de facto statute of limitations

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Initiation of Title IX Grievance Procedure�

• Notification to “known parties” that the college is commencing a Title IX Grievance Procedure
• Written Notice

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Dismissal of a Title IX Formal Complaint�

• Mandatory Dismissals
• If, at any time after receipt of the Title IX Formal Complaint, it becomes clear that the allegations, if true, do not meet the definition of Title IX Sexual Harassment
• Must dismiss

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Dismissal of a Title IX Formal Complaint�

• Discretionary Dismissals
• May dismiss
• The complainant notifies the Title IX Coordinator in writing that the complainant would like to withdraw the Title IX Formal Complaint or any allegations therein;
• The respondent is no longer enrolled or employed by CUNY; or
• Specific circumstances exist that prevent the college from gathering evidence sufficient to reach a determination as to the Title IX Formal Complaint or allegations therein.

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Process following dismissal�

• Written dismissal notice – will include:
• Basis for dismissal
• Whether the allegations will proceed as a Non-Title IX Sexual Misconduct Matter
• The parties’ right to appeal and procedures for doing so
• Appeals decided by University Title IX Director
• A Title IX Coordinator must wait until an appeal under this section is decided by the University Title IX Director before taking any further action as a Non-Title IX Sexual Misconduct matter.

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Formal Resolution and Investigation�

• Investigation
• The Title IX Coordinator is responsible for conducting investigations in a prompt, thorough, and impartial manner
• The college must make reasonable efforts to ensure that the investigation is carried out within a reasonably prompt timeframe.
• CUNY’s Policy – 120 days upon receipt of the Title IX Formal Complaint

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Formal Resolution and Investigation ��Party rights during the investigation

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• To offer evidence -
• including both fact and expert witnesses and
• other inculpatory and exculpatory evidence;

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Formal Resolution and Investigation ��Party rights during the investigation

• To exclusion of medical records, unless the college obtains the party’s voluntary, written consent
• includes the college’s access, consideration, disclosure or other use
• records that are made or maintained by a physician, psychiatrist, psychologist or other recognized professional or paraprofessional

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Formal Resolution and Investigation ��Party rights during the investigation

• To exclude questions and evidence about their own sexual predisposition or prior sexual behavior,
• Exceptions -
• (1) to prove that someone other than the respondent committed the conduct alleged by the complainant, or
• (2) complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent (complainant only)

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Post Investigation Review of Relevant Documents and Materials�

• Parties have the right to:
• Inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in a Title IX Formal Complaint, including inculpatory or exculpatory evidence whether obtained from a party or other source, consistent with FERPA and other law; and
• To submit a written response within ten (10) days of receiving said evidence and
• To have that written response considered by the Title IX Coordinator prior to the investigative report being finalized;
• The parties and their advisors must sign an agreement not to disseminate any of the evidence subject to inspection and review or use such evidence for any purpose unrelated to the Title IX grievance process.

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Investigative Report

• Must fairly summarize relevant evidence
• Required Elements:

1. Procedural history of the case;

2. Alleged Policy violations;

3. A list of individuals interviewed;

4. A list of exhibits;

5. A list of additional documents and materials (not included as an exhibit) obtained as part of the investigation and directly related to the allegations, including inculpatory or exculpatory evidence; and

6. A summary of party and witness statements and other relevant evidence, including a summary of relevant evidence pertaining to each allegation.

• The Investigative report for Title IX Sexual Harassment matters does not include a recommendation regarding responsibility.

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Investigative Report (cont.)

• The Title IX Coordinator should ensure they have received a signed copy of the agreement not to disseminate the investigation report from all parties (and the parties advisors)
• Parties have the right to a copy of a de-identified finalized report for their review and written response
• The Title IX Coordinator will send the report to each party (and the party’s advisor, if applicable) even if the two parties know each other
• This must happen at least ten (10) days prior to any hearing because the parties have ten (10) days to respond, and the responses must be received prior to the hearing, because …
• The report and the parties’ written responses will be shared with the Adjudication Committee and other party prior to a hearing

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Hearing

• Parties have the right to a hearing.
• CUNY’s Policy – Hearing within 60 days after completion of the investigation
• Partial/all remote hearings OK - “technology enabling participants to see and hear each other simultaneously”
• Scheduling the Hearing

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Hearing (cont.)

• Scheduling the Hearing
• After the investigative phase is complete – Title IX Coordinator will notify necessary parties that the matter is ready for a hearing
• Student Respondents:
• University Title IX Director
• Office of Student Affairs
• Employee Respondents
• University Title IX Director
• Office of Human Resources/College Labor Designee

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Hearing (cont.)

• University Title IX Director will...
• Facilitate the selection and scheduling of the Adjudication Committee
• Determine an appropriate physical location for the hearing (centralized location or on parties’ home campus?)
• Student Affairs or HR will …
• Help coordinate the hearing, such as providing for a physical meeting space on campus (if needed), facilitate the remote platform, record the hearing and arrange for campus presenter and CUNY-appointed cross examination advisors, as needed.
• Issue a Notice of Hearing
• Date/time/location
• Notice of allegations identified in investigative report
• Rights of the parties during the hearing

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Review of Evidence before Hearing�

• To the parties:
• At least 5 days prior to hearing...
• List of documents and evidence college intends to use at the hearing
• Any materials not provided during investigative stage
• Copy of the other party’s written response to the investigative report
• To the Adjudication Committee:
• At least 5 days prior to the hearing...
• Investigative Report, including exhibits
• Parties’ responses to the investigative report

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Hearing Procedures�

• All hearings are closed hearings
• Participants:
• College
• Respondent
• Complainant

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Roles and Responsibilities�

• Adjudication Committee
• Adjudication Committee Chairperson
• College Presenter
• Advisor
• CUNY-appointed Cross Examination Advisor

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Roles and Responsibilities – Adjudication Committee�

• Decisionmaker
• Adjudication Committee = 3 members of the CUNY-wide Sexual Misconduct Panel

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• Student respondents

(1) Faculty or HEO*

(2) Student

(3) Chairperson (Faculty or HEO)

• Employee respondents - Faculty

(1) Faculty

(2) Faculty

(3) Chairperson (Faculty or HEO)

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• Employee respondents – HEO

(1) HEO

(2) HEO

(3) Chairperson (Faculty or HEO)

• Employee respondents – other
1. Faculty
2. Faculty or HEO
3. Chairperson (Faculty or HEO)

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*HEO refers to Higher Education Officer series employees

Roles and Responsibilities – Adjudication Committee

• Prior to the hearing – review the investigative report, exhibits and parties’ written responses to the investigative report
• During the hearing – listen to testimony; review and consider evidence; and ask questions of witnesses
• After the hearing – Consider all of the information and evidence reviewed; discuss and make a decision as to responsibility and penalty (if applicable); issue a written determination of responsibility
• Responsibility is decided by majority vote
• Must objectively evaluate relevant evidence (both inculpatory and exculpatory) and reach a determination regarding responsibility
• Objective – Must not have a conflict of interest or bias for or against complainants or respondents generally or an individual complainant or respondent

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Roles and Responsibilities – Adjudication Committee Chairperson (cont.)�

• Presides at all hearing sessions/meetings
• Procedural rulings
• Admissibility of evidence (including relevance of questioning)
• Coordinates/takes lead on written determination of responsibility

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Roles and Responsibilities – College Presenter�

• CUNY always maintains the burden of proof, while remaining objective and impartial
• Impartial presentation of evidence
• Investigative report as a guide
• Question witnesses
• Present evidence

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Roles and Responsibilities – Advisor (of choice)�

• Parties have the right to be accompanied by an advisor of their choice throughout the Title IX Grievance Process, including the hearing
• Advisors may represent and advocate for a party at the hearing (compared to the investigative stage, where their participation is limited)
• Make Opening/Closing arguments
• Question witnesses
• Present evidence

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Roles and Responsibilities – CUNY-appointed cross examination advisor�

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• Title IX Regulations require that CUNY provide an advisor for the limited purpose of cross examination when a party does not have an advisor present at the hearing
• For any reason, including...
• The party does not want an advisor
• The party’s advisor is unavailable and the hearing moves forward without them
• The party and their advisor are both willfully absent from the proceedings

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HEARING PHASES:�

• Responsibility Phase
• Penalty Phase

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Hearing – Responsibility Phase�

• CUNY bears the burden of proof
• Evidence presented in the following order:
• College
• Complainant
• Respondent
• Parties have the equal opportunity to present relevant evidence, including:
• Fact witnesses
• Expert witnesses
• Inculpatory evidence
• Exculpatory evidence

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Hearing – Responsibility Phase ��Cross Examination

• “All relevant questions and follow-up questions”
• Questioning by advisors only - under no circumstances may a party conduct cross-examination personally
• Chairperson must determine whether each cross-examination question is relevant before a witness provides an answer; and explain any decision to exclude a question as not relevant
• Pace of questioning
• Appropriateness of questioning
• Who can be crossed?
• All parties and witnesses

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Hearing – Responsibility Phase ��Cross Examination��Revision to Provision Not Permitting Reliance on Statements Not Subject to Cross Examination in Title IX Hearings

This summer, there was an exciting update to the world of Title IX.

• Previously, there was a provision in the Federal Regulations (and in our Policy) that mandated that if a party/witness did not submit to cross-examination at a live hearing, the Adjudication committee could not rely on any statement of that party/witness in reaching a determination regarding responsibility.
• HOWEVER – following a federal court ruling (August 10, 2021) and an update from the DOE (August 24, 2021), this provision, and this provision only, was struck down.

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Hearing – Responsibility Phase ��Cross Examination��Revision to Provision Not Permitting Reliance on Statements Not Subject to Cross Examination in Title IX Hearings, cont.

As such, this provision of our Policy -- Section XI(E)(c)(ii)(2)– will no longer be in effect.

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Members of the Adjudication Committee, in reaching a determination regarding responsibility in a Title IX matter, may now consider statements made by parties or witnesses (as long as otherwise permitted under our Policy), even if those parties or witnesses do not participate in cross-examination at the live hearing.

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Hearing – Penalty Phase�

• If respondent is found responsible – Adjudication Committee determines penalty
• UNLESS – Respondent is a represented employee whose discipline is subject to a CBA or an employee with disciplinary rights under New York State Civil Service Law
• In these cases - the penalty if found responsible – is referral for discipline under the applicable CBA or Civil Service Law

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Hearing – Penalty Phase (cont.)�

• Timing
• Penalty phase follows the Responsibility phase
• The Adjudication Committee will not verbally announce their determination of responsibility at conclusion of responsibility phase
• Why? Because the Title IX Regulations require that the determination of responsibility be made in writing, and meet other specifications
• The Penalty phase will happen in every case
• Logistically – it will still take place on the same day/in the same meeting

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Hearing – Penalty Phase (cont.)

• Content
• Character evidence
• Past findings of responsibility for Sexual Misconduct
• Previous disciplinary records
• Impact Statements
• Range of Sanctions for Student Respondents:
• Warning
• Suspension
• Expulsion

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Hearing – �Determination of Responsibility

• Must be in writing, and:
• Identify allegations
• Describe procedural steps
• Findings of fact supporting determination
• Conclusions regarding applying the Policy to the findings of fact
• Statement of and rationale for the result as to each allegation
• If responsible – any disciplinary sanctions or referral for discipline
• Complainant’s remedies
• Procedures and permissible bases for the parties to appeal
• Due within 15 days of the conclusion of the hearing
• Simultaneous notice to both parties
• Template will be provided
• Further training will be provided in the CUNY-wide Sexual Misconduct Panel breakout session

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Training Topics (cont.)

• Two sets of procedures
• Title IX Sexual Harassment
• Non-Title IX Sexual Misconduct
• Title IX Grievance Process
• Non-Title IX Sexual Misconduct Process

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Non-Title IX Sexual Misconduct Process�

• Recap – What is Non-Title IX Sexual Misconduct?
• Prohibited Sexual Misconduct that does not meet the USDOE definition of Title IX Sexual Harassment
• Separate set of procedures – Why?
• Title IX Grievance Process is time and resource intensive
• Title IX Regulations permit a separate process

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Non-Title IX Sexual Misconduct Process – �From Start to Finish�

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Non-Title IX Sexual Misconduct Process

• Jurisdiction
• “CUNY education program or activity” restriction does not apply
• ON CUNY property
• OFF CUNY property that has a reasonable connection to CUNY

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Non-Title IX Sexual Misconduct Process

• Initiation of Investigation
• "When the college becomes aware that Sexual Misconduct may have been committed by or against a student, employee or visitor, the college must conduct an investigation unless the information provided is insufficient to permit an investigation or the complainant has requested that the college refrain from such an investigation and the college has determined that refraining from an investigation will not result in a continuing threat to the college community.”
• No “Formal Complaint” required
• May proceed anonymously, although this seriously restricts investigation and/or potential corrective action

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Non-Title IX Sexual Misconduct Process (cont).

• Investigation
• The Title IX Coordinator is responsible for conducting investigations in a prompt, thorough, and impartial manner
• Coordinate investigative efforts with other appropriate offices;
• Inform the parties that an investigation is being commenced and their rights during such investigation;
• Ensure that the burden of proof and the burden of gathering evidence sufficient to reach a determination regarding responsibility rest on the college and not on the parties; and
• Interview witnesses who might reasonably be expected to provide information relevant to the allegations and review relevant documents and evidence.
• (The same all apply to the Title IX process)
• The college must make reasonable efforts to ensure that the investigation is carried out within a reasonably prompt timeframe.
• CUNY’s Policy – 120 days upon receipt of the allegations

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Non-Title IX Sexual Misconduct Process (cont).

• Investigative Report
• Title IX Coordinator must prepare an investigative report that fairly summarizes and evaluates relevant evidence gathered during the investigation
• Report will include:
• Procedural history of the case;
• Alleged Policy violations;
• A list of individuals interviewed;
• A list of exhibits;
• Summary of party and witness statements and other relevant evidence;
• Analysis of evidence, including credibility assessments; and
• Factual findings regarding whether, in the investigator’s opinion, there is a preponderance of evidence that the respondent is responsible for the allegation(s).

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Non-Title IX Sexual Misconduct Process (cont).

• Action Following the Investigation
• If complainant is a student...
• Title IX Coordinator must provide the investigative report to both parties within (5) days of the completion of the report
• If the allegations are unsubstantiated, in whole or in part, the student complainant has the right to appeal the Title IX Coordinator’s determination to an Appeal Committee
• This is a change from old procedures

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Non-Title IX Sexual Misconduct Process (cont).

• Following the appeal, if any
• Title IX Coordinator sends investigative report to the President
• President authorizes such action as they deem necessary, including:
• Recommendation that disciplinary action be commenced
• Student discipline
• Employee discipline
• Action against visitors
• Authorization to close the matter

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Non-Title IX Sexual Misconduct Process (cont).

• Student Discipline
• President refers to Chief Student Affairs Officer for further action
• Chief Student Affairs Officer may rely on the investigation and determination of the Title IX Coordinator and prefer disciplinary charges

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Non-Title IX Sexual Misconduct Process (cont).

• Notice of Charges/Hearing
• 7 days notice unless respondent consents to earlier hearing
• Must contain:
• Statement of the charges, including the element of the Policy the respondent is charged with violating and possible penalties
• Rights :
• To present their side of the story
• To present witnesses and evidence on their behalf
• To cross-examine witnesses (parties may not cross examine each other personally)
• Respondent to remain silent without presumption of responsibility
• To be represented by an advisor (including legal counsel) at their own expense
• Warning that anything said may be used at a non-college hearing

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Non-Title IX Sexual Misconduct Process (cont).

• Review of Evidence before Hearing
• 5 days prior to the commencement of a hearing
• “Timely access to review documents or other tangible evidence that the college intends to use at the disciplinary hearing”
• Remote hearings = Remote access to review documents
• Prohibition on unauthorized copying/recording

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Non-Title IX Sexual Misconduct Process (cont).

• Admission and Acceptance of Penalty
• Respondent may admit to charges and accept penalty determined appropriate by Chief Student Affairs Officer
• Complainant should be consulted; with an opportunity to object orally/in writing
• If resolution is reached over complainant’s objection – Chief Student Affairs Officer must provide complainant with a statement of the reasons supporting the resolution
• Complainant may appeal the resolution to the Appeal Committee
• (This is the same process as previous version of Policy)
• Compare to Title IX Grievance Process – This process would have to follow the Informal Resolution procedures, meaning both parties would have to agree

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77

Non-Title IX Sexual Misconduct Process (cont).

• Hearing Procedures
• All hearings are closed hearings
• Participants
• College
• Respondent
• Complainant
• Roles and Responsibilities
• Adjudication Committee
• same as reviewed previously
• Adjudication Committee Chairperson
• Discretion to limit the number of witnesses and length of testimony
• College Presenter
• May advocate for a specific outcome
• In this context, presenter is serving aa representative of the college, which has determined to move forward with the disciplinary charges
• Present evidence
• Investigative report as a guide
• Question witnesses
• Present evidence

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Non-Title IX Sexual Misconduct Process (cont).

• Advisor
• Same as reviewed previously
• Compare - CUNY is not required to appoint a cross examination advisor in Non-Title IX Sexual Misconduct matters
• Hearing Phases:
• Responsibility Phase
• CUNY bears the burden of proof
• Evidence presented in the following order:
• College
• Complainant
• Respondent

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Non-Title IX Sexual Misconduct Process (cont).

• At conclusion of college’s presentation, respondent may move to dismiss the charges
• Cross Examination
• A party may not conduct cross-examination personally
• Compare to Title IX Grievance Process:
• Parties/advisors may object to cross examination questions, but Chairperson is not required to rule on relevance of each and every question before an answer is provided
• After the Responsibility phase, the Adjudication Committee will deliberate and then announce their finding of responsibility
• Compare to Title IX Grievance Process – decision must be delivered in a specific format in the written determination of responsibility

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Non-Title IX Sexual Misconduct Process (cont).

• Penalty Phase
• If Respondent is found responsible
• Content
• Character evidence
• Past findings of responsibility for Sexual Misconduct
• Previous disciplinary records
• Impact Statements
• Range of Sanctions for Student Respondents:
• Warning
• Suspension
• Expulsion

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Non-Title IX Sexual Misconduct Process (cont).

• Decision
• Written decision – based on the testimony and evidence presented at the hearing
• Due within 7 days of the conclusion of the hearing
• Simultaneous notice to both parties
• Template will be provided
• Further training will be provided in the CUNY-wide Sexual Misconduct Panel breakout session

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Appeals

• Three main categories of appeal in the Policy:
• Appeal from Mandatory/Discretionary Dismissal of a Title IX Formal Complaint
• Title IX matters only
• University Title IX Director
• Will determine if the matter was appropriately dismissed
• Appeal from the Adjudication Committee’s Determination of Responsibility
• Both Title IX and Non-Title IX Matters
• Appeals Committee
• May modify penalty or remand for a new hearing
• Appeal from unsubstantiated determination by Title IX Coordinator
• Non-Title IX matters only, student complainants only
• Appeals Committee
• May remand for appropriate action – which may include, evaluation of new evidence or a new investigation

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83

Appeals (cont).

• Grounds for appeal are the same:
• (1) procedural irregularity that affected outcome;
• (2) new evidence not reasonably available at time of hearing that could affect outcome;
• (3) conflict of interest that affected outcome; or
• (4) disproportionate nature of penalty.**

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Consent

• Consent = Affirmative Consent
• Affirmative Consent is a knowing, voluntary and mutual decision among all participants to engage in sexual activity. Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity. Silence or lack of resistance, in and of itself, does not demonstrate consent. The definition of consent does not vary based upon a participant’s sex, sexual orientation, gender identity or gender expression.

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85

Consent (cont.)

• Consent to any sexual act or prior consensual sexual activity between or with any party does not necessarily constitute consent to any other sexual act.
• In order to give consent, one must be of legal age (17 years or older in New York).
• Consent is required regardless of whether the person initiating the act is under the influence of drugs and/or alcohol.
• Consent cannot be given when a person is incapacitated, which occurs when an individual lacks the ability to knowingly choose to participate in sexual activity. Incapacitation may be caused by lack of consciousness or being asleep, being involuntarily restrained, or if the individual cannot consent. Depending on the degree of intoxication, someone who is under the influence of alcohol, drugs, or other intoxicants may be incapacitated and therefore unable to consent. v. Consent cannot be given when it is the result of any coercion, intimidation, force, or threat of harm.
• Consent may be initially given but withdrawn at any time. When consent is withdrawn or can no longer be given, sexual activity must stop.

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86

Consent (cont).

• Applying CUNY’s definition of Affirmative Consent
• Consistently, Impartially, and in accordance with the Title IX Regulations

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87

Consent (cont).

• Title IX Regulations prohibit:
• Questions and evidence about the complainant’s sexual predisposition or prior sexual behavior
• This evidence is not relevant UNLESS:
• Offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or
• Example – To prove that an injury was caused by another sexual partner, rather than the respondent
• Concerning specific incidents of prior sexual behavior with the respondent and are offered to prove consent.
• Example – The parties’ past pattern/practice of sexual activity to prove affirmative consent in the specific incident in question
• This is slightly different than CUNY’s Policy as it relates to Non-Title IX Sexual Misconduct matters
• Evidence about either party’s prior sexual history may not be introduced, unless
• Concerning specific incidents of prior sexual behavior between the parties to prove consent.

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Evidentiary Rules – �Relevance

• Relevance 
• Title IX and Non-Title IX - “To have irrelevant evidence excluded from any hearing” 
• Title IX - “...an evaluation of all relevant evidence, including both inculpatory and exculpatory evidence...” 
• Includes both fact and expert witnesses 

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Evidentiary Rules – �Relevance (cont.)

• What is irrelevant? 
• Evidence about a complainant’s prior sexual history (unless one of the exceptions applies) 
• Information protected by a legally recognized privilege 
• Any party’s medical, psychological and similar records unless the party has given voluntary, written consent 

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90

Evidentiary Rules – �Relevance (cont.)

• What is relevant? 
• Not defined in the Title IX Regulations - “The ordinary meaning of the word should be understood and applied.” 
• “Having to do with the matter at hand” (Merriam Webster)
• "Logically connected and tending to prove or disprove a matter in issue.” (Black’s Law Dictionary) 
• Title IX Regulations - Questions that are duplicative or repetitive may be deemed not relevant/excluded 

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91

Evidentiary Rules – �Relevance (cont.)

• Question by question analysis 
• Does the question seek information that will aid the decision-maker in making the underlying determination? 
• A relevant question is still relevant, even if it is asked in an abusive or argumentative way 
• Is information relevant? 
• Does it make the allegations under investigation more or less likely to be true? 
• Relevant, but prejudicial = admissible  

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92

Evidentiary Rules - �Hearsay

• Hearsay 
• An “out of court” statement, offered to prove the truth of the matter asserted 
• Testimony or documents, quoting someone who is not present 

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93

Evidentiary Rules - �Hearsay (cont.)

• Article XV/Non-Title IX Sexual Misconduct Hearings – Generally “one level” of hearsay is permitted
• The Adjudication Committee can consider the weight of the evidence 

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“Actual Knowledge” Standard 

• CUNY’s liability 
• Under the new regulations, OCR will apply an “actual knowledge” standard to determine if an institution responded promptly and in a manner that was not deliberately indifferent to the alleged Title IX Sexual Harassment 
• The previous (broader) standard was “knew or should have known” 
• Actual Knowledge of Title IX Sexual Harassment – when it is known to the Title IX Coordinator or an official with the authority to institute corrective measures 

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95

“Actual Knowledge” Standard (cont.)

• Who has the authority to institute corrective measures? 
• Title IX Coordinator 
• Campus President 
• Public Safety 
• Chief Student Affairs Officer; and 
• Director of HR 
• … These individuals are already designated as “Responsible Employees” - meaning they are required to report Sexual Misconduct to the Title IX Coordinator 

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Serving Impartially

• Avoiding Prejudgment of the Facts 
• Keep an open mind  
• Objectively evaluate inculpatory and exculpatory evidence before reaching determinations regarding responsibility 
• Avoid drawing inferences about credibility based on a party’s status as a complainant or respondent  

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97

Serving Impartially

• Avoiding Conflict of Interest 
• Standard in Title IX Regs - Objective, common sense evaluation of whether a person serving in a Title IX role is biased 
• Whether a reasonable person would believe bias exists 
• Bias for or against complainants and respondents generally; or the specific complainant or respondent in a given case 

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98

QUESTIONS?

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