CUNY POLICY ON SEXUAL MISCONDUCT INVESTIGATIONS TRAINING

Rodney L. Pepe-Souvenir, University Title IX Director

Nicole Donatich, Associate General Counsel

WELCOME TITLE IX COORDINATORS/INVESTIGATORS

Specialized Training –Investigations

November 4, 2020

1:00 p.m. to 3:00 p.m.

Nicole Donatich, Associate General Counsel

Rodney L. Pepe-Souvenir, University Title IX Director

WHAT ARE THE GOALS OF AN INVESTIGATION?

• To be prompt, thorough and effective
• To be fair and unbiased
• Providing a solid foundation for matters to proceed to resolution and/or adjudication

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CHANGES TO THE POLICY ON SEXUAL MISCONDUCT

• May 2020 USDOE Regulations
• August 14^th, 2020 Revised CUNY Policy on Sexual Misconduct
• “Actual Knowledge” Standard
• Bifurcated Process
• Title IX Sexual Harassment
• Non-Title IX Sexual Misconduct

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The Title IX Coordinator has overall responsibility for implementing the policy, which includes overseeing the investigation of allegations of both Title IX Sexual Harassment and Non-Title IX Sexual Misconduct.

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THE REVISED POLICY PROVIDES�TWO DIFFERENT SETS OF PROCEDURES :�

• Title IX Sexual Harassment

Title IX Sexual Harassment Matters must follow the Title IX Grievance Process as required by the regulations.

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• Non-Title IX Sexual Misconduct

Non-Title IX Sexual Misconduct Matters follow the CUNY investigations procedure that existed under the previous version of this Policy, with a few changes and updates

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TITLE IX SEXUAL HARASSMENT MATTERS��WHEN DOES CUNY HAVE “ACTUAL KNOWLEDGE”?

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• Title IX Coordinator
• College President
• Public Safety Officer
• Chief Student Affairs Officer
• Human Resources Director

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CUNY has identified these campus officials as individuals who likely have the authority to institute corrective measures.

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

INITIAL EVALUATION OF ALLEGATIONS

• Upon learning of allegations of Sexual Misconduct – the first step is for the Title IX Coordinator to evaluate:  Do the allegations fall within the definition of Title IX Sexual Harassment?
• Alleged behavior, if true
• Conduct on the basis of sex that occurs in CUNY’s education program or activity against a person in the United States; and
• Quid Pro Quo
• Unwelcome conduct severe, pervasive, and objectively offensive; OR
• Sexual Assault, Dating Violence, Domestic Violence, or Stalking as defined by the Policy
• If yes, a Title IX Formal Complaint must be filed (by the complainant or Title IX Coordinator) before the matter can move forward.
• If no, then evaluate whether the matter will proceed as a Non Title IX Sexual Misconduct Matter

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WHAT IS “SEVERE, PERVASIVE AND OBJECTIVELY OFFENSIVE” CONDUCT?

USDOE RESPONSE TO THIS CRITICISM: 

• “Title IX is concerned with sex discrimination in an education program or activity” and “does not stand as a Federal civility code that requires [educational institutions] to prohibit every instance of unwelcome or undesirable behavior.”
• “Title IX is not an anti-sexual harassment statute; Title IX prohibits sex discrimination in education programs or activities.”  

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GEBSER/DAVIS FRAMEWORK 

• SCOTUS: Gebser (1998) & Davis (1999) decisions - established a three-part framework describing when a school’s response to sexual harassment constitutes the school itself committing discrimination in violation of Title IX 
• Actionable sexual harassment 
• Actual Knowledge 
• Deliberate Indifference 

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“ACTIONABLE SEXUAL HARASSMENT”� � MUST BE SO “SEVERE, PERVASIVE AND OBJECTIVELY OFFENSIVE” THAT IT “EFFECTIVELY DENIES A PERSONAL EQUAL EDUCATIONAL ACCESS” 

FIRST AMENDMENT CONCERNS: 

“Severity and pervasiveness are needed elements to ensure that Title IX’s non-discrimination mandate does not punish verbal conduct in a manner that chills and restricts speech and academic freedom, and that recipients are not held responsible for controlling every stray, offensive remark that passes between members of the recipient’s community.”

HOW DO I DETERMINE WHAT IS “SEVERE, PERVASIVE AND OBJECTIVELY OFFENSIVE” CONDUCT? 

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• “Evaluate sexual harassment incidents using common sense and taking circumstances into consideration, including the ages, disability status, positions of authority of involved parties, and other factors ” 

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• “Elements of severity, pervasiveness and objective offensiveness must be evaluated in light of the known circumstances, and depend on the facts of each situation, but must be determined from the perspective of a reasonable person standing in the shoes of the complainant.”  

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• Both subjective (unwelcomeness) and objective (offensiveness) elements 

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• No Intent element 

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EXAMPLES FROM CASELAW... 

DAVIS V. MONROE COUNTY BD. OF EDUCATION, 526 US 629 (1999) 

• 5th graders 
• Both physical and verbal contact 
• Spanned several months 
• Respondent pled guilty to sexual battery for his misconduct 

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R.S. V. BOARD OF EDUCATION OF HASTINGS-ON-HUDSON UNION FREE SCHOOL DISTRICT, 2010 WL 1407359 

RICCIO V. NEW HAVEN BD. OF EDUC., 467 F. SUPP.2D 219, 227 (D.CONN. 2006) 

• Verbal Harassment – derogatory comments 
• Spanned entire school year  
• Incidents were group motivated 
• Harassment was public, in open classroom situations or hallways where students were congregated between class 
• Severe, pervasive and objectively offensive 

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DOE V. SCHOOL DISTRICT NUMBER 1, DENVER, COLORADO, 970 F3D 1300 (10^TH CIR. 2020) 

• High School student, who had brought a claim of sexual assault and was then harassed by her peers 
• Continuous harassment for several months 
• Derogatory comments 
• Blackmailed with nude photos 
• Threatened with physical violence 
• “Severe, pervasive and objectively offensive” 

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DOE V. PRINCETON UNIVERSITY, 790 FED. APPX 379 (3^RD CIRCUIT 2019) 

• Plaintiff brought allegations of sexual assault against Student X; and also alleged a hostile environment created by Student X’s friend 
• Hostile environment claim involved – a one-time gay slur & called him a liar 
• “One instance of being called a slur, while offensive, is neither severe or pervasive.” 

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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

SUPPORTIVE MEASURES & ACCOMMODATIONS

• The Title IX Coordinator is responsible for coordinating supportive measures for affected parties.
• Supportive measures should be:
• Non-disciplinary
• Non-punitive
• Designed to restore/preserve equal access to education and to ensure safety
• Prevent retaliation and ongoing hostile environment

Template –

Initial Outreach to Potential Complainant

(Title IX Matters)

Template –

Notice of Allegations to Parties

(Title IX Matters)

IS THERE A TITLE IX FORMAL COMPLAINT?

REQUIREMENT OF A TITLE IX FORMAL COMPLAINT

• A Title IX Formal complaint is a document filed by the complainant alleging Title IX Sexual Harassment against a respondent requesting the college to investigate the allegations
• Title IX Coordinator may sign a Title IX Formal Complaint with or without the complainant’s desire to participate in a grievance process.

TYPES OF TITLE IX FORMAL COMPLAINT

WHEN SHOULD A TITLE IX COORDINATOR FILE A TITLE IX FORMAL COMPLAINT?

• A Title IX Coordinator may consider filing a formal complaint when the incident is serious enough to affect the college community.
• Where a Title IX Coordinator has sufficient evidence to proceed with the grievance process, the complainant’s participation may not be necessary.

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

DISMISSAL OF A TITLE IX FORMAL COMPLAINT

• Mandatory Dismissal
• Allegations do not meet definition

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• Discretionary Dismissal
• Complainant withdraws Title IX Formal Complaint
• Respondent no longer enrolled or employed by CUNY
• College is prevented from gathering evidence
• Either Party has a right to Appeal the dismissal.

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Template –

Notice of Dismissal for Title IX Complaint

(Title IX Matters)

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?

​

• 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

​

​

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

NON-TITLE IX SEXUAL MISCONDUCT

• Initial assessment of the facts conducted: do the allegations, if true, qualify as prohibited Sexual Misconduct?
• Investigation should proceed unless:
• No jurisdiction
• Complainant uncooperative
• Not enough evidence to proceed

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Closing Memo to file.

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?

​

• 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

​

​

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

TIMEFRAME FOR COMPLETING AN INVESTIGATION

• As of August 14th, 2020 under CUNY’s Policy on Sexual Misconduct, investigations of Title IX Sexual Harassment and Non-Title IX Sexual Misconduct Allegations should be completed within 120 days of the receipt of the Formal Complaint or the receipt of the initial allegations

Template –

Delay of Investigation Notice

(Title IX Matters)

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CONDUCTING THE INVESTIGATION�BOTH TITLE IX SEXUAL HARASSMENT MATTERS AND NON-TITLE IX SEXUAL MISCONDUCT MATTERS

• Avoiding prejudgment of facts
• Keep an open mind
• Objectively evaluate inculpatory and exculpatory evidence before reaching determination regarding responsibility
• Avoid drawing inferences about credibility based on a party’s status as a complainant or respondent
• Standard used for conducting an investigation: Preponderance of the Evidence

TRAUMA INFORMED INTERVIEWING:�INTERVIEWING A COMPLAINANT

• Compassion / Have a human interaction
• Build trust
• No Judgment
• Don’t talk out loud – Keep your thoughts to yourself
• Try to understand the needs and priorities of the complainant
• Determine the first and last instances of violence
• Understand the relationship
• Living situation, length of the relationship, current status
• Will also aid in your Clery Reporting

TRAUMA INFORMED INTERVIEWING:�COMMON REACTIONS TO SEXUAL ASSAULT�

• Sexual assault victims express a wide range of emotions in response to the assault. Victims may experience:
• Mood swings
• Guilt/Humiliation
• Anxiety
• Anger
• Horror
• There is no standard response to trauma. Some individuals may be overwhelmed by emotions (i.e. crying) while others may have no affect or even laugh in an anxious manner when relaying what happened to them.

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TRAUMA INFORMED INTERVIEWING:�INTERACTIONS WITH THE COMPLAINANT�

• Memories will be spotty, non-sequential, sensory/emotion based
• Who, what, when, where, why will not work
• Closed-ended questions will not work
• Open ended questions and sensory based questions are indicated
• Use a calm and neutral tone
• Allow ample time for the person to respond
• Come back to a question later if clarification is needed

TYPES OF EVIDENCE

• Campus Video
• Campus swipe record - in and out campus
• Public Safety Incident Report
• Social Media Post
• Telephone records
• Photos
• Audio recordings

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RELEVANCE

• Irrelevant evidence must be excluded
• Does it make the allegations under investigation more or less likely to be true?
• Title IX – Relevant, but prejudicial = Admissible
• Title IX – “…An evaluation of all relevant evidence, including both inculpatory and exculpatory evidence…”
• Both fact and expert witnesses

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IRRELEVANT EVIDENCE

• A party’s medical or mental health records without voluntary written consent
• Prior Sexual History
• Title IX Exceptions (Complainant ONLY):
• Prior sexual history is used to prove that someone other than the respondent committed the conduct alleged by the complainant OR;
• The complainant’s prior sexual behavior with respect to the respondent and is offered to prove consent by the complainant.
• Non-Title IX Exceptions (BOTH Parties):
• Concerning specific incidents of prior sexual behavior between the parties to prove consent.

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SPECIFIC CONSIDERATIONS FOR TITLE IX SEXUAL HARASSMENT MATTERS

Title IX Sexual Harassment Formal Resolution

Investigation

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• Written Notice that Title IX grievance procedure and investigation is being commenced *template*
• Interview witnesses
• Review relevant documents and evidence

Post Investigation Review of Relevant Documents and Materials

Investigative Report

Review of Investigative Report

• Agreement on the use of investigative and hearing materials *template*
• Send to the parties all relevant documents and materials gathered during the investigation that are directly related to the allegations raised in the Title IX Formal Complaint *template*
• Parties may submit a written response, due within 10 days after materials are provided
• Consider parties' written responses prior to finalizing investigative report

• Summarize all relevant evidence gathered during investigation
• Share finalized report and exhibits with parties *template*
• Refer case to University Title IX Director for hearing

• Parties may submit a written response, due within 10 days after report is provided – submitted to University Title IX Director *template*

• University Title IX Director facilitates selection and scheduling of Adjudication Committee
• College Office of Student Affairs or Office of Human Resources/Labor Relations issues Notice of Hearing to both parties
• University Title IX Director gathers and distributes materials to Adjudication Committee and College
• College presenter facilitates review of evidence before hearing

Must be completed within 120 days of receipt of the Title IX Formal Complaint

If there is a delay – must notify parties in writing and indicate reason for delay

*template*

Must be completed within 60 days after completion of the investigation

Live Hearing

TITLE IX SEXUAL HARASSMENT�TIME FRAMES TO OBSERVE

• Pre-completion of the investigative report
• Prior to the completion of the investigation report, the parties have the right to review all relevant documents and materials gathered during the investigation and the right to respond in writing.
• The parties may submit a written response after review of the evidence, due within ten (10) days after the materials are provided
• The parties’ response will be considered by the Title IX Coordinator prior to finalizing the investigative report
• Upon completion of the investigative report, and at least 10 days prior to any hearing, the Title IX Coordinator will provide the parties the finalized report

Template – Notice to Parties of Evidence Review

(Title IX Matters)

Template – Notice of Evidence Review

(Title IX Matters)

THE INVESTIGATIVE REPORT

• Title IX Sexual Harassment
• Summary of facts
• Summary of Party and witness statements, and other relevant evidence including a summary of relevant evidence pertaining to each allegation

• Non-Title IX Sexual Misconduct
• Summary of party and witness statements and other relevant evidence
• Credibility assessment
• Factual findings regarding whether in investigators opinion, there is a preponderance of evidence that the respondent is responsible for the allegations.

TITLE IX SEXUAL HARASSMENT �TIME FRAMES TO OBSERVE (CONT).

• Post-completion of the investigative report
• Upon completion of the investigative report, and at least 10 days prior to any hearing, the Title IX Coordinator will provide the parties the finalized report, and their advisor.
• A party’s written response to the investigative report is due within ten (10) days after the report is provided.
• The Title IX Coordinator will provide the finalized investigative report, evidence, and letters provided by the parties to the University Title IX Director at adjudication-titleIX@CUNY.edu

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Template –

Notice to Parties of Investigation Closure

(Title IX Matters)

Title IX Sexual Harassment Formal Resolution

Investigation

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• Written Notice that Title IX grievance procedure and investigation is being commenced *template*
• Interview witnesses
• Review relevant documents and evidence

Post Investigation Review of Relevant Documents and Materials

Investigative Report

Review of Investigative Report

• Agreement on the use of investigative and hearing materials *template*
• Send to the parties all relevant documents and materials gathered during the investigation that are directly related to the allegations raised in the Title IX Formal Complaint *template*
• Parties may submit a written response, due within 10 days after materials are provided
• Consider parties' written responses prior to finalizing investigative report

• Summarize all relevant evidence gathered during investigation
• Share finalized report and exhibits with parties *template*
• Refer case to University Title IX Director for hearing

• Parties may submit a written response, due within 10 days after report is provided – submitted to University Title IX Director *template*

• University Title IX Director facilitates selection and scheduling of Adjudication Committee
• College Office of Student Affairs or Office of Human Resources/Labor Relations issues Notice of Hearing to both parties
• University Title IX Director gathers and distributes materials to Adjudication Committee and College
• College presenter facilitates review of evidence before hearing

Must be completed within 120 days of receipt of the Title IX Formal Complaint

If there is a delay – must notify parties in writing and indicate reason for delay

*template*

Must be completed within 60 days after completion of the investigation

Live Hearing

RECORDKEEPING

• 7 years (from the last action on a matter)
• Regs – Section 106.45(b)(10)
• CUNY’s Policy – Section X-J
• Title IX Coordinators/Investigators
• Investigation records, materials and documents
• Any informal resolution, and the result
• Any actions taken in response to allegations of Title IX Sexual Harassment

RECORDKEEPING (cont.)�

“Any actions taken in response to allegations of Title IX Sexual Harassment…”

• “Create and maintain”
• “Document the basis for it’s conclusion that it’s response was not deliberately indifferent
• Supportive measures
• When they are granted
• Any supportive measure – document everything!
• And when they are not
• Why was this response not clearly unreasonable in light of known circumstances?

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QUESTIONS?