Combating Sexual Misconduct
On Tuesday, July 23, 2024, The City University of New York (“CUNY” or the “University”) Board of Trustees adopted the Policy on Sex-Based Misconduct (the “Policy”), which replaces the Policy on Sexual Misconduct. Consistent with the Final Rule published by the Department of Education on Monday, April 29, 2024, the Policy is effective as of Thursday, August 1, 2024. The policy governs all CUNY schools, colleges, and units.
The Policy is the result of extensive consultation with the CUNY community. A draft of the Policy was shared with: the Chair of the University Faculty Senate; the Chair of the University Student Senate; the Chancellor; the presidents of the colleges; the deans of the schools; the Executive Vice Chancellor and University Provost; the Senior Vice Chancellor for University Human Resources & Labor Relations; the Vice Chancellor for Student Affairs; the University Executive Director of Public Safety; the Title IX Coordinator for each school, college, or unit; and other constituents. Their comments and proposed edits were thoroughly considered when finalizing the Policy.
Key distinctions between the Policy and the Policy on Sexual Misconduct include:
Format
- The sections and sub-sections have been organized to reflect the natural progression of a sex discrimination matter, and the sections provide a more expansive discussion of the rights, options, and resources available under the Policy;
- Specific sections and sub-sections have been merged to streamline the Policy and consolidate the topics contained therein (g., each type of Sex-Based Misconduct is now listed and defined in the Sex-Based Misconduct & Definitions section (Section IV));
- Plain language has been introduced to both replace unclear terminology and convey core concepts (g., Mandatory Reporter, Prohibited Consensual Relationships, Support Person, University Complaint, Notice of Investigation Closure); and
- The distinction between Title IX and Non-Title IX matters has been eliminated.
Scope of the Policy
- The scope of the Policy has been expanded to include the role of Visitors and Third Parties (Section III). The regulations list Visitors as individuals who can serve as complainants, and the regulations list Third Parties as individuals who can be named as respondents in Quid Pro Quo Harassment matters. The definition of these terms can be found in the Glossary (Section XIV).
Sex-Based Misconduct & Definitions
- The definition of Hostile Environment Harassment incorporates the totality test requiring conduct that is “subjectively and objectively offensive and is [ ] severe or pervasive” (Section IV(A)(1));
- Discrimination based on gender identity; past, present, or potential pregnancy or related conditions; sex characteristics; sex stereotypes; and sexual orientation are listed as Sex-Based Misconduct under the Policy (Section IV(B)(1-5));
- Peer retaliation has been expressly acknowledged as a type of retaliation within the Policy (IV(B)(8));
- Mirroring the definition of Sexual Assault: Penetration, the definition of Sexual Assault: Contact includes the attempt to engage in this conduct (Section IV(A)(5)); and
- Supervisory employees now have the option to notify their supervisor, the head of Human Resources for their school, college, or unit, or the Labor Designee for their school, college, or unit if they engage in an intimate relationship with an employee they supervise (Section IV(B)(7)(¶2)).
Reporting Options
- The definition of Mandatory Reporters – formerly called “Responsible Employees” – has expanded (Section VI(B)); and
- The Policy outlines the actions employees must take when they are informed a student is pregnant (VI(G)).
Initial Response to Reports
- The emergency removal section no longer requires threats to be physical in nature before an emergency removal can occur (Section VII(D)(3));
- The major steps the Title IX Coordinator and other key University officials will take at the outset of a Sex-Based Misconduct matter have been cataloged (Section VII(A-G));
- Unless they are engaging in cross-examination for a party during a live hearing, Advisors of Choice are no longer permitted to: (1) directly communicate with CUNY officials acting pursuant to the Policy; (2) submit documents on behalf of a party; or (3) otherwise communicate on behalf of a party (Section VII(C));
- The accommodations available to students and employees seeking accommodations for past, present, or potential pregnancy and related conditions are now explicitly referenced in the Policy (Section VII(D)(4)); and
- The Policy now includes two Informal Resolution pathways – one that requires respondents to admit responsibility for the alleged behavior as a condition of entering into a binding Informal Resolution agreement (the “CUNY-Guided Informal Resolution Process”) and one that allows the parties to reach a binding Informal Resolution agreement without the respondent admitting responsibility (the “Party-Guided Informal Resolution Process”) (Section VII(G)).
Grievance Processes
- The Policy distinguishes between the Sex-Based Harassment and the Sex-Based Discrimination & Related Misconduct grievance processes – the most significant distinction being that Sex-Based Discrimination & Related Misconduct matters will not proceed to a hearing because, at the conclusion of the investigation, the investigator will take on the role of the decisionmaker and issue a Written Determination (Section IX(I)(1));
- Complaints no longer need to be written (Sections VIII(A) & IX(A));
- All dismissals are discretionary (Sections VIII(E) & IX(E));
- The notes for each interview conducted by the investigator will be included in the investigative materials shared with the parties prior to the drafting of the Investigative Report (Sections VIII(I)(8) & IX(I)(8));
- The Policy provides greater clarity and guidance on the materials that will be excluded or redacted from the investigative record (Sections VIII(I)(6) & IX(I)(6));
- Language has been added to establish the permissible bases for using expert witness testimony and materials (Section VIII(I)(7) & IX(I)(7));
- The Policy no longer requires parties to sign a Copy & Use Agreement form;
- The purpose of sanctions, the factors considered when selecting sanctions, and the specific sanctions that can be imposed at the conclusion of the grievance process are now detailed in the Policy (Sections VIII(J)(6) & (IX)(I)(10));
- Instead of an Appeal Committee consisting of three individuals, one faculty member or HEO will serve as the Appeal Arbiter for an appeal (Sections VIII(K)(2) & IX(J)(2)); and
- Adjudication Committees and Appeal Arbiters may serve on matters involving individuals from their own school, campus, or unit.
If you have any questions about the Policy, please contact Kareem Peat, the University Title IX Director, at [email protected], or you may contact the Office of the Senior Vice Chancellor for Legal Affairs and the General Counsel at (646) 664-9200. If a significant press release, guidance document, or decision originates from the Department of Education or a relevant court of law on or after July 31, 2024, this announcement will be updated.