fbpx

Student Rights When a Complaint is Filed

  • When respondent is a student, the complainant has the right to a college-issued “no contact order” under which continued intentional contact with the complainant would violate this policy. If the accused or respondent and a reporting individual observe each other in a public place, it shall be the responsibility of the accused or respondent to leave the area immediately and without directly contacting the reporting individual. “No contact” orders may be issued for both the complainant and the respondent, as well as other individuals as appropriate.
  • Both the accused or respondent and the reporting individual, shall upon request and consistent with NYGSP policies and procedures, be afforded a prompt review, reasonable under the circumstances, of the need for and terms of a no contact order, including potential modification, and shall be allowed to submit evidence in support of his or her request. An appropriate schedule shall be established as necessary to allow the accused and respondents to access the campus areas when the reporting individual is absent from those areas.
  • Both students can receive assistance from the Title IX coordinator to obtain an order of protection from the New York City judicial system. A copy of the order of protection will be provided to both parties. Both parties will be provided the opportunity to meet or speak with the Title IX coordinator who will provide an explanation of the order and the accused responsibility to stay away from the protected person(s) and the consequences of violating the order.
  • When the accused or respondent student is determined to present a continuing threat to the health and safety of the community, NYGSP can subject the accused or respondent to interim suspension pending the outcome of a judicial or conduct process consistent with Education Law 129B and NYGSP policies and procedures.
  • Prior to the commencement of a temporary suspension of a student, NYGSP shall give the respondent and reporter oral notice (which shall be confirmed via email to the address appearing on the records of the college) or written notice of the charges. If the respondent denies them, NYGSP shall give the respondent an informal oral explanation of the evidence supporting the charges and the student may present informally her/his explanation or theory of the matter.
  • Both complainant and the respondent will be notified of the suspension and if or when it the suspension is lifted at the same time and in the same manner.
  • After a report of an alleged incident of sexual misconduct is made to the Title IX Coordinator, a complainant may request (a) that the matter be investigated only to the extent possible without further revealing her/his identity or any details regarding the incident being divulged further (b) that no investigation into a particular incident be conducted, or (c) that an incident not be reported to outside law enforcement.
  • When the accused or respondent student is determined to present a continuing threat to the health and safety of the community, NYGSP can subject the accused or respondent to interim suspension pending the outcome of a judicial or conduct process consistent with Education Law 129B and NYGSP policies and procedures.
  • Both the accused or respondent and the reporting student shall upon request be afforded a prompt review of the need for and terms of the interim measures and accommodation that directly affects the individual. Both shall be allowed to submit evidence in support of their request.

In all such cases, the Title IX Coordinator will weigh the complainant’s request against NYGSP’s obligation to provide a safe, non-discriminatory environment for all students, employees and visitors, including the complainant. Factors used to determine whether to honor such a request include, but are not limited to: (a) whether the respondent has a history of violent behavior or is a repeat offender; (b) whether the incident represents escalation of unlawful conduct by the accused from previously noted behavior; (c) any increased risk that the accused will commit additional acts of violence, (d) whether the accused used a weapon or force; (e) whether the complainant is a minor; (f) whether the college possesses other means to obtain evidence such as security footage; and (g) whether available information reveals pattern of misconduct at a given location or by particular group.

A decision to maintain confidentiality does not mean that confidentiality can be absolutely guaranteed in all circumstances, but that reasonable efforts will be made to keep information confidential consistent with law. Notwithstanding the decision of the Title IX Coordinator regarding the scope of any investigation, NYGSP will provide the complainant with ongoing assistance and support.

If the Title IX Coordinator determines that NYGSP may maintain confidentiality as requested by the complainant, the college will, if possible, take reasonable steps to investigate the incident consistent with the request for confidentiality. However, a college’s ability to meaningfully investigate the incident and pursue disciplinary action may be limited by such a request for confidentiality.

Filing External Complaints

Complainants who feel that they have been subjected to unlawful sexual harassment and/or violence have the right to avail themselves of any and all of their rights under law, including but not limited to filing complaints with one or more of the outside agencies listed below.

U.S. Department of Education, Office for Civil Rights

http://www2.ed.gov/about/offices/list/ocr/complaintprocess.html

U.S. Equal Employment Opportunity Commission

https://www.eeoc.gov/federal/fed_employees/filing_complaint.cfm

New York State Division of Human Rights

https://dhr.ny.gov/complaint

New York City Commission on Human Rights

http://www1.nyc.gov/site/cchr/about/resources.page

Members of the NYGSP community who make false and malicious complaints of violations of this policy of as opposed to complaints which, even if erroneous, are made in good faith, may be subject to disciplinary action.

The Investigation of Sexual Misconduct and Violence

Upon receipt of a report of sexual assault, domestic violence, dating violence, stalking or sexual activity that violates NYGSP’s code of conduct, the following student’s rights apply:

  • A student has the right to request that student conduct charges be filed against the accused according to NYGSP policy and procedures outlined below.
  • The respondent has the right to a notice describing the date, time, location and factual allegations concerning the violation, with a reference to the specific code of conduct provision allegedly violated, and the possible sanctions for that violation.
  • Both complainant and respondent are provided an opportunity to offer evidence during an investigation and to present evidence and testimony at a hearing.
  • Both complainant and respondent have access to a full and fair record of the hearing which may be a transcript, recording or other appropriate record.
  • The respondent and reporting individuals are provided with a written notice of the findings of fact, the decision and the sanctions extended, if any, as well as the rationale for the decision and sanctions.
  • Both the complainant and the respondent have the right to review the available evidence in the case file or otherwise in possession or control of NYGSP.
  • Both complainant and respondent have access to at least one level of appeal of the determination made at a hearing. The hearing will be conducted by the Appeal Board, that will consist of two faculty members and one student representative chosen by the Program Director’s Council to ensure fairness and impartiality and to avoid any member who may have conflict of interest. All three members vote and a majority will decide all questions.
  • In order to effectuate an appeal, the respondent and reporting individuals shall receive written notice of the findings of fact, the decision and the sanctions, if any, as well as the rationale for the decision and sanction. In such cases, rights provided to one party must be provided to the other in a similar manner.

Throughout the proceedings involving an accusation of sexual assault, domestic violence, dating violence, stalking, or other sexual misconduct that violates NYGSP’s code of conduct, the reporting and respondent or accused has the right:

  • to be accompanied by an advisor of choice who may assist and advise a reporting individual, accused, or respondent throughout the judicial or conduct process including during all meetings and hearings related to such process.
  • to a prompt, thorough, and impartial investigation. The NYGSP Title IX Coordinator is responsible for conducting any investigation and may designate another appropriately trained administrator to conduct all or part of the investigation. All individuals conducting the investigation will have received annual training in conducting investigations of sexual violence, the effects of trauma, impartiality, the rights of the respondent, including the right to a presumption that the respondent is “not responsible’ until a finding of responsibility is made pursuant to an investigation and adjudication consistent with NY State law and the policies and procedures of NYGSP.
  • to exclude their own prior sexual history with persons other than the other party in the judicial or conduct process or their own mental health diagnosis and/or treatment from admittance in the NYGSP disciplinary stage that determines responsibility. Past findings of domestic violence, dating violence, stalking, or sexual assault may be admissible in the disciplinary stage that determines sanction.
  • to receive a written or electronic notice, provided in advance that is reasonable under the circumstances, of any meeting they are required to or are eligible to attend, with a reference to the specific code of conduct provision allegedly violated and in what manner, and the possible sanction or sanctions that may be imposed on the respondent based upon the outcome of the judicial or conduct process. The designated hearing panel or investigating officer will provide a written statement detailing the factual findings supporting the determination and the rationale for the sanction imposed.
  • to make an impact statement during the point in the proceeding where the decision maker is deliberating on appropriate sanctions.
  • to be informed of the sanction or sanctions that may be imposed on the respondent based upon the outcome of the judicial or conduct process and the rationale for the actual sanction imposed.

The NYGSP Title IX Coordinator is responsible for conducting any investigation and will ensure to:

  • coordinate investigative efforts with other appropriate offices;
  • interview witnesses who might reasonably be expected to provide information relevant to the allegations, and review relevant documents and evidence. Both the complainant and respondent shall be informed that they have the right to provide relevant documents and to propose for interview witnesses whom they reasonably believe can provide relevant information.
  • will maintain all documents of the investigation and hearing, whether a transcript or recording for five years, in accordance with NYGSP policy and in compliance with New York State law.

Neither the complainant nor the respondent is restricted from discussing and sharing information related to the complaint with others who may support or assist them. This does not, however, permit unreasonable sharing of private information in a manner intended to harm or embarrass another, or in a manner that would recklessly do so regardless of intention. Such unreasonable sharing may constitute retaliation under this Policy.

NYGSP shall make reasonable efforts to ensure that the investigation and resolution of a complaint are carried out as timely and efficiently as possible. However, the graduate school may need to temporarily delay the fact-finding portion of its investigation during the evidence-gathering phase of a law enforcement investigation. Temporary delays will generally not last more than ten days except when law enforcement specifically requests and justifies a longer delay. While some complaints may require more extensive investigation, when possible, the investigation of complaints should be completed within sixty (60) calendar days of the receipt of the complaint. If there is a delay in completing the investigation, the Title IX Coordinator shall notify the complainant and the respondent in writing.

Informal Resolution

Except in instances involving sexual assault, the Title IX Coordinator, in his or her discretion, may offer the respondent and the complainant the opportunity to participate in the informal resolution process. Informal resolution may take place after the Title IX Coordinator has completed the investigation, but before the Title IX report has been completed, in an effort to resolve the matter by mutual agreement. The informal resolution process shall be conducted by the Title IX Coordinator, or by a qualified staff or faculty member designated by Title IX Coordinator, in coordination with the Director of Educational Advisement.

Both the complainant and the respondent have the right to end the informal resolution process at any time. Any informal resolution must be acceptable to the complainant, the respondent, and the Title IX Coordinator. Even if both the respondent and complainant agree to a resolution, the Title IX Coordinator must also agree with the resolution for it to be final.

If a resolution is reached, the complainant and the respondent shall be notified in writing, and the Title IX Coordinator will confer with the Director of Educational Advisement when creating a written memorandum memorializing the agreed upon resolution and consequences for non-compliance. This memorandum will be included in the respondent’s student record.

If no agreement is reached within a reasonable time, the Title IX Coordinator shall complete the Title IX report and present the Title IX report of the facts collected during the investigation to the ad hoc Committee on Discipline. This committee comprised of three members of the faculty elected by the Faculty Council, two members of the Student Association, and the Director of Educational Advisement will review the facts to determine the disposition of the case. The committee may determine that the facts do not require any action. If the committee decides that action is required that may negatively impact the accused, a hearing will be arranged within one week.

Rights and Responsibilities for the Hearing

If a hearing is to be held, the complainant and the respondent will be advised of their rights regarding the hearing by the Director of Educational Advisement. These rights include:

  • To receive a written statement of the complaint, a copy of the procedures of the ad hoc Committee on Discipline, and notice of the time and location of the hearing.
  • To have a hearing before the Committee on Discipline at the earliest possible date consonant with the right to advance notice.
  • To be present at the hearing.
  • To call witnesses and present evidence; to hear and to question witnesses; and to review and to question all written testimony submitted. The ad hoc Committee on Discipline cannot consider statements against a student unless the student has been advised of their content and the names of those who made them and given the opportunity to rebut.
  • To have all evidence upon which a decision may be based introduced at the formal hearing and the decision based solely on such evidence.
  • To select an advisor of their choice (including an attorney) and who may advise throughout the entire process, including all meetings and hearings. While the advisor may represent a party and fully participate at a hearing, they may not speak during the meetings that proceed the hearing nor give testimony as a witness at the hearing.
  • To challenge any member of the ad hoc Committee on Discipline with conflict of interest in the case. Prior acquaintance does not, in itself, constitute conflict of interest. The Director of Educational Advisement as chair of the ad hoc Committee on Discipline will hear the challenge in the absence of the other members of the Committee and will decide it. If the Chair is challenged, then the Appeal Board (see pp. 33-34 of the NYGSP Student Handbook) must make the determination and, if necessary, appoint a temporary chair for the hearing.
  • To submit an appeal to the Appeal Board at the conclusion of the hearing before the Committee on Discipline.

In a disciplinary proceeding related to an allegation of dating violence, domestic violence, sexual assault, or stalking, the Committee shall use the preponderance of evidence standard when making a final determination. This standard requires the evidence presented to prove that it is more likely than not that the alleged incident occurred a certain way.

The accuser and the accused will both receive simultaneous notification of the outcome of the institution’s final determination with respect to the alleged sexual offense and any sanction that is imposed against the accused. This notification to both the accuser and the accused is not a violation of the Family Education Rights and Privacy Act of 1974 (FERPA) and will be disclosed in the same manner and the same time frame to both, regardless of where the alleged sex offense occurred.