Title IX

• Title IX Grievance Procedure for Sex Discrimination Complaints
• Grievance Procedure for Sex-Based Harassment Complaints for New York Campuses

Title IX Grievance Procedure for Sex Discrimination Complaints

Effective August 1, 2024

1.0 Effective Date and Changes to Procedure Based on Court Rulings and Legal Challenges or Changes in Law or Regulation

This Grievance Procedure applies to incidents that occur on or after August 1, 2024. Any incidents reported under this Grievance Procedure that occurred on or before July 31, 2024, will be processed through the institution’s prior applicable 2020 Title IX Grievance Policy.

Should any portion of the 2024 Title IX Final Rule (89 Fed. Reg. 33474 (Apr. 29, 2024)), be stayed or held invalid by a court of law, or if the 2024 Title IX Final Rule is withdrawn or modified to not require elements of this Grievance Procedure, the Grievance Procedures in its entirety, or the invalidated elements of this Procedure, they will be deemed revoked as of the publication date of the opinion or order from the Court and for all reports after that date, as well as any elements of the process that occur after that date if a case is not complete by the date of the opinion or order publication by the Court. If this Procedure is revoked in this manner, any conduct covered under this Procedure shall be investigated and adjudicated under the previous 2020 Title IX Grievance Policy, NYCPM’s Code of Conduct, and/or NYCPM’s Sexual Misconduct Policy, as applicable. NYCPM will update this Grievance Procedure as soon as practicable to reflect any court rulings or changes that invalidate parts of the Grievance Procedure, if applicable.

2.0 Scope of Procedure

Sex-Based Harassment is considered discrimination on the basis of sex if it includes harassment due to actual or perceived sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and/or gender identity.

3.0 Jurisdiction of Procedure

New York College of Podiatric Medicine’s (“NYCPM”) Title IX Coordinator will determine if this Grievance Procedure applies to a Complaint. This Grievance Procedure will apply when the following elements are met, in the reasonable determination of the Title IX Coordinator:

• The conduct alleged occurred on or after August 1, 2024;
• The conduct alleged occurred in the United States, except for cases of sexual assault, domestic violence, dating violence and stalking, in which case, if such occurred off campus or during study abroad, will be subject to the jurisdiction of this Grievance Procedure;
• The conduct alleged occurred in NYCPM’s Education Program or Activity; and
• The conduct alleged, if true, would constitute Sex-Based Harassment as defined in this Grievance Procedure.

NOTE: NYCPM has an obligation to address a sex-based hostile environment under its Education Program or Activity, even when some conduct alleged to be contributing to the Hostile Environment occurred outside NYCPM’s Education Program or Activity, or outside of the United States, if such conduct affects a NYCPM Education Program or Activity in the United States. NYCPM’s Title IX Coordinator will work with all Complainants to assess such Complaints that may fall under these criteria, and direct to appropriate University Policies and Procedures that may apply if this Grievance Procedure does not. NYCPM will communicate all such decisions in writing to the Complainant. Any such dismissals shall be subject to appropriate appeal rights under this Grievance Procedure as outlined in the Dismissals section below.

Conduct that occurs under NYCPM’s Education Program or Activity includes but is not limited to conduct that occurs in a building owned or controlled by a Student organization that is officially recognized by NYCPM, and conduct that is subject to NYCPM’s disciplinary authority under NYCPM’s Code of Conduct.

If all elements of jurisdiction are met, NYCPM will investigate the allegations according to this Grievance Procedure as appropriate, unless informal resolution is pursued or there are grounds for dismissal of the Complaint.

4.0 Non-Discrimination in Application

The requirements and protections of this Grievance Procedure apply equally regardless of sex, sexual orientation, gender identity, gender expression, race, color, national origin, religion, creed, age, disability, familial status, pregnancy, predisposing genetic characteristics, military status, domestic violence victim status, criminal conviction, or other protected classes covered by applicable federal, state, or local law. All requirements and protections are equitably provided to individuals regardless of such protected status(es) or status as a Complainant, Respondent, or Witness. Individuals who wish to file a Complaint about the institution’s policy or process may contact the U.S. Department of Education’s Office for Civil Rights using contact information available at https://ocrcas.ed.gov/contact-ocr. Individuals may also file complaints with the New York State Division of Human Rights (DHR), using contact information available at https://dhr.ny.gov/complaint.

5.0 Students’ Bill of Rights

All Students have the right to:

1. Make a report to local law enforcement and/or state police;
2. Have disclosures of Domestic Violence, Dating Violence, Stalking, and Sexual Assault treated seriously;
3. Make a decision about whether or not to disclose a crime or violation and participate in the judicial or conduct process and/or criminal justice process free from pressure by the institution;
4. Participate in a process that is fair, impartial, and provides adequate notice and a meaningful opportunity to be heard;
5. Be treated with dignity and to receive from the institution courteous, fair, and respectful health care and counseling services, where available;
6. Be free from any suggestion that the Reporting Individual is at fault when these crimes and violations are committed, or should have acted in a different manner to avoid such crimes or violations;
7. Describe the incident to as few institution representatives as practicable and not be required to unnecessarily repeat a description of the incident;
8. Be protected from Retaliation by the institution, any Student, the Accused and/or the Respondent, and/or their friends, family and acquaintances within the jurisdiction of the institution;
9. Access to at least one level of appeal of a determination;
10. Be accompanied by a process support person of choice who may assist and advise a Reporting Individual or Complainant, Accused, or Respondent throughout the judicial or conduct process including during all meetings and hearings related to such process; and
11. Exercise civil rights and practice of religion without interference by the investigative, criminal justice, or judicial or conduct process of the institution.

6.0 Definitions

• Accused means a person accused of a violation who has not yet entered an institution’s judicial or conduct process.
• Admission means selection for part-time, full-time, special, associate, transfer, exchange, or any other enrollment, membership, or matriculation in or at an Education Program or Activity operated by NYCPM.
• Consent means 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. 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. Consent is required regardless of whether the person initiating the act is under the influence of drugs and/or alcohol. Consent may be initially given but withdrawn at any time. Consent cannot be given when a person is incapacitated. Incapacitation occurs when an individual lacks the ability to knowingly choose to participate in sexual activity. Incapacitation may be caused by the lack of consciousness or being asleep, being involuntarily restrained, or if an individual otherwise 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. Consent cannot be given when it is the result of any coercion, intimidation, force, or threat of harm. When Consent is withdrawn or can no longer be given, sexual activity must stop. “Consent” and “affirmative consent” may be used interchangeably under this Grievance Procedure.
• Complainant means:

  (1) a student or employee who is alleged to have been subjected to conduct that could constitute Sex-Based Harassment as defined in this Grievance Procedure and who was participating or attempting to participate in NYCPM’s Education Program or Activity; or
  (2) a person other than a student or employee who is alleged to have been subjected to conduct that could constitute Sex-Based Harassment under this Grievance Procedure and who was participating or attempting to participate in NYCPM’s Education Program or Activity at the time of the alleged Sex-Based Harassment.

  A Complainant may also be referred to as a Reporting Individual in this Grievance Procedure, in alignment with New York State Education Law Article 129-B.

• Complaint means an oral or written request to NYCPM that objectively can be understood as a request for NYCPM to investigate and make a determination about alleged Sex-Based Harassment at the institution.
• Disciplinary Sanctions means consequences imposed on a Respondent following a determination under this Grievance Procedure that the Respondent violated NYCPM’s prohibition on Sex-Based Harassment. For students, faculty and staff, the existence of a progressive system of disciplinary sanctions measures does not preclude NYCPM from levying a heavy sanction, without first resorting to a lesser sanction. By way of illustration and not exclusion, NYCPM may expel a student or terminate a staff member for a violation of policy without first issuing a warning or putting that student or employee on probation.
• Education Program or Activity means any academic, extracurricular, research, occupational training or other Education Program or Activity operated by NYCPM that receives Federal financial assistance.
• Party means Complainant or Respondent.
• Peer Retaliation means Retaliation by a Student against another Student.
• Privacy and Confidentiality. References made to confidentiality refer to the ability of identified confidential resources (e.g. priests/clergy) to not report crimes and violations to law enforcement or college officials without permission, except for extreme circumstances, such as a health and/or safety emergency or child abuse. NYCPM offices and employees cannot guarantee confidentiality but will maintain privacy to the greatest extent possible, and information disclosed will be relayed only as necessary to investigate and/or seek a resolution and to notify the Title IX Coordinator or designee, who is responsible for tracking patterns and spotting systemic issues. NYCPM will endeavor to limit the disclosure as much as practicable, even if the Title IX Coordinator determines that the request for confidentiality or privacy cannot be honored. Please note that NYCPM does not have any personnel that can be deemed or considered “Confidential Reporters” and, as such, all information provided to NYCPM may be disclosed to the Title IX Coordinator or other relevant administrator with Authority.  
• Relevant means related to the allegations of Sex-Based Harassment under investigation as part of this Grievance Procedure. Questions are Relevant when they seek evidence that may aid in showing whether the alleged Sex-Based Harassment occurred, and evidence is Relevant when it may aid a decisionmaker in determining whether the alleged Sex-Based Harassment occurred.
• Remedies means measures provided, as appropriate, to a Complainant or any other person NYCPM identifies as having had their equal access to NYCPM’s Education Program or Activity limited or denied by Sex-Based Harassment. These measures are provided to restore or preserve that person’s access to NYCPM’s Education Program or Activity after NYCPM determines that Sex-Based Harassment occurred.
• Respondent means a person who is alleged to have violated NYCPM’s prohibition on Sex-Based Harassment.
• Retaliation means intimidation, threats, coercion, or discrimination by any person by NYCPM, a Student, or an employee or other person authorized by NYCPM to provide aid, benefit, or service under NYCPM’s Education Program or Activity, for the purpose of interfering with any right or privileged secured by Title IX, or because the person has reported information, made a Complaint, testified, assisted or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this Grievance Procedure, including an informal resolution process.
• Sex-Based Harassment means sexual harassment and other harassment on the basis of sex, including harassment because of gender identity, sexual orientation, sex characteristics, sex stereotypes, and/or pregnancy and other conditions, that is:

  (1) Quid pro quo harassment. An employee, agent or other person authorized by NYCPM’s Education Program or Activity explicitly or impliedly conditioning the provision of such an aid, benefit, or service on a person’s participation in unwelcome sexual conduct;

  (2) Hostile Environment harassment. Unwelcome sex-based conduct that, based on the totality of the circumstances, is subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from NYCPM’s Education Program or Activity (i.e., creates a Hostile Environment). Whether a Hostile Environment has been created is a fact-specific inquiry that includes consideration of the following: (i) the degree to which the conduct affected the Complainant’s ability to access NYCPM’s Education Program or Activity; (ii) the type, frequency, and duration of the conduct; (iii) the Parties’ ages, roles within NYCPM’s Education Program or Activity, previous interactions and other factors about each Party that may be Relevant to evaluating the effects of the conduct; (iv) the location of the conduct and the context in which the conduct occurred; and (v) other Sex-Based Harassment in NYCPM’s Education Program or Activity;

  (3) Sexual Assault (as defined in the Clery Act, 20 U.S.C. 1092(f)) means any sexual act directed against another person, without the Consent of the victim, including instances where the victim is incapable of giving Consent;

  (4) Dating Violence (as defined in the Violence Against Women Act (VAWA) Reauthorization of 2022 and the VAWA Amendments to the Clery Act) means any violence committed by a person: (A) who is or has been in a social relationship of a romantic or intimate nature with the victim; and (B) Where the existence of such a relationship shall be determined based on a consideration of the following factors: (i) The length of the relationship; (ii) the type of relationship; and (iii) the frequency of interaction between the persons involved in the relationship.

  (5) Domestic Violence means any felony or misdemeanor crimes committed by a personwho: (A) is a current or former partner of the victim under the family or Domestic Violence laws of New York, or a person similarly situated to a spouse of the victim; (B) is cohabitating, or has cohabitated, with the victim as a spouse or intimate partner; (C) shared a child in common with the victim; or (D) commits acts against a youth or adult victim who is protected from those acts under the family or Domestic Violence laws of New York; or

  (6) Stalking means engaging in a course of conduct directed at a specific person that would cause a reasonable person to: (A) fear for the person’s safety or the safety of others; or (B) suffer substantial emotional distress.

• Student means a person who has gained Admission.
• Supportive Measures means individualized measures offered as appropriate, as reasonably available, without unreasonably burdening a Complainant or Respondent, not for punitive or disciplinary reasons, and without fee or charge to the Complainant or Respondent, to: (1) restore or preserve that Party’s access to NYCPM’s Education Program or Activity, including measures that are designed to protect the safety of the Parties or NYCPM’s educational environment; or (2) provide support during NYCPM’s Grievance Procedure for Sex-Based Harassment or during the informal resolution process.

7.0 Disability Accommodations

Generally

This Grievance Procedure does not alter any institutional obligations under applicable federal, state, and/or local, disability laws, including the Americans with Disabilities Act of 1990, and Section 504 of the Rehabilitation Act of 1973, among others. Parties may request reasonable accommodations for disclosed disabilities to the Title IX Coordinator at any point before or during the Title IX Grievance Procedure that do not fundamentally alter the Procedure. The Title IX Coordinator will not affirmatively provide disability accommodations that have not been specifically requested by the Parties, even where the Parties may be receiving accommodations in other institutional programs and activities.

Requests for Reasonable Accommodations During the Title IX Grievance Procedure

If the Complainant or Respondent discloses a disability, the Title IX Coordinator or designee may consult, as appropriate, with the Office of Student Disability Services to provide support to Students with disabilities to determine how to comply with applicable law including, without limitation, Section 504 of the Rehabilitation Act of 1973 in the implementation of any Supportive Measures, or any other reasonable accommodations requested during the Grievance Procedure.

8.0 Policy for Alcohol and/or Drug Use Amnesty

The health and safety of every student at NYCPM is of utmost importance. NYCPM recognizes that students who have been drinking and/or using drugs (whether such use is voluntary or involuntary) at the time that violence, including but not limited to domestic violence, dating violence, stalking, or sexual assault occurs may be hesitant to report such incidents due to fear of potential consequences for their own conduct. NYCPM strongly encourages students to report domestic violence, dating violence, stalking, or sexual assault to institution officials. A bystander acting in good faith or a reporting individual acting in good faith that discloses any incident of domestic violence, dating violence, stalking, or sexual assault to NYCPM’s officials or law enforcement will not be subject to NYCPM’s code of conduct action for violations of alcohol and/or drug use policies occurring at or near the time of the commission of the domestic violence, dating violence, stalking, or sexual assault.

9.0 Basic Requirements of the Grievance Procedure

NYCPM is required to:

• Treat Complainants and Respondents equitably;
• Ensure that any person designated by NYCPM as a Title IX Coordinator, investigator, or decisionmaker does not have a conflict of interest or bias for or against Complainants or Respondents generally or an individual Complainant or Respondent;
• Establish reasonably prompt timeframes for the major stages of this Grievance Procedure, including a process that allows for the reasonable extension of timeframes on a case-by-case basis for good cause with notice to the Parties that includes the reason for the delay;
• Ensure that reasonable steps to protect the privacy of the Parties and witnesses during the pendency of the Grievance Procedure are taken, provided that the steps do not restrict the abilities of the Parties to obtain and present evidence, including by speaking to witnesses (as long as such does not result in Retaliation), consult with their family members, confidential resources, or process support persons, or otherwise prepare for or participate in this Grievance Procedure(so long as all necessary FERPA Waivers have been executed on the Party’s or witness’s behalf);
• Ensure an objective evaluation of all evidence that is Relevant and not otherwise impermissible under this Procedure, including both inculpatory and exculpatory evidence, and provide that credibility determinations must not be based on a person’s status as a Complainant, Respondent or Witness;
• Exclude impermissible evidence from consideration as defined in the Grievance Procedure; and
• Clearly articulate principles for how NYCPM will determine which policies and procedures apply if not all such Complaints are handled under this institutional Grievance Procedure.

Per New York State Law, NYCPM is also required to additionally ensure that Complainants are advised of their right to:

• Notify Campus Security, local law enforcement, and/or state police;
• Have emergency access to a Title IX Coordinator or other appropriate official trained in interviewing victims of sexual assault who shall be available upon the first instance of disclosure by a Complainant to provide information regarding options to proceed, and, where applicable, the importance of preserving evidence and obtaining a sexual assault forensic examination as soon as possible, and detailing that the criminal justice process utilizes different standards of proof and evidence and that any questions about whether a specific incident violated New York Penal Law should be addressed to law enforcement or to the district attorney, who shall also explain whether he or she is authorized to offer the reporting individual confidentiality or privacy, and shall inform the Complainant of other reporting options;
• Disclose confidentially the incident to institution representatives, who may offer confidentiality pursuant to applicable laws and can assist in obtaining services for Complainants;
• Disclose confidentially the incident and obtain services from the state or local government;
• Disclose the incident to institution representatives who can offer privacy or confidentiality, as appropriate, and can assist in obtaining resources for reporting individuals;
• File a report of sexual assault, domestic violence, dating violence, and/or stalking and the right to consult the Title IX Coordinator and other appropriate institution representatives for information and assistance, ensure that Complainants know that reports shall be investigated in accordance with this Grievance Procedure and/or any other institutional policies that may be applicable, and ensure that a Complainant’s identity will remain private at all times if said Complainant wishes to maintain privacy;
• If the accused is an employee of NYCPM, the incident to NYCPM’s Human Resources Department, at which point such referral shall be handled according to NYCPM’s Employee or Faculty Handbook;
• Receive assistance from appropriate NYCPM representatives in initiating legal proceedings in family court or civil court; and
• Withdraw a complaint or involvement from NYCPM’s Grievance Procedure at any time.

10.0 Reporting Sex-Based Harassment Occurring Between Students to the Institution

Non-Confidential Reports

Any person may report sex discrimination, including Sex-Based Harassment (whether or not the person reporting is the person alleged to be the victim of the conduct that may constitute sex discrimination or Sex-Based Harassment), in person, by mail, by telephone, or by electronic mail, using the contact information listed for the Title IX Coordinator, or by any other means that results in the Title IX Coordinator receiving the person’s verbal or written report.

Contact Information for the Title IX Coordinator at NYCPM:

Joel A. Sturm
53 East 124th Street
New York, NY 10035
212-410-8047
[email protected]

Such a report may be made at any time (including during non-business hours) by using the telephone number or electronic mail address, or by mail to the office address listed for the Title IX Coordinator.

Confidential Reports

The following officials at NYCPM will provide privacy, but not confidentiality, upon receiving a report of conduct prohibited by Title IX:

• Title IX Coordinator or designee(s);
• Officials with Authority to institute corrective measures under Title IX;
• All other employees at NYCPM that are not designated as confidential resources

Please note that NYCPM employees cannot guarantee confidentiality in any situation.

There are other confidential options available for crisis intervention, resources and referrals, but these are not reporting mechanisms to the institution, meaning that disclosure on a call to one of these hotlines does not provide any information to NYCPM.

Complainants are encouraged to additionally contact a campus confidential or private resource so that NYCPM can take appropriate action in these cases. Some resources for confidential disclosure NOT to the institution are:

• The New York State Office for the Prevention of Domestic Violence hotlines: http://www.opdv.ny.gov/help/dvhotlines.html. Additional disclosure and assistance options that can be found and are presented in several languages can also be found here: http://www.opdv.ny.gov/help/index.html (or by calling 1-800-942-6906).
• SurvJustice: http://survjustice.org/our-services/civil-rights-complaints/;
• Legal Momentum: https://www.legalmomentum.org/;
• NYSCASA: https://nyscasa.org/responding;
• NYSCADV: http://www.nyscadv.org/;
• Pandora’s Project: http://www.pandys.org/lgbtsurvivors.html;
• GLBTQ Domestic Violence Project: http://glbtqdvp.org/;
• RAINN: https://www.rainn.org/get-help; and
• Safe Horizons: http://www.safehorizon.org/.

Privacy vs. Confidentiality

References made to confidentiality refer to the ability of identified confidential resources to not report crimes and violations to law enforcement or college officials without permission, except for extreme circumstances, such as a health and/or safety emergency or child abuse. References made to privacy mean NYCPM offices and employees who cannot guarantee confidentiality but will maintain privacy to the greatest extent possible, and information disclosed will be relayed only as necessary to investigate and/or seek a resolution and to notify the Title IX Coordinator or designee, who is responsible for tracking patterns and spotting systemic issues. NYCPM will limit the disclosure as much as practicable, even if the Title IX Coordinator determines that the request for confidentiality cannot be honored.

At the First Instance of Disclosure of a Report

NYCPM  shall ensure that, at a minimum, at the first instance of disclosure by a Complainant to a NYCPM representative, the following information shall be presented to the Complainant: “You have the right to make a report to university police or campus security, local law enforcement, and/or state police or choose not to report; to report the incident to your institution; to be protected by the institution from Retaliation for reporting an incident; and to receive assistance and resources from your institution.”

11.0 Supportive and Interim Measures

Providing Supportive Measures

Complainants who report allegations of Sex-Based Harassment have the right to receive Supportive Measures from NYCPM regardless of whether they file a Complaint. Supportive Measures are non-disciplinary and non-punitive. Supportive Measures may vary depending upon what is reasonably available at NYCPM.

As appropriate, Supportive Measures may include without limitation:

• Counseling services
• Extensions of deadlines or other course-related adjustments
• Modifications of work or class schedules
• Campus escort services, as available
• Restrictions on contact applied to one or more Parties (no contact orders)
• Changes in class, work, housing, or extracurricular or any other activity, regardless of whether there is or is not a comparable alternative
• Leaves of absence
• Increased security and monitoring of certain areas of the campus
• Training and education programs related to Sex-Based Harassment
• Assistance by NYCPM’s police or security forces, if applicable, or other officials in obtaining an order of protection or, if outside of New York state, an equivalent protective or restraining order

Supportive Measures must not unreasonably burden either Party and must be designed to protect the safety of the Parties or NYCPM’s educational environment, or to provide support during NYCPM’s Sex-Based Harassment grievance procedure under this policy or during informal resolution under this procedure.

NYCPM may modify or terminate Supportive Measures at the conclusion of the grievance procedure or at the conclusion of the informal resolution process or may continue them beyond that point, within NYCPM’s discretion.

NYCPM may disclose information about any Supportive Measures provided to either party, including informing one Party of Supportive Measures provided to another Party. These disclosures are at the sole and absolute discretion of the Title IX Coordinator, though the Parties can request that the supportive measures not be shared. Supportive measures may also be shared if necessary to provide the supportive measure or restore or preserve a Party’s access to NYCPM’s education program or activity.

Supportive measures may otherwise be disclosed to the extent that the Title IX Coordinator determines necessary

• To carry out the purpose of the policy when it is necessary to address conduct that reasonably may constitute Sex-Based Harassment under Title IX in NYCPM’s education program or activity;
• As required by Federal law, federal regulations, or the terms and conditions of a federal award; or
• To the extent such disclosures are not otherwise in conflict with Title IX, when required by State or local law or when permitted under the Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. 1232g, or its implementing regulations, 34 CFR Part 99). 

Note on Orders of Protection and their equivalent: NYCPM must provide a copy of the order of protection or equivalent when it is received by NYCPM, and Parties shall have the opportunity to meet or speak with the Title IX Coordinator, who can explain the order and answer questions about it, including information from the order about the Accused’s/Respondent’s responsibility to stay away from the protected person or persons. Parties are entitled to an explanation of the consequences for violating these orders, including without limitation, arrest, additional conduct charges, and interim suspension or emergency removal, as applicable. NYCPM Campus Security does not possess arresting powers, so a Complainant is also entitled to receive assistance from Campus Security to call on and assist local law enforcement in effecting an arrest for violating such order, in accordance with limits on current law enforcement jurisdiction and procedures.

Process for Review of Supportive Measures

NYCPM provides for a Complainant or Respondent to seek modification or reversal of NYCPM’s decision to provide, deny, modify or terminate a Supportive Measure provided to that party. Grounds for challenge of Supportive Measures include, but are not limited to:

• Whether a Supportive Measure is reasonably burdensome;
• Whether a Supportive Measure is reasonably available;
• Whether a Supportive Measure is being imposed for punitive or disciplinary reasons;
• Whether the Supportive Measure is being imposed without fee or charge; and
• Whether the Supportive Measure is effective in meeting the purposes for which it is intended, including to restore or preserve access to the Education Program or Activity, provide safety, or provide support during the Grievance Procedure.

This review will be conducted by an impartial employee of NYCPM, who did not make the challenged decision on the original supportive measure request. The impartial employee of NYCPM who makes this determination will have the authority to modify or reverse the decision if that impartial employee determines that the decision to provide, deny, modify or terminate the supportive measure was inconsistent with the procedures as outlined above for providing Supportive Measures in accordance with the Title IX regulations.

Parties are only allowed to challenge their own individual Supportive Measures. Challenges by one Party will not be heard to Supportive Measures afforded to the opposite Party, unless that supportive measure directly impacts the Party making such challenge (i.e., two-way no contact orders).

Emergency Removal

NYCPM retains the authority to remove a Respondent from all or part of NYCPM’s education program or activity on an emergency basis, where NYCPM (1) undertakes an individualized safety and risk analysis, and (2) determines that an imminent and serious threat to the health or safety of a Complainant or any Students, employees, or other persons arising from the allegations of Sex-Based Harassment justifies removal.

NYCPM will provide the Respondent with notice and an opportunity to challenge the decision immediately following the removal. The Respondent may file an appeal against the decision to remove. The request for an appeal must include the grounds for which the request is based and be submitted in writing to the Title IX Coordinator within seven (7) business days following the date of the emergency removal. Upon receipt of the appeal, the other party will receive notification of the appeal.

The decisionmaker who hears a challenge to an emergency removal must not be involved in any decision regarding responsibility or appeal of a determination.

Emergency removals will not be considered Relevant evidence that can be considered in reaching a determination of whether Sex-Based Harassment occurred.

Administrative Leave

NYCPM retains the authority to place a non-Student employee Respondent on administrative leave during the Title IX Grievance Procedures, consistent with the Employee or Faculty Handbook
Note on Student Employees: when a Complainant or Respondent is both a Student and an employee of NYCPM, NYCPM will make a fact-specific inquiry to determine whether these procedures apply to that Student employee. NYCPM will consider if the Complainant or Respondent’s primary relationship with NYCPM is to receive an education and whether the alleged Sex-Based Harassment occurred while the Party was performing employment-related work.

12.0 The Title IX Grievance Procedure for Allegations of Sex-Based Harassment Occurring Between Students

12.1 Filing a Complaint

Who can make a Complaint?

• A Complainant (as defined in Section 4.0(4) of this Grievance Procedure); or
• The Title IX Coordinator.

Note on Title IX Coordinator initiated Complaints:

In the absence of a Complaint or the withdrawal of any or all of the allegations in a Complaint, and in the absence or termination of an Informal Resolution process, the Title IX Coordinator must determine whether to initiate a Complaint of Sex-Based Harassment. This determination is fact-specific, and the Title IX Coordinator must consider:

• The Complainant’s request not to proceed with the initiation of a Complaint;
• The Complainant’s reasonable safety concerns regarding initiation of a Complaint;
• The risk that additional acts of Sex-Based Harassment would occur if a Complaint is not initiated;
• The severity of the alleged Sex-Based Harassment, including whether the Sex-Based Harassment, if established, would require the removal of a Respondent from campus or imposition of another disciplinary sanction to end the Sex-Based Harassment and prevent its recurrence;
• The age and relationship of the Parties, including whether the Respondent is an employee of
• The scope of the alleged Sex-Based Harassment, including information suggesting a pattern, ongoing Sex-Based Harassment, or Sex-Based Harassment alleged to have impacted multiple individuals;
• The availability of evidence to assist a decisionmaker in determining whether Sex-Based Harassment occurred; and
• Whether NYCPM could end the alleged Sex-Based Harassment and prevent its recurrence without initiating these Grievance Procedures.

If, after considering these and other Relevant factors, the Title IX Coordinator determines that the conduct as alleged presents an imminent and serious threat to the health or safety of the Complainant or other person, or that the conduct as alleged prevents NYCPM from ensuring equal access on the basis of sex to its Education Program or Activity, the Title IX Coordinator may initiate a Complaint.

If the Title IX Coordinator does initiate the Complaint after making this determination, the Title IX Coordinator must notify the Complainant prior to doing so and appropriately address reasonable concerns about the Complainant’s safety or the safety of others, including by providing Supportive Measures as listed in Section VI of this Grievance Procedure.

Is there a particular format that the Complaint needs to be in?

As defined in VI(5) of this Grievance Procedure, a Complaint can be an oral or written request to NYCPM that objectively can be understood as a request for NYCPM to investigate and make a determination about alleged Sex-Based Harassment at the institution.

Individuals who are looking to file a complaint are encouraged to submit the complaint formally in writing to the Title IX Coordinator.

Who can I report a Complaint to?

Any reports of Sex-Based Harassment may be made directly to the Title IX Coordinator, whose contact information is listed at the beginning of this Grievance Procedure. There are also other ways in which a Party may report a Complaint.

NYCPM requires that any employee who is not a Confidential Employee and who either has authority to institute corrective measures on behalf of NYCPM or has responsibility for administrative leadership, teaching, or advising in NYCPM’s Education Program or Activity must notify the Title IX Coordinator when the employee has information about conduct that reasonably may constitute sex discrimination, including Sex-Based Harassment.

All other employees at NYCPM who are not Confidential Employees and are not employees as identified above are required notify the Title IX Coordinator when the employee has information about conduct that reasonably may constitute Sex Discrimination, including Sex-Based Harassment.

Note:If an employee has personally been subject to conduct that reasonably may constitute Sex Discrimination, including Sex-Based Harassment, under Title IX or any institutional policy or this Grievance Procedure, these requirements do not apply to an employee reporting a personal Complaint.

What is the timeframe for NYCPM to evaluate if the Title IX Coordinator is initiating an investigation under this Grievance Procedure?

The Title IX Coordinator must evaluate whether the Complaint falls under this Grievance Procedure five (5) business days after the Complaint is made and must issue the Notice of Allegations as soon as practicable after the Complaint is evaluated. If there are any delays or extensions, the Title IX Coordinator must appropriately notice the Parties in writing, on a case-by-case basis, with good cause and the rationale for the extension or delay.

Can I make a Complaint and request initiation of the Grievance Procedure even if I have made a complaint to law enforcement?

Yes. NYCPM has an obligation to appropriately evaluate all Complaints, regardless of whether there is a concurrent Complaint before law enforcement. This process is an administrative process that is different from the criminal justice process. Per New York state law, it is required that NYCPM’s process run concurrently with a criminal justice investigation and proceeding, however, temporary delays are allowed as requested by external municipal entities while law enforcement gathers evidence. Temporary delays should not last more than ten days except when law enforcement specifically requests and justifies a longer delay.

12.2 Multi-Party Situations and Consolidation of Complaints

NYCPM may consolidate Complaints alleging Sex-Based Harassment against more than one Respondent, or by more than one Complainant against one or more Respondents, or by one Party against the other Party, where the allegations of Sex-Based Harassment arise out of the same facts or circumstances.
NYCPM can consider factors when making this fact-specific determination, which include, but are not limited to:

• The facts and circumstances of the particular Complaints when deciding whether to consolidate, including the toll of separate proceedings on the Parties; and
• Any risks to the fairness of the investigation or outcome.

12.3 Allegations Potentially Falling Under Two Policies

If the alleged conduct, if true, includes conduct that would constitute covered sexual harassment and conduct that would not constitute covered sexual harassment, the Title IX Grievance Process will be applied to investigation and adjudication of only the allegations that constitute covered sexual harassment.

12.4 Dismissal of a Complaint

Grounds for Dismissal

NYCPM may dismiss a Complaint of Sex-Based Harassment for any of the following reasons:

• NYCPM is unable to identify the Respondent after taking reasonable steps to do so;
• The Respondent is not participating in NYCPM’s Education Program or Activity and is not employed by NYCPM;
• The Complainant voluntarily withdraws any or all of the allegations in the Complaint, the Title IX Coordinator declines to initiate a Complaint through this Grievance Procedure, and NYCPM determines that, without the Complainant’s withdrawn allegations, the conduct that remains alleged in the Complaint, if any, would not constitute Sex-Based Harassment under Title IX or this Grievance Procedure even if proven; or
• NYCPM determines that the conduct alleged in the Complaint, even if proven, would not constitute Sex-Based Harassment under Title IX or these procedures. Note: NYCPM must make reasonable efforts to clarify the allegations with the Complainant before dismissing under this basis.

Notice of Dismissal

If NYCPM dismisses a Complaint, NYCPM is required to promptly notify the Complainant of the basis for dismissal.

If the dismissal of the Complaint occurs before a Notice of Allegations is issued to the Respondent, the Title IX Coordinator does not need to notice the Respondent at that time. However, if the Complainant appeals the dismissal, the Respondent will need to be noticed of the Complaint allegations and given an opportunity to respond to the dismissal. If the dismissal occurs after the Respondent has been notified of the allegations, then NYCPM must notify the Respondent and Complainant of the dismissal and the basis for the dismissal simultaneously in writing.

Appeal rights must also be outlined in any notification of dismissal of a Complaint, as included below under Appeal of Dismissals.

Appeals of Dismissals

NYCPM must notify the Complainant that a dismissal may be appealed and provide the Complainant with an opportunity to appeal the dismissal of a Complaint on the following grounds:

• Procedural irregularity: procedural irregularity that affected the outcome of the matter (i.e., a failure to follow NYCPM’s own policy to a degree that had material effect on the outcome of the matter);
• New evidence: New evidence that would change the outcome and that was not reasonably available when the determination whether Sex-Based Harassment occurred or dismissal of the Complaint was made; and
• Bias or Conflict of Interest: The Title IX Coordinator, investigator(s), or decisionmaker(s) had a conflict of interest or bias for or against Complainants or Respondents generally or the individual Complainant or Respondent that would change the outcome of the matter.

If the dismissal occurs after the Respondent has been notified of the allegations, then NYCPM must also notify the Respondent that the dismissal may be appealed on the grounds set out above.

The submission of appeal stays any sanctions for the pendency of an appeal. Supportive Measures and remote learning opportunities (if possible) remain available during the pendency of the appeal.

If a Party appeals, the institution will as soon as practicable notify the other Party in writing of the appeal, however the time for appeal shall be offered equitably to all Parties and shall not be extended for any Party solely because the other Party filed an appeal.

Appeals will be decided by the Appeals Committee that is appointed by the Title IX Coordinator. These individuals will be free of conflict of interest and bias, and will not serve as investigator, Title IX Coordinator, or hearing decisionmaker in the same matter. If either party believes any individual appointed to the Appeals Committee has a conflict of interest or bias, this should be reported to the Title IX Committee.

The outcome of the appeal will be provided in writing simultaneously to both Parties, and include rationale for the decision.

12.5 Notice of Allegations

Upon initiating NYCPM’s Grievance Procedure, the Title IX Coordinator shall provide a Notice of Allegations in writing to the Parties whose identities are known. Such notice will occur as soon as practicable after NYCPM receives a Complaint, if there are no extenuating circumstances. NYCPM will endeavor to provide the Notice of Allegations within 30 days after receiving a Formal Complaint.

What does the Notice of Allegations Include?

The written Notice of Allegations must include:

• NYCPM’s Grievance Procedure and NYCPM’s Informal Resolution process;
• Sufficient information available at the time of the issuance of the Notice of Allegations to allow the Parties to respond to the allegations, which includes the identities of the Parties involved in the incident(s), the conduct alleged to constitute Sex-Based Harassment under the Grievance Procedure, and the date(s) and location(s) of the alleged incident(s), to the extent that information is available to NYCPM;
• A statement that the Parties are entitled to an equal opportunity to access the Relevant and not otherwise impermissible evidence;
• A statement that the Respondent is presumed not responsible for the alleged Sex-Based Harassment until a determination is made at the conclusion of NYCPM’s Grievance Procedure and that prior to the determination, the Parties will have an opportunity to present Relevant and not otherwise impermissible evidence to a trained, impartial decisionmaker;
• Parties may have a process support person of their choice, and that the process support person may be, but is not required to be, an attorney; and
• NYCPM’s code of conduct prohibits knowingly making false statements or knowingly submitting false information during NYCPM’s Grievance Procedure.

What if NYCPM decides to investigate additional allegations of Sex-Based Harassment?

If, in the course of an investigation, NYCPM decides to investigate additional allegations of Sex-Based Harassment by the Respondent toward the Complainant that are not included in the original issued written Notice of Allegations, or that are included in a Complaint that is consolidated under this Grievance Procedure, NYCPM shall provide notice of the additional allegations to the Parties whose identities are known.

What if I have safety concerns about a Notice of Allegations being issued to a Respondent?

To the extent that NYCPM has reasonable concerns for the safety of any person as a result of providing a written Notice of Allegations, NYCPM, through the Title IX Coordinator, may reasonably delay providing the written Notice of Allegations in order to address the safety concern appropriately. Reasonable concerns must be based on individualized safety and risk analysis and not on mere speculation or stereotypes.

12.6 Process Support Person of Choice and Participation of Process Support Person of Choice

A Party’s process support person of choice may accompany the Party to any meeting or proceeding, and that NYCPM cannot limit the choice of who that process support person may be or their presence for the Parties in any meeting or proceeding unless such process support person does not follow NYCPM’s established rules of decorum and rules around participation discussed below

12.7 Investigation

General Rules of Investigations

The Title IX Coordinator and/or an investigator designated by the Title IX Coordinator will perform an investigation of the conduct alleged to constitute Sex-Based Harassment in a reasonably prompt timeframe, after issuing the Notice of Allegations.

NYCPM, and not the Parties, have the burden to conduct an investigation that gathers sufficient evidence to determine whether Sex-Based Harassment occurred under this Grievance Procedure. This burden does not rest with either Party, and either Party may decide not to share their account of what occurred or may decide not to participate in the investigation or hearing. This does not shift the burden of proof away from NYCPM and does not indicate responsibility.

NYCPM cannot access, consider, or disclose medical records without a waiver from the Party (or parent, if applicable) to whom the records belong, or of whom the records include information. NYCPM will provide an equal opportunity for the Parties to present witnesses, including fact and expert witnesses, and other inculpatory or exculpatory evidence, as described below.

Notice of Participation

NYCPM will provide written notice of the date, time, location, participants, and purpose of all meetings or proceedings with sufficient time for the Party to prepare to participate, if a Party is invited or expected to participate in any such meeting or proceeding.

Process Support Persons of Choice and Participation of Process Support Persons of Choice

NYCPM will provide the Parties with the same opportunities to be accompanied to any meeting or proceeding by the process support person of their choice, who may be, but is not required to be, an attorney, and not limit the choice or presence of the process support person for the Complainant or Respondent in any meeting or proceeding.

Process Support Person of Choice restrictions:

• Both the Complainant and Respondent have the right to choose a Process Support Person. The Process Support Person will be the process support person of choice for such Party at the Hearing and may be, but does not have to be, an attorney. An attorney acting in this role has no different role in the process and serves in the same capacity as a non-attorney.
• The Process Support Person of choice may accompany the parties to any meeting or hearing they are permitted to attend, but may not speak for the party, except for the purpose of cross-examination.
• The parties themselves are not permitted to conduct cross-examination; it must be conducted by the Process Support Person. As a result, if a party does not select a Process Support Person, the institution will select a Process Support Person to serve in this role for the limited purpose of conducting the cross-examination at no fee or charge to the party.
• The Process Support Person is not prohibited from having a conflict of interest or bias in favor of or against complainants or respondents generally, or in favor or against the parties to the particular case.
• The Process Support Person is not prohibited from being a witness in the matter.
• If a party does not attend the live hearing, the party’s Process Support Person may appear and conduct cross-examination on their behalf.
• If neither a party nor their Process Support Person appear at the hearing, NYCPM will provide a Process Support Person to appear on behalf of the non-appearing party.
• Process Support Personnel shall be subject to NYCPM’s Rules of Decorum, and may be removed upon violation of those Rules.

Expert Witnesses

Parties may present expert witnesses as part of an investigation.

Parties are allowed to call “expert witnesses” for direct examination and credibility assessment by the hearing board and cross examination. While the expert witness will be allowed to testify, the decisionmaker will be instructed to afford lower weight to non-factual testimony of the expert relative to fact witnesses, and any expert testimony that is not directed to the specific facts that occurred in the case will be afforded lower weight relative to fact witnesses regardless of whether all Parties present experts as witnesses.

Character Witnesses

NYCPM allows Parties to call character witnesses to testify. While the character witnesses will be allowed to testify, the decisionmaker will be instructed to afford very low weight to any non-factual character testimony of any witness.

Review and Access to Relevant and Not Otherwise Impermissible Evidence

Each Party will have an equal opportunity to present fact witnesses and other inculpatory and exculpatory evidence that are Relevant and not otherwise impermissible, to the Title IX Coordinator and/or an investigator designated by the Title IX Coordinator. The Title IX Coordinator will review all evidence gathered through the investigation and determine what evidence is Relevant and what evidence is impermissible regardless of relevance, consistent with this Grievance Procedure.

Each Party and their process support person of choice will have an equal opportunity to review and access the evidence that is Relevant to the allegations of Sex-Based Harassment and not otherwise impermissible regardless of relevance prior to the conclusion of the investigation. The Title IX Coordinator will provide each Party with a reasonable opportunity to respond to the evidence. Both Parties will have the opportunity to respond to the evidence prior to the live hearing

NYCPM will take reasonable steps to prevent and address the Parties’ unauthorized disclosure of information and evidence obtained solely through this Grievance Procedure. Participating individuals who engage in the unauthorized disclosure of information and evidence obtained solely through this Grievance Procedure may be subject to NYCPM’s Code of Conduct, if applicable, and other University policies and/or procedures that may apply.

Note: Disclosures of information and evidence for purposes of administrative proceedings or litigation related to the Complaint of Sex-Based Harassment are authorized and not considered unauthorized disclosures potentially subject to other disciplinary action.

Prior to obtaining access to any evidence, the parties and their Process Support Person must sign an agreement not to disseminate any of the testimony heard or evidence obtained in the hearing or use such testimony or evidence for any purpose unrelated to the Title IX Grievance Process. Once signed, this Agreement may not be withdrawn. Failure to sign or adhere to this agreement may result in a negative inference against the party and the immediate withdrawal of that Process Support Person from the Title IX grievance process.

Relevant Evidence

Evidence is Relevant when it is related to the allegations of Sex-Based Harassment under investigation as part of this Grievance Procedure.
Questions are Relevant when they seek evidence that may aid in showing whether the alleged Sex-Based Harassment occurred, and evidence is Relevant when it may aid a decisionmaker in determining whether the alleged Sex-Based Harassment occurred.

Impermissible Evidence

The following types of evidence, and questions seeking that evidence, are excluded as impermissible (i.e., must not be accessed or considered, except by NYCPM to determine whether an exception applies, must not be disclosed, and must not otherwise be used) regardless of whether they are Relevant:

• Evidence that is protected under a privileged as recognized by Federal or State law or evidence provided to a Confidential Employee, unless the person to whom the privilege or confidentiality is owed has voluntarily waived the privilege or confidentiality;
• A Party’s or witness’s records that are made or maintained by a physician, psychologist, or other recognized professional or paraprofessional in connection with the provision of treatment to the Party or witness, unless NYCPM obtains that Party’s or witness’s voluntary, written Consent for use in NYCPM’s Grievance Procedure; and
• Evidence that relates to the Complainant’s sexual interests or prior sexual conduct, unless evidence about the Complainant’s prior sexual conduct is offered to prove that someone other than the Respondent committed the alleged conduct or is evidence about specific incidents of the Complainant’s prior sexual conduct with the Respondent that is offered to prove Consent to the alleged Sex-Based Harassment. Note: the fact of prior consensual sexual conduct between the Complainant and Respondent does not by itself demonstrate or imply the Complainant’s Consent to the alleged Sex-Based Harassment or preclude determination that Sex-Based Harassment occurred.

Timeframes

An investigation shall take be completed in a reasonably prompt fashion. If there are any delays or extensions, the Title IX Coordinator must appropriately notice the Parties in writing, as detailed below. NYCPM shall endeavor to complete its investigation in ninety (90) days.

Extensions may occur based on:

• Availability or unavailability of a witness or relevant/material documents;
• Reluctance of a witness and/or any necessary party;
• Delay or other uncooperative actions of any necessary party;
• Numerosity of witnesses;
• Holidays and vacation periods;
• Any other unforeseeable events/circumstances.

Extensions and Delays

NYCPM allows for the reasonable extension of timeframes on a case-by-case basis for good cause with written notice to the Parties that includes the reason for the extension or delay.

12.8 Live Hearing

General Rules for Live Hearings

NYCPM will not issue a finding or disciplinary sanction arising from an allegation of Sex-Based Harassment without holding a live hearing unless otherwise resolved through an informal resolution process.
The live hearing may be conducted with the Parties physically present in the same geographic location, or, at NYCPM’s sole discretion, any or all parties, witnesses, and other participants may appear at the live hearing virtually through Zoom or other appropriate video conferencing tools available at the time. This technology will enable participants simultaneously to see and hear each other. At its discretion, NYCPM may delay or adjourn a hearing based on technological errors not within a party’s control.

All proceedings will be recorded through either recording and/or transcript. The choice of medium is at NYCPM’s sole discretion.

Prior to obtaining access to any evidence, the parties and their Process Support Person must sign an agreement not to disseminate any of the testimony heard or evidence obtained in the hearing or use such testimony or evidence for any purpose unrelated to the Title IX Grievance Process. Once signed, this Agreement may not be withdrawn. Failure to sign or adhere to this agreement may result in a negative inference against the party and the immediate withdrawal of that Process Support Person from the Title IX grievance process.

Notice of Hearing

Upon completion of the investigation, the Complainant and Respondent will be notified in writing of:

• the date, time, and location of the live hearing;
• the applicable grievance process;
• that both Parties can have a Process Support Person of their choice;
• that they may inspect and review evidence obtained in the investigation;
• the allegations and conduct that potentially constitute Sexual Harassment;
• the identities of the Parties involved (if known); and
• the date and location of the alleged offense (if known). 

Depending on the circumstances and, at the sole discretion of NYCPM, the hearing may be conducted in-person or virtually, but will always be conducted in real-time. Permission to postpone a hearing may be granted provided that the request to postpone is reasonable.

Prior to the scheduled hearing, a trained Decision-maker will be appointed to be the fact-finder of responsibility for the alleged conduct.

While the Complainant, Respondent and witnesses are expected to be present and fully participate in the hearing (including being subject to questioning by a Process Support Person), it is the right of any and all parties to choose not to participate in the hearing of the alleged conduct. In the event that any party chooses not to participate fully in the hearing process, their statements (including those made in the investigation stage) may not be considered in the Decision-maker’s determination of responsibility.

If the hearing is held in-person (not virtually), by request of either the Complainant or Respondent, questioning by a Process Support Person can be conducted in separate rooms with technology available that enables the other party to see and hear the questioning in real-time. The entire hearing will be recorded, either by electronic means or transcription. The recording will be made available, upon request, for inspection and review to both Parties. This recording will be kept on file by NYCPM in accordance with applicable rules and regulations.

NYCPM shall create an audio or audiovisual recording or transcript of any live hearing and make it available to the Parties for inspection and review.

Continuances or Granting Extensions

NYCPM may determine that multiple sessions or a continuance (i.e. a pause on the continuation of the hearing until a later date or time) is needed to complete a hearing. If so, NYCPM will notify all participants and endeavor to accommodate all participants’ schedules and complete the hearing as promptly as practicable.

Before the Hearing

Prior to the Hearing, each party will be required to submit any questions, that have not already been addressed in the investigation, that they wish to ask at the oral-cross examination to the Title IX Coordinator no later than twenty-four (24) hours before the Hearing is scheduled to begin.

The Title IX Coordinator will provide the questions to the Decision-maker, who will determine the relevancy of each of the questions. If deemed relevant, the question is permissible to be asked during the hearing. If the Decision-maker determines that a question is not relevant, they will provide a brief reasoning for that decision and the question will not be permitted to be asked during the Hearing. Parties may appeal the relevance determinations at the beginning of the Hearing. The Decision-Maker will endeavor to provide their relevancy determinations at least one hour prior to the Hearing, but no later than the commencement of the Hearing.

Understanding Relevance:

For these adjudications, the basic test for relevance is whether the question posed is probative to the question of responsibility. This includes a Process Support Person asking questions that address the credibility of the party. However, there are some topics that are presumptively never relevant unless an exception applies, or a party has waived a privilege. These topics include questions and evidence:

• about the Complainant’s sexual predisposition or prior sexual behavior, unless offered to prove that someone other than the Respondent committed the alleged conduct;
• that concern specific incidents of the Complainant’s prior sexual behavior with respect to the Respondent, unless offered to prove consent;
• that would traditionally be protected by a legally recognized privilege (e.g., attorney-client privilege), unless the party has waived the privilege;
• in reference to a party’s psychological or medical records unless the party has given voluntary, written consent.

Participants in the Live Hearing

Live hearings are not public, and the only individuals permitted to participate in the hearing are as follows:

Complainant and Respondent (The Parties)

• The parties cannot waive the right to a live hearing.
• The institution may still proceed with the live hearing in the absence of a party, and may reach a determination of responsibility in their absence, including through any evidence gathered that does not constitute a “statement” by that party.
• NYCPM will not threaten, coerce, intimidate or discriminate against the party in an attempt to secure the party’s participation.
• If a party does not submit to cross-examination, the Decision-Maker cannot rely on any prior statements made by at party in reaching a determination regarding responsibility, but may reach a determination regarding responsibility based on evidence that does not constitute a “statement” by that party.
• The decision-maker cannot draw an inference about the determination regarding responsibility based solely on a party’s absence from the live hearing or refusal to answer cross examination or other questions.

The Decision-Maker

• The hearing body will consist of a single Decision-Maker.
• The Decision-Maker will also not have served as the Title IX Coordinator, Title IX investigator, or Process Support Person to any party in the case, nor may the Decision-Maker serve on the appeals body in the case.
• The Decision-Maker will not have a conflict of interest or bias in favor of or against complainants or respondents generally, or in favor or against the parties to the particular case.
• The Decision-Maker will be trained on topics including how to serve impartially, issues of relevance, how to apply the rape shield protections provided for complainants, and any technology to be used at the hearing.
• The parties will have an opportunity to raise any objections regarding a Decision-Maker’s actual or perceived conflicts of interest or bias at the commencement of the live hearing.

Process Support Person

• Both the Complainant and Respondent have the right to choose a Process Support Person. The Process Support Person will be the process support person of choice for such Party at the Hearing and may be, but does not have to be, an attorney. An attorney acting in this role has no different role in the process and serves in the same capacity as a non-attorney.
• The Process Support Person of choice may accompany the parties to any meeting or hearing they are permitted to attend, but may not speak for the party, except for the purpose of cross-examination.
• The parties themselves are not permitted to conduct cross-examination; it must be conducted by the Process Support Person. As a result, if a party does not select a Process Support Person, the institution will select a Process Support Person to serve in this role for the limited purpose of conducting the cross-examination at no fee or charge to the party.
• The Process Support Person is not prohibited from having a conflict of interest or bias in favor of or against complainants or respondents generally, or in favor or against the parties to the particular case.
• The Process Support Person is not prohibited from being a witness in the matter.
• If a party does not attend the live hearing, the party’s Process Support Person may appear and conduct cross-examination on their behalf.
• If neither a party nor their Process Support Person appear at the hearing, NYCPM will provide a Process Support Person to appear on behalf of the non-appearing party.
• Process Support Personnel shall be subject to NYCPM’s Rules of Decorum, and may be removed upon violation of those Rules.

Witnesses

• Witnesses cannot be compelled to participate in the live hearing, and have the right not to participate in the hearing free from retaliation.
• If a witness does not submit to cross-examination, as described below, the decision-maker cannot rely on any statements made by that witness in reaching a determination regarding responsibility, including any statement relayed by the absent witness to a witness or party who testifies at the live hearing.
• See 12.7 of this Policy in determining who can be a witness.

Rules of Decorum

The following Rules of Decorum are to be observed in the hearing and applied equally to all parties (meaning the complainant and respondent) and process support persons: 

1. Questions must be conveyed in a neutral tone.  
2. Parties and process support persons will refer to other parties, witnesses, process support persons, and institutional staff using the name and gender used by the person and shall not intentionally mis-name or mis-gender that person in communication or questioning. 
3. No party may act abusively or disrespectfully during the hearing toward any other party or to witnesses, process support persons, or decision-makers. 
4. While a process support person may be an attorney, no duty of zealous advocacy should be inferred or enforced within this forum. 
5. The process support person may not yell, scream, badger, or physically ‘‘lean in’’ to a party or witness’s personal space. Process support persons may not approach the other party or witnesses without obtaining permission from the decisionmaker.
6. The process support person may not use profanity or make irrelevant ad hominem attacks upon a party or witness. Questions are meant to be interrogative statements used to test knowledge or understand a fact; they may not include accusations within the text of the question. 
7. The process support person may not ask repetitive questions. This includes questions that have already been asked by the decisionmaker, the process support person in cross-examination, or (if an expert witness is participating) the party or process support person in direct testimony. When the decisionmaker determines a question has been “asked and answered” or is otherwise not relevant, the process support person must move on. 
8. Parties and process support persons may take no action at the hearing that a reasonable person in the shoes of the affected party would see as intended to intimidate that person (whether party, witness, or official) into not participating in the process or meaningfully modifying their participation in the process.

Warning and Removal Process 

The decisionmaker shall have sole discretion to determine if the Rules of Decorum have been violated. The decisionmaker will notify the offending person of any violation of the Rules.  

Upon a second or further violation of the Rules, the decision-maker shall have discretion to remove the offending person or allow them to continue participating in the hearing or other part of the process.

Where the decisionmaker removes a party’s process support person, the party may select a different process support person of their choice or accept a process support person provided by the institution for the limited purpose of cross-examination at the hearing. Reasonable delays, including the temporary adjournment of the hearing, may be anticipated should a process support person be removed. A party cannot serve as their own process support person in this circumstance.  

The decisionmaker shall document any decision to remove a process support person in the written determination regarding responsibility. 

Hearing Process

1. The hearing will begin with any appeals by the Parties to the Pre-Hearing relevancy determinations by the Decision-maker.
2. The Decision-maker will then open the hearing by establishing the rules and expectations. The Decision-maker will then read the charges.
3. Either party (Complainant or Respondent) may subsequently request to provide a brief statement of additional clarification of no more than five (5) minutes in duration.
4. Upon conclusion of any clarification statement, the Decision-Maker will ask questions of the Parties and Witnesses.
5. Parties will be given the opportunity for live cross-examination after the Decision-Maker conducts its initial round of questioning; During the Parties’ cross-examination, the Decision-Maker will have the authority to pause cross-examination at any time for the purposes of asking their own follow up questions; and at any time necessary in order to enforce the established rules of decorum. The Complainant, then followed by the Respondent, may have their Process Support Person ask any approved, relevant questions that have not already been addressed in the investigation or hearing. Should a Party or the Party’s Process Support Person choose not to cross-examine a Party or Witness, the Party shall affirmatively waive cross-examination through a written or oral statement to the Decision-Maker. A Party’s waiver of cross-examination does not eliminate the ability of the Decision-Maker to use statements made by the Party.
6. Each Party will have an opportunity to submit additional questions for review by the Decision-Maker after the initial Oral Cross-Examination has concluded. Should such questions be approved, the Complainant, followed by the Respondent, may have their Process Support Person ask any additional approved, relevant questions. There will only be one round of additional questions allowed.
7. There shall be no Oral Direct Examination at any point in the hearing process. The only time it is may be allowed is if a Party identifies, and provides sufficient justification for, an “Expert Witness” prior to the Hearing. If an “Expert Witness” is identified by one party, the other party will have an opportunity to Cross-Examine that “Expert Witness”, if they so choose.
8. Upon completion of questioning, any Party must raise any procedural, substantive, bias, conflict or other perceived irregularity to the Decision-Maker’s attention for review and consideration. Failure to do so will forever waive such complaint.
9. Thereafter the Decision-maker will conclude the hearing.

Live Cross-Examination Procedure

Each party’s Process Support Person will conduct live cross-examination of the other party or parties and witnesses. During this live-cross examination the Process Support Person will ask the other party or parties and witnesses relevant questions and follow-up questions, including those challenging credibility directly, orally, and in real time.

Cross-examination questions that are duplicative of those already asked, including by the Decision-Maker, may be deemed irrelevant if they have been asked and answered.

Newly-Discovered Evidence

As a general rule, no new evidence or witnesses may be submitted during the live hearing.

If a Party identifies new evidence or witnesses that were not reasonably available prior to the live hearing and could affect the outcome of the matter, the Party may request that such evidence or witnesses be considered at the live hearing.

The Decision-maker will consider this request and make a determination regarding (1) whether such evidence or witness testimony was actually unavailable by reasonable effort prior to the hearing, and (2) whether such evidence or witness testimony could affect the outcome of the matter. The Party offering the newly-discovered evidence or witness has the burden of establishing these questions by the preponderance of the evidence.

If the Decision-maker answers in the affirmative to both questions, then the Parties will be granted a reasonable pause in the hearing to review the evidence or prepare for questioning of the witness.

12.9 Determination Regarding Responsibility and Sanctioning

Standard of Proof

NYCPM uses the preponderance of the evidence standard of proof to determine whether or not Sex-Based Harassment occurred. This means that the investigation and hearing determine whether it is more likely than not that a violation of the Grievance Procedure occurred.

General Considerations for Evaluating Evidence and Testimony

The decisionmaker is required to evaluate Relevant and not otherwise impermissible evidence for its persuasiveness. If the decisionmaker is not persuaded under the applicable standard by the evidence that Sex-Based Harassment occurred, whatever the quantity of the evidence is, the decisionmaker must not determine that Sex-Based Harassment occurred.

Determinations regarding responsibility may be based in part, or entirely, on documentary, audiovisual, and digital evidence, as warranted in the reasoned judgment of the decisionmaker. Decisionmakers shall not draw inferences regarding a Party or witness’ credibility based on the Party or witness’ status as a Complainant, Respondent, or witness, nor shall it base its judgments in stereotypes about how a Party or witness would or should act under the circumstances.

Generally, credibility judgments should rest on the demeanor of the Party or witness, the plausibility of their testimony, the consistency of their testimony, and its reliability in light of corroborating or conflicting testimony or evidence. However, credibility judgments should not rest on whether a Party or witness’ testimony is non-linear or incomplete, or if the Party or witness is displaying stress or anxiety.

Decision makers will afford the highest weight relative to other testimony to first-hand testimony by Parties and witnesses regarding their own memory of specific facts that occurred. Both inculpatory and exculpatory (i.e. tending to prove and disprove the allegations) evidence will be weighed in equal fashion.

A witness’ testimony regarding third-Party knowledge of the facts at issue will be allowed, but will generally be accorded lower weight than testimony regarding direct knowledge of specific facts that occurred. See 12.7 under this policy to further understand the weight given to Expert Witness testimony and Character Witness testimony.

Where a Party or witness’ conduct or statements demonstrate that the Party or witness is engaging in retaliatory conduct, including without limitation, witness tampering and intimidation, the decisionmaker may draw an adverse inference as to that Party or witness’ credibility.

Communication of the Determination in Writing

All determinations on whether Sex-Based Harassment occurred will be communicated to the Parties in writing, simultaneously.

The written determination will include:

• A description of the alleged Sex-Based Harassment;
• Information about the policies and procedures that NYCPM used to evaluate the allegations;
• The decisionmaker’s evaluation of the Relevant evidence and determination on whether Sex-Based Harassment occurred;
• Any Disciplinary Sanctions NYCPM will impose on the Respondent, whether Remedies other than the imposition of Disciplinary Sanctions will be provided by NYCPM to the Complainant, and, to the extent appropriate, other Students identified by NYCPM to be experiencing the effects of Sex-Based Harassment, if there is a finding that Sex-Based Harassment occurred; and
• NYCPM’s procedures for Complainant and Respondent to appeal.

Timeline of Determination Regarding Responsibility

If there are no extenuating circumstances, the determination regarding responsibility will be issued by NYCPM within a reasonable timeframe following the completion of the hearing. NYCPM shall endeavor to provide a determination regarding responsibility within ten (10) days upon the completion of the hearing.

Determination of Disciplinary Sanctions After a Finding of Responsibility

Per New York state law, past findings of domestic violence, dating violence, stalking, or sexual assault may be admissible in the disciplinary stage that determines sanction. However, it is not admissible prior to determination of responsibility.

In addition, the Complainant will have an opportunity to make an impact statement during the point of the proceeding where the decisionmaker is deliberating on appropriate sanctions.

Finality of Determination

The determination regarding responsibility becomes final either on the date that NYCPM provides the Parties with the written determination of the result of any appeal, or, if no Party appeals, the date on which an appeal would no longer be considered timely.

Disclosures of Outcome by the Parties

The Complainant and Respondent have the right to choose whether to disclose or discuss the outcome of a conduct or judicial process related to sexual assault, dating violence, domestic violence, or stalking.

The Complainant and Respondent have the right to have all information obtained during the course of the conduct or judicial process be protected from public release until the appeals panel makes a final determination unless otherwise required by law.

12.10 Disciplinary Sanctions

Student violators may be subject to the following sanctions and remedial measures on a case-by-case basis:

• Warning: A written reprimand putting the student on notice that he/she has violated the Code of Conduct. A copy of this warning is placed in the student's folder.
• No-Contact Order: A student may be ordered to temporarily not intentionally contact a victim through any medium.
• Probation: A student may be placed on disciplinary probation for a definite period of time. While on probation, students may not hold office in Student Government Organizations, Clubs or Societies or represent the university in any capacity. Further violations while on probationary status will result in suspension or expulsion from the university.
• Restitution: A student may be required to pay restitution to the university or to fellow students for damages and losses resulting from his/her actions.
• Suspension: At any time during a student's enrollment at the university he/she may be suspended and barred from attending classes for a definite period, not to exceed two years. A student who is suspended is entitled to a written clarification with specific reasons for and description of the sanction. A student may not be automatically re-enrolled at the end of his/her suspension. He/she must apply to the Student Affairs Committee for re-enrollment.
• Expulsion: NYCPM may terminate a student's status at the university at any time.

Faculty and staff (part-time and full-time) who violate the policy will be subject to disciplinary sanctions on a case-by-case basis as follows:

• Censure: A written reprimand, outlining the violation(s) of university policies, may be placed in the personnel file of individual violators.
• Probation: Faculty and/or staff may be placed on probation for a definite period of time up to a maximum of one year. In such instances, individuals may be required to enroll in a therapeutic counseling or treatment program.
• Suspension: Faculty and/or staff may be suspended from employment without pay for a period of time ranging from seven days to a maximum of one year.
• Termination of Employment: Faculty and/or staff may be dismissed from employment upon written notice by the Dean of Faculties (for faculty members) or the Vice President for Administration (all other employees).
• Legal Action: Faculty and/or staff may be turned over to law enforcement authorities for criminal prosecution and legal action.

In both cases for students, faculty and staff, the existence of a progressive system of disciplinary sanctions measures does not preclude NYCPM from levying a heavy sanction, without first resorting to a lesser sanction. By way of illustration and not exclusion, NYCPM may expel a student or terminate a staff member for a violation of policy without first issuing a warning or putting that student or employee on probation.

University-Initiated Protective Measures

In addition to those protective measures previously described, the Title IX Coordinator or their designee will determine whether interim interventions and protective measure should be implemented, and, if so, take steps to implement those protective measures as soon as possible.

When the accused or respondent is a student, to have the institution issue a “no contact order” consistent with institution policies and procedures, whereby continued intentional contact with the reporting individual would be a violation of institution policy subject to additional conduct charges; 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. Both the accused or respondent and the reporting individual shall, upon request and consistent with institution 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. Institutions may establish an appropriate schedule for the accused and respondents to access applicable institution buildings and property at a time when such buildings and property are not being accessed by the reporting individual.

Other examples of interim protective measures include, but are not limited to: a University order of no contact, residence hall relocation, adjustment of course schedules, a leave of absence, or reassignment to a different supervisor or position. These remedies may be applied to one, both, or multiple parties involved.  Protective measures imposed may be temporary pending the results of an investigation or may become permanent as determined by NYCPM. Violations of the Compliance Officer’s directives and/or protective measures will constitute related violations that may lead to additional disciplinary action including interim suspension pending the outcome of a judicial or conduct process consistent with NYCPM policy. Both the accused or respondent and the reporting individual shall, upon request and consistent with the institution’s policies and procedures, be afforded a prompt review, reasonable under the circumstances, of the need for and terms of an interim suspension, including potential modification, and shall be allowed to submit evidence in support of the request.

Every institution shall ensure that individuals are provided the following protections and accommodations:

• To receive a copy of the order of protection or equivalent when received by an institution and have an opportunity to meet or speak with an institution representative, or other appropriate individual, who can explain the order and answer questions about it, including information from the order about the accused’s responsibility to stay away from the protected person or persons;
• When the accused is not a student but is a member of the institution’s community and presents a continuing threat to the health and safety of the community, to subject the accused to interim measures in accordance with applicable collective bargaining agreements, employee handbooks, and rules and policies of the institution.

Policy For Transcript Notations

For crimes of violence, including, but not limited to sexual violence, defined as crimes that meet the reporting requirements pursuant to the federal Clery Act established in 20 U.S.C. 1092(f)(1)(F)(i)(I)-(VIII), NYCPM shall make a notation on the transcript of students found responsible after a conduct process that they were “suspended after a finding of responsibility for a code of conduct violation” or “expelled after a finding of responsibility for a code of conduct violation.” For the respondent who withdraws from the institution while such conduct charges are pending, and declines to complete the disciplinary process, institutions shall make a notation on the transcript of such students that they “withdrew with conduct charges pending.”  NYCPM will allow for appeals seeking removal of a transcript notation for a suspension, provided that such notation shall not be removed prior to one year after conclusion of the suspension, while notations for expulsion shall not be removed. If a finding of responsibility is vacated for any reason, any such transcript notation shall be removed. (Section 6444(6) NYS Education Law Article 129-B).

12.11 Appeals

The Complainant and Respondent will both be provided with at least one level of appeal.
For appeals resulting from dismissal of a complaint, please see the section on Dismissal of Complaints.

Grounds for Appeal

The limited grounds for appeal available are as follows:

• Procedural irregularity that would change the outcome;
• New evidence that would change the outcome and that was not reasonably available when the determination whether Sex-Based Harassment occurred or dismissal was made;
• The Title IX Coordinator, investigator, or decisionmaker had a conflict of interest or bias for or against Complainants or Respondents generally or the individual Complainant or Respondent, that affected the outcome of the matter; or
• the sanction imposed is disproportionate to the violation.

The Complainant and Respondent may also appeal the dismissal of a complaint based on the first three points listed above.

The request for an appeal must include the grounds on which the request is based and be submitted in writing to the Title IX Coordinator within seven (7) business days following the date of the written determination. The appeal should also state the remedy sought by the appealing party. Upon receipt of the appeal, the other party will receive notification of the appeal and be provided opportunity to respond in writing. Written responses to the other party’s appeal must be submitted within three (3) business days following the delivery of notice of the appeal.

In order to ensure a neutral and unbiased review, a party’s request for appeal will be sent to an Appeals Panel comprised of individuals with no connection to the initial determination, which serves as a separate decisionmaker. An appeal decision will be rendered within twenty (20) business days after the receipt of the formal appeal request. The appeal decision will be provided in writing to both parties.

Additional Procedures for Appeal Process

NYCPM will notify the Parties of any appeal, provide the Parties a reasonable and equal opportunity to make a statement in support of, or challenging, the outcome, and will notify the Parties of the result of the appeal and the rationale for the result.
The submission of an appeal stays (or pauses) any sanctions for the period during which an appeal determination is being assessed. Supportive Measures and remote learning opportunities remain available while an appeal is being deliberated and before a final decision has been made.

Finality

The determination regarding responsibility becomes final either on the date that the institution provides the parties with the written determination of the result of the appeal, if an appeal is filed consistent with the procedures and timeline outlined in “Appeals” above, or if an appeal is not filed, the date on which the opportunity to appeal expires.

12.12 Informal Resolution

Procedures for Entering and Exiting Informal Resolution Process

At any time prior to determining whether Sex-Based Harassment occurred under this Grievance Procedure, including prior to making a Complaint, Parties may instead seek NYCPM’s assistance to resolve allegations of Sex-Based Harassment, and may elect to enter the informal resolution process.

No Informal Resolution process will be offered to resolve Formal Complaints involving a student as Complainant and a staff or faculty member as Respondent.

The Parties may voluntarily elect to enter the NYCPM’s informal resolution process at any time through an informed written Consent. This informed written Consent will include all terms of the elected informal process, including a statement that any agreement reached through the process is binding on the Parties.

No Party may be required to participate in informal resolution, and NYCPM may never condition enrollment, employment, or enjoyment of any other right or privilege upon agreeing to informal resolution.
The Parties may elect to leave the informal resolution process at any point until the informal resolution process is concluded. If a Party elects to leave the informal resolution process, the Grievance Procedure that the Parties paused will continue. In participating in the informal resolution process, the Parties understand that the timeframes governing the Grievance Procedure will temporarily cease, and only reinstate upon reentry into the Grievance Procedure.

Supportive Measures will be available, or continue to be available if already provided, during an informal resolution process, if elected to proceed. The Title IX Coordinator will also, to the extent necessary, take other appropriate prompt and effective steps to ensure that Sex-Based Harassment does not continue or recur within NYCPM’s Education Program or Activity.

Notice Prior to Entry Into Informal Resolution Process

Before the initiation of an informal resolution process, the Title IX Coordinator must provide to the Parties a written notice that explains:

• The allegations;
• The requirements of the informal resolution process;
• That, prior to agreeing to a resolution, any Party has the right to withdraw from the informal resolution process and to initiate or resume NYCPM’s Grievance Procedures;
• That the Parties’ agreement to a resolution at the conclusion of the informal resolution process would preclude the Parties from initiating or resuming NYCPM’s Grievance Procedures arising from the same allegations;
• The potential terms that may be requested or offered in an informal resolution agreement, including notice that an informal resolution agreement is binding only on the Parties; and
• What information NYCPM will maintain and whether and how NYCPM could disclose such information for use in its Grievance Procedures if they are initiated or resumed.

Determination to Approve Entry into Informal Resolution Process

Even where the Parties agree to submit a matter to informal resolution, the Title IX Coordinator may approve the decision to move the matter to the informal resolution process and may determine that informal resolution is not appropriate under the circumstances.

Factors that the Title IX Coordinator may weigh in considering the appropriateness of the informal resolution process include, but are not limited to, the gravity of the allegations, whether there is an ongoing threat of harm or safety to the campus, whether the Respondent is a repeat offender, whether the alleged conduct would present a future risk of harm to others, and whether the Parties are participating in good faith. This determination is not subject to appeal.

At any time after the commencement of the informal resolution process, the Title IX Coordinator may determine that the informal resolution process is not an appropriate method for resolving the matter, and may require that the matter be resolved through the Grievance Procedures. This determination is not subject to appeal.

If informal resolution is approved or denied, the Title IX Coordinator will provide the outcome in writing simultaneously to the Parties.

Contents of Informal Resolution Agreements

Potential terms that may be included in an informal resolution agreement between the Parties include but are not limited to:

• Restrictions on contact; and
• Restrictions on the Respondent’s participation in one or more of NYCPM’s education programs or activities or attendance at specific events, including restrictions NYCPM could have imposed as Remedies or Disciplinary Sanctions had NYCPM determined at the conclusion of the Grievance Procedure that Sex-Based Harassment occurred.

Breach of Informal Resolution Agreements

If a Party breaches the resolution or if NYCPM has other compelling reasons, such as if it learns of any fraud by a Party in entering into the agreement, NYCPM may void the agreement and initiate or resume the Grievance Procedure.

Confidentiality

In entering the informal resolution process, the Parties agree that any testimony and evidence (including admissions of responsibility) they share or receive during the informal resolution process concerning the allegations of the complaint is confidential. No evidence concerning the allegations obtained within the informal resolution process may be disseminated to any person, provided that any Party to the informal resolution process may generally discuss the allegations under investigation with a parent, friend, process support person, or other source of emotional support, or with an advocacy organization. As a condition of entering the informal resolution process, any evidence shared or received during the informal resolution process may not be used in any subsequent Grievance Procedure or institutional appeal.

13.0 Transcript Notations

For crimes of violence, including, without limitation, sexual violence, defined as crimes that meet the reporting requirements pursuant to the Clery Act (20 U.S.C. 1092(f)(1)(F)(i)(I)-(VIII)), NYCPM is required to make a notation on the transcript of a student found responsible for suspension or expulsion, per NYCPM’s Transcript Notation Policy. That policy reads:

For crimes of violence, including, but not limited to sexual violence, defined as crimes that meet the reporting requirements pursuant to the federal Clery Act established in 20 U.S.C. 1092(f)(1)(F)(i)(I)-(VIII), NYCPM shall make a notation on the transcript of students found responsible after a conduct process that they were “suspended after a finding of responsibility for a code of conduct violation” or “expelled after a finding of responsibility for a code of conduct violation.” For the respondent who withdraws from the institution while such conduct charges are pending, and declines to complete the disciplinary process, institutions shall make a notation on the transcript of such students that they “withdrew with conduct charges pending.”  NYCPM will allow for appeals seeking removal of a transcript notation for a suspension, provided that such notation shall not be removed prior to one year after conclusion of the suspension, while notations for expulsion shall not be removed. If a finding of responsibility is vacated for any reason, any such transcript notation shall be removed. (Section 6444(6) NYS Education Law Article 129-B).

14.0 Retaliation

When NYCPM has information about conduct that reasonably may constitute Retaliation under Title IX or its Grievance Procedure, NYCPM is obligated to initiate its Grievance Procedure, or, as appropriate, NYCPM’s informal resolution process.

NYCPM will keep the identity of any individual who has made a report or complaint of sex discrimination confidential, including the identity of any individual who has made a report or filed a Formal Complaint of Sex-Based Harassment or sex discrimination under the NYCPM Title IX Grievance Procedures, any Complainant, any individual who has been reported to be the perpetrator of sex discrimination, any Respondent, and any witness, except as permitted by the FERPA statute, 20 U.S.C. 1232g, or FERPA regulations, 34 CFR part 99, or as required by law, or to carry out the purposes of 34 CFR part 106, including the conduct of any investigation, hearing, or judicial proceeding under NYCPM’s Title IX Grievance Procedures.

No person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX of the Education Amendments of 1972 or its implementing regulations.

No person may intimidate, threaten, coerce, or discriminate against any individual because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding or hearing under NYCPM’s Grievance Procedures.

Any intimidation, threats, coercion, or discrimination, for the purpose of interfering with any right or privilege secured by Title IX or its implementing regulations constitutes Retaliation. This includes any charges filed against an individual for code of conduct violations that do not involve sex discrimination or Sex-Based Harassment, but that arise from the same facts or circumstances as a report or complaint of sex discrimination or a report or complaint of Sex-Based Harassment. See NYCPM’s Amnesty Policy, 8.0, above.

Complaints alleging Retaliation may be filed according to Joel A. Sturm at [email protected]

Grievance Procedure for Sex-Based Harassment Complaints for New York Campuses

Effective August 1, 2024

1.0 Effective Date and Changes to Procedure Based on Court Rulings and Legal Challenges or Changes in Law or Regulation

This Grievance Procedure applies to incidents that occur on or after August 1, 2024. Any incidents reported under this Grievance Procedure that occurred on or before July 31, 2024, will be processed through the institution’s prior applicable 2020 Title IX Grievance Policy.

Should any portion of the 2024 Title IX Final Rule (89 Fed. Reg. 33474 (Apr. 29, 2024)), be stayed or held invalid by a court of law, or if the 2024 Title IX Final Rule is withdrawn or modified to not require elements of this Grievance Procedure, the Grievance Procedures in its entirety, or the invalidated elements of this Procedure, they will be deemed revoked as of the publication date of the opinion or order from the Court and for all reports after that date, as well as any elements of the process that occur after that date if a case is not complete by the date of the opinion or order publication by the Court. If this Procedure is revoked in this manner, any conduct covered under this Procedure shall be investigated and adjudicated under the previous 2020 Title IX Grievance Policy, NYCPM’s Code of Conduct, and/or NYCPM’s Sexual Misconduct Policy, as applicable. NYCPM will update this Grievance Procedure as soon as practicable to reflect any court rulings or changes that invalidate parts of the Grievance Procedure, if applicable.

2.0 Scope of Procedure

Sex-Based Harassment is considered discrimination on the basis of sex if it includes harassment due to actual or perceived sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and/or gender identity.

3.0 Jurisdiction of Procedure

New York College of Podiatric Medicine’s (“NYCPM”) Title IX Coordinator will determine if this Grievance Procedure applies to a Complaint. This Grievance Procedure will apply when the following elements are met, in the reasonable determination of the Title IX Coordinator:

• The conduct alleged occurred on or after August 1, 2024;
• The conduct alleged occurred in the United States, except for cases of sexual assault, domestic violence, dating violence and stalking, in which case, if such occurred off campus or during study abroad, will be subject to the jurisdiction of this Grievance Procedure;
• The conduct alleged occurred in NYCPM’s Education Program or Activity; and
• The conduct alleged, if true, would constitute Sex-Based Harassment as defined in this Grievance Procedure.

NOTE: NYCPM has an obligation to address a sex-based hostile environment under its Education Program or Activity, even when some conduct alleged to be contributing to the Hostile Environment occurred outside NYCPM’s Education Program or Activity, or outside of the United States, if such conduct affects a NYCPM Education Program or Activity in the United States. NYCPM’s Title IX Coordinator will work with all Complainants to assess such Complaints that may fall under these criteria, and direct to appropriate University Policies and Procedures that may apply if this Grievance Procedure does not. NYCPM will communicate all such decisions in writing to the Complainant. Any such dismissals shall be subject to appropriate appeal rights under this Grievance Procedure as outlined in the Dismissals section below.

Conduct that occurs under NYCPM’s Education Program or Activity includes but is not limited to conduct that occurs in a building owned or controlled by a Student organization that is officially recognized by NYCPM, and conduct that is subject to NYCPM’s disciplinary authority under NYCPM’s Code of Conduct.

If all elements of jurisdiction are met, NYCPM will investigate the allegations according to this Grievance Procedure as appropriate, unless informal resolution is pursued or there are grounds for dismissal of the Complaint.

4.0 Non-Discrimination in Application

The requirements and protections of this Grievance Procedure apply equally regardless of sex, sexual orientation, gender identity, gender expression, race, color, national origin, religion, creed, age, disability, familial status, pregnancy, predisposing genetic characteristics, military status, domestic violence victim status, criminal conviction, or other protected classes covered by applicable federal, state, or local law. All requirements and protections are equitably provided to individuals regardless of such protected status(es) or status as a Complainant, Respondent, or Witness. Individuals who wish to file a Complaint about the institution’s policy or process may contact the U.S. Department of Education’s Office for Civil Rights using contact information available at https://ocrcas.ed.gov/contact-ocr. Individuals may also file complaints with the New York State Division of Human Rights (DHR), using contact information available at https://dhr.ny.gov/complaint.

5.0 Students’ Bill of Rights

All Students have the right to:

1. Make a report to local law enforcement and/or state police;
2. Have disclosures of Domestic Violence, Dating Violence, Stalking, and Sexual Assault treated seriously;
3. Make a decision about whether or not to disclose a crime or violation and participate in the judicial or conduct process and/or criminal justice process free from pressure by the institution;
4. Participate in a process that is fair, impartial, and provides adequate notice and a meaningful opportunity to be heard;
5. Be treated with dignity and to receive from the institution courteous, fair, and respectful health care and counseling services, where available;
6. Be free from any suggestion that the Reporting Individual is at fault when these crimes and violations are committed, or should have acted in a different manner to avoid such crimes or violations;
7. Describe the incident to as few institution representatives as practicable and not be required to unnecessarily repeat a description of the incident;
8. Be protected from Retaliation by the institution, any Student, the Accused and/or the Respondent, and/or their friends, family and acquaintances within the jurisdiction of the institution;
9. Access to at least one level of appeal of a determination;
10. Be accompanied by a process support person of choice who may assist and advise a Reporting Individual or Complainant, Accused, or Respondent throughout the judicial or conduct process including during all meetings and hearings related to such process; and
11. Exercise civil rights and practice of religion without interference by the investigative, criminal justice, or judicial or conduct process of the institution.

6.0 Definitions

• Accused means a person accused of a violation who has not yet entered an institution’s judicial or conduct process.
• Admission means selection for part-time, full-time, special, associate, transfer, exchange, or any other enrollment, membership, or matriculation in or at an Education Program or Activity operated by NYCPM.
• Consent means 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. 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. Consent is required regardless of whether the person initiating the act is under the influence of drugs and/or alcohol. Consent may be initially given but withdrawn at any time. Consent cannot be given when a person is incapacitated. Incapacitation occurs when an individual lacks the ability to knowingly choose to participate in sexual activity. Incapacitation may be caused by the lack of consciousness or being asleep, being involuntarily restrained, or if an individual otherwise 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. Consent cannot be given when it is the result of any coercion, intimidation, force, or threat of harm. When Consent is withdrawn or can no longer be given, sexual activity must stop. “Consent” and “affirmative consent” may be used interchangeably under this Grievance Procedure.
• Complainant means:

  (1) a student or employee who is alleged to have been subjected to conduct that could constitute Sex-Based Harassment as defined in this Grievance Procedure and who was participating or attempting to participate in NYCPM’s Education Program or Activity; or
  (2) a person other than a student or employee who is alleged to have been subjected to conduct that could constitute Sex-Based Harassment under this Grievance Procedure and who was participating or attempting to participate in NYCPM’s Education Program or Activity at the time of the alleged Sex-Based Harassment.

  A Complainant may also be referred to as a Reporting Individual in this Grievance Procedure, in alignment with New York State Education Law Article 129-B.

• Complaint means an oral or written request to NYCPM that objectively can be understood as a request for NYCPM to investigate and make a determination about alleged Sex-Based Harassment at the institution.
• Disciplinary Sanctions means consequences imposed on a Respondent following a determination under this Grievance Procedure that the Respondent violated NYCPM’s prohibition on Sex-Based Harassment. For students, faculty and staff, the existence of a progressive system of disciplinary sanctions measures does not preclude NYCPM from levying a heavy sanction, without first resorting to a lesser sanction. By way of illustration and not exclusion, NYCPM may expel a student or terminate a staff member for a violation of policy without first issuing a warning or putting that student or employee on probation.
• Education Program or Activity means any academic, extracurricular, research, occupational training or other Education Program or Activity operated by NYCPM that receives Federal financial assistance.
• Party means Complainant or Respondent.
• Peer Retaliation means Retaliation by a Student against another Student.
• Privacy and Confidentiality. References made to confidentiality refer to the ability of identified confidential resources (e.g. priests/clergy) to not report crimes and violations to law enforcement or college officials without permission, except for extreme circumstances, such as a health and/or safety emergency or child abuse. NYCPM offices and employees cannot guarantee confidentiality but will maintain privacy to the greatest extent possible, and information disclosed will be relayed only as necessary to investigate and/or seek a resolution and to notify the Title IX Coordinator or designee, who is responsible for tracking patterns and spotting systemic issues. NYCPM will endeavor to limit the disclosure as much as practicable, even if the Title IX Coordinator determines that the request for confidentiality or privacy cannot be honored. Please note that NYCPM does not have any personnel that can be deemed or considered “Confidential Reporters” and, as such, all information provided to NYCPM may be disclosed to the Title IX Coordinator or other relevant administrator with Authority.  
• Relevant means related to the allegations of Sex-Based Harassment under investigation as part of this Grievance Procedure. Questions are Relevant when they seek evidence that may aid in showing whether the alleged Sex-Based Harassment occurred, and evidence is Relevant when it may aid a decisionmaker in determining whether the alleged Sex-Based Harassment occurred.
• Remedies means measures provided, as appropriate, to a Complainant or any other person NYCPM identifies as having had their equal access to NYCPM’s Education Program or Activity limited or denied by Sex-Based Harassment. These measures are provided to restore or preserve that person’s access to NYCPM’s Education Program or Activity after NYCPM determines that Sex-Based Harassment occurred.
• Respondent means a person who is alleged to have violated NYCPM’s prohibition on Sex-Based Harassment.
• Retaliation means intimidation, threats, coercion, or discrimination by any person by NYCPM, a Student, or an employee or other person authorized by NYCPM to provide aid, benefit, or service under NYCPM’s Education Program or Activity, for the purpose of interfering with any right or privileged secured by Title IX, or because the person has reported information, made a Complaint, testified, assisted or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this Grievance Procedure, including an informal resolution process.
• Sex-Based Harassment means sexual harassment and other harassment on the basis of sex, including harassment because of gender identity, sexual orientation, sex characteristics, sex stereotypes, and/or pregnancy and other conditions, that is:

  (1) Quid pro quo harassment. An employee, agent or other person authorized by NYCPM’s Education Program or Activity explicitly or impliedly conditioning the provision of such an aid, benefit, or service on a person’s participation in unwelcome sexual conduct;

  (2) Hostile Environment harassment. Unwelcome sex-based conduct that, based on the totality of the circumstances, is subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from NYCPM’s Education Program or Activity (i.e., creates a Hostile Environment). Whether a Hostile Environment has been created is a fact-specific inquiry that includes consideration of the following: (i) the degree to which the conduct affected the Complainant’s ability to access NYCPM’s Education Program or Activity; (ii) the type, frequency, and duration of the conduct; (iii) the Parties’ ages, roles within NYCPM’s Education Program or Activity, previous interactions and other factors about each Party that may be Relevant to evaluating the effects of the conduct; (iv) the location of the conduct and the context in which the conduct occurred; and (v) other Sex-Based Harassment in NYCPM’s Education Program or Activity;

  (3) Sexual Assault (as defined in the Clery Act, 20 U.S.C. 1092(f)) means any sexual act directed against another person, without the Consent of the victim, including instances where the victim is incapable of giving Consent;

  (4) Dating Violence (as defined in the Violence Against Women Act (VAWA) Reauthorization of 2022 and the VAWA Amendments to the Clery Act) means any violence committed by a person: (A) who is or has been in a social relationship of a romantic or intimate nature with the victim; and (B) Where the existence of such a relationship shall be determined based on a consideration of the following factors: (i) The length of the relationship; (ii) the type of relationship; and (iii) the frequency of interaction between the persons involved in the relationship.

  (5) Domestic Violence means any felony or misdemeanor crimes committed by a personwho: (A) is a current or former partner of the victim under the family or Domestic Violence laws of New York, or a person similarly situated to a spouse of the victim; (B) is cohabitating, or has cohabitated, with the victim as a spouse or intimate partner; (C) shared a child in common with the victim; or (D) commits acts against a youth or adult victim who is protected from those acts under the family or Domestic Violence laws of New York; or

  (6) Stalking means engaging in a course of conduct directed at a specific person that would cause a reasonable person to: (A) fear for the person’s safety or the safety of others; or (B) suffer substantial emotional distress.

• Student means a person who has gained Admission.
• Supportive Measures means individualized measures offered as appropriate, as reasonably available, without unreasonably burdening a Complainant or Respondent, not for punitive or disciplinary reasons, and without fee or charge to the Complainant or Respondent, to: (1) restore or preserve that Party’s access to NYCPM’s Education Program or Activity, including measures that are designed to protect the safety of the Parties or NYCPM’s educational environment; or (2) provide support during NYCPM’s Grievance Procedure for Sex-Based Harassment or during the informal resolution process.

7.0 Disability Accommodations

Generally

This Grievance Procedure does not alter any institutional obligations under applicable federal, state, and/or local, disability laws, including the Americans with Disabilities Act of 1990, and Section 504 of the Rehabilitation Act of 1973, among others. Parties may request reasonable accommodations for disclosed disabilities to the Title IX Coordinator at any point before or during the Title IX Grievance Procedure that do not fundamentally alter the Procedure. The Title IX Coordinator will not affirmatively provide disability accommodations that have not been specifically requested by the Parties, even where the Parties may be receiving accommodations in other institutional programs and activities.

Requests for Reasonable Accommodations During the Title IX Grievance Procedure

If the Complainant or Respondent discloses a disability, the Title IX Coordinator or designee may consult, as appropriate, with the Office of Student Disability Services to provide support to Students with disabilities to determine how to comply with applicable law including, without limitation, Section 504 of the Rehabilitation Act of 1973 in the implementation of any Supportive Measures, or any other reasonable accommodations requested during the Grievance Procedure.

8.0 Policy for Alcohol and/or Drug Use Amnesty

The health and safety of every student at NYCPM is of utmost importance. NYCPM recognizes that students who have been drinking and/or using drugs (whether such use is voluntary or involuntary) at the time that violence, including but not limited to domestic violence, dating violence, stalking, or sexual assault occurs may be hesitant to report such incidents due to fear of potential consequences for their own conduct. NYCPM strongly encourages students to report domestic violence, dating violence, stalking, or sexual assault to institution officials. A bystander acting in good faith or a reporting individual acting in good faith that discloses any incident of domestic violence, dating violence, stalking, or sexual assault to NYCPM’s officials or law enforcement will not be subject to NYCPM’s code of conduct action for violations of alcohol and/or drug use policies occurring at or near the time of the commission of the domestic violence, dating violence, stalking, or sexual assault.

9.0 Basic Requirements of the Grievance Procedure

NYCPM is required to:

• Treat Complainants and Respondents equitably;
• Ensure that any person designated by NYCPM as a Title IX Coordinator, investigator, or decisionmaker does not have a conflict of interest or bias for or against Complainants or Respondents generally or an individual Complainant or Respondent;
• Establish reasonably prompt timeframes for the major stages of this Grievance Procedure, including a process that allows for the reasonable extension of timeframes on a case-by-case basis for good cause with notice to the Parties that includes the reason for the delay;
• Ensure that reasonable steps to protect the privacy of the Parties and witnesses during the pendency of the Grievance Procedure are taken, provided that the steps do not restrict the abilities of the Parties to obtain and present evidence, including by speaking to witnesses (as long as such does not result in Retaliation), consult with their family members, confidential resources, or process support persons, or otherwise prepare for or participate in this Grievance Procedure(so long as all necessary FERPA Waivers have been executed on the Party’s or witness’s behalf);
• Ensure an objective evaluation of all evidence that is Relevant and not otherwise impermissible under this Procedure, including both inculpatory and exculpatory evidence, and provide that credibility determinations must not be based on a person’s status as a Complainant, Respondent or Witness;
• Exclude impermissible evidence from consideration as defined in the Grievance Procedure; and
• Clearly articulate principles for how NYCPM will determine which policies and procedures apply if not all such Complaints are handled under this institutional Grievance Procedure.

Per New York State Law, NYCPM is also required to additionally ensure that Complainants are advised of their right to:

• Notify Campus Security, local law enforcement, and/or state police;
• Have emergency access to a Title IX Coordinator or other appropriate official trained in interviewing victims of sexual assault who shall be available upon the first instance of disclosure by a Complainant to provide information regarding options to proceed, and, where applicable, the importance of preserving evidence and obtaining a sexual assault forensic examination as soon as possible, and detailing that the criminal justice process utilizes different standards of proof and evidence and that any questions about whether a specific incident violated New York Penal Law should be addressed to law enforcement or to the district attorney, who shall also explain whether he or she is authorized to offer the reporting individual confidentiality or privacy, and shall inform the Complainant of other reporting options;
• Disclose confidentially the incident to institution representatives, who may offer confidentiality pursuant to applicable laws and can assist in obtaining services for Complainants;
• Disclose confidentially the incident and obtain services from the state or local government;
• Disclose the incident to institution representatives who can offer privacy or confidentiality, as appropriate, and can assist in obtaining resources for reporting individuals;
• File a report of sexual assault, domestic violence, dating violence, and/or stalking and the right to consult the Title IX Coordinator and other appropriate institution representatives for information and assistance, ensure that Complainants know that reports shall be investigated in accordance with this Grievance Procedure and/or any other institutional policies that may be applicable, and ensure that a Complainant’s identity will remain private at all times if said Complainant wishes to maintain privacy;
• If the accused is an employee of NYCPM, the incident to NYCPM’s Human Resources Department, at which point such referral shall be handled according to NYCPM’s Employee or Faculty Handbook;
• Receive assistance from appropriate NYCPM representatives in initiating legal proceedings in family court or civil court; and
• Withdraw a complaint or involvement from NYCPM’s Grievance Procedure at any time.

10.0 Reporting Sex-Based Harassment Occurring Between Students to the Institution

Non-Confidential Reports

Any person may report sex discrimination, including Sex-Based Harassment (whether or not the person reporting is the person alleged to be the victim of the conduct that may constitute sex discrimination or Sex-Based Harassment), in person, by mail, by telephone, or by electronic mail, using the contact information listed for the Title IX Coordinator, or by any other means that results in the Title IX Coordinator receiving the person’s verbal or written report.

Contact Information for the Title IX Coordinator at NYCPM:

Joel A. Sturm
53 East 124th Street
New York, NY 10035
212-410-8047
[email protected]

Such a report may be made at any time (including during non-business hours) by using the telephone number or electronic mail address, or by mail to the office address listed for the Title IX Coordinator.

Confidential Reports

The following officials at NYCPM will provide privacy, but not confidentiality, upon receiving a report of conduct prohibited by Title IX:

• Title IX Coordinator or designee(s);
• Officials with Authority to institute corrective measures under Title IX;
• All other employees at NYCPM that are not designated as confidential resources

Please note that NYCPM employees cannot guarantee confidentiality in any situation.

There are other confidential options available for crisis intervention, resources and referrals, but these are not reporting mechanisms to the institution, meaning that disclosure on a call to one of these hotlines does not provide any information to NYCPM.

Complainants are encouraged to additionally contact a campus confidential or private resource so that NYCPM can take appropriate action in these cases. Some resources for confidential disclosure NOT to the institution are:

• The New York State Office for the Prevention of Domestic Violence hotlines: http://www.opdv.ny.gov/help/dvhotlines.html. Additional disclosure and assistance options that can be found and are presented in several languages can also be found here: http://www.opdv.ny.gov/help/index.html (or by calling 1-800-942-6906).
• SurvJustice: http://survjustice.org/our-services/civil-rights-complaints/;
• Legal Momentum: https://www.legalmomentum.org/;
• NYSCASA: https://nyscasa.org/responding;
• NYSCADV: http://www.nyscadv.org/;
• Pandora’s Project: http://www.pandys.org/lgbtsurvivors.html;
• GLBTQ Domestic Violence Project: http://glbtqdvp.org/;
• RAINN: https://www.rainn.org/get-help; and
• Safe Horizons: http://www.safehorizon.org/.

Privacy vs. Confidentiality

References made to confidentiality refer to the ability of identified confidential resources to not report crimes and violations to law enforcement or college officials without permission, except for extreme circumstances, such as a health and/or safety emergency or child abuse. References made to privacy mean NYCPM offices and employees who cannot guarantee confidentiality but will maintain privacy to the greatest extent possible, and information disclosed will be relayed only as necessary to investigate and/or seek a resolution and to notify the Title IX Coordinator or designee, who is responsible for tracking patterns and spotting systemic issues. NYCPM will limit the disclosure as much as practicable, even if the Title IX Coordinator determines that the request for confidentiality cannot be honored.

At the First Instance of Disclosure of a Report

NYCPM shall ensure that, at a minimum, at the first instance of disclosure by a Complainant to a NYCPM representative, the following information shall be presented to the Complainant: “You have the right to make a report to university police or campus security, local law enforcement, and/or state police or choose not to report; to report the incident to your institution; to be protected by the institution from Retaliation for reporting an incident; and to receive assistance and resources from your institution.”

11.0 Supportive and Interim Measures

Providing Supportive Measures

Complainants who report allegations of Sex-Based Harassment have the right to receive Supportive Measures from NYCPM regardless of whether they file a Complaint. Supportive Measures are non-disciplinary and non-punitive. Supportive Measures may vary depending upon what is reasonably available at NYCPM.

As appropriate, Supportive Measures may include without limitation:

• Counseling services
• Extensions of deadlines or other course-related adjustments
• Modifications of work or class schedules
• Campus escort services, as available
• Restrictions on contact applied to one or more Parties (no contact orders)
• Changes in class, work, housing, or extracurricular or any other activity, regardless of whether there is or is not a comparable alternative
• Leaves of absence
• Increased security and monitoring of certain areas of the campus
• Training and education programs related to Sex-Based Harassment
• Assistance by NYCPM’s police or security forces, if applicable, or other officials in obtaining an order of protection or, if outside of New York state, an equivalent protective or restraining order

Supportive Measures must not unreasonably burden either Party and must be designed to protect the safety of the Parties or NYCPM’s educational environment, or to provide support during NYCPM’s Sex-Based Harassment grievance procedure under this policy or during informal resolution under this procedure.

NYCPM may modify or terminate Supportive Measures at the conclusion of the grievance procedure or at the conclusion of the informal resolution process or may continue them beyond that point, within NYCPM’s discretion.

NYCPM may disclose information about any Supportive Measures provided to either party, including informing one Party of Supportive Measures provided to another Party. These disclosures are at the sole and absolute discretion of the Title IX Coordinator, though the Parties can request that the supportive measures not be shared. Supportive measures may also be shared if necessary to provide the supportive measure or restore or preserve a Party’s access to NYCPM’s education program or activity.

Supportive measures may otherwise be disclosed to the extent that the Title IX Coordinator determines necessary

• To carry out the purpose of the policy when it is necessary to address conduct that reasonably may constitute Sex-Based Harassment under Title IX in NYCPM’s education program or activity;
• As required by Federal law, federal regulations, or the terms and conditions of a federal award; or
• To the extent such disclosures are not otherwise in conflict with Title IX, when required by State or local law or when permitted under the Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. 1232g, or its implementing regulations, 34 CFR Part 99). 

Note on Orders of Protection and their equivalent: NYCPM must provide a copy of the order of protection or equivalent when it is received by NYCPM, and Parties shall have the opportunity to meet or speak with the Title IX Coordinator, who can explain the order and answer questions about it, including information from the order about the Accused’s/Respondent’s responsibility to stay away from the protected person or persons. Parties are entitled to an explanation of the consequences for violating these orders, including without limitation, arrest, additional conduct charges, and interim suspension or emergency removal, as applicable. NYCPM Campus Security does not possess arresting powers, so a Complainant is also entitled to receive assistance from Campus Security to call on and assist local law enforcement in effecting an arrest for violating such order, in accordance with limits on current law enforcement jurisdiction and procedures.

Process for Review of Supportive Measures

NYCPM provides for a Complainant or Respondent to seek modification or reversal of NYCPM’s decision to provide, deny, modify or terminate a Supportive Measure provided to that party. Grounds for challenge of Supportive Measures include, but are not limited to:

• Whether a Supportive Measure is reasonably burdensome;
• Whether a Supportive Measure is reasonably available;
• Whether a Supportive Measure is being imposed for punitive or disciplinary reasons;
• Whether the Supportive Measure is being imposed without fee or charge; and
• Whether the Supportive Measure is effective in meeting the purposes for which it is intended, including to restore or preserve access to the Education Program or Activity, provide safety, or provide support during the Grievance Procedure.

This review will be conducted by an impartial employee of NYCPM, who did not make the challenged decision on the original supportive measure request. The impartial employee of NYCPM who makes this determination will have the authority to modify or reverse the decision if that impartial employee determines that the decision to provide, deny, modify or terminate the supportive measure was inconsistent with the procedures as outlined above for providing Supportive Measures in accordance with the Title IX regulations.

Parties are only allowed to challenge their own individual Supportive Measures. Challenges by one Party will not be heard to Supportive Measures afforded to the opposite Party, unless that supportive measure directly impacts the Party making such challenge (i.e., two-way no contact orders).

Emergency Removal

NYCPM retains the authority to remove a Respondent from all or part of NYCPM’s education program or activity on an emergency basis, where NYCPM (1) undertakes an individualized safety and risk analysis, and (2) determines that an imminent and serious threat to the health or safety of a Complainant or any Students, employees, or other persons arising from the allegations of Sex-Based Harassment justifies removal.

NYCPM will provide the Respondent with notice and an opportunity to challenge the decision immediately following the removal. The Respondent may file an appeal against the decision to remove. The request for an appeal must include the grounds for which the request is based and be submitted in writing to the Title IX Coordinator within seven (7) business days following the date of the emergency removal. Upon receipt of the appeal, the other party will receive notification of the appeal.

The decisionmaker who hears a challenge to an emergency removal must not be involved in any decision regarding responsibility or appeal of a determination.

Emergency removals will not be considered Relevant evidence that can be considered in reaching a determination of whether Sex-Based Harassment occurred.

Administrative Leave

NYCPM retains the authority to place a non-Student employee Respondent on administrative leave during the Title IX Grievance Procedures, consistent with the Employee or Faculty Handbook

Note on Student Employees: when a Complainant or Respondent is both a Student and an employee of NYCPM, NYCPM will make a fact-specific inquiry to determine whether these procedures apply to that Student employee. NYCPM will consider if the Complainant or Respondent’s primary relationship with NYCPM is to receive an education and whether the alleged Sex-Based Harassment occurred while the Party was performing employment-related work.

12.0 The Title IX Grievance Procedure for Allegations of Sex-Based Harassment Occurring Between Students

12.1 Filing a Complaint

Who can make a Complaint?

• A Complainant (as defined in Section 4.0(4) of this Grievance Procedure); or
• The Title IX Coordinator.

Note on Title IX Coordinator initiated Complaints:

In the absence of a Complaint or the withdrawal of any or all of the allegations in a Complaint, and in the absence or termination of an Informal Resolution process, the Title IX Coordinator must determine whether to initiate a Complaint of Sex-Based Harassment. This determination is fact-specific, and the Title IX Coordinator must consider:

• The Complainant’s request not to proceed with the initiation of a Complaint;
• The Complainant’s reasonable safety concerns regarding initiation of a Complaint;
• The risk that additional acts of Sex-Based Harassment would occur if a Complaint is not initiated;
• The severity of the alleged Sex-Based Harassment, including whether the Sex-Based Harassment, if established, would require the removal of a Respondent from campus or imposition of another disciplinary sanction to end the Sex-Based Harassment and prevent its recurrence;
• The age and relationship of the Parties, including whether the Respondent is an employee of
• The scope of the alleged Sex-Based Harassment, including information suggesting a pattern, ongoing Sex-Based Harassment, or Sex-Based Harassment alleged to have impacted multiple individuals;
• The availability of evidence to assist a decisionmaker in determining whether Sex-Based Harassment occurred; and
• Whether NYCPM could end the alleged Sex-Based Harassment and prevent its recurrence without initiating these Grievance Procedures.

If, after considering these and other Relevant factors, the Title IX Coordinator determines that the conduct as alleged presents an imminent and serious threat to the health or safety of the Complainant or other person, or that the conduct as alleged prevents NYCPM from ensuring equal access on the basis of sex to its Education Program or Activity, the Title IX Coordinator may initiate a Complaint.

If the Title IX Coordinator does initiate the Complaint after making this determination, the Title IX Coordinator must notify the Complainant prior to doing so and appropriately address reasonable concerns about the Complainant’s safety or the safety of others, including by providing Supportive Measures as listed in Section VI of this Grievance Procedure.

Is there a particular format that the Complaint needs to be in?

As defined in VI(5) of this Grievance Procedure, a Complaint can be an oral or written request to NYCPM that objectively can be understood as a request for NYCPM to investigate and make a determination about alleged Sex-Based Harassment at the institution.

Individuals who are looking to file a complaint are encouraged to submit the complaint formally in writing to the Title IX Coordinator.

Who can I report a Complaint to?

Any reports of Sex-Based Harassment may be made directly to the Title IX Coordinator, whose contact information is listed at the beginning of this Grievance Procedure. There are also other ways in which a Party may report a Complaint.

NYCPM requires that any employee who is not a Confidential Employee and who either has authority to institute corrective measures on behalf of NYCPM or has responsibility for administrative leadership, teaching, or advising in NYCPM’s Education Program or Activity must notify the Title IX Coordinator when the employee has information about conduct that reasonably may constitute sex discrimination, including Sex-Based Harassment.

All other employees at NYCPM who are not Confidential Employees and are not employees as identified above are required notify the Title IX Coordinator when the employee has information about conduct that reasonably may constitute Sex Discrimination, including Sex-Based Harassment.

Note:If an employee has personally been subject to conduct that reasonably may constitute Sex Discrimination, including Sex-Based Harassment, under Title IX or any institutional policy or this Grievance Procedure, these requirements do not apply to an employee reporting a personal Complaint.

What is the timeframe for NYCPM to evaluate if the Title IX Coordinator is initiating an investigation under this Grievance Procedure?

The Title IX Coordinator must evaluate whether the Complaint falls under this Grievance Procedure five (5) business days after the Complaint is made and must issue the Notice of Allegations as soon as practicable after the Complaint is evaluated. If there are any delays or extensions, the Title IX Coordinator must appropriately notice the Parties in writing, on a case-by-case basis, with good cause and the rationale for the extension or delay.

Can I make a Complaint and request initiation of the Grievance Procedure even if I have made a complaint to law enforcement?

Yes. NYCPM has an obligation to appropriately evaluate all Complaints, regardless of whether there is a concurrent Complaint before law enforcement. This process is an administrative process that is different from the criminal justice process. Per New York state law, it is required that NYCPM’s process run concurrently with a criminal justice investigation and proceeding, however, temporary delays are allowed as requested by external municipal entities while law enforcement gathers evidence. Temporary delays should not last more than ten days except when law enforcement specifically requests and justifies a longer delay.

12.2 Multi-Party Situations and Consolidation of Complaints

NYCPM may consolidate Complaints alleging Sex-Based Harassment against more than one Respondent, or by more than one Complainant against one or more Respondents, or by one Party against the other Party, where the allegations of Sex-Based Harassment arise out of the same facts or circumstances.

NYCPM can consider factors when making this fact-specific determination, which include, but are not limited to:

• The facts and circumstances of the particular Complaints when deciding whether to consolidate, including the toll of separate proceedings on the Parties; and
• Any risks to the fairness of the investigation or outcome.

12.3 Allegations Potentially Falling Under Two Policies

If the alleged conduct, if true, includes conduct that would constitute covered sexual harassment and conduct that would not constitute covered sexual harassment, the Title IX Grievance Process will be applied to investigation and adjudication of only the allegations that constitute covered sexual harassment.

12.4 Dismissal of a Complaint

Grounds for Dismissal

NYCPM may dismiss a Complaint of Sex-Based Harassment for any of the following reasons:

• NYCPM is unable to identify the Respondent after taking reasonable steps to do so;
• The Respondent is not participating in NYCPM’s Education Program or Activity and is not employed by NYCPM;
• The Complainant voluntarily withdraws any or all of the allegations in the Complaint, the Title IX Coordinator declines to initiate a Complaint through this Grievance Procedure, and NYCPM determines that, without the Complainant’s withdrawn allegations, the conduct that remains alleged in the Complaint, if any, would not constitute Sex-Based Harassment under Title IX or this Grievance Procedure even if proven; or
• NYCPM determines that the conduct alleged in the Complaint, even if proven, would not constitute Sex-Based Harassment under Title IX or these procedures. Note: NYCPM must make reasonable efforts to clarify the allegations with the Complainant before dismissing under this basis.

Notice of Dismissal

If NYCPM dismisses a Complaint, NYCPM is required to promptly notify the Complainant of the basis for dismissal.

If the dismissal of the Complaint occurs before a Notice of Allegations is issued to the Respondent, the Title IX Coordinator does not need to notice the Respondent at that time. However, if the Complainant appeals the dismissal, the Respondent will need to be noticed of the Complaint allegations and given an opportunity to respond to the dismissal. If the dismissal occurs after the Respondent has been notified of the allegations, then NYCPM must notify the Respondent and Complainant of the dismissal and the basis for the dismissal simultaneously in writing.

Appeal rights must also be outlined in any notification of dismissal of a Complaint, as included below under Appeal of Dismissals.

Appeals of Dismissals

NYCPM must notify the Complainant that a dismissal may be appealed and provide the Complainant with an opportunity to appeal the dismissal of a Complaint on the following grounds:

• Procedural irregularity: procedural irregularity that affected the outcome of the matter (i.e., a failure to follow NYCPM’s own policy to a degree that had material effect on the outcome of the matter);
• New evidence: New evidence that would change the outcome and that was not reasonably available when the determination whether Sex-Based Harassment occurred or dismissal of the Complaint was made; and
• Bias or Conflict of Interest: The Title IX Coordinator, investigator(s), or decisionmaker(s) had a conflict of interest or bias for or against Complainants or Respondents generally or the individual Complainant or Respondent that would change the outcome of the matter.

If the dismissal occurs after the Respondent has been notified of the allegations, then NYCPM must also notify the Respondent that the dismissal may be appealed on the grounds set out above.

The submission of appeal stays any sanctions for the pendency of an appeal. Supportive Measures and remote learning opportunities (if possible) remain available during the pendency of the appeal.

If a Party appeals, the institution will as soon as practicable notify the other Party in writing of the appeal, however the time for appeal shall be offered equitably to all Parties and shall not be extended for any Party solely because the other Party filed an appeal.

Appeals will be decided by the Appeals Committee that is appointed by the Title IX Coordinator. These individuals will be free of conflict of interest and bias, and will not serve as investigator, Title IX Coordinator, or hearing decisionmaker in the same matter. If either party believes any individual appointed to the Appeals Committee has a conflict of interest or bias, this should be reported to the Title IX Committee.

The outcome of the appeal will be provided in writing simultaneously to both Parties, and include rationale for the decision.

12.5 Notice of Allegations

Upon initiating NYCPM’s Grievance Procedure, the Title IX Coordinator shall provide a Notice of Allegations in writing to the Parties whose identities are known. Such notice will occur as soon as practicable after NYCPM receives a Complaint, if there are no extenuating circumstances. NYCPM will endeavor to provide the Notice of Allegations within 30 days after receiving a Formal Complaint.

What does the Notice of Allegations Include?

The written Notice of Allegations must include:

• NYCPM’s Grievance Procedure and NYCPM’s Informal Resolution process;
• Sufficient information available at the time of the issuance of the Notice of Allegations to allow the Parties to respond to the allegations, which includes the identities of the Parties involved in the incident(s), the conduct alleged to constitute Sex-Based Harassment under the Grievance Procedure, and the date(s) and location(s) of the alleged incident(s), to the extent that information is available to NYCPM;
• A statement that the Parties are entitled to an equal opportunity to access the Relevant and not otherwise impermissible evidence;
• A statement that the Respondent is presumed not responsible for the alleged Sex-Based Harassment until a determination is made at the conclusion of NYCPM’s Grievance Procedure and that prior to the determination, the Parties will have an opportunity to present Relevant and not otherwise impermissible evidence to a trained, impartial decisionmaker;
• Parties may have a process support person of their choice, and that the process support person may be, but is not required to be, an attorney; and
• NYCPM’s code of conduct prohibits knowingly making false statements or knowingly submitting false information during NYCPM’s Grievance Procedure.

What if NYCPM decides to investigate additional allegations of Sex-Based Harassment?

If, in the course of an investigation, NYCPM decides to investigate additional allegations of Sex-Based Harassment by the Respondent toward the Complainant that are not included in the original issued written Notice of Allegations, or that are included in a Complaint that is consolidated under this Grievance Procedure, NYCPM shall provide notice of the additional allegations to the Parties whose identities are known.

What if I have safety concerns about a Notice of Allegations being issued to a Respondent?

To the extent that NYCPM has reasonable concerns for the safety of any person as a result of providing a written Notice of Allegations, NYCPM, through the Title IX Coordinator, may reasonably delay providing the written Notice of Allegations in order to address the safety concern appropriately. Reasonable concerns must be based on individualized safety and risk analysis and not on mere speculation or stereotypes.

12.6 Process Support Person of Choice and Participation of Process Support Person of Choice

A Party’s process support person of choice may accompany the Party to any meeting or proceeding, and that NYCPM cannot limit the choice of who that process support person may be or their presence for the Parties in any meeting or proceeding unless such process support person does not follow NYCPM’s established rules of decorum and rules around participation discussed below

12.7 Investigation

General Rules of Investigations

The Title IX Coordinator and/or an investigator designated by the Title IX Coordinator will perform an investigation of the conduct alleged to constitute Sex-Based Harassment in a reasonably prompt timeframe, after issuing the Notice of Allegations.

NYCPM, and not the Parties, have the burden to conduct an investigation that gathers sufficient evidence to determine whether Sex-Based Harassment occurred under this Grievance Procedure. This burden does not rest with either Party, and either Party may decide not to share their account of what occurred or may decide not to participate in the investigation or hearing. This does not shift the burden of proof away from NYCPM and does not indicate responsibility.

NYCPM cannot access, consider, or disclose medical records without a waiver from the Party (or parent, if applicable) to whom the records belong, or of whom the records include information. NYCPM will provide an equal opportunity for the Parties to present witnesses, including fact and expert witnesses, and other inculpatory or exculpatory evidence, as described below.

Notice of Participation

NYCPM will provide written notice of the date, time, location, participants, and purpose of all meetings or proceedings with sufficient time for the Party to prepare to participate, if a Party is invited or expected to participate in any such meeting or proceeding.

Process Support Persons of Choice and Participation of Process Support Persons of Choice

NYCPM will provide the Parties with the same opportunities to be accompanied to any meeting or proceeding by the process support person of their choice, who may be, but is not required to be, an attorney, and not limit the choice or presence of the process support person for the Complainant or Respondent in any meeting or proceeding.

Process Support Person of Choice restrictions:

• Both the Complainant and Respondent have the right to choose a Process Support Person. The Process Support Person will be the process support person of choice for such Party at the Hearing and may be, but does not have to be, an attorney. An attorney acting in this role has no different role in the process and serves in the same capacity as a non-attorney.
• The Process Support Person of choice may accompany the parties to any meeting or hearing they are permitted to attend, but may not speak for the party, except for the purpose of cross-examination.
• The parties themselves are not permitted to conduct cross-examination; it must be conducted by the Process Support Person. As a result, if a party does not select a Process Support Person, the institution will select a Process Support Person to serve in this role for the limited purpose of conducting the cross-examination at no fee or charge to the party.
• The Process Support Person is not prohibited from having a conflict of interest or bias in favor of or against complainants or respondents generally, or in favor or against the parties to the particular case.
• The Process Support Person is not prohibited from being a witness in the matter.
• If a party does not attend the live hearing, the party’s Process Support Person may appear and conduct cross-examination on their behalf.
• If neither a party nor their Process Support Person appear at the hearing, NYCPM will provide a Process Support Person to appear on behalf of the non-appearing party.
• Process Support Personnel shall be subject to NYCPM’s Rules of Decorum, and may be removed upon violation of those Rules.

Expert Witnesses

Parties may present expert witnesses as part of an investigation.

Parties are allowed to call “expert witnesses” for direct examination and credibility assessment by the hearing board and cross examination. While the expert witness will be allowed to testify, the decisionmaker will be instructed to afford lower weight to non-factual testimony of the expert relative to fact witnesses, and any expert testimony that is not directed to the specific facts that occurred in the case will be afforded lower weight relative to fact witnesses regardless of whether all Parties present experts as witnesses.

Character Witnesses

NYCPM allows Parties to call character witnesses to testify. While the character witnesses will be allowed to testify, the decisionmaker will be instructed to afford very low weight to any non-factual character testimony of any witness.

Review and Access to Relevant and Not Otherwise Impermissible Evidence

Each Party will have an equal opportunity to present fact witnesses and other inculpatory and exculpatory evidence that are Relevant and not otherwise impermissible, to the Title IX Coordinator and/or an investigator designated by the Title IX Coordinator. The Title IX Coordinator will review all evidence gathered through the investigation and determine what evidence is Relevant and what evidence is impermissible regardless of relevance, consistent with this Grievance Procedure.

Each Party and their process support person of choice will have an equal opportunity to review and access the evidence that is Relevant to the allegations of Sex-Based Harassment and not otherwise impermissible regardless of relevance prior to the conclusion of the investigation. The Title IX Coordinator will provide each Party with a reasonable opportunity to respond to the evidence. Both Parties will have the opportunity to respond to the evidence prior to the live hearing

NYCPM will take reasonable steps to prevent and address the Parties’ unauthorized disclosure of information and evidence obtained solely through this Grievance Procedure. Participating individuals who engage in the unauthorized disclosure of information and evidence obtained solely through this Grievance Procedure may be subject to NYCPM’s Code of Conduct, if applicable, and other University policies and/or procedures that may apply.

Note: Disclosures of information and evidence for purposes of administrative proceedings or litigation related to the Complaint of Sex-Based Harassment are authorized and not considered unauthorized disclosures potentially subject to other disciplinary action.

Prior to obtaining access to any evidence, the parties and their Process Support Person must sign an agreement not to disseminate any of the testimony heard or evidence obtained in the hearing or use such testimony or evidence for any purpose unrelated to the Title IX Grievance Process. Once signed, this Agreement may not be withdrawn. Failure to sign or adhere to this agreement may result in a negative inference against the party and the immediate withdrawal of that Process Support Person from the Title IX grievance process.

Relevant Evidence

Evidence is Relevant when it is related to the allegations of Sex-Based Harassment under investigation as part of this Grievance Procedure.

Questions are Relevant when they seek evidence that may aid in showing whether the alleged Sex-Based Harassment occurred, and evidence is Relevant when it may aid a decisionmaker in determining whether the alleged Sex-Based Harassment occurred.

Impermissible Evidence

The following types of evidence, and questions seeking that evidence, are excluded as impermissible (i.e., must not be accessed or considered, except by NYCPM to determine whether an exception applies, must not be disclosed, and must not otherwise be used) regardless of whether they are Relevant:

• Evidence that is protected under a privileged as recognized by Federal or State law or evidence provided to a Confidential Employee, unless the person to whom the privilege or confidentiality is owed has voluntarily waived the privilege or confidentiality;
• A Party’s or witness’s records that are made or maintained by a physician, psychologist, or other recognized professional or paraprofessional in connection with the provision of treatment to the Party or witness, unless NYCPM obtains that Party’s or witness’s voluntary, written Consent for use in NYCPM’s Grievance Procedure; and
• Evidence that relates to the Complainant’s sexual interests or prior sexual conduct, unless evidence about the Complainant’s prior sexual conduct is offered to prove that someone other than the Respondent committed the alleged conduct or is evidence about specific incidents of the Complainant’s prior sexual conduct with the Respondent that is offered to prove Consent to the alleged Sex-Based Harassment. Note: the fact of prior consensual sexual conduct between the Complainant and Respondent does not by itself demonstrate or imply the Complainant’s Consent to the alleged Sex-Based Harassment or preclude determination that Sex-Based Harassment occurred.

Timeframes

An investigation shall take be completed in a reasonably prompt fashion. If there are any delays or extensions, the Title IX Coordinator must appropriately notice the Parties in writing, as detailed below. NYCPM shall endeavor to complete its investigation in ninety (90) days.

Extensions may occur based on:

• Availability or unavailability of a witness or relevant/material documents;
• Reluctance of a witness and/or any necessary party;
• Delay or other uncooperative actions of any necessary party;
• Numerosity of witnesses;
• Holidays and vacation periods;
• Any other unforeseeable events/circumstances.

Extensions and Delays

NYCPM allows for the reasonable extension of timeframes on a case-by-case basis for good cause with written notice to the Parties that includes the reason for the extension or delay.

12.8 Live Hearing

General Rules for Live Hearings

NYCPM will not issue a finding or disciplinary sanction arising from an allegation of Sex-Based Harassment without holding a live hearing unless otherwise resolved through an informal resolution process.

The live hearing may be conducted with the Parties physically present in the same geographic location, or, at NYCPM’s sole discretion, any or all parties, witnesses, and other participants may appear at the live hearing virtually through Zoom or other appropriate video conferencing tools available at the time. This technology will enable participants simultaneously to see and hear each other. At its discretion, NYCPM may delay or adjourn a hearing based on technological errors not within a party’s control.

All proceedings will be recorded through either recording and/or transcript. The choice of medium is at NYCPM’s sole discretion.

Prior to obtaining access to any evidence, the parties and their Process Support Person must sign an agreement not to disseminate any of the testimony heard or evidence obtained in the hearing or use such testimony or evidence for any purpose unrelated to the Title IX Grievance Process. Once signed, this Agreement may not be withdrawn. Failure to sign or adhere to this agreement may result in a negative inference against the party and the immediate withdrawal of that Process Support Person from the Title IX grievance process.

Notice of Hearing

Upon completion of the investigation, the Complainant and Respondent will be notified in writing of:

• the date, time, and location of the live hearing;
• the applicable grievance process;
• that both Parties can have a Process Support Person of their choice;
• that they may inspect and review evidence obtained in the investigation;
• the allegations and conduct that potentially constitute Sexual Harassment;
• the identities of the Parties involved (if known); and
• the date and location of the alleged offense (if known). 

Depending on the circumstances and, at the sole discretion of NYCPM, the hearing may be conducted in-person or virtually, but will always be conducted in real-time. Permission to postpone a hearing may be granted provided that the request to postpone is reasonable.

Prior to the scheduled hearing, a trained Decision-maker will be appointed to be the fact-finder of responsibility for the alleged conduct.

While the Complainant, Respondent and witnesses are expected to be present and fully participate in the hearing (including being subject to questioning by a Process Support Person), it is the right of any and all parties to choose not to participate in the hearing of the alleged conduct. In the event that any party chooses not to participate fully in the hearing process, their statements (including those made in the investigation stage) may not be considered in the Decision-maker’s determination of responsibility.

If the hearing is held in-person (not virtually), by request of either the Complainant or Respondent, questioning by a Process Support Person can be conducted in separate rooms with technology available that enables the other party to see and hear the questioning in real-time. The entire hearing will be recorded, either by electronic means or transcription. The recording will be made available, upon request, for inspection and review to both Parties. This recording will be kept on file by NYCPM in accordance with applicable rules and regulations.

NYCPM shall create an audio or audiovisual recording or transcript of any live hearing and make it available to the Parties for inspection and review.

Continuances or Granting Extensions

NYCPM may determine that multiple sessions or a continuance (i.e. a pause on the continuation of the hearing until a later date or time) is needed to complete a hearing. If so, NYCPM will notify all participants and endeavor to accommodate all participants’ schedules and complete the hearing as promptly as practicable.

Before the Hearing

Prior to the Hearing, each party will be required to submit any questions, that have not already been addressed in the investigation, that they wish to ask at the oral-cross examination to the Title IX Coordinator no later than twenty-four (24) hours before the Hearing is scheduled to begin.

The Title IX Coordinator will provide the questions to the Decision-maker, who will determine the relevancy of each of the questions. If deemed relevant, the question is permissible to be asked during the hearing. If the Decision-maker determines that a question is not relevant, they will provide a brief reasoning for that decision and the question will not be permitted to be asked during the Hearing. Parties may appeal the relevance determinations at the beginning of the Hearing. The Decision-Maker will endeavor to provide their relevancy determinations at least one hour prior to the Hearing, but no later than the commencement of the Hearing.

Understanding Relevance:

For these adjudications, the basic test for relevance is whether the question posed is probative to the question of responsibility. This includes a Process Support Person asking questions that address the credibility of the party. However, there are some topics that are presumptively never relevant unless an exception applies, or a party has waived a privilege. These topics include questions and evidence:

• about the Complainant’s sexual predisposition or prior sexual behavior, unless offered to prove that someone other than the Respondent committed the alleged conduct;
• that concern specific incidents of the Complainant’s prior sexual behavior with respect to the Respondent, unless offered to prove consent;
• that would traditionally be protected by a legally recognized privilege (e.g., attorney-client privilege), unless the party has waived the privilege;
• in reference to a party’s psychological or medical records unless the party has given voluntary, written consent.

Participants in the Live Hearing

Live hearings are not public, and the only individuals permitted to participate in the hearing are as follows:

Complainant and Respondent (The Parties)

• The parties cannot waive the right to a live hearing.
• The institution may still proceed with the live hearing in the absence of a party, and may reach a determination of responsibility in their absence, including through any evidence gathered that does not constitute a “statement” by that party.
• NYCPM will not threaten, coerce, intimidate or discriminate against the party in an attempt to secure the party’s participation.
• If a party does not submit to cross-examination, the Decision-Maker cannot rely on any prior statements made by at party in reaching a determination regarding responsibility, but may reach a determination regarding responsibility based on evidence that does not constitute a “statement” by that party.
• The decision-maker cannot draw an inference about the determination regarding responsibility based solely on a party’s absence from the live hearing or refusal to answer cross examination or other questions.

The Decision-Maker

• The hearing body will consist of a single Decision-Maker.
• The Decision-Maker will also not have served as the Title IX Coordinator, Title IX investigator, or Process Support Person to any party in the case, nor may the Decision-Maker serve on the appeals body in the case.
• The Decision-Maker will not have a conflict of interest or bias in favor of or against complainants or respondents generally, or in favor or against the parties to the particular case.
• The Decision-Maker will be trained on topics including how to serve impartially, issues of relevance, how to apply the rape shield protections provided for complainants, and any technology to be used at the hearing.
• The parties will have an opportunity to raise any objections regarding a Decision-Maker’s actual or perceived conflicts of interest or bias at the commencement of the live hearing.

Process Support Person

• Both the Complainant and Respondent have the right to choose a Process Support Person. The Process Support Person will be the process support person of choice for such Party at the Hearing and may be, but does not have to be, an attorney. An attorney acting in this role has no different role in the process and serves in the same capacity as a non-attorney.
• The Process Support Person of choice may accompany the parties to any meeting or hearing they are permitted to attend, but may not speak for the party, except for the purpose of cross-examination.
• The parties themselves are not permitted to conduct cross-examination; it must be conducted by the Process Support Person. As a result, if a party does not select a Process Support Person, the institution will select a Process Support Person to serve in this role for the limited purpose of conducting the cross-examination at no fee or charge to the party.
• The Process Support Person is not prohibited from having a conflict of interest or bias in favor of or against complainants or respondents generally, or in favor or against the parties to the particular case.
• The Process Support Person is not prohibited from being a witness in the matter.
• If a party does not attend the live hearing, the party’s Process Support Person may appear and conduct cross-examination on their behalf.
• If neither a party nor their Process Support Person appear at the hearing, NYCPM will provide a Process Support Person to appear on behalf of the non-appearing party.
• Process Support Personnel shall be subject to NYCPM’s Rules of Decorum, and may be removed upon violation of those Rules.

Witnesses

• Witnesses cannot be compelled to participate in the live hearing, and have the right not to participate in the hearing free from retaliation.
• If a witness does not submit to cross-examination, as described below, the decision-maker cannot rely on any statements made by that witness in reaching a determination regarding responsibility, including any statement relayed by the absent witness to a witness or party who testifies at the live hearing.
• See 12.7 of this Policy in determining who can be a witness.

Rules of Decorum

The following Rules of Decorum are to be observed in the hearing and applied equally to all parties (meaning the complainant and respondent) and process support persons: 

1. Questions must be conveyed in a neutral tone.  
2. Parties and process support persons will refer to other parties, witnesses, process support persons, and institutional staff using the name and gender used by the person and shall not intentionally mis-name or mis-gender that person in communication or questioning. 
3. No party may act abusively or disrespectfully during the hearing toward any other party or to witnesses, process support persons, or decision-makers. 
4. While a process support person may be an attorney, no duty of zealous advocacy should be inferred or enforced within this forum. 
5. The process support person may not yell, scream, badger, or physically ‘‘lean in’’ to a party or witness’s personal space. Process support persons may not approach the other party or witnesses without obtaining permission from the decisionmaker.
6. The process support person may not use profanity or make irrelevant ad hominem attacks upon a party or witness. Questions are meant to be interrogative statements used to test knowledge or understand a fact; they may not include accusations within the text of the question. 
7. The process support person may not ask repetitive questions. This includes questions that have already been asked by the decisionmaker, the process support person in cross-examination, or (if an expert witness is participating) the party or process support person in direct testimony. When the decisionmaker determines a question has been “asked and answered” or is otherwise not relevant, the process support person must move on. 
8. Parties and process support persons may take no action at the hearing that a reasonable person in the shoes of the affected party would see as intended to intimidate that person (whether party, witness, or official) into not participating in the process or meaningfully modifying their participation in the process.

Warning and Removal Process 

The decisionmaker shall have sole discretion to determine if the Rules of Decorum have been violated. The decisionmaker will notify the offending person of any violation of the Rules.

Upon a second or further violation of the Rules, the decision-maker shall have discretion to remove the offending person or allow them to continue participating in the hearing or other part of the process.

Where the decisionmaker removes a party’s process support person, the party may select a different process support person of their choice or accept a process support person provided by the institution for the limited purpose of cross-examination at the hearing. Reasonable delays, including the temporary adjournment of the hearing, may be anticipated should a process support person be removed. A party cannot serve as their own process support person in this circumstance.

The decisionmaker shall document any decision to remove a process support person in the written determination regarding responsibility. 

Hearing Process

1. The hearing will begin with any appeals by the Parties to the Pre-Hearing relevancy determinations by the Decision-maker.
2. The Decision-maker will then open the hearing by establishing the rules and expectations. The Decision-maker will then read the charges.
3. Either party (Complainant or Respondent) may subsequently request to provide a brief statement of additional clarification of no more than five (5) minutes in duration.
4. Upon conclusion of any clarification statement, the Decision-Maker will ask questions of the Parties and Witnesses.
5. Parties will be given the opportunity for live cross-examination after the Decision-Maker conducts its initial round of questioning; During the Parties’ cross-examination, the Decision-Maker will have the authority to pause cross-examination at any time for the purposes of asking their own follow up questions; and at any time necessary in order to enforce the established rules of decorum. The Complainant, then followed by the Respondent, may have their Process Support Person ask any approved, relevant questions that have not already been addressed in the investigation or hearing. Should a Party or the Party’s Process Support Person choose not to cross-examine a Party or Witness, the Party shall affirmatively waive cross-examination through a written or oral statement to the Decision-Maker. A Party’s waiver of cross-examination does not eliminate the ability of the Decision-Maker to use statements made by the Party.
6. Each Party will have an opportunity to submit additional questions for review by the Decision-Maker after the initial Oral Cross-Examination has concluded. Should such questions be approved, the Complainant, followed by the Respondent, may have their Process Support Person ask any additional approved, relevant questions. There will only be one round of additional questions allowed.
7. There shall be no Oral Direct Examination at any point in the hearing process. The only time it is may be allowed is if a Party identifies, and provides sufficient justification for, an “Expert Witness” prior to the Hearing. If an “Expert Witness” is identified by one party, the other party will have an opportunity to Cross-Examine that “Expert Witness”, if they so choose.
8. Upon completion of questioning, any Party must raise any procedural, substantive, bias, conflict or other perceived irregularity to the Decision-Maker’s attention for review and consideration. Failure to do so will forever waive such complaint.
9. Thereafter the Decision-maker will conclude the hearing.

Live Cross-Examination Procedure

Each party’s Process Support Person will conduct live cross-examination of the other party or parties and witnesses. During this live-cross examination the Process Support Person will ask the other party or parties and witnesses relevant questions and follow-up questions, including those challenging credibility directly, orally, and in real time.

Cross-examination questions that are duplicative of those already asked, including by the Decision-Maker, may be deemed irrelevant if they have been asked and answered.

Newly-Discovered Evidence

As a general rule, no new evidence or witnesses may be submitted during the live hearing.

If a Party identifies new evidence or witnesses that were not reasonably available prior to the live hearing and could affect the outcome of the matter, the Party may request that such evidence or witnesses be considered at the live hearing.

The Decision-maker will consider this request and make a determination regarding (1) whether such evidence or witness testimony was actually unavailable by reasonable effort prior to the hearing, and (2) whether such evidence or witness testimony could affect the outcome of the matter. The Party offering the newly-discovered evidence or witness has the burden of establishing these questions by the preponderance of the evidence.

If the Decision-maker answers in the affirmative to both questions, then the Parties will be granted a reasonable pause in the hearing to review the evidence or prepare for questioning of the witness.

12.9 Determination Regarding Responsibility and Sanctioning

Standard of Proof

NYCPM uses the preponderance of the evidence standard of proof to determine whether or not Sex-Based Harassment occurred. This means that the investigation and hearing determine whether it is more likely than not that a violation of the Grievance Procedure occurred.

General Considerations for Evaluating Evidence and Testimony

The decisionmaker is required to evaluate Relevant and not otherwise impermissible evidence for its persuasiveness. If the decisionmaker is not persuaded under the applicable standard by the evidence that Sex-Based Harassment occurred, whatever the quantity of the evidence is, the decisionmaker must not determine that Sex-Based Harassment occurred.

Determinations regarding responsibility may be based in part, or entirely, on documentary, audiovisual, and digital evidence, as warranted in the reasoned judgment of the decisionmaker. Decisionmakers shall not draw inferences regarding a Party or witness’ credibility based on the Party or witness’ status as a Complainant, Respondent, or witness, nor shall it base its judgments in stereotypes about how a Party or witness would or should act under the circumstances.

Generally, credibility judgments should rest on the demeanor of the Party or witness, the plausibility of their testimony, the consistency of their testimony, and its reliability in light of corroborating or conflicting testimony or evidence. However, credibility judgments should not rest on whether a Party or witness’ testimony is non-linear or incomplete, or if the Party or witness is displaying stress or anxiety.

Decision makers will afford the highest weight relative to other testimony to first-hand testimony by Parties and witnesses regarding their own memory of specific facts that occurred. Both inculpatory and exculpatory (i.e. tending to prove and disprove the allegations) evidence will be weighed in equal fashion.

A witness’ testimony regarding third-Party knowledge of the facts at issue will be allowed, but will generally be accorded lower weight than testimony regarding direct knowledge of specific facts that occurred. See 12.7 under this policy to further understand the weight given to Expert Witness testimony and Character Witness testimony.

Where a Party or witness’ conduct or statements demonstrate that the Party or witness is engaging in retaliatory conduct, including without limitation, witness tampering and intimidation, the decisionmaker may draw an adverse inference as to that Party or witness’ credibility.

Communication of the Determination in Writing

All determinations on whether Sex-Based Harassment occurred will be communicated to the Parties in writing, simultaneously.

The written determination will include:

• A description of the alleged Sex-Based Harassment;
• Information about the policies and procedures that NYCPM used to evaluate the allegations;
• The decisionmaker’s evaluation of the Relevant evidence and determination on whether Sex-Based Harassment occurred;
• Any Disciplinary Sanctions NYCPM will impose on the Respondent, whether Remedies other than the imposition of Disciplinary Sanctions will be provided by NYCPM to the Complainant, and, to the extent appropriate, other Students identified by NYCPM to be experiencing the effects of Sex-Based Harassment, if there is a finding that Sex-Based Harassment occurred; and
• NYCPM’s procedures for Complainant and Respondent to appeal.

Timeline of Determination Regarding Responsibility

If there are no extenuating circumstances, the determination regarding responsibility will be issued by NYCPM within a reasonable timeframe following the completion of the hearing. NYCPM shall endeavor to provide a determination regarding responsibility within ten (10) days upon the completion of the hearing.

Determination of Disciplinary Sanctions After a Finding of Responsibility

Per New York state law, past findings of domestic violence, dating violence, stalking, or sexual assault may be admissible in the disciplinary stage that determines sanction. However, it is not admissible prior to determination of responsibility.

In addition, the Complainant will have an opportunity to make an impact statement during the point of the proceeding where the decisionmaker is deliberating on appropriate sanctions.

Finality of Determination

The determination regarding responsibility becomes final either on the date that NYCPM provides the Parties with the written determination of the result of any appeal, or, if no Party appeals, the date on which an appeal would no longer be considered timely.

Disclosures of Outcome by the Parties

The Complainant and Respondent have the right to choose whether to disclose or discuss the outcome of a conduct or judicial process related to sexual assault, dating violence, domestic violence, or stalking.

The Complainant and Respondent have the right to have all information obtained during the course of the conduct or judicial process be protected from public release until the appeals panel makes a final determination unless otherwise required by law.

12.10 Disciplinary Sanctions

Student violators may be subject to the following sanctions and remedial measures on a case-by-case basis:

• Warning: A written reprimand putting the student on notice that he/she has violated the Code of Conduct. A copy of this warning is placed in the student's folder.
• No-Contact Order: A student may be ordered to temporarily not intentionally contact a victim through any medium.
• Probation: A student may be placed on disciplinary probation for a definite period of time. While on probation, students may not hold office in Student Government Organizations, Clubs or Societies or represent the university in any capacity. Further violations while on probationary status will result in suspension or expulsion from the university.
• Restitution: A student may be required to pay restitution to the university or to fellow students for damages and losses resulting from his/her actions.
• Suspension: At any time during a student's enrollment at the university he/she may be suspended and barred from attending classes for a definite period, not to exceed two years. A student who is suspended is entitled to a written clarification with specific reasons for and description of the sanction. A student may not be automatically re-enrolled at the end of his/her suspension. He/she must apply to the Student Affairs Committee for re-enrollment.
• Expulsion: NYCPM may terminate a student's status at the university at any time.

Faculty and staff (part-time and full-time) who violate the policy will be subject to disciplinary sanctions on a case-by-case basis as follows:

• Censure: A written reprimand, outlining the violation(s) of university policies, may be placed in the personnel file of individual violators.
• Probation: Faculty and/or staff may be placed on probation for a definite period of time up to a maximum of one year. In such instances, individuals may be required to enroll in a therapeutic counseling or treatment program.
• Suspension: Faculty and/or staff may be suspended from employment without pay for a period of time ranging from seven days to a maximum of one year.
• Termination of Employment: Faculty and/or staff may be dismissed from employment upon written notice by the Dean of Faculties (for faculty members) or the Vice President for Administration (all other employees).
• Legal Action: Faculty and/or staff may be turned over to law enforcement authorities for criminal prosecution and legal action.

In both cases for students, faculty and staff, the existence of a progressive system of disciplinary sanctions measures does not preclude NYCPM from levying a heavy sanction, without first resorting to a lesser sanction. By way of illustration and not exclusion, NYCPM may expel a student or terminate a staff member for a violation of policy without first issuing a warning or putting that student or employee on probation.

University-Initiated Protective Measures

In addition to those protective measures previously described, the Title IX Coordinator or their designee will determine whether interim interventions and protective measure should be implemented, and, if so, take steps to implement those protective measures as soon as possible.

When the accused or respondent is a student, to have the institution issue a “no contact order” consistent with institution policies and procedures, whereby continued intentional contact with the reporting individual would be a violation of institution policy subject to additional conduct charges; 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. Both the accused or respondent and the reporting individual shall, upon request and consistent with institution 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. Institutions may establish an appropriate schedule for the accused and respondents to access applicable institution buildings and property at a time when such buildings and property are not being accessed by the reporting individual.

Other examples of interim protective measures include, but are not limited to: a University order of no contact, residence hall relocation, adjustment of course schedules, a leave of absence, or reassignment to a different supervisor or position. These remedies may be applied to one, both, or multiple parties involved.  Protective measures imposed may be temporary pending the results of an investigation or may become permanent as determined by NYCPM. Violations of the Compliance Officer’s directives and/or protective measures will constitute related violations that may lead to additional disciplinary action including interim suspension pending the outcome of a judicial or conduct process consistent with NYCPM policy. Both the accused or respondent and the reporting individual shall, upon request and consistent with the institution’s policies and procedures, be afforded a prompt review, reasonable under the circumstances, of the need for and terms of an interim suspension, including potential modification, and shall be allowed to submit evidence in support of the request.

Every institution shall ensure that individuals are provided the following protections and accommodations:

• To receive a copy of the order of protection or equivalent when received by an institution and have an opportunity to meet or speak with an institution representative, or other appropriate individual, who can explain the order and answer questions about it, including information from the order about the accused’s responsibility to stay away from the protected person or persons;
• When the accused is not a student but is a member of the institution’s community and presents a continuing threat to the health and safety of the community, to subject the accused to interim measures in accordance with applicable collective bargaining agreements, employee handbooks, and rules and policies of the institution.

Policy For Transcript Notations

For crimes of violence, including, but not limited to sexual violence, defined as crimes that meet the reporting requirements pursuant to the federal Clery Act established in 20 U.S.C. 1092(f)(1)(F)(i)(I)-(VIII), NYCPM shall make a notation on the transcript of students found responsible after a conduct process that they were “suspended after a finding of responsibility for a code of conduct violation” or “expelled after a finding of responsibility for a code of conduct violation.” For the respondent who withdraws from the institution while such conduct charges are pending, and declines to complete the disciplinary process, institutions shall make a notation on the transcript of such students that they “withdrew with conduct charges pending.”  NYCPM will allow for appeals seeking removal of a transcript notation for a suspension, provided that such notation shall not be removed prior to one year after conclusion of the suspension, while notations for expulsion shall not be removed. If a finding of responsibility is vacated for any reason, any such transcript notation shall be removed. (Section 6444(6) NYS Education Law Article 129-B).

12.11 Appeals

The Complainant and Respondent will both be provided with at least one level of appeal.

For appeals resulting from dismissal of a complaint, please see the section on Dismissal of Complaints.

Grounds for Appeal

The limited grounds for appeal available are as follows:

• Procedural irregularity that would change the outcome;
• New evidence that would change the outcome and that was not reasonably available when the determination whether Sex-Based Harassment occurred or dismissal was made;
• The Title IX Coordinator, investigator, or decisionmaker had a conflict of interest or bias for or against Complainants or Respondents generally or the individual Complainant or Respondent, that affected the outcome of the matter; or
• the sanction imposed is disproportionate to the violation.

The Complainant and Respondent may also appeal the dismissal of a complaint based on the first three points listed above.

The request for an appeal must include the grounds on which the request is based and be submitted in writing to the Title IX Coordinator within seven (7) business days following the date of the written determination. The appeal should also state the remedy sought by the appealing party. Upon receipt of the appeal, the other party will receive notification of the appeal and be provided opportunity to respond in writing. Written responses to the other party’s appeal must be submitted within three (3) business days following the delivery of notice of the appeal.

In order to ensure a neutral and unbiased review, a party’s request for appeal will be sent to an Appeals Panel comprised of individuals with no connection to the initial determination, which serves as a separate decisionmaker. An appeal decision will be rendered within twenty (20) business days after the receipt of the formal appeal request. The appeal decision will be provided in writing to both parties.

Additional Procedures for Appeal Process

NYCPM will notify the Parties of any appeal, provide the Parties a reasonable and equal opportunity to make a statement in support of, or challenging, the outcome, and will notify the Parties of the result of the appeal and the rationale for the result.

The submission of an appeal stays (or pauses) any sanctions for the period during which an appeal determination is being assessed. Supportive Measures and remote learning opportunities remain available while an appeal is being deliberated and before a final decision has been made.

Finality

The determination regarding responsibility becomes final either on the date that the institution provides the parties with the written determination of the result of the appeal, if an appeal is filed consistent with the procedures and timeline outlined in “Appeals” above, or if an appeal is not filed, the date on which the opportunity to appeal expires.

12.12 Informal Resolution

Procedures for Entering and Exiting Informal Resolution Process

At any time prior to determining whether Sex-Based Harassment occurred under this Grievance Procedure, including prior to making a Complaint, Parties may instead seek NYCPM’s assistance to resolve allegations of Sex-Based Harassment, and may elect to enter the informal resolution process.

No Informal Resolution process will be offered to resolve Formal Complaints involving a student as Complainant and a staff or faculty member as Respondent.

The Parties may voluntarily elect to enter the NYCPM’s informal resolution process at any time through an informed written Consent. This informed written Consent will include all terms of the elected informal process, including a statement that any agreement reached through the process is binding on the Parties.

No Party may be required to participate in informal resolution, and NYCPM may never condition enrollment, employment, or enjoyment of any other right or privilege upon agreeing to informal resolution.

The Parties may elect to leave the informal resolution process at any point until the informal resolution process is concluded. If a Party elects to leave the informal resolution process, the Grievance Procedure that the Parties paused will continue. In participating in the informal resolution process, the Parties understand that the timeframes governing the Grievance Procedure will temporarily cease, and only reinstate upon reentry into the Grievance Procedure.

Supportive Measures will be available, or continue to be available if already provided, during an informal resolution process, if elected to proceed. The Title IX Coordinator will also, to the extent necessary, take other appropriate prompt and effective steps to ensure that Sex-Based Harassment does not continue or recur within NYCPM’s Education Program or Activity.

Notice Prior to Entry Into Informal Resolution Process

Before the initiation of an informal resolution process, the Title IX Coordinator must provide to the Parties a written notice that explains:

• The allegations;
• The requirements of the informal resolution process;
• That, prior to agreeing to a resolution, any Party has the right to withdraw from the informal resolution process and to initiate or resume NYCPM’s Grievance Procedures;
• That the Parties’ agreement to a resolution at the conclusion of the informal resolution process would preclude the Parties from initiating or resuming NYCPM’s Grievance Procedures arising from the same allegations;
• The potential terms that may be requested or offered in an informal resolution agreement, including notice that an informal resolution agreement is binding only on the Parties; and
• What information NYCPM will maintain and whether and how NYCPM could disclose such information for use in its Grievance Procedures if they are initiated or resumed.

Determination to Approve Entry into Informal Resolution Process

Even where the Parties agree to submit a matter to informal resolution, the Title IX Coordinator may approve the decision to move the matter to the informal resolution process and may determine that informal resolution is not appropriate under the circumstances.

Factors that the Title IX Coordinator may weigh in considering the appropriateness of the informal resolution process include, but are not limited to, the gravity of the allegations, whether there is an ongoing threat of harm or safety to the campus, whether the Respondent is a repeat offender, whether the alleged conduct would present a future risk of harm to others, and whether the Parties are participating in good faith. This determination is not subject to appeal.

At any time after the commencement of the informal resolution process, the Title IX Coordinator may determine that the informal resolution process is not an appropriate method for resolving the matter, and may require that the matter be resolved through the Grievance Procedures. This determination is not subject to appeal.

If informal resolution is approved or denied, the Title IX Coordinator will provide the outcome in writing simultaneously to the Parties.

Contents of Informal Resolution Agreements

Potential terms that may be included in an informal resolution agreement between the Parties include but are not limited to:

• Restrictions on contact; and
• Restrictions on the Respondent’s participation in one or more of NYCPM’s education programs or activities or attendance at specific events, including restrictions NYCPM could have imposed as Remedies or Disciplinary Sanctions had NYCPM determined at the conclusion of the Grievance Procedure that Sex-Based Harassment occurred.

Breach of Informal Resolution Agreements

If a Party breaches the resolution or if NYCPM has other compelling reasons, such as if it learns of any fraud by a Party in entering into the agreement, NYCPM may void the agreement and initiate or resume the Grievance Procedure.

Confidentiality

In entering the informal resolution process, the Parties agree that any testimony and evidence (including admissions of responsibility) they share or receive during the informal resolution process concerning the allegations of the complaint is confidential. No evidence concerning the allegations obtained within the informal resolution process may be disseminated to any person, provided that any Party to the informal resolution process may generally discuss the allegations under investigation with a parent, friend, process support person, or other source of emotional support, or with an advocacy organization. As a condition of entering the informal resolution process, any evidence shared or received during the informal resolution process may not be used in any subsequent Grievance Procedure or institutional appeal.

13.0 Transcript Notations

For crimes of violence, including, without limitation, sexual violence, defined as crimes that meet the reporting requirements pursuant to the Clery Act (20 U.S.C. 1092(f)(1)(F)(i)(I)-(VIII)), NYCPM is required to make a notation on the transcript of a student found responsible for suspension or expulsion, per NYCPM’s Transcript Notation Policy. That policy reads:

For crimes of violence, including, but not limited to sexual violence, defined as crimes that meet the reporting requirements pursuant to the federal Clery Act established in 20 U.S.C. 1092(f)(1)(F)(i)(I)-(VIII), NYCPM shall make a notation on the transcript of students found responsible after a conduct process that they were “suspended after a finding of responsibility for a code of conduct violation” or “expelled after a finding of responsibility for a code of conduct violation.” For the respondent who withdraws from the institution while such conduct charges are pending, and declines to complete the disciplinary process, institutions shall make a notation on the transcript of such students that they “withdrew with conduct charges pending.”  NYCPM will allow for appeals seeking removal of a transcript notation for a suspension, provided that such notation shall not be removed prior to one year after conclusion of the suspension, while notations for expulsion shall not be removed. If a finding of responsibility is vacated for any reason, any such transcript notation shall be removed. (Section 6444(6) NYS Education Law Article 129-B).

14.0 Retaliation

When NYCPM has information about conduct that reasonably may constitute Retaliation under Title IX or its Grievance Procedure, NYCPM is obligated to initiate its Grievance Procedure, or, as appropriate, NYCPM’s informal resolution process.

NYCPM will keep the identity of any individual who has made a report or complaint of sex discrimination confidential, including the identity of any individual who has made a report or filed a Formal Complaint of Sex-Based Harassment or sex discrimination under the NYCPM Title IX Grievance Procedures, any Complainant, any individual who has been reported to be the perpetrator of sex discrimination, any Respondent, and any witness, except as permitted by the FERPA statute, 20 U.S.C. 1232g, or FERPA regulations, 34 CFR part 99, or as required by law, or to carry out the purposes of 34 CFR part 106, including the conduct of any investigation, hearing, or judicial proceeding under NYCPM’s Title IX Grievance Procedures.

No person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX of the Education Amendments of 1972 or its implementing regulations.

No person may intimidate, threaten, coerce, or discriminate against any individual because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding or hearing under NYCPM’s Grievance Procedures.

Any intimidation, threats, coercion, or discrimination, for the purpose of interfering with any right or privilege secured by Title IX or its implementing regulations constitutes Retaliation. This includes any charges filed against an individual for code of conduct violations that do not involve sex discrimination or Sex-Based Harassment, but that arise from the same facts or circumstances as a report or complaint of sex discrimination or a report or complaint of Sex-Based Harassment. See NYCPM’s Amnesty Policy, 8.0, above.

Complaints alleging Retaliation may be filed according to Joel A. Sturm at [email protected]