On June 17, 2015, the New York State Legislature passed legislation governing how colleges and universities address sexual assault, dating violence, domestic violence and stalking. The governor is expected to sign it promptly. With a few exceptions, the provisions will take effect within 90 days of enactment. The law further requires the Department of Education to promulgate regulations. Many of the provisions are co-extensive with the requirements of the Campus SaVE Act and Office for Civil Rights guidance on Title IX compliance, but some impose greater requirements. The following is a summary of the more significant new and expanded obligations:
- Institutions must adopt the statute’s policy language requiring that individuals who, in good faith, report incidents of dating violence, domestic violence, stalking or sexual assault not be subject to code of conduct action for violations of drug or alcohol policies.
- Students must have emergency access upon the first instance of disclosure to the Title IX Coordinator or another appropriate official trained in interviewing victims of sexual assault and able to provide information regarding options to proceed, the importance of preserving evidence, and confidentiality and privacy.
- Both the complainant and the accused must have the right to request review and modification of any interim measure or accommodation that affects him or her, including a no contact order.
- Institutions are required to file a certificate of compliance on or before September 1, 2016 or they will be ineligible for state aid or assistance.
- Institutions must have a procedure for alleged violations by a student that provides
- Notice to the respondent of the date, time, location and factual allegations concerning the violation and reference to the specific code of conduct provisions that have been violated;
- An opportunity to offer evidence during an investigation and to present evidence and testimony at a hearing, where appropriate, and have access to a full record of any such hearing which shall be preserved for at least five years from such a hearing; and
- Access to at least one level of appeal of a determination before a fair and impartial panel;
- An opportunity for the complainant to submit an impact statement at the point in the proceeding where the appropriate sanction is being deliberated.
- Complainants must have the right to withdraw a complaint or involvement in the institution’s process at any time.
- For crimes of violence, including sexual violence, institutions must make a notation on the transcript of a student found responsible that they were suspended or expelled “after a finding of responsibility for a code of conduct violation.” If a student withdraws during a disciplinary process for such an alleged violation, a notation must be made on the transcript that the student “withdrew with conduct charges pending.”
- Institutions must have a process for appeals seeking removal of a transcript notation. However, notations of expulsion cannot be removed, and suspension notations cannot be removed for one year after the completion of the suspension. Should a finding of responsibility be vacated, the notation must be removed.
- Institutions will be required to do campus climate surveys no less than every other year. (Note that this provision does not go into effect until one year from enactment of the law.)
- All incoming students and transfers must receive training during their “onboarding” on topics including sexual and interpersonal violence, the institution’s policies and procedures, bystander intervention, and risk assessment and reduction.
- Leaders and officers of registered student organizations and all student athletes must be required to complete training on dating violence, domestic violence, stalking and sexual assault.
- Institutions will be required to report aggregate data to the Department of Education regarding complaints, code of conduct proceedings, determinations and sanctions.
The law also requires that institutions adopt specific language in their policies, including a definition of affirmative consent, a student bill of rights, provisions regarding privacy and confidentiality, and information provided to complainants at the first instance of complaint. Significantly, the law does not create a private right of action.