University Policy on Harassment, Discrimination, Prohibited Relationships, Title IX and Non-Title IX Sexual Harassment and Misconduct (Effective 10/5/2023)

1. POLICY STATEMENT

The New School is committed to creating and sustaining an environment where students, faculty and staff can study, work and thrive unhampered by discrimination or harassment. The University strives to maintain a welcoming and collegial environment for employees, students, guests and visitors, who are expected to treat each other with respect and professionalism. The University will not tolerate discrimination or harassment based on an individual’s race, creed, color, national origin, sex, gender, gender identity or expression, age, mental or physical disability, ethnicity, sexual orientation, genetic predisposition or carrier status, religion, pregnancy, veteran status, marital or partnership status, caregiver status or any other basis protected by applicable local, state or federal laws. Nor does the University tolerate unprofessional or bullying behavior among members of the campus community.

Discrimination and harassment can be detrimental to the academic, creative and work experience, and have no place in our community. The New School will take all action necessary to prevent, correct and discipline behavior that violates this standard of conduct. Due diligence will be used to ensure that such action is taken as expeditiously as possible. The University will make every effort to provide assistance, resources and support to complainants (the individual making the complaint) of this behavior in a thorough and sensitive manner.

Those members of the University community found responsible for discriminatory, harassing or retaliatory behavior, as described below, will be subject to the full range of institutional disciplinary actions, up to and including termination from the University. Non-members of the community such as guests or visitors, who engage in such behavior on campus, at campus events or within campus programs, may be barred from campus property and/or referred to the institutions or employers with whom they are affiliated. Guests and visitors of the University impacted by discrimination and harassment are protected by these policies and procedures.

A reported violation of any University policy, which is motivated by the actual or perceived membership of an individual in a protected class may be investigated and remedied under this policy. Misconduct related to or coinciding with an investigation into a violation of this policy, may also be investigated under this policy. However, misconduct that does not violate this policy, will be resolved and remedied under the appropriate University policy.

This policy is designed to comply with applicable legal requirements including Title IX of the Education Amendments of 1972, relevant provisions of the Violence Against Women Reauthorization Act of 2013, Title VII of the Civil Rights Act of 1964, The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, ADA 504, NY Education Law Article 129 B, other relevant NYS and NYC Human Rights Laws, as well as the 2020 Title IX Final Rule Regulations.

2. SCOPE OF THE POLICY

This policy applies to students, employees, visitors, volunteers, guests, recipients and/or providers of The New School programs or services, participants in internships and field placements, subcontractors and applicants for employment. The policy also pertains to The New School sponsored events that occur off campus, as well as off campus incidents that have a substantial on campus impact or effect on members of the University community. This policy also applies to off campus and online speech or conduct that causes a substantial disruption to University operations and/or its mission or substantially and negatively impacts members of the campus community. The University reserves the right to invoke disciplinary proceedings against a member of the campus community who is charged with violating local, state or federal law for conduct occurring off campus.

Pursuant to NY Education Law Article 129B, this policy also applies to cases involving allegations of sexual assault, dating violence, domestic violence or stalking against students that have a reasonable connection to the University, whether the alleged conduct occurred on campus, off campus or while studying abroad. When such conduct involves students from other institutions, the institutions may work collaboratively, while maintaining compliance with the Family Educational Rights and Privacy Act (FERPA).

See attached policy addendum for jurisdiction of Title IX Sexual Harassment.

3. INDIVIDUAL SPEECH GUIDELINES AND ACADEMIC FREEDOM

The New School is strongly committed to encouraging the free flow of thoughts and ideas essential to higher education (see University Policies on Freedom of Artistic Expression and Free Exchange of Ideas in the Institutional Policies and Procedures Manual). Although The New School does not encourage offensive or insensitive speech, the principles of free speech and academic freedom may limit the University’s ability to restrict speech that is academically germane or pedagogically appropriate. However, speech that rises to the level of discrimination and/or harassment, as defined in this policy, may not be protected by academic freedom and/or free speech, and may be considered a violation of this policy.

4. DISCRIMINATION

Discrimination is any action that deprives or tends to deprive individuals of educational or employment access, benefits or opportunities on the basis of the individual’s actual or perceived protected status, as described above, or practice that adversely impacts members of one protected class more than others.

5. DISCRIMINATORY HARASSMENT

Discriminatory harassment is unwelcome conduct that creates an intimidating, hostile or abusive work, academic, student residential or co-curricular environment; alters the conditions of employment or education or unreasonably interferes with an individual’s work or academic performance on the basis of the individual’s actual or perceived membership in a protected class. Harassment may include, but is not limited to:

• verbal abuse, epithets, slurs or negative stereotyping

• threatening, intimidating or hostile acts

• denigrating jokes

• obscene comments or gestures

• offensive or derogatory displays or circulations (including electronic) in the work, academic or student residential environment

• written or graphic material that disparages or shows hostility or aversion toward an individual or group

Determinations of whether conduct is intimidating, abusive or hostile will be based on objective and subjective factors, including the totality of the circumstances, as well as the nature of the conduct. A reasonable person in the complainant’s position is the standard that determines whether the conduct created a hostile environment.

Non-Title IX Sexual Harassment

Non-Title IX Sexual harassment is a form of discrimination that includes harassment on the basis of sex, gender, gender identity or expression, sexual orientation or the status of being transgender. Sexual harassment includes unwelcome conduct of a sexual nature or which is directed at an individual because of that individual’s sex, gender, gender identity or expression, sexual orientation or the status of being transgender. It includes visual, verbal, non-verbal or physical conduct and when:

• Submission to such conduct is implicitly or explicitly a term or condition of the individual’s academic, co-curricular, student life or employment status or used as a basis for academic, co-curricular, student life or employment decisions affecting the individual (“quid pro quo”), or

• The conduct has the purpose or effect of unreasonably interfering with the

individual’s academic, social, student residential or work performance by creating a hostile environment, regardless of whether the conduct is directed toward that or any specific individual, or

• Such conduct is intentional, serves no legitimate purpose and involves contact with parts of another person’s body and which causes the person to feel degraded or abused or is committed for the purpose of gratifying the other person’s sexual desire.
  

See policy addendum for the definition of Title IX Sexual Harassment.

Non-Title IX Hostile Environment

A hostile environment occurs when the unwanted and objectionable conduct is based upon the individual’s actual or perceived membership in a protected class and limits or denies or unreasonably interferes with an individual’s work or academic experience (including student residential, campus life or co-curricular). A single or isolated incident of harassment or discrimination may create a hostile environment.

Examples of conduct that can constitute harassment include:

• Verbal or non-verbal unwelcome sexual advances, innuendos or propositions, racial or sexual epithets, derogatory slurs, offensive or denigrating jokes.

• Derogatory visual posters, cartoons or drawings, suggestive objects or pictures, graphic commentary, leering or obscene gestures.

• Threatening, intimidating or causing physical harm or other conduct that threatens or endangers the health or safety of any person on the basis of their actual or perceived membership in a protected class.

• Bullying, defined as repeated and/or aggressive conduct, including non-verbal conduct and speech,which is likely to intimidate, humiliate or intentionally hurt, control, silence, exclude,isolate or diminish another person physically or mentally, regardless of whether that conduct is based on their actual or perceived membership in a protected class.

Prohibited Relationships

The relationship between faculty and students is central to the mission of The New School. Although we do not wish to discourage collegial relationships between faculty and students, given the fundamentally asymmetrical nature and power differential inherent in these relationships, even the appearance of voluntary consent to a romantic, dating or sexual relationship by the student, may be questionable.

These risks are also inherent in romantic, dating or sexual relationships between University staff in unequal positions, like supervisors and subordinates or senior and junior faculty members. The power dynamics of these relationships may also impact other members of the campus community. Personal ties of this nature should not be allowed to interfere with the academic or work environment. In light of the above:

• All romantic, dating or sexual relationships between staff or faculty (those in instructional positions, including Teaching Assistants, Teaching Fellows and Tutors) and students (graduate and/or undergraduate) are prohibited by this policy.

• All employees (faculty and staff) are prohibited from entering into a newly formed (i.e., commencing subsequent to starting employment at The New School) romantic, dating or

  sexual relationship with any employee for whom they have direct or indirect supervisory or evaluative responsibility.

• All employees (faculty and staff) who have a pre-existing1 (i.e., commencing prior to assuming the supervisory or evaluative responsibilities) romantic, dating or sexual relationship with an individual for whom they subsequently assume supervisory or evaluative responsibilities (directly or indirectly) are required to report this relationship immediately to their Chief/Dean. The Chief /Dean in concert with the Chief Legal and Human Resources Officer shall determine whether, in the best interests of the University, a change in supervisory or evaluative responsibilities can be made to accommodate this relationship.

• All employees (faculty and staff) who have a pre-existing (i.e., commencing prior to the student’s association with the University) romantic, dating or sexual relationship with any student (graduate and/or undergraduate) are required to report this relationship immediately to their Chief/Dean. The Chief/Dean in concert with the Chief Legal and Human Resources Officer shall determine whether, in the best interest of the University, a change in responsibilities is necessary to accommodate this relationship.

Failure to abide by any of the requirements described above is a violation of this policy and will result in serious disciplinary sanctions up to and including termination of employment.2

Notwithstanding the above, collegial, academic and/or professional meetings, interactions and one-on-one discussions occurring on or off campus between faculty, staff and students are an integral and acceptable part of the academic environment of the University. Relationships that fall outside the parameters of professional, collegial or academic interactions can be problematic. Whether a relationship is romantic, dating or sexual will be evaluated on a case by case basis and analyzed through the lens of a reasonable person in the complainant’s position.3 Examples include, but are not limited to, the following:

• Having lunch or dinner with a student to discuss an academic issue may be appropriate. However, having lunch or dinner with a student in furtherance of an intention to make a sexual overture to or initiate a romantic, dating or sexual relationship with the student is prohibited.

• Meeting with a student in your office to discuss an academic issue may be appropriate. However, arranging with the student to meet you in a restaurant in furtherance of an

1 Any romantic, dating or sexual relationship between an employee (faculty or staff) and an individual for whom the employee has supervisory or evaluative responsibilities that exists prior to the effective date of this policy will be considered a “pre-existing” relationship and should be reported in the manner described above.

2 Exceptions may be made in cases involving lack of knowledge of the student’s status or other extenuating circumstances. The absence of an academic, supervisory or other power relationship will be an important factor in determining the appropriate sanction.

3 Romantic, dating and sexual relationships may exist on the basis of a single interaction. Physical contact is not a required element of a romantic or dating relationship.

intention to make a sexual overture to or initiate a romantic, dating or sexual relationship with the student is prohibited.

6. SEXUAL MISCONDUCT

Sexual Assault

Sexual assault is sexual activity, including sexual acts and/or sexual contact, which occurs without affirmative consent4 (defined within) to engage in the activity.

Sexual Act

• Contact, however slight, between the penis and vagina or the penis and the anus without affirmative consent, or

• Contact between the mouth and the penis, the mouth and the vagina, the mouth and the anus or genital to genital contact without affirmative consent, or

• Penetration, however slight, of the anal or genital opening of another by hand, finger or any object, with the intent to abuse, humiliate, harass, degrade or gratify the sexual desire of any person and without affirmative consent.

Sexual Contact

• The intentional touching, either directly or through clothing, of the genitals, anus, groin, breast, inner thigh or buttocks of any person without affirmative consent and with the intent to abuse, humiliate, harass, degrade or gratify the sexual desire of any person.

Sexual Exploitation

Sexual exploitation is non-consensual abuse or exploitation of another person’s sexuality for the purpose of sexual gratification, financial gain, personal benefit or advantage, humiliation, harassment or any illicit purpose. Acts of sexual exploitation may include, but are not limited to:

• Streaming, sharing or distributing images, photography, video or audio recordings of sexual conduct, nudity or state of undress when there is a reasonable expectation of privacy and without the knowledge and affirmative consent of all participants.

• Observing, photographing, videotaping or making any other visual or audio recording of sexual conduct or nudity or state of undress when there is a reasonable expectation of privacy and without the knowledge and affirmative consent of all participants.

• Exposing one’s genitals in non-consensual circumstances.

• Inducing incapacitation without the participant’s consent for the purpose of sexual activity.

• Knowingly transmitting a sexually transmitted infection or HIV to another person.

4 There can be no consent to a prohibited relationship given the fundamentally asymmetrical power differential.

• Engaging in forced prostitution related activity involving a member of the campus community.

• Knowingly tampering with birth control or condoms without the consent of the participants.

Affirmative Consent

Affirmative consent to engage in sexual activity is a knowing, voluntary and mutual decision among all participants to engage in sexual activity.5 Consent can be given by word or action, as long as those words or actions create clear permission to engage in the sexual activity. Silence or the 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 or alcohol. Consent may be initially given but withdrawn at any time.

Consent cannot be given when a person is incapacitated, which occurs when an individual lacks the ability to knowingly choose to participate in sexual activity. Incapacitation may be caused by a lack of consciousness, being asleep, being involuntarily restrained or if the 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 coercion, intimidation, force or threat of harm. An individual under the age of 17 cannot consent to sexual activity in New York. When consent is withdrawn or can no longer be given, sexual activity must stop.

7. RELATIONSHIP VIOLENCE

Dating Violence

Dating violence is the use of physical violence, coercion, threats, intimidation or other forms of emotional, psychological or sexual abuse directed toward an individual, who is or has been in a social relationship of a romantic or intimate nature with the accused. It includes behaviors that intimidate, manipulate, humiliate, isolate, frighten, coerce, threaten or physically injure the individual. A romantic or intimate relationship may exist whether the relationship is sexual or not. Dating violence can be a single act or a pattern of behavior, depending upon the severity of the conduct. The existence of a dating relationship shall be determined based upon the

complainant’s statement, as well as such factors as the length of the relationship, the type of the relationship and the frequency of interactions between the parties involved in the relationship.

5 See note 4 on page 6

Domestic Violence

Domestic violence is the use of physical violence, coercion, threats, intimidation or other forms of emotional, psychological or sexual abuse directed toward a current or former spouse, intimate partner, person with whom one shares a child or a person who is cohabitating with or has cohabitated with the complainant as a spouse or intimate partner, or anyone protected from the accused’s acts under the domestic or family violence laws of New York. To categorize as domestic violence, the relationship between the complainant and the accused must be more than two people living together as roommates and must be the type of relationship as noted above.

Domestic violence includes behaviors that intimidate, manipulate, humiliate, isolate, frighten, coerce, threaten or physically injure the individual. Domestic violence can be a single act or a pattern of behavior, depending upon the severity of the conduct.

8. STALKING

Stalking is a course of unwanted and repeated conduct directed at an individual or group of individuals, designed for no legitimate purpose and which causes a reasonable person to be in fear for their safety or the safety of others or to suffer substantial emotional distress. Stalking can take many forms and may include conduct where the stalker directly, indirectly or through third parties, by any action, method, device or means, follows, monitors, observes, surveils, threatens or communicates to or about a person or interferes with a person’s property.

9. RETALIATION

Retaliation is an intentional adverse action or threatened action taken by an accused individual or allied third party that harms or attempts to harm another individual as reprisal for filing a complaint, supporting a complainant or otherwise participating in a proceeding pursuant to this policy. Retaliation includes intimidating, threatening, disparaging, coercing or in any way discriminating against an individual as reprisal for the individual’s complaint or participation in an investigation or proceeding.

Retaliation is an offense separate and apart from the underlying policy violation and will be considered and acted upon independently. The New School will not tolerate any retaliation against an individual or group for making a complaint of harassment or discrimination in good faith under this policy or for participating in an investigation.

10. INTENT

Failure to recognize that one’s behavior is harassing or discriminatory to an individual or group is not an acceptable defense to discrimination, harassment or retaliation. Differences in perception will be resolved based upon the standard of a reasonable person in the complainant’s position.

11. COOPERATION

All members of the University community including students, faculty and staff are expected to assist and cooperate in the application of this policy and in investigations conducted pursuant to this policy. Any person who knowingly misrepresents the truth or whose willful action or inaction obstructs the application of these procedures will be subject to disciplinary action.

12. REPORTING

Required Reporting for Responsible Employees

All employees of the University, with the exceptions of those designated as confidential resources (Counseling Services, Student Health Services and the Faculty/Staff /Student Ombuds) are considered Responsible Employees of the University and are required to report all allegations of harassment or discrimination for which they have notice. Reports should be made as follows:

For incidents involving students contact Cassita Charles-Bowie, Student Title IX Investigator, at Charlesc@newschool.edu.

For incidents involving faculty and staff contact Rhonnie Jaus, Vice President for Equal Employment Opportunity, Affirmative Action, Compliance and Title IX Coordinator, at Jausr@newschool.edu

You may utilize the Harassment/Discrimination Reporting Form here: https://docs.google.com/forms/d/e/1FAIpQLSdAn8yvtaEWUOI7ybYa1RdBn7adl7sY6M3eYXorMl 1p-IxBSw/viewform

Student employees (both graduate and undergraduate) are not Responsible Employees under this section. However, students employed as Resident Advisors, Resident Housing Directors, Teaching Assistants, Teaching Fellows, Peer Advisors and Orientation Leaders are Responsible Employees of the University and required to report as indicated above.

Reports Involving Minors

The New School is committed to the prevention of child abuse. All employees who have reasonable cause to suspect abuse or maltreatment of an individual under the age of 18 are directed to inform Campus Safety, who will report this information to the NY State Child Abuse and Maltreatment Hotline. Reports can also be made directly to the hotline at 800-342-3720. See Policy on Minors on Campus in the Institutional Policies and Procedures Manual.

Confidentiality and Privacy in the Reporting Process

Confidentiality will be maintained to the greatest extent possible under the law and pursuant to the obligations of the policy. However, even offices and employees that cannot guarantee complete confidentiality will maintain the privacy of all parties to the greatest extent possible. Information provided to a non-confidential resource will only be relayed as necessary to individuals with a need to know or to seek a resolution in the case.

The University will evaluate a request for confidentiality or to refrain from acting on a report, in accordance with the responsibility to provide a safe and non-discriminatory environment for the entire campus community. While absolute confidentiality cannot be maintained, the University will treat all complaints with sensitivity and respect.

Confidential Resources and Support

The New School strongly encourages all members of the campus community to report allegations of discrimination or harassment under this policy. However, individuals who do not wish to make a formal report, but wish to speak with someone confidentially, can utilize the confidential on-campus resources of the Student Counseling Services, Student Health Services or the Faculty/Staff /Student Ombuds. Individuals can also utilize off campus confidential resources listed in the Appendix. Confidential resources will not release information without the express consent of the individual.

Student Amnesty

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

Hate Crimes

The New School is committed to the prevention of hate crimes and strongly encourages all     members of the community to report them. A hate crime is defined as an offense that either         (a) intentionally selects the person against whom the offense is committed or intended to be committed because of a belief or perception regarding the protected class of the person, regardless of whether the belief or perception is correct, or (b) intentionally commits the act or acts constituting the offense because of a belief or perception regarding the protected class of the person is correct. 

13. THE REPORTING PROCESS

All students, employees and third parties who believe they have observed or been subjected to discrimination, harassment, including sexual assault, dating violence, domestic violence, stalking or retaliation are strongly encouraged to report this to the University in accordance with the procedures set forth in this policy.

• For complaints involving students contact: Cassita Charles-Bowie, Student Title IX Investigator at Charlesc@newschool.edu.

• For complaints involving faculty/staff or third parties or for any question regarding this policy contact: Rhonnie Jaus, Vice President for Equal Employment Opportunity, Affirmative Action, Compliance and Title IX Coordinator at Jausr@newschool.edu.

• You may report anonymously online to https:// www.pavesuite.com/Newschool/PublicPortal/AcademicMisconductIncident

• In case of emergency or if you need immediate assistance contact Campus Safety at 212-229-7001.

• You may utilize the Harassment/Discrimination Reporting Form here: https://docs.google.com/forms/d/e/1FAIpQLSdAn8yvtaEWUOI7ybYa1RdBn7adl7sY6M3 eYXorMl1p-IxBSw/viewform.

Notice

Regardless of whether a complainant files a complaint or requests action, if the University has notice of discrimination or harassment, as outlined in this policy, a prompt, thorough and impartial investigation of the allegations will be commenced.

Reports to the Police and Other External Proceedings

A complainant may contact the local or state police directly, whether or not a complaint has been filed with the University. The University can provide assistance in notifying law enforcement.

Reports to local police should be made to the precinct of occurrence or to the Special Victims Report Line at 646-610-7272.

The University’s investigation is independent of any criminal or civil investigation or proceeding. The University’s investigation and related proceedings may be carried out prior to, simultaneously with or subsequent to, any related criminal or civil proceeding and will not be subject to challenge or delay based on the grounds that criminal or civil proceedings involving the same incident have been dismissed, reduced or pending. Short delays in University proceedings may be allowed for law enforcement to conduct their investigation.

Timing of the Investigation

There is no time limit for when a complaint may be brought to the attention of the University. However, significant delays in reporting may impair the University’s ability to investigate the allegation.

The University will make every effort to investigate and resolve a case within 120 days from the time notice is received. However, depending upon the complexity of the case and/or the nature of the allegations, as well as other factors, this time period may be extended at the discretion of the University.

14. INVESTIGATIONS FOR NON-TITLE IX ALLEGATIONS

Upon receipt of a complaint (or notice) of discrimination, harassment or retaliation, an investigation of the allegations will be commenced. The investigation will be conducted in a prompt, thorough and impartial manner, and may include:

• Interviews with the complainant and the accused

• Interviews of relevant witnesses

• Consideration of relevant evidence, including information submitted by either party

• If the accused is a member of any bargaining unit, they are entitled to have a union representative accompany them to the interview. The union representative may appear only in an advisory capacity and may not actively participate in the proceedings.

• Either party may be accompanied to the interview by an advisor of choice.6 The advisor of choice may appear only in an advisory capacity and may not actively participate in the proceedings.

• The investigator will make every effort to keep the complainant informed about the status of the investigation.

Interim Measures

At any time during the investigation, the investigator may recommend reasonable interim protections or measures for the parties involved. These measures may include separating the parties, placing limitations or restrictions, no-contact orders, suspension, alternative workplace schedules, student residential housing adjustments, transportation or academic accommodations or adjustments.

These measures are available regardless of whether the complainant pursues a complaint under this policy. Efforts will be made to minimize the burden on the complainant whenever practicable. Upon reasonable request, the accused and/or complainant will be afforded a prompt review of the interim measures, including potential modification. Either party will be permitted to submit evidence in support of such request.

6 Limitations may be placed on the selection of the advisor of choice due to such factors as the reporting structure of the parties or the nature of the case.

15. DETERMINATIONS AND RESOLUTIONS FOR NON-TITLE IX CASES

The investigator/s will complete the investigation in a timely fashion and render a determination based upon the preponderance of the evidence. The preponderance of the evidence means that what is sought to be shown, is more likely than not to have occurred. All parties to the investigation (complainant and accused) will receive a written determination of the outcome of the investigation.

In cases involving faculty and staff, the University reserves the right to take summary disciplinary action pursuant to the University Code of Conduct and/or existing University employment procedures, including those contained in applicable Collective Bargaining Agreements, the Institutional Policies and Procedures Manual and the Full-Time Faculty Handbook.

Faculty and staff have the right to appeal outcome determinations pursuant to the guidelines set forth in the Full-Time Faculty Handbook, the Institutional Policies and Procedures Manual or the applicable Collective Bargaining Agreement.

Allegations of non-Title IX offenses against student respondents (individuals who are accused) will be handled under the Student Code of Conduct. Students in those cases have the right to appeal the outcome determinations pursuant to the procedures set forth in the Student Non- Academic Disciplinary Procedures

16. FALSE COMPLAINTS

A complainant who knowingly makes false allegations against a member of the University community in bad faith will be subject to disciplinary action. An inquiry into a false complaint may be resolved through a separate investigation.

17. POLICY REVIEW

This policy may be reviewed for possible revision every three years or as otherwise deemed necessary.

18. DISCLOSURE

Notwithstanding the above, the University reserves the right to disclose the outcome of an investigation unless prohibited by law.

New Procedures for Title IX Sexual Harassment and Misconduct

Only incidents that fall within the below definition and jurisdiction of Title IX sexual harassment and occur on or after August 14, 2020, the effective date of the regulations, will be handled under the procedures listed below. Alleged misconduct that falls outside the scope of this definition and jurisdiction or prior to the effective date, will be handled under existing University policies and procedures.

Jurisdiction of Title IX Sexual Harassment

The jurisdiction for Title IX sexual harassment includes allegations of sexual harassment (as defined below) occurring in the University’s education program or activity in the United States, including any on campus premises, any off campus premises over which the University has substantial control, as well as buildings or property owned or controlled by a recognized student organization. It also includes activity occurring within computer and internet networks, digital platforms and computer hardware or software owned or operated by, or used in the operations of University programs and activities over which the University has substantial control

Definition of Title IX Sexual Harassment

Title IX sexual harassment includes any conduct that satisfies one or more of the following:

• Quid pro quo sexual harassment involving allegations that an employee conditioned educational benefits on participation in unwelcome sexual conduct;

• Unwelcome conduct on the basis of sex that a reasonable person would determine is so severe, pervasive and objectively offensive that it effectively denies a person equal access to the University’s education programs or activities;

• Sexual assault (as defined in the Clery Act) which includes any sex act directed against another person without consent, including where the victim is incapable of giving consent. It includes offenses that meet the following definitions:

Rape: Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration of a sex organ of another person without consent.

Fondling: The touching of the private body parts of another person for the purpose of sexual gratification and without the consent, including instances where the victim is incapable of giving consent because of age or temporary or permanent mental incapacity. Incest: Sexual intercourse between persons related to each other within the degrees wherein marriage is prohibited by New York law.

Statutory Rape: Sexual intercourse with a person under the age of sexual consent in New York (seventeen).

• Dating Violence, Domestic Violence and Stalking (as defined in the Violence Against Women Act (VAWA) Amendments to the Clery Act). See definitions of these terms in Sections VII and VIII of above policy.

Actual Notice in Title IX Sexual Harassment Cases

Upon receipt of actual notice of an allegation of Title IX sexual harassment, the University must respond in a manner that is not deliberately indifferent, meaning not unreasonable under known circumstances. Actual notice is defined as written or oral notice from any source, including anonymous reports or information, provided to the Title IX Coordinator or any University official with authority to institute corrective measures on behalf of the University. Officials with authority to institute corrective measures on behalf of the University include Deans and Department Heads.

Responding in a manner that is not deliberately indifferent includes:

• Promptly contacting the complainant.

• Apprising the complainant of available supportive measures, which may include academic adjustments, support and accommodations, counseling resources, housing resources, work schedule adjustments, increased security and no-contact orders, regardless of whether a formal complaint is filed.

• Providing the complainant with an explanation of the grievance process for Title IX sexual harassment cases and how a formal complaint can be filed.

.

Formal Grievance Process for Title IX Sexual Harassment Cases

Only a formal complaint signed by the complainant (or other indication that the complainant is the person filing the complaint) or the Title IX Coordinator can initiate the formal grievance process for Title IX sexual harassment cases. The formal complaint must be in writing- including electronic submissions- and allege conduct constituting Title IX sexual harassment under the above definition and jurisdiction by a respondent and request initiation of the Title IX grievance procedures. At the time of the filing of the formal complaint the complainant must be participating in or attempting to participate in the education programs or activities of the University.

Dismissal of the Formal Complaint in Title IX Sexual Harassment Cases

The University must dismiss a formal complaint of Title IX sexual harassment if:

• The alleged conduct does not meet the above definition of Title IX sexual harassment;
  

• The alleged conduct did not occur in the University’s education program or activity, or in the United States.

The University may dismiss a formal complaint of Title IX sexual harassment if:

• The complainant informs the Title IX Coordinator or designee in writing that they wish to withdraw the complaint;

• The respondent is no longer enrolled or employed at the University;

• There are circumstances which prevent the University’s ability to gather evidence sufficient to reach a determination.

Written notice of a dismissal of the formal complaint, along with an explanation for the dismissal, must be provided to both parties. Dismissal of the formal complaint is appealable and does not preclude the University from addressing this conduct under another University policy.

Notice In Title IX Sexual Harassment Cases

• After the filing of a formal complaint, the University will send written notice of the allegation of Title IX sexual harassment to both parties as soon as practicable. The notice must include sufficient details known at the time the notice is issued, such as the identity of the parties involved in the incident, if known, including the complainant, the conduct allegedly constituting the covered sexual harassment, and the date and location of the alleged incident, if known. The notice must apprise the parties of their right to have an advisor of choice present at the proceedings and the right to inspect and review all the evidence before the conclusion of the investigation.

• The notice must also include a statement that the respondent is presumed not responsible until a determination of responsibility is made at the conclusion of the formal grievance process, and that knowingly making false statements or submitting false information during the grievance procedure is prohibited.

Emergency Removals

During the pendency of the proceedings, the respondent can be removed from an educational program or activity if:

• After conducting an individualized safety and risk analysis, there is a determination that the respondent poses an immediate threat to the physical health or safety of an individual.

• The threat must arise from the allegations of sexual harassment.

• The respondent must have the opportunity to challenge the removal immediately thereafter.

• Employee respondents can be placed on administrative leave.
  

Informal Resolution for Title IX Sexual Harassment Cases

After a formal complaint is filed, the University can initiate an informal resolution at any time prior to reaching a determination regarding responsibility that does not require a full investigation and adjudication provided that:

• Both parties are given written notice of the allegations and the requirements of the informal resolution process, including the circumstances under which it precludes the parties from resuming a formal complaint arising from the same allegations;

• Both parties voluntarily agree in writing to participate in the informal resolution process;

• At any time prior to agreeing to the informal resolution, a party has the right to withdraw from the informal resolution process and resume formal grievance proceedings on the formal complaint.

• The University has discretion to utilize various forms of informal resolutions, including mediation and restorative justice.

• Informal resolution is not available in cases where an employee is alleged to have sexually harassed a student.

Investigation of Title IX Sexual Harassment Cases

• The University will conduct an investigation of the allegations, which may include speaking with the parties, other witnesses and considering evidence. The University has the burden of proof and the burden of gathering evidence during the investigation.

• All parties have the opportunity to present evidence and request that witnesses be interviewed.

• The University cannot use privileged records of any witness/party without the consent of the witness/party.

• All parties will be provided with written notice of meeting dates/times, as well as the right to attend meetings with an advisor of choice. The advisor of choice may act only in an advisory capacity at these meetings.

• Prior to the completion of the investigation, the University will send each party and their advisor, if any, all evidence (in hard copy or digital form) directly related to the allegations raised in the formal complaint for inspection and review. The parties will have up to 10 calendar days to submit a written response to this evidence, which the investigator will consider before completing the investigative report.

• The University will send the completed investigative report which fairly summarizes the evidence to each party and their advisor, if any, for review at least 10 calendar days prior to the hearing. If a party wishes to submit a written response to the investigative report, the party must submit the report at least 2 calendar days prior to the scheduled start of the hearing.
  

Hearings in Title IX Sexual Harassment Cases

• The University will not issue a disciplinary sanction arising from an allegation of covered sexual harassment without holding a live/virtual hearing.

• No party can waive the right to a live/virtual hearing. The University can 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” of that party. A decision maker cannot draw an inference about the determination of responsibility based solely on a party’s absence from the live hearing or refusal to answer cross examination questions.

• The hearing will be conducted live/virtually in real time.

• A decision maker or panel of decision makers will render the decision in the hearing.

• Each party must be accompanied to the hearing by an advisor of choice.

• If either party does not have an advisor of choice, the University will provide one free of charge to the party. There is no requirement that the University provide an attorney or advisor of equal competence, as long as the advisor has received training.

• The advisor can ask the party or witnesses relevant questions on cross examination. Parties are not permitted to ask questions of witnesses or other parties during the hearing.

• The decision maker or hearing officer will determine whether the proposed question is relevant prior to the advisor being permitted to ask the question. The decision maker or hearing officer must explain any decision to exclude a question.

• If a party or witness does not submit to cross examination, the decision maker cannot rely on any statement they have made in determining responsibility, but may reach a determination regarding responsibility based on evidence that does not constitute a “statement” by that party.

• The standard of evidence used at the hearing is preponderance of the evidence (see definition above).

• Complainants cannot be asked questions about their sexual history, unless it goes directly to the issue of consent to the alleged conduct or the identity of the accused.

• Privileged evidence of a party/witness may not be used during the hearing without the consent of the party/witness.

• Both parties will receive a written outcome determination letter of the proceedings that includes findings of fact, conclusions of policy violations, rationale for the decision, as well as any disciplinary sanction or recommendations. The letter will also contain information about how to file an appeal.

• For the range of possible sanctions for student cases see attached appendix. In employee matters disciplinary sanctions range up to and including termination of employment.

• The University will maintain a record of the proceedings.

Right to Appeal in Title IX Sexual Harassment Cases

Both parties have the right to appeal (1) the determination of responsibility at the hearing, and

2. dismissals of a formal complaint or any allegations therein, on one of the following grounds:

   • A procedural irregularity occurred that affected the outcome of the matter;

   • New evidence that was not reasonably available at the time of the determination regarding responsibility or dismissal was made, that could affect the outcome of the matter;

   • The Title IX Coordinator, investigator, decision maker or hearing officer had a conflict of interest or bias against complainants or respondents generally or the individual complainant or respondent that affected the outcome of the matter.

All appeal requests must be sent in writing to the Appellate Decision Maker within 5 calendar days of being notified of the determination of responsibility or dismissal of the formal complaint. The opposing party will be notified in writing when an appeal is filed. Each party can submit a written statement in support of or challenging the responsibility determination or dismissal of the complaint within 10 calendar days of the notification of the appeal. The Appellate Decision Maker will then issue a written decision on the outcome of the appeal to both parties within 10 business days, which will be final.

If no appeal request is filed within 5 calendar days—the determination of responsibility or dismissal of the complaint will be final.

Retaliation in Title IX Sexual Harassment Cases

Retaliation (as described above in Section IX) is prohibited against any individual for bringing or refusing to bring a complaint of Title IX sexual harassment or for participating in the investigation of such a case.

Time Frames for the Title IX Sexual Harassment Grievance Process

Upon the filing of a formal complaint of Title IX sexual harassment, the University will conclude the grievance process within 120 business days, subject to limited extensions supported by good cause. If good cause is established, written notice of the extension will be provided to the parties. The University has discretion to grant or deny requests for limited extensions. The 120-day period does not include the time allotted for the appeals process.

Engaging in an informal resolution process tolls the time period for completion of the formal grievance process. If either party subsequently withdraws from the informal resolution process, the grievance process clock restarts from the point when the parties entered the informal resolution process.

14. APPENDIX

    1. Student Bill of Rights

    2. On Campus Resources

    3. Off Campus Resources

    4. Medical Care and Evidence Collection

    5. Legal Options

    6. Student Disciplinary Sanctions

    7. Stop Sexual Harassment Act Factsheet

    8. Stop Sexual Harassment Act Notice

    9. Rights for Students in Sexual Assault, Dating Violence, Domestic Violence and Stalking Cases

    10. Legal Protections and External Remedies for Sexual Harassment
        

1. STUDENT BILL OF RIGHTS

B. ON CAMPUS RESOURCES

FOR STUDENTS:

Student Health and Counseling Services

80 Fifth Avenue, 3rd floor New York, NY 10011

212.229.1671 (Nurse Response will answer the phone after hours) SHS@newschool.edu

Walk-in Hours for both counseling and medical are available on the SHS website

Student Support and Crisis Management

72 Fifth Avenue, 4th floor New York, NY 10011 212.229.5900 x3656

studentsupport@newschool.edu

Student Conduct and Community Standards

72 Fifth Avenue, 4th floor New York, NY 10011 212.229.5900 x3701

studentconduct@newschool.edu

Title IX Investigator for Students

Cassita Charles-Bowie

79 Fifth Avenue, 5th floor 212.229.5900 x4088

charlesc@newschool.edu titleixcoordinator@newschool.edu

Campus Security Office

68 Fifth Avenue, Mezzanine Level 212.229.7001 (24 hours)

FOR EMPLOYEES

Human Resources

Rhonnie Jaus

VP for Equal Employment Opportunity, Affirmative Action, Compliance and Title IX 80 Fifth Avenue, 8th floor

212.229.5671

jausr@newschool.edu

titleixcoordinator@newschool.edu

Employee Assistance Program

888.238.6232 (24 hours)

Resourcesforliving.com HR website

Faculty and Staff Ombuds

Ann-Lou Shapiro

66 West 12th Street, Room 714 shapiroa@newschool.edu ombuds@newschool.edu 646.830.0530

C. OFF CAMPUS RESOURCES

Hospitals and Treatment Centers:

Bellevue Hospital Center—Sexual Assault Response Team

462 First Avenue, CD Building, room CD408 (at East 26th Street) 212.562.3435 or 212.562.3755

Beth Israel Rape Crisis and Domestic Violence Intervention Program

Beth Israel offers a variety of services to survivors of sexual abuse and domestic violence, including medical care, counseling, and information and referral, as well as information, training, and advocacy.

Department of Social Work

317 East 17th Street (between First and Second Avenues) 212.420.5632

Crime Victims Treatment Center (CVTC)

www.cvtcnyc.org

CVTC is the largest and most comprehensive hospital-based victim assistance program in New York State.

Mount Sinai West: 1000 Tenth Ave (between 58th and 59th Streets)

Mount Sinai St. Luke's: 1111 Amsterdam Avenue (between 114th and 115th Streets)

Lenox Health Greenwich Village

32 Seventh Avenue (between 12th and 13th Streets) New York City Domestic Violence Hotline

dial 311, 24 hours per day, 7 days per week

Additional Resources:

New York State Domestic Violence Hotline

1.800.942.6906

24 hours per day, 7 days per week

New York City Gay and Lesbian Anti-Violence Project

212.714.1141

24 hours per day, 7 days per week

Safe Horizon

866.689.HELP (4357) Crime Victims' Hotline 800.621.HOPE (4673) Domestic Violence Hotline 212.227.3000 Sexual Assault Hotline www.safehorizon.org

St. Luke’s Roosevelt Crime Victims Treatment Center

www.cvtc-slr.org

Midtown Office

432 West 58th Street, ground floor New York, NY 10019 212.523.8200

Uptown Office

411 West 114 Street, suite 2C New York, NY 10025 212.523.4728

Rape, Abuse, and Incest National Network (RAINN)

RAINN is a national anti–sexual assault support and advocacy organization. The website includes resources and information on sexual violence, abuse, and assault.

800.656.4673

New York City Alliance Against Sexual Assault

The alliance website serves as a source for locating hospitals, treatment, prevention, and police intervention. It also contains emergency response information for victims of rape and sexual assault.

D. MEDICAL CARE AND EVIDENCE COLLECTION

Anyone who believes they have been a victim of sexual misconduct, relationship violence or any other form of violence is strongly encouraged to seek medical attention as soon as possible. In case of sexual assault be mindful of preserving all possible evidence. Do not change clothes, shower, douche, comb your hair, brush your teeth, eat or drink. Place any relevant evidence (i.e. sheets, towels) in a paper bag and bring it with you to the hospital or give it to the police.

If the incident occurred within 96 hours of the hospital examination, a medical professional will administer a sexual assault evidence collection kit at the hospital. Medical care and preventive treatment will also be provided. The following nearby hospitals provide advocates 24 hours per day, 7 days per week, to assist victims of sexual assault:

Lenox Hill Healthplex

30 Seventh Avenue (between 12th and 13th Streets) 646.665.6000

Mount Sinai-Beth Israel Hospital Emergency Room 16th Street (between 1st and 2nd Avenues 212.420.2000

Mount Sinai-Roosevelt Hospital Emergency Department

1000 Tenth Avenue (near 59th street) 212.523.4000

Please note that going to the hospital does not require an individual to make a report to the police. It is the individual’s decision to report to the police. To learn more about the evidence collection procedure please visit https://www.health.ny.gov/professionals/safe/docs/evidence_collection_kit_guidelines.pdf

E. LEGAL OPTIONS

Victims of sexual misconduct, relationship violence or any other form of violence are strongly encouraged to report these incidents to the local/state police and/or to campus safety. Reports to the police can be made to the precinct where the incident occurred or to the NYPD Special Victims Report line at 646.610.7272.  A report to the police may lead to an arrest and criminal prosecution. Criminal proceedings are independent of campus disciplinary proceedings. The Office of Student Support and Crisis Management, as well as Campus Safety are available to aid in contacting the police.

Individuals may also pursue civil remedies which are independent of the criminal or campus proceedings. Legal assistance may be obtained by contacting the New York City Bar Association at 212.382.6600.

Applicable NYS Laws and Penalties

F. STUDENT DISCIPLINARY SANCTIONS

The New School’s student conduct process is founded on educational ideals that reflect the University’s mission. The New School is committed to educating students and encouraging respect for all members of our community. The New School has no tolerance for violations of the attached policy. Penalties for those found responsible are noted below:

In cases of repeat offenders, the minimum sanction will be one-year suspension regardless of the violation.

G. STOP SEXUAL HARASSMENT ACT FACTSHEET

https://www1.nyc.gov/assets/doc/downloads/EEO/Stop_Sexual_Harassment_Fact_Sheet.pdf

H. STOP SEXUAL HARASSMENT ACT NOTICE

https://www1.nyc.gov/assets/cchr/downloads/pdf/materials/SexHarass_Notice-8.5x14.pdf

I. RIGHTS FOR STUDENTS IN SEXUAL ASSAULT, DATING VIOLENCE, DOMESTIC VIOLENCE AND STALKING CASES

Pursuant to NYS Ed Law 129 B, students reporting allegations of sexual assault, dating violence, domestic violence or stalking to University personnel shall be apprised of the following rights at the time of their initial disclosure:

• The right to make a report to campus safety, the local or state police or to choose not to report.

• The right to report the incident to the University and be protected by the University from retaliation for reporting.

• The right to receive assistance and resources from the University.

• The right to 24/7 emergency access to the Title IX Coordinator or appropriate designee, who can provide information on options on how to proceed, preserve evidence and obtain a sexual assault exam, as well as the differences between the criminal justice system and University proceedings, confidentiality and other reporting options.

Additional Rights Provided to Students in Sexual Assault, Dating Violence, Domestic Violence and Stalking

• If the accused is an employee, the right to disclose the incident to a confidential or private employee in Human Resources

• The right to receive assistance from an appropriate University employee in initiating legal proceedings in family or civil court

• The right to withdraw a complaint or involvement with University proceedings at any time. The University may still have obligations to proceed.

• The right to a “no contact order” in cases where the accused is a student.

• The right to assistance from campus safety in obtaining an order of protection or restraining order from the courts.

• The right to receive a copy of the order of protection and assistance in understanding it.

• The right to receive assistance from campus safety in effecting an arrest when the order of protection is violated on campus.

• The right to request interim measures when the accused is a student who presents a continuing threat to the health and safety of the community.

• The right to request interim measures when the accused is not a student but is a member of the University community and presents a continuing threat to the health and safety of the community, in accordance with applicable collective bargaining agreements and the policies of the University.

• The right to request student conduct proceedings be filed against an accused student. Both parties have the right to present witnesses and evidence at these proceedings and be accompanied by an advisor of choice to all meetings, who will act in an advisory capacity
  

only. Both parties have the right to review the record and receive notice of the final determination in the case and the right to appeal.

• The right to have all complaints investigated promptly and impartially by individuals who have received annual training.

• Both parties have the right to exclude their own sexual history with persons other than each other from the proceedings. They also have the right to exclude their mental health history from the proceedings. However, past findings of domestic violence, dating violence, sexual assault or stalking may be admissible at the sanction stage

• If a student is found responsible for sexual assault, domestic violence, dating violence or stalking, a sanction of suspension or expulsion will result in a notation on the student’s transcript. Students may request removal of a suspension notation no sooner than one year after the conclusion of the suspension, while notations for expulsion may not be removed. Should a student withdraw from the University while such charges are pending and decline to participate in the disciplinary process, a notation will be added to the student’s transcript.
  

J. Legal Protections and External Remedies for Sexual Harassment

Sexual harassment is prohibited by The New School, as well as by state, federal and local law. In addition to the internal process at The New School, employees may choose to pursue legal remedies with the following governmental entities.

New York State Division of Human Rights (DHR)

The Human Rights Law (HRL) applies to employers in New York State and protects employees, paid or unpaid interns and non-employees regardless of immigration status against sexual harassment. A complaint alleging a violation of the HRL may be filed either with DHR or in the New York Supreme Court. Complaints with DHR may be filed any time within one year of the harassment. If an individual does not file with DHR, they can sue directly in state court under the HRL, within three years of the alleged discrimination. An individual may not file with DHR if they have already filed an HRL complaint in state court. Complaining internally to The New School does not extend the time to file with DHR or in court. The one year or three years commences from the date of the most recent incident of harassment.

You do not need an attorney to file a complaint with DHR and there is no cost.

DHR will investigate the complaint and determine whether there is probable cause to believe that discrimination has occurred. Probable cause cases are forwarded to a public hearing before an administrative law judge. If discrimination is found after a hearing, DHR has the power to award relief, which varies, but may include requiring the employer to stop the harassment or redress the damage

caused, including paying monetary damages, attorney’s fees and civil fines.

Contact DHR at NYS Division of Human Rights, One Fordham Plaza, Fourth Floor, Bronx, New York 10458 (718)741-8400, (888) 392-3644 or visit dhr.ny.gov/complaint for more information about filing a complaint. The website has a complaint form that can be downloaded. The website also contains contact information for DHR’s regional offices.

United States Equal Employment Opportunity Commission (EEOC)

The EEOC enforces federal anti-discrimination laws, including Title VII of the 1964 federal Civil Rights Act. A complaint can be filed with the EEOC within 300 days of the harassment. There is no cost to file a complaint. The EEOC will investigate the complaint and determine whether there is reasonable cause to believe that discrimination has occurred. The EEOC will then issue a Right to Sue letter which permits an individual to file a complaint in federal court. The EEOC does not hold hearings or award relief but may take other action including pursuing cases in federal court on behalf of complaining parties. Federal courts may award remedies if discrimination is found to have occurred. If an employee believes they have been a victim of workplace discrimination they can file a “Charge of Discrimination.” The EEOC has district and field offices where complaints can be filed. Contact the EEOC at 800-669-4000, (800-669- 6820 (TTY)) www.eeoc.gov or info@eeoc.gov. If an administrative complaint is filed with DHR, they can file the complaint with EEOC to preserve the right to proceed in federal court.

Local Protections

Contact the New York City Commission on Human Rights to file a complaint of harassment. Contact: Law Enforcement Bureau of the NYC Commission on Human Rights, 40 Rector Street, 10th floor, New York, NY or call 311 or 212- 306-7450 or www.nyc.gov/html/cchr/html/home/home.shtml

Local Police Department

If the harassment involves physical touching, coerced physical confinement or coerced sex acts, the conduct may constitute a crime. Contact the local police department

Where to Find Support

The following organizations provide resources and services related to sexual harassment and

discrimination. This is not a comprehensive list of New York service providers related to sexual harassment and discrimination:

NOW NYC Helpline

NOW NYC offers referrals for callers needing help with employment discrimination, divorce and custody, financial empowerment, intimate partner violence, and sexual assault. http://nownyc.org/service-fund/get-help/

212.627.9895

A Better Balance

Free, legal helpline offers confidential information about workplace rights, including sexual harassment, pregnancy discrimination, breastfeeding, and work-family issues. info@abetterbalance.org

212.430.5982

New York State Bar Association

Lawyer Referral and Information Service www.nysba.org

800.342.3661

Law Help NY

Legal information for New Yorkers who cannot afford an attorney www.LawHelpNY.org

Legal Momentum Equality Works Program

Litigation against employers who have maintained or practiced discrimination www.legalmomentum.org 212.925.6635

City Bar Justice Center

http://www.citybarjusticecenter.org 212.626.7373 or 7383

Lambda Legal

www.lambdalegal.org 866.542.8336

Time’s Up Legal Defense Fund

https://nwlc.org/legal-assistance/