Title IX Procedure
New York Institute of Technology (NYIT) will act on any formal or informal notice of violation of the Gender Based Misconduct Policy that is received by the Title IX Coordinator or other Official with Authority by applying one of two procedures. The first is set forth below, known as the Title IX Procedure. This is a method of formal resolution designated by the institution to address conduct which complies with the requirements of the Title IX regulations (34 CFR §106.45).
The procedures below apply only to qualifying allegations of Title IX gender-based misconduct, as defined in the Gender Based Misconduct Policy, involving students, staff, or faculty members.
It does not apply to Other Institutional Sex-Based Offenses as defined in the Gender-Based Misconduct Policy, offenses which are subject to complaint dismissal under this procedure, or offenses that otherwise do not meet the jurisdictional requirements for Title IX misconduct. Those offenses are handled by the procedures set forth in the Discriminatory Harassment Policy for employees, and the Student Code of Conduct for students. Note: In addition to the linked Student Code of Conduct for U.S. Campuses, the NYITCOM Student Code of Conduct may also apply when involving NYITCOM students.
The procedures below may be used to address collateral misconduct arising from the investigation of or occurring in conjunction with reported misconduct. All other allegations of misconduct unrelated to incidents covered by the Gender-Based Misconduct Policy will be addressed through procedures described in the Student Code of Conduct and Discriminatory Harassment Policy.
Upon receipt of a complaint or notice to the Title IX Coordinator of an alleged violation of the Gender-Based Misconduct Policy, the Title IX Coordinator initiates a prompt initial assessment to determine the next steps the institution needs to take.
The Title IX Coordinator will initiate one of three responses, provided a complaint is not subject to dismissal as described below:
- Offering only supportive measures because the Complainant does not want to file a formal complaint; or
- An informal resolution (upon submission of a formal complaint); or
- A Formal Grievance Process including an investigation and a hearing (upon submission of a formal complaint).
NYIT uses the Formal Grievance Process to determine whether or not the Gender-Based Misconduct Policy has been violated. Options 2 and 3 will always include the offer of supportive measures.
Following receipt of notice or a complaint of an alleged violation of the Gender-Based Misconduct Policy, the Title IX Coordinator engages in an initial assessment, typically within one to five business days. The steps in an initial assessment can include:
- If notice is given, the Title IX Coordinator seeks to determine if the person impacted wishes to make a formal complaint, and will assist them to do so, if desired.
- If they do not wish to do so, the Title IX Coordinator determines whether to initiate a complaint because a violence risk assessment indicates a compelling threat to health and/or safety.
- If a formal complaint is received, the Title IX Coordinator assesses its sufficiency and works with the Complainant to make sure it is correctly completed.
- The Title IX Coordinator reaches out to the Complainant to offer supportive measures and determine whether the Complainant also seeks an informal resolution option, or a formal investigation and grievance process.
- If a Formal Grievance Process is preferred, the Title IX Coordinator determines if the misconduct alleged falls within the scope of Title IX:
- If it does, the Title IX Coordinator will initiate the formal investigation and grievance process set forth below.
- If it does not, the Title IX Coordinator will dismiss the Title IX aspect of the complaint and assess whether resolution under the Student Code of Conduct or Discriminatory Harassment Policy is indicated.
- If a Formal Grievance Process is preferred, the Title IX Coordinator determines if the misconduct alleged falls within the scope of Title IX:
Dismissal (Mandatory and Discretionary)
Note: These dismissal requirements are mandated by the 2020 Title IX Regulations, 34 CFR §106.45.
NYIT must dismiss a formal complaint or any allegations therein under these procedures if, at any time during the investigation or hearing, it is determined that:
- The conduct alleged in the formal complaint would not constitute Title IX sexual harassment as defined above, even if proved; and/or
- The conduct did not occur in an educational program or activity controlled by the institution (including buildings or property controlled by recognized student organizations), and/or the institution does not have control of the Respondent; and/or
- The conduct did not occur against a person in the United States; and/or
- At the time of filing a formal complaint, a complainant is not participating in or attempting to participate in the education program or activity of the recipient.
NYIT may dismiss a formal complaint or any allegations therein if, at any time during the investigation or hearing:
- A Complainant notifies the Title IX Coordinator in writing that the Complainant would like to withdraw the formal complaint or any allegations therein; or
- The Respondent is no longer enrolled in or employed by the recipient; or
- Specific circumstances prevent the recipient from gathering evidence sufficient to reach a determination as to the formal complaint or allegations therein.
Upon any dismissal, the Title IX Coordinator will promptly send written notice of the dismissal and the rationale for doing so simultaneously to the parties. Dismissal from the Title IX Procedure does not preclude NYIT from bringing charges under the Discriminatory Harassment Policy or Student Code of Conduct. The parties will receive written notice of any charges being brought under those policies.
This dismissal decision is appealable by any party under the procedures for appeal below. The decision not to dismiss is also appealable by any party claiming that a dismissal is required or appropriate.
NYIT is obligated to ensure that the grievance process is not abused for retaliatory purposes. NYIT permits the filing of counterclaims but uses an initial assessment to assess whether the allegations in the counterclaim are made in good faith. Counterclaims made with retaliatory intent will not be permitted and may constitute a violation of the Gender-Based Misconduct Policy's prohibition on retaliation.
Counterclaims determined to have been reported in good faith will be processed using the grievance procedures below. Investigation of such claims may take place after resolution of the underlying initial allegation, in which case a delay may occur. Counterclaims may also be resolved through the same investigation as the underlying allegation, at the discretion of the Title IX Coordinator.
Right to an Advisor
The parties may each have an Advisor of their choice present with them for all meetings, interviews, and hearings within the resolution process, if they so choose. The parties may select whoever they wish to serve as their Advisor. However, choosing an Advisor who is also a witness in the process creates potential for bias and conflict-of-interest. Parties also have the right to choose not to have an Advisor in the initial stages of the resolution process, prior to a hearing.
Under U.S. Department of Education regulations under Title IX, a form of indirect questioning is required during the hearing, which must be conducted by the parties' Advisors. If a party does not have an Advisor for a hearing, or if their Advisor is unwilling to conduct questioning, then NYIT will appoint a trained Advisor for the limited purpose of conducting any questioning of the other party and witnesses.
Advisors are expected to advise their advisees without disrupting proceedings. Advisors should not address institutional officials in a meeting or interview unless invited to. The Advisor may not speak on behalf of the advisee except during a hearing proceeding, to conduct cross-examination.
NYIT expects that the parties may wish to have the institution share documentation and evidence related to the allegations with their Advisors. The Title IX Coordinator will provide a consent form that authorizes NYIT to share information directly with their Advisor. Advisors are expected to maintain the privacy of the records shared with them.
Expectations of the Parties with Respect to Advisors
The parties are expected to provide timely notice to the Title IX Coordinator if they change Advisors at any time. Parties are expected to inform the Title IX Coordinator of the identity of their hearing Advisor at least two (2) business days before the hearing.
For parties who are entitled to union representation, NYIT will allow the unionized employee to have their union representative (if requested by the party) as well as an Advisor of their choice present for all resolution-related meetings and interviews. To uphold the principles of equity, the other party (regardless of union membership) will also be permitted to have two Advisors.
Assistance in Securing an Advisor
For representation, Respondents may wish to contact organizations such as:
Complainants may wish to contact organizations such as:
- The Victim Rights Law Center
- The National Center for Victims of Crime, which maintains the Crime Victim's Bar Association
- The Time's Up Legal Defense Fund
Informal Resolution Process
NYIT does not offer traditional alternative resolution options at this time, such as mediation or restorative justice processes. However, a form of informal resolution is available when the Respondent accepts responsibility for violating policy, and desires to accept a sanction and end the resolution process prior to a hearing.
To initiate Informal Resolution, a Complainant needs to submit a formal complaint. A Respondent who wishes to initiate Informal Resolution should contact the Title IX Coordinator.
It is not necessary to pursue Informal Resolution first in order to pursue a Formal Grievance Process, and any party participating in Informal Resolution can stop the process at any time and begin or resume the Formal Grievance Process.
Prior to implementing Informal Resolution, the parties will be provided with written notice of the reported misconduct and any sanctions or measures that may result from participating in such a process, including information regarding any records that will be maintained or shared by the institution.
The Title IX Coordinator will obtain voluntary, written confirmation that all parties wish to resolve the matter through Informal Resolution before proceeding and will not pressure the parties to participate in Informal Resolution.
The Respondent may accept responsibility for all or part of the alleged policy violations at any point during the resolution process. If the Respondent indicates an intent to accept responsibility for the alleged misconduct, the formal process will be paused, and the Title IX Coordinator will determine whether Informal Resolution can be used according to the criteria above.
If Informal Resolution is applicable, the Title IX Coordinator will determine whether all parties and the institution are able to agree on responsibility, sanctions, and/or remedies. If so, the Title IX Coordinator implements the accepted finding that the Respondent is in violation of institutional policy and implements agreed-upon sanctions and/or remedies, in coordination with other appropriate administrator(s), as necessary.
This result is not subject to appeal once all parties indicate their written assent to all agreed upon terms of resolution. When the parties cannot agree on all terms of resolution, the Formal Grievance Process will resume at the same point where it was paused. NYIT will ensure the informal resolution process is prompt and does not pause the formal process for more than 15 business days.
Formal Grievance Process: Notice of Investigation and Allegations
The Title IX Coordinator will provide written notice of the investigation and allegations (the "NOIA") to the Respondent upon commencement of the Formal Grievance Process. This facilitates the Respondent's ability to prepare for the interview and to identify and choose an Advisor to accompany them. The NOIA is also copied to the Complainant, who is to be given advance notice of when the NOIA will be delivered to the Respondent.
The NOIA will include:
- A meaningful summary of all of allegations,
- The identity of the involved parties (if known),
- The precise misconduct being alleged,
- The date and location of the alleged incident(s) (if known),
- The specific policies implicated,
- A description of the applicable procedures,
- A statement of the potential sanctions/responsive actions that could result,
- A statement that the institution presumes the Respondent is not responsible for the reported misconduct unless and until the evidence supports a different determination,
- A statement that determinations of responsibility are made at the conclusion of the process and that the parties will be given an opportunity to inspect and review all directly related and/or relevant evidence obtained during the review and comment period,
- A statement about the institution's policy on retaliation,
- Information on the need for each party to have an Advisor of their choosing,
- A statement informing the parties that the institution's Policy prohibits knowingly making false statements, including knowingly submitting false information during the resolution process,
- Information on how the party may request disability accommodations during the interview process,
- The name(s) of the Investigator(s),
- An instruction to preserve any evidence that is directly related to the allegations.
Amendments and updates to the NOIA may be made as the investigation progresses and more information becomes available regarding the addition or dismissal of various charges.
NYIT will make a good faith effort to complete the resolution process within a sixty-to-ninety (60–90) business day time period, including appeal. This timeframe can be extended as necessary for appropriate cause by the Title IX Coordinator, who will provide notice and rationale for any extensions or delays to the parties as appropriate.
The grievance process will run concurrently with any criminal justice investigation and proceeding, except for temporary delays 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.
If the Respondent is a graduating student or the resolution process will not be completed before the term ends, a hold may be placed on graduation and/or official transcripts until the matter is fully resolved (including any appeal).
Once the decision to commence a formal investigation is made, the Title IX Coordinator will promptly appoint an investigator to conduct the investigation. The Title IX Coordinator will vet the assigned Investigator(s) to ensure impartiality.
Investigations are completed expeditiously, normally within thirty (30) business days, though some investigations may take several months, depending on the nature, extent, and complexity of the allegations, availability of witnesses, police involvement, etc.
NYIT will make a good faith effort to complete investigations as promptly as circumstances permit and will communicate regularly with the parties to update them on the progress and timing of the investigation and when delays arise.
Steps in the Investigation Process
All investigations are thorough, reliable, impartial, prompt, and fair. Investigations involve interviews with all relevant parties and witnesses; obtaining available, relevant evidence; and identifying sources of expert information, as necessary.
All parties have a full and fair opportunity, through the investigation process, to suggest witnesses and questions, to provide evidence, and to fully review and respond to all evidence on the record.
The Investigator(s) will:
- Provide parties and witnesses with written notice of any interviews with reasonable time to prepare.
- Write a comprehensive investigation report fully summarizing the investigation, all witness interviews, and addressing all relevant evidence. Appendices including relevant physical or documentary evidence will be included.
- Gather, assess, and synthesize evidence, but make no conclusions, engage in no policy analysis, and render no recommendations as part of their report.
- Prior to the conclusion of the investigation, provide the parties a secured electronic or hard copy of the draft investigation report as well as an opportunity to inspect and review all of the evidence obtained as part of the investigation that is directly related to the reported misconduct, including evidence upon which the institution does not intend to rely in reaching a determination, for a ten (10) business day review and comment period so that each party may meaningfully respond to the evidence. The parties may elect to waive the full ten days.
- The Investigator(s) may elect to respond in writing in the investigation report to the parties' submitted responses and/or to share the responses between the parties for additional responses
- The Investigator(s) will incorporate relevant elements of the parties' written responses into the final investigation report, include any additional relevant evidence, make any necessary revisions, and finalize the report. The Investigator(s) should document all rationales for any changes made after the review and comment period.
- The Investigator will incorporate any relevant feedback, and the final report is then shared with all parties through secure electronic transmission or hard copy. The parties are also provided with a file of any directly related evidence that was not included in the report.
Participation of Witnesses in the Investigation
Witnesses (as distinguished from the parties) who are employees of NYIT are expected to cooperate with and participate in the institution's investigation and resolution process. Failure of such witnesses to cooperate with and/or participate in the investigation or resolution process constitutes a violation of policy and may warrant discipline.
Evidentiary Considerations in the Investigation
The investigation does not consider: 1) incidents not directly related to the possible violation, unless they evidence a pattern; 2) the character of the parties; or 3) questions and evidence about the Complainant's sexual predisposition or prior sexual behavior, unless offered to: a) prove that someone other than the Respondent committed the conduct alleged by the Complainant, or b) prove consent, if regarding specific incidents of the Complainant's and Respondent's prior sexual behavior with one another.
Referral for Hearing
Provided that the complaint is not resolved through Informal Resolution, once the final investigation report is shared with the parties, the Title IX Coordinator will refer the matter for a hearing. The hearing will not be less than ten (10) business days from the conclusion of the investigation.
The Title IX Coordinator will select a Decision-maker, which may be a single person or a panel of three individuals and may be institutional employees or external professionals. Any Decision-maker(s) selected by the institution will be vetted for bias and conflicts of interests and will be trained. If a panel is utilized, one of the Decision-makers will be appointed as the Chair who will be responsible for the pre-hearing and hearing obligations of the Decision-maker as set forth below. The Title IX Coordinator may serve as an administrative facilitator of the hearing if their previous role(s) in the matter do not create a conflict of interest.
Note: Whenever the singular "Decision-maker" is used in this procedure, it refers to either a single Decision-maker, or the Chair of a panel of Decision-makers.
Evidentiary Considerations in the Hearing
The Decision-maker(s) renders a determination based on the preponderance of the evidence; whether it is more likely than not that the Respondent violated the Gender-Based Misconduct Policy as alleged.
Any evidence that the Decision-maker(s) determine(s) is relevant and credible may be considered.
The hearing does not consider: 1) incidents not directly related to the possible violation, unless they evidence a pattern; 2) the character of the parties; or 3) questions and evidence about the Complainant's sexual predisposition or prior sexual behavior, unless offered to: a) prove that someone other than the Respondent committed the conduct alleged by the Complainant, or b) prove consent, if regarding specific incidents of the Complainant's and Respondent's prior sexual behavior with one another.
Previous disciplinary action of any kind involving the Respondent may be considered in determining an appropriate sanction upon a determination of responsibility. This information is only considered at the sanction stage of the process and is not shared until then.
Notice of Hearing
No less than ten (10) business days prior to the hearing, the Title IX Coordinator or the Decision-maker will send notice of the hearing to the parties. The notice will contain:
- A description of the alleged violation(s), a list of all policies allegedly violated, a description of the applicable procedures, and a statement of the potential sanctions/responsive actions that could result.
- The time, date, and location of the hearing and a reminder that attendance is mandatory, superseding all other campus activities.
- Details regarding the Decision-maker(s) selected and whether it is a panel or single decider.
- Any technology that will be used to facilitate the hearing.
- Information about the option for the hearing to occur with the parties located in separate rooms using technology that enables the Decision-maker(s) and parties to see and hear a party or witness answering questions.
- A statement that if any party or witness does not appear at the scheduled hearing, the hearing may be held in their absence, and the party's or witness's testimony and any statements given prior to the hearing will not be considered by the Decision-maker(s).
- Notification that the parties will be required to have an Advisor present for any questions they may desire to ask. The party must notify the Title IX Coordinator if they do not have an Advisor, and the institution will appoint one.
- A copy of all the materials provided to the Decision-maker(s) about the matter, unless they have been provided already.
- An invitation to each party to submit an impact statement pre-hearing that the Decision-maker(s) will review during any sanction determination.
The parties will be provided the names of persons who will be participating in the hearing, all pertinent documentary evidence, and the final investigation report at least ten (10) business days prior to the hearing. The Decision-maker(s) will receive such information at least five (5) business days prior.
If the parties seek to admit new evidence or witnesses prior to the hearing (but after the investigation), the Decision-maker must agree to such admission and may delay the hearing and instruct that the investigation be re-opened to consider that evidence.
Decision-maker(s) will only be removed if the Title IX Coordinator concludes that their bias or conflict of interest precludes an impartial hearing of the allegation(s).
The Decision-maker(s) has the authority to hear and make determinations on all allegations, even collateral ones that may not specifically fall within the Gender-Based Misconduct Policy.
The Decision-maker may convene a pre-hearing meeting(s) with the parties and/or their Advisors to invite them to submit the questions or topics they wish to ask or discuss at the hearing, so that the Decision-maker can rule on their relevance ahead of time to avoid any improper evidentiary introduction in the hearing or provide recommendations for more appropriate phrasing.
However, this advance review opportunity does not preclude the Advisors from asking a question for the first time at the hearing or from asking for a reconsideration based on any new information or testimony offered at the hearing. The Decision-maker must document and share with each party their rationale for any exclusion or inclusion made at a pre-hearing meeting.
The Decision-maker, only with full agreement of the parties, may decide in advance of the hearing that certain witnesses do not need to be present if their testimony can be adequately summarized by the Investigator(s) in the investigation report or during the hearing.
At each pre-hearing meeting with a party and their Advisor, the Decision-maker may consider arguments that evidence identified in the final investigation report as relevant is, in fact, not relevant. Similarly, evidence identified as directly related but not relevant by the Investigator(s) may be argued to be relevant.
The Decision-maker may rule on these arguments pre-hearing and will exchange those rulings between the parties prior to the hearing to assist in preparation for the hearing. The Decision-maker may consult with legal counsel and/or the Title IX Coordinator or ask either or both to attend pre-hearing meetings.
The institution retains discretion as to whether it will record any pre-hearing meeting(s). If the institution decides to record the meeting, all parties and Advisors will be notified.
In hearings involving more than one Respondent or in which two (2) or more Complainants have accused the same individual of substantially similar conduct, the default procedure will be to hear the allegations jointly.
However, the Title IX Coordinator may permit the investigation and/or hearings pertinent to each Respondent to be conducted separately if there is a compelling reason to do so. In joint hearings, separate determinations of responsibility will be made for each Respondent with respect to each alleged policy violation.
Order of the Hearing
Introductions and Explanation of Procedure
The Decision-maker explains the procedures and introduces the participants. The Decision-maker then conducts the hearing according to the hearing script.
At the hearing, recording, witness logistics, party logistics, curation of documents, separation of the parties, and other administrative elements of the hearing process are managed by a non-voting hearing facilitator appointed by the Title IX Coordinator.
Investigator Presents the Final Investigation Report
The Investigator(s) will then present a summary of the final investigation report, including items that are contested and those that are not, and will be subject to questioning by the Decision-maker(s) and the parties (through their Advisors).
Neither the parties nor the Decision-maker(s) should ask the Investigator(s) their opinions on recommended findings or determinations. If such information is introduced, the Decision-maker will direct that it be disregarded.
Testimony and Questioning
Once the Investigator(s) present their report and are questioned, the parties and witnesses may provide relevant information in turn, beginning with the Complainant, and then in the order determined by the Decision-maker. The parties/witnesses will submit to questioning by the Decision-maker(s) and then by the parties through their Advisors ("cross-examination").
All questions are subject to a relevance determination by the Decision-maker. The Advisor, who will remain seated during questioning, will pose the proposed question, the proceeding will pause to allow the Decision-maker to consider it (and state it if it has not been stated aloud), and the Decision-maker will determine whether the question will be permitted, disallowed, or rephrased.
The Decision-maker may invite explanations or persuasive statements regarding relevance with the Advisors, if the Decision-maker so chooses. The Decision-maker will then state their decision on the question for the record and advise the party/witness to whom the question was directed, accordingly. The Decision-maker will explain any decision to exclude a question as not relevant, or to reframe it for relevance.
The Decision-maker will limit or disallow questions on the basis that they are irrelevant, unduly repetitious, or abusive. The Decision-maker has final say on all questions and determinations of relevance. The Decision-maker may consult with legal counsel on any questions of admissibility.
Refusal to Submit to Cross-Examination and Inferences
If a party or witness chooses not to submit to cross-examination at the hearing, either because they do not attend the meeting, or they attend but refuse to participate in questioning, then the Decision-maker(s) may not rely on any prior statement made by that party or witness at the hearing (including those contained in the investigation report) in the ultimate determination of responsibility. Evidence provided that is something other than a statement by the party or witness may be considered.
If the party or witness attends the hearing and answers some cross-examination questions, only statements related to the cross-examination questions they refuse to answer cannot be relied upon. However, if the statements of the party who is refusing to submit to cross-examination or refuses to attend the hearing are the subject of the allegation itself (for example, an email from the party that constitutes a quid pro quo ultimatum), then those statements are not precluded from admission. Similarly, statements can be relied upon when questions are posed by the Decision-maker(s), as distinguished from questions posed by Advisors through cross-examination.
The Decision-maker(s) may not draw any inference solely from a party's or witness's absence from the hearing or refusal to answer cross-examination or other questions.
If charges of policy violations other than gender-based misconduct are considered at the same hearing, the Decision-maker(s) may consider all evidence it deems relevant, may rely on any relevant statement as long as the opportunity for cross-examination is afforded to all parties through their Advisors, and may draw reasonable inferences from any decision by any party or witness not to participate or respond to questions.
Hearings (but not deliberations) are recorded by the institution for purposes of review in the event of an appeal. The parties may not record the proceedings and no other unauthorized recordings are permitted.
Deliberation, Decision-making, and Standard of Proof
The Decision-maker(s) will deliberate in closed session to determine whether the Respondent is responsible or not responsible for the policy violation(s) in question using the preponderance of the evidence standard of proof. The hearing facilitator may be invited to attend the deliberation by the Decision-maker(s), but is there only to facilitate procedurally, not to address the substance of the allegations.
When there is a finding of responsibility on one or more of the allegations, the Decision-maker(s) may then consider the previously submitted party impact statements in determining appropriate sanction(s).
The Decision-maker will ensure that each of the parties has an opportunity to review any impact statement submitted by the other party(ies). The Decision-maker(s) may—at their discretion—consider the statements, but they are not binding.
The Decision-maker(s) will review the statements and any pertinent conduct history provided and will determine the appropriate sanction(s).
The Decision-maker(s) will then prepare a written deliberation statement and deliver it to the Title IX Coordinator, detailing the determination, rationale, the evidence used in support of its determination, the evidence not relied upon in its determination, credibility assessments, and any sanctions.
This report must be submitted to the Title IX Coordinator within five (5) business days of the end of deliberations, unless the Title IX Coordinator grants an extension. If an extension is granted, the Title IX Coordinator will notify the parties.
Notice of Outcome
Using the deliberation statement, the Title IX Coordinator will work with the Decision-maker to prepare a written Notice of Outcome. The Title IX Coordinator will then share the letter, including the final determination, rationale, and any applicable sanction(s) with the parties and their Advisors simultaneously within 5 business days of receiving the Decision-maker(s)' deliberation statement.
The Notice of Outcome will articulate the specific policy(ies) reported to have been violated, including the relevant policy section, and will contain a description of the procedural steps taken by the institution from the receipt of the misconduct report to the determination, including any and all notifications to the parties, interviews with parties and witnesses, site visits, methods used to obtain evidence, and hearings held.
The Notice of Outcome will specify the finding on each alleged policy violation; the findings of fact that support the determination; conclusions regarding the application of the relevant policy to the facts at issue; a statement of, and rationale for, the result of each allegation to the extent the institution is permitted to share such information under state or federal law; any sanctions issued which the institution is permitted to share according to state or federal law; and any remedies provided to the Complainant designed to ensure access to the institution's educational or employment program or activity, to the extent the institution is permitted to share such information under state or federal law.
The Notice of Outcome will also include information on when the results are considered by the institution to be final, any changes that occur prior to finalization, and the relevant procedures and bases for any available appeal options.
NYIT reserves the right to impose any level of sanction, ranging from a warning to expulsion/termination for any offense under the Gender-Based Misconduct Policy, based on the facts and circumstances of the particular allegation. Factors considered when determining a sanction/responsive action may include, but are not limited to:
- The nature, severity of, and circumstances surrounding the violation(s)
- The Respondent's disciplinary history
- Previous allegations or allegations involving similar conduct
- The need for sanctions/responsive actions to bring an end to the misconduct
- The need for sanctions/responsive actions to prevent the future recurrence of such misconduct
- The need to remedy the effects of the misconduct on the Complainant and the community
- The impact on the parties
- Any other information deemed relevant by the Decision-maker(s)
The sanctions will be implemented as soon as is feasible, either upon the outcome of any appeal or the expiration of the window to appeal without an appeal being requested.
The sanctions described in this Procedure are not exclusive of, and may be in addition to, other actions taken or sanctions imposed by external authorities.
The following are the usual sanctions that may be imposed upon students or organizations singly or in combination:
- Warning: A formal statement that the conduct was unacceptable and a warning that further violation of any institutional policy will result in more severe sanctions/responsive actions.
- Required Counseling: A mandate to meet with and engage in either institution-sponsored or external counseling to better comprehend the misconduct and its effects.
- Probation: A written reprimand for violation of institutional policy, providing for more severe disciplinary sanctions in the event that the student or organization is found in violation of any institutional policy within a specified period of time. Terms of the probation will be articulated and may include denial of specified social privileges, exclusion from co-curricular activities, exclusion from designated areas of campus, no-contact orders, and/or other measures deemed appropriate.
- Suspension: Termination of student (or housing) status for a definite period of time not to exceed two years and/or until specific criteria are met. Students who return from suspension are automatically placed on probation through the remainder of their tenure as a student at NYIT.
- Expulsion: Permanent termination of student (or housing) status and revocation of rights to be on campus for any reason or to attend institution-sponsored events.
- Withholding Diploma: NYIT may withhold a student's diploma for a specified period of time and/or deny a student participation in commencement activities if the student has an allegation pending or as a sanction if the student is found responsible for an alleged violation.
- Revocation of Degree: NYIT reserves the right to revoke a degree previously awarded from the institution for fraud, misrepresentation, and/or other violation of institutional policies, procedures, or directives in obtaining the degree, or for other serious violations committed by a student prior to graduation.
- Organizational Sanctions: Deactivation, loss of recognition, loss of some or all privileges (including institutional registration) for a specified period of time.
- Other Actions: In addition to or in place of the above sanctions, NYIT may assign any other sanctions as deemed appropriate, such as education assignments or apology letters.
For crimes of sexual violence as defined under the Clery Act, NYIT will make a notation on the transcript of students found responsible and given a sanction of suspension and/or expulsion. Appeals to seek the removal of transcript notations of suspensions may be submitted in writing to the Title IX Coordinator no less than one year following the conclusion of the suspension period.
Employee Sanctions/Responsive Actions
Responsive actions for an employee who has engaged in harassment and/or retaliation include:
- Warning – Verbal or Written
- Performance Improvement Plan/Management Process
- Enhanced supervision, observation, or review
- Required Counseling
- Required Training or Education
- Denial of Pay Increase/Pay Grade
- Loss of Oversight or Supervisory Responsibility
- Transfer or Reassignment
- Assignment to new supervisor
- Restriction of stipends, research, and/or professional development resources
- Suspension with or without pay
NYIT may assign other responsive actions as deemed appropriate. Employee sanctions will be in accordance with applicable collective bargaining agreement provisions.
Withdrawal or Resignation While Charges Pending
Should a student Respondent withdraw from NYIT, the resolution process ends, as the institution no longer has disciplinary jurisdiction over the withdrawn student.
If a student has an allegation pending for violation of the Gender-Based Misconduct Policy when they withdraw, NYIT may place a hold on a student's ability to graduate and/or to receive an official transcript/diploma. The institution will also place a notation on the Respondent's transcript indicating that they withdrew with conduct charges pending.
The student who withdraws or leaves while the process is pending may not return to NYIT. A hold will be placed on their ability to be readmitted. They may also be barred from institution property and/or events.
Should an employee Respondent resign with unresolved allegations pending, the resolution process ends, as NYIT no longer has disciplinary jurisdiction over the resigned employee.
The employee who resigns with unresolved allegations pending is not eligible for rehire with the institution, and the records retained by the Title IX Coordinator will reflect that status.
All institutional responses to future inquiries regarding employment references for that individual will include that the former employee resigned during a pending disciplinary matter.
Despite a Respondent's withdrawal or resignation, NYIT will continue to address and remedy any systemic issues, variables that may have contributed to the alleged violation(s), and any ongoing effects of the alleged misconduct.
Any party may file a request for appeal ("Request for Appeal"), but it must be submitted in writing to the Title IX Coordinator within five (5) business days of the delivery of the Notice of Outcome.
A three-member appeal panel chosen from a trained pool of administrators, vetted for conflicts of interest, will be designated by the Title IX Coordinator. No appeal panelists will have been involved in the process previously, including any dismissal appeal that may have been heard earlier in the process. A voting Chair of the Appeal panel will be designated.
The Request for Appeal will be forwarded to the Appeal Chair for consideration to determine if the request meets the grounds for appeal (a Review for Standing).
This review is not a review of the merits of the appeal, but solely a determination as to whether the request meets the grounds and is timely filed.
Grounds for Appeal
Appeals are limited to the following grounds:
- Procedural irregularity that affected the outcome of the matter;
- New evidence that was not reasonably available at the time the determination regarding responsibility or dismissal was made, that could affect the outcome of the matter; and
- The Title IX Coordinator, Investigator(s), or Decision-maker(s) had a conflict of interest or bias for or against Complainants or Respondents generally or the specific Complainant or Respondent that affected the outcome of the matter.
Appeal Review Procedures
If any of the grounds in the Request for Appeal do not meet the grounds in this Procedure, that request will be denied by the Appeal Chair and the parties will be notified in writing of the denial and the rationale.
If any of the grounds in the Request for Appeal meet the grounds in this Procedure, then the other party, the Title IX Coordinator, and, when appropriate, the Investigators and/or the original Decision-maker(s) will be provided a copy of the appeal with the approved grounds and be given five (5) business days to submit a response to the portion of the appeal that was approved and involves them. All responses will be forwarded by the Chair to all parties for review and comment.
The non-appealing party (if any) may also choose to raise a new ground for appeal within five (5) business days of receipt of the letter regarding the other party's appeal. If so, that will be reviewed to determine if it meets the grounds in this Procedure by the Appeal Chair and either denied or approved. If approved, it will be forwarded to the party who initially requested an appeal, and anyone else as necessary, who will submit their responses in five (5) business days, which will be circulated for review and comment by all parties.
Neither party may submit any new requests for appeal after this time period. The Appeal Chair will collect any additional information needed and all documentation regarding the approved grounds and the subsequent responses will be shared with the Appeal Panel, and the Panel will render a decision in no more than seven (7) business days barring exigent circumstances. All decisions are by majority vote and apply the preponderance of the evidence standard.
A written Notice of Appeal Outcome will be sent to all parties simultaneously including the decision on each approved ground and rationale for each decision. The Notice of Appeal Outcome will specify the finding on each ground for appeal, any specific instructions for remand or reconsideration, any sanctions that may result which the institution is permitted to share according to state or federal law, and the rationale supporting the essential findings to the extent the institution is permitted to share under state or federal law.
Sanctions Status During the Appeal
Any sanctions imposed as a result of the hearing are stayed during the appeal process. Supportive measures may be reinstated.
If any of the sanctions are to be implemented immediately post-hearing, but pre-appeal, then emergency removal procedures for a hearing on the justification for doing so must be permitted within 48 hours of implementation.
NYIT may still place holds on official transcripts, diplomas, graduations, and course registration pending the outcome of an appeal when the original sanctions included separation.
- Decisions on appeal are to be deferential to the original decision, making changes to the finding only when there is clear error and to the sanction(s)/responsive action(s) only if there is a compelling justification to do so.
- Appeals are not intended to provide for a full re-hearing (de novo) of the allegation(s). In most cases, appeals are confined to a review of the written documentation or record of the original hearing and pertinent documentation regarding the specific grounds for appeal.
- An appeal is not an opportunity for Appeal Decision-makers to substitute their judgment for that of the original Decision-maker(s) merely because they disagree with the finding and/or sanction(s).
- Appeals granted based on new evidence should normally be remanded to the original Investigator(s) and/or Decision-maker(s) for reconsideration.
- Once an appeal is decided, the outcome is final: further appeals are not permitted, even if a decision or sanction is changed on remand (except in the case of a new hearing).
- In rare cases where a procedural error cannot be cured by the original Decision-maker(s) (as in cases of bias), the appeal may order a new hearing with a new Decision-maker(s).
- The results of a new hearing can be appealed, once, on any of the three available appeal grounds.
- In cases in which the appeal results in reinstatement to the institution or resumption of privileges, all reasonable attempts will be made to restore the Respondent to their prior status, recognizing that some opportunities lost may be irreparable in the short term.
Long-Term Remedies/Other Actions
Following the conclusion of the resolution process, and in addition to any sanctions implemented, the Title IX Coordinator may implement additional long-term remedies or actions with respect to the parties and/or the campus community that are intended to stop the sexual harassment and/or retaliation, remedy the effects, and prevent reoccurrence.
- These remedies/actions may include, but are not limited to:
- Education to the individual and/or the community
- Permanent alteration of housing assignments
- Permanent alteration of work arrangements for employees
- Policy modification and/or training
- Implementation of long-term contact limitations between the parties
- Implementation of adjustments to academic deadlines, course schedules, etc.
At the discretion of the Title IX Coordinator, certain long-term support or measures may also be provided to the parties even if no policy violation is found.
When no policy violation is found, the Title IX Coordinator will address any remedies owed by the institution to the Respondent to ensure no effective denial of educational access.
NYIT will maintain the privacy of any long-term remedies/actions/measures, provided privacy does not impair the institution's ability to provide these services.
Failure to Comply with Sanctions, Remedies, and/or Responsive Actions
All Respondents are expected to comply with the assigned sanctions, responsive actions, and/or corrective actions within the timeframe specified by the final Decision-maker(s) (including the Appeal Panel).
Failure to abide by the sanction(s)/action(s) imposed by the date specified, whether by refusal, neglect, or any other reason, may result in additional sanction(s)/action(s), including suspension, expulsion, and/or termination from the institution and may be noted on a student's official transcript.
A suspension will only be lifted when compliance is achieved to the satisfaction of the Title IX Coordinator.
NYIT will maintain, for a period of at least seven years, records of:
- Each gender-based misconduct investigation including any determination regarding responsibility and any audio or audiovisual recording or transcript required under federal regulation;
- Any disciplinary sanctions imposed on the Respondent;
- Any remedies provided to the Complainant designed to restore or preserve equal access to the institution's education program or activity;
- Any appeal and the result therefrom;
- Any Informal Resolution and the result therefrom;
- All materials used to train Title IX Coordinators, Investigators, Decision-makers, and any person who facilitates an Informal Resolution process. NYIT will make these training materials publicly available on its website.
- Any actions, including any supportive measures, taken in response to a report or formal complaint of sexual harassment, including:
- The basis for all conclusions that the response was not deliberately indifferent;
- Any measures designed to restore or preserve equal access to the NYIT's education program or activity; and
- If no supportive measures were provided to the Complainant, document the reasons why such a response was not clearly unreasonable in light of the known circumstances.
NYIT will also maintain any and all records in accordance with state and federal laws.
Disabilities Accommodations in the Resolution Process
NYIT is committed to providing reasonable accommodations and support to qualified students, employees, or others with disabilities to ensure equal access to the institution's resolution process.
Anyone needing such accommodations or support should contact Accessibility Services for students, or Human Resources for faculty and staff, who will review the request and, in consultation with the person requesting the accommodation and the Title IX Coordinator, determine which accommodations are appropriate and necessary for full participation in the process.
Revision of this Procedure
NYIT reserves the right to make changes to this document as necessary, and once those changes are posted online with an updated effective date, they are in effect.
During the resolution process, the Title IX Coordinator may make minor modifications to procedures that do not materially jeopardize the fairness owed to any party, such as to accommodate summer schedules.
This document does not create legally enforceable protections beyond the protection of the background state and federal laws which frame such policies and codes, generally.