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Policy 7.11 Records Access Policy

The City University of New York and its constituent colleges and other units shall be in full compliance with the Federal Education Rights and Privacy Act (FERPA), and its implementing regulations. (BTM,1998,01-26,007,_A)

That appeals concerning alleged failures by any college or other educational unit to comply with the requirements of FERPA may be made to the General Counsel and Vice Chancellor for Legal Affairs within 30 days of the alleged failure to comply, and appeal decisions shall be submitted to the Board Committee on Student Affairs and Special Programs for its approval, with the student having the opportunity to submit a response. (BTM,1998,01-26,007,_A)

This policy supersedes the Student Records Access Policy adopted by the Board on 23 April 1976, Calendar No. 6.E. (BTM,1998,01-26,007,_A)

FERPA was enacted in 1974, and for years was popularly known as the "Buckley" amendment, and most recently amended by the Improving America's Schools Act of 1994. FERPA imposed obligations on the colleges to establish policies in order to permit college students the right to inspect and review their educational records, the right to request the amendment of a record believed to be inaccurate or misleading, and the right to consent to disclosure of personally identifiable information in educational records, with some exceptions to the extent FERPA authorized disclosure without prior consent. Revised regulations, issued this past year by the United States Department of Education to implement the 1994 statutory amendments, have eliminated the requirement that educational institutions have a written policy regarding access, disclosure, and challenges of educational records. Instead, the colleges will be required to include additional information in their annual notification of rights to students. (BTM,1998,01-26,007,_A)

The repeal of the Board's Student Records Access Policy will eliminate a policy which, in essence, reiterates the federal regulations, and will eliminate the technical need for the Board to amend its policy each time the federal regulations are amended. (BTM,1998,01-26,007,_A)

In order to assure compliance with FERPA, the Office of the General Counsel and Vice Chancellor for Legal Affairs will issue annual advisory memoranda on the requirements of FERPA, rights of appeal, the annual notification of students' rights concerning educational records, and the components of directory information which may be released without prior consent. The provision for appeals to that Office will further promote uniform compliance with FERPA within the University prior to parties exercising their statutory right of appeal to the Family Policy Compliance Office of the U.S. Department of Education. (BTM,1998,01-26,007,_A)

Policy 7.11a. Residence Hall Disciplinary Procedures

1 Introduction

These procedures are intended to apply to all CUNY owned and/or operated residence halls, including those operated by CUNY and those operated by a private company on behalf of CUNY. The purpose of these procedures is to protect the health and safety of the entire residence hall community by providing for discipline of students who live in residence halls who violate the rules governing student conduct applicable to CUNY students. At the same time, these procedures are designed to ensure that the due process rights of student residents accused of engaging in inappropriate conduct are respected. (BTM,2009,06-22,007,_B)

2 Applicable Rules of Conduct

All students who live in CUNY residence halls are expected to behave lawfully and responsibly. They are expected not to engage in conduct that threatens or causes harm to others or interferes with the working or learning environment of others. All resident students must comply with local, state and federal laws, including the Henderson Rules (N.Y. State Education Law, Article 129-A) and with CUNY and College policies, including College rules governing appropriate conduct in the residence hall. Students who violate their College's rules concerning behavior in the residence hall will be subject to discipline under these residence hall disciplinary procedures. To the extent that the conduct at issue also violates local, state or federal law (including the Henderson Rules) or other CUNY or College policies, a student will be subject to discipline under Article XV of CUNY's Bylaws ("Article XV") as an alternative to disciplinary proceedings invoked under these residence hall procedures. In cases in which the conduct is serious and the sanction might involve suspension or expulsion from the University, rather than a sanction solely relating to future conduct and tenure at the residence hall, Article XV procedures should be invoked instead of residence hall disciplinary procedures. (BTM,2009,06-22,007,_B)

Further, if a student's conduct threatens harm to him or herself or others or substantially disrupts the learning or working environment of others, and is connected to a mental health or other medical issue, that conduct should be addressed under CUNY's Medical Withdrawal and Re-entry Policy and Procedures ("Medical Withdrawal Policy"). (BTM,2009,06-22,007,_B)

3 Emergency Situations

3.1 Emergency interim removal

If a resident's behavior presents an immediate, severe and direct threat to him or herself or others (by evidencing a likelihood of harm to him or herself or others), or is substantially disrupting the learning or working environment of others, the resident may be removed from the residence hall for a period not to exceed seven business days, pending the results of administrative proceedings or, where mental health issues are present, psychological evaluation. (BTM,2009,06-22,007,_B)

The fact that a resident has threatened to commit or attempted to commit suicide, however, may not, in and of itself, be used as the basis for an emergency interim removal. In such a circumstance, the resident shall be referred to a mental health professional under the Medical Withdrawal Policy for an assessment of whether the resident presents a direct threat to him or herself or others. (BTM,2009,06-22,007,_B)

Following an emergency interim removal of a student, the next step in the applicable and appropriate process (either under these procedures, the Medical Withdrawal Policy, or Article XV) should be taken as soon as soon as practicable, and in no event later than the time deadlines outlined in the applicable policy. (BTM,2009,06-22,007,_B)

3.2 Emergency interim relocation

A student may be relocated from one area of a residence hall to a different location in that building or, if applicable, to a different building in the complex. This relocation may be made permanent or temporary until a permanent space is located by the residence hall staff. The interim relocation shall become immediately effective without prior notice whenever there is evidence that the student's continued presence in the current residence poses a significant disruption to other persons or property or to the stability and continuance of normal housing functions. (BTM,2009,06-22,007,_B)

Following an emergency interim relocation of a student, the next step in the applicable and appropriate process (either under these procedures, the Medical Withdrawal Policy, or Article XV) should be taken as soon as soon as practicable, and in no event later than the time deadlines outlined in the applicable policy. (BTM,2009,06-22,007,_B)

4 Disciplinary Process in the Residence Hall

4.1 Role of the Residence Hall Peer Review Board

Whether its residence hall is managed by a CUNY college directly or by a private company, each college is encouraged to establish a Residence Life Peer Review Board ("Peer Review Board") in its residence hall, comprised of students who live in the residence hall, which will play a significant role in the internal disciplinary process. The Peer Review Board process provides the opportunity for students to function as leaders in their residential communities and offers accused students the opportunity to have their behavior evaluated by their peers. The college shall determine whether to establish a Peer Review Board after consulting with the elected student representatives or officers of the residence hall association, or if there are no elected student representatives or officers of the residence hall association as of June 1 of the prior academic year, then with the elected student representatives or officers of the student government organization (hereinafter "Elected Student Representatives or Officers"). If the college establishes a Peer Review Board, it must, in consultation with the Elected Student Representatives or Officers, establish a selection and training process for Peer Review Board members, with requirements for a minimum GPA consistent with the College's requirements for Student Government representatives. (BTM,2009,06-22,007,_B)

The Peer Review Board's role will be to preside at internal residence hall disciplinary hearings, if practicable. The Peer Review Board members will be advised and supported by a professional staff member of the residence hall. That advisor will review the recommendations of the Peer Review Board after each hearing, particularly the sanctions recommended, as discussed below. (BTM,2009,06-22,007,_B)

The Peer Review Board will adjudicate at a hearing if its members have been selected and trained, and if the hearing can occur in a timely fashion during the semester (and not during exam, break or holiday periods). If the Board is unavailable to adjudicate, the Residence Hall Director or designee will preside. (BTM,2009,06-22,007,_B)

4.2 Role of the Residence Hall Director

Each residence hall, whether managed directly by a CUNY college or by a private management company, will have a director whose responsibilities will include oversight of the residence hall internal disciplinary process. The Residence Hall Director ("RHD") or designee will conduct investigations of complaints and conciliation conferences and will also either advise the Peer Review Board during disciplinary hearings or will conduct those hearings if it is impracticable for the Peer Review Board to do so. (BTM,2009,06-22,007,_B)

5 Disciplinary Procedures

5.1 Complaint and Investigative Process

A complaint may be submitted by anyone, including resident advisors ("RAs"), residence hall staff, or other students in the residence hall. The complaint must be in writing. Intentionally providing false information is a serious offense that will subject a person providing such intentionally false information to disciplinary action. Further, retaliation of any kind against witnesses or other participants in the investigative process is strictly prohibited and may result in separate disciplinary action. (BTM,2009,06-22,007,_B)

The complaint should be submitted to the RHD or designee for investigation, with a copy provided to the College's Chief Student Affairs Officer. The RHD or designee will assess the incident and identify any alleged policy violations. If he or she determines that policies may have been violated, he or she will investigate by interviewing witnesses and gathering relevant documents. Investigations should be completed within thirty days, except that they must be completed within seven days if the student has been removed from the residence hall under the emergency interim removal procedure or if the student has been relocated within the residence hall or complex under the emergency interim relocation procedure. (BTM,2009,06-22,007,_B)

After the investigation has been completed, the RHD or designee will determine if residence hall, CUNY and/or College policy was violated. If so, the RHD or designee will refer the incident for informal conciliation through the residence hall's procedures. Alternatively, in the event of a determination (in consultation with the College's Chief Student Affairs Officer) that the matter presents a serious violation of CUNY and/or College policies (including but not limited to the Henderson Rules) for which the appropriate sanction might involve suspension or expulsion from the University, the RHD or designee will refer the case to the College's Chief Student Affairs Officer for further action under Article XV of CUNY's Bylaws or, if applicable and appropriate, the Medical Withdrawal Policy. (BTM,2009,06-22,007,_B)

5.2 The Conciliation Process

The first step in the conciliation process ordinarily should be a meeting between the accused student and the RHD or designee. In cases involving minor infractions, a policy clarification notice letter may be sent in lieu of initiating the conciliation process. Should the student wish to contest the policy clarification letter and have a Conciliation Conference instead, the student must send a written request for a Conference to the RHD within five business days from receipt of the policy clarification letter. (BTM,2009,06-22,007,_B)

The RHD or designee will conduct the Conciliation Conference. At the Conference, the findings of the investigation will be discussed with the student with an effort toward resolving the case. There are three potential outcomes to a Conciliation Conference. First, the case may be resolved by mutual agreement, which may include the imposition of sanctions for violations of policy (if a student admits responsibility for such violations). Second, if no agreement is reached, the matter may proceed to a formal disciplinary hearing. Third, if the student effectively demonstrates that the investigation's findings are incorrect, the allegations may be dismissed as unfounded. (BTM,2009,06-22,007,_B)

Failure to attend an assigned Conciliation Conference may result in the student's being charged with an additional violation of residence hall rules and the scheduling of a disciplinary hearing. (BTM,2009,06-22,007,_B)

5.3 Disciplinary Hearing

5.3.1 Notice to Students

Notice of the charge(s) and the time and place of the hearing must be sent to the student's college e-mail address and, by regular mail or hand delivery, to the student's residence hall address or by regular mail to the student's other current resident address, if the student is no longer living in the residence hall (or, if unknown, the student's permanent home address). The notice must contain a summary of the student's procedural rights at the hearing, as listed below. The student should be given a minimum of five business days notice of the date of the hearing. (BTM,2009,06-22,007,_B)

5.3.2 Summary of Student Procedural Rights at the Hearing

The right to a confidential, closed hearing. (BTM,2009,06-22,007,_B)

The right to present the student's version of the incident. (BTM,2009,06-22,007,_B)

The right to present witnesses and documentary evidence on the student's behalf. (BTM,2009,06-22,007,_B)

The right to cross-examine witnesses presenting evidence at the hearing. (BTM,2009,06-22,007,_B)

The right to receive copies of documents introduced into evidence at the hearing. (BTM,2009,06-22,007,_B)

The right to be represented by legal counsel or an advisor at the student's expense; the advisor does not act as an advocate for the resident and is not authorized to address the Peer Review Board or Hearing Officer, as applicable. The advisor must indicate relevant professional affiliation (if any), as well as name and relationship to the accused student. RAs are not permitted to serve as advisors to accused students. The process will not be delayed due to the unavailability of an advisor. (BTM,2009,06-22,007,_B)

The right to take written notes during the hearing, but not to use recording devices. The RHD's office, however, will be responsible for recording the hearing, and must make a copy of that recording available to the student upon request. (BTM,2009,06-22,007,_B)

The right to a written decision based on a preponderance of the evidence. (BTM,2009,06-22,007,_B)

The right to appeal a determination after a hearing. (BTM,2009,06-22,007,_B)

5.3.3 General Rules

In general, the model for the disciplinary hearing is an administrative proceeding, not a criminal or civil trial. Accordingly, criminal or civil trial procedures and rules of evidence do not apply. As long as the student rights outlined in this policy are observed, adjudicator(s) have considerable discretion with respect to procedural requirements so as to facilitate a fair and expeditious decision. (BTM,2009,06-22,007,_B)

Hearings will be closed to the public, except that an open hearing may be held, at the discretion of the presiding adjudicator(s), if requested by the accused student. The Peer Review Board must select three members to hear each case and one of the three as chairperson to preside at the hearing. The case against the accused student will be presented by the RHD or designee. (BTM,2009,06-22,007,_B)

The chairperson of the Peer Review Board (or Hearing Officer) will inform the accused student of the charges, the hearing procedures, and his or her rights. The student shall then be asked for a plea of "responsible" or "not responsible." If the student pleads "responsible," he or she will be given an opportunity to explain his or her actions and to discuss the appropriate sanction, if any. If the student pleads "not responsible," the hearing will proceed to determination on the student's culpability. (BTM,2009,06-22,007,_B)

If the accused student does not attend the hearing, and does not present a reasonable excuse for non-attendance to the RHD or designee, the hearing may be held in the student's absence. The Peer Review Board, or Hearing Officer, as applicable, will consider the evidence and make a determination based on the evidence available. The absence of a student may give rise to an inference of responsibility, but may not be treated, by itself, as sufficient to demonstrate responsibility by a preponderance of the evidence. (BTM,2009,06-22,007,_B)

5.3.4 Witnesses

The accused student and Peer Review Board or Hearing Officer, as applicable, may request the presence of relevant witnesses. In sensitive cases, including but not limited to harassment or assault, the Peer Review Board or Hearing Officer, as applicable, may choose not to request the presence of the alleged victim at the hearing, particularly when there are independent witnesses to the alleged harassment or assault. (BTM,2009,06-22,007,_B)

Witnesses may participate in the judicial process by answering questions posed during the hearing or by providing a signed statement to the RHD or the Peer Review Board or Hearing Officer, as applicable. Witnesses will be asked to affirm that their statements are truthful. Questions may be posed to witnesses by Peer Review Board members or the Hearing Officer (as applicable), the accused student, and the staff member presenting the case against the student. (BTM,2009,06-22,007,_B)

5.3.5 Documentary Evidence

Accused students may introduce documentary evidence on their behalf at the hearing. CUNY adheres to federal law, the Federal Education Rights and Privacy Act ("FERPA"), which governs the permissible release of "education records." Education records include records relating to students' residency in residence hall. Except in emergency situations or for other good cause, requested copies will be provided to an accused student prior to a disciplinary hearing on that student's case. However, redactions will be made to the copies if required by law. (BTM,2009,06-22,007,_B)

5.3.6 Determination

a. Responsibility

Once all of the evidence is presented, the hearing will be adjourned for the Peer Review Board, or the Hearing Officer, as applicable, to make a determination. A student will be found responsible for a violation of residence hall rules if the case against the student was demonstrated by a preponderance of the evidence. In other words, the evidence must demonstrate that it was "more likely than not" that the accused student was responsible for a violation. A simple majority of the three Peer Review Board members hearing a case may recommend a determination and sanctions. That recommendation on responsibility and sanctions will be reviewed by the Peer Review Board's advisor, who may make adjustments as necessary to ensure that the sanctions are appropriate. (BTM,2009,06-22,007,_B)

A written decision will be issued and appropriate sanctions, if any, imposed, within seven business days from the date of the hearing. The decision will be sent by the RHD by regular mail to the accused student's residence hall mailbox or delivered by hand to the accused student's room and to the student's college e-mail address. In the event that the accused student is no longer residing in the residence hall, the RHD will send the decision to the student's new address, or, if unknown, to the student's permanent home address. (BTM,2009,06-22,007,_B)

b. Sanctions

Students who are found responsible for a violation(s) may be subject to one or more sanctions. Accused students may also agree to sanctions in order to resolve a case during the conciliation process. The following is a list of possible sanctions. (BTM,2009,06-22,007,_B)

Warning: Written notice that the student has violated a rule and that continuation or repetition of the wrongful conduct may result in more severe disciplinary action. (BTM,2009,06-22,007,_B)

Censure: Written reprimand for violation of a specified rule. (BTM,2009,06-22,007,_B)

Loss of Privileges: Exclusion from participation in privileges for a specified period of time, including possible exclusion from certain areas of the residence hall. (BTM,2009,06-22,007,_B)

Relocation: Interim or permanent relocation to another room/location within the hall. (BTM,2009,06-22,007,_B)

Restitution: Reimbursement for damage to or misappropriation of property. It may also include restoring the property to its original condition, engaging in activities related to personal and/or academic growth and reflection, and/or providing service to the residence hall community. (BTM,2009,06-22,007,_B)

Denial of renewal: Denial of renewal option for future residence at the hall. (BTM,2009,06-22,007,_B)

Residence Hall Suspension: Exclusion from the residence hall for a specified period of time, after which the student is eligible to return. It may also include specified conditions for re-admission. (BTM,2009,06-22,007,_B)

Expulsion: Permanent separation of the student from the residence hall and termination of a student's housing or license agreement, as applicable. (BTM,2009,06-22,007,_B)

5.4 Appeal

Students found responsible for violations after a disciplinary proceeding may submit a written appeal (via their email account or by regular mail) to the RHD. Unless the student has been subject to emergency interim removal or the written determination after the proceeding states that the student presents a direct threat to him or herself or others (by evidencing a likelihood of harm to him or herself or others), or is substantially disrupting the learning or working environment of others, the student may not be removed from the residence hall while his or her appeal is pending. (BTM,2009,06-22,007,_B)

The appeal should include a written statement outlining the specific issues for which review is sought, and the grounds upon which exception is taken to the determination. Grounds for appeal are limited to the following (BTM,2009,06-22,007,_B):

There is evidence that was not available at the hearing which, had it been available, would in all reasonable likelihood have produced a different finding on the student's responsibility for the alleged violation(s). (BTM,2009,06-22,007,_B)

The factual findings are "clearly erroneous" based on the evidence presented. (BTM,2009,06-22,007,_B)

There was a substantial procedural irregularity. (BTM,2009,06-22,007,_B)

The sanctions imposed are grossly disproportionate to the violation. (BTM,2009,06-22,007,_B)

The Appeal Officer will be the RHD, as long as he or she was not involved in an earlier stage of the proceedings at the Hearing or Conciliation Conference, and did not conduct the investigation. If the RHD had involvement with the case at an earlier stage, he or she should designate a staff member to decide the appeal. If there are no residence hall staff members who have not been involved in an earlier stage of the proceeding or investigation, the appeal will be decided by the College's Chief Student Affairs Officer or designee. The Appeal Officer may, in his or her discretion, schedule a meeting with the student or decide the appeal solely on the content of the letter. The Appeal Officer may alter the findings if they are clearly erroneous, may reduce the sanctions imposed, and/or, in some cases, may remand for additional fact-finding to be made at a hearing. A determination on the Appeal should be issued within seven business days from the date of receipt of the appeal, and it should be mailed by regular mail or hand-delivered to the resident's residence hall address (or the resident's current address, if no longer living in the residence hall, or, if unknown, to the resident's permanent home address) and the resident's college e-mail address. (BTM,2009,06-22,007,_B)

If and only if the sanction imposed is suspension or expulsion from the residence hall, a further appeal to the College's President will be permitted on any of the grounds listed above. That appeal must be received by the College's President no later than fourteen business days from the date of receipt of the Appeal Officer's decision on appeal. The College's President should issue a decision within fourteen business days from the date of receipt of the Appeal. (BTM,2009,06-22,007,_B)