1. STATUTORY AUTHORITY:

Education Law 101 charges the Department with the general management and supervision of all public schools and all of the educational work of the State.

Education Law 207(not subdivided) grants general rule-making authority to the Regents to carry into effect State educational laws and policies.

Education Law 305(1) and(2) authorizes the Commissioner to enforce laws relating to the State educational system and execute Regents educational policies and provides the Commissioner with general supervision over schools and authority to advise and guide school district officers in their duties and the general management of their schools.

Education Law 6439 through 644, as added by Chapter 76 of the Laws of 2015 relates to implementation by colleges and universities of sexual assault, dating violence, domestic violence and stalking prevention and response policies and procedures and requires the Department to promulgate regulations to establish the data reporting requirements.

2. LEGISLATIVE OBJECTIVES:

The proposed amendment establishes the annual aggregate data reporting requirements for New York State institutions of higher education related to reports of domestic violence, dating violence, stalking, and sexual abuse to implement the requirements of Chapter 76 of the Laws of 2015.

3. NEEDS AND BENEFITS:

On July 7, 2015, Governor Cuomo signed into law Chapter 76 of the Laws of 2015, implementation by Colleges and Universities of sexual assault, dating violence, domestic violence and stalking prevention and response policies and procedures, known as the “Enough is Enough” statute. This statute requires higher education institutions in New York State to adopt a set of comprehensive procedures and guidelines, including a uniform definition of affirmative consent, a statewide amnesty policy, and expanded access to law enforcement. The statute also requires that institutions annually report aggregate data to the State Education Department concerning reports of domestic violence, dating violence, stalking and sexual assault.

Proposed Amendment

The Department was required to create a reporting mechanism for these annual data submissions and to issue regulations, developed in consultation with the higher education sectors, concerning the annual data reports.

Education Law § 6449, as added by Chapter 76 of the Law of 2015, delineates the following specific data elements that are required to be reported to the Department:

a. The number of such incidents that were reported to the Title IX Coordinator.

b. Of those incidents in paragraph a, the number of reporting individuals who sought the institution's judicial or conduct process.

c. Of those reporting individuals in paragraph b, the number of cases processed through the institution's judicial or conduct process.

d. Of those cases in paragraph c, the number of respondents who were found responsible through the institution's judicial or conduct process.

e. Of those cases in paragraph c, the number of respondents who were found not responsible through the institution's judicial or conduct process.

f. A description of the final sanctions imposed by the institution for each incident for which a respondent was found responsible, as provided in paragraph d, through the institution's judicial or conduct process.

g. The number of cases in the institution's judicial or conduct process that were closed prior to a final determination after the respondent withdrew from the institution and declined to complete the disciplinary process.

h. The number of cases in the institution's judicial or conduct process that were closed because the complaint was withdrawn by the reporting individual prior to a final determination.

The proposed amendment further clarifies the reporting requirements in each of these areas.

4. COSTS:

a. Costs to State government: The amendment does not impose any costs on State government, including the State Education Department, beyond what is required by State statute.

b. Costs to local government: The amendment does not impose any costs on local government above those imposed by State statute.

c. Costs to private regulated parties: The amendment does not impose any costs on private regulated parties above those imposed by State statute.

d. Costs to regulating agency for implementation and continued administration: See above.

5. LOCAL GOVERNMENT MANDATES:

The proposed amendment does not impose any additional program, service, duty or responsibility upon any local government.

6. PAPERWORK:

The proposed amendment does not require any additional paperwork requirements upon state or local government, the State Education Department, school districts, BOCES, or institutions of higher education beyond what is required by State statute.

7. DUPLICATION:

There are provisions of Chapter 76 of the Laws of 2015 which reinforce and/or expand on existing obligations imposed on institutions of higher education by Title IX of the Education Amendments of 1972 (the “Clery Act”).

8. ALTERNATIVES:

The Department solicited comment from the four higher education sectors and the New York State Office of Campus Safety on the proposed amendment. Several suggestions were made related to the definitions proposed and clarifications that would provide consistency and accuracy in reporting. Many of those suggestions were incorporated into the proposed amendment. Sector representatives also requested that the timeline for submission of the annual data reports required by the “Enough is Enough” statute should align with the existing timeline for institutions to submit data required by the federal “Clery Act” under Title IX of federal statute, which are required by October 1st of each year. This change was also made.

9. FEDERAL STANDARDS:

Title IX of the Education Amendments of 1972 (“Title IX”) and/or the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, as amended by the Violence Against Women Act/Campus Sexual Violence Act (the “Clery Act”).

10. COMPLIANCE SCHEDULE:

It is anticipated that the proposed amendment will be adopted by the Board of Regents at its September 2017 meeting and will then become effective on September 27, 2017.

(a) Small businesses:

The proposed amendment adds a new Part 48 to the Regulations of the Commissioner of Education related to annual aggregate data reporting by New York State institutions of higher education related to reports of domestic violence, dating violence, stalking and sexual assault to implement Chapter 76 of the Laws of 2015 (“Enough is Enough” statute).

1. EFFECT OF RULE:

The proposed amendment applies to all New York State institutions of higher education, including those with fewer than 100 employees.

2. COMPLIANCE REQUIREMENTS:

Education Law § 6449, as added by Chapter 76 of the Law of 2015, delineates the following specific data elements that are required to be reported to the Department relating to sexual abuse on college campuses:

a. The number of such incidents that were reported to the Title IX Coordinator.

b. Of those incidents in paragraph a, the number of reporting individuals who sought the institution's judicial or conduct process.

c. Of those reporting individuals in paragraph b, the number of cases processed through the institution's judicial or conduct process.

d. Of those cases in paragraph c, the number of respondents who were found responsible through the institution's judicial or conduct process.

e. Of those cases in paragraph c, the number of respondents who were found not responsible through the institution's judicial or conduct process.

f. A description of the final sanctions imposed by the institution for each incident for which a respondent was found responsible, as provided in paragraph d, through the institution's judicial or conduct process.

g. The number of cases in the institution's judicial or conduct process that were closed prior to a final determination after the respondent withdrew from the institution and declined to complete the disciplinary process.

h. The number of cases in the institution's judicial or conduct process that were closed because the complaint was withdrawn by the reporting individual prior to a final determination.

The proposed amendment further clarifies the reporting requirements in each of these areas.

3. PROFESSIONAL SERVICES:

The proposed amendments do not impose any additional professional services requirements on small businesses beyond those imposed by statute.

4. COMPLIANCE COSTS:

There are no additional costs on small businesses beyond those required by State statute.

5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

The statute (and proposed amendment) requires the department to issue a report to the Governor and the Legislature regarding the data collected by the Department, and the Office of Higher Education is working with staff in the Officer of Information Technology Services (ITS) to develop an electronic data reporting system for the annual “Enough is Enough” data reports.

6. MINIMIZING ADVERSE IMPACT:

The proposed amendment incorporates suggestions from the four higher education sectors to align the timeline for submission of “Enough is Enough” data with the existing timeline for institutions to submit data required by the federal “Clery Act” under Title IX of the federal statute, which is required by October 1 of each year. This rule applies equally to all institutions of higher education throughout the State.

7. SMALL BUSINESS AND LOCAL GOVERNMENT PARTICIPATION:

In December 2016, the Department circulated a discussion draft of the regulations and convened a meeting of representatives of the four higher education sectors, which included representatives of higher education institutions that may constitute small businesses, and the New York State Office of Campus Safety to discuss the regulations. During that meeting, and in subsequent email communications with the sector representatives, several suggestions were made for definitions and clarifications that would provide consistency and accuracy in reporting. Many of those suggestions were incorporated into the proposed regulations attached to this item.

(b) Local governments:

The proposed amendment does not impose any new recordkeeping or other compliance requirements, and will not have an adverse economic impact, on local governments. Because it is evident from the nature of the rule that it does not affect local governments, no further steps were needed to ascertain that fact and one were taken. Accordingly, a regulatory flexibility analysis for local governments is not required and one has not been prepared.

1. TYPES AND ESTIMATED NUMBER OF RURAL AREAS:

The proposed amendment applies to all New York State institutions of higher education, including those in the 44 rural counties with fewer than 200,000 inhabitants and the 71 towns and urban counties with a population density of 150 square miles or less.

2. REPORTING, RECORDKEEPING, AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:

Education Law § 6449, as added by Chapter 76 of the Law of 2015 required the Department to establish reporting requirements for New York State institutions of higher education related to reports of domestic violence, dating violence, stalking, and sexual abuse to implement the requirement of Chapter 76 of the Laws of 2015.

Education Law § 6449, as added by Chapter 76 of the Law of 2015, delineates the following specific data elements that are required to be reported to the Department:

a. The number of such incidents that were reported to the Title IX Coordinator.

b. Of those incidents in paragraph a, the number of reporting individuals who sought the institution's judicial or conduct process.

c. Of those reporting individuals in paragraph b, the number of cases processed through the institution's judicial or conduct process.

d. Of those cases in paragraph c, the number of respondents who were found responsible through the institution's judicial or conduct process.

e. Of those cases in paragraph c, the number of respondents who were found not responsible through the institution's judicial or conduct process.

f. A description of the final sanctions imposed by the institution for each incident for which a respondent was found responsible, as provided in paragraph d, through the institution's judicial or conduct process.

g. The number of cases in the institution's judicial or conduct process that were closed prior to a final determination after the respondent withdrew from the institution and declined to complete the disciplinary process.

h. The number of cases in the institution's judicial or conduct process that were closed because the complaint was withdrawn by the reporting individual prior to a final determination.

The proposed amendment clarifies those reporting requirements.

3. COSTS:

The proposed amendment does not impose any costs on institutions of higher education beyond what is imposed by State statute.

4. MINIMIZING ADVERSE IMPACT:

The Department solicited comment from the four higher education sectors and the New York State Office of Campus Safety on the proposed amendment. Several suggestions were made related to the definitions proposed and clarifications that would provide consistency and accuracy in reporting. Many of those suggestions were incorporated into the proposed amendment. Sector representatives also requested that the timeline for submission of the annual data reports required by the “Enough is Enough” statute should align with the existing timeline for institutions to submit data required by the federal “Clery Act” under Title IX of federal statute, which are required by October 1st of each year. This change was also made.

5. RURAL AREA PARTICIPATION:

Copies of the rule have been provided to Rural Advisory Committee for review and comment.

The purpose of the proposed amendment is to implement Chapter 76 of the Laws of 2015 (“Enough is Enough” statute) by adding a new Part 48 of the Regulations of the Commissioner of Education to establish the annual aggregate data reporting requirements for New York State institutions of higher education.

Because it is evident from the nature of the proposed rule that it will have no impact on the number of jobs or employment opportunities in New York State, no further steps were needed to ascertain that fact and none were taken. Accordingly, a job impact statement is not required and one has not been prepared.