N.Y. Education Law § 6446: Options for confidential disclosure

§ 6446. Options for confidential disclosure. 1. In accordance with

this article, every institution shall ensure that reporting individuals

have the following:

a. Information regarding privileged and confidential resources they

may contact regarding domestic violence, dating violence, stalking or

sexual assault;

b. Information about counselors and advocates they may contact

regarding domestic violence, dating violence, stalking, or sexual

assault;

c. A plain language explanation of confidentiality which shall, at a

minimum, include the following provision: "Even {Institution} offices

and employees who cannot guarantee confidentiality will maintain your

privacy to the greatest extent possible. The information you provide to

a non-confidential resource will be relayed only as necessary for the

Title IX Coordinator to investigate and/or seek a resolution.";

d. Information about how the institution shall weigh a request for

confidentiality and respond to such a request. Such information shall,

at a minimum, include that if a reporting individual discloses an

incident to an institution employee who is responsible for responding to

or reporting domestic violence, dating violence, stalking, or sexual

assault but wishes to maintain confidentiality or does not consent to

the institution's request to initiate an investigation, the Title IX

Coordinator must weigh the request against the institution's obligation

to provide a safe, non-discriminatory environment for all members of its

community. The institution shall assist with academic, housing,

transportation, employment, and other reasonable and available

accommodations regardless of reporting choices;

e. Information about public awareness and advocacy events, including

guarantees that if an individual discloses information through a public

awareness event such as candlelight vigils, protests, or other public

event, the institution is not obligated to begin an investigation based

on such information. The institution may use the information provided at

such an event to inform its efforts for additional education and

prevention efforts;

f. Information about existing and available methods to anonymously

disclose including, but not limited to information on relevant

confidential hotlines provided by New York state agencies and

not-for-profit entities;

g. Information regarding institutional crime reporting including, but

not limited to: reports of certain crimes occurring in specific

geographic locations that shall be included in the institution's annual

security report pursuant to the Clery Act, 20 U.S.C. 1092(f), in an

anonymized manner that identifies neither the specifics of the crime nor

the identity of the reporting individual; that the institution is

obligated to issue timely warnings of crimes enumerated in the Clery Act

occurring within relevant geography that represent a serious or

continuing threat to students and employees, except in those

circumstances where issuing such a warning may compromise current law

enforcement efforts or when the warning itself could potentially

identify the reporting individual; that a reporting individual shall not

be identified in a timely warning; that the Family Educational Rights

and Privacy Act, 20 U.S.C. 1232g, allows institutions to share

information with parents when i. there is a health or safety emergency,

or ii. when the student is a dependent on either parent's prior year

federal income tax return; and that generally, the institution shall not

share information about a report of domestic violence, dating violence,

stalking, or sexual assault with parents without the permission of the

reporting individual.

2. The institution may take proactive steps, such as training or

awareness efforts, to combat domestic violence, dating violence,

stalking or sexual assault in a general way that does not identify those

who disclose or the information disclosed.

3. If the institution determines that an investigation is required, it

shall notify the reporting individuals and take immediate action as

necessary to protect and assist them.

4. The institution should seek consent from reporting individuals

prior to conducting an investigation. Declining to consent to an

investigation shall be honored unless the institution determines in good

faith that failure to investigate does not adequately mitigate a

potential risk of harm to the reporting individual or other members of

the community. Honoring such a request may limit the institution's

ability to meaningfully investigate and pursue conduct action against an

accused individual. Factors used to determine whether to honor such a

request include, but are not limited to:

a. Whether the accused has a history of violent behavior or is a

repeat offender;

b. Whether the incident represents escalation in unlawful conduct on

behalf of the accused from previously noted behavior;

c. The increased risk that the accused will commit additional acts of

violence;

d. Whether the accused used a weapon or force;

e. Whether the reporting individual is a minor; and

f. Whether the institution possesses other means to obtain evidence

such as security footage, and whether available information reveals a

pattern of perpetration at a given location or by a particular group.