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January 27, 2010

M E M O R A N D U M
 

TO:

CSU Presidents

FROM:

Charles B. Reed
Chancellor

SUBJECT:

Systemwide Policy Prohibiting Discrimination, Harassment, and Retaliation Against Students and Applicants for Admission
AND
Systemwide Procedure for Handling Discrimination, Harassment and Retaliation Complaints by Students and Applicants for Admission Against the CSU and/or CSU Employees - Executive Order No. 1045


Attached is a copy of Executive Order No. 1045. This executive order is established pursuant to the California Equity in Higher Education Act, Education Code Sections 66250 et seq., among other applicable state and federal laws.

This executive order sets forth the systemwide policy prohibiting discrimination, harassment and retaliation against California State University (CSU) students and applicants for admission; and it also provides students and applicants for admission a systemwide procedure for filing complaints of discrimination, harassment and retaliation against the CSU and/or CSU employees.

Student/applicant for admission complaints filed on or after the effective date of this executive order shall be processed in accordance with the policy and procedures outlined herein. Student/applicant for admission complaints filed before the effective date of this executive order shall be handled in accordance with respective CSU campus policies and procedures.

In accordance with CSU policy, the campus president has the responsibility for implementing executive orders where applicable and for maintaining the campus repository and index for all executive orders.

To maintain an environment free from discrimination, harassment and retaliation, this executive order shall be made available to all CSU employees, students and applicants for admission as a student.

If you have questions regarding this executive order, please contact Rosalinda Velasco, Equal Opportunity & Whistleblower Compliance Unit, Systemwide Human Resources, at 562.951.4655 or rvelasco@calstate.edu.

CBR/rv

Attachment

cc:

 

CSU Executive Staff
Provosts/Vice Presidents, Academic Affairs
Vice Presidents, Business/Administration
Vice Presidents, Student Affairs
Associate Vice Presidents, Academic/Faculty Affairs
Diversity and Equal Employment Opportunity Directors
Human Resources Directors
Student Conduct Administrators


Executive Order 1045

THE CALIFORNIA STATE UNIVERSITY
Office of the Chancellor
401 Golden Shore
Long Beach, California 90802-4210
(562) 951-4425

 

Executive Order:

1045
 

Effective Date:

March 1, 2010

Supersedes:

No Prior Executive Order

Title:

Systemwide Policy Prohibiting Discrimination, Harassment, and Retaliation Against Students and Applicants for Admission
AND
Systemwide Procedure for Handling Discrimination, Harassment and Retaliation Complaints by Students and Applicants for Admission Against the CSU and/or CSU Employees - Executive Order No. 1045

Definitions

Article I Definitions

For the purpose of this executive order, the following definitions apply:

  1. Academic Affairs means the division at the Chancellor's Office that is responsible for gathering, reviewing and evaluating information on the admission criteria of a campus academic program.
  2. Accused means the CSU and/or a CSU employee against whom an allegation of discrimination, harassment or retaliation has been made.
  3. Applicant for Admission (or Applicant) means an individual who has applied for admission to an undergraduate, graduate, or credential program at a CSU campus that leads to the pursuit of a CSU degree.
  4. Age has the same meaning as defined in California Government Code Section 12926(b) and refers to the chronological age of any individual who has reached his or her fortieth (40th) birthday.
  5. California State University (CSU) means the 23 campus system of the California State University, including the Office of the Chancellor (CO).
  6. Campus (or University) means any of the 23 campuses of the California State University.
  7. Chancellor's Office (CO) Designee means the person tasked with reviewing and responding to a student's/applicant for admission's appeal at Formal Level II.
  8. Complaint means a written communication that complies with Article VI, Section C, of this executive order, alleging discrimination, harassment or retaliation against the CSU and/or a CSU employee.
  9. Complainant means an individual who is eligible to, and does, file a complaint to report discrimination, harassment or retaliation as defined by this executive order.
  10. Day means a work day. Work days are defined as Monday through Friday, excluding all official holidays or campus closures at the campus where the complaint originated.
  11. Disability means mental or physical disability as defined in California Education Code Section 66260.5.
  12. Discrimination means a discriminatory act against a student/applicant on a basis prohibited by California Education Code Sections 66250 et seq. and/or this executive order.
  13. Discriminatory Act means an act that meets the legal elements of a discrimination claim.
  14. Employee, as defined in Title 5 of the California Code of Regulations, means a person legally holding a position in and employed by the California State University (e.g., Administrators, Faculty, Staff, and Student Employees).
  15. Gender, as defined in California Education Code Section 66260.7, means sex, and includes a person's gender identity and gender related appearance and behavior whether or not stereotypically associated with the person's assigned sex at birth.
    • Sex has the same meaning as defined in California Government Code Section 12926(p), which includes, but is not limited to, pregnancy, childbirth or medical condition related to pregnancy or childbirth.
  16. Harassment means unwelcome conduct that is engaged in because of the protected status of a student or an applicant, and:
    1. Submission to such conduct is made either an explicit or implicit term or condition of admission or academic evaluation;
    2. Submission to or rejection of such conduct is used as the basis or threatened to be used as the basis for an academic assessment affecting the student or applicant; or
    3. Such conduct is so severe or pervasive that its effect, whether or not intended, is an educational environment that could be considered by a reasonable person, in the shoes of the student/ applicant, and is in fact considered by the student/applicant, intimidating, hostile or offensive.
  17. Investigator means the person tasked by a campus with investigating a complaint of discrimination, harassment, or retaliation at Formal Level I. An investigator may be a Management Personnel Plan employee or an external consultant.
  18. Management Personnel Plan Employee, as defined in Title 5 of the California Code of Regulations, means an employee who has been designated as "management" or "supervisory" in accordance with the provisions of the Higher Education Employer-Employee Relations Act.
  19. Nationality, as defined in California Education Code Section 66261.5, includes citizenship, country of origin, and national origin.
  20. Preponderance of the Evidence means the greater weight of the evidence; i.e., that the evidence on one side outweighs, preponderates over, or is more than, the evidence on the other side.
  21. Protected Status means any basis listed or defined in California Education Code Sections 66250 et seq.
  22. Race or ethnicity, as defined in California Education Code Section 66261.7, includes ancestry, color, ethnic group identification, and ethnic background.
  23. Religion, as defined in California Education Code Section 66262, includes all aspects of religious belief, observance, and practice and includes agnosticism and atheism.
  24. Retaliation means adverse action that is taken by a CSU employee because a student or an applicant has or is believed to have:
    • Reported or opposed conduct which the student or applicant reasonably and in good faith believes is discrimination/harassment/ retaliation; or
    • Participated in a discrimination/harassment/retaliation investigation/ proceeding.
  25. Sexual Orientation, as defined in California Education Code Section 66262.7, means heterosexuality, homosexuality, or bisexuality.
  26. Student means an individual who has been admitted to an undergraduate, graduate, or credential program at a CSU campus that leads to the pursuit of a CSU degree.
Systemwide Policy Prohibiting Discrimination, Harassment, and Retaliation Against Students and Applicants for Admission

Article II Statement of Policy

The California State University (CSU), through its chancellor and presidents, is committed to creating an atmosphere in which all students have the right to participate fully in CSU programs and activities free from unlawful discrimination, harassment and retaliation.

This policy is established in compliance with the California Equity in Higher Education Act, California Education Code Sections 66250 et seq., among other applicable state and federal laws. It is the policy of the CSU that no student or applicant for admission as a student shall, on the basis of disability, gender, nationality, race or ethnicity, religion, sexual orientation, or age, be unlawfully excluded from participation in or be denied the benefits of any CSU program or activity. Nor shall a student or applicant for admission as a student be otherwise subjected to unlawful discrimination, harassment, or retaliation for exercising his/her rights under this executive order.

Employees and students who violate this policy may be subject to discipline. If discipline of a CSU employee is appropriate under this policy, it shall be administered in a manner consistent with applicable collective bargaining agreements, CSU policies, and provisions of California Education Code Sections 89535 et seq. Discipline of a student shall be administered in accordance with Section 41301 of Title 5, California Code of Regulations.

Article III Implementation and Communication of the Policy

Each campus president shall designate a Management Personnel Plan employee who shall be responsible for the implementation of, and compliance with, this policy.

This executive order shall be made readily available to all students, applicants for admission, and to all CSU employees, utilizing multiple media of communication, including student orientations, student catalogs, new employee orientations, campus websites, and the offices of Equity and Diversity, Student Affairs, Student Judicial Affairs, and Human Resources.

Complaint Process

Article IV Complaints Regarding Violations of the Policy

A. Complaints That Are Not Against the CSU and/or CSU Employees

Discrimination, harassment and retaliation complaints against students, visitors, vendors or independent contractors who are not CSU employees shall be filed under campus procedures, not under the procedures in this executive order.

Discrimination complaints against students shall be filed at each respective campus per Executive Order 1043, Student Conduct Procedures. Complaints received from students against students shall be referred to the campus designated Student Conduct Administrator for the appropriate governance.

Grade appeals without a discrimination issue shall be filed under campus procedures, per Executive Order 1037, Grading Symbols, Minimum Standards Governing the Assignment of Grades, Policies on the Repetition of Courses, Polices on Academic Renewal, and Grade Appeals.

B. Complaints Against the CSU and/or CSU Employees

This executive order provides students and applicants for admission a procedure to address unlawful discrimination, harassment and retaliation by the CSU and/or CSU employees. The procedure is delineated in Articles V, VI, VII and VIII of this executive order.

Each campus shall designate specific employees to receive complaints filed against the CSU and/or CSU employees under this executive order.

C. Who May File Complaints

Only students in, or applicants for admission to, an undergraduate, graduate, or credential program at a CSU campus that leads to the pursuit of a CSU degree, may use Articles V, VI, VII and VIII to raise complaints of discrimination, harassment or retaliation against the CSU and/or CSU employees under this executive order.

Student employees, whose discrimination complaints arise out of their employment, shall file their complaints under Executive Order 928, Systemwide Complaint Procedure for Discrimination, Harassment and Retaliation Complaints for Employees Not Eligible to File a Complaint or Grievance Under a Collective Bargaining Agreement or Whose Collective Bargaining Agreement Incorporates CSU Systemwide Complaint Procedure, not under this executive order.

This policy and the procedures set forth herein do not apply to an individual taking courses through Continuing/Extended Education, unless the student is concurrently enrolled at a CSU campus and taking courses that lead to the pursuit of a CSU degree. Similarly, an individual participating in a program administered by a CSU auxiliary organization must use that organization's policies and procedures to file discrimination complaints, rather than this executive order. If the campus receives these types of complaints, the campus shall promptly acknowledge receipt of the complaints in writing and refer the complaints to the appropriate auxiliary organization or Continuing/Extended Education administrator.

Systemwide Procedure for Handling Discrimination, Harassment and Retaliation Complaints by Students and Applicants for Admission Against the CSU and/or CSU Employees

Article V Complaints Against the CSU and/or CSU Employees - Informal Resolution - Campus Level

Students/applicants who believe they are or may have been victims of discrimination, harassment or retaliation by the CSU and/or a CSU employee may request that the Informal Resolution process be initiated prior to/or instead of filing a formal complaint.

Upon receipt of a student's/applicant's informal concern(s), the person who received the concern shall contact the campus designated Management Personnel Plan employee responsible for implementation of and compliance with this executive order at the campus and provide that individual with the student's/applicant's contact information.

During the Informal Resolution process, the University will attempt to resolve the student's/applicant's concern(s) quickly and effectively. The designated Management Personnel Plan employee will meet with the student/applicant, the accused, and any other person(s) or witness(es) determined to be necessary for a resolution of the matter, to review the allegations and any responses. Informal Resolution may take the form of a negotiated resolution facilitated by the Management Personnel Plan employee designated by the campus.

At any time during the Informal Resolution process, the student/applicant, may elect to terminate the process and proceed with Article VI of this executive order.

Both the student/applicant and the accused will be expected to keep the details of the informal resolution process confidential until the process is concluded.

If resolution is reached by these informal means, a record of the resolution will be memorialized in a written document and signed by the student/applicant. Such document will be maintained in accordance with applicable campus recordkeeping policies. The matter will be considered closed and the student/applicant will be precluded from subsequently filing a formal complaint or appeal on the same incident under this executive order.

If resolution is not reached by these informal means, the student/applicant will be informed about how to file a formal complaint pursuant to Article VI of this executive order.

The University may determine that circumstances warrant initiating an investigation even if a formal complaint is not filed and independent of the intent or wishes of the student/applicant. This does not impose a duty on the University to conduct an investigation any time informal resolution is sought. The investigation conducted by the campus in such a circumstance shall not be subject to Article VI of this executive order.

Article VI Complaints Against the CSU and/or CSU Employees - Formal Level I - Campus Level

A. Filing a complaint. The student/applicant shall file a written complaint with a University employee designated to receive discrimination/harassment/retaliation complaints from students/applicants. The date of receipt shall establish the complaint filing date. The person who received the complaint shall contact the campus designated Management Personnel Plan employee who is responsible for implementation of, and compliance with, this executive order at the campus, and shall provide that individual with the student's/applicant's contact information and a copy of the complaint.

B. Timeline for filing a complaint. To be timely, the student/applicant must file a complaint no later than twenty (20) work days after the end of the academic term (semester/quarter) in which the most recently alleged discriminatory/ harassing/retaliatory act occurred.

C. Requirements of a Complaint. The student/applicant should complete the attached "CSU Student/Applicant for Admission Discrimination/Harassment/Retaliation Complaint Form" or, in the alternative, the student/applicant shall submit a written signed statement containing the following information:

  1. The full name, address and telephone number(s) of the student/applicant;
  2. The name of the accused employee(s) of the CSU and their position(s), if known;
  3. The student's/applicant's protected status that is the alleged basis for the complained of discriminatory, harassing or retaliatory act;
  4. A clear, concise written statement of the facts that constitute the alleged discriminatory, harassing or retaliatory act(s), including pertinent date(s) and sufficient information to identify any individuals who may provide information (e.g., potential witnesses) during the course of the investigation conducted under these procedures;
  5. A statement by the student/applicant verifying that the information supporting the allegations are true and accurate to the best of his/her knowledge;
  6. The term and year of the student's last active academic status or the term and year the applicant sought admission to the University;
  7. The full name, address and telephone number of the student's/applicant's advisor, if any;
  8. Specific harm resulting from the alleged violation;
  9. Specific remedy sought;
  10. The student's/applicant's signature; and
  11. The date of complaint submission.

D. Intake interview. An interview with the student/applicant shall occur as soon as possible, but no later than ten (10) work days after the student/applicant has submitted a formal complaint. Students/applicants must make themselves available for this meeting. The meeting will serve to:

  1. Acquaint the student/applicant with the investigation procedure and timelines, if not already done.
  2. Inform the student/applicant of his/her rights (including having an advisor), if not already done.
  3. Request the student/applicant to complete and sign a formal complaint form, if not already done.
  4. Conduct the initial intake interview.

E. Advisor. The student/applicant may elect to have an advisor accompany him/her to any meeting(s) and/or interview(s) with the University regarding the complaint. The advisor may be an attorney. The advisor's role in such meetings and/or interviews is limited to observing and consulting with the student/applicant.

F. Notice Regarding Complaint. Only those persons with a legitimate need to know will be apprised of the filing of and disposition of a complaint. Those persons may include, but are not necessarily limited to, appropriate organizational unit administrators (Deans, Chairs, Department Heads, Directors, Vice Presidents, and University Counsel) who must be involved to ensure that retaliatory action does not occur during or after the investigative process, and/or to effectuate corrective actions.

G. Investigation Procedure and Report of Findings of Fact and Conclusions. Upon inquiry or during the course of an investigation, the student/applicant shall be advised of the status of the investigation. The investigation shall be completed no later than sixty (60) work days after the intake interview, unless the timeline has been extended pursuant to Article VIII, Section E or F of this executive order. The timeline for the investigation shall not be extended pursuant to Article VIII, Section E or F for a period longer than an additional thirty (30) work days from the original due date. Within the investigation period stated above, the investigator will make findings of fact and conclusions regarding the allegations which he/she shall reduce to an investigative report. The preponderance-of-the evidence is the applicable standard for demonstrating facts in the investigation. In order to establish a fact, the investigator must find that its existence is more probable than its non existence: i.e., that it is more likely than not to exist. The investigative report should include a summary of the allegations, a description of the investigative process, the preponderance of the evidence standard used to determine whether a violation of policy occurred, the evidence considered and a determination of whether the allegations were found to be substantiated. The investigative report is then provided to the campus designated Management Personnel Plan employee responsible for implementing the executive order at the campus.

H. Notice of Finding. If the Management Personnel Plan employee is the same person who investigated the complaint, he/she shall provide the student/applicant with notification of the outcome of the campus investigation within ten (10) work days of completing the report. Otherwise, within ten (10) work days of receiving the investigative report from the investigator, the campus designated Management Personnel Plan employee responsible for implementing the executive order at the campus shall review the report and notify the student/applicant in writing of the outcome of the campus investigation. The notification should include a summary of the allegations, a description of the investigative process, the preponderance of the evidence standard used to determine whether a violation of policy occurred, the evidence considered and a determination of whether the allegations were found to be substantiated. The notification shall inform the student/applicant of his/her option to file an appeal under Article VII of this executive order.

In addition to the above notification, a separate notification shall be provided to the accused(s), indicating whether or not the allegations at Formal Level I were substantiated and, if not, informing the accused(s) of the complainant's right to file an appeal.

Article VII Complaints Against the CSU and/or CSU Employees - Formal Level II - Appeal to Office of the Chancellor (CO)

A. Timing for Appeal to CO. If the student/applicant is not satisfied with the decision made at Formal Level I, he/she may file a Formal Level II Appeal with the Office of the Chancellor no later than ten (10) work days after the receipt of the Formal Level I decision.

Formal Level II Appeals shall be addressed to: Office of the Chancellor, Equal Employment Opportunity & Whistleblower Compliance Unit, Systemwide Human Resources, 401 Golden Shore 4th Floor, Long Beach, CA 90802.

B. Appeal Request. The appeal shall be in writing and shall detail the specific disagreements with the Formal Level I response. The issues raised on appeal shall be limited to those issues raised during the Formal Level I process.

C. CO Review. The CO designee (and Academic Affairs, where admission criteria are at issue) shall carefully review the issues raised on appeal and issue a response pursuant to this executive order. The review shall be limited in scope to the student's/applicant's specific disagreements with the Formal Level I response.

D. CO Response. The CO designee shall respond to the student/applicant no later than sixty (60) work days after receipt of the Formal Level II filing, unless the timeline has been extended pursuant to Article VIII, Section E or F of this executive order. Generally, the response should include a summary of the issues raised on appeal, a description of the review process, the preponderance of the evidence standard used to determine whether a violation of policy occurred, the evidence considered and a final decision.

A separate notification shall be provided to the accused(s), indicating whether or not the allegations at Formal Level II were substantiated.

E. Closure. The CSU review of the complaint filed by a student/applicant under this executive order shall end following a final decision by the CO designee.

Article VIII General Provisions for Investigations of Complaints Against the CSU and/or CSU Employees

A. The person who conducts an investigation under this executive order at Formal Level I may be the campus designated Management Personnel Plan employee responsible for implementing the executive order or another Management Personnel Plan employee or an external consultant, provided the investigator is not within the administrative control or authority of the accused. All investigations/reviews under this executive order shall be conducted impartially and in good faith.

B. Students/applicants and CSU employees are required to cooperate with the investigation/review, including but not limited to attending meetings, being forthright and honest during the process, and keeping confidential the existence and details of the investigation/review. If a complainant and/or accused refuses to cooperate, the CSU may draw all reasonable inferences and conclusions on the basis of all available evidence and conclude the investigation/review.

C. A student/applicant must proceed with a complaint in good faith. A student/applicant who knowingly and intentionally files a false complaint, abuses this policy, or files a malicious or frivolous complaint may be subject to discipline. Discipline shall be taken in accordance with Section 41301, Title 5, California Code of Regulations. Such disciplinary action shall not be deemed to be retaliation under this executive order.

D. Both the student/applicant and the accused shall have the right to identify witnesses and other evidence for consideration; however, the CSU shall decide which witnesses and evidence are relevant and significant to the issues raised.

E. If the student/applicant, the accused, a witness, the campus investigator/CO designee, or other necessary person involved in the complaint process is unavailable because of any reason deemed to be legitimate by the campus investigator/CO designee, the timelines in this executive order will be automatically adjusted according to the period of absence. The student/applicant will receive written notification of the period of extension.

F. Timelines set forth herein may also be extended by mutual agreement. If the student/applicant does not agree or does not respond to the CSU's request for a timeline extension, the CSU will respond to the complaint/appeal within the timelines set forth in this executive order. In that event, the response will be interim in nature as it will be based upon the information available at the time. The interim response will note that the investigation/review is continuing until the CSU is satisfied its duty to respond appropriately to the allegation(s) has been discharged. The interim response should include a summary of the allegations, a description of the investigative/review process, and should also provide the student/applicant with an anticipated date of completion of the investigation/review, whereupon the final response will be issued.

G. When submitting a complaint or issuing a Level I or II response, personal delivery or certified mail shall be used. If personal delivery is used, a signature acknowledging the calendar date of delivery shall be obtained which will establish the date of filing or response. If certified mail delivery is used, the postmark shall establish the date of response or filing.

H. The CSU is not obligated under this executive order to investigate a complaint not timely filed under its provisions. Regardless, the CSU may investigate the underlying allegations of any discrimination/harassment/retaliation complaint against the CSU and/or a CSU employee if it determines the circumstances warrant investigation. Also, if the circumstances warrant, the CSU may waive the time limits and choose to process the complaint under the complaint process set forth herein.

I. The CSU is committed to academic freedom assuring that all persons may exercise rights of free expression, speech and assembly; however, those rights do not allow any form of unlawful discrimination, harassment or retaliation. More detailed information about academic freedom may be found on the American Association of University Professors website (http://www.aaup.org/AAUP/issues/AF).

Attachments:

CSU Student/Applicant for Admission Discrimination/Harassment/Retaliation Complaint Form (.pdf)

and

CSU Student/Applicant for Admission Discrimination/Harassment/Retaliation Complaint Timeline (.pdf)




Charles B. Reed Chancellor

Dated: January 27, 2010