Wash. Admin. Code § 132S-100-413

Current through Register Vol. 24-23, December 1, 2024

Section 132S-100-413 - [Effective 12/19/2024] Full adjudicative process

The student conduct board will use the following full adjudicative process to determine responsibility for serious violations which include sanctions of suspension for more than 10 days, expulsion, withholding or revocation of a degree, or loss of recognition of a student organization.

(1) Prehearing.

(a) Proceedings of the student conduct board shall be governed by the Administrative Procedure Act, chapter 34.05 RCW.

(b) The student conduct board chairperson shall serve all parties with written notice of the hearing not less than seven calendar days in advance of the hearing date. The chairperson may shorten this notice period if both parties agree, and also may continue the hearing to a later time for good cause shown. The notice must include:

(i) A copy of the student code of conduct;

(ii) The basis for jurisdiction;

(iii) The alleged violation(s);

(iv) A summary of facts underlying the allegations;

(v) The range of possible sanctions that may be imposed; and

(vi) A statement that retaliation is prohibited.

(c) The chairperson is authorized to conduct prehearing conferences and/or to make prehearing decisions concerning the extent and form of any discovery, issuance of protective decisions, and similar procedural matters.

(d) Upon request filed at least five calendar days before the hearing by any party or at the direction of the chairperson, the parties shall exchange, no later than the third day prior to the hearing, lists of potential witnesses and copies of potential exhibits that they reasonably expect to present to the student conduct board. Failure to participate in good faith in such a requested exchange may be cause for exclusion from the hearing of any witness or exhibit not disclosed, absent a showing of good cause for such failure.

(e) The chairperson may provide to the student conduct board members in advance of the hearing copies of:

(i) The student conduct officer's notification of imposition of discipline (or referral to the committee); and

(ii) The notice of appeal (or any response to referral) by the respondent. If doing so, however, the chairperson should remind the members that these "pleadings" are not evidence of any facts they may allege.

(f) The parties may agree before the hearing to designate specific exhibits as admissible without objection and, if they do so, whether the student conduct board chairperson may provide copies of these admissible exhibits to the student conduct board members before the hearing.

(g) Communications between student conduct board members and other hearing participants regarding any issue in the proceeding, other than procedural communications that are necessary to maintain an orderly process, are generally prohibited without the notice and opportunity for all parties to participate, and any improper "ex parte" communication shall be placed on the record, as further provided in RCW 34.05.455.

(h) In cases heard by the student conduct board, each party may be accompanied at the hearing by an advisor of their choice, which may be an attorney retained at the party's expense.

(i) The student conduct board will ordinarily be advised by an assistant attorney general or their designee. If the respondent and/or the complainant is represented by an attorney, the student conduct officer may be represented by an assistant attorney general.

(j) Attorneys for students must file a notice of appearance with the student conduct board chairperson at least four business days before the hearing. Failure to do so may, at the discretion of the student conduct board chairperson, result in a waiver of the attorney's ability to represent the student at the hearing, although an attorney may still serve as an advisor to the student.

(k) In cases involving allegations of sex discrimination, the complainant has a right to participate equally in any part of the disciplinary process, including appeals. Respondent and complainant both have the following rights:

(i) Notice - The college must provide a notice that includes all information required in subsection (2) of this section, and a statement that the parties are entitled to an equal opportunity to access relevant and permissible evidence, or a description of the evidence upon request.

(ii) Advisors - The complainant and respondent are both entitled to have an advisor present, who may be an attorney retained at the party's expense.

(iii) Extension of time - The chairperson may, upon written request of any party and a showing of good cause, extend the time for disclosure of witness and exhibit lists, accessing and reviewing evidence, or the hearing date, in accordance with the procedures set forth in (l)(ii) of this subsection.

(iv) Evidence - In advance of the hearing, the student conduct officer shall provide reasonable assistance to the respondent and the complainant in accessing and reviewing the investigative report and relevant and not otherwise impermissible evidence that is within the college's control.

(v) Confidentiality - The college shall take reasonable steps to prevent the unauthorized disclosure of information obtained by a party solely through the disciplinary process, which may include, but are not limited to, directives by the student conduct officer or student conduct board chairperson pertaining to the dissemination, disclosure, or access to evidence outside the context of the disciplinary hearing.

(l) In cases involving allegations of sex-based harassment, the following additional procedures apply:

(i) Notice - In addition to all information required in subsection (2) of this section, the notice must also inform the parties that:

(A) The respondent is presumed not responsible for the alleged sex-based harassment;

(B) The parties will have an opportunity to present relevant and not otherwise impermissible evidence to a trained, impartial decision maker;

(C) They may have an advisor of their choice, who may be an attorney, to assist them during the hearing;

(D) They are entitled to an equal opportunity to access relevant and not otherwise impermissible evidence in advance of the hearing; and

(E) The student code of conduct prohibits knowingly making false statements or knowingly submitting false information during a student conduct proceeding.

(ii) Extension of time - The chairperson may, upon written request of any party and a showing of good cause, extend the time for disclosure of witness and exhibit lists, accessing and reviewing evidence, or the hearing date. The party requesting an extension must do so no later than 48 hours before any date specified in the notice of hearing or by the chairperson in any prehearing conference. The written request must be served simultaneously by email to all parties and the chairperson. Any party may respond and object to the request for an extension of time no later than 24 hours after service of the request for an extension. The chairperson will serve a written decision upon all parties, to include the reasons for granting and denying any request. The chairperson's decision shall be final. In exceptional circumstances, for good cause shown, the chairperson may, in their sole discretion, grant extensions of time that are made less than 48 hours before any deadline.

(iii) Advisors - The college shall provide an advisor to the respondent and any complainant, if the respondent or complainant have not otherwise identified an advisor to assist during the hearing.

(iv) Evidence - In advance of the hearing, the student conduct officer shall provide reasonable assistance to the respondent and complainant in accessing and reviewing the investigative report and relevant and not otherwise impermissible evidence that is within the college's control.

(v) Confidentiality - The college shall take reasonable steps to prevent the unauthorized disclosure of information obtained by a party solely through the disciplinary process, which may include, but are not limited to, directives by the student conduct officer or chairperson issuing directives pertaining to the dissemination, disclosure, or access to evidence outside the context of the disciplinary hearing.

(vi) Separate locations - The chairperson may, or upon the request of any party, must conduct the hearing with the parties physically present in separate locations, with technology enabling the student conduct board and parties to simultaneously see and hear the party or the witness while that person is speaking.

(vii) Withdrawal of complaint - If a complainant wants to voluntarily withdraw a complaint, they must provide notice to the college in writing before a case can be dismissed.

(2) Presentation of evidence.

(a) Upon the failure of any party to attend or participate in a hearing, the student conduct board may either:

(i) Proceed with the hearing and issuance of its decision; or

(ii) Serve a decision of default in accordance with RCW 34.05.440.

(b) The hearing will ordinarily be closed to the public. However, if all parties agree on the record that some or all of the proceedings be open, the chairperson shall determine any extent to which the hearing will be open. If any person disrupts the proceedings, the chairperson may exclude that person from the hearing room.

(c) The chairperson shall cause the hearing to be recorded by a method that they select, in accordance with RCW 34.05.449. That recording, or a copy, shall be made available to any party upon request. The chairperson shall ensure maintenance of the record of the proceeding that is required by RCW 34.05.476, which shall also be available upon request for inspection and copying by any party. Other recordings shall also be permitted, in accordance with WAC 10-08-190.

(d) The chairperson shall preside at the hearing and decide procedural questions that arise during the hearing, except as overridden by majority vote of the student conduct board.

(e) The student conduct officer (unless represented by an assistant attorney general) shall present the college's case.

(f) All testimony shall be given under oath or affirmation. Except as otherwise provided in this section, evidence shall be admitted or excluded in accordance with RCW 34.05.452.

(g) In cases involving allegations of sex-based harassment, the complainant and respondent may not directly question one another or other witnesses. In such circumstances, the chairperson will determine whether questions will be submitted to the chairperson, who will then ask questions of the parties and witnesses, or allow questions to be asked directly of any party or witnesses by a party's attorney or advisor. The chairperson may revise this process if, in the chairperson's determination, the questioning by any party, attorney, or advisor, becomes contentious or harassing.

(i) Prior to any questions being posed to a party or witness, the chairperson must determine whether the question is relevant and not otherwise impermissible; and must explain any decision to exclude a question that is deemed not relevant, or is otherwise impermissible. The chairperson will retain for the record copies of any written questions provided by any party.

(ii) The chairperson must not permit questions that are unclear or harassing; but shall give the party an opportunity to clarify or revise such a question.

(iii) The chairperson shall exclude and the student conduct board shall not consider legally privileged information unless the individual holding the privilege has waived the privilege. Privileged information includes, but is not limited to, information protected by the following:

(A) Spousal/domestic partner privilege;

(B) Attorney-client communications and attorney work product privilege;

(C) Clergy privileges;

(D) Medical or mental health providers and counselor privileges;

(E) Sexual assault and domestic violence advocate privileges; and

(F) Other legal privileges set forth in RCW 5.60.060 or federal law.

(iv) The chairperson shall exclude and the student conduct board shall not consider questions or evidence that relate to the complainant's sexual interests or prior sexual conduct, unless such question or evidence is offered to prove someone other than the respondent committed the alleged conduct, or is evidence of specific instances of prior sexual conduct with the respondent that is offered to prove consent to the alleged sex-based harassment. The fact of prior consensual sexual conduct between the complainant and respondent does not by itself demonstrate or imply the complainant's consent to the alleged sex-based harassment or preclude determination that sex-based harassment occurred.

(v) The student conduct board may choose to place less or no weight upon statements by a party or witness who refuses to respond to questions deemed relevant and not impermissible. The student conduct board must not draw an inference about whether sex-based harassment occurred based solely on a party's or witness's refusal to respond to such questions.

(h) Except in cases involving allegations of sex-based harassment, the chairperson has the discretion to determine whether a respondent may directly question any witnesses; and if not, to determine whether questions must be submitted to the chairperson to be asked of the witnesses, or to allow questions to be asked by an attorney or advisor for the respondent.

(3) Initial decision.

(a) At the conclusion of the hearing, the committee chair shall permit the parties to make closing arguments in whatever form, written or verbal, the student conduct board wishes to receive them. The student conduct board also may permit each party to propose findings, conclusions, and/or a proposed decision for its consideration.

(b) Within 20 calendar days following the conclusion of the hearing or the student conduct board's receipt of closing arguments, the student conduct board shall issue a decision in accordance with RCW 34.05.461 and WAC 10-08-210. The decision shall include findings on all material issues of fact and conclusions on all material issues of law, including which, if any, provisions of the student code of conduct were violated. Any findings based substantially on the credibility of evidence or the demeanor of witnesses shall be so identified and explained.

(c) The student conduct board's decision shall also include a determination of appropriate sanctions, if any. If the matter was referred to the committee by the student conduct officer, the student conduct board shall identify and impose disciplinary sanction(s) or conditions (if any), as authorized in the student code of conduct. If the matter is an appeal by a party, the student conduct board may affirm, reverse, or modify the disciplinary sanction and/or conditions imposed by the student conduct officer and/or impose additional disciplinary sanction(s) or conditions as authorized herein.

(d) The chairperson shall cause copies of its decision to be served on the parties and their attorney, if any. The notice will inform all parties of their appeal rights. The chairperson shall also promptly transmit a copy of the decision and the record of the student conduct board's proceedings to the president.

(e) In cases involving sex-based harassment, the initial decision shall be served on all parties simultaneously, as well as the Title IX coordinator.

(4) Review of initial decision.

(a) Any party, including a complainant in sex-based harassment cases, may appeal the student conduct board's decision to the president by filing a written appeal with the president's office within 21 calendar days of service of the student conduct board's decision. Failure to file a timely appeal constitutes a waiver of the right and the decision shall be deemed final.

(b) The written appeal must identify the specific findings of fact and/or conclusions of law in the decision that are challenged and must contain argument why the appeal should be granted. Appeals may be based upon, but are not limited to:

(i) Procedural irregularity that would change the outcome;

(ii) New evidence that would change the outcome and that was not reasonably available when the initial decision was made; and

(iii) The investigator, decision maker, or Title IX coordinator had a conflict of interest or bias for or against a respondent or complainant individually or respondents or complainants generally.

(c) Upon receiving a timely appeal, the president or a designee will promptly serve a copy of the appeal on all nonappealing parties, who will have 10 business days from the date of service to submit a written response addressing the issues raised in the appeal to the president or a designee, and serve it on all parties. Failure to file a timely response constitutes a waiver of the right to participate in the appeal.

(d) If necessary to aid review, the president may ask for additional briefing from the parties on issues raised on appeal. The president's review shall be restricted to the hearing record made before the student conduct board and will normally be limited to a review of those issues and arguments raised in the appeal.

(e) The president shall serve a written decision on all parties and their attorneys, if any, within 20 calendar days after receipt of the appeal. The president's decision shall be final and subject to judicial review pursuant to chapter 34.05 RCW, Part V.

(f) In cases involving allegations of sex-based harassment, the president's decision must be served simultaneously on the complainant, respondent, and Title IX coordinator.

(g) The president shall not engage in an ex parte communication with any of the parties regarding an appeal.

Wash. Admin. Code § 132S-100-413

Adopted by WSR 20-03-046, Filed 1/9/2020, effective 2/9/2020

Amended by WSR 20-23-031, Filed 11/10/2020, effective 12/11/2020

Amended by WSR 24-23-066, Filed 11/18/2024, effective 12/19/2024