Wash. Admin. Code § 132W-115-110 - Procedures for resolving disciplinary violations
(1) The dean of student services is
responsible for initiating disciplinary proceedings. The dean of student
services may delegate this responsibility to members of his/her staff, and
he/she may also establish committees or other hearing bodies to advise or act
for him/her in disciplinary matters.
(2) In order that any informality in
disciplinary proceedings not mislead a student as to the seriousness of the
matter under consideration, the student involved shall be informed at the
initial conference or hearing of the sanctions that may be involved.
(3) Upon initiation of formal disciplinary
proceedings, the dean of student services or designee shall provide written
notification to the student, either in person or by delivery via regular mail
to the student's last known address, specifying the violations with which the
student is charged. The dean of student services or designee shall set a time
and place for meeting with the student to inform the student of the charges,
the evidence supporting the charges, and to allow the student an opportunity to
be heard regarding the charges and evidence.
(4) After considering the evidence in a case
and interviewing the student or students involved, the dean of student services
or designee may take any of the following actions:
(a) Terminate the proceeding, exonerating the
student or students;
(b) Dismiss
the case after whatever counseling and advice may be appropriate; not subject
to the appeal rights provided in this code;
(c) Dismiss the case after verbally
admonishing the student, not subject to the appeal rights provided in this
code;
(d) Direct the parties to
make a reasonable attempt to achieve a mediated settlement;
(e) Impose disciplinary sanctions directly,
subject to the student's right of appeal as described in this chapter. The
student shall be notified in writing of the action taken except that
disciplinary warnings may be given verbally;
(f) Refer the matter to the academic
regulations committee requesting their recommendation for appropriate action.
The student shall be notified in writing that the matter has been referred to
the academic regulations committee.
(5) This section shall not be construed as
preventing the appropriate official from summarily suspending a
student.
(6) If the dean of student
services or his or her designee(s) has cause to believe that any student:
(a) Has committed a felony; or
(b) Has violated any provision of this
chapter; and
(c) Presents an
imminent danger either to himself or herself, other persons on the college
campus or to the educational process; that student shall be summarily suspended
and shall be notified by certified and regular mail at the student's last known
address, or shall be personally served.
Summary suspension is appropriate only where (c) of this subsection can be shown, either alone or in conjunction with (a) or (b) of this subsection.
(7)
During the summary suspension period, the suspended student shall not enter
campus other than to meet with the dean of student services or to attend the
hearing. However, the dean of student services or the college president may
grant the student special permission to enter a campus for the express purpose
of meeting with faculty, staff, or students in preparation for a probable cause
hearing.
(8) When the president or
his/her designee exercises the authority to summarily suspend a student, he/she
shall cause notice thereof to be served upon that student by registered or
certified mail at the student's last known address, or by causing personal
service of such notice upon that student. The notice shall be entitled "notice
of summary suspension proceedings" and shall state:
(a) The charges against the student including
reference to the provisions of the student code or the law involved;
and
(b) That the student charged
must appear before the designated disciplinary officer at a time specified in
the notice for a hearing as to whether probable cause exists to continue the
summary suspension. The hearing shall be held as soon as practicable after the
summary suspension.
(9)
The summary suspension hearing shall be considered an emergency adjudicative
proceeding. The proceeding must be conducted as soon as practicable with the
dean of student services or designee presiding. At the summary suspension
hearing, the dean of student services shall determine whether there is probable
cause to believe that continued suspension is necessary and/or whether some
other disciplinary action is appropriate.
(10) If the dean of student services,
following the conclusion of the summary suspension proceedings, finds that
there is probable cause to believe that:
(a)
The student against whom specific violations of law or of provisions of this
chapter are alleged has committed one or more of such violations; and
(b) That summary suspension of said student
is necessary for the protection of the student, other students or persons on
college facilities, college property, the educational process, or to restore
order to the campus; and
(c) Such
violation or violations of the law or of provisions of this chapter constitute
grounds for disciplinary action, then the dean of student services may, with
the written approval of the president, continue to suspend such student from
the college and may impose any other disciplinary action as
appropriate.
(11) A
student who is suspended or otherwise disciplined pursuant to the above rules
shall be provided with a written copy of the dean of student services' findings
of fact and conclusions, as expressly concurred in by the president, which
constituted probable cause to believe that the conditions for summary
suspension existed. The student suspended pursuant to the authority of this
rule shall be served a copy of the notice of suspension by personal service or
by registered mail to said student's last known address within three working
days following the conclusion of the summary suspension hearing. The notice of
suspension shall state the duration of the suspension or nature of other
disciplinary action and the conditions under which the suspension may be
terminated.
(12) The dean of
student services is authorized to enforce the suspension of the summarily
suspended student in the event the student has been served pursuant to the
notice requirement and fails to appear at the time designated for the summary
suspension proceeding.
(13) Any
student aggrieved by an order issued at the summary suspension proceeding may
appeal to the academic regulations committee. No such appeal shall be
entertained, however, unless:
(a) The student
has first appeared at the student hearing in accordance with subsection (9) of
this section;
(b) The student has
been officially notified of the outcome of the hearing;
(c) Summary suspension or other disciplinary
sanction has been upheld; and
(14) Sexual misconduct
proceedings. Both the respondent and the complainant in cases involving
allegations of sexual misconduct shall be provided the same procedural rights
to participate in student discipline matters, including the right to
participate in the initial disciplinary decision-making process and to appeal
any disciplinary decision.
(15)
Order of precedence. Both the respondent and the complainant in cases involving
allegations of sexual misconduct shall be provided the same procedural rights
to participate in student discipline matters, including the right to
participate in the initial disciplinary decision-making process and to appeal
any disciplinary decision. This procedure applies to allegations of sexual
harassment subject to Title IX jurisdiction pursuant to regulations promulgated
by the United States Department of Education. See 34 C.F.R. Part 106 . To the
extent these hearing procedures conflict with Wenatchee Valley College's
standard disciplinary procedures in this section.
(16) Prohibited conduct under Title IX.
Pursuant to RCW 28B.50.140(13) and Title IX of the Education Amendments Act of
1972, 20 U.S.C. Sec. 1681, the college may impose disciplinary sanctions
against a student who commits, attempts to commit, or aids, abets, incites,
encourages, or assists another person to commit, an act(s) of "sexual
harassment."
For purposes of this procedure, "sexual harassment" encompasses the following conduct:
(a) Quid pro quo
harassment. A college employee conditioning the provision of an aid, benefit,
or service of the college on an individual's participation in unwelcome sexual
conduct.
(b) Hostile environment.
Unwelcome conduct that a reasonable person would find to be so severe,
pervasive, and objectively offensive that it effectively denies a person equal
access to the college's educational programs or activities, or
employment.
(c) Sexual assault.
Sexual assault includes the following conduct:
(i) Nonconsensual sexual intercourse. Any
actual or attempted sexual intercourse (anal, oral, or vaginal), however
slight, with any object or body part, by a person upon another person, that is
without consent and/or by force. Sexual intercourse includes anal or vaginal
penetration by a penis, tongue, finger, or object, or oral copulation by mouth
to genital contact or genital to mouth contact.
(ii) Nonconsensual sexual contact. Any actual
or attempted sexual touching, however slight, with any body part or object, by
a person upon another person that is without consent and/or by force. Sexual
touching includes any bodily contact with the breasts, groin, mouth, or other
bodily orifice of another individual, or any other bodily contact in a sexual
manner.
(iii) Incest. Sexual
intercourse or sexual contact with a person known to be related to them, either
legitimately or illegitimately, as an ancestor, descendant, brother, or sister
of either wholly or half related. Descendant includes stepchildren and adopted
children under the age of eighteen.
(iv) Statutory rape. Consensual sexual
intercourse between someone who is eighteen years of age or older and someone
who is under the age of sixteen.
(d) Domestic violence. Physical violence,
bodily injury, assault, the infliction of fear of imminent physical harm,
sexual assault, or stalking committed by a person with whom the victim shares a
child in common, by a person who is cohabitating with or has cohabitated with
the victim as a spouse, by a person similarly situated to a spouse of the
victim under the domestic or family violence laws of the state of Washington,
or by any other person against an adult or youth victim who is protected from
that person's acts under the domestic or family violence laws of the state of
Washington, RCW 26.50.010.
(e)
Dating violence. Physical violence, bodily injury, assault, the infliction of
fear of imminent physical harm, sexual assault, or stalking committed by a
person:
(i) Who is or has been in a social
relationship of a romantic or intimate nature with the victim; and
(ii) Where the existence of such a
relationship shall be determined based on a consideration of the following
factors:
(A) The length of the
relationship;
(B) The type of
relationship; and
(C) The frequency
of interaction between the persons involved in the relationship.
(f) Stalking. Engaging
in a course of conduct directed at a specific person that would cause a
reasonable person to fear for their safety or the safety of others, or suffer
substantial emotional distress.
(17) Title IX jurisdiction.
(a) This procedure applies only if the
alleged misconduct:
(i) Occurred in the United
States;
(ii) Occurred during a
college educational program or activity; and
(iii) Meets the definition of sexual
harassment as that term is defined in this procedure.
(b) For purposes of this procedure, an
"educational program or activity" is defined as locations, events, or
circumstances over which the college exercised substantial control over both
the respondent and the context in which the alleged sexual harassment occurred.
This definition includes any building owned or controlled by a student
organization that is officially recognized by Wenatchee Valley
College.
(c) Proceedings under this
procedure must be dismissed if the decision maker determines that one or all of
the requirements of subsection (1)(a) through (c) of this section have not been
met. Dismissal under this procedure does not prohibit the college from pursuing
other disciplinary action based on allegations that the respondent violated
other provisions of the college's student conduct code, WAC
132W-115-080.
(d) If the student
conduct officer determines the facts in the investigation report are not
sufficient to support Title IX jurisdiction and/or pursuit of a Title IX
violation, the student conduct officer will issue a notice of dismissal in
whole or part to both parties explaining why some or all of the Title IX claims
have been dismissed.
(18) Initiation of discipline.
(a) Upon receiving the Title IX investigation
report from the Title IX coordinator, the student conduct officer will
independently review the report to determine whether there are sufficient
grounds to pursue a disciplinary action against the respondent for engaging in
prohibited conduct under Title IX.
(b) If the student conduct officer determines
that there are sufficient grounds to proceed under these procedures, the
student conduct officer will initiate a Title IX disciplinary proceeding by
filing a written disciplinary notice with the chair of the student conduct
committee and serving the notice on the respondent and the complainant, and
their respective advisors. The notice must:
(i) Set forth the basis for Title IX
jurisdiction;
(ii) Identify the
alleged Title IX violation(s);
(iii) Set forth the facts underlying the
allegation(s);
(iv) Identify the
range of possible sanctions that may be imposed if the respondent is found
responsible for the alleged violation(s);
(v) Explain that the parties are entitled to
be accompanied by their chosen advisors during the hearing and that:
(A) The advisors will be responsible for
questioning all witnesses on the party's behalf;
(B) An advisor may be an attorney;
and
(C) The college will appoint
the party an advisor of the college's choosing at no cost to the party, if the
party fails to do so.
(c) Explain that if a party fails to appear
at the hearing, a decision of responsibility may be made in their
absence.
(19) Prehearing
procedure.
(a) Upon receiving the disciplinary
notice, the chair of the student conduct committee will send a hearing notice
to all parties, in compliance with WAC 132W-115-010. In no event will the
hearing date be set less than ten days after the Title IX coordinator provided
the final investigation report to the parties.
(b) A party may choose to have an attorney
serve as their advisor at the party's own expense. This right will be waived
unless, at least five days before the hearing, the attorney files a notice of
appearance with the committee chair with copies to all parties and the student
conduct officer.
(c) In preparation
for the hearing, the parties will have equal access to all evidence gathered by
the investigator during the investigation, regardless of whether the college
intends to offer the evidence at the hearing.
(20) Rights of parties.
(a) The college's student conduct procedures,
WAC 132W-115-110 and this procedure shall apply equally to all
parties.
(b) The college bears the
burden of offering and presenting sufficient testimony and evidence to
establish that the respondent is responsible for a Title IX violation by a
preponderance of the evidence.
(c)
The respondent will be presumed not responsible until such time as the
disciplinary process has been finally resolved.
(d) During the hearing, each party shall be
represented by an advisor. The parties are entitled to an advisor of their own
choosing and the advisor may be an attorney. If a party does not choose an
advisor, then the Title IX coordinator will appoint an advisor of the college's
choosing on the party's behalf at no expense to the party.
(21) Evidence. The introduction and
consideration of evidence during the hearing is subject to the following
procedures and restrictions:
(a) Relevance:
The committee chair shall review all questions for relevance and shall explain
on the record their reasons for excluding any question based on lack of
relevance.
(b) Relevance means that
information elicited by the question makes facts in dispute more or less likely
to be true.
(c) Questions or
evidence about a complainant's sexual predisposition or prior sexual behavior
are not relevant and must be excluded, unless such question or evidence:
(i) Is asked or offered to prove someone
other than the respondent committed the alleged misconduct; or
(ii) Concerns specific incidents of prior
sexual behavior between the complainant and the respondent, which are asked or
offered on the issue of consent.
(d) Cross-examination required: If a party or
witness does not submit to cross-examination during the live hearing, the
committee must not rely on any statement by that party or witness in reaching a
determination of responsibility.
(e) No negative inference: The committee may
not make an inference regarding responsibility solely on a witness's or party's
absence from the hearing or refusal to answer questions.
(f) Privileged evidence: The committee shall
not consider legally privileged information unless the holder has effectively
waived the privilege. Privileged information includes, but is not limited to,
information protected by the following:
(i)
Spousal/domestic partner privilege;
(ii) Attorney-client and attorney work
product privileges;
(iii)
Privileges applicable to members of the clergy and priests;
(iv) Privileges applicable to medical
providers, mental health therapists, and counselors;
(v) Privileges applicable to sexual assault
and domestic violence advocates; and
(vi) Other legal privileges identified in RCW
5.60.060.
(22) Initial order.
(a) In addition to complying with this
section, the student conduct committee will be responsible for conferring and
drafting an initial order that:
(i) Identifies
the allegations of sexual harassment;
(ii) Describes the grievance and disciplinary
procedures, starting with filing of the formal complaint through the
determination of responsibility, including notices to parties, interviews with
witnesses and parties, site visits, methods used to gather evidence, and
hearings held;
(iii) Makes findings
of fact supporting the determination of responsibility;
(iv) Reaches conclusions as to whether the
facts establish whether the respondent is responsible for engaging in sexual
harassment in violation of Title IX;
(v) Contains a statement of, and rationale
for, the committee's determination of responsibility for each
allegation;
(vi) Describes any
disciplinary sanction or conditions imposed against the respondent, if
any;
(vii) Describes to what
extent, if any, complainant is entitled to remedies designed to restore or
preserve complainant's equal access to the college's education programs or
activities; and
(viii) Describes
the process for appealing the initial order to the college president.
(b) The committee chair will serve
the initial order on the parties simultaneously.
(23) Appeals.
(a) The parties shall have the right to
appeal from the initial order's determination of responsibility and/or
dismissal of an allegation(s) of sexual harassment in a formal complaint. The
right to appeal will be subject to the same procedures and time frames set
forth in this section.
(b) The
president or their delegate will determine whether the grounds for appeal have
merit, provide the rationale for this conclusion, and state whether the
disciplinary sanction and condition(s) imposed in the initial order are
affirmed, vacated, or amended, and, if amended, set forth any new disciplinary
sanction and/or condition(s).
(c)
President's office shall serve the final decision on the parties
simultaneously.
Notes
Statutory Authority: Chapter 28B.50 RCW. 01-12-015, § 132W-115-110, filed 5/25/01, effective 6/25/01.
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