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Division of Student Affairs

Student Conduct Process Task Force Report

JANUARY 22, 2018 SUBMITTED BY: JIM MOHR AND NANCY YOULDEN, CO-CHAIRS

INTRODUCTION

In fall 2016, President Schulz appointed a 15-member task force to complete a comprehensive review of the student conduct process.

As part of the task force process an online survey (PDF) was created to solicit comments from students, faculty, alumni, and the general public. The committee divided into subcommittees to focus on the following areas: the hearing process, the Lyon’s O’Dowd report, best practices, group accountability, and online survey results

The task force worked through the 2016-17 academic year with plans to complete their work by the end of spring term 2017. However, due to a number of factors, the task force was reassembled in fall 2017. There were a few changes to the task force membership, including the appointment of co-chairs, to lead the 17-member group to complete its work of providing the President with recommendations. Based on feedback from members of the task force, the President extended the task force deadline from December 2017 to January 2018. The final Student Conduct Process Task Force meeting was held on January 12 at WSU Spokane.

STUDENT CONDUCT PROCESS TASK FORCE MEMBERSHIP

  • Co-Chair, Jim Mohr, Vice Chancellor for Student Affairs, WSU Spokane
  • Co-Chair, Nancy Youlden, Vice Chancellor for Student Affairs and Enrollment, WSU Vancouver
  • Ray Acuna-Luna, Director, Cougs Rise
  • Manuel Acevedo, Director, Office of Multicultural Student Services
  • Kakali Chakrabarti, former Senator, Graduate and Professional Student Association
  • Tyler O’Brien, President, Interfraternity Council
  • Garrett Kalt, Vice President, Associated Students of Washington State University
  • Mike King, WSU Alumnus, President, WSU Alumni Association
  • Kathy MacKay, Interim Assistant Vice President/Dean of Students, Student Affairs
  • Chris Meiers, Vice Chancellor for Enrollment Management and Student Affairs, WSU Tri- Cities
  • Grant Norton, Dean, Honors College and Professor, School of Mechanical and Materials Engineering
  • Don Pelo, WSU Alumnus, Member, WSU Foundation Executive Committee
  • Paul Pitre, Chancellor, WSU Everett
  • John Wong, Associate Professor, Sport Management
  • Jane Yung, WSU Alumna, Vice President, WSU Alumni Association
  • Bill Gardner, Chief of Police, Associate Vice President and Executive Director of Public Safety (Ex-Officio)
  • Anne McCoy, Deputy Director and Senior Women Administrator, Athletics (Ex-Officio)

Student Conduct Process Task Force Members 2016-17:

All of the above members, except Kathy MacKay and Tyler O’Brien, served with the following individuals:

  • Craig Hemmens, Chair, Professor, Department of Criminal Justice and Criminology
  • Taylor Christenson, former President, Associated Students of Washington State University
  • Kim Anderson, Executive Director, Office of Equal Opportunity (Ex-Officio)
  • Danielle Hess, Senior Assistant Attorney General and Division Chief, Office of the Attorney General (Ex-Officio)
  • Melynda Huskey, former Vice President, Student Affairs (Ex-Officio)
  • Mary Jo Gonzales, Vice President, Student Affairs (Ex-Officio)

RECOMMENDATIONS

The task force prepared a list of 32 recommendations which are grouped by theme. Those themes are: Student Notifications, Conduct and Appeals Board Structure and Member Training, Conduct Process, Review of Policies, Educational Outreach to Campus Community, and Assessment/Evaluation Strategies.

The complete recommendations include:

Student Notifications
  1. Students must be educated and informed about their rights before and during the initial meeting, and those rights will be protected during the student conduct process (more information provided through web, student handbook).
  2. Key information shall be provided to students before any student conduct proceeding begins. The information shall include: resources and staff appointed to students going through the conduct process, a student conduct handbook and other information provided to students detailing, in writing, their rights in the process, a clear explanation of what to expect during the process, a list of legal resources, presumption of “not responsible” (not just for formal hearings, but all proceedings), the right to not self- incriminate without negative inference, and notice of a students’ right to bring a prepared written statement or argument to the initial meeting.
  3. Clearly state throughout the process students have a right to not self-incriminate without negative inference.
  4. In the notification letter include clear language that informs students that a brief adjudication process may turn into a full adjudication depending on information that is revealed during the If the brief adjudication process is going to change, students must be informed in their meeting of the change and it shall be documented in writing by both parties.
  5. The tone of communication and information provided shall be affirmative, supportive and clear for students. Overall improvement of communication and information throughout the student conduct process.
  6. Students will be expected to uphold and be accountable to standards of conduct.
Conduct and Appeals Board Structure and Member Training
  1. Insert the following language about training into the code.
    1. Board members and presiding officers. Conduct board members, appeals board members, and presiding officers shall not participate in any student conduct matter until, at a minimum, training in the following areas has been completed:
      1. cultural competency and implicit bias;
      2. student development and student conduct philosophies, including the educational component of the student conduct process;
      3. identifying bias against others or student organizations;
      4. conflict of interest;
      5. sexual assault and gender-based violence;
      6. alcohol and drug prevention;
      7. due process and burden of proof in student conduct matters; and
      8. sanctioning principles and
    2. Conduct officers. Conduct officers shall not participate in any student conduct matter until, at a minimum, training in the following areas has been completed:
      1. alternative dispute resolution;
      2. restorative justice; and
      3. all training required of board
    3. Renewal of training. Conduct officers, board members, and presiding officers shall have trainings refreshed on an annual basis.
  2. Student Conduct Board members are able to serve a maximum of 2 four-year terms with a two-year break between terms; members must apply to serve for each term. Membership shall have staggered terms. The board shall be seven members with quorum of five; students are a majority of the Board.
  3. Establish term limits for the Conduct Board chair.
  4. The Student Conduct Board pool will have representatives (faculty, staff and students) from all WSU campuses.
  5. The WSU President shall appoint all Student Conduct Board members through an established recruitment and application process. Recruitment shall include outreach to multiple University constituencies such as students, faculty, administrators, and staff. The process for recruiting and applying shall be kept separate from the staff responsible for bringing forth charges, in order to maintain fairness and objectivity of the process.
  6. Names of all Board members shall be shared at least ten days in advance; any party can request a board member be recused.
    1. Conduct Board All parties shall be notified of the names of Conduct Board members assigned to their case no later than ten days prior to the hearing date, unless the parties agree to a shorter period. Any party has the right to request the recusal of one member of the Conduct Board, without providing a reason. For any additional requests, the party must demonstrate good cause. All requests must be made in writing no later than three days prior to the hearing date. The Presiding Officer is responsible for granting or denying challenges for cause. Reasons for removal may not violate any provision of law or WSU policy, including WSU’s Policy Prohibiting Discrimination, Sexual Harassment, and Sexual Misconduct (EP 15).
    2. Presiding Officer. Requests for recusal of the Presiding Officer are governed by the Model Rules of Procedure, RCW 08.050(2).
    3. Conduct Officers and Appeals Board Members. A party requesting recusal of a conduct officer or appeals board member must demonstrate good cause. The request must be directed to the vice president for student affairs or designee in writing no later than five days prior to the date of the conduct officer hearing or appeals board meeting.
    4. Self-Recusal. Conduct officers, members of the conduct board, and members of the appeals board shall be trained in conflict of interest and bias against groups of individuals or organizations. For any matter in which they are participating, if they identify a potential conflict of interest, they must promptly notify the vice president for student affairs or designee and the Presiding Officer, if applicable, and recuse themselves if, after consultation, an actual conflict is determined to If a conflict exists that is not considered substantial to cause the person to be removed, all parties shall be informed of the conflict.
  7. Students will have access to conduct advisors, for brief and full hearings, who can provide both procedural and substantive guidance. In full adjudicative hearings, students will also have the right to retain and be represented by legal counsel.
  8. Appeals board shall consist of 5 members requiring 3 for quorum; a majority shall be students. Terms and composition are the same as the conduct board.
  9. Appeals Board must consider the appeal and respond to student appeals within the 21- day period. Failure to respond cannot serve as an indication that an appeal was rejected.
  10. Encourage and incentivize faculty and staff for service related to participation in the conduct process.
Conduct Process
  1. Standardize the use of ‘business days’ in all timelines (in place of academic days)
  2. Full adjudication for serious cases (e.g. expulsion, suspension, and loss of recognition) will be presided over by an administrative law
  3. All students and recognized student organizations are presumed ‘not responsible’ for pending charges. Any charge must be proven by a preponderance of evidence, meaning that it is more likely than not that the violation occurred. As part of the university’s opening statement in any conduct board hearing, the university’s representative shall read a statement to this effect. Decisions regarding responsibility and sanctions are made by a majority of the conduct board hearing the matter, except that any sanction of suspension of more than ten days, expulsion, revocation of degree, or loss of recognition of a student organization requires a supermajority consisting of no more than one ‘no’ vote.
  4. In appropriate brief adjudication cases, the student conduct officer will consider whether alternative dispute resolution may be suitable to resolve a matter. Both parties must must agree.
  5. Add in a section on amnesty and good Samaritan policy to include, “A conduct officer may elect not to initiate a conduct proceeding regarding alcohol or other drug violations against a student who, while in the course of helping another student seek medical assistance, admits to the unlawful possession or use of alcohol or drugs, provided that the possession was for personal consumption and the use did not place the health or safety of any other person at risk. In addition, a conduct proceeding will not be initiated against a complainant or other participating witnesses who admit to the possession or use of alcohol or drugs in connection with a report under this policy. ”
  6. Replace current language in the evidence section that deals with sexual history with the following language, “The sexual history of a complainant will not be admissible in a student conduct proceeding except to explain the nature of a relationship between the complainant(s) and respondent(s) or to explain the order of events leading up to an alleged act of misconduct. The sexual history of a complainant may not be used as evidence to assess the credibility of the complainant. The sexual history of the complainant, subsequent or prior to an alleged incidence of sexual misconduct, cannot be used to determine if a sexual interaction was ”was consensual.”
  7. For group accountability, WAC language to read, “A registered, recognized, or affiliated student organization may be held accountable for the behavior of its members when it is clear that a violation was overtly condoned by the organization or its officers. ”
  8. Students shall receive at least ten business days between notice of hearing and the initial meetings with the conduct officer. Students may, in writing, choose to meet earlier. Special consideration for finals, holidays, and breaks shall be considered when determining the date of notice and the and the hearing.
Review of Policies
  1. In WAC 504-26-602 Periodic Review, add in language that edits or changes of the Standards of Conduct will be reviewed by SGC (Student Government Council).
Educational Outreach to Campus Community
  1. Sanctioning guidelines will be published online that explain in plain language the types of sanctions students may face for a particular violation of community standards and the factors used to determine sanctions.
  2. At the end of each academic year, the Office of Student Conduct will provide an annual report to the vice president of student affairs, which shall include, at a minimum, a numerical breakdown of the types of matters handled and the sanction imposed. The vice president shall make the report publicly available, provided all personally identifiable or readily ascertainable student information has been been removed.
  3. Create videos to educate students on the conduct process.
  4. Develop and distribute online a flow chart of the student conduct process, including what can happen at each stage of the process using communication as noted in #6.
  5. Be more intentional in promoting and highlighting the educational nature of the process to students and the campus, and ensure all levels of communication are student- friendly.
Assessment/Evaluation Strategies
  1. Conduct post-hearing survey/evaluation with parties and compile
  2. Appoint a president’s conduct advisory board consisting of students, faculty, and staff that reviews issues, examines demographic data of who is being referred, and provide recommendations for changes to the code as

DISSENTING COMMENTS

Much of the task force work involved lengthy discussion on key topics with ultimate consensus on specific recommendations. In preparation for difficult topics where consensus may not be reached, a voting protocol was established. In addition, the task force decided it would be important to include dissenting opinions in the report on those issues where the group could not come to agreement. There were dissenting opinions on both group accountability and representation during brief adjudication and those perspectives are summarized below.

Group Accountability

Four members of the task force believe student organizations charged under group accountability should be afforded a full adjudication for all violations, unless the student organization requests otherwise. First, they believe the property interests at stake can be significant even for sanctions other than “loss of recognition” (for example, loss of revenue or membership dues, ability to participate in recruitment, loss of financial investment by alumni or others, effect on property investments, reputational harm, etc.). Second, because the actions of a few can affect many students not involved with the conduct at issue, a full adjudication provides additional due process protections. Third, with the University’s current practice of not allowing legal representatives to speak in a brief adjudicative process, but given the potential property interests at stake even in a brief adjudication, a full adjudication affords the student organization an opportunity to have full legal representation. Dissenting members believe the loss of recognition sanction should be available only for the most egregious conduct. They do not believe all conduct, including low-level violations, should be able to result in the loss of recognition.

Representation during brief adjudication

Five members of the task force wanted to allow an advisor or representative to have the right to speak on behalf of the student during brief adjudication proceedings. As the University’s conduct process allows information gathered in the brief adjudicative process to be used as the basis for referring matters to full adjudication for expulsion or loss of recognition, the dissenting members believe prohibiting advisors or representatives from speaking may violate the State’s Administrative Procedures Act provision giving parties the right to be represented by counsel. The dissenting members believe the right to be represented fully by counsel should apply to all aspects of a conduct proceeding.

Concerns were raised about students not understanding their rights and incriminating themselves, for students with language barriers, and a student being without legal counsel when the University may have legal representation.

TIMELINE/NEXT STEPS

In February 2018, Student Conduct Information Sessions will be held at all WSU campuses, with an online video stream option, and a session in Seattle for alumni. The information sessions will be facilitated by co-chairs, Mohr and Youlden, and Mary Jo Gonzales, Vice President for Student Affairs, will also participate.

In early spring 2018, the accepted recommendations will be converted to Washington Administrative Code (WAC’s). These preliminary WAC’s will follow the standard process for changes in WAC with opportunities for public comment.

The Vice President for Student Affairs will send notification of future action items to the Board of Regents for their March meeting and will submit write-up materials for an action item for the May Regent’s meeting.  If the Board of Regents approve the student conduct recommendations, the new WAC’s will go into effect in Fall 2018.