Tenn. Comp. R. & Regs. 0240-10-06-.09

Current through October 22, 2024

Section 0240-10-06-.09 - PROCESS: HEARINGS

(1) Hearings. A Hearing is a process through which a Respondent has a right to contest allegations of misconduct and/or the sanctions proposed by OSA by presenting information (including, without limitation, witnesses) to a decision maker other than the University employee(s) who conducted the investigation and/or Educational Conference.

(2) Rights to a Hearing. In every case, the Respondent has the right to resolve allegations of misconduct and/or proposed sanctions through a Student Conduct Board (SCB) Hearing.

(3) How to Request a Hearing. A Formal Hearing may be requested by the Respondent only in writing using the form(s) approved by OSA. Orally requesting a Hearing shall not constitute a valid request for a Hearing.

(4) Consequences of Failing to Timely Elect a Hearing. If the Respondent fails to elect a Hearing within five (5) business days of OSA transmitting a Notice of Allegations to the Respondent, then the Respondent waives all rights to a Hearing, and OSA has the discretion to deem the Respondent to have accepted OSA's determination of responsibility for misconduct and may impose sanction(s) deemed appropriate by OSA (unless OSA extends the time for the Respondent to request a Formal Hearing for good cause). If OSA extends the time for the Respondent to request a Hearing and the Respondent fails to elect a Hearing within the additional time granted by OSA, then the Respondent waives all rights to a Hearing, and OSA has the discretion to deem the Respondent to have accepted OSA's determination of responsibility for misconduct and may impose sanction(s) deemed appropriate by OSA.

(5) Notice of SCB Hearing.

(a) When a Notice of SCB Hearing is Sent. If the Respondent requests a SCB Hearing in accordance with Section .09(3), then OSA will send the Respondent and the Complainant a Notice of SCB Hearing at least ten (10) business days in advance of the date of the hearing.

(b) Information in the Notice of SCB Hearing. The Notice of SCB Hearing generally will contain, or be accompanied by, the following information:

1. The date, time, and place of the SCB Hearing (OSA may reschedule the SCB Hearing for good cause and issue a revised Notice of SCB Hearing that contains a new date, time, and place of the SCB Hearing);

2. A copy of the Notice of Allegations;

3. The sanction(s) that the Conduct Educator will request the SCB impose on the Respondent;

4. The names of all witnesses through whom the Conduct Educator is likely to present information during the SCB Hearing;

5. A notice of the right to the assistance and/or support of an Advisor during the SCB Hearing;

6. A description of all tangible or electronic information that the Conduct Educator is likely to present to the SCB, such as an investigative report, police report, incident report, witness statements, video or audio recordings, photographs, text messages, or phone records;

7. Notice of the right to request a copy of OSA's investigative file, redacted in accordance with the Family Educational Rights and Privacy Act of 1974, ( 20 U.S.C. § 1232g) , and the federal regulations implementing that statute, as amended;

8. Notice of the right to request copies of all documents, copies of all electronically stored information, and access to tangible evidence that the University has in its possession, custody, or control and may use to support claims or defenses, unless the use would be solely for impeachment; and

9. Notice of the composition of the Student Conduct Board and the process to request the removal of a member of the SCB on the grounds that the person cannot be fair and impartial in deciding the case.

(6) More than One Respondent. In cases involving more than one (1) Respondent, SCB Hearings concerning each Respondent's conduct may be conducted separately upon written request of a Respondent submitted at the time of the Respondent's request for a Formal Hearing. OSA has the discretion to make the final determination of whether to grant such a request and will notify the Respondents of the decision.

(7) Consequences of Failing to Attend a SCB Hearing. If the Respondent fails to attend a SCB Hearing, then the Respondent waives all rights to a SCB Hearing. The SCB may: proceed with the SCB Hearing without the Respondent's participation; hold the Respondent accountable for all decisions made in the Respondent's absence, including, without limitation, decisions concerning responsibility for alleged violations of the Behavioral Expectations and Responsibilities; and may determine that the Respondent's failure to attend the hearing constitutes a separate violation of the Behavioral Expectations and Responsibilities. If the SCB determines, in the Respondent's absence, that it is more likely than not that the Respondent violated the Behavioral Expectations and Responsibilities, then OSA may implement the sanctions imposed by the SCB and conclude the student conduct process.

(8) Composition of the Student Conduct Board.

(a) Appointment of the SCB.

1. General. The SCB is appointed ad hoc for each hearing by the Director of OSA. OSA shall appoint a SCB consisting of one (1) voting Chairperson and two (2) voting members. OSA shall not appoint persons on the basis of how OSA anticipates that they will vote. The Chairperson shall be a University faculty member, staff employee, or contractor who has received training from OSA on how to conduct a SCB Hearing. Two (2) voting members and one (1) voting Chairperson constitute a quorum of the SCB that was appointed by OSA in seating any SCB, except as provided in Section .09(8)(a)2. All classifications of the University community (students, faculty, and staff) must be represented by at least one (1) voting member, except as provided in Section .09(8)(a)2.

2. Exception for Cases requiring Cross-examination. In cases which require cross examination, the Director of OSA in his/her sole discretion may appoint a nonvoting chairperson to preside over the SCB, make determinations of relevance and document the findings of the SCB. Notwithstanding anything to the contrary in Section .09(8)(a)1. or Section .09(8)(a)2., all classifications of the University community (students, faculty, and staff) must be represented by at least one (1) voting member.

(b) Fairness and Impartiality of SCB Members. Any member of the SCB who determines that they cannot decide a case fairly and impartially for any reason (including, but not limited to, having a conflict of interest, or personal prejudice or bias) shall excuse themselves from serving on the SCB, in which case OSA shall appoint a substitute member of the panel in accordance with the rules in Section .09(8)(a).

(9) General Provisions Governing SCB Hearings.

(a) Required Pre-Hearing Information and Copies. At least five (5) business days prior to the SCB Hearing, the Complainant and the Respondent must provide the following to OSA in writing:

1. The name of their Advisor, if any, who will attend the SCB Hearing;

2. The names of all witnesses through whom they plan to present information to the SCB and a brief summary of the information that they reasonably anticipate that each witness will provide to the SCB;

3. A copy of all tangible or electronic information that they plan to present to the SCB (including, but not limited to, witness statements, video or audio recordings, photographs, text messages, phone records, medical bills, diagrams). However, they are not required to provide copies of information that is not in a form that allows copying (e.g., weapon; piece of clothing), in which case they should describe the information in writing; and

4. A copy of a statement, if any, that they want the SCB to consider in determining the appropriate sanction to impose on the Respondent if the SCB finds that the Respondent violated a Behavioral Expectation or Responsibility. The Complainant's statement may include a description of the impact of the Respondent's alleged conduct on the Complainant. The Respondent's statement may include a description of any factors the Respondent believes mitigates the alleged misconduct.

(b) During the SCB Hearing, the Complainant and the Respondent may present witnesses who were not identified in the Notice of Formal Hearing only if they comply with this Section .09(9)(a) (i.e., other witnesses not identified to OSA in writing at least five (5) business days prior to the SCB Hearing will not be allowed). The Complainant and the Respondent are responsible for contacting witnesses who were not identified in the Notice of Hearing, informing them about the date, time, and location of the SCB Hearing, and securing their attendance at the SCB Hearing.

(c) Pre-Hearing Review of Information. Individuals involved with the hearing are responsible for contacting OSA to arrange a time to review the information prior to the hearing if such review is desired and the information has not been made available electronically. No less than three (3) business days prior to the hearing, OSA will make copies of information submitted by the Complainant, the Respondent, and the Conduct Educator available for review by the Complainant, Respondent, their respective Advisors, and members of the SCB. Those individuals will be notified by OSA when materials are available for review. OSA may make the information available electronically. In their sole discretion, OSA may redact irrelevant information prior to making information available.

(d) Recording of the SCB Hearing. The University shall be responsible for making a record (e.g., digital recording) of a SCB Hearing. Deliberations of the SCB shall not be recorded. The Complainant and the Respondent may take notes during a SCB Hearing, which shall be their own property, but neither the Complainant nor the Respondent may record the hearing using any other method of recording. The University will provide a copy of the record to the Complainant and the Respondent upon request.

(e) Attendance and Participation. Attendance during a SCB Hearing generally is limited to members of the SCB, the Conduct Educator, the Complainant and the Complainant's Advisor, the Respondent and the Respondent's Advisor, and witnesses. The Conduct Educator, the Complainant, the Respondent, Advisors, and witnesses may not be present during the deliberations of the SCB. Witnesses may attend the SCB Hearing only while they are presenting information to the SCB, unless the witness is the Complainant or the Respondent. The Chairperson and OSA have the discretion to allow other persons to attend the SCB Hearing, in accordance with state and federal law. The Complainant and the Complainant's Advisor may attend any part of the SCB Hearing (excluding the deliberations of the SCB), but the Complainant and the Complainant's Advisor shall be excused from the hearing room when the Respondent's Education Records or information obtained from the Respondent's Education Records are disclosed unless the information is also part of the Complainant's Education Records. The Chairperson may accommodate concerns for the personal safety, well-being, and/or fears of confrontations of the Complainant, the Respondent, and/or witnesses by permitting attendance or participation by closed circuit television, video conferencing, or other appropriate means, as determined in the discretion of the Chairperson. However, the identity of all persons who present information to the SCB must be made known to the Respondent and the Complainant. The Respondent and the Complainant must be allowed to view and hear a person who is attending or participating by closed circuit television, video conferencing, or other similar means.

(10) Procedural Rules for SCB Hearings.

(a) Right to Challenge the Selection of a SCB Member. Prior to convening the SCB Hearing, the Chairperson shall allow the Complainant and the Respondent to request the removal of a member of the SCB on the grounds that the person cannot be fair and impartial in deciding the case. If the Chairperson determines that the person cannot be fair and impartial, then OSA may appoint a substitute member of the SCB in accordance with Section .09(8)(a) or, if a quorum of the SCB still exists, remove the SCB member and allow the SCB Hearing to continue without appointing a substitute member.

(b) Authority of the Chairperson. The Chairperson has the authority to maintain order and make all decisions necessary for the fair, orderly, and expeditious conduct of the SCB Hearing. The Chairperson shall be the final decision maker concerning what, how, and in what order information and witnesses are presented to the SCB.

(c) Exclusion of Information. Upon the Chairperson's initiation or upon request by the Conduct Educator, the Complainant, the Respondent, or a member of the SCB, the Chairperson may exclude the following information from the SCB's consideration:

(1) irrelevant information;

(2) information that unreasonably repeats information already provided to the SCB;

(3) information that was not provided in advance of the hearing in accordance with Section .09(9)(a), or information from witnesses who were not disclosed in advance of the hearing in accordance with Section .09(9)(a);

(4) information that is protected from disclosure under federal or Tennessee law; and/or

(5) information about a person's character or character trait, if the information is being presented to show that., on a particular occasion the person acted in accordance with the character or character trait.

(d) Persons Who May Present Information. The only persons who may present information and/or witnesses during a SCB Hearing are the Conduct Educator, the Complainant, and the Respondent. The Complainant and the Respondent are responsible for presenting their own information and/or witnesses, if any, to the SCB (an Advisor shall not present information and/or witnesses to the SCB).

(e) Formal Rules. Formal rules of process, procedure, and/or technical rules of evidence, such as those applied in criminal or civil court, are not used in SCB Hearings. The Chairperson shall decide all procedural questions that arise during a SCB Hearing. The Chairperson may consult with OSA for assistance in resolving procedural questions fairly and in accordance with the Code.

(f) Questioning of Witnesses. Witnesses will provide information to the SCB and answer questions from the Chairperson or an agent of the party, as required by applicable law. The Chairperson may ask questions and/or submit a request for additional information to the Respondent, the Complainant, the Conduct Educator, and/or witnesses. The Conduct Educator, the Respondent and/or the Complainant shall not directly ask questions to each other or other witnesses. The Conduct Educator, the Respondent, the Complainant, and/or members of the SCB may propose questions for the Chairperson to ask witnesses by submitting the proposed questions to the Chairperson in writing during the hearing. The Chairperson has the discretion whether to ask a witness a question proposed by the Conduct Educator, the Respondent, the Complainant, and/or members of the SCB. In cases where the Conduct Educator has proposed suspension or expulsion, the Complainant and the Respondent may have the right to cross- examine any witnesses who participate in the hearing by an advisor of their choice. The method of questioning witnesses outlined in this Section .09(10)(f) is used to preserve the educational tone of the SCB Hearing.

(g) Closing Statements. At the close of the SCB Hearing, the Chairperson may allow the Conduct Educator, the Complainant, and the Respondent equal opportunities to make statements to the SCB summarizing the information presented to the SCB and/or advocating the decision that the SCB should reach. The Conduct Educator and the Complainant may advocate that the SCB impose a specific sanction(s), and the Respondent may respond; however, the Respondent's record of student conduct maintained by OSA shall not be disclosed to the SCB by the Conduct Educator or the Complainant during the hearing except in accordance with Section .09(11)(c).

(h) Burden of Presenting Information Demonstrating Misconduct. The Conduct Educator bears the burden of presenting information demonstrating that it is more likely than not that the Respondent violated a Behavioral Expectation or Responsibility, as alleged in the Notice of Allegations. Neither the Complainant nor the Respondent is required to present information or witnesses concerning the Respondent's alleged misconduct. The SCB shall not draw an inference adverse to the Conduct Educator, the Complainant, or the Respondent if the Complainant or the Respondent chooses not to present information or witnesses to the SCB.

(11) Decision of the Student Conduct Board.

(a) Deliberation of the SCB. After the Chairperson determines that all relevant information has been received by the SCB, the SCB will deliberate in private and decide, for each Behavioral Expectation or Responsibility alleged in the Notice of Allegations to have been violated, whether it is more likely than not that the Respondent violated the Behavioral Expectation or Responsibility. The SCB will decide by majority vote whether., by preponderance of the evidence the Respondent violated the Behavioral Expectations and Responsibilities.

(b) Basis of Decision. The SCB shall not base its decision on information not presented during the SCB Hearing. However, if the SCB requests that additional information be provided after the SCB Hearing, the SCB may consider and base its decision on the additional information, as long as the Conduct Educator, the Respondent, and the Complainant have had a chance to review and respond to the additional information either via a reconvened SCB Hearing or in writing.

(c) Determination of Sanction(s). If the SCB decides that the Respondent violated the Behavioral Expectations and Responsibilities, then the SCB will decide the appropriate sanction(s) by majority vote. In deciding the appropriate sanctions for a Respondent's misconduct, the SCB may consider:

(1) statements submitted by the Complainant and/or the Respondent to the SCB concerning the appropriate sanctions; and

(2) a statement about the Respondent's conduct history, which shall be provided to the Chairperson by OSA in a sealed envelope prior to the SCB Hearing.

(d) Issuance of Notice of Decision. Issuance of Notice of Decision. Within fifteen (15) business days of the conclusion of the SCB Hearing, the Chairperson shall issue a Notice of Decision and transmit a copy of the Notice of Decision to OSA. OSA shall notify the Respondent about the Notice of Decision and provide a copy of the Notice of Decision. If permitted or required under law, OSA shall notify the Complainant about the Notice of Decision (simultaneously with the notification to the Respondent) and provide a copy of the Notice of Decision to the Complainant.

(e) Information in Notice of Decision. The following information shall be included in the Notice of Decision:

1. For each Behavioral Expectation or Responsibility identified in the Notice of Allegations, the SCB's decision concerning whether it is more likely than not that the Respondent violated the Behavioral Expectation or Responsibility and the SCB's rationale for the decision concerning the alleged violation of the Behavioral Expectation or Responsibility, including, without limitation, a brief summary of the information upon which the SCB relied in making its decision;

2. The sanction(s), if any, that the SCB has imposed on the Respondent; and

3. Information about the Respondent's options, if any, to appeal the decision of the SCB.

Tenn. Comp. R. & Regs. 0240-10-06-.09

New rules filed July 20, 2021; effective 10/18/2021.

Authority: T.C.A. § 49-8-203(a)(1)(D).