Section 0240-07-05-.08 - DISCIPLINARY PROCEDURES(1) Responsibility for Administration. The administration of discipline is a function of the Dean of Students' Office and/or the appropriate adjudicating body with the exception of matters concerning academic misconduct, which is a function of the Office of the University Provost and/or the Academic Misconduct Committee. Complaints involving discrimination and harassment, including sexual discrimination, sexual harassment, dating violence, domestic violence, or stalking will be investigated pursuant to applicable MTSU rules. If a violation is determined to have occurred, the student or student organization will be subject to the disciplinary process provided in this rule or other applicable University rules.(2) Standard of Proof. The standard of proof utilized in all student disciplinary matters is the preponderance of the evidence. Students and student organizations should be aware that the student conduct process is different from criminal and civil court proceedings. The student conduct process is built on fundamental fairness. Due process, as defined in this rule, includes written notice of the student conduct rules that are in question and an opportunity to be heard by an objective decision-maker. Students and student organizations will only be found in violation of the student conduct rules when it is more likely than not that a violation occurred. This is called a preponderance of the evidence. Sanctions will be fundamentally proportional to the severity of the violation, the student's willingness to comply with student conduct rules in the future, and the cumulative conduct history of the student.(3) Disciplinary Referral. Reports of behaviors and incidents involving students and student organizations may be referred for evaluation and possible disciplinary action by the University Police, residence hall staff members, faculty, staff, students, and other members of the University and city community. Referrals should be in writing and should be directed to the Assistant Dean for Student Conduct. A hard copy of a written referral may also be dropped off at the Office of Student Conduct. Contact information and email and office addresses can be located on the Office of Student Conduct website.(4) Preliminary Review. All disciplinary referrals will undergo a preliminary review. The appropriate University Official will review the referral to determine if the possibility exists that a student conduct rule was violated, if additional information is needed prompting an investigation, if immediate action is warranted, and if there are other University entities that need to be put on notice that the behavior has occurred. If the University Official determines that there is a possibility that a student conduct rules violation has occurred and additional information is not needed, he/she will issue a disciplinary charge(s) against the student or student organization. If the University Official determines that additional information is needed, he/she will conduct an investigation. If immediate action is needed, the University Official will consult with the appropriate University Officials such as, but not limited to, the Office of the University Counsel, to determine the best course of action. If other entities need to be informed of the matter, the University Official will consult with the appropriate University Officials to determine the specific information that will be shared about the behavior or incident.(5) Notice of Disciplinary Charges and Disciplinary Conference. (a) A disciplinary charge means an allegation of a potential violation of the student conduct rules. The purpose of a disciplinary conference is to determine whether there is a preponderance of the evidence to support the charges, and if so, to determine responsibility and appropriate sanctions. When disciplinary charges are issued to a student or student organization, the Student Conduct office will issue a written notice of the alleged violation(s) and the student's rights, and establish a disciplinary conference meeting date and time for the student or student organization, and assigned University Official. During this disciplinary conference, the student or student organization will be reminded which University rules are alleged to have been violated, and the student or student organization will be given an opportunity to explain his/her/its version of the behavior or incident, or to otherwise refute the allegations. Students and student organizations must be notified in writing that they are afforded the following rights in the disciplinary conference:1. The right to know what disciplinary violation(s) they have been charged with;2. The right to tell their side of the story, present evidence, and request that fact witnesses be permitted to share information on their behalf;3. The right to be accompanied by an advisor of their choosing whose participation is limited to directly advising the student or student organization. The advisor cannot be a student who has been charged with a violation of the student conduct rules related to the same incident for which the meeting has been called;4. The right to receive the decision and their imposed sanctions in writing.(b) The University Official will review the incident taking into account all information gathered pertinent to the matter, as well as the information provided by, or on behalf of, the student or student organization. A determination will be made as to whether or not there has been a violation of the student conduct rules and, if so, what the appropriate sanction(s) will be. The University Official may also determine that additional information or followup is needed prior to being able to make a determination regarding responsibility for a student conduct rules violation and may delay a decision until such a time that the needed information is acquired. The University Official can also refer the matter to the University Discipline Committee, if the case is particularly complex or the student or student organization would be best served by having a committee review the case.(c) If the student or student organization alleged to have engaged in misconduct does not respond after having been provided notice of the disciplinary conference, the University Official will make a determination as to responsibility for the alleged conduct violation based on the information gathered to that point and will impose a sanction as deemed appropriate.(6) Hearing Options. The majority of student disciplinary cases are resolved at the Disciplinary Conference level when the student or student organization accepts responsibility for the violation and the recommended sanction(s). However, if this does not occur, the matter may proceed to a hearing. If the recommended sanction is suspension, expulsion or revocation of recognition of the student organization, the student or student organization has two (2) choices regarding resolution of the disciplinary case. The first choice is to request a hearing before the University Discipline Committee. The second choice is to request a hearing pursuant to the Uniform Administrative Procedures Act (UAPA). The University Official will explain the two (2) choices, and the student or student organization will indicate his/her/its selection in writing. Once the selection is made, the student or student organization cannot elect another option or revert back to the original decision rendered by the University Official. In addition, the Office of Student Conduct can refer a matter to a hearing when the case is unusually complex and/or problematic.(a) Student Judicial Board (SJB) and University Discipline Committee (UDC) hearings. 1. The SJB and UDC will hear student disciplinary cases when requested by a student or student organization, or when referred by the Office of Student Conduct. The SJB or UDC makes its recommendation(s) to the Dean of Students or Vice President for Student Affairs, respectively. The Dean of Students and Vice President can uphold the recommendation(s), reverse the recommendation(s), or send the recommendation(s) back to the SJB or UDC for reconsideration of the sanctions only.2. The Office of Student Conduct has the responsibility for scheduling SJB and UDC hearings, including the selection of date, time, and location as well as providing information to the student or student organization about the hearing format and process. The student or student organization will be notified of the hearing schedule a minimum of five (5) business days in advance of the actual hearing date. These hearings are closed to the public unless all parties agree, in writing, to an open hearing.3. Students and student organizations are afforded the rights guaranteed in the Disciplinary Conference (see Rule 0240-07-05-.08(5)(a)) as well as the following additional rights, which shall be provided in writing:(i) The right to receive notice of the date, time, and place of the hearing at least five (5) business days in advance of the hearing;(ii) The right to receive a list of the witnesses the University expects to present at the proceeding and those the University may present if the need arises;(iii) The right to request a copy of the University's investigative file, redacted in accordance with the Family Educational Rights and Privacy Act of 1974, (20 U.S.C. § 1232(g), and the federal regulations implementing that statute, as amended;(iv) The right to request copies of all documents, copies of all electronically stored information, and access to tangible evidence 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;(v) The right to be accompanied by more than one (1) advisor at the discretion of the adjudicating body and the Office of Student Conduct. The advisor(s) cannot be another student who has been charged with a violation of the student conduct rules related to the same incident as the student. The student may choose to be advised by legal counsel; however, legal counsel's participation shall be limited to directly advising the student;(vi) The right to call witnesses on his/her/its behalf. It is the student or student organization's responsibility to contact his/her/its witnesses and inform them of the hearing unless the witness is also a University witness. University witnesses are contacted by the Office of Student Conduct;(vii) In cases where the accused may be subject to a sanction of suspension or expulsion, or in the case of a student organization, withdrawal of recognition, some form of cross-examination must be permitted if credibility is in dispute and material to the outcome. Cross-examination must be conducted live and in front of the fact-finder but does not require personal confrontation. At the discretion of the hearing officer, cross-examination may be conducted by remote questioning or through a representative.(viii) The right to question witnesses;(ix) The right to be informed of an appeal option, if applicable.(b) Uniform Administrative Procedures Act. 1. All cases which may result in: (a) suspension or expulsion of a student from the University for disciplinary reasons; or, (b) revocation of the registration of a student organization, are subject to the contested case provisions of the Uniform Administrative Procedures Act (UAPA), T.C.A. §§ 4-5-301, et seq., and shall be processed in accordance with the Uniform Contested Case procedures unless the student or student organization waives those procedures and chooses to have the case disposed of administratively in a disciplinary conference or by going before the University Discipline Committee. If the student/student organization wishes to pursue the case administratively or through the UDC, he/she/it must waive the right to a UAPA hearing in writing. Prior to making this decision, the University Official assigned to the matter will explain the differences between the hearing options and will provide to the student/student organization a document setting out the student/student organization's rights as are found in Rule 0240-07-05-.08(E)(F).2. In all cases involving a hearing under the UAPA contested case provisions, the President or designee shall determine, based upon the nature of the case, whether the hearing shall be before an administrative judge or a hearing officer alone or a Hearing Committee presided over by an administrative judge or a hearing officer. The President is responsible for appointing an administrative judge, a hearing officer and/or Hearing Committee at the request of the Office of Student Conduct. The Office of Student Conduct has the responsibility for working with the Office of the University Counsel to schedule UAPA hearings including the selection of date, time, and location as well as assisting in the scheduling of any necessary preliminary meetings.3. The case will proceed pursuant to the UAPA and University rules implementing same.(7) Separation of Functions. (a) A person who has served as an investigator, University Official or advocate in a student disciplinary matter may not serve as an administrative judge or hearing officer, or assist or advise an administrative judge or hearing officer in the same proceeding.(b) A person who is subject to the supervision, direction or discretion of one (1) who has served as investigator, University Official or advocate in a student disciplinary matter may not serve as an administrative judge or hearing officer or assist, or advise an administrative judge or hearing officer in the same proceeding.(c) A person may serve as an administrative judge or hearing officer at successive stages of the same disciplinary matter, unless a party demonstrates grounds for disqualifications in accordance with T.C.A. § 4-5-302.(d) A University Official may serve on the Hearing Committee, or as an administrative judge or hearing officer in the UAPA hearing where authorized by law and not subject to disqualification or other cause provided in T.C.A. Title 4, Chapter 5.(e) Nothing in this rule prohibits an attorney for the University from providing legal advice to multiple University employees who serve in different roles in the process of disciplining a student.(8) Interim Involuntary Withdrawal or Suspension Hearings. (a) Hearings conducted with regard to interim involuntary withdrawals or suspensions imposed prior to or pending the outcome of a disciplinary investigation or proceeding shall be conducted consistent with the minimum requirements of due process applicable to a UDC hearing, taking into account the need for a timely hearing. The evidence presented at the hearing shall be limited to that which is relevant to the basis asserted for imposition of the interim involuntary withdrawal or suspension. The following special conditions apply to involuntary withdrawal/suspension hearings:1. The University shall conduct an assessment to consider the nature, duration , severity, and probability of the threat posed and/or disruption caused by the student or student organization, relying on the best available objective evidence and, if applicable and obtainable, the most current medical evidence;2. Failure of the student or representative of a student organization to appear for or cooperate with a mandated assessment will result in an involuntary withdrawal without further process;3. The University shall also determine whether reasonable modifications of its internal policies, practices, or procedures could sufficiently mitigate the identified risk;4. Absent exigent circumstances creating an imminent risk of harm, the University will make the decision to involuntarily withdraw or suspend based on the threat the student or student organization poses to others;(b) If exigent circumstances warrant the immediate removal of a student or student organization from the University, the student or student organization will receive, at a minimum, notice and an initial opportunity to present evidence immediately after being placed on the interim involuntary withdrawal or suspension, and the opportunity to initiate full due process within thirty (30) days of the removal.(9) Appeals(a) Eligibility. A student who has been suspended or expelled from the University, or a student organization whose recognition has been revoked as the result of disciplinary action has the right to file an appeal. Students or student organizations subject to disciplinary action that does not include suspension or expulsion from the University, or revocation of recognition of the student organization do not have an appeals option.(b) It is the responsibility of the adjudicating body to inform the student or student organization of the right to appeal and to whom the appeal should be presented. It is not the function of the appeals process to permit a rehearing of the factual issues presented to the adjudicating body, but rather to ensure that the disciplinary procedure has been implemented fairly and consistently with these rules.(c) For UAPA decisions, the appeal procedures are set forth in the UAPA and University rules implementing same.(d) UDC decisions.1. Time Limitations. An appeal must be submitted in writing and received by the Dean of Students within ten (10) calendar days of the date on which notice was sent to the student or student organization as provided at 0240-07-05-.02(4) of this rule that the approving authority has affirmed the suspension or expulsion.2. Grounds for Appeal. The appeal must specify grounds which would justify consideration. The written appeal must contain the substantive proof on which the student or student organization is basing the appeal. Appeals that do not include the specific information that substantiates the appeal will be immediately denied. General dissatisfaction with the outcome of the decision shall not be accorded as a basis for consideration of an appeal. An appeal may be filed based on one (1) or both of the following conditions:(i) An error in procedural due process by the adjudicating body which prejudiced the disciplined student or student organization to the extent that a fundamentally fair hearing was denied as a result of the error;(ii) The emergence of new evidence which could not have been previously discovered by the exercise of due diligence and which, had it been presented at the initial hearing, would have substantially affected the original decision of the adjudicating body.3. The Dean of Students will review the written appeal to determine if the appellant has met the requirements for filing an appeal. Appeals which do not allege sufficient grounds shall be denied consideration and dismissed. Appeals which do allege sufficient grounds will be accepted for consideration and forwarded to the appellate body. The appellate body shall not conduct a rehearing, but will consider only the record made by the adjudicating body. The appellate body may, at its own discretion, permit written or oral statements from the concerned parties in interest at the time the appeal is considered. The appellate body will make a recommendation to the Vice President for Student Affairs whether to affirm, modify, or reverse the decision of the UDC or to return the matter to the original adjudicating body for reconsideration.(10) Effect of Noncooperation. A student who fails to respond to a notice of disciplinary charges and disciplinary conference within the time frame specified will have a hold placed on his/her records. The hold will be removed at such time as the sanction imposed has been completed and the matter closed. In the event a student or student organization fails to cooperate, ignores, or otherwise does not respond after a reasonable amount of time to a notice of a Disciplinary Conference, he/she/it will be deemed to have waived the opportunity for a hearing. Decisions concerning responsibility and the imposition of sanctions may be made in the student's absence.(11) Retention of Records. The Office of Student Conduct will maintain disciplinary records created in matters covered by this rule, including records and evidence presented during any investigation, hearing, and appeal in the manner required by state records retention requirements. Disciplinary records are maintained by the Office of Student Conduct. A permanent disciplinary file will be maintained if a student or student organization is suspended or expelled from the University. Files developed in cases in which a lesser sanction has been imposed will be retained for a period of five (5) years after date of action unless sanctions specify that they should be retained for a longer period. Files developed in cases that are covered under the Clery Act will be retained for a period of seven (7) years after the date of action per federal requirements. Files developed in cases where a student or student organization is found not responsible for student conduct rules violations will be maintained for statistical purposes; however, the record will not be reportable as an official disciplinary record in that student's or student organization's name.Tenn. Comp. R. & Regs. 0240-07-05-.08
New rules filed February 8, 2022; effective 5/9/2022.Authority: T.C.A. §§ 4-5-301, et seq., 49-8-101(a)(2)(A), and 49-8-203(a)(1)(D).