Section 1720-07-01-.07 - STUDENT RIGHTS AND PRE-HEARING PROCEDURES(1) Conflicts of Interest.(a) The student conduct process must be carried out in a manner that is free from conflicts of interest or bias and is consistent with due process of law.(b) In all cases involving allegations of sexual assault, dating violence, domestic violence, or stalking, the student conduct process must include protections for the Respondent analogous to, and no less protective than, the conflict of interest provisions of T.C.A. § 4-5-303. Notwithstanding the preceding sentence: 1. an attorney for the University is allowed to provide legal advice to multiple University employees who serve in different roles in the process of disciplining a student; and2. the University is allowed to provide the Complainant with equivalent rights as the Respondent during the student conduct process.(2) Burden of Proof and Standard of Proof. The Respondent has the right to the presumption that the Respondent is not responsible for the allegations of misconduct. The University bears the burden of presenting information demonstrating that the Respondent is responsible for any violations of the Standards of Conduct. The University uses the preponderance of the evidence standard when making determinations about whether a Respondent is responsible for violating a Standard of Conduct, meaning the information must demonstrate that it is more likely than not that the Respondent violated a Standard of Conduct.(3) Right to an Advisor. The Complainant and the Respondent each may be assisted by one (1) advisor of their choice and at their own cost during all stages of the student conduct process. The advisor may be, but is not required to be, an attorney. The role of an advisor is limited to assisting, advising, and/or supporting a Complainant or Respondent during the student conduct process, including at all meetings, investigative interviews, and hearings. An advisor is not permitted to speak for or on behalf of a Complainant or Respondent, appear in lieu of a Complainant or Respondent, participate as a witness, or participate directly in any other manner during any phase of the student conduct process, except in a Title IX Hearing. If a Complainant or Respondent does not have an advisor present at a Title IX Hearing, the University must provide one (1) (selected by the University) without fee or charge to that party. In a Title IX Hearing, the advisor is permitted to speak on behalf of a Complainant or Respondent for the purposes of asking questions of the other party and witnesses in accordance with Section .09(5)(f) of this Chapter.(4) Allegations of Sexual Harassment, Sexual Assault, Dating Violence, Domestic Violence, Stalking, or Sexual Exploitation. In cases involving allegations of sexual harassment, sexual assault, dating violence, domestic violence, stalking, or sexual exploitation, the student conduct process is initiated upon the filing of a Formal Complaint by a Complainant or by the Title IX Coordinator. As soon as practicable after the filing of a Formal Complaint, OSC will provide a Notice of Receipt of Formal Complaint to the parties who are known. The Notice of Receipt of Formal Complaint shall include the following information: (a) notice of the student conduct process that applies to the allegations;(b) the identities of the parties involved in the incident;(c) the conduct allegedly constituting the violation;(d) the date and location of the incident, if known;(e) a statement that the Respondent is presumed not responsible for the alleged conduct;(f) a statement that a determination regarding responsibility is made at the conclusion of the student conduct process;(g) the parties' right to have an advisor of their choice, who may be, but is not required to be, an attorney;(h) the parties' right to inspect and review evidence; and(i) notice of the provisions of the Code that prohibit providing false information to a University official.(5) Investigations. (a) OSC may investigate the allegations against the Respondent by interviewing witnesses and obtaining other information. If OSC investigates allegations against a Respondent, OSC will 1. ensure that the burden of proof of gathering evidence rests on the University and not on the parties; 2. provide an equal opportunity for the parties to identify and present witnesses for interview, including fact witnesses and expert witnesses, and other inculpatory and exculpatory evidence; and 3. provide written notice of the date, time, location, participants, and purpose of all investigative interviews and other meetings, with sufficient time to prepare to participate. OSC is not obligated to interview a witness identified by the Respondent or the Complainant if OSC believes the witness is not likely to possess relevant information, is not likely to lead OSC to the discovery of relevant information, or the information the witness is likely to possess is cumulative of other information gathered by OSC. OSC may interview and re-interview the Complainant, the Respondent, and/or any other person at any time during the investigation in order to obtain additional and/or clarifying information. Investigations conducted by OSC will be prompt, thorough, and equitable. In conducting an investigation, OSC will act as a fair and impartial party rather than a representative of the person, office, unit, organization, or entity that submitted the allegations to OSC. At the conclusion of its investigation, OSC may prepare a written investigative report of the findings of the investigation. The investigative report may include an assessment of the credibility of persons interviewed during the investigation and an assessment of whether it is more likely than not that the Respondent violated the Standards of Conduct.(b) In cases in which a Complainant or the Title IX Coordinator has filed a Formal Complaint alleging sexual harassment, sexual assault, dating violence, domestic violence, stalking, or sexual exploitation, OSC will provide both parties with an equal opportunity to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in the Formal Complaint. Prior to completion of the investigative report, OSC will send to each party and the party's advisor, if any, the evidence subject to inspection and review. The parties must have at least ten (10) business days to submit a written response, which OSC will consider prior to completion of the investigative report. After the investigative report is final, the parties shall have ten (10) business days to submit a written response to the report. No hearing shall occur until that 10-day period has expired, even if the parties have submitted responses prior to the expiration of the 10-day period.(6) Notice of Allegations and Notice of Sanctions.(a) A Notice of Allegations is a written notice that informs the Respondent that OSC has concluded that it is more likely than not that the Respondent violated the Standards of Conduct. A Notice of Allegations generally includes, without limitation, the following information: 1. a brief summary of the facts of Respondent's alleged misconduct;2. notice that OSC has determined that it is more likely than not that Respondent violated the Standards of Conduct;3. notice of the specific Standard(s) of Conduct that OSC has determined the Respondent more likely than not violated;4. the Respondent's option(s) to elect a hearing to contest OSC's determination of responsibility for misconduct and/or the sanction(s); and5. the names of witnesses likely to present information concerning the alleged misconduct if the Respondent elects to contest the allegations through a hearing.(b) A Notice of Sanctions is a written notice that informs the Respondent of the disciplinary sanction(s) that OSC proposes for the violation(s) of the Standards of Conduct.(c) If the Respondent fails to elect a hearing option available under Section .07(7) within seven (7) business days of OSC transmitting a Notice of Allegations and Notice of Sanctions in writing to the Respondent, then the Respondent waives all rights to a hearing, and OSC has the discretion to deem the Respondent to have accepted OSC's determination of responsibility for misconduct and may impose sanction(s) deemed appropriate by OSC (unless OSC extends the time for the Respondent to request a Formal Hearing for good cause).(d) This Section .07(6) does not apply to Formal Complaints that include Title IX Allegations.(7) Hearing Options. A Respondent shall have the following options for a hearing: (a) An administrative hearing before the Conduct Officer, which is described in Section .07(9);(b) A hearing before the Student Conduct Board, which is described in Section .08;(c) A hearing before a Title IX Hearing Officer ("Title IX Hearing"), which is described in Section .09 and which is the only hearing option provided under the Code for determining responsibility for Title IX Allegations; or(d) A contested case hearing under the Uniform Administrative Procedures Act, which is conducted in accordance with the University's procedures for conducting contested case proceedings under the UAPA, Chapter 1720-01-05.(8) Alternative Resolution and Informal Resolution.(a) Alternative Resolution. At any time during the student conduct process, allegations against the Respondent (except for Title IX Allegations which may be resolved through the Informal Resolution process set forth in Section .07(8)(b)) may be resolved through an alternative resolution. An alternative resolution is a resolution that is reached through a process and/or by a sanction or restriction not described in the Code. An alternative resolution concludes with a written agreement that confirms an agreement to resolve the allegations against the Respondent. To be valid, an alternative resolution agreement shall be signed by OSC and the Respondent, and shall include a waiver of the Respondent's right, if any, to have a hearing on the allegations. Prior to the execution of an alternative resolution agreement, if a Complainant has not participated with OSC in the discussion of an alternative resolution, then OSC will provide the Complainant with an opportunity to provide a timely objection to the proposed alternative resolution. In appropriate cases, OSC may request the Complainant to sign an alternative resolution agreement and determine that the alternative resolution agreement is not effective without the Complainant's signature. Neither the Respondent nor the Complainant may revoke or appeal an alternative resolution agreement after that party has signed the agreement. If an alternative resolution agreement is not reached, then the student conduct process will proceed, and the allegations against the Respondent will be resolved through one (1) of the other resolution methods in the Code.(b) Informal Resolution. In cases that include Title IX Allegations, at any time prior to reaching a determination regarding responsibility, OSC may facilitate an informal resolution process that does not involve a full investigation and adjudication. To facilitate an informal resolution, OSC will (a) provide to the parties a written notice disclosing the allegations and the requirements of the informal resolution process including the circumstances under which it precludes the parties from resuming a Formal Complaint arising from the same allegations, and (b) obtain the parties' voluntary, written consent to the informal resolution process. At any time prior to agreeing to a resolution, any party has the right to withdraw from the informal resolution process and resume the student conduct process with respect to the Formal Complaint.(9) Administrative Hearing Before Conduct Officer. A Respondent has a right to resolve a disciplinary case through an administrative hearing with the Conduct Officer by accepting responsibility for violating the Standards of Conduct. Following the Respondent's written acceptance of responsibility and written waiver of the right to a hearing under the UAPA, if applicable, the Conduct Officer will assess a sanction that is appropriate under Chapter 1720-07-01-.11. Following the assessment of the sanction, the Respondent may acknowledge the acceptance of the sanction in writing or appeal the sanction to the Associate Vice Chancellor of Student Affairs in accordance with Chapter 1720-07-01-.10. A Respondent who resolves a disciplinary case through an administrative hearing with the Conduct Officer may only appeal the sanction to the Associate Vice Chancellor of Student Affairs. A Respondent may not revoke a written acceptance of responsibility or a written acceptance of sanctions.Tenn. Comp. R. & Regs. 1720-07-01-.07
New rules filed August 21, 2023; effective 11/19/2023.Authority: T.C.A. §§ 4-5-101, et seq. and 49-9-209(e).