Tenn. Comp. R. & Regs. 1720-07-01-.08

Current through December 18, 2024

Section 1720-07-01-.08 - STUDENT CONDUCT BOARD HEARINGS

(1) Notice of SCB Hearing.

(a) When a Notice of SCB Hearing Is Sent. If the Respondent requests a SCB hearing in accordance with Section .07(7)(b), then OSC will send the Respondent and the Complainant a Notice of SCB Hearing at least seven (7) 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 (OSC 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 Officer will request the SCB impose on the Respondent;

4. the names of all witnesses through whom the Conduct Officer 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 Officer 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 OSC'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; and

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.

(c) 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 hearing. OSC has the discretion to make the final determination of whether to grant such a request and will notify the Respondents of the decision.

(d) Consequences of Failing to Attend a SCB Hearing. If the Respondent fails to attend a SCB hearing, then the Respondent waives all rights to an 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 Standards of Conduct; and may determine that the Respondent's failure to attend the hearing constitutes a separate violation of the Standards of Conduct. If the SCB determines, in the Respondent's absence, that it is more likely than not that the Respondent violated the Standards of Conduct, then OSC may implement the sanctions imposed by the SCB and conclude the student conduct process.

(2) Composition of the Student Conduct Board.

(a) Eligible Pool. The University shall appoint a pool of persons who are eligible to serve on a SCB. The University may appoint University students, University faculty members, or University staff employees; however, an employee who works in OSC is ineligible to serve on a SCB. Persons appointed by the University will be trained by OSC to serve on a SCB.

(b) Appointment of the SCB. The SCB is an ad hoc board composed of three (3) members of the eligible pool and one (1) non-voting member of the eligible pool designated as the Chairperson. The SCB and the Chairperson are appointed by the Associate Vice Chancellor of Student Affairs.

(c) 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 (e.g., having a personal prejudice or bias) shall excuse themselves from serving on the SCB. The Complainant and the Respondent have the right to request the removal of any member of the SCB, including the Chairperson, on the grounds that the person cannot be fair and impartial in deciding the case. Any request for the removal of a member of the SCB must be made in writing to the Associate Vice Chancellor of Student Affairs at least three (3) business days in advance of the date of the hearing. If the Associate Vice Chancellor of Student Affairs decides that any member of the SCB cannot be fair and impartial, then the Associate Vice Chancellor of Student Affairs shall appoint a new member of the eligible pool.

(3) General Rules Governing SCB hearings.

(a) Required Pre-Hearing Information and Copies - Complainant and Respondent.

1. At least five (5) business days prior to the SCB hearing, the Complainant and the Respondent must provide the following to OSC in writing:

(i) The name of their advisor, if any, who will attend the SCB hearing;

(ii) The names of all witnesses and a brief summary of the information that they reasonably anticipate that each witness will provide to the SCB; and

(iii) 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.

2. During the SCB hearing, the Complainant and the Respondent may present witnesses who were not identified in the Notice of SCB Hearing only if they comply with this Section .08(3)(a) (i.e., other witnesses not identified to OSC 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 SCB Hearing, informing them about the date, time, and place of the SCB hearing, and securing their attendance at the SCB hearing.

3. During the sanctioning phase of the SCB hearing only, the parties may present statements 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 Standard of Conduct. The Complainant's statement may include a description of the impact of the Respondent's conduct on the Complainant. The Respondent's statement may include a description of any factors the Respondent believes mitigates the conduct. The Respondent may also present character statements during the sanctioning phase of the hearing only.

(b) Pre-Hearing Review of Information. Individuals involved with the hearing are responsible for contacting OSC 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, OSC will make copies of information submitted by the Complainant, the Respondent, and the Conduct Officer available for review by the Complainant, Respondent, their respective advisors, and members of the SCB. Those individuals will be notified by OSC when materials are available for review. OSC may make the information available electronically. In its sole discretion, OSC may redact irrelevant information prior to making information available.

(c) Recording of the SCB Hearing. The University shall be responsible for making a verbatim record (e.g., digital or other recording) of a SCB hearing. Deliberations of the SCB shall not be recorded. The record of the SCB hearing shall be the property of the University. 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. However, the University will provide a copy of the verbatim record to the Complainant and the Respondent upon request.

(d) Attendance and Participation. Attendance during an SCB hearing generally is limited to members of the SCB, the Conduct Officer, the Complainant and the Complainant's advisor, the Respondent and the Respondent's advisor, and witnesses. The Conduct Officer, 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 OSC 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. However, the previous sentence shall not apply, and the Complainant and the Complainant's advisor shall have the right to attend the entire SCB hearing, in cases of sexual assault, dating violence, domestic violence, and stalking. 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 simultaneously see, hear, and otherwise access the communications of any party or witness who is attending or participating by closed circuit television, video conferencing, or other similar means.

(4) Procedural Rules for SCB Hearings.

(a) 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.

(b) Exclusion of Information. Upon the Chairperson's initiation or upon request by the Conduct Officer, 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 .08(3)(a), or information from witnesses who were not disclosed in advance of the hearing in accordance with Section .08(3)(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. Generally, in cases involving an allegation of sexual misconduct, neither the Complainant's nor the Respondent's prior sexual history is relevant to the issue of whether sexual misconduct occurred and will not be considered by the SCB. However, when the Respondent contends that the Complainant gave consent for a particular sexual act, the prior sexual history between the Complainant and the Respondent may be relevant to assess the manner and nature of communications between the parties, although the mere existence of a current or previous dating, romantic, intimate, or sexual relationship with the other person does not allow a Respondent to imply or infer consent. The Complainant's and the Respondent's prior sexual history may also be relevant in other limited circumstances, such as to show intent, motive, absence of mistake, or to explain an injury or physical finding.

(c) Persons Who May Present Information. The only persons who may present information and/or witnesses during a SCB hearing are the Conduct Officer, 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).

(d) 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 OSC for assistance in resolving procedural questions fairly and in accordance with the Code.

(e) Questioning of Witnesses. Witnesses will provide information to the SCB and answer questions from the Chairperson. The Chairperson may ask questions and/or submit a request for additional information to the Respondent, the Complainant, the Conduct Officer, and/or witnesses. The Conduct Officer, the Respondent and/or the Complainant shall not directly ask questions to each other or other witnesses. The Conduct Officer, 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 Officer, the Respondent, the Complainant, and/or members of the SCB. The method of questioning witnesses outlined in this Section .08(4)(e) is used to preserve the educational tone of the SCB hearing and to avoid the creation of an adversarial environment.

(f) Closing Statements. At the close of the SCB hearing, the Chairperson may allow the Conduct Officer, 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.

(g) Burden of Presenting Information Demonstrating Misconduct. The Conduct Officer bears the burden of presenting information demonstrating that it is more likely than not that the Respondent violated a Standard of Conduct, 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 Officer, the Complainant, or the Respondent if the Complainant or the Respondent chooses not to present information or witnesses to the SCB.

(5) Notice of 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 Standard of Conduct alleged in the Notice of Allegations to have been violated, whether it is more likely than not that the Respondent violated the Standards of Conduct. The SCB will decide by majority vote whether the Respondent violated the Standards of Conduct.

(b) Basis of Decision. The SCB shall base its decision solely on information 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 Officer, the Respondent, and the Complainant have had a chance to review and respond to the additional information either in a resumption of the SCB hearing or in writing.

(c) Determination of Sanction(s). If the SCB decides that the Respondent violated the Standards of Conduct, then the SCB will decide the appropriate sanction(s) by majority vote. The Conduct Officer and the Complainant may advocate that the SCB impose a specific sanction(s), and the Respondent may respond. In deciding the appropriate sanctions for a Respondent's misconduct, the SCB may consider any statements provided by the Complainant and/or the Respondent as described in Section .08(3)(a)3. During the sanctioning phase, the SCB may also consider a statement provided by the Conduct Officer about the Respondent's conduct history.

(d) Issuance of Notice of Decision. Issuance of Notice of Decision. Within three (3) 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 OSC. OSC shall notify the Respondent about the Notice of Decision and provide a copy of the Notice of Decision. If permitted or required under law, OSC 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 Standard of Conduct identified in the Notice of Allegations, the SCB's decision concerning whether it is more likely than not that the Respondent violated the Standard of Conduct and the SCB's rationale for the decision concerning the alleged violation of the Standard of Conduct, 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 and the Complainant's options, if any, to appeal the decision of the SCB.

Tenn. Comp. R. & Regs. 1720-07-01-.08

New rules filed August 21, 2023; effective 11/19/2023.

Authority: T.C.A. §§ 4-5-101, et seq. and 49-9-209(e).