WSR 21-06-084
PROPOSED RULES
COMMUNITY COLLEGES
OF SPOKANE
[Filed March 2, 2021, 8:02 a.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 20-23-055.
Title of Rule and Other Identifying Information: New WAC 132Q-10-600, 132Q-10-601, 132Q-10-602, 132Q-10-603, 132Q-10-604, 132Q-10-605, 132Q-10-606, 132Q-10-607, and 132Q-10-608.
Hearing Location(s): On April 20, 2021, at 9:00 a.m., virtual meeting. Join Zoom meeting https://ccs-spokane.zoom.us/j/85749477671?pwd=LzM0K0JMS1p6eG1WL2hTbm5xTXA5UT09, Meeting ID 857 4947 7671, Passcode 503781, One tap mobile +12532158782,,85749477671#,,,,*503781# US (Tacoma), +16699006833,,85749477671#,,,,*503781# US (San Jose). The special meeting will take place in a virtual space to comply with government restrictions on public gatherings due to COVID-19 health risks. This link will be shared on the Spokane Community Colleges WAC rules process site, https://ccs.spokane.edu/About-Us/Public-Disclosures#RuleMaking.
Date of Intended Adoption: April 20, 2021.
Submit Written Comments to: John O'Rourke, 501 North Riverpoint Boulevard, Mailstop 1006, Spokane, WA 99217-6000, email john.orourke@ccs.spokane.edu, mobile 509-220-4200, by April 13, 2021.
Assistance for Persons with Disabilities: Contact John O'Rourke, phone 509-434-5185, fax 509-434-5279, TTY 509-434-5275, email john.orourke@ccs.spokane.edu, mobile 509-220-4200.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Community College of Spokane edited sections and created new sections to update current chapter 132Q-10 WAC, Student conduct code, in order to be in compliance with the new United States Department of Education (DOE) Title IX regulations that went into effect on August 14, 2020. This requires updates to the colleges' student conduct code to be compliant with federal regulations.
Reasons Supporting Proposal: On May 19, 2020, the Federal Register printed amendments to Title IX regulations (85 F.R. 30575). The new regulations address the grievance process for formal complaints of sexual harassment. This updates the college's student conduct code to be compliant with federal regulations. Agencies not in compliance would be at risk of losing federal funding.
Statutory Authority for Adoption: Chapter 34.05 RCW; and RCW 28B.50.140(13).
Statute Being Implemented: 34 C.F.R. Part 106.
Rule is necessary because of federal law, [no information supplied by agency].
Name of Proponent: Community Colleges of Spokane, governmental.
Name of Agency Personnel Responsible for Drafting, Implementation, and Enforcement: Keith Sayles and Glen Cosby, Spokane, Washington, 509-533-3603 and 509-533-7015.
A school district fiscal impact statement is not required under RCW 28A.305.135.
A cost-benefit analysis is not required under RCW 34.05.328. Community Colleges of Spokane is not a listed agency under RCW 34.05.328 and is therefore exempt from this provision.
This rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal:
Is exempt under RCW 19.85.025(3) as the rule content is explicitly and specifically dictated by statute; and rules adopt, amend, or repeal a procedure, practice, or requirement relating to agency hearings; or a filing or related process requirement for applying to an agency for a license or permit.
March 1, 2021
John O'Rourke
WAC Coordinator
SUPPLEMENTAL TITLE IX STUDENT CONDUCT PROCEDURES
NEW SECTION
WAC 132Q-10-600Order of precedence.
This supplemental procedure applies to allegations of sexual harassment subject to Title IX jurisdiction pursuant to regulations promulgated by the United States Department of Education. See 34 C.F.R. Part 106. To the extent these supplemental hearing procedures conflict with the Community Colleges of Spokane's standard disciplinary procedures, WAC 132Q-10-101 through 132Q-10-503, these supplemental procedures shall take precedence.
NEW SECTION
WAC 132Q-10-601Prohibited conduct under Title IX.
Pursuant to RCW 28B.50.140(13) and Title IX of the Education Amendments Act of 1972, 20 U.S.C. Sec. 1681, the Community Colleges of Spokane may impose disciplinary sanctions against a student who commits, attempts to commit, or aids, abets, incites, encourages, or assists another person to commit, an act(s) of "sexual harassment."
For purposes of this supplemental procedure, "sexual harassment" encompasses the following conduct:
(1) Quid pro quo harassment. A Community Colleges of Spokane employee conditioning the provision of an aid, benefit, or service of the Community Colleges of Spokane on an individual's participation in unwelcome sexual conduct.
(2) Hostile environment. Unwelcome conduct that a reasonable person would find to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the Community Colleges of Spokane's educational programs or activities, or employment.
(3) Sexual assault. Sexual assault includes the following conduct:
(a) Nonconsensual sexual intercourse. Any actual or attempted sexual intercourse (anal, oral, or vaginal), however slight, with any object or body part, by a person upon another person, that is without consent and/or by force. Sexual intercourse includes anal or vaginal penetration by a penis, tongue, finger, or object, or oral copulation by mouth to genital contact or genital to mouth contact.
(b) Nonconsensual sexual contact. Any actual or attempted sexual touching, however slight, with any body part or object, by a person upon another person that is without consent and/or by force. Sexual touching includes any bodily contact with the breasts, groin, mouth, or other bodily orifice of another individual, or any other bodily contact in a sexual manner.
(c) Incest. Sexual intercourse or sexual contact with a person known to be related to them, either legitimately or illegitimately, as an ancestor, descendant, brother, or sister of either wholly or half related. Descendant includes stepchildren and adopted children under the age of eighteen.
(d) Statutory rape. Consensual sexual intercourse between someone who is eighteen years of age or older and someone who is under the age of sixteen.
(4) Domestic violence. Physical violence, bodily injury, assault, the infliction of fear of imminent physical harm, sexual assault, or stalking committed by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the state of Washington, or by any other person against an adult or youth victim who is protected from that person's acts under the domestic or family violence laws of the state of Washington, RCW 26.50.010.
(5) Dating violence. Physical violence, bodily injury, assault, the infliction of fear of imminent physical harm, sexual assault, or stalking committed by a person:
(a) Who is or has been in a social relationship of a romantic or intimate nature with the victim; and
(b) Where the existence of such a relationship shall be determined based on a consideration of the following factors:
(i) The length of the relationship;
(ii) The type of relationship; and
(iii) The frequency of interaction between the persons involved in the relationship.
(6) Stalking. Engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear for their safety or the safety of others, or suffer substantial emotional distress.
NEW SECTION
WAC 132Q-10-602Title IX jurisdiction.
(1) This supplemental procedure applies only if the alleged misconduct:
(a) Occurred in the United States;
(b) Occurred during a Community Colleges of Spokane educational program or activity; and
(c) Meets the definition of sexual harassment as that term is defined in this supplemental procedure.
(2) For purposes of this supplemental procedure, an "educational program or activity" is defined as locations, events, or circumstances over which the Community Colleges of Spokane exercised substantial control over both the respondent and the context in which the alleged sexual harassment occurred. This definition includes any building owned or controlled by a student organization that is officially recognized by the Community Colleges of Spokane.
(3) Proceedings under this supplemental procedure must be dismissed if one or all of the requirements of subsection (1)(a) through (c) of this section have not been met. Upon receipt of the formal complaint, the Title IX coordinator shall make an initial inquiry into whether Title IX jurisdiction extends to the complaint. If the Title IX coordinator determines there is no Title IX jurisdiction, the Title IX coordinator will issue a notice of dismissal in whole or part explaining why some or all of the Title IX claims have been dismissed. Dismissal under this supplemental procedure does not prohibit the Community Colleges of Spokane from pursuing other disciplinary action based on allegations that the respondent violated other provisions of the Community Colleges of Spokane's student conduct code, WAC 132Q-10-101 through 132Q-10-503.
(4) After receipt of the investigation report, if the student conduct officer determines the facts in the investigation report are not sufficient to support Title IX jurisdiction and/or pursuit of a Title IX violation, the student conduct officer will issue a notice of dismissal in whole or part to both parties explaining why some or all of the Title IX claims have been dismissed. Dismissal under this supplemental procedure does not prohibit the Community Colleges of Spokane from pursuing other disciplinary action based on allegations that the respondent violated other provisions of the Community Colleges of Spokane's student conduct code, WAC 132Q-10-101 through 132Q-10-503.
NEW SECTION
WAC 132Q-10-603Initiation of discipline.
(1) Upon receiving the Title IX investigation report from the Title IX coordinator or designee, the student conduct officer will independently review the report to determine whether there are sufficient grounds to pursue a disciplinary action against the respondent for engaging in prohibited conduct under Title IX.
(2) If the student conduct officer determines that there are sufficient grounds to proceed under these supplemental procedures, the student conduct officer will initiate a Title IX disciplinary proceeding by filing a written disciplinary notice with the chair of the student conduct administrative panel and serving the notice on the respondent and the complainant, and their respective advisors. The notice must:
(a) Set forth the basis for Title IX jurisdiction;
(b) Identify the alleged Title IX violation(s);
(c) Set forth the facts underlying the allegation(s);
(d) Identify the range of possible sanctions that may be imposed if the respondent is found responsible for the alleged violation(s); and
(e) Explain that the parties are entitled to be accompanied by their chosen advisors during the hearing and that:
(i) The advisors will be responsible for questioning all witnesses on the party's behalf;
(ii) An advisor may be an attorney; and
(iii) The Community Colleges of Spokane will appoint the party an advisor of the college's choosing at no cost to the party, if the party fails to do so.
(3) Explain that if a party fails to appear at the hearing, a decision of responsibility may be made in their absence.
NEW SECTION
WAC 132Q-10-604Prehearing procedure.
(1) Upon receiving the disciplinary notice, the chair of the student conduct administrative panel will send a hearing notice to all parties, in compliance with WAC 132Q-10-315. In no event will the hearing date be set less than ten days after the Title IX coordinator or designee provided the final investigation report to the parties.
(2) A party may choose to have an attorney serve as their advisor at the party's own expense. This right will be waived unless, at least five days before the hearing, the attorney files a notice of appearance with the committee chair with copies to all parties and the student conduct officer.
(3) In preparation for the hearing, the parties will have equal access to all evidence gathered by the investigator during the investigation, regardless of whether the Community Colleges of Spokane intends to offer the evidence at the hearing.
NEW SECTION
WAC 132Q-10-605Rights of parties.
(1) The Community Colleges of Spokane's student conduct procedures, WAC 132Q-10-101 through 132Q-10-503, and this supplemental procedure shall apply equally to all parties.
(2) The Community Colleges of Spokane bears the burden of offering and presenting sufficient testimony and evidence to establish that the respondent is responsible for a Title IX violation by a preponderance of the evidence.
(3) The respondent will be presumed not responsible until such time as the disciplinary process has been finally resolved.
(4) During the hearing, each party shall be represented by an advisor. The parties are entitled to an advisor of their own choosing and the advisor may be an attorney. If a party does not choose an advisor, then the Title IX coordinator will appoint an advisor of the college's choosing on the party's behalf at no expense to the party.
NEW SECTION
WAC 132Q-10-606Evidence.
The introduction and consideration of evidence during the hearing is subject to the following procedures and restrictions:
(1) Relevance: The committee chair shall review all questions for relevance and shall explain on the record their reasons for excluding any question based on lack of relevance.
(2) Relevance means that information elicited by the question makes facts in dispute more or less likely to be true.
(3) Questions or evidence about a complainant's sexual predisposition or prior sexual behavior are not relevant and must be excluded, unless such question or evidence:
(a) Is asked or offered to prove someone other than the respondent committed the alleged misconduct; or
(b) Concerns specific incidents of prior sexual behavior between the complainant and the respondent, which are asked or offered on the issue of consent.
(4) Cross-examination required: If a party or witness does not submit to cross-examination during the live hearing, the committee must not rely on any statement by that party or witness in reaching a determination of responsibility.
(5) No negative inference: The committee may not make an inference regarding responsibility solely on a witness's or party's absence from the hearing or refusal to answer questions.
(6) Privileged evidence: The committee shall not consider legally privileged information unless the holder has effectively waived the privilege. Privileged information includes, but is not limited to, information protected by the following:
(a) Spousal/domestic partner privilege;
(b) Attorney-client and attorney work product privileges;
(c) Privileges applicable to members of the clergy and priests;
(d) Privileges applicable to medical providers, mental health therapists, and counselors;
(e) Privileges applicable to sexual assault and domestic violence advocates; and
(f) Other legal privileges identified in RCW 5.60.060.
NEW SECTION
WAC 132Q-10-607Initial order.
(1) In addition to complying with WAC 132Q-10-330, the student conduct administrative panel will be responsible for conferring and drafting an initial order that:
(a) Identifies the allegations of sexual harassment;
(b) Describes the grievance and disciplinary procedures, starting with filing of the formal complaint through the determination of responsibility, including notices to parties, interviews with witnesses and parties, site visits, methods used to gather evidence, and hearings held;
(c) Makes findings of fact supporting the determination of responsibility;
(d) Reaches conclusions as to whether the facts establish whether the respondent is responsible for engaging in sexual harassment in violation of Title IX;
(e) Contains a statement of, and rationale for, the student conduct administrative panel's determination of responsibility for each allegation;
(f) Describes any disciplinary sanction or conditions imposed against the respondent, if any;
(g) Describes to what extent, if any, complainant is entitled to remedies designed to restore or preserve complainant's equal access to the Community Colleges of Spokane's education programs or activities; and
(h) Describes the process for appealing initial orders from Spokane Community College to Spokane Falls Community College's vice president of student affairs or initial orders from Spokane Falls Community College to the vice president of student services.
(2) The committee chair will serve the initial order on the parties simultaneously.
NEW SECTION
WAC 132Q-10-608Appeals.
(1) The parties shall have the right to appeal from the initial order's determination of responsibility and/or dismissal of an allegation(s) of sexual harassment in a formal complaint. The right to appeal will be subject to the same procedures and time frames set forth in WAC 132Q-10-335.
(2) For appeals coming from Spokane Community College, the vice president of student affairs at Spokane Falls Community College will determine whether the grounds for appeal have merit, provide the rationale for this conclusion, and state whether the disciplinary sanction and condition(s) imposed in the initial order are affirmed, vacated, or amended, and, if amended, set forth any new disciplinary sanction and/or condition(s). For appeals coming from Spokane Falls Community College, the vice president of student services at Spokane Community College will determine whether the grounds for appeal have merit, provide the rationale for this conclusion, and state whether the disciplinary sanction and condition(s) imposed in the initial order are affirmed, vacated, or amended, and, if amended, set forth any new disciplinary sanction and/or condition(s).
(3) The appropriate vice president of student affairs/services shall serve the final decision on the parties simultaneously.