WSR 21-07-057
PERMANENT RULES
WASHINGTON STATE UNIVERSITY
[Filed March 15, 2021, 9:36 a.m., effective April 15, 2021]
Effective Date of Rule: Thirty-one days after filing.
Purpose: The university is updating the rules regarding the standards of conduct for students.
On May 19, 2020, the United States Department of Education (the department) published amendments to its regulations implementing Title IX of the Education Amendments of 1972 (Title IX). The department's amended regulations specify how recipients of federal financial assistance covered by Title IX (which include the university) must respond to allegations of sexual harassment. Amendments to the university's standards of conduct for students are required to comply with the department's amended Title IX regulations.
Citation of Rules Affected by this Order: New WAC 504-26-231; and amending WAC 504-26-010, 504-26-015, 504-26-020, 504-26-045, 504-26-050, 504-26-120, 504-26-204, 504-26-206, 504-26-209, 504-26-217, 504-26-219, 504-26-220, 504-26-221, 504-26-222, 504-26-223, 504-26-227, 504-26-230, 504-26-401, 504-26-402, 504-26-403, 504-26-409, 504-26-415, 504-26-420, 504-26-425, 504-26-504, 504-26-515, and 504-26-525.
Statutory Authority for Adoption: RCW 28B.30.150.
Adopted under notice filed as WSR 20-24-125 on December 2, 2020.
Number of Sections Adopted in Order to Comply with Federal Statute: New 1, Amended 16, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.
Number of Sections Adopted at the Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's own Initiative: New 0, Amended 11, Repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 11, Repealed 0.
Number of Sections Adopted using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 1, Amended 27, Repealed 0.
Date Adopted: March 12, 2021.
Deborah L. Bartlett, Director
Procedures, Records, and Forms
and University Rules Coordinator
AMENDATORY SECTION(Amending WSR 18-23-083, filed 11/19/18, effective 12/20/18)
WAC 504-26-010Definitions.
Words and phrases used in the standards of conduct regardless of their associated gender identity include all genders. Words and phrases used in the standards of conduct in the singular or plural encompass both the singular and the plural, unless the context clearly indicates otherwise. For purposes of the standards of conduct, the following definitions apply:
(1) Academic integrity hearing board. Teaching faculty and student representatives who, collectively, are authorized by the university or college to review an instructor's determination that a student violated university academic integrity policies and whether or not the outcome proposed by the instructor is in keeping with the instructor's published policies.
(2) Appeals board. The group of students, faculty, and staff, collectively, authorized in accordance with WAC 504-26-115 to consider appeals from a university conduct board's or conduct officer's determination as to whether a student has violated the standards of conduct and any sanctions ((imposed))assigned.
(3) Brief adjudication. The process by which a conduct officer may adjudicate student conduct matters ((involving))that are not resolving allegations that would constitute Title IX sexual harassment within the university's Title IX jurisdiction, and where possible sanctions((, other than matters involving))do not include suspension for more than ten instructional days, expulsion, loss of recognition, or revocation of degree. Also referred to as a "conduct officer hearing" or "brief adjudicative proceeding."
(4) CCR. The university's office of compliance and civil rights.
(5) Cheating. Includes, but is not limited to:
(a) Use of unauthorized materials in taking quizzes, tests, or examinations, or giving or receiving unauthorized assistance by any means, including talking, copying information from another student, using electronic devices, or taking an examination for another student.
(b) Use of sources beyond those authorized by the instructor in writing papers, preparing reports, solving problems, or carrying out other assignments.
(c) Acquisition or possession of tests or other academic material belonging to a member of the university faculty or staff when acquired without the permission of the university faculty or staff member.
(d) Fabrication, which is the intentional invention or counterfeiting of information in the course of an academic activity. Fabrication includes, but is not limited to:
(i) Counterfeiting data, research results, information, or procedures with inadequate foundation in fact. The office of research must be consulted in matters involving alleged research misconduct as that term is defined in the university's executive policy 33.
(ii) Counterfeiting a record of internship or practicum experiences.
(iii) Submitting a false excuse for absence or tardiness or a false explanation for failing to complete a class requirement or scheduled examination at the appointed date and time.
(e) Engaging in any behavior for the purpose of gaining an unfair advantage specifically prohibited by a faculty member in the course syllabus or class discussion.
(f) Scientific misconduct. Falsification, fabrication, plagiarism, or other forms of dishonesty in scientific and scholarly research are prohibited. Complaints and inquiries involving cases of scientific misconduct are managed according to the university's policy for responding to allegations of scientific misconduct. A finding of scientific misconduct is subject to sanctions by the center for community standards. The policy for responding to allegations of scientific misconduct (executive policy 33) may be reviewed by contacting the office of research.
(g) Unauthorized collaboration on assignments.
(h) Intentionally obtaining unauthorized knowledge of examination materials.
(i) Plagiarism. Presenting the information, ideas, or phrasing of another person as the student's own work without proper acknowledgment of the source. This includes submitting a commercially prepared paper or research project or submitting for academic credit any work done by someone else. The term "plagiarism" includes, but is not limited to, the use, by paraphrase or direct quotation, of the published or unpublished work of another person without full and clear acknowledgment. It also includes the unacknowledged use of materials prepared by another person or agency engaged in the selling of term papers or other academic materials.
(j) Unauthorized multiple submission of the same work.
(k) Sabotage of others' work.
(l) Tampering with or falsifying records.
(((5)))(6) Complainant. Any person who is the alleged victim of prohibited student conduct, whether or not such person has made an actual complaint. Any individual, group, or entity, including the university, who submits a complaint alleging that a student or a registered or recognized student organization violated the standards of conduct.
(((6)))(7) Conduct board. The group of students, faculty, and staff, collectively authorized in accordance with WAC 504-26-110 to adjudicate certain student conduct matters.
(((7)))(8) Conduct officer. A university official authorized by the vice president for student affairs to initiate, manage, and/or adjudicate certain student conduct matters in accordance with WAC 504-26-401 and 504-26-402.
(((8)))(9) Faculty member. For purposes of this chapter, any person hired by the university to conduct classroom or teaching activities or who is otherwise considered by the university to be a member of its faculty.
(((9)))(10) Full adjudication. The process by which a conduct board adjudicates matters involving possible suspension of greater than ten instructional days, expulsion, loss of recognition, revocation of degree, or other matters as determined by the university. Also referred to as "formal adjudication," "formal (or full) adjudicative proceeding," or "conduct board hearing."
(((10)))(11) Gender identity. Having or being perceived as having a gender identity, self-image, appearance, behavior, or expression, whether or not that gender identity, self-image, appearance, behavior, or expression is different from that traditionally associated with the sex assigned to the person at birth.
(((11)))(12) Member of the university community. Includes any person who is a student, faculty member, university official, any person employed by the university, or any person with a relationship with the university, including guests of and visitors to the university. A person's status in a particular situation is determined by the vice president for student affairs or designee.
(((12)))(13) Parties. The parties to a student conduct proceeding must include the university and the respondent. The parties in a student conduct matter ((implicating Title IX of the Civil Rights Act of 1964))where the allegations, if true, would constitute Title IX sexual harassment within the university's Title IX jurisdiction must also include the complainant(s)((, if the complainant(s) notifies the university in writing that they wish to participate as a party)). The university may designate other complainants, individuals, or recognized or registered student organizations as parties to conduct proceedings, or allow individuals or recognized or registered student organizations to intervene in conduct proceedings.
(((13)))(14) Policies. The written rules and regulations of the university as found in, but not limited to, the standards of conduct, university policy manuals, housing and dining policies, academic regulations, and the university's graduate, undergraduate, and professional catalogs and other publications, including electronic publications.
(((14)))(15) Recognized or registered student organization. A group of students, collectively, that has complied with the formal requirements for university recognition or registration.
(((15)))(16) Respondent. A student or recognized or registered student organization alleged to have violated these standards of conduct.
(((16)))(17) Student. Any person taking courses at the university, either full-time or part-time, pursuing undergraduate, graduate, or professional studies. Persons who withdraw after allegedly violating the standards of conduct, who are not officially enrolled for a particular term but who have a continuing relationship with the university (including suspended students) or who have been notified of their acceptance for admission are considered "students" as are persons who are living in university residence halls, even if not enrolled.
(((17)))(18) Title IX. Title IX of the Education Amendments Act of 1972, 20 U.S.C. 1681 and its implementing 34 C.F.R. Part 106.
(19) University. Includes all locations, premises, programs, and operations of Washington State University.
(((18)))(20) University official. Any person employed by the university, performing assigned administrative or professional responsibilities.
(((19)))(21) University premises. All land, buildings, facilities, vehicles, websites, and other property in the possession of or owned, used, or controlled by the university (including adjacent streets and sidewalks), including its study abroad program sites, as well as university-sponsored or hosted online platforms.
AMENDATORY SECTION(Amending WSR 18-23-083, filed 11/19/18, effective 12/20/18)
WAC 504-26-015Jurisdiction and applicabilityRelationship to other proceedings.
(1) General. The standards of conduct apply to conduct that occurs on university premises or in connection with university sponsored activities, including transit to or from the activity.
(2) Off-campus conduct. In addition to subsection (1) of this section, the standards of conduct may apply to conduct that occurs off university premises and not in connection with university-sponsored activities, if the conduct adversely affects the health and/or safety of the university community or the pursuit of the university's vision, mission, or values.
(a) The university has sole discretion to make this determination. In making this determination, the conduct officer considers whether the alleged conduct:
(i) Requires the university to exercise jurisdiction under law or as required by federal or state agencies;
(ii) Negatively impacted the reputation of the university or its students;
(iii) Occurred on the property of recognized or registered student organizations;
(iv) Caused physical, mental, or emotional harm to another; or
(v) Was recognized by onlookers, complainants, or witnesses as being carried out by a student or recognized or registered student organization.
(b) When the university chooses to exercise jurisdiction for off-campus conduct not in connection with a university-sponsored activity, the parties must be notified in writing of the decision and the reasons for the decision, and their right to challenge the decision to the vice president for student affairs or designee. Challenges to jurisdiction must be in writing and filed within five calendar days from the date the notice is sent. In cases implicating Washington State University's executive policy 15, ((which prohibits discrimination, sexual harassment, and sexual misconduct,)) the vice president for student affairs or designee must consult with the university's Title IX coordinator.
(3) Online conduct - Electronic communications. These standards of conduct may be applied to behavior conducted online, via electronic mail, text message, or other electronic means.
(4) Time frame for applicability. Each student is responsible and accountable for their conduct from the time of application for admission through the actual awarding of a degree, even though conduct may occur before classes begin or after classes end, as well as during the academic year and during periods between terms of actual enrollment. These standards apply to a student's conduct even if the student withdraws from school, takes a leave of absence, or graduates.
(5) Group accountability. Recognized or registered student organizations that violate university policies and the standards of conduct are subject to sanctions. A recognized or registered student organization may be held accountable for the behavior of its officers, members, or guests when the university demonstrates that:
(a) The organization or its officers should have foreseen that behavior constituting a violation was likely to occur, yet failed to take reasonable precautions against such behavior;
(b) A policy or practice of the organization was responsible for a violation; or
(c) The behavior constituting a violation was committed by, condoned by, or involved a significant number of organization officers, members, or guests.
(6) International and national study programs. Students who participate in any university-sponsored or sanctioned international or national study program must observe the following rules and regulations:
(a) The laws of the host country and/or state;
(b) The academic and disciplinary regulations of the educational institution or residential housing program where the student is studying;
(c) Any other agreements related to the student's study program; and
(d) These standards of conduct.
(7) Academic and professional standards. Nothing in these standards of conduct is to be construed as limiting academic action that may be taken by a program or other academic unit against a respondent who, based on an established violation of these standards or otherwise, demonstrates a failure to meet the academic and/or professional standards of the program.
(8) Relationship between student conduct process and other legal processes. The university is not required to stay a student conduct proceeding pending any criminal or civil proceeding, nor must the disposition of any such criminal or civil proceeding control the outcome of any student conduct proceeding. Respondents may choose to remain silent during conduct proceedings, in accordance with WAC 504-26-045.
AMENDATORY SECTION(Amending WSR 18-23-083, filed 11/19/18, effective 12/20/18)
WAC 504-26-020Advisors and representatives.
(1) Advisors. Any party may have an advisor of their choice present during all stages of a conduct process. Upon a party's request, a list of trained advisors from outside the office of the dean of students (and those offices reporting to the dean of students) who can provide support at no cost to the student is provided. Advisors may assist any party engaged in the conduct process and attend meetings and hearings. Advisors may not be witnesses to the alleged behavior. ((Students should select an advisor whose schedule allows for attendance at the scheduled date and time of the informational meeting and/or hearing, because delays are not normally allowed due to scheduling conflicts of the advisor.))
(2) Communication with the center for community standards. Advisors and representatives may communicate directly with the center for community standards to receive information on dates and times of meetings, status of conduct processes, and outcomes. As a condition of participation in the conduct process, the center for community standards may require advisors and representatives to sign a statement agreeing to comply with legal requirements and university rules including, but not limited to, requirements related to confidentiality of student information.
(3) Advisors in conduct meetings and conduct officer hearings. During any conduct ((process))meeting or conduct officer hearing, breaks may be taken, within reason, to allow a party to consult with their advisor. However, advisors are not permitted to speak on behalf of parties.
(4) Advisors in conduct board hearings. As with all other conduct meetings and conduct officer hearings, advisors are not permitted to speak on behalf of parties, except that in conduct board hearings, advisors are permitted to ask relevant cross-examination questions as instructed by a party.
(5) Representatives. A party may choose to be represented during a full adjudication, at their own expense. Only persons currently admitted to practice law, including licensed legal interns, are permitted to act as representatives. In conduct board hearings, questions regarding logistical and administrative issues are to be directed to the presiding officer, who may impose reasonable conditions upon participation of advisors and representatives.
AMENDATORY SECTION(Amending WSR 18-23-083, filed 11/19/18, effective 12/20/18)
WAC 504-26-045Evidence.
(1) Except as provided in subsection (2) of this section, evidence, including hearsay evidence, is admissible in student conduct proceedings if, in the judgment of the conduct officer or presiding officer, it is the kind of evidence that reasonably prudent persons are accustomed to rely on in the conduct of their affairs. The conduct officer or presiding officer determines the admissibility and relevance of all information and evidence. ((The sexual history of a complainant is not admissible in a student conduct proceeding except to the extent permitted by evidence rule 412 and RCW 34.05.452 (stating that presiding officers must refer to the Washington rules of evidence as guidelines for evidentiary rulings).))
(2) In conduct board hearings to resolve allegations that, if proven, would constitute Title IX sexual harassment within the university's Title IX jurisdiction, witnesses, including parties, must submit to cross-examination for their written or verbal statements to be considered by the university conduct board.
(3) The sexual history of a complainant is not relevant and not admissible in a student conduct proceeding unless such evidence about the complainant's sexual predisposition or prior sexual behavior is offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or if the questions and evidence concern specific incidents of the complainant's prior sexual behavior with respect to the respondent and are offered to prove consent.
(4) Students may choose to remain silent during conduct proceedings, recognizing that they give up the opportunity to explain their version of events and that the decision is made based on the information presented at the hearing. No student must be compelled to give self-incriminating evidence, and no negative inference will be drawn from a student's refusal to participate in any stage of the conduct proceeding. If either party does not attend or participate in a hearing, the conduct officer or conduct board may resolve the matter based on the information available at the time of the hearing.
AMENDATORY SECTION(Amending WSR 18-23-083, filed 11/19/18, effective 12/20/18)
WAC 504-26-050Interim measures.
(1) While a student conduct matter is pending, the university may take a number of interim actions or supportive measures in order to ensure the preservation of the educational experience and the overall university environment of the parties. These actions may include, but are not limited to:
(a) A no-contact order ((imposed on))assigned to any party;
(b) University housing room change for one or more involved parties; and/or
(c) Changes in academic schedules or assignments for any party.
(2) As stated in the university's housing and dining policies, the university reserves the right to assign roommates, to change room or hall assignments, and/or to consolidate vacancies by requiring residents to move from one room to another in the event such reassignments are determined to be necessary by the university.
(3) University departments taking interim or supportive measures must coordinate with the center for community standards, which advises the parties of the interim measures and the process for challenging them. For matters involving the university's executive policy 15, ((which prohibits discrimination, sexual harassment, and sexual misconduct,)) the departments must also consult with ((the university's office for equal opportunity))CCR regarding interim or supportive measures. Interim and supportive measures are not sanctions and do not imply or assume responsibility for a violation of the standards of conduct.
AMENDATORY SECTION(Amending WSR 18-23-083, filed 11/19/18, effective 12/20/18)
WAC 504-26-120Training.
(1) Board members and presiding officers. Conduct board members, appeals board members, and presiding officers must not participate in any student conduct matter until, at a minimum, training in the following areas has been completed:
(a) Cultural competency and implicit bias;
(b) Student development and student conduct philosophies, including the educational component of the student conduct process;
(c) Identifying bias against individuals and against groups;
(d) Conflict of interest;
(e) Sexual assault and gender-based violence;
(f) Alcohol and drug prevention;
(g) Due process and burden of proof in student conduct matters; ((and))
(h) Sanctioning principles and guidelines;
(i) Title IX regulatory definitions, jurisdiction, and grievance processes; and
(j) Relevant and admissible evidence.
(2) Conduct officers. Conduct officers must not participate in any student conduct matter until, at a minimum, training in the following areas has been completed:
(a) Alternative dispute resolution;
(b) Restorative justice; and
(c) All training required of board members (see subsection (1) of this section).
(3) Renewal of training. Training must be renewed on an annual basis.
AMENDATORY SECTION(Amending WSR 18-23-083, filed 11/19/18, effective 12/20/18)
WAC 504-26-204Abuse of others or disruption or interference with the university community.
Abuse of others or disruption or interference with the university community ((includes, but is not limited to))is defined as:
(1) Physical abuse, threats, intimidation, and/or other conduct that threatens, endangers, harms, or undermines the health, safety, or welfare of the university community or any person((, including, but not limited to, domestic or intimate partner violence)).
(2) Conduct that disrupts the university community or prevents any member of the university community from completing their duties.
(3) Conduct that interferes with or disrupts the university's mission, operations, or activities.
AMENDATORY SECTION(Amending WSR 18-23-083, filed 11/19/18, effective 12/20/18)
WAC 504-26-206Hazing.
(1) No student or recognized or registered student organization at Washington State University may conspire to engage in hazing or participate in hazing of another.
(a) Hazing includes any activity expected of someone joining a group (or maintaining full status in a group) that causes or is likely to cause a risk of mental, emotional and/or physical harm, regardless of the person's willingness to participate.
(b) Hazing activities may include, but are not limited to, the following: Abuse of alcohol during new member activities; striking another person whether by use of any object or one's body; creation of excessive fatigue; physical and/or psychological shock; morally degrading or humiliating games or activities that create a risk of bodily, emotional, or mental harm.
(c) Hazing does not include practice, training, conditioning and eligibility requirements for customary athletic events such as intramural or club sports and NCAA athletics, or other similar contests or competitions, but gratuitous hazing activities occurring as part of such customary athletic event or contest are prohibited.
(2) Washington state law also prohibits hazing which may subject violators to criminal prosecution. As used in RCW 28B.10.901 and 28B.10.902, "hazing" includes any method of initiation into a recognized or registered student organization or living group, or any pastime or amusement engaged in with respect to such an organization or living group that causes, or is likely to cause, bodily danger or physical harm, or serious mental or emotional harm, to any student or other person attending a public or private institution of higher education or other postsecondary education institution in this state.
(3) Washington state law (RCW 28B.10.901) also provides sanctions for hazing:
(a) Any person who violates this rule, in addition to other sanctions that may be ((imposed))assigned, forfeits any entitlement to state-funded grants, scholarships, or awards for a period of time determined by the university.
(b) Any recognized or registered student organization that knowingly permits hazing by its members or others subject to its direction or control must be deprived of any official recognition or approval granted by the university.
AMENDATORY SECTION(Amending WSR 15-01-080, filed 12/15/14, effective 1/15/15)
WAC 504-26-209Violation of university policy, rule, or regulation.
Violation of any university policy, rule, or regulation published electronically on the university website or in hard copy including, but not limited to, Washington State University's alcohol and drug policy, executive policy 15 (((policy prohibiting discrimination, sexual harassment and sexual misconduct))), and housing and residence life policy.
AMENDATORY SECTION(Amending WSR 06-23-159, filed 11/22/06, effective 12/23/06)
WAC 504-26-217Unauthorized use of electronic or other devices.
Unauthorized use of electronic or other devices: Making an audio or video record of any person while on university premises without ((his or her))their prior knowledge, or without ((his or her))their effective consent when such a recording is of a private conversation or of images taken of a person(s) at a time and place where ((she or he))they would reasonably expect privacy and where such images are likely to cause injury or distress. This includes, but is not limited to, surreptitiously taking pictures of another person in a gym, locker room, or restroom, but does not include taking pictures of persons in areas which are considered by the reasonable person to be open to public view, such as Martin Stadium or the Glenn Terrell Mall.
AMENDATORY SECTION(Amending WSR 18-23-083, filed 11/19/18, effective 12/20/18)
WAC 504-26-219Abuse of the student conduct system.
Abuse of the student conduct system ((including, but not limited to))is defined as:
(1) Failure to obey any notice from a university conduct board or other university official to appear for a meeting or hearing as part of the student conduct system.
(2) Willful falsification, distortion, or misrepresentation of information before a university conduct proceeding.
(3) Disruption or interference with the orderly conduct of a university conduct board proceeding.
(4) Filing fraudulent charges or initiating a university conduct proceeding in bad faith.
(5) Attempting to discourage an individual's proper participation in, or use of, the student conduct system.
(6) Attempting to influence the impartiality of a member of the university conduct system prior to, and/or during the course of, any university conduct board proceeding.
(7) Harassment (verbal, written, or physical) and/or intimidation of a member of a university conduct board, any individual involved in the conduct process, or any conduct officer before, during, and/or after any university conduct proceeding.
(8) Failure to comply with or failure to complete any term or condition of any disciplinary sanction(s) ((imposed))assigned under the standards of conduct.
(9) Influencing or attempting to influence another person to commit an abuse of the university conduct system.
(10) Violation of probation or any probationary conditions.
AMENDATORY SECTION(Amending WSR 18-23-083, filed 11/19/18, effective 12/20/18)
WAC 504-26-220((Discrimination and))Discriminatory harassment.
((Discrimination or discriminatory harassment))(1) Unwelcome, intentional conduct on the basis of race; ((sex/gender))sex and/or gender; sexual orientation; gender identity((/))or expression; religion; age; color; creed; national or ethnic origin; marital status; genetic information; status as an honorably discharged veteran or member of the military; physical, mental, or sensory disability (including disability requiring the use of a trained service animal);(( marital status; genetic information; and/or status as an honorably discharged veteran or member of the military; and as defined in Washington State University's executive policy 15, which prohibits discrimination, sexual harassment, and sexual misconduct.))or immigration or citizenship status, except as authorized by federal or state law, regulation, or government practice, which is so severe or pervasive, and objectively offensive, that it substantially and unreasonably:
(a) Interferes with, or has the potential to interfere with, an individual's ability to participate in WSU employment, education, programs, or activities;
(b) Adversely alters the condition of an individual's WSU employment, education, or participation status;
(c) Creates an objectively abusive employment, program, or educational environment; or
(d) Results in a material or substantial disruption of WSU's operations or the rights of students, staff, faculty, visitors, or program participants.
(2) In determining if conduct is harassing, the totality of the circumstances are assessed including, but not limited to, the following factors:
(a) Severity;
(b) Frequency of the discrimination;
(c) Status of the reporting and responding parties and their relationship to each other;
(d) Physicality, threats, or endangerment; and
(e) Whether or not the conduct could be reasonably considered protected speech or serving some other lawful purpose.
AMENDATORY SECTION(Amending WSR 17-13-049, filed 6/15/17, effective 7/16/17)
WAC 504-26-221Sexual misconduct.
(1) Sexual misconduct is an egregious form of sex discrimination/sexual harassment. ((A number of acts may be regarded as sexual misconduct including, but not limited to, nonconsensual sexual contact (including sexual intercourse) and sexual exploitation.)) Sexual misconduct ((includes sexual assault and other sexual violence.))is defined as:
(a) Sex offense. Any sexual act directed against another person, without the consent of the victim, including instances where the victim is incapable of giving consent.
(b) Rape (except statutory rape). The carnal knowledge of a person, without the consent of the victim, including instances where the victim is incapable of giving consent because of their age or because of their temporary or permanent mental or physical incapacity.
(c) Sodomy. Oral or anal sexual intercourse with another person, without the consent of the victim, including instances where the victim is incapable of giving consent because of their age or because of their temporary or permanent mental or physical incapacity.
(d) Sexual assault with an object. To use an object or instrument to unlawfully penetrate, however slightly, the genital or anal opening of the body of another person, without the consent of the victim, including instances where the victim is incapable of giving consent because of their age or because of their temporary or permanent mental or physical incapacity.
(e) Fondling. The touching of the private body parts of another person for the purpose of sexual gratification, without the consent of the victim, including instances where the victim is incapable of giving consent because of their age or because of their temporary or permanent mental or physical incapacity.
(f) Incest. Sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.
(g) Sexual exploitation, which occurs when a person takes nonconsensual or abusive sexual advantage of another for their own advantage or benefit, or to benefit or advantage anyone other than the one being exploited, and that behavior does not otherwise constitute one of the other sexual misconduct offenses explained above. Examples of sexual exploitation may include, but are not limited to:
(i) Causing or attempting to cause the incapacitation of another person to gain sexual advantage over such other person.
(ii) Invading another person's sexual privacy.
(iii) Prostituting another person.
(iv) Engaging in voyeurism. A person commits voyeurism if, for the purpose of arousing or gratifying the sexual desire of any person, they knowingly view, photograph, record, or film another person, without that person's knowledge and consent, while the person being viewed, photographed, recorded, or filmed is in a place where they have a reasonable expectation of privacy.
(v) Knowingly or recklessly exposing another person to a significant risk of sexually transmitted disease or infection.
(vi) Exposing one's intimate parts in nonconsensual circumstances.
(h) Statutory rape. Sexual intercourse with a person who is under the statutory age of consent.
(i) Sexually based stalking and/or bullying.
(2) Consent. Consent to any sexual activity must be clear, knowing, and voluntary. Anything less is equivalent to a "no." Clear, knowing, and voluntary consent to sexual activity requires that, at the time of the act, and throughout the sexual contact, all parties actively express words or conduct that a reasonable person would conclude demonstrates clear permission regarding willingness to engage in sexual activity and the conditions of such activity. Consent is active; silence or passivity is not consent. Even if words or conduct alone seem to imply consent, sexual activity is nonconsensual when:
(a) Force or coercion is threatened or used to procure compliance with the sexual activity.
(i) Force is the use of physical violence, physical force, threat, or intimidation to overcome resistance or gain consent to sexual activity.
(ii) Coercion is unreasonable pressure for sexual activity. When an individual makes it clear through words or actions that the individual does not want to engage in sexual contact, wants to stop, or does not want to go past a certain point of sexual interaction, continued pressure beyond that point may be coercive. Other examples of coercion may include using blackmail or extortion to overcome resistance or gain consent to sexual activity.
(b) The person is asleep, unconscious, or physically unable to communicate ((his or her))their unwillingness to engage in sexual activity; or
(c) A reasonable person would or should know that the other person lacks the mental capacity at the time of the sexual activity to be able to understand the nature or consequences of the act, whether that incapacity is produced by illness, defect, the influence of alcohol or another substance, or some other cause. When alcohol or drugs are involved, a person is considered incapacitated or unable to give valid consent if the individual cannot fully understand the details of the sexual interaction (i.e., who, what, when, where, why, and how), and/or the individual lacks the capacity to reasonably understand the situation and to make rational, reasonable decisions.
(3) ((Nonconsensual sexual contact is any intentional sexual touching, however slight, with any object or body part, by one person against another person's intimate parts (or clothing covering any of those areas), or by causing another person to touch his or her own or another person's intimate body parts without consent and/or by force. Sexual contact also can include any intentional bodily contact in a sexual manner with another person's nonintimate body parts. It also includes nonconsensual sexual intercourse.
(4) Sexual exploitation occurs when a person takes nonconsensual or abusive sexual advantage of another for his/her own advantage or benefit, or to benefit or advantage anyone other than the one being exploited, and that behavior does not otherwise constitute one of the other sexual misconduct offenses explained above. Examples of sexual exploitation may include, but are not limited to:
(a) Causing or attempting to cause the incapacitation of another person to gain sexual advantage over such other person;
(b) Invading another person's sexual privacy;
(c) Prostituting another person;
(d) Engaging in voyeurism. A person commits voyeurism if, for the purpose of arousing or gratifying the sexual desire of any person, he or she knowingly views, photographs, records, or films another person, without that person's knowledge and consent, while the person being viewed, photographed, recorded, or filmed is in a place where he or she has a reasonable expectation of privacy;
(e) Knowingly or recklessly exposing another person to a significant risk of sexually transmitted disease or infection;
(f) Exposing one's intimate parts in nonconsensual circumstances;
(g) Sexually based stalking and/or bullying.
(5))) Use of alcohol or other drugs is not a valid defense to a violation of this policy.
AMENDATORY SECTION(Amending WSR 14-11-025, filed 5/12/14, effective 6/12/14)
WAC 504-26-222Harassment (other than sexual harassment or discriminatory harassment).
Harassment is conduct by any means that is severe, persistent, or pervasive, and is of such a nature that it would cause a reasonable person in the victim's position substantial emotional distress and undermine ((his or her))their ability to work, study, or participate in ((his or her))their regular life activities or participate in the activities of the university, and/or actually does cause the victim substantial emotional distress and undermines the victim's ability to work, study, or participate in the victim's regular life activities or participate in the activities of the university.
AMENDATORY SECTION(Amending WSR 14-11-025, filed 5/12/14, effective 6/12/14)
WAC 504-26-223Stalking.
(1) Stalking is engaging in a course of conduct directed at a specific person that would cause a reasonable person to:
(a) Fear for ((his or her))their safety or the safety of others; or
(b) ((Fear for harm to his or her property or the property of others; or
(c))) Suffer substantial emotional distress.
(2) ((Stalking includes, but is not limited to, conduct occurring in person, electronically, or through a third party.))Course of conduct means two or more acts including, but not limited to, acts in which the stalker directly, indirectly, or through third parties, by any action, method, device, or means, follows, monitors, observes, surveils, threatens, or communicates to or about a person, or interferes with a person's property.
(3) Reasonable person means a reasonable person under similar circumstances and with similar identities to the victim.
(4) Substantial emotional distress means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment or counseling.
(5) The use of alcohol or other drugs is not a valid defense to a violation of this policy.
AMENDATORY SECTION(Amending WSR 18-23-083, filed 11/19/18, effective 12/20/18)
WAC 504-26-227Sexual harassment.
((Sexual harassment includes behavior defined in Washington State University's executive policy 15, which prohibits discrimination, sexual harassment, and sexual misconduct.))Unwelcome, intentional conduct, on the basis of sex and/or gender, which is so severe or pervasive, and objectively offensive, that it substantially and unreasonably:
(1) Interferes with, or has the potential to interfere with, an individual's ability to participate in WSU employment, education, programs, or activities;
(2) Adversely alters the condition of an individual's WSU employment, education, or participation status;
(3) Creates an objectively abusive employment, program, or educational environment; or
(4) Results in a material or substantial disruption of WSU's operations or the rights of students, staff, faculty, visitors, or program participants.
AMENDATORY SECTION(Amending WSR 18-23-083, filed 11/19/18, effective 12/20/18)
WAC 504-26-230Retaliation.
((Retaliation includes any act that would dissuade a reasonable person from making or supporting a complaint, or participating in an investigation, under the standards of conduct (this chapter). Retaliatory behavior includes action or threat of action that could negatively affect another's employment, education, reputation, or other interest. It also includes retaliation as defined in Washington State University's executive policy 15, which prohibits discrimination, sexual harassment, and sexual misconduct.))(1) Intimidation, threats, coercion, or discrimination against any individual for the purpose of interfering with any right or privilege secured by university policies, or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing.
(2) First amendment activities do not constitute retaliation.
NEW SECTION
WAC 504-26-231Intimate partner violence.
Intimate partner violence is defined as:
(1) Dating violence, which is defined as violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim. The existence of such a relationship is determined based on the:
(a) Length of the relationship;
(b) Type of relationship; and
(c) Frequency of interaction between the persons involved in the relationship.
(2) Domestic violence, which is defined as a felony or misdemeanor crime of violence committed by:
(a) A current or former spouse or intimate partner of the victim;
(b) A person with whom the victim shares a child in common;
(c) A person who is cohabitating with, or has cohabitated with, the victim as a spouse or intimate partner;
(d) A person similarly situated to a spouse of the victim under the domestic or family violence laws of Washington; or
(e) Any other person against an adult or youth victim who is protected from that person's act under the domestic or family violence laws of Washington.
AMENDATORY SECTION(Amending WSR 18-23-083, filed 11/19/18, effective 12/20/18)
WAC 504-26-401Initiating conduct proceedings.
(1) Complaints. Any member of the university community may submit a complaint that a student or recognized or registered student organization violated the standards of conduct. In addition, the university may initiate conduct proceedings when it receives any direct or indirect report of conduct that may violate the standards of conduct.
(2) Decision not to refer the matter for hearing. Except as provided below, after reviewing the initial information, if the conduct officer determines that further conduct proceedings are not warranted, the conduct officer dismisses the matter. If the conduct officer decides not to initiate a conduct proceeding when requested by a complainant, the conduct officer must notify the complainant in writing of the decision, the reasons for the decision, and how to seek review of the decision. Conduct matters may be reopened if new relevant information becomes known. A conduct officer cannot dismiss a matter received from CCR where CCR completed a formal investigation implicating Title IX sexual harassment within the university's Title IX jurisdiction, as defined by university executive policy 15, regardless of the investigation's outcome. In such cases, the conduct officer must refer the matter to a conduct board hearing, which must be held within sixty days of the date the CCR formal investigation report was received, unless good cause exists to extend the date of the hearing or the matter is resolved through agreement or alternative dispute resolution.
(3) Notice of informational meeting. After reviewing initial information regarding a possible student conduct violation, if the student conduct officer decides conduct proceedings are warranted, the student conduct officer sends the respondent, or parties as appropriate, written notice of an informational meeting. The notice must, at a minimum, briefly describe the factual allegations or issues involved, the specific standard of conduct provision(s) the respondent is alleged to have violated, the range of possible sanctions for such violations, and the time, date, and place of the meeting. In addition, information regarding the student conduct process and student rights, as required by WAC 504-26-504 (InterpretationPolicies, procedures, and guidelines) must be provided. Any request to change or extend the time or date of the informational meeting should be addressed to the conduct officer.
(4) Purpose of informational meeting. The purpose of the informational meeting is to provide the respondent with information on the conduct process and their rights and responsibilities, and to determine next steps, if any, in resolving the matter. During the informational meeting, the respondent may provide names of witnesses to the conduct officer to potentially contact. In cases involving Title IX, an informational meeting is also offered to a complainant.
(5) Agreement and alternative dispute resolution. A conduct officer may resolve a matter by agreement. Agreements may be reached directly or through alternative dispute resolution. In cases where agreement is not reached directly, before referring the matter to a hearing, the conduct officer must consider, and make a written determination, whether alternative dispute resolution is appropriate to resolve the matter. Alternative dispute resolution must not be used in matters involving sexual misconduct or sexual harassment. When resolution of a matter is reached by agreement or alternative dispute resolution, the agreement must be in writing and signed by the parties and the conduct officer. In the agreement, the parties must be advised in writing that:
(a) The disposition is final and they are waiving any right to a hearing on the matter, including any right to appeal; and
(b) If any party decides not to sign the agreement, and the matter proceeds to a hearing, neither the agreement nor a party's refusal to sign will be used against either party at the hearing.
(6) Referral for adjudication. Except as provided in subsection (2) of this section, after the informational meeting, if the conduct officer determines that a conduct hearing is warranted, and the matter is not resolved through agreement or alternative dispute resolution, the matter is handled through either a conduct officer hearing (brief adjudication) in accordance with WAC 504-26-402, or conduct board hearing (full adjudication) in accordance with WAC 504-26-403. In determining which process is appropriate, the conduct officer considers factors including, but not limited to, the nature and severity of the allegations, the respondent's past contacts with the center for community standards, and the range of possible sanctions that could be ((imposed))assigned. A student may request that a conduct board hear the case, but the final decision regarding whether to refer the matter to the conduct board for hearing is made by the conduct officer and is not subject to appeal.
AMENDATORY SECTION(Amending WSR 18-23-083, filed 11/19/18, effective 12/20/18)
WAC 504-26-402Conduct officer hearings (brief adjudications).
(1) The majority of student conduct matters are adjudicated through conduct officer hearings. However, conduct officer hearings are not used to adjudicate matters in which the respondent faces possible sanctions of suspension for more than ten instructional days, expulsion, or revocation of degree or when a recognized or registered student organization faces possible loss of recognition. In addition, conduct officer hearings generally are not used to adjudicate matters in which the respondent faces allegations of sexual misconduct, as that term is defined in WAC 504-26-221.
(2) Notice of hearing. The conduct officer must provide the parties with written notice no later than ten calendar days prior to the conduct officer hearing. The notice must, at a minimum, briefly describe the factual allegations or issues involved, the specific standard of conduct provision(s) the respondent is alleged to have violated, the range of possible sanctions for such violations, and the time, date, and place of the hearing. In addition, information regarding the student conduct process and student rights, as required by WAC 504-26-504 must be provided. The notice must also include:
(a) A jurisdiction statement if the alleged behavior occurred off campus and information regarding the right to challenge jurisdiction in accordance with WAC 504-26-015;
(b) Information regarding the right to request recusal of a conduct officer under WAC 504-26-125; and
(c) Any request to extend the time or date of the conduct officer conference/hearing should be addressed to the conduct officer.
(3) Hearing and possible outcomes. Conduct officer hearings are brief adjudications conducted in accordance with RCW 34.05.482 through 34.05.494. The hearing allows the conduct officer to review available information, hear the parties' view of the matter, render a decision regarding responsibility, and ((impose))assign sanctions, as appropriate.
(a) Before the hearing begins, the conduct officer must inform the respondent that:
(i) All respondents are presumed "not responsible" for pending charges;
(ii) The university must prove all violations by a preponderance of the evidence, meaning that it is more likely than not that the violation occurred; and
(iii) The parties have the right to have an advisor present at the hearing.
(b) Upon conclusion of the hearing, the conduct officer may take any of the following actions:
(i) Terminate the proceeding and enter a finding that the respondent is not responsible for the alleged conduct violation;
(ii) Dismiss the matter with no finding regarding responsibility, in which case the matter may be reopened at a later date if relevant new information becomes known;
(iii) Find the respondent responsible for any violations and impose sanctions within the limitations described in subsection (1) of this section; or
(iv) Refer the matter to the conduct board.
(4) Notice of decision and right to appeal. The conduct officer notifies the parties in writing of the decision within ten calendar days of the conduct officer hearing. This is the initial order of the university and includes information regarding the parties' right to appeal under WAC 504-26-420.
AMENDATORY SECTION(Amending WSR 18-23-083, filed 11/19/18, effective 12/20/18)
WAC 504-26-403Conduct board hearings (full adjudications).
(1) Conduct board hearings are used in matters in which the respondent faces possible sanctions of suspension for more than ten instructional days, expulsion, or revocation of degree and matters in which a recognized or registered student organization faces possible loss of recognition. In addition, conduct board hearings are generally used to adjudicate matters in which the respondent faces allegations of sexual misconduct, as that term is defined in WAC 504-26-221. Other matters may be referred to a conduct board in the discretion of the conduct officer.
(2) Adoption of model rules of procedure. Conduct board hearings are full adjudications governed by the Administrative Procedure Act, RCW 34.05.413 through 34.05.476, and chapter 10-08 WAC, Model rules of procedure, except as otherwise provided in this chapter. In the event of a conflict between the rules in this chapter and the model rules, this chapter governs.
(3) Notice of hearing. Notice to the parties of a conduct board hearing must comply with model rule WAC 10-08-040 and standards of conduct rule WAC 504-26-035. In addition, information regarding the student conduct process and student rights, as required by WAC 504-26-504 must be provided.
(4) Time for conduct board hearings. The conduct board hearing is scheduled not less than ten calendar days after the parties have been sent notice of the hearing.
In accordance with WAC 10-08-090, requests to extend the time and/or date for hearing must be addressed to the presiding officer. A request for extension of time is granted only upon a showing of good cause.
(5) Subpoenas. Subpoenas may be issued and enforced in accordance with model rule WAC 10-08-120. In determining whether to issue, quash, or modify a subpoena, the presiding officer must give due consideration to state and federal legal requirements including, but not limited to, Title IX, its implementing regulations, and guidance issued by the federal Office for Civil Rights. The party requesting the subpoena has the burden of showing that a subpoena is necessary for full disclosure of all the relevant facts and issues.
(6) Discovery. Depositions, interrogatories, and physical or medical examinations of parties are not permitted in adjudications of student conduct matters. Other forms of discovery may be permitted at the discretion of the presiding officer; however, discovery should be limited to help ensure the prompt completion of the adjudication process.
(7) Cross-examination. As required by RCW 34.05.449, cross-examination of witnesses is permitted to the extent necessary for full disclosure of all relevant facts and issues. ((The preferred method of cross-examination in all student conduct matters is through written questions submitted to, and asked by, the presiding officer. Regardless, in))Cross-examination is conducted orally through the party's advisor or representative. If a party does not have an advisor or representative, an advisor is provided by the university free of charge to conduct cross-examination on that party's behalf. Advisors and representatives are required to engage in cross-examination questioning in a respectful manner. In no circumstance may the complainant or respondent be permitted to cross-examine each other directly ((in person or through their representative)). Before any witness or party may answer a cross-examination question, the presiding officer must first determine whether the question is relevant. The presiding officer ((may decline to ask))must instruct parties or witnesses not to answer cross-examination questions that are irrelevant, immaterial, or unduly repetitious. ((All questions submitted by the parties must be retained as part of the agency record, in accordance with RCW 34.05.566.))
(8) Decision requirements. Decisions regarding responsibility and sanctions are made by a majority of the conduct board hearing the matter, except that any sanction of expulsion, revocation of degree, or loss of recognition of a recognized or registered student organization requires a supermajority consisting of no more than one "no" vote.
(9) Notice of decision and right to appeal. Within ten calendar days of the completion of the hearing, the conduct board must issue a decision simultaneously to all parties, which is the initial order of the university and must contain the following:
(a) Description of the allegations that initiated the community standards process;
(b) Description of procedural steps taken from the receipt of the formal complaint up to and including the university conduct board hearing;
(c) Appropriately numbered findings of fact and conclusions;
(((b)))(d) The sanction(s) and/or remedy(ies) to be ((imposed))assigned, if any, and the rationale for the sanction(s) and/or remedy(ies);
(((c)))(e) Information regarding the parties' right to appeal according to WAC 504-26-420, including the time frame for seeking review; and
(((d)))(f) Notice that the initial order becomes final unless an appeal is filed within ((twenty-one))twenty calendar days of ((service of))the date the initial order is sent to the parties.
AMENDATORY SECTION(Amending WSR 18-23-083, filed 11/19/18, effective 12/20/18)
WAC 504-26-409Emergency suspension.
(1) Definition. An emergency suspension is a temporary exclusion of a student from all or specified portions of university premises, programs, or activities pending an investigation or student conduct proceeding relating to alleged standards of conduct violations. An emergency suspension may be ((imposed))assigned at any time prior to the issuance of the university's final order in the matter.
(2) Circumstances warranting emergency suspension.
(a) For matters which would not constitute Title IX sexual harassment within the university's Title IX jurisdiction, as defined by university executive policy 15, emergency suspension may be ((imposed))assigned only in situations when the ((vice president for student affairs))dean of students or campus chancellor (in consultation with the center for community standards), or their designee, has cause to believe that the student:
(((a)))(i) Has violated any provision of the standards of conduct; and
(((b)))(ii) Presents an immediate danger to the health, safety, or welfare of any part of the university community or the public at large. Conduct that creates an ongoing disruption of, or interference with, the operations of the university and that prevents other students, employees, or invitees from completing their duties or accessing their education or the educational environment, is conduct harmful to the welfare of members of the university community.
(b) For matters which would constitute Title IX sexual harassment within the university's Title IX jurisdiction, as defined by university executive policy 15, emergency suspension may be assigned only in a situation where the dean of students or campus chancellor (in consultation with the center for community standards), or their designee, has engaged in an individualized safety and risk analysis, and determines that removal is justified because the student:
(i) Has violated any provision of the standards of conduct; and
(ii) Is an immediate threat to the physical health or safety of any student or other individual arising from the allegations of Title IX sexual harassment.
(3) Procedure. The ((vice president for student affairs))dean of students or campus chancellor, or their designee, ordering an emergency suspension must send the student a written notice of emergency suspension. The notice must contain the reasons for the decision (both the factual basis and the conclusions as to why those facts constitute a violation of the standards of conduct), ((and)) the policy reasons for the emergency suspension, and the process to challenge the decision. The emergency suspension does not replace the regular hearing process, which must proceed to a conduct officer hearing or conduct board hearing, as applicable, as quickly as feasible. Once a final order is entered, any emergency suspension is lifted and the sanction, if any, set forth in the final order is ((imposed))assigned.
(4) Challenge of the decision. The student can challenge the emergency suspension decision within ten calendar days of the date of notice. Challenges are reviewed by the vice president of student affairs or their designee, provided the designee is not the same person who made the original emergency suspension decision. The vice president of student affairs or designee has ten calendar days to respond to the review and can uphold, reverse, or modify the emergency suspension. The submission of a challenge does not stay the emergency suspension decision.
AMENDATORY SECTION(Amending WSR 18-23-083, filed 11/19/18, effective 12/20/18)
WAC 504-26-415Procedure for academic integrity violations.
(1) Initial hearing.
(a) When a responsible instructor finds that a violation of academic integrity has occurred, the instructor must assemble the evidence and, upon reasonable notice to the student of the date, time, and nature of the allegations, meet with the student suspected of violating academic integrity policies. If the student admits violating academic integrity policies, the instructor assigns an outcome in keeping with published course policies and notifies the center for community standards in writing, including the allegations, the student's admission, and the sanctions ((imposed))assigned.
(b) If the instructor is unable to meet with the student or if the respondent disputes the allegation(s) and/or the outcome proposed by the instructor, the instructor must make a determination as to whether the student did or did not violate the academic integrity policies. If the instructor finds that the student was in violation, the instructor must provide the student and the center for community standards with a written determination, the evidence relied upon, and the sanctions ((imposed))assigned.
(c) The student has twenty-one calendar days from the date of the decision letter to request review of the instructor's determination and/or sanction(s) ((imposed))assigned to the academic integrity hearing board.
(2) Review.
(a) Upon timely request for review by a student who has been found by their instructor to have violated the academic integrity policies, the academic integrity hearing board must make a separate and independent determination of whether or not the student is responsible for violating the academic integrity policies and/or whether the outcome proposed by the instructor is in keeping with the instructor's published course policies.
(b) The academic integrity hearing board is empowered to provide an appropriate remedy for a student including arranging a withdrawal from the course, having the student's work evaluated, or changing a grade where it finds that:
(i) The student is not responsible for violating academic integrity policies; or
(ii) The outcome ((imposed))assigned by the instructor violates the instructor's published policies.
(c) Academic integrity hearing board proceedings.
(i) Any student appealing a responsible instructor's finding of an academic integrity violation is provided written notice of an academic integrity hearing board hearing in accordance with WAC 504-26-035. The written notice must include:
(A) The specific complaint, including the university or instructor academic integrity policy or regulation allegedly violated;
(B) The approximate time and place of the alleged act that forms the factual basis for the violation;
(C) The time, date, and place of the hearing;
(D) A list of the witnesses who may be called to testify, to the extent known; and
(E) A description of all documentary and real evidence to be used at the hearing, to the extent known, including a statement that the student must have the right to inspect the documentation.
(ii) Time for hearings.
(A) Academic integrity hearing board hearings are scheduled not less than seven calendar days after the student has been sent notice of the hearing.
(B) Requests to extend the time and/or date for hearing must be addressed to the chair of the academic integrity hearing board, and must be copied to the center for community standards. A request for extension of time is granted only upon a showing of good cause.
(iii) Academic integrity hearing board hearings are conducted ac-cording to the following procedures, except as provided by (c)(iv) of this subsection:
(A) Academic integrity hearing board hearings are conducted in private.
(B) The instructor, respondent, and their advisor, if any, are allowed to attend the entire portion of the hearing at which information is received (excluding deliberations). Admission of any other person to the hearing is at the discretion of the academic integrity hearing board chair.
(C) In academic integrity hearings involving more than one respondent, the academic integrity hearing board chair may permit joint or separate hearings at the chair's discretion.
(D) In hearings involving graduate students, board memberships are comprised to include graduate students and graduate teaching faculty to the extent possible.
(E) The responsible instructor and the respondent may arrange for witnesses to present relevant information to the academic integrity hearing board. Witnesses must provide written statements to the conduct officer at least two weekdays before the hearing. The respondent is responsible for informing their witnesses of the time and place of the hearing. Witnesses provide information to and answer questions from the academic integrity hearing board, the responsible instructor, and the respondent, as appropriate. The respondent and/or responsible instructor may suggest written questions to be answered by each other or by other witnesses. Written questions are submitted to, and asked by, the academic integrity hearing board chair. This method is used to preserve the educational tone of the hearing and to avoid creation of an unduly adversarial environment, and to allow the board chair to determine the relevancy of questions. Questions concerning whether potential information may be received are resolved at the discretion of the academic integrity hearing board chair, who has the discretion to determine admissibility of information.
(F) Pertinent records, exhibits, and written statements may be accepted as information for consideration by an academic integrity hearing board at the discretion of the chair.
(G) Questions related to the order of the proceedings are subject to the final decision of the chair of the academic integrity hearing board.
(H) After the portion of the hearing concludes in which all pertinent information is received, the academic integrity hearing board determines (by majority vote) whether or not the respondent is responsible for violating the academic integrity policy and/or whether the outcome proposed by the instructor is in keeping with the instructor's published course policies.
(I) The respondent is notified of the academic integrity hearing board's decision within twenty calendar days from the date the matter is heard. The respondent must receive written notice of the decision, the reasons for the decision (both the factual basis therefore and the conclusions as to how those facts apply to the academic integrity policies), and the sanction.
(iv) If a respondent to whom notice of the hearing has been sent (in the manner provided above) does not appear at the hearing, the information in support of the complaint is presented and considered in the respondent's absence, and the board may issue a decision based upon that information.
(v) The academic integrity hearing board may for convenience, or to accommodate concerns for the personal safety, well-being, and/or fears of confrontation of any person, provide separate facilities, and/or permit participation by telephone, audio tape, written statement, or other means, as determined in the sole judgment of the chair of the academic integrity hearing board to be appropriate.
(vi) The written decision of the academic integrity hearing board is the university's final order. There is no appeal from findings of responsibility or outcomes assigned by university or college academic integrity hearing boards.
(3) If the reported violation is the respondent's first offense, the center for community standards ordinarily requires the respondent to attend a workshop separate from, and in addition to, any academic outcomes ((imposed))assigned by the instructor. A hold is placed on the respondent's record preventing registration or graduation until completion of the workshop.
(4) If the reported violation is the respondent's second offense, the respondent is ordinarily referred for a full adjudicative hearing in accordance with WAC 504-26-403, with a recommendation that the respondent be dismissed from the university.
(5) If the instructor or academic integrity hearing board determines that the act of academic dishonesty for which the respondent is found responsible is particularly egregious in light of all attendant circumstances, the instructor or academic integrity hearing board may direct that the respondent's case be referred for a full adjudicative hearing, with a recommendation for dismissal from the university even if it is the respondent's first offense.
(6) Because instructors and departments have a legitimate educational interest in the outcomes, reports of academic integrity hearing board and/or conduct board hearings must be reported to the responsible instructor and the chair or dean.
AMENDATORY SECTION(Amending WSR 18-23-083, filed 11/19/18, effective 12/20/18)
WAC 504-26-420Appeals.
(1) Time for appeals. Decisions made by a conduct officer or conduct board become final ((twenty-one))on the twenty-first calendar day((s)) after the date the decision is sent to the parties, unless an appeal is submitted ((before that date))within twenty calendar days of the date the decision is sent to the parties.
(2) Effect of appeal - Stay. Except in extraordinary circumstances, which must be explained in writing in the conduct officer's or conduct board's initial order, the implementation of an initial order ((imposing))assigning sanctions must be stayed pending the time for filing an appeal and the issuance of the university's final order.
(3) Appeals of conduct officer decisions. Upon receipt of a timely appeal, the appeals board provides the other parties, if applicable, with a copy of the appeal and an opportunity to respond, and conducts a limited review as described below.
(a) Scope of review. Except as required to explain the basis of new information, appeal of a conduct officer decision is limited to a review of the record for one or more of the following purposes:
(i) To determine whether the conduct officer hearing was conducted fairly in light of the charges and information presented, and in conformity with prescribed procedures; deviations from designated procedures are not a basis for sustaining an appeal unless significant prejudice results;
(ii) To determine whether the decision reached was based on substantial information, that is, whether there were facts in the case that, if believed by the fact finder, were sufficient to establish that a violation of the standards of conduct occurred;
(iii) To determine whether the sanction(s) ((imposed))assigned were appropriate for the violation of the standards of conduct that the respondent was found to have committed; or
(iv) To consider new information, sufficient to alter a decision, or other relevant facts not brought out in the original conduct officer hearing, because such information and/or facts were not known to the person appealing at the time of the original conduct officer hearing.
(b) Conversion to conduct board hearing. The appeals board makes any inquiries necessary to ascertain whether the proceeding must be converted to a conduct board hearing in accordance with WAC 504-26-403.
(4) Appeals of conduct board decisions. Upon receipt of a timely appeal, the appeals board provides the other parties, if applicable, with a copy of the appeal and an opportunity to respond.
(a) The appeals board must have and exercise all the decision-making power that the conduct board had, except that the appeals board must give due regard to the conduct board's opportunity to observe the witnesses, if applicable. The appeals board members must personally consider the whole record or such portions of it as may be cited by the parties.
(b) Scope of review. The appeals board conducts a full review in accordance with RCW 34.05.464.
(5) University's right to initiate appeal. The university president or designee, at their own initiative, may request that the appeals board review any initial order. Prior to taking action, the appeals board must notify the parties and allow them an opportunity to explain the matter.
(6) Appeals board decisions.
(a) Actions. After reviewing the record and any information provided by the parties, the appeals board may take the following actions:
(i) Affirm, reverse, or modify the conduct board's or conduct officer's decision, or any part of the decision;
(ii) Affirm, reverse, or modify the sanctions ((imposed))assigned by the conduct board or conduct officer, or any part of the sanctions; or
(iii) Set aside the findings or sanctions, or any part of the findings or sanctions, and remand the matter back to the conduct board or conduct officer with instructions for further proceedings.
(b) Content of decision. The decision includes the outcome, any sanction, and a brief statement of the reasons for the decision. The letter must advise the parties that judicial review may be available. For appeals of conduct board hearings, the decision includes, or incorporates by reference to the conduct board's decision, all matters as set forth in WAC 504-26-403.
(c) Service and effective date of decision. For appeals of conduct officer decisions, the appeals board's decision must be sent simultaneously to the parties within twenty calendar days of receipt of the appeal. For appeals of conduct board decisions, the appeals board's decision must be sent simultaneously to the parties within thirty calendar days of receipt of the appeal, unless the appeals board notifies the parties in writing that additional time (up to ninety calendar days) is needed. The appeals board's decision is the final order of the university, except in the case of remand, and is effective when sent.
(7) Reconsideration of final orders. Within ten calendar days of service of a final order, any party may submit a request for reconsideration. The request must be in writing, directed to the appeals board, and must state the reasons for the request. The request for reconsideration does not stay the effective date of the final order. However, the time for filing a petition for judicial review does not commence until the date the appeals board responds to the request for reconsideration or twenty-one calendar days after the request has been submitted, whichever is sooner. If the appeals board does not respond to the request for reconsideration within twenty-one calendar days, the request is deemed to have been denied.
(8) Stay. A party may request that the university delay the date that the final order becomes effective by requesting a stay in writing to the appeals board within ten calendar days of the date the order was served.
AMENDATORY SECTION(Amending WSR 18-23-083, filed 11/19/18, effective 12/20/18)
WAC 504-26-425Sanctions.
(1) Publication of guidelines for sanctioning. Sanctioning guidelines and other information regarding sanctioning must be published on the center for community standards website. Guidelines must explain in plain language the types of sanctions that a respondent may face for a particular violation and the factors that are used to determine the sanction(s) ((imposed))assigned for a particular violation. Factors must include, but not be limited to, the following:
(a) Conduct record. Any record of past violations of the standards of conduct, and the nature and severity of such past violations;
(b) Malicious intent. If a respondent is found to have intentionally selected a victim based upon the respondent's perception of the victim's race, color, religion, national or ethnic origin, age, sex/gender, marital status, status as an honorably discharged veteran or member of the military, sexual orientation, genetic information, gender identity/expression, or mental, physical, or sensory disability (including disability requiring the use of a trained service animal), such finding is considered an aggravating factor in determining a sanction for such conduct; and
(c) Impact on victim and/or university community.
(2) Effective date of sanctions. Except as provided in WAC 504-26-420(2), sanctions are implemented when a final order becomes effective. If no appeal is filed, an initial order becomes a final order on the day after the period for requesting review has expired. (See WAC 504-26-420.)
(3) Types of sanctions. The following sanctions may be ((imposed upon))assigned to any respondent found to have violated the standards of conduct. More than one of the sanctions listed below may be ((imposed))assigned for any single violation:
(a) Warning. A notice in writing to the respondent that the respondent is violating or has violated institutional regulations.
(b) Probation. Formal action placing conditions upon the respondent's continued attendance, recognition, or registration at the university. Probation is for a designated period of time and warns the student or recognized or registered student organization that suspension, expulsion, loss of recognition, or any other sanction outlined in this section may be ((imposed))assigned if the student or recognized or registered student organization is found to have violated any institutional regulation(s) or fails to complete any conditions of probation during the probationary period. A student on probation is not eligible to run for or hold an office in any recognized or registered student group or organization; they are not eligible for certain jobs on campus including, but not limited to, resident advisor or orientation counselor; and they are not eligible to serve on the university conduct or appeals board.
(c) Loss of privileges. Denial of specified privileges for a designated period of time.
(d) Restitution. Compensation for loss, damage, or injury. This may take the form of appropriate service and/or monetary or material replacement.
(e) Education. The university may require the respondent to successfully complete an educational project designed to create an awareness of the respondent's misconduct.
(f) Community service. ((Imposition))Assignment of service hours (not to exceed eighty hours per student or per member of a recognized or registered student organization).
(g) University housing suspension. Separation of the student from a residence hall or halls for a definite period of time, after which the student may be eligible to return. Conditions for readmission may be specified.
(h) University housing expulsion. Permanent separation of the student from a residence hall or halls.
(i) University suspension. Separation of the student from the university for a definite period of time, after which the student is eligible to request readmission. Conditions for readmission may be specified.
(j) University expulsion. Permanent separation of the student from the university. Also referred to as university dismissal. The terms are used interchangeably throughout this chapter.
(k) Revocation of admission and/or degree. Admission to or a degree awarded from the university may be revoked for fraud, misrepresentation, or other violation of law or standard of conduct in obtaining the degree, or for other serious violations committed by a student before awarding of the degree.
(l) Withholding degree. The university may withhold awarding a degree otherwise earned until the completion of the process set forth in these standards of conduct, including the completion of all sanctions ((imposed))assigned, if any.
(m) Trespass. A student may be restricted from any or all university premises based on their misconduct.
(n) Loss of recognition. A recognized or registered student organization's recognition (or ability to register) may be withheld permanently or for a specific period of time. A fraternity or sorority may be prohibited from housing first year students. Loss of recognition is defined as withholding university services, privileges, or administrative approval from a recognized or registered student organization. Services, privileges, and approval to be withdrawn include, but are not limited to, intramural sports (although individual members may participate), information technology services, university facility use and rental, student involvement office organizational activities, and center for fraternity and sorority life advising.
(o) Hold on transcript and/or registration. A hold restricts release of a student's transcript or access to registration until satisfactory completion of conditions or sanctions ((imposed))assigned by a conduct officer or university conduct board. Upon proof of satisfactory completion of the conditions or sanctions, the hold is released.
(p) No contact order. A prohibition of direct or indirect physical, verbal, and/or written contact with another individual or group.
(q) Fines. Previously established and published fines may be ((imposed))assigned. Fines are established each year prior to the beginning of the academic year and are approved by the vice president for student affairs.
(r) Additional sanctions for hazing. In addition to other sanctions, a student who is found responsible for hazing forfeits any entitlement to state-funded grants, scholarships, or awards for a specified period of time, in accordance with RCW 28B.10.902.
(s) Remedies. Sanctions designed to restore or preserve a victim's equal access to the university's educational programs or activities.
(4) Academic integrity violations. No credit need be given for work that is not a student's own. Thus, in academic integrity violations, the responsible instructor has the authority to assign a grade and/or educational sanction in accordance with the expectations set forth in the relevant course syllabus. The instructor's choices may include, but are not limited to, assigning a grade of "F" for the assignment and/or assigning an educational sanction such as extra or replacement assignments, quizzes, or tests, or assigning a grade of "F" for the course.
AMENDATORY SECTION(Amending WSR 18-23-083, filed 11/19/18, effective 12/20/18)
WAC 504-26-504InterpretationPolicies, procedures, and guidelines.
(1) The vice president for student affairs or designee has authority to interpret these rules and develops policies, procedures, and guidelines for the administration of the university's student conduct system that are consistent with the provisions in this chapter. These must be published, at a minimum, on the center for community standards website and in the university's student handbook. A link to the student handbook or center for community standards website must be provided to parties prior to any informational meeting or student conduct hearing and must provide the following information:
(a) Rights in the student conduct process;
(b) A clear explanation of what to expect during the process;
(c) Information regarding legal resources available in the community;
(d) A statement that respondents are presumed "not responsible"; and
(e) A statement regarding the right not to self-incriminate in accordance with WAC 504-26-045.
(2) Definitions from these standards are incorporated into Washington State University's executive policy 15((, which prohibits discrimination, sexual harassment, and sexual misconduct)).
AMENDATORY SECTION(Amending WSR 18-23-083, filed 11/19/18, effective 12/20/18)
WAC 504-26-515Periodic review and assessment.
At the end of each academic year, the center for community standards provides a report to the vice president for student affairs which must include, at a minimum, a numerical breakdown of the types of matters handled and the sanctions ((imposed))assigned. The vice president for student affairs must make the report publicly available, provided all personally identifiable or readily ascertainable student information is removed.
The standards of conduct and the student conduct system as a whole are reviewed every three years under the direction of the vice president for student affairs or designee. The student government council is asked to provide recommendations and input on proposed changes. After completion of any adjudication or other resolution of a student conduct matter, the center for community standards must send a survey to all parties requesting feedback on the process. Feedback results must be reviewed, at a minimum, every three years in connection with the periodic review and assessment.
AMENDATORY SECTION(Amending WSR 18-23-083, filed 11/19/18, effective 12/20/18)
WAC 504-26-525Good standing.
The award of a degree and/or diploma is conditioned upon the student's good standing in the university and satisfaction of all university graduation requirements. "Good standing" means the student has resolved any acts of academic or behavioral misconduct and complied with all sanctions ((imposed))assigned as a result of the misconduct. The university has the sole authority in determining whether to withhold the degree and/or diploma in cases where the student is not in good standing. The university must deny the award of a degree if the student is dismissed from the university based on their misconduct. Neither diplomas nor transcripts are sent until students have resolved any unpaid fees and resolved any acts of academic or behavioral misconduct and complied with all sanctions ((imposed))assigned as a result of misconduct. (See also academic regulation 45 in the university general catalog.)