WSR 21-12-016
EMERGENCY RULES
BELLINGHAM TECHNICAL COLLEGE
[Filed May 21, 2021, 6:46 a.m., effective May 21, 2021, 6:46 a.m.]
Effective Date of Rule: Immediately upon filing.
Purpose: On April 19, 2021, the college received additional revisions for the Title IX section of the student conduct code that will authorize the college to contract with an administrative law judge (ALJ) or some other vendor to serve as presiding officers and/or decision makers during disciplinary proceedings. The new language is more expansive in that it provides authority for an ALJ or other vendor to replace the student conduct committee or the chair of the committee, or both, during disciplinary proceedings. Additionally, the language used to refer to the committee that oversees Title IX hearings should be the student conduct committee rather than the Title IX hearing committee, which is what is currently used. Updating this language will help ensure prompt, impartial administrative proceedings consistent with state and federal law.
Citation of Rules Affected by this Order: Amending WAC 495B-121-350, 495B-121-365, 495B-121-370, and 495B-121-385.
Statutory Authority for Adoption: Chapter
34.05 RCW; and RCW
28B.50.140(13); 20 U.S.C. § 1092(f); Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq.
Under RCW
34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.
Reasons for this Finding: If Bellingham Technical College does not update its student conduct code to include the recommended language, it would be unable to hire ALJs and Grand River Solutions, with whom they are already contracted, to assist with Title IX cases.
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.
Number of Sections Adopted at the Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's own Initiative: New 0, Amended 0, Repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 4, Repealed 0.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 0, Amended 0, Repealed 0.
Date Adopted: May 21, 2021.
Ronda Laughlin
Executive Assistant
to the President
OTS-3036.1
AMENDATORY SECTION(Amending WSR 21-07-085, filed 3/18/21, effective 4/18/21)
WAC 495B-121-350Order 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 Bellingham Technical College's standard disciplinary procedures, WAC 495B-121-230 through 495B-121-345, these supplemental procedures shall take precedence. Bellingham Technical College may, at its discretion, contract with an administrative law judge or other person to act as presiding officer and assign such presiding officer to exercise any or all of the duties in lieu of the student conduct committee and committee chair.
AMENDATORY SECTION(Amending WSR 21-07-085, filed 3/18/21, effective 4/18/21)
WAC 495B-121-365Initiation of discipline.
(1) Upon receiving the Title IX investigation report from the Title IX coordinator, 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 ((Title IX hearing))student conduct committee 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 college will appoint the party an advisor of the college's choosing at no cost to the party, if the party fails to do so; and
(f) Explain that if a party fails to appear at the hearing, a decision of responsibility may be made in their absence.
AMENDATORY SECTION(Amending WSR 21-07-085, filed 3/18/21, effective 4/18/21)
WAC 495B-121-370Prehearing procedure.
(1) Upon receiving the disciplinary notice, the chair of the ((Title IX hearing))student conduct committee will send a hearing notice to all parties, in compliance with WAC 495B-121-315. In no event will the hearing date be set less than ten days after the Title IX coordinator 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 college intends to offer the evidence at the hearing.
AMENDATORY SECTION(Amending WSR 21-07-085, filed 3/18/21, effective 4/18/21)
WAC 495B-121-385Initial order.
(1) In addition to complying with WAC 495B-121-325 the ((Title IX hearing))student conduct committee 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 committee'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, the complainant is entitled to remedies designed to restore or preserve complainant's equal access to the college educational programs or activities; and
(h) Describes the process for appealing the initial order to the college president.
(2) The committee chair will serve the initial order on the parties simultaneously.