CENTRAL WASHINGTON UNIVERSITY
[Filed August 11, 2020, 2:00 p.m., effective August 14, 2020]
Effective Date of Rule: August 14, 2020.
Purpose: Update the Central Washington University's student conduct code in compliance with new Title IX federal regulations promulgated by the United States Department of Education under 34 C.F.R. § 106. The new rules need to go in[to] effect by August 14, 2020.
Citation of Rules Affected by this Order: New WAC 106-125-200, 106-125-205, 106-125-210, 106-125-215, 106-125-220, 106-125-225, 106-125-230, 106-125-235, 106-125-240, and 106-125-245.
Statutory Authority for Adoption: RCW 28B.35.120
Under RCW 34.05.350
the agency for good cause finds that state or federal law or federal rule or a federal deadline for state receipt of federal funds requires immediate adoption of a rule.
Reasons for this Finding: Federal Title IX regulations require these rules to be implemented by August 14, 2020.
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 10, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.
Number of Sections Adopted at the Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's own Initiative: New 0, Amended 0, Repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.
Number of Sections Adopted using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.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: August 11, 2020.
SUPPLEMENTAL TITLE IX STUDENT CONDUCT PROCEDURES
WAC 106-125-200Order 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 university's standard disciplinary procedures, WAC 106-125-005 through 106-125-090, these supplemental procedures shall take precedence.
WAC 106-125-205Prohibited conduct under Title IX.
Pursuant to RCW 28B.35.120
(12) and Title IX of the Education Amendments Act of 1972, 20 U.S.C. Sec. 1681, the university may impose disciplinary sanctions against a student who commits, attempts to commit, or aids, abets, incites, encourages, or assists another person to commit, an act(s) of "sexual harassment."
For purposes of this supplemental procedure, "sexual harassment" encompasses the following conduct:
(1) Quid pro quo harassment. A student employee of the university conditioning the provision of an aid, benefit, or service of the university on an individual's participation in unwelcome sexual conduct.
(2) Hostile environment. Unwelcome conduct that a reasonable person would find to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the university's educational programs or activities, or employment.
(3) Sexual assault. Sexual assault includes the following conduct:
(a) Nonconsensual sexual intercourse. Any actual or attempted sexual intercourse (anal, oral, or vaginal), however slight, with any object or body part, by a person upon another person, that is without consent and/or by force. Sexual intercourse includes anal or vaginal penetration by a penis, tongue, finger, or object, or oral copulation by mouth to genital contact or genital to mouth contact.
(b) Nonconsensual sexual contact. Any actual or attempted sexual touching, however slight, with any body part or object, by a person upon another person that is without consent and/or by force. Sexual touching includes any bodily contact with the breasts, groin, mouth, or other bodily orifice of another individual, or any other bodily contact in a sexual manner.
(c) Incest. Sexual intercourse or sexual contact with a person known to be related to them, either legitimately or illegitimately, as an ancestor, descendant, brother, or sister of either wholly or half related. Descendant includes stepchildren and adopted children under the age of eighteen.
(d) Statutory rape. Consensual sexual intercourse between someone who is eighteen years of age or older and someone who is under the age of sixteen.
(4) Domestic violence. Physical violence, bodily injury, assault, the infliction of fear of imminent physical harm, sexual assault, or stalking committed by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the state of Washington, or by any other person against an adult or youth victim who is protected from that person's acts under the domestic or family violence laws of the state of Washington, RCW 26.50.010
(5) Dating violence. Physical violence, bodily injury, assault, the infliction of fear of imminent physical harm, sexual assault, or stalking committed by a person:
(a) Who is or has been in a social relationship of a romantic or intimate nature with the victim; and
(b) Where the existence of such a relationship shall be determined based on a consideration of the following factors:
(i) The length of the relationship;
(ii) The type of relationship; and
(iii) The frequency of interaction between the persons involved in the relationship.
(6) Stalking. Engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear for their safety or the safety of others, or suffer substantial emotional distress.
WAC 106-125-210Title IX jurisdiction.
(1) This supplemental procedure applies only if the alleged misconduct:
(a) Occurred in the United States;
(b) Occurred during a university educational program or activity;
(c) Meets the definition of sexual harassment as that term is defined in this supplemental procedure; and
(d) At the time of filing a formal complaint, the complainant was participating or attempting to participate in the educational program or activity.
(2) For purposes of this supplemental procedure, an "educational program or activity" is defined as locations, events, or circumstances over which the university exercised substantial control over both the respondent and the context in which the alleged sexual harassment occurred. This definition includes any building owned or controlled by a student organization that is officially recognized by the university.
(3) Proceedings under this supplemental procedure must be dismissed if the decision maker determines that one or all of the requirements of subsection (1)(a) through (d) of this section have not been met. Dismissal under this supplemental procedure does not prohibit the university from pursuing other disciplinary action based on allegations that the respondent violated other provisions of the student conduct code under WAC 106-125-020.
(4) If the student conduct officer determines the facts in the investigation report are not sufficient to support Title IX jurisdiction and/or pursuit of a Title IX violation, the student conduct officer will issue a notice of dismissal in whole or part to both parties explaining why some or all of the Title IX claims have been dismissed.
WAC 106-125-215Initiation 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 there are sufficient grounds to proceed under these supplemental procedures, the student conduct officer will initiate a Title IX disciplinary proceeding by filing a written disciplinary notice with the chair of the student conduct council 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);
(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 university will appoint the party an advisor of the university's choosing at no cost to the party, if the party fails to do so.
(3) Explain that if a party fails to appear at the hearing, a decision of responsibility may be made in the party's absence.
WAC 106-125-220Student conduct council.
For purposes of this supplemental Title IX procedure, the student conduct council shall consist of three university employees appointed by the university president or designee.
WAC 106-125-225Prehearing procedure.
(1) Upon receiving the disciplinary notice, the chair of the student conduct council will send a hearing notice to all parties, in compliance with WAC 106-125-075. 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 conduct council 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 university intends to offer the evidence at the hearing.
WAC 106-125-230Rights of parties.
(1) The university's student conduct council hearing procedures, WAC 106-125-075, 106-125-080, and 106-125-085, and this supplemental procedure shall apply equally to all parties.
(2) The university bears the burden of offering and presenting sufficient testimony and evidence to establish that the respondent is responsible for a Title IX violation by a preponderance of the evidence.
(3) The respondent will be presumed not responsible until such time as the disciplinary process has been finally resolved.
(4) During the hearing, each party shall be represented by an advisor. The parties are entitled to an advisor of their own choosing and the advisor may be an attorney. If a party does not choose an advisor, then the Title IX coordinator will appoint an advisor of the university's choosing on the party's behalf at no expense to the party.
The introduction and consideration of evidence during the hearing is subject to the following procedures and restrictions:
(1) Relevance: The conduct council chair shall review all questions for relevance and shall explain on the record the chair's reasons for excluding any question based on lack of relevance.
(2) Relevance means that information elicited by the question makes facts in dispute more or less likely to be true.
(3) Questions or evidence about a complainant's sexual predisposition or prior sexual behavior are not relevant and must be excluded, unless such question or evidence:
(a) Is asked or offered to prove someone other than the respondent committed the alleged misconduct; or
(b) Concerns specific incidents of prior sexual behavior between the complainant and the respondent, which are asked or offered on the issue of consent.
(4) Cross-examination required: If a party or witness does not submit to cross-examination during the live hearing, the conduct council must not rely on any statement by that party or witness in reaching a determination of responsibility.
(5) No negative inference: The conduct council may not make an inference regarding responsibility solely on a witness's or party's absence from the hearing or refusal to answer questions.
(6) Privileged evidence: The conduct council shall not consider legally privileged information unless the holder has effectively waived the privilege. Privileged information includes, but is not limited to, information protected by the following:
(a) Spousal/domestic partner privilege;
(b) Attorney-client and attorney work product privileges;
(c) Privileges applicable to members of the clergy and priests;
(d) Privileges applicable to medical providers, mental health therapists, and counselors;
(e) Privileges applicable to sexual assault and domestic violence advocates; and
(f) Other legal privileges identified in RCW 5.60.060
WAC 106-125-240Recommended decision.
(1) In addition to complying with WAC 106-125-085, the student conduct council will be responsible for conferring and drafting a recommended decision 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 conduct council's determination of responsibility for each allegation;
(f) Describes any disciplinary sanction or conditions imposed against the respondent, if any;
(g) Describes to what extent, if any, complainant is entitled to remedies designed to restore or preserve complainant's equal access to the university's education programs or activities; and
(h) Describes the process for review of the conduct council's recommended decision by the university's conduct review officer under WAC 106-125-090.
(2) The conduct council chair will serve the recommended decision on the parties simultaneously.
WAC 106-125-245Review of recommended decision.
(1) The recommended decision of the student conduct council shall be reviewed by the conduct review officer in accordance with the procedures under WAC 106-125-090.
(2) The conduct review officer will prepare a review decision determining whether the disciplinary sanction and condition(s) imposed in the recommended decision are affirmed, vacated, or amended, and, if amended, set forth any new disciplinary sanction and/or condition(s).
(3) The conduct review officer shall serve the conduct review decision on the parties simultaneously.