WSR 21-07-050
[Filed March 12, 2021, 7:39 a.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 21-03-031.
Title of Rule and Other Identifying Information: Chapter 172-121 WAC, Student conduct code.
Hearing Location(s): On May 12, 2021, at 9:00 a.m., at Eastern Washington University (EWU), Main Campus, 526 5th Street, Cheney, WA 99004. This will be a virtual meeting via Zoom. The link to participate in the Zoom meeting is
Date of Intended Adoption: May 21, 2021.
Submit Written Comments to: Annika Scharosch, EWU, 526 5th Street, 211 Tawanka Hall, Cheney, WA 99004, email, fax 509-359-6724, by May 12, 2021.
Assistance for Persons with Disabilities: Contact Annika Scharosch, phone 509-359-6724, fax 509-359-2874, email, by May 12, 2021.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Clarifies that parties are only allowed to ask questions of witnesses in full adjudicative hearings. Modifies the language of some of the violations of the student conduct code, including the addition of reckless endangerment.
Reasons Supporting Proposal: Clarifies the procedures for brief adjudicative hearings and violations of the code. Adds a provision prohibiting students from engaging in reckless endangerment to add additional clarification for students.
Statutory Authority for Adoption: RCW 28B.35.120(12).
Rule is not necessitated by federal law, federal or state court decision.
Name of Proponent: EWU, governmental.
Name of Agency Personnel Responsible for Drafting: Annika Scharosch, 211 Tawanka Hall, 509-359-6724; Implementation and Enforcement: Dr. David May, 214 Showalter Hall, 509-359-6362.
A school district fiscal impact statement is not required under RCW 28A.305.135.
A cost-benefit analysis is not required under RCW 34.05.328. Pursuant to RCW 34.5.328 [34.05.328] (5)(a)(i), this agency is not an agency mandated to comply with RCW 34.05.328. Further, the agency does not voluntarily make that section applicable to the adoption of this [these] rules pursuant to subsection (5)(a)(ii), and to date, the joint administrative rules review committee has not made the section applicable to the adoption of this rule.
This rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal:
Is exempt under RCW 19.85.025(4).
March 12, 2021
Annika Scharosch
Associate Vice President
AMENDATORY SECTION(Amending WSR 20-19-046, filed 9/10/20, effective 10/11/20)
WAC 172-121-030Rights of students.
Any student or student organization charged with any violation of the student conduct code and the complainant in the case of an allegation of sexual misconduct or interpersonal violence, have the following rights where applicable:
(1) The right to a fair and impartial conduct review process;
(2) The right to prior written notice to attend a prehearing conference or hearing;
(3) The right to remain silent during any conduct review hearing;
(4) The right to know who filed the complaint against them as described in WAC 172-121-110;
(5) The right to speak on their own behalf in all proceedings;
(6) The right to hear all information and view all material presented against him or her;
(7) The right to call witnesses for a full hearing as described in WAC 172-121-122;
(8) The right to ask or submit questions to be asked of witnesses for a full hearing, in a method determined by the conduct review officer, as described in WAC 172-121-122;
(9) The right to consult an advisor as described in WAC 172-121-105(3);
(10) The right to be presumed not responsible;
(11) Complainants have the right to opt out of participating in the student conduct process;
(12) The right to appeal as provided in WAC 172-121-130; and
(13) The right to be subjected to university disciplinary action only one time for the same conduct.
AMENDATORY SECTION(Amending WSR 20-19-046, filed 9/10/20, effective 10/11/20)
WAC 172-121-200Violations.
The following are defined as offenses which are subject to disciplinary action by the university.
(1) Acts of academic dishonesty. University policy regarding academic dishonesty is governed by the university academic integrity policy.
(2) Abuse, threats and harassment.
(a) Abuse. Assault and other forms of physical abuse.
(b) Threats. Any conduct or statement that, when viewed objectively, threatens bodily harm to another person or that endangers the health or safety of another person.
(c) Bullying. Bullying is behavior that is:
(i) Intentional;
(ii) Targeted at an individual or group;
(iii) Repeated;
(iv) Hostile or offensive; and
(v) Creates an intimidating and/or threatening environment that is so severe or pervasive, and objectively offensive, that it substantially interferes with another's ability to work, study, participate in, or benefit from the university's programs and activities.
(d) Discriminatory harassment. Physical, verbal, electronic, or other conduct based on an individual's race, color, religion, national origin, sex, age, pregnancy, marital status, sexual orientation, gender identity or expression, citizenship or immigration status, disability, or veteran status when one of the conditions outlined in (c)(i) or (ii) of this subsection are present:
(i) Submission to, or rejection of such conduct is made implicitly or explicitly a term or condition of a person's instruction, academic standing, employment, or participation in any university program, activity, or benefit, or is used as a basis for evaluation in making academic or personnel decisions; or
(ii) Such conduct creates a hostile environment. A hostile environment is created when the conduct is sufficiently severe or pervasive, and objectively offensive, that it unreasonably interferes with an individual's academic or work performance, ability to participate in or benefit from the university's programs, services, opportunities, or activities. Unreasonable interference is viewed from both a subjective and objective standard.
(e) Interpersonal violence. Interpersonal violence includes domestic violence, dating violence, and stalking.
(i) Domestic violence means a felony or misdemeanor crime of violence committed by: A current or former spouse or intimate partner of the complainant; a person with whom the complainant shares a child in common; a person who is cohabitating with or has cohabitated with the complainant as a spouse or intimate partner; adult persons related by blood or marriage; adult persons who are presently residing together or who have resided together in the past; and, persons who have a biological or legal parent-child relationship. "Domestic violence" is further defined by 34 U.S.C. Sec. 12291 (a)(8).
(ii) Dating violence means violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the complainant. In determining whether such a relationship exists, the following factors are considered:
(A) The length of time the relationship has existed;
(B) The type of relationship; and
(C) The frequency of interaction between the parties involved in the relationship.
(f) Stalking. Stalking is engaging in a course of conduct directed at a specific person that would cause a reasonable person to:
(i) Fear for their health and/or safety or the health/safety of others; or
(ii) Suffer substantial emotional distress.
(g) Retaliation. Any intimidation, threat, coercion, or discrimination against a person for the purpose of interfering with a person's rights under this code or because a person has made a report, complaint, testified, assisted, or participated or refused to participate in an investigation, proceeding, or hearing under this code is prohibited and is a separate violation of this code. Any actual or threatened retaliation is prohibited and is a separate violation of this code.
(3) Sexual misconduct. Sexual misconduct includes, but is not limited to:
(a) Sexual harassment. Sexual harassment is conduct that meets one or more of the following:
(i) An EWU employee conditioned the provision of an aid, benefit, or service of the university on the complainant's participation in unwelcome sexual conduct; or
(ii) Unwelcome conduct on the basis of sex that is determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies the complainant equal access to the university's programs or activities.
In determining whether conduct is severe or pervasive, the university shall consider all relevant circumstances from both an objective and subjective perspective, including the type of harassment (verbal or physical); the frequency and severity of the conduct; the age, sex, and relationship of the individuals involved; the degree to which the conduct affected the complainant; the setting and context in which the harassment occurred; whether other incidents have occurred at the university; and other relevant factors.
(b) Sexual assault. Any sexual act directed against another person, without a person's consent, including instances where a person is not capable of giving consent. Consent means actual words or conduct indicating freely given agreement to the sexual act. Consent cannot be inferred from silence, passivity, or lack of active resistance. There is no consent where there is a threat of force or violence or any other form of coercion or intimidation, physical or psychological. Sexual activity is nonconsensual when one person is incapable of consent by reason of mental incapacity, drug/alcohol use, illness, unconsciousness, age, or physical condition. Incapacitation due to drugs or alcohol refers to an individual who is in a state of intoxication such that the individual is incapable of making rational, reasonable decisions because the person lacks the capacity to give knowing consent.
Sexual assault includes:
(i) Rape: The penetration, no matter how slight, of the vagina or anus, with any body part or object, or oral penetration by a sex organ of another person, without a person's consent.
(ii) Fondling: The touching of the private body parts of another person for the purpose of sexual gratification, without the person's consent. Private body parts include, but are not limited to, breasts, genitalia, thighs, and buttocks.
(iii) Incest: Sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by state law.
(iv) Statutory rape: Sexual intercourse with a person who is under the age of consent as defined by state law.
(4) Other forms of inappropriate sexual behavior. Other forms of inappropriate sexual behavior that do not fall under Title IX or the definition of sexual harassment or interpersonal violence, such as indecent liberties; indecent exposure; sexual exhibitionism; prostitution or the solicitation of a prostitute; peeping or other voyeurism; sexual misconduct with a minor; or going beyond the boundaries of consent, such as by allowing others to view consensual sex or the nonconsensual recording of sexual activity.
(5) Unauthorized use of electronic or other devices. Making an audio or video recording of any person while on university premises without the person's prior knowledge or without 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 the person would reasonably expect privacy and where such recordings 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.
(6) Property violations. Theft of, damage to, or misuse of another person's or entity's property. This also includes any conduct or statement that, when viewed objectively, threatens to damage another's property.
(7) Weapons. Possession, carrying, discharge or other use of any weapon is prohibited on property owned or controlled by Eastern Washington University, except as permitted in (a) through (d) of this subsection. Examples of weapons under this section include, but are not limited to: Explosives, chemical weapons, shotguns, rifles, pistols, air guns, BB guns, pellet guns, longbows, hunting bows, throwing weapons, stun guns, electroshock weapons, and any item that can be used as an object of intimidation and/or threat, such as replica or look-a-like weapons.
(a) Commissioned law enforcement officers may carry weapons, which have been issued by their respective law enforcement agencies, while on campus or other university controlled property, including residence halls. Law enforcement officers must inform the university police of their presence on campus upon arrival.
(b) A person may possess a personal protection spray device, as authorized by RCW 9.91.160, while on property owned or controlled by Eastern Washington University.
(c) A person may bring a weapon onto campus for display or demonstration purposes directly related to a class or other educational activity, provided that they obtain prior authorization from the university police department. The university police department shall review any such request and may establish conditions to the authorization.
(d) Weapons that are owned by the institution for use in organized recreational activities or by special groups, such as EWU ROTC or university-sponsored clubs or teams, must be stored in a location approved by the university police department. These weapons must be checked out by the advisor or coach and are to be used only in organized recreational activities or by legitimate members of the club or team in the normal course of the club or team's related activity.
(8) Failure to comply.
(a) Failure to comply with lawful and/or reasonable directions of university officials, public health officials, or law enforcement officers ((acting in performance of their duties on campus or affecting conduct on campus));
(b) Failure to identify oneself to university officials in their course of duty, refusal or failure to appear before university officials or disciplinary bodies when directed to do so;
(c) Failure to attend any medical treatment or evaluation program when directed to do so by the dean of students or other authorized university official.
(9) Trespassing/unauthorized use of keys.
(a) Trespass. Entering or remaining on university property without authorization.
(b) Unauthorized use of keys. Unauthorized possession, duplication, or use of university keys or access cards.
(10) Deception, forgery, fraud, unauthorized representation.
(a) Knowingly furnishing false information to the university.
(b) Forgery, alteration, or misuse of ((university)) documents, records, or instruments of identification. This includes situations of identity theft where a person knowingly uses or transfers another person's identification for any purpose. It also includes situations where a student knowingly obtains, possesses, or uses another person's identification or financial information with the intent to commit a crime.
(c) Forgery ((or)), issuing a bad check, or use of another person's access device, such as a debit card, credit card, EBT, or gift card, with intent to defraud.
(d) Unauthorized representation. The unauthorized use of the name of the university or the names of members or organizations in the university community.
(11) Safety.
(a) Intentionally activating a false fire alarm.
(b) Making a bomb threat.
(c) Tampering with fire extinguishers, alarms, or safety equipment.
(d) Tampering with elevator controls and/or equipment.
(e) Failure to evacuate during a fire, fire drill, or false alarm.
(12) Alcohol, drugs, and controlled substances.
(a) Alcohol and substance violations. Use, possession, distribution, or sale of alcoholic beverages (except as permitted by university policy and state law) is prohibited. Under no circumstances may individuals under the age of twenty-one use, possess, distribute, manufacture or sell alcoholic beverages. Public intoxication is prohibited.
(b) Drugs and paraphernalia.
(i) Use, possession, distribution, manufacture, or sale of illegal drugs, paraphernalia, narcotics or controlled substances, is prohibited.
(ii) Use, possession, distribution, manufacture, or sale of marijuana is prohibited except for reasons permitted under EWU Policy 602-01 (drug and alcohol abuse prevention).
(iii) Being under the influence of marijuana or an illegal substance, while on property owned or operated by the university, is prohibited. Being under the influence of a controlled substance, except when legally prescribed by a licensed medical practitioner, is also prohibited while on property owned or operated by the university.
(13) Hazing. Any act which, for the purpose of initiation, admission into, affiliation with, or as a condition for continued membership in, a group or organization:
(a) Endangers the mental or physical health or safety of any student or other person;
(b) Destroys or removes public or private property; or
(c) Compels an individual to participate in any activity which is illegal or contrary to university rules, regulations or policies.
The express or implied consent of any participant is not a defense. A person who is apathetic or acquiesces in the presence of hazing violates this rule.
(14) Disruptive conduct/obstruction.
(a) Disruptive conduct. Conduct which unreasonably interferes with any person's ability to work or study, or obstructs university operations or campus activities.
(b) Disorderly conduct. Conduct that is disorderly, lewd, indecent or a breach of peace.
(c) Obstruction. Obstruction of the free flow of pedestrian or vehicular traffic on university premises or at university-sponsored or university-supervised events.
(15) Violations of other laws, regulations and policies.
(a) Violation of a local, county, state, or federal law.
(b) Violation of other university policies, regulations, contracts, or handbook provisions.
(16) Assisting/attempts. Soliciting, aiding, abetting, concealing, or attempting conduct in violation of this code.
(17) Reckless endangerment. Engaging in conduct that creates an unreasonable risk of harm to self, another person, or property, regardless of whether or not a person or property is actually harmed. This includes, but is not limited to, operating a motor vehicle or having control over a motor vehicle while under the influence of alcohol, drugs, or both.
(18)Acts against the administration of this code.
(a) Initiation of a complaint or charge knowing that the charge was false or with reckless disregard of its truth.
(b) Interference with or attempt to interfere with the enforcement of this code including, but not limited to, intimidation or bribery of hearing participants, acceptance of bribes, dishonesty, or disruption of proceedings and hearings held under this code.
(c) Knowing violation of the terms of any disciplinary sanction or attached conditions imposed in accordance with this code.
(((18)))(19)Other responsibilities.
(a) Guests. A student, student group or student organization is responsible for the conduct of guests on or in university property and at functions sponsored by the university or sponsored by any recognized university organization.
(b) Students studying abroad. Students who participate in any university sponsored or sanctioned foreign country study program shall observe the following rules and regulations:
(i) The laws of the host country;
(ii) The academic and disciplinary regulations of the educational institution or residential housing program where the student is studying;
(iii) Any other agreements related to the student's study program in the foreign country; and
(iv) The student conduct code.
(((19)))(20)Student organization and/or group offenses. Clubs, organizations, societies or similarly organized groups in or recognized by the university and/or ASEWU are subject to the same standards as are individuals in the university community. The commission of any of the offenses in this section by such groups or the knowing failure of any organized group to exercise preventive measures relative to violations of the code by their members shall constitute a group offense.