WSR 22-07-065
[Filed March 17, 2022, 3:19 p.m.]
Original Notice.
Preproposal statement of inquiry was filed as WSR 22-03-095.
Title of Rule and Other Identifying Information: Title IX student conduct code procedures: Amending WAC 132I-126-505, 132I-126-565, and 132I-126-585.
Hearing Location(s): On Wednesday, May 4, 2022, at 3-4 p.m. Join Zoom meeting, meeting ID 528 777 0355. Please contact Ay Saechao, dean of student support and funding services, 206-592-3303 or, for accommodation requests.
Date of Intended Adoption: May 4, 2022.
Submit Written Comments to: Ay Saechao, 2400 240th Des Moines, WA 98198-9800, email, fax 206-592-3772, 206-592-3303, by 5 p.m., May 10, 2022.
Assistance for Persons with Disabilities: Contact Ay Saechao, phone 206-592-3303, fax 206-592-3772, email, [], by 5 p.m., Monday, May 2, 2022.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Recent guidance provided by the United States Department of Education Office of Civil Rights dated August 24, 2021, allows the college to remove cross-examination requirements for Title IX cases.
Reasons Supporting Proposal: Amending the Title IX policy and procedures is necessary to be in alignment with recent federal guidance and case law.
Statutory Authority for Adoption: RCW 28B.50.140.
Statute Being Implemented: RCW 28B.50.140.
Rule is necessary because of federal law, and federal court decision 85 F.R. 30575, Victim Rights Law Center et al. v. Cardona, No. 1:20-cv-11104, 2021 WL 3185743 (D. Mass. July 28, 2021).
Name of Proponent: Highline College, public.
Name of Agency Personnel Responsible for Drafting, Implementation, and Enforcement: Ay Saechao, 2400 South 240th Street, Des Moines, WA 98198, 206-592-3303.
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.
This rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal:
Is exempt under RCW 19.85.025(3) as the rules adopt, amend, or repeal a procedure, practice, or requirement relating to agency hearings; or a filing or related process requirement for applying to an agency for a license or permit.
March 17, 2022
Ay Saechao
Dean of Student Support
and Funding Services
AMENDATORY SECTION(Amending WSR 21-14-003, filed 6/23/21, effective 7/24/21)
WAC 132I-126-505Order 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 college's standard disciplinary procedures, WAC 132I-126-010 through 132I-126-300, these supplemental procedures shall take precedence. Highline 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 21-14-003, filed 6/23/21, effective 7/24/21)
WAC 132I-126-565Evidence.
The introduction and consideration of evidence during the hearing is subject to the following procedures and restrictions:
(1) Relevance: The committee chair shall review all questions for relevance and shall explain on the record their reasons for excluding any question based on lack of relevance.
(2) Relevance means that information elicited by the question makes facts in dispute more or less likely to be true.
(3) Questions or evidence about a complainant's sexual predisposition or prior sexual behavior are not relevant and must be excluded, unless such question or evidence:
(a) Is asked or offered to prove someone other than the respondent committed the alleged misconduct; or
(b) Concerns specific incidents of prior sexual behavior between the complainant and the respondent, which are asked or offered on the issue of consent.
(4) ((Cross-examination required: If a party or witness does not submit to cross-examination during the live hearing, the committee must not rely on any statement by that party or witness in reaching a determination of responsibility.
(5))) No negative inference: The committee may not make an inference regarding responsibility solely on a witness's or party's absence from the hearing or refusal to answer questions.
(((6)))(5) Privileged evidence: The committee shall not consider legally privileged information unless the holder has effectively waived the privilege. Privileged information includes, but is not limited to, information protected by the following:
(a) Spousal/domestic partner privilege;
(b) Attorney-client and attorney work product privileges;
(c) Privileges applicable to members of the clergy and priests;
(d) Privileges applicable to medical providers, mental health therapists, and counselors;
(e) Privileges applicable to sexual assault and domestic violence advocates; and
(f) Other legal privileges identified in RCW 5.60.060.
AMENDATORY SECTION(Amending WSR 21-14-003, filed 6/23/21, effective 7/24/21)
WAC 132I-126-585Appeals.
(((1) The parties shall have the right to appeal from the initial order's determination of responsibility and/or dismissal of an allegation(s) of sexual harassment in a formal complaint. The right to appeal will be subject to the same procedures and time frames set forth in WAC 132I-126-300.
(2) The president or their delegate will determine whether the grounds for appeal have merit, provide the rationale for this conclusion, and state whether the disciplinary sanction and condition(s) imposed in the initial order are affirmed, vacated, or amended, and, if amended, set forth any new disciplinary sanction and/or condition(s).
(3) President's office shall serve the final decision on the parties simultaneously.))(1) All parties, including the student conduct officer in their capacity as a representative of the college, have the right to appeal from the determination of responsibility and/or from a dismissal, in whole or part, of a formal complaint during the investigative or hearing process. Appeals must be in writing and filed with the president's office within 21 days of service of the initial order or notice of dismissal. Appeals must identify the specific findings of fact and/or conclusions of law in the initial order or dismissal that the appealing party is challenging and must contain argument as to why the appeal should be granted. Failure to file a timely appeal constitutes a waiver of the right to appeal and the initial order or dismissal shall be deemed final.
(2) Upon receiving a timely appeal, the president's office will serve a copy of the appeal on all parties, who will have 10 days from the date of service to submit written responses to the president's office addressing issues raised in the appeal. Failure to file a timely response constitutes a waiver of the right to participate in the appeal. Upon receipt of written responses, the president's office shall serve copies of the responses to the other parties.
(3) Parties receiving a copy of the responses shall have five days in which to submit a written reply addressing issues raised in the responses to the president's office.
(4) The president or their delegate, based on their review of parties' submissions and the hearing or investigative record, will determine whether the grounds for appeal have merit, provide the rationale for this conclusion, and state whether a dismissal if affirmed or denied, or if the disciplinary sanctions and conditions imposed in the initial order are affirmed, vacated, or amended, and, if amended, set forth the new disciplinary sanctions and conditions.
(5) The president's office shall serve the final decision on the parties simultaneously.
(6) All administrative decisions reached through this process are and may be judicially appealed pursuant to applicable provisions of chapter 34.05 RCW including, but not limited to, the timelines set forth in RCW 34.05.542. No decisions or recommendations arising from this disciplinary procedure will be subject to grievance pursuant to any collective bargaining agreement.