Preproposal statement of inquiry was filed as WSR 23-07-017.
Title of Rule and Other Identifying Information: WAC 495-121-320, 495-121-330, 495-121-605, and 495-121-590, antihazing updates to student conduct code.
Hearing Location(s): On June 27, 2023, at 3 p.m., at W305A Board Room.
Date of Intended Adoption: July 19, 2023.
Submit Written Comments to: Dr. Sheila Walton, 11605 132nd Avenue N.E., Kirkland, WA 98034, email email@example.com, by June 25, 2023.
Assistance for Persons with Disabilities: Contact Dr. Sheila Walton, phone 425-739-8314, email firstname.lastname@example.org, by June 25, 2023.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Adoption of a new definition of hazing.
Institutions of higher education in Washington state are required to revise their student conduct codes to prohibit hazing both on and off campus. The act, which took effect on June 9, 2022, does not provide a deadline for completing conduct code revisions. Beginning in fall 2022, institutions of higher education must provide students with educational programming on hazing that includes information on hazing awareness, prevention, intervention, and the institutions of higher education policies prohibiting hazing. This programming can be provided either in person or electronically and must be part of the institutions of higher education's new student orientation sessions. The program must also be posted on the institutions of higher education's public website for the public, including parents, legal guardians, and volunteers, to review.
Rule change includes adding this new legislation to the student conduct code.
Reasons Supporting Proposal: HB [2SHB] 1751 requires adoption of new antihazing rules.
Rule is not necessitated by federal law, federal or state court decision.
Name of Agency Personnel Responsible for Drafting, Implementation, and Enforcement: Dr. Sheila Walton, E128C, 425-739-8314.
This rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal:
Elsa J. Gossett, Director
The following definitions apply for the purposes of this student conduct code:
(1) "Business day" means a weekday, excluding weekends and official college holidays.
(2) "College premises" shall include all campuses of the college, wherever located, and includes all land, buildings, facilities, vehicles, equipment, and other property the college owns, uses, or controls.
(3) "Complainant" means an alleged victim of sexual misconduct.
(4) "Conduct review officer" means the vice president of student services or other college administrator the president designates to have responsibility to receive and review or refer appeals of student disciplinary actions consistent with the procedures of this code. The president can reassign any and all of the conduct review officer's duties or responsibilities as set forth in this chapter as reasonably necessary.
(5) "Disciplinary action" means the process by which the student conduct officer imposes discipline against a student for a violation of the student conduct code.
(6) "Disciplinary appeal" means the process by which an aggrieved student can appeal the discipline imposed by the student conduct officer. The student conduct committee hears disciplinary appeals for a suspension in excess of ((ten))10 instructional days or a dismissal. The college will review appeals of all other appealable disciplinary action through brief adjudicative proceedings.
(7) "Filing" means the process by which a document is officially delivered to a college official responsible to facilitate a disciplinary review. Unless otherwise provided, filing shall be accomplished by:
(a) Hand delivery of the document to the specified college official or college official's assistant; or
(b) Sending the document by email or first class mail to the specified college official's office and college email address.
Papers required for filing are considered filed when the specified college official actually receives the papers during office hours.
(8) "Hazing" means any act committed as part of a person's recruitment, initiation, pledging, admission into, or affiliation with a student organization, athletic team, or living group, or any pastime or amusement engaged in with respect to such an organization, athletic team, or living group that causes, or is likely to cause, bodily danger or physical harm, or serious psychological or emotional harm, to any student or other person attending a public institution of higher education in this state, including causing, directing, coercing, or forcing a person to consume any food, liquid, alcohol, drug, or other substance which subjects the person to risk of such harm, regardless of the person's willingness to participate. "Hazing" does not include customary athletic events or other similar contests or competitions.
(9) "President" means the president of the college. The president is authorized to:
(a) Delegate any of their responsibilities as set forth in this chapter as may be reasonably necessary; and
(b) Reassign any and all duties and responsibilities as set forth in this chapter as may be reasonably necessary.
(((9)))(10) "Respondent" means the student against whom the college initiates disciplinary action.
(((10)))(11) "Service" means the process by which a document is officially delivered to a party. Unless otherwise provided, service upon a party shall be accomplished by:
(a) Hand delivery of the document to the party; or
(b) Sending the document by email or by certified mail or first class mail to the party's last known address.
Service is deemed complete upon hand delivery of the document or upon the date the document is emailed or deposited in the mail.
(((11)))(12) "Sexual misconduct" has the meaning ascribed to this term in WAC 495D-121-590(18).
(((12)))(13) "Student" includes all persons who take classes at or through the college, whether on a full-time or part-time basis, and whether such classes are credit courses, noncredit courses, online courses, or otherwise. People who withdraw after allegedly violating the code, who are not officially enrolled for a particular term but who have a continuing relationship with the college, or who were notified of their acceptance for admission are considered students for purposes of this chapter.
(((13)))(14) "Student conduct committee" means a college committee as described in WAC 495D-121-400.
(((14)))(15) "Student conduct officer" means a college administrator to whom the president or vice president of student services designates responsibility to implement and enforce the student conduct code. The president or vice president can reassign any and all of the student conduct officer's duties or responsibilities as set forth in this chapter as reasonably necessary.
(((15)))(16) "Student group" is a student organization, athletic or intramural team, or living group including, but not limited to, student clubs and organizations, members of a class or student cohort, student performance groups, and student living groups within student housing.
(17) "Title IX coordinator" means a college administrator to whom the president designates responsibility to implement and enforce the guidelines of federal Title IX legislation.
The college may impose disciplinary sanctions against a student who commits, or aids, abets, incites, encourages, or assists another person to commit, an act(s) of misconduct which include, but are not limited to, the following:
(1) Academic dishonesty. Any act of academic dishonesty including, but not limited to, cheating, plagiarism, and fabrication.
(a) Cheating includes any attempt to give or obtain unauthorized assistance relating to the completion of an academic assignment.
(b) Plagiarism includes taking and using as one's own, without proper attribution, the ideas, writings, or work of another person in completing an academic assignment. Prohibited conduct may also include the unauthorized submission for credit of academic work that has been submitted for credit in another course.
(c) Fabrication includes falsifying data, information, or citations in completing an academic assignment and also includes providing false or deceptive information to an instructor concerning the completion of an assignment.
(d) Academic consequences for academic dishonesty or abetting in academic dishonesty may be imposed at the discretion of a faculty member up to and including a failing grade for the course. Students should refer to each of their faculty's course syllabus. Further academic consequences may follow consistent with the provisions in any program handbook. Incidents of academic dishonesty may also be referred to the student conduct officer for disciplinary action consistent with this chapter in addition to the academic consequences identified above.
(2) Other dishonesty. Any other acts of dishonesty. Such acts include, but are not limited to:
(a) Forgery, alteration, submission of falsified documents or misuse of any college document, record, or instrument of identification;
(b) Tampering with an election conducted by or for college students; or
(c) Furnishing false information or failing to furnish correct information, in response to the request or requirement of a college officer or employee.
(3) Obstructive or disruptive conduct. Conduct, not otherwise protected by law, that interferes with, impedes, or otherwise unreasonably hinders:
(a) Any instruction, research, administration, disciplinary proceeding, or other college activity;
(b) The free flow of pedestrian or vehicular movement on college property or at a college activity;
(c) Any student's ability to profit from the instructional program; or
(d) Any activity that is authorized to occur on college property, whether or not actually conducted or sponsored by the college.
(4) Assault, intimidation, and/or harassment. Unwanted touching, physical abuse, verbal abuse, threat(s), intimidation, harassment, bullying, or other conduct which harms, threatens, or is reasonably perceived as threatening the health or safety of another person or another person's property. For purposes of this code, "bullying" is defined as repeated or aggressive unwanted behavior, not otherwise protected by law that intentionally humiliates, harms, or intimidates the victim.
(5) Imminent danger. Where the student presents an imminent danger to college property, or to themselves, or other students or persons in college facilities on or off campus, or to the education processes of the college.
(6) Cyber misconduct. Cyberstalking, cyberbullying, or online harassment. Use of electronic communications including, but not limited to, electronic mail, instant messaging, electronic bulletin boards, and social media sites to harass, abuse, bully or engage in other conduct which harms, threatens, or is reasonably perceived as threatening the health or safety of another person. Prohibited activities include, but are not limited to, unauthorized monitoring of another's email communications directly or through spyware, sending threatening emails, disrupting electronic communications with spam or by sending a computer virus, sending false messages to third parties using another's email identity, nonconsensual recording of sexual activity, and nonconsensual distribution of a recording of sexual activity.
(7) Property violation. Damage to, misappropriation of, unauthorized use or possession of, vandalism, or other nonaccidental damaging or destruction of college property or the property of another person. Property for purposes of this subsection includes computer passwords, access codes, identification cards, personal financial account numbers, other confidential personal information, intellectual property, and college trademarks.
(8) Noncompliance. Failure to comply with:
(a) The direction of a college officer or employee who is acting in the legitimate performance of their duties, including failure to properly identify oneself to such a person when requested to do so;
(b) A college rule or policy as set forth in the Lake Washington Institute of Technology Policies and Procedures Manual which may be found in the library or online.
(9) Weapons. Possession, holding, wearing, transporting, storage, or presence of any firearm, dagger, sword, knife or other cutting or stabbing instrument, club, martial arts weapons, explosive device, dangerous chemicals, or any other weapon apparently capable of producing bodily harm is prohibited on the college campus, subject to the following exceptions:
(a) Commissioned law enforcement personnel or legally authorized military personnel while in performance of their duties; or
(b) A student with a valid concealed weapons permit may store a firearm in their vehicle parked on campus in accordance with RCW 9.41.050
, provided the vehicle is locked and the weapon is concealed from view; or
(c) The president or designee may authorize possession of a weapon on campus upon a showing that the weapon is reasonably related to a legitimate pedagogical purpose. Such permission shall be in advance to bringing weapons to the college, in writing, and shall be subject to such terms or conditions incorporated therein.
(10) Hazing.((Hazing includes, but is not limited to, any initiation into a student organization or any pastime or amusement engaged in with respect to such an organization that causes, or is likely to cause, bodily danger or physical harm, or serious mental or emotional harm, to any student.))
(a) Hazing is any act committed as part of:
(i) A person's recruitment, initiation, pledging, admission into, or affiliation with a student group; or
(ii) Any pastime or amusement engaged in with respect to such a student group;
(iii) Any act that causes, or is likely to cause, bodily danger or physical harm, or serious psychological or emotional harm, to any student.
(b) Examples of hazing include, but are not limited to:
(i) Causing, directing, coercing, or forcing a person to consume any food, liquid, alcohol, drug, or other substance which subjects the person to risk of such harm;
(ii) Humiliation by ritual act;
(iii) Striking another person with an object or body part;
(iv) Causing someone to experience excessive fatigue, or physical and/or psychological shock; or
(v) Causing someone to engage in degrading or humiliating games or activities that create a risk of serious psychological, emotional, and/or physical harm.
(c) "Hazing" does not include customary athletic events or other similar contests or competitions.
(d) Consent is not a valid defense against hazing.
(11) Tobacco, electronic cigarettes, and related products. The use of tobacco, electronic cigarettes, and related products in any building owned, leased, or operated by the college or in any location where such use is prohibited, including ((twenty-five))25 feet from entrances, exits, windows that open, and ventilation intakes of any building owned, leased, or operated by the college. "Related products" include, but are not limited to, cigarettes, pipes, bidi, clove cigarettes, waterpipes, hookahs, chewing tobacco, and snuff.
(12) Alcohol. Being observably under the influence of any alcoholic beverage, or otherwise using, possessing, selling, or delivering any alcoholic beverage, except as permitted by law and authorized by the college president.
(13) Marijuana. The use, possession, delivery, sale, or being observably under the influence of marijuana or the psychoactive compounds found in marijuana and intended for human consumption, regardless of form. While state law permits the recreational use of marijuana, federal law prohibits such use on college premises or in connection with college activities.
The use, possession, delivery, sale, or being observably under the influence of any legend drug, including anabolic steroids, androgens, or human growth hormones as defined in chapter 69.41
RCW, or any other controlled substance under chapter 69.50
RCW, except as prescribed for a student's use by a licensed practitioner. Being observably under the influence of any lawfully prescribed drug when enrolled in classes that require operation of heavy equipment or other dangerous equipment.
(15) Disorderly conduct. Conduct which is disorderly, lewd, obscene, or a breach of peace on college premises or at college sponsored activities that is not otherwise protected under the law.
(16) Discriminatory conduct. Conduct which harms or adversely affects any member of the college community because of their race; color; national origin; sensory, mental or physical disability; use of a service animal; gender, including pregnancy; marital status; age; religion; creed; sexual orientation; gender identity; veteran's status; or any other legally protected classification.
(17) Sexual misconduct. The term "sexual misconduct" includes sexual harassment, sexual intimidation, and sexual violence. Sexual harassment prohibited by Title IX is defined in the supplemental procedures to this code. See WAC 495D-121-680 (supplemental Title IX student conduct procedures).
(a) Sexual harassment. The term "sexual harassment" means unwelcome sexual or gender-based conduct, including unwelcome sexual advances, requests for sexual favors, quid pro quo harassment, and other verbal, nonverbal, or physical conduct of a sexual or a gendered nature that is sufficiently severe, persistent, or pervasive as to:
(i) Deny or limit the ability of a student to participate in or benefit from the college's educational program;
(ii) Alter the terms or conditions of employment for a college employee(s); and/or
(iii) Create an intimidating, hostile, or offensive environment for other campus community members.
(b) Sexual intimidation. The term "sexual intimidation" incorporates the definition of "sexual harassment" and means threatening or emotionally distressing conduct based on sex, including, but not limited to, nonconsensual recording of sexual activity or the distribution of such recording.
(c) Sexual violence. "Sexual violence" is a type of sexual discrimination and harassment. Nonconsensual sexual intercourse, nonconsensual sexual contact, domestic violence, dating violence, and stalking are all types of sexual violence.
(d) 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.
(e) 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.
(f) 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))18.
(g) Statutory rape. Consensual intercourse between a person who is ((eighteen))18 years of age or older, and a person who is under the age of ((sixteen))16.
(h) 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
(i) Dating violence. Physical violence, bodily injury, assault, the infliction of fear of imminent physical harm, sexual assault, or stalking committed by a person:
(i) Who is or has been in a social relationship of a romantic or intimate nature with the victim; and
(ii) Where the existence of such a relationship shall be determined based on a consideration of the following factors:
(A) The length of the relationship;
(B) The type of relationship; and
(C) The frequency of interaction between the persons involved in the relationship.
(j) For purposes of this code, "consent" means knowing, voluntary, and clear permission by word or action, to engage in mutually agreed upon sexual activity. Each party has the responsibility to make certain that the other has consented before engaging in the activity. For consent to be valid, there must be at the time of the act of sexual intercourse or sexual contact actual words or conduct indicating freely given agreement to have sexual intercourse or sexual contact. A person cannot consent if they are unable to understand what is happening or are disoriented, helpless, asleep, or unconscious for any reason, including due to alcohol or other drugs. An individual who engages in sexual activity when the individual knows, or should know, that the other person is physically or mentally incapacitated has engaged in nonconsensual conduct. Intoxication is not a defense against allegations that an individual has engaged in nonconsensual sexual conduct.
(18) Harassment. Unwelcome and offensive conduct, including verbal, nonverbal, or physical conduct, that is directed at a person because of such person's protected status and that is sufficiently serious as to deny or limit, and that does deny or limit, the ability of a student to participate in or benefit from the college's educational program or that creates an intimidating, hostile, or offensive environment for other campus community members. Protected status includes a person's race; color; national origin; sensory, mental, or physical disability; age; religion; creed; genetic information; sexual orientation; gender identity; veteran's status; or any other legally protected classification. See "Sexual misconduct" for the definition of "sexual harassment." Harassing conduct may include, but is not limited to, physical conduct, verbal, written, social media and electronic communications.
(19) Retaliation. Harming, threatening, intimidating, coercing, or taking adverse action of any kind against a person because such person reported an alleged violation of this code or college policy, provided information about an alleged violation, or participated as a witness or in any other capacity in a college investigation or disciplinary proceeding.
(20) Misuse of information resources. Theft or other misuse of computer time or other electronic information resources of the college. Such misuse includes, but is not limited to:
(a) Unauthorized use of such resources or opening of a file, message, or other item;
(b) Unauthorized duplication, transfer, or distribution of a computer program, file, message, or other item;
(c) Unauthorized use or distribution of someone else's password or other identification;
(d) Use of such time or resources to interfere with someone else's work;
(e) Use of such time or resources to send, display, or print an obscene or abusive message, text, or image;
(f) Use of such time or resources to interfere with normal operation of the college's computing system or other electronic information resources;
(g) Use of such time or resources in violation of applicable copyright or other law;
(h) Adding to or otherwise altering the infrastructure of the college's electronic information resources without authorization;
(i) Failure to comply with the college's acceptable use policy.
(21) Breach of campus safety. Safety violation includes any nonaccidental conduct that interferes with or otherwise compromises any college policy, equipment, or procedure relating to the safety and security of the campus community. Breaching campus safety or security includes, but is not limited to:
(a) Unauthorized access to college facilities; intentionally damaging door locks; unauthorized possession of college keys or access cards; duplicating college keys or access cards; propping open of exterior doors; or unauthorized entry onto or into college property;
(b) Tampering with fire safety equipment, such as fire extinguishers, smoke detectors, alarm pull stations or emergency exits or triggering false alarms or other emergency response systems;
(c) Placement of equipment or vehicles, including bicycles, so as to obstruct the means of access to/from college buildings;
(d) Entering or remaining in any closed college facility or entering after the closing time of the college facility without permission of a college official;
(e) Operation of any motor vehicle on college property in an unsafe manner or in a manner which is reasonably perceived as threatening the health or safety of another person.
(22) Abuse of procedures. Abuse or misuse of any of the procedures relating to student complaints or misconduct including, but not limited to:
(a) Failure to obey a subpoena;
(b) Falsification or misrepresentation of information;
(c) Disruption or interference with the orderly conduct of a proceeding;
(d) Interfering with someone else's proper participation in a proceeding;
(e) Destroying or altering potential evidence or attempting to intimidate or otherwise improperly pressure a witness or potential witness;
(f) Attempting to influence the impartiality of, or harassing or intimidating, a student conduct committee member;
(g) Failure to comply with any disciplinary sanction(s) imposed under this student conduct code.
(23) Violation of other laws or policies. Violation of any federal, state, or local law, rule, or regulation or other college rules or policies, including college traffic and parking rules.
(24) Ethical violation. The breach of any generally recognized and published code of ethics or standards of professional practice that governs the conduct of a particular profession for which the student is taking a course or is pursuing as an educational goal or major.
In addition to initiating discipline proceedings for violation of the student conduct code, the college may refer any violations of federal, state, or local laws to civil and criminal authorities for disposition. The college reserves the right to pursue student disciplinary proceedings regardless of whether the underlying conduct is subject to civil or criminal prosecution.