§ 6-60-1404 — Procedural protections

(a) (1) The procedural protections established by this subchapter shall apply only to a serious violation. (2) An institution shall not impose a sanction of suspension or expulsion for a violation of a nonacademic rule under an institution's student code of conduct unless the procedural protections established by this subchapter are followed. (b) (1) An institution shall maintain an administrative file of all disciplinary proceedings. (2) The administrative file required under subdivision (b)(1) of this section shall include without limitation all documents and evidence in the institution's possession or control that are relevant to an alleged violation of the institution's code of student conduct and the institution's investigation into the alleged violation of the institution's code of student conduct, including without limitation: (A) Exculpatory evidence; (B) Statements by an accuser or an accused student or a student organization; (C) Third-party witness statements; (D) Electronically stored information; (E) Written communications; (F) Social media posts; (G) Demonstrative evidence; (H) Documents submitted by any participant involved in disciplinary proceedings; and (I) The institution's choice of a video recording, an audio recording, or a transcript of any disciplinary hearing ultimately held on the matter. (3) The administrative file required under subdivision (b)(1) of this section shall not include privileged documents, internal communications, or communications from nonparties that the institution does not intend to introduce as evidence at a disciplinary proceeding. (c) (1) A student who is accused of a serious violation and who is enrolled at an institution shall have the following disciplinary rights and be subject to the following procedures: (A) The right to receive a copy of this subchapter at the inception of the disciplinary matter; (B) (i) The right to be represented by: (a) An attorney; or (b) A non-attorney advocate if the student or student organization prefers. (ii) An attorney or non-attorney advocate representing a student or student organization under subdivision (c)(1)(B)(i) of this section may fully participate during a disciplinary proceeding. (iii) The right of a student or student organization to be represented by an attorney or non-attorney advocate under subdivision (c)(1)(B)(i) of this section applies until the conclusion of any institution appellate process. (iv) (a) It shall be the student's or the student organization's responsibility to make arrangements for the use of an attorney or a non-attorney advocate as permitted under subdivision (c)(1)(B)(i) of this section. (b) An institution shall not be responsible for providing, training, or paying for the services of an attorney or a non-attorney advocate; (C) (i) The express presumption of innocence. (ii) A student or student organization shall not be deemed guilty of a violation of the code of student conduct of an institution until: (a) A student or student organization formally acknowledges responsibility for a violation of the code of student conduct; or (b) The conclusion of a disciplinary proceeding during which an institution has established every element of an alleged violation by the student or student organization; (D) The right to have the opportunity for a live hearing, including the right to: (i) (a) Be present at a disciplinary proceeding. (b) (1) A student or student organization may waive the right to be present at a disciplinary proceeding. (2) A waiver under subdivision (c)(1)(D)(i) (b)(1) of this section shall be: (A) Provided in writing by the student or student organization; and (B) Signed by the student or student organization and the adjudicator of the disciplinary proceeding. (3) A copy of the signed waiver required under subdivision (c)(1)(D)(i) (b)(2)(B) of this section shall be provided to the student or student organization and placed in the administrative file required under subdivision (b)(1) of this section. (4) If a student or student organization waives the right to be present at a disciplinary proceeding under subdivision (c)(1)(D)(i) (b)(1) of this section, the student or student organization shall not have a right to appeal an institution's initial decision under subdivision (c)(1)(F) of this section; (ii) Make an opening and closing statement; (iii) Present relevant evidence; and (iv) Cross-examine adverse witnesses through an attorney or non-attorney advocate, which the student is responsible for selecting and compensating; (E) The right to be advised by an institution of the student's or student organization's rights under this subchapter: (i) Before a disciplinary proceeding is scheduled; and (ii) At least twenty-four (24) hours before a student or student organization may be questioned by the institution or an agent of the institution regarding any allegation of a serious violation, provided that nothing in this subchapter restricts the ability of campus law enforcement to investigate a possible criminal violation; (F) (i) The opportunity to appeal an institution's initial decision to an appellate entity that is an institutional employee or body that did not make the initial decision finding the student or student organization to be in violation of the institution's nonacademic or code of student conduct rules. (ii) An appeal under subdivision (c)(1)(F)(i) of this section shall be filed within twenty-five (25) days after a student or student organization receives final notice of an institution's decision. (iii) (a) An institution may designate the appellate entity as the final institutional authority. (b) However, nothing in this subchapter precludes a court from granting a prevailing plaintiff equitable relief; (G) (i) Reasonable continuing access to the administrative file required under subdivision (b)(1) of this section that pertains to the student's or student organization's alleged violation and the ability to review all evidence or documents in the administrative file beginning at least seven (7) business days before a disciplinary hearing, or sooner if otherwise specified by federal law. (ii) However, individual portions of the administrative file shall be redacted if confidentiality of the evidence is required by law; (H) (i) The right for a disciplinary proceeding to be carried out free from conflicts of interest by ensuring that there is no commingling of administrative or adjudicative roles. (ii) An institution shall be considered to be commingling administrative or adjudicative roles if an individual carries out more than one (1) of the following roles with respect to the disciplinary proceeding: (a) Attorney or non-attorney advocate for a complaining or accused student or student organization; (b) Investigator; (c) Adjudicator; or (d) Appellate adjudicator. (iii) It is not a conflict of interest under this subdivision (c)(1)(H) for the institution's investigator to simultaneously serve as the individual who presents evidence to an adjudicator; and (I) The right of a student or student organization that makes a complaint against another student or student organization for purposes of a disciplinary hearing to: (i) (a) Be represented at the student's or student organization's own expense by an attorney or, if the complaining student or student organization prefers, an non-attorney advocate, who may fully participate during a disciplinary proceeding. (b) The right of a student or student organization to be represented by an attorney or non-attorney advocate under subdivision (c)(1)(I)(i) (a) of this section applies until the conclusion of any institution appellate process; (ii) (a) Have reasonable continuing access to the administrative file required under subdivision (b)(1) of this section that pertains to the student's or student organization's allegation and the ability to review all evidence or documents in the administrative file beginning at least seven (7) business days before a disciplinary hearing, or sooner if otherwise specified by federal law. (b) However, individual portions of the administrative file required under subdivision (b)(1) of this section shall be redacted if confidentiality of the evidence is required by law; and (iii) (a) Appeal an institution's decision following a disciplinary proceeding on grounds set forth in the institution's student code of conduct. (b) An institution shall provide simultaneous notification to both the student or student organization that makes a complaint against another student or student organization and the student or student organization that is the subject of a complaint regarding the institution's procedures to appeal the result of a disciplinary hearing. (2) The rights provided under subdivision (c)(1) of this section shall be included in each institution's code of student conduct. (d) (1) At the conclusion of a disciplinary proceeding or an appeal that involves a serious violation, an institution's chancellor or vice chancellor of student affairs shall certify that the substantial rights of student complainants and respondents as established under this subchapter have been followed. (2) The certification required under subdivision (d)(1) of this section shall be maintained in the administrative file required under subdivision (b)(1) of this section.

Legislative History

Added by Act 2023, No. 470,§ 2, eff. 8/1/2023.