DAR File No. 43933

Regents (Board of), Administration

Rule R765-801

Student Due Process

Notice of Proposed Rule

(New Rule)

DAR File No.: 43933
Filed: 07/30/2019 03:23:17 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule addresses the Utah System of Higher Education's obligation under the Student Civil Liberties Protection Act, Section 53B-27-302, which requires public institutions of higher education to file an administrative rule for campus policies that impact a student's civil liberties.

Summary of the rule or change:

In accordance with Section 53B-27-3, Campus Civil Liberties Protection Act, this rule establishes general rights to due process on campus as established by law. This rule incorporates by reference the institution's specific policies that impact student due process on campus for non-academic violations of conduct codes that would result in expulsion or suspension of ten days or more.

Statutory or constitutional authorization for this rule:

• Section 53B-27-302

This rule or change incorporates by reference the following material:

• Adds Utah State University Student Code, published by Utah State University, 04/10/2009
• Adds 154, Title IX, Harassment and Nondiscrimination , published by Dixie State University, 09/01/2016
• Adds Policy 6-400, Code of Student Rights and Responsibilities, Sections III(C), VI (C), published by University of Utah, 07/09/2009
• Adds Rule 1-012A, Discrimination Complaint Process Rule, published by University of Utah, 02/14/2017
• Adds Policy 11.2, Student Code of Conduct , published by Southern Utah University, 04/29/2016
• Adds Student Rights and Responsibilities , published by Snow College, 05/31/2019
• Adds Policy 305, Discrimination Complaints, published by Utah State University, 05/05/2016
• Adds 165 Discrimination, Harassment, and Affirmative Action , published by Utah Valley University, 06/18/2019
• Adds PPM 6-22, Student Code, published by Weber State University, 09/13/2018
• Adds Procedure 1-012, Discrimination Hearing Procedure, published by Univerisity of Utah, 02/14/2017
• Adds Rule 1-012B(III)(E-K), Sexual Misconduct Complaint Process Rule, published by University of Utah, 02/14/2017
• Adds 541 Student Code of Conduct, published by Utah Valley University, 11/29/2018
• Adds 502 Determination of Utah Resident Status for Tuition Purposes , published by Utah Valley University, 12/04/2014
• Adds 552, Student Rights and Responsibilities , published by Dixie State University, 04/28/2017
• Adds 162 Sexual Misconduct, published by Utah Valley University, 06/18/2019

Anticipated cost or savings to:

the state budget:

This rule incorporates existing campus policies that require institutions to provide students with due process. While there is an associated cost with providing due process, the institutions already comply with their policies and the elements of this rule. Consequently, this rule does not require additional cost to comply.

local governments:

There is no fiscal impact on local governments.

small businesses:

There is no fiscal impact on small businesses.

persons other than small businesses, businesses, or local governmental entities:

Students benefit from being provided due process, and while due process allows students to retain counsel at a potential cost, it is not required. Therefore, there is no associated fiscal impact to students.

Compliance costs for affected persons:

Students benefit from being provided due process, and while due process allows students to retain counsel at a potential cost, it is not required. Therefore, there is no associated fiscal impact to students. As previously stated, institutions are required under the Constitution and their own policies (incorporated by reference in this rule) to provide due process. This rule does not create additional compliance costs.

Comments by the department head on the fiscal impact the rule may have on businesses:

This rule provides students with due process rights. It does not have a direct or indirect fiscal impact on businesses.

Dave Woolstenhulme, Commissioner

The full text of this rule may be inspected, during regular business hours, at the Office of Administrative Rules, or at:

Regents (Board of)
Administration
BOARD OF REGENTS BUILDING, THE GATEWAY
60 SOUTH 400 WEST
SALT LAKE CITY, UT 84101-1284

Direct questions regarding this rule to:

• Geoff Landward at the above address, by phone at 801-321-7136, by FAX at , or by Internet E-mail at glandward@ushe.edu

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

09/16/2019

This rule may become effective on:

09/24/2019

Authorized by:

Dave Woolstenhulme, Commissioner of Higher Education

Appendix 1: Regulatory Impact Summary Table*

Fiscal Costs	FY 2020	FY 2021	FY 2022
State Government	$0	$0	$0
Local Government	$0	$0	$0
Small Businesses	$0	$0	$0
Non-Small Businesses	$0	$0	$0
Other Person	$0	$0	$0
Total Fiscal Costs:	$0	$0	$0
Fiscal Benefits
State Government	$0	$0	$0
Local Government	$0	$0	$0
Small Businesses	$0	$0	$0
Non-Small Businesses	$0	$0	$0
Other Persons	$0	$0	$0
Total Fiscal Benefits:	$0	$0	$0
Net Fiscal Benefits:	$0	$0	$0

 

*This table only includes fiscal impacts that could be measured. If there are inestimable fiscal impacts, they will not be included in this table. Inestimable impacts for State Government, Local Government, Small Businesses and Other Persons are described in the narrative. Inestimable impacts for Non-Small Businesses are described in Appendix 2.

 

Appendix 2: Regulatory Impact to Non-Small Businesses

This proposed rule is not expected to have any fiscal impact on non-small businesses' revenues or expenditures. The Student Civil Liberties Protection Act requires institutions of higher education to engage in rulemaking when their policies directly impact a student's civil liberties. The result is limited to certain student policies also being filed as administrative rules. Non-small businesses are neither impacted nor directly benefit from the student policies being enacted also as administrative rules.

 

The Commissioner of Higher Education, Dave Woolstenhulme, has reviewed and approved this fiscal analysis.

 

 

R765. Regents (Board of), Administration.

R765-801. Student Due Process.

R765-801-1. Purpose.

(1) In accordance with Title 53B, Chapter 27, Part 3, Campus Civil Liberties Protection Act, this rule establishes general elements of due process that institutions must provide to a student prior to being expelled or suspended for 10 days or more for non-academic code of conduct violations.

 

R765-801-2. References.

(1) United States Constitution, Amendment 14, Due Process.

(2) Utah Constitution, Article 1, Section 7, Due Process of Law.

(3) Title 53B, Chapter 27, Part 3, Campus Civil Liberties Protection Act.

 

R765-801-3. General Rights of Due Process.

(1) In matters of non-academic conduct that may result in either expulsion or a minimum 10-day suspension, institutions will provide students the following minimum due process:

(a) Notice: Prior to being interviewed about allegations of misconduct, the institution shall provide students with notice of the allegations against them and of their right to have an advisor throughout the process who may, but need not be, an attorney.

(i) During an inquiry, investigation, or other informal process, an advisor may only advise the student and may not actively participate in the investigation or informal process.

(b) Explanation of the evidence: Prior to a formal hearing, unless prohibited by reasonable circumstances, each party shall provide to the hearing committee chair (or hearing officer) copies of the documents they intend to submit as evidence and a list of witnesses they intend to call during the formal hearing. This information will be shared with both parties. In all circumstances, including informal processes, institutions will provide students an explanation of the evidence against them.

(c) Opportunity to respond: Institutions will provide students an opportunity for a full hearing at which they can respond to the allegations and evidence against them. With the agreement of all parties, institutions may also provide an informal hearing or opportunity to respond or an agreed upon informal resolution.

(i) At formal adjudicatory hearings, students may have an advisor advocate for them. The student's advisor may be an attorney. The student's advisor may actively participate in the hearing in accordance with the institution's policies regarding active participation.

 

R765-801-4. Standard of Proof.

Students are presumed not to have engaged in a Code of Conduct violation until an institution has established a violation by a preponderance of the evidence.

 

R765-801-5. Incorporations of Institutions' Policies.

Institutions have adopted the following policies that are incorporated by reference within this rule:

(1) Utah State University.

(a) Policy 305, Discrimination Complaints (May 6, 2016).

(b) Student Code Article VIII (April 10, 2009).

(2) Weber State University.

(a) PPM 6-22, Student Code (September 13, 2018).

(3) University of Utah.

(a) Policy 6-400, Code of Student Rights and Responsibilities, Sections III(C), VI (C) (July 9, 2009).

(b) Rule 1-012A, Discrimination Complaint Process Rule (February 14, 2017).

(c) Rule 1-012B(III)(E-K), Sexual Misconduct Complaint Process Rule (February 14, 2017).

(d) Procedure 1-012, Discrimination Hearing Procedure (February 14, 2017).

(4) Utah Valley University.

(a) 162 Sexual Misconduct (June 18, 2019).

(b) 165 Discrimination, Harassment, and Affirmative Action (June 18, 2019).

(c) 502 Determination of Utah Resident Status for Tuition Purposes (December 4, 2014).

(d) 541 Student Code of Conduct (November 29, 2018).

(5) Snow College.

(a) Student Rights and Responsibilities (May 31, 2019).

(6) Southern Utah University.

(a) Policy 11.2, Student Code of Conduct (April 29, 2016).

(7) Dixie State University.

(a) 154, Title IX, Harassment and Nondiscrimination (September 1, 2016).

(b) 552, Student Rights and Responsibilities (April 28, 2017).

 

KEY: civil liberties, due process

Date of Enactment or Last Substantive Amendment: 2019

Authorizing, and Implemented or Interpreted Law: 53B-27-302