164.370 Definitions -- Code for student conduct -- Disciplinary procedures and

2,060 words·~9 min read·/ky/164-370

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

hearing for alleged violation -- Final order of suspension or expulsion of

students -- Right to appeal.

(1)For the purposes of this section:

(a)"Complainant" means a student who has formally filed a complaint alleging

that the student is the victim of a violation of the code for student conduct

promulgated by the governing body of an institution;

(b)"Institution" means the following public postsecondary education institutions:

University of Kentucky, University of Louisville, Eastern Kentucky

University, Kentucky State University, Morehead State University, Murray

State University, Northern Kentucky University, and Western Kentucky

University;

(c)"Governing board" means the Boards of Trustees or Boards of Regents of an

institution;

(d)"Participant" means a respondent or a complainant;

(e)"Respondent" means a student who has been formally accused of a violation

of the code for student conduct promulgated by the governing board of an

institution;

(f)"Student" has the same meaning as in KRS 164.348; and

(g)"Title IX" means Title IX of the Education Amendments of 1972, 20 U.S.C.

sec. 1681 et seq., applicable federal regulations, and binding federal judicial

precedent.

(2)Each governing board shall adopt a code for student conduct that clearly sets forth

the rules for nonacademic student conduct and establishes disciplinary procedures

to enforce those rules. The disciplinary procedures shall set forth rules for

establishing the admissibility of evidence that are consistent with KRS 13B.090,

KRE 412, and Title IX.

(3)At a minimum, when a violation is punishable by a suspension or expulsion from

the institution or termination of a respondent's residence in campus housing, the

disciplinary procedures contained in the code for student conduct shall:

(a)1. Afford a respondent the presumption that the respondent is innocent and

has not committed a violation of the code for student conduct until the

institution has established every element of the alleged violation; and

2. Clearly state that the presumption afforded by subparagraph 1. of this

paragraph shall not be construed to mean that the complainant or any

witness has presented false testimony or evidence;

(b)Provide a participant written notice of:

1. A formal charge of an alleged violation and the specific details of the

facts upon which the alleged violation is based;

2. The rights of the participant as set forth in this section, the code for

student conduct, and any other applicable law; and

3. The date, time, and location of each phase of the disciplinary process at

least:

a. Three

(3)business day prior to any scheduled event at which the

participant is expected to appear, including any meeting or

interview that serves an investigative purpose; and

b. Ten

(10)business days prior to any disciplinary hearing;

disciplinary proceedings. The file shall include all documents and

evidence in the institution's possession or control relevant to the alleged

violation and the institution's investigation thereof, including but not

limited to exculpatory evidence, documents submitted by any

participant, and the institution's choice of a video recording, an audio

recording, or a transcript of any disciplinary hearing ultimately held in

the matter but shall not include privileged documents or internal

memorandums that the institution does not intend to introduce as

evidence at any hearing on the matter;

2. Provide a participant reasonable continuing access to the administrative

file and the ability to make copies of all evidence or document contained

therein beginning at least seven

(7)business days prior to any

disciplinary hearing, or sooner if otherwise specified under federal law,

except that individual portions of the administrative file may be redacted

if disclosure of the evidence is otherwise prohibited by law;

3. Require that all documentary or tangible evidence that the institution or

a participant intends to introduce at a disciplinary hearing be submitted

to the administrative file at least three

(3)business days prior to the

disciplinary hearing, or sooner if otherwise specified under federal law.

Any documentary or tangible evidence that is submitted less than three

(3)days prior to the disciplinary hearing shall only be admissible upon

the discretion of the hearing officer. An institution shall immediately

notify a participant when documents and evidence are added to the

administrative file within three

(3)business days of a disciplinary

hearing;

4. Require that the institution and participants submit a list of all witnesses

the institution or participant expects to call at the disciplinary hearing to

the administrative file at least three

(3)business days prior to the

hearing, or sooner if otherwise specified under federal law. Additional

witnesses submitted less than three

(3)business days prior to the

disciplinary hearing shall only be permitted upon the discretion of the

hearing officer. An institution shall immediately notify a participant

when a witness is added to list of institutional witnesses within three

business days of a disciplinary hearing;

5. Require that only evidence contained in the administrative file that is

determined by the hearing officer to be relevant and admissible may be

considered in the determination of whether a violation occurred,

including but not limited to the audio recording, video recording, or

transcript of any disciplinary hearing ultimately held in the matter; and

6. Unless otherwise specified under federal law, require that the institution

maintain the administrative file:

a. Permanently if a violation results in the expulsion of a student; or

b. In all other matters, the later of either:

i. Three

(3)years after the respondent's graduation or last date

of attendance; or

ii. Three

(3)years after all sanctions have been met;

(d)Provide a participant the right to:

1. Be present and participate meaningfully at any disciplinary hearing,

interim measure hearing, or other scheduled event where the rights of

the respondent are to be determined, except as restricted by Title IX;

2. Fair and impartial treatment at each phase of the disciplinary process,

which shall exclude any individual that conducts an investigation or

presides over an alternative dispute resolution process related to the

matter from participating as a hearing adjudicator or on a hearing

tribunal; and

3. Provide a limited waiver of the confidentiality of any phase of the

disciplinary process to permit the attendance of up to two

(2)support

persons so long as the support persons would not violate the privacy

rights of another student or substantially delay the disciplinary process.

A support person shall have no right to participate unless the support

person is attending as an advisor to the participant in accordance with

Title IX; and

(e)In addition to the rights set forth in paragraphs

(a)to

(d)of this subsection, if

an alleged violation is punishable by a final order of suspension of three

(3)or

more days or expulsion from the institution or termination of a respondent's

residence in campus housing, provide a participant:

1. At the participant's own expense, the right to be represented by counsel

or, if required by Title IX, an advisor, at each material phase of the

disciplinary process, including but not limited to any alternative dispute

resolution phase, meeting, hearing, or appeal of the matter. Upon written

notification of representation, this right shall require an institution to

direct all correspondence related to the disciplinary proceeding to both

the participant's counsel or advisor and to the participant; and

2. At any hearing, the right to:

a. Make opening and closing statements;

b. Present relevant evidence; and

c. Cross-examine any testimony personally or through counsel.

Cross-examination of a student who is a victim or the complainant

that is personally conducted by a respondent shall require:

i. The participant to submit the questions to a neutral hearing

officer. The neutral hearing officer shall ask all relevant

questions to the student witness during the live hearing, state

the specific rationale for excluding any question, and grant a

participant the right to amend a question that has been

excluded in order to cure any objection thereto sustained by

the hearing officer, and to submit follow up questions to the

student witness; and

ii. Cross-examination be restricted as required by Title IX or

other applicable federal law.

(a)Subject to subsection

(3)of this section, a governing board may invest the

faculty, administration, or a representative committee of designated faculty,

staff, and students with the power to suspend or expel any student from the

institution, or otherwise discipline a student, for a violation of its code for

student conduct.

(b)If, after a hearing on the matter, a violation results in a final order of

suspension of a respondent for three

(3)or more days or expulsion of a

respondent from the institution or termination of a respondent's residence in

campus housing, the disciplinary procedures shall grant the respondent the

right to appeal to the governing board or its designee. The disciplinary

procedures shall prescribe the manner and the mode of procedure on appeal.

The decision of the governing board or its designee shall be a final order.

(c)If, after a hearing on the matter, an allegation of conduct that constitutes

sexual discrimination as defined by Title IX does not result in a finding of a

violation, the disciplinary procedures shall grant the complainant the right to

appeal to the governing board or its designee in the same manner as prescribed

to the respondent pursuant to paragraph

(b)of this subsection.

(d)Notwithstanding KRS 13B.020(2)(i), a respondent, or a complainant as

required by Title IX, shall have the right to appeal a final order of the

governing board or its designee in accordance with KRS 13B.140, except that

a participant who has the final order overturned for a violation of this section

shall be entitled to actual damages from the institution, including reasonable

attorney's fees and court costs.

(5)Nothing in this section shall be interpreted to:

(a)Impede or delay law enforcement officials in investigating an alleged violation

of local, state, or federal law;

(b)Impair an institution's ability to take reasonable interim measures necessary to

ensure the physical safety of members of the campus community during a

timely investigation and adjudication of a student disciplinary issue, including

but not limited to the ability to make adjustments in student housing

arrangements, impose conditions of no-contact between the respondent and

complainant, temporarily suspend a student, or ban a student from campus.

Such reasonable interim measures shall require:

1. Within twenty-four

(24)hours, written notice of the interim measures

that explains the institution's reasons for enacting the interim measures;

and

2. Within three

(3)business days of the written notice, unless otherwise

waived by the respondent, an interim measure hearing to determine

whether there is substantial evidence that the respondent poses a risk to

the physical safety of a member of the campus community and that the

interim measure is appropriate to mitigate that risk. At the interim

measure hearing, a respondent shall have the right to be represented as

set forth in subsection (3)(e)1. of this section. A respondent's waiver of

the right to an interim measure hearing shall not constitute an admission

of guilt or a waiver of any additional rights afforded under this section

and KRS 164.372;

(c)Impair an institution's duty or ability to implement any measure necessary to

effectuate a valid judicial order, including but not limited to termination of a

respondent's residence in campus housing. Notwithstanding paragraph

(b)of

this subsection, measures necessary to effectuate a judicial order shall not be

subject to an interim measure hearing;

(d)Impair an institution's ability to terminate a student's residence in campus

housing for any reason other than a violation of the code for student conduct,

including but not limited to a breach of any housing contract between the

student and campus housing;

(e)Impair an institution's ability to require one

(1)or more complainants to serve

as a representative of a class of student victims if:

1. The class is so numerous that joinder of all members is impracticable;

2. There are questions of law or fact common to the class;

3. The claims or defenses of the representatives are typical of the claims or

defenses of the class; and

4. The representative parties will fairly and adequately protect the interests

of the class; and

(f)Limit any additional rights afforded to a student under federal law, including

Title IX or the Jeanne Clery Disclosure of Campus Security Policy and

Campus Crime Statistics Act of 1990, 20 U.S.C. sec. 1092(f).