Spring 2020 Code Revisions - Section 6: Hearing Panel Procedures
Please note that a * denotes a section that has corresponding CJC comments that the committee wishes the public to review.
If, as a result of an investigation, the OSCCS determines that it has met the burden of proof that a violation of the Code has been committed in a case where the OSCCS recommends sanctions of disciplinary probation, suspension or explusionl and an Administrative Resolution or Administrative Resolution by Mediation/ADR has not been reached, then the OSCCS shall promptly refer the case to the Hearing Panel by filing charges with a Hearing Panel Chair and by notifying the Logistics Chair that a Hearing Panel should be scheduled in the case. The hearing procedures in sections 6.3, 6.4, 6.5, 6.6, and 6.7 apply to both merits and sanctions-only hearings.
In any case referred to the Hearing Panel for a hearing:
- The OSCCS shall make a good faith effort to give notice of the hearing within ten (10) business days prior to the hearing
- The notice of the hearing shall contain:
- the time and place of the hearing;
- specification of the charges against the respondent; and
- statement of the respondent’s rights to be accompanied by counsel or an advisor of the respondent’s choice, to hear the evidence against the respondent, to question witnesses, and to give evidence in the respondent’s own behalf; and the name of the Hearing Panel Chair; and, if determined, the Hearing Panel members. If the notice does not include the name of the Hearing Panel members, the parties will be so notified, in writing, at a later time, prior to the hearing.
A Hearing Panel shall be composed of a faculty or staff Hearing Panel Chair (non-voting), three students, one faculty member, and one staff member, all drawn from the Administrative, Hearing, and Appeal Panels pool. One alternative panelist from each constituency shall be drawn from this same pool and shall be available to sit on the panel if a panel member from that constituency cannot remain on the panel.
Selection of a Hearing Panel, whenever one is needed, shall be made randomly by the Logistics Chair of that pool.
A member of the Hearing Panel may voluntarily withdraw from participation in any case by reason of a conflict of interest or any other good cause. Knowledge of the events at issue shall not disqualify a member, unless the panel member has first-hand knowledge of the events at issue, has been directly involved in those events, or is personally interested with regard to the outcome, in which circumstance the member shall be excused by vote of the Hearing Panel. Any person aware of such circumstance concerning a member shall call it to the attention of the Hearing Panel Chair.
The Hearing Panel shall hold a hearing within twenty (20) business days of receipt of the Formal Complaint by the Hearing Panel Chair, unless otherwise provided by the Code, postponed by agreement of the parties, or postponed by the Hearing Panel Chair for good cause shown. Absent extenuating circumstances, requests to reschedule must be submitted at least three (3) business days prior to the hearing.
Names and written statements of any witnesses to be called at the hearing by the OSCCS or by the respondent, shall be exchanged no later than five business days prior to the hearing. The Hearing Panel, in its discretion, may exclude a witness’s testimony if it determines that the OSCCS or the respondent has failed to comply with this provision as to that witness.
Copies of exhibits to be used at the hearing by the OSCCS or by the respondent, if known at the time, shall be exchanged no later than five (5) business days prior to the hearing. Any objections to exhibits shall be made to the Chair of the Hearing Panel for the Chair’s ruling in advance of the hearing. Copies of the exhibits shall be made available to panelists prior to the commencement of the hearing. The Hearing Panel, in its discretion, may exclude an exhibit if it determines that the OSCCS or the respondent has failed to comply with this provision.
The Hearing Panel Chair shall convene the Hearing Panel. The Hearing Panel Chair shall conduct the proceedings and maintain order in the hearing room. The Hearing Panel Chair shall make procedural rulings before or at the hearing, applying these procedures and the procedures developed by the Hearing Panel, so as to assure fairness and to avoid undue delay. However, all procedural rulings of the Hearing Panel Chair, other than a decision to postpone the initial convening of a hearing, shall be subject to the approval and concurrence of the Hearing Panel as a whole. The Hearing Panel may overrule the procedural rulings of the Hearing Panel Chair by ordinary majority vote.
At least four members of a five-person Hearing Panel must sit for a given case, in addition to the nonvoting Hearing Panel Chair, and at least three votes shall be required for any decision.
At the hearing, the case shall be presented by the OSCCS in the name of the University or, when applicable, in the name of a designated named complainant. Whether a named complainant participates or not, the OSCCS will present the case.
The failure of the respondent to appear at the time and place designated for the respondent’s appearance before the Hearing Panel empowers the Hearing Panel to:
- impose a temporary suspension, pending the respondent’s appearance;
- find the respondent to have violated the Student Code of Conduct and impose appropriate penalties and/or remedies, but the Hearing Panel may do so only if the OSCCS shows that the respondent received notice of the hearing, or that the procedures for notifying the respondent were followed, and submits information sufficient to establish the allegations in the charges; or
- excuse the failure to appear for good cause shown, in which case the respondent shall have the option of having the case heard in absentia, with the privilege of submitting written evidence, or of having a new date set for a hearing.
Typically, the format of the hearing will be as follows:
- Introduction by the Hearing Chair; the Hearing Chair will explain the hearing process, address any necessary procedural issues, and answer questions.
- Oral opening statements by the OSCCS and the Respondent. The Respondent may reserve an opening statement until after the OSCCS presents its case.
- Testimony by witnesses called by the OSCCS, followed by cross-examination.
- Testimony by the Respondent and other witnesses called by the Respondent, followed by cross-examination.
- Testimony by any other witnesses.
- Closing statements by the OSCCS and the Respondent.
All hearings shall be private.
*The CJC voted 5-3 to make all hearings private. The 3 who voted against believed that there should be some exceptions to allow for a public hearing. The existing code allows for public hearings in certain circumstances and believed those exceptions should be included.*
The Hearing Panel shall review all relevant information in a given case at the hearing.
The OSCCS and the respondent shall have the right to present evidence and witnesses. Members of the Hearing Panel may question witnesses and seek further information, but this shall not preclude OSCCS or the respondent from questioning witnesses or presenting information pertaining to the case. The respondent’s counsel or advisor must have a reasonable opportunity to participate fully in the hearings. However, the Hearing Panel Chair shall control the hearing. For cases involving interpersonal misconduct, such as harassment, hazing, and assault and endangerment, and when the Hearing Panel Chair believes that direct questioning of a witness would result in undue intimidation, the Chair and the Panelists will ask questions
instead of the respondent, in which case the respondent may submit proposed questions to the Chair.
Respondents shall not be compelled to testify against themselves. The hearing can proceed even if the respondent chooses to remain silent.
If an individual complainant does not testify, the Hearing Panel may proceed to decision only if it finds that the complainant’s interests in not testifying outweigh the respondent’s interests in questioning the complainant as a witness at the hearing.
If a witness with information of importance to the case refuses to testify, the OSCCS or the respondent may ask the Hearing Panel Chair to order the witness to testify. The Hearing Panel Chair shall, in the Chair’s sole discretion, grant or deny the request based on the balance of equities for the witness, the complainant or victim, the respondent, and the University. If a witness does not appear for a scheduled hearing, the Hearing Panel Chair may decide whether to delay the hearing pending the witness’s testimony.
Strict rules of evidence shall not apply, and the Hearing Panel shall have the power to establish its own rules of evidence, subject to the following exceptions:
- The following should be considered regarding the investigative record and investigator testimony:
- If the investigative record is admitted, the investigator must testify;
- The investigator may also testify without the investigative record, if it is not admitted; however any witness named in that testimony may be called to testify;
- If a witness is named in the investigative record, any party may call that witness to testify.
- Confidential relationships currently protected under state or federal law shall be protected.
- Where a complainant or victim is not a witness at the hearing, and where the respondent objects to the introduction of any written, recorded, or oral account of an earlier statement by that complainant or victim, the earlier statement will be excluded unless the Hearing Panel Chair finds compelling circumstances of need for and reliability of such statement.
- Witnesses shall be excluded from all hearings, except for the period of their questioning. Witnesses shall not see or hear other evidence presented at the hearing, such as any police report, except as the Hearing Panel Chair determines to be appropriate. All deliberations by the Hearing Panel and Hearing Panel Chair shall be private.
An audio recording shall be kept of all hearings, but not of deliberations, and made available to any party and their advisors who seek to file an appeal.
*The CJC voted 7-1 to keep the language regarding the Chair's determination about when the complainant may or may not have to testify if the complainant indicates they do not want to testify. The 1 member who voted against believed that a complainant should not be required to testify in any circumstances where the complainant decides they would not like to testify. Note: This provision does not apply to complainants of sexual assault because that falls under Policy 6.4.*
*The CJC voted 6-2 to allow the Hearing Panel to order relevant witnesses to testify. If they refuse, an obstruction violation may be brought. The two who voted against believed this was punitive and would delay the Hearing Panel process.*
The OSCCS and the respondent may provide both oral and written closing statements. Such statements may not add or address information not contained in the hearing record, as the Hearing Panel will not consider new information. Nor may the parties address issues that pertain to sanctions and remedies. The Hearing Panel does not consider these issues when determining responsibility. The OSCCS and the respondent may raise such issues in sanctions phase of the hearing.
The Hearing Panel Chair will establish a time limit for brief oral closing statements, typically around ten (10) minutes for each party. The Hearing Panel Chair will also set the schedule for submission of written closing statements, usually shortly after the oral closing statements. Each party’s signed closing statement will be limited to 3,000 words and to the evidence from the hearing. The written statements will be distributed to the other party, Hearing Panel Chair, and Hearing Panel for their review.
*The CJC voted 6-1 to keep written closing statements. The 1 member who voted against believed that this would be too time consuming and increase the adversarial nature of this process.*
After closing arguments, the Hearing Panel may begin its deliberations. Deliberations will be completed as expeditiously as possible. Deliberations are conducted in private and they are not audio-recorded.
The Hearing Panel Chair will call the parties back to the hearing room and will state the findings of the Panel on each of the alleged violations of the Student Code of Conduct.
Soon thereafter, the OSCCS and respondent shall present sanctions arguments following the same format under sections 6.3, 6.4, 6.5, 6.6, and 6.7 of these procedures. The OSCCS and the respondent will receive the Hearing Panel’s determination regarding sanctions when the respondent receives the Panel’s formal written decision.
All decisions by the Hearing Panel shall be in writing, including a rationale and any dissenting opinions. The burden of proof on violation shall rest on the OSCCS, and the standard of proof on violation shall be preponderance of the evidence. Under a preponderance of the evidence standard, the Hearing Panel must be persuaded that it is more likely than not that the respondent violated the Code.
*The CJC was divided on the burden of proof. 6 voting members favored preponderance of the evidence, while 4 members supported the clear and convincing standard. We ask the community to weigh in with the current understanding that Policy 6.4 and Greek Judicial proceedings utilize the preponderance of the evidence standard, while the existing Campus Code of Conduct utilizes the clear and convincing standard. Members who voted for the clear and convincing standard believed it was the best way to ensure respondents are provided due process. Clear and convincing means that the University must prove something is “highly probable.” Members who support preponderance of the evidence noted that it was the best standard to balance interests of the community, rights of the accused student, and due process. Members who supported preponderance of the evidence said that it was the standard that it helped students engage in the student conduct process in a more “educational” way; however, members who support clear and convincing disputed noting that providing students the assurance of due process is educational.*
The Hearing Panel can decide to:
- Sustain a defense of lack of jurisdiction or other inapplicability of the Student Code of Conduct, including that off-campus conduct did not meet the requirement of being a serious violation of this Code, and dismiss the case, although any such defense shall be deemed waived if not raised by the conclusion of the hearing;
- Find the respondent did not violate the Code and dismiss the case; or
- Find the respondent violated the Code and move to the sanctions phase to consider the parties’ sanctions arguments.
The Hearing Panel may impose any of the sanctions and/or remedies listed in section 4.2 of these procedures.
**Please submit comments on the main 2020 Proposed Amendments to the Campus Code of Conduct page.**