Tenn. Comp. R. & Regs. 1720-04-03-.06 - STUDENT CONDUCT PROCESS: INITIAL STAGES

(1) Receipt and Review of Allegations of Misconduct.

(a) Except as stated in Section .06(1)(b), SCCS may initiate the student conduct process on the basis of written allegations received from any source, including, without limitation, a student, a faculty member, a University housing employee, or a law enforcement agency. SCCS also may initiate the student conduct process in the absence of written allegations if SCCS becomes aware, through other means, of potential misconduct committed by a student. Upon receipt of written allegations or other information concerning potential student misconduct, SCCS will review the information and determine whether to initiate the student conduct process. SCCS's determination of whether to initiate the student conduct process generally will be based on: the preliminary investigation by SCCS or other University official(s), if any, into the allegations received by SCCS; SCCS's determination of whether the alleged conduct falls within the jurisdiction of the Code; and SCCS's determination of whether the alleged conduct, if true, violated the Standards of Conduct.

(b) In cases involving allegations of sexual harassment, sexual assault, dating violence, domestic violence, stalking, or sexual exploitation, the student conduct process is initiated upon the filing of a Formal Complaint by a Complainant or by the Title IX Coordinator. As soon as practicable after the filing of a Formal Complaint, SCCS will provide a Notice of Receipt of Formal Complaint to the parties who are known. The Notice of Receipt of Formal Complaint shall include the following information:

1. notice of the student conduct process that applies to the allegations;

2. the identities of the parties involved in the incident;

3. the conduct allegedly constituting the violation;

4. the date and location of the incident, if known;

5. a statement that the Respondent is presumed not responsible for the alleged conduct;

6. a statement that a determination regarding responsibility is made at the conclusion of the student conduct process;

7. the parties' right to have an Advisor of their choice, who may be, but is not required to be, an attorney;

8. the parties' right to inspect and review evidence; and

9. notice of the provisions of the Code that prohibit providing false information to a University official.

(2) Conflicts of Interest.

(a) The student conduct process must be carried out in a manner that is free from conflicts of interest or bias consistent with due process of law.

(b) A University employee shall not act on behalf of SCCS in the student conduct process in any case in which:

1. the employee is a Complainant, Respondent, or a witness; or

2. the employee determines, for any other reason (e.g., personal prejudice or bias), that he/she cannot be fair or impartial.

(c) In all cases involving allegations of sexual assault, dating violence, domestic violence, or stalking, the student conduct process must include protections for the Respondent analogous to, and no less protective than, the conflict of interest provisions of Tennessee Code Annotated § 4-5-303. Notwithstanding the preceding sentence:

1. an attorney for the University is allowed to provide legal advice to multiple University employees who serve in different roles in the process of disciplining a student; and

2. the University is allowed to provide the Complainant with equivalent rights as the Respondent during the student conduct process.

(3) Interim Administrative Actions.

(a) General. In certain situations, the University may impose interim administrative actions prior to the conclusion of the student conduct process. The University shall determine the appropriate interim administrative actions based on the totality of the circumstances. Examples of interim administrative actions include, without limitation, a no-contact directive (Section .06(3)(b)), a disciplinary hold (Section .06(3)(c)), and interim restrictions (Section .06(3)(d)).

(b) No-Contact Directive. In cases involving allegations of assault, injury, sexual harassment, sexual assault, dating violence, domestic violence, stalking, sexual exploitation, retaliation or in other cases where there is reason to believe continued contact between a student and specific persons may interfere with those persons' security, safety or ability to participate effectively in work or studies, the University may issue a written instruction to a student, called a no-contact directive, that prohibits a student from having verbal, physical, written, and/or electronic contact with specific other persons for a definite or indefinite period of time. A no-contact directive also may prohibit a student from being present on designated University-controlled property. Any student, faculty or staff member or other person with a reasonable justification may request that the University issue a no-contact directive to a student. However, the University retains ultimate authority to decide whether or not to issue a no-contact directive.

(c) Disciplinary Hold. The Respondent's academic record (including, without limitation, the release of the Respondent's official or unofficial transcript), degree, ability to register for classes, and/or ability to re-enroll may be placed on disciplinary hold by SCCS to require the Respondent to participate in the student conduct process or to require the Respondent to satisfy the terms and conditions of disciplinary sanctions received (the hold shall be released after the terms and conditions have been satisfied). A student who, at the time of commencement, is subject to a continuing disciplinary penalty or an unresolved disciplinary charge shall not be awarded a degree before the resolution of all disciplinary charges and/or the satisfaction of all sanctions.

(d) Interim Restrictions.

1. Generally, the status of a student alleged to have violated the Standards of Conduct is not affected until the conclusion of the student conduct process (Section .07(5)). However, the Vice Chancellor for Student Life may impose interim restrictions prior to the conclusion of the student conduct process related to the alleged misconduct when the Vice Chancellor for Student Life has reasonable cause to believe that:

1. a Respondent's continued presence on University-controlled property or at University-affiliated activities poses a significant risk of substantial harm to the health, safety, or welfare of others or to property; or

2. poses an imminent or ongoing threat to the disruption of, or interference with, the normal operations of the University. Interim restrictions shall be confirmed by notice to the Respondent that explains the basis for the interim restrictions and shall remain in effect until the conclusion of the student conduct process, which should be completed without undue delay. Within three (3) business days of the imposition of the interim restrictions, the Respondent shall be offered an opportunity to appear before the Vice Chancellor for Student Life in order to discuss the following issues only:

1. the reliability of the information concerning the Respondent's conduct; and

2. whether the conduct and surrounding circumstances reasonably indicate that the Respondent's continued presence on University-controlled property or at University-affiliated activities poses a significant risk of substantial harm to the health, safety, or welfare of others or to property or poses an imminent or ongoing threat of disruption of or interference with the normal operations of the University. Examples of interim restrictions include, without limitation, restricting the student's privileges to participate in University-affiliated activities, restricting the student's privileges to access University-controlled property, University-owned housing removal and/or reassignment, and/or interim suspension. Restrictions contained within no-contact directives (Section .06(3)(b)) are not interim restrictions. An interim suspension is an official separation of the student from the University until the conclusion of the student conduct process or the interim suspension is lifted, whichever occurs first. While on interim suspension, the student loses all University rights and privileges (e.g., enrollment privileges) except for the rights and privileges to contest the allegations pursuant to the Code, shall not represent the University in any official manner, and shall not be present on University-controlled property or participate in University-affiliated activities without the prior approval of the Vice Chancellor for Student Life. When placed on interim suspension, the Respondent may receive a grade of "W," or when deemed appropriate by instructor, a grade of "I." A Respondent who violates the terms of an interim restriction shall be subject to further disciplinary action and may be treated as a trespasser.

2. Notwithstanding any provision in this Section .06(3)(d), in any case that includes Title IX Allegations, the Vice Chancellor for Student Life may impose an interim suspension on a Respondent only after undertaking an individualized safety and risk analysis, and determining that an immediate threat to the physical health or safety of any student or other individual arising from the allegations of Sexual Harassment justifies removal of the Respondent. The Vice Chancellor for Student Life will provide the Respondent notice and an opportunity for the Respondent to challenge an interim suspension within three (3) business days.

(4) Coursework. Coursework performed during the student conduct process shall be considered conditional. Credit for such coursework may be affected, delayed, denied, and/or revoked based on a final finding of misconduct and/or a sanction imposed under the Code. In addition, subject to the other provisions of the Code, a delay in the granting of a degree may be imposed and/or a degree that was awarded prior to a final decision under the Code may be revoked.

(5) Educational Conference.

(a) Scope of the Educational Conference. The Educational Conference is a meeting between SCCS and the Respondent in which the following generally occurs:

1. SCCS orally informs the Respondent about the allegations made against the Respondent and, if requested by the Respondent, provides the Respondent with a reasonable opportunity to review the written allegations, if any, received by SCCS.

2. SCCS provides the Respondent with an opportunity to respond to the allegations, including, without limitation, an opportunity to present information to SCCS concerning the allegations and identify witnesses whom the Respondent believes SCCS should interview to obtain additional information.

3. Both SCCS and the Respondent may ask questions to each other and seek clarifying information about the allegations, the possible sanction(s), and the student conduct process.

4. Except in cases that include Title IX Allegations, based on information provided by the Respondent during the Educational Conference, SCCS may issue a noaction determination (Section .07(5)(a)) or continue its investigation in order to determine whether it is more likely than not that the Respondent violated the Standards of Conduct.

(b) Notice of Educational Conference. A Notice of Educational Conference is a written notice through which SCCS notifies the Respondent that SCCS has received allegations that the Respondent has engaged in misconduct; instructs the Respondent to attend or schedule an Educational Conference; and provides the Respondent with other information about the student conduct process. A Notice of Educational Conference generally will include the following information:

1. notice that SCCS has begun or will begin an investigation of allegations SCCS received concerning the Respondent's conduct;

2. notice of a disciplinary hold, if any, that the University has implemented or will implement with respect to the Respondent;

3. a brief description of the Respondent's alleged conduct;

4. a preliminary list of potential violations of the Standards of Conduct, based on the Respondent's alleged conduct;

5. notice of the Respondent's right to be assisted and/or supported by an Advisor throughout the student conduct process, in accordance with Section .05(3), including information about the role of an Advisor;

6. the internet address where the Respondent can review a copy of the Code;

7. a date, time, and place for an Educational Conference with SCCS to discuss the incident, or, in the alternative, an instruction that the Respondent contact SCCS to schedule an Educational Conference within the time frame designated in the Notice of Educational Conference; and

8. notice of the consequences of failing to comply with SCCS's instruction to attend or schedule an Educational Conference.

(c) Consequences of Failing to Attend or Schedule an Educational Conference. If the Respondent fails to attend or schedule an Educational Conference after SCCS has sent the Respondent a Notice of Educational Conference, then the Respondent waives all rights to a Formal Hearing, and SCCS has the discretion to deem the Respondent to have accepted SCCS's determination of responsibility for misconduct and may impose appropriate sanction(s) for the misconduct (unless the Respondent's absence is excused by SCCS for good cause), unless prohibited by state or federal law. SCCS also may determine that the Respondent's failure to attend the Educational Conference constitutes a separate violation of the Standards of Conduct.

(6) Investigation of Allegations of Misconduct.

(a) SCCS may investigate the allegations against the Respondent by interviewing witnesses and obtaining other information. If SCCS investigates allegations against a Respondent, SCCS will:

1. ensure that the burden of proof of gathering evidence rests on the University and not on the parties;

2. provide an equal opportunity for the parties to identify and present witnesses for interview, including fact witnesses and expert witnesses, and other inculpatory and exculpatory evidence; and

3. provide written notice of the date, time, location, participants, and purpose of all investigative interviews and other meetings, with sufficient time to prepare to participate. SCCS is not obligated to interview a witness identified by the Respondent or the Complainant if SCCS believes the witness is not likely to possess relevant information, is not likely to lead SCCS to the discovery of relevant information, or the information the witness is likely to possess is cumulative of other information gathered by SCCS. SCCS may interview and re-interview the Complainant, the Respondent, and/or any other person at any time during the investigation in order to obtain additional and/or clarifying information. Investigations conducted by SCCS will be prompt, thorough, and equitable. In conducting an investigation, SCCS will act as a fair and impartial party rather than a representative of the person, office, unit, organization, or entity that submitted the allegations to SCCS. Parts of SCCS's investigation may occur before, during, and/or after the Educational Conference (Section .06(5)) and/or any other part of the student conduct process. At the conclusion of its investigation, SCCS may prepare a written investigative report of the findings of the investigation. The investigative report may include an assessment of the credibility of persons interviewed during the investigation and an assessment of whether it is more likely than not that the Respondent violated the Standards of Conduct.

(b) In cases in which a Complainant or the Title IX Coordinator has filed a Formal Complaint alleging sexual harassment, sexual assault, dating violence, domestic violence, stalking, or sexual exploitation, SCCS will provide both parties with an equal opportunity to inspect and review any evidence obtained as part of the investigation that is directly related to the allegations raised in the Formal Complaint. Prior to completion of the investigative report, SCCS will send to each party and the party's Advisor, if any, the evidence subject to inspection and review. The parties must have at least ten (10) business days to submit a written response, which SCCS will consider prior to completion of the investigative report. After the investigative report is final, the parties shall have ten (10) business days to submit a written response to the report. No hearing shall occur until that 10-day period has expired, even if the parties have submitted responses prior to the expiration of the 10-day period.

(7) Notice of Allegations and Notice of Sanctions.

(a) A Notice of Allegations is a written notice that informs the Respondent that SCCS has concluded that it is more likely than not that the Respondent violated the Standards of Conduct. A Notice of Allegations generally includes, without limitation, the following information:

1. a brief summary of the facts of Respondent's alleged misconduct;

2. notice that SCCS has determined that it is more likely than not that Respondent violated the Standards of Conduct;

3. notice of the specific Standard(s) of Conduct that SCCS has determined the Respondent more likely than not violated;

4. the Respondent's option(s) to elect a Formal Hearing to contest SCCS's determination of responsibility for misconduct and/or the sanction(s); and

5. the names of witnesses likely to present information concerning the alleged misconduct if the Respondent elects to contest the allegations through a Formal Hearing. SCCS may provide the Respondent with a Notice of Allegations during the Educational Conference.

(b) A Notice of Sanctions is a written notice that informs the Respondent of the disciplinary sanction(s) that SCCS proposes for the violation(s) of the Standards of Conduct. SCCS may provide the Respondent with a Notice of Sanctions during the Educational Conference.

Notes

Tenn. Comp. R. & Regs. 1720-04-03-.06

Original rule filed May 27, 1986; effective August 12, 1986. Amendment filed August 31, 1995; effective December 30, 1995. Repeal and new rule filed April 12, 2012; effective September 28, 2012. Repeal and new rules filed May 24, 2017; effective August 22, 2017. Emergency rules filed June 29, 2018; effective through December 26, 2018. Emergency rules filed July 30, 2018; effective through January 26, 2019. Amendments filed June 29, 2018; effective September 27, 2018. Emergency rules filed August 13, 2020; effective through February 9, 2021. Emergency rules expired effective February 10, 2021, and the rules reverted to their previous statuses. Amendments filed December 17, 2020; effective March 17, 2021. Amendments filed May 14, 2021; effective 8/12/2021.

Authority: T.C.A. § 49-9-209(e); Public Acts of Tennessee, 1839-1840, Chapter 98, Section 5; and Public Acts of Tennessee, 1807, Chapter 64.