Supplemental Student Conduct Code and Procedures

Supplemental Student Conduct Code and Procedures for alleged conduct that occurred on or after August 1, 2024.

WAC 132J-126-500 Sex discrimination - Supplemental student conduct code and procedures - Order of precedence.

This supplemental student conduct code and procedure applies to allegations of sex discrimination arising on or after August 1, 2024 subject to Title IX jurisdiction pursuant to regulations promulgated by the United States Department of Education. See 34 C.F.R. Part 106. To the extent these supplemental hearing procedures conflict with the College鈥檚 standard student conduct code and procedure, WAC 132J-126-010 through WAC 132J-126-480, this supplemental student conduct code and procedure shall take precedence.

WAC 132J-126-510 Sex discrimination - Prohibited conduct and definitions

Pursuant to RCW 28B.50.140(13) and Title IX of the Education Amendments Act of 1972, 20 U.S.C. Sec. 1681, the College may impose disciplinary sanctions against a student or student group who commits, attempts to commit, or aids, abets, incites, encourages, or assists another person to commit, an act(s) of "sex discrimination."

For purposes of this supplemental procedure, the following definitions apply.

(1) 鈥淐omplainant鈥� means the following individuals who are alleged to have been subjected to conduct that would constitute sex discrimination:

(a) a student or employee

(b) a person other than a student or employee who was participating or attempting to participate in the college鈥檚 education program or activity at the time of the alleged discrimination.

(2) 鈥淧regnancy or Related Conditions鈥� means: (a) pregnancy, childbirth, termination of pregnancy, or lactation; (b) medical conditions related to pregnancy, childbirth, termination of pregnancy, or lactation; or (c) recovery from pregnancy, childbirth, termination of pregnancy, lactation, or related medical conditions.

(3) 鈥淧rogram鈥� or 鈥淧rograms and Activities鈥� means all operations of the college.

(4) 鈥淩elevant鈥� means related to the allegations of sex discrimination under investigation. Questions are relevant when they seek evidence that may aid in showing whether the alleged sex discrimination occurred, and evidence is relevant when it may aid a decision maker in determining whether the alleged sex discrimination occurred.

(5) 鈥淩emedies鈥� means measures provided to a Complainant or other person whose equal access to the college鈥檚 educational programs and activities has been limited or denied by sex discrimination. These measures are intended to restore or preserve that person鈥檚 access to educational programs and activities after a determination that sex discrimination has occurred.

(6) 鈥淩espondent鈥� is a student who is alleged to have violated the student conduct code.

(7) 鈥淪ex Discrimination.鈥� The term 鈥渟ex discrimination鈥� includes sex-based harassment, and may occur when a respondent causes more than de minimis (insignificant) harm to an individual by treating them differently from a similarly-situated individual on the basis of: sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity. Conduct that prevents an individual from participating in an education program or activity consistent with the person鈥檚 gender identity subjects a person to more than de minimis harm on the basis of sex.

(a) Sex-Based Harassment. 鈥淪ex-based harassment鈥� is a form of sex discrimination and means sexual harassment or other harassment on the basis of sex, including the following conduct:

(i) Quid pro quo harassment. A student, employee, agent, or other person authorized by the college to provide an aid, benefit, or service under the college鈥檚 education program or activity explicitly or impliedly conditioning the provision of such an aid, benefit, or service on a person鈥檚 participation in unwelcome sexual conduct.

(ii) Hostile environment. Unwelcome sex-based conduct that, based on the totality of the circumstances, is subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person鈥檚 ability to participate in or benefit from the recipient鈥檚 education program or activity (i.e., creates a hostile environment). Whether a hostile environment has been created is a fact-specific inquiry that includes consideration of the following:

(A) The degree to which the conduct affected the complainant鈥檚 ability to access the college鈥檚 education program or activity;

(B) The type, frequency, and duration of the conduct;

(C) The parties鈥� ages, roles within the college鈥檚 education program or activity, previous interactions, and other factors about each party that may be relevant to evaluating the effects of the conduct;

(D) The location of the conduct and the context in which the conduct occurred; and

(E) Other sex-based harassment in the college鈥檚 education program or activity.

(iii) Sexual Violence. 鈥淪exual violence鈥� includes nonconsensual sexual intercourse, nonconsensual sexual contact, domestic violence, incest, statutory rape, domestic violence, dating violence, and stalking.

(A) Nonconsensual sexual intercourse is any sexual intercourse (anal, oral, or vaginal), however slight, with any object, by a person upon another person, that is without consent and/or by force. Sexual intercourse includes anal or vaginal penetration by a penis, tongue, finger, or object, or oral copulation by mouth to genital contact or genital to mouth contact.

(B) Nonconsensual sexual contact (Fondling) is any actual or attempted sexual touching, however slight, with any body part or object, by a person upon another person that is without consent and/or by force. Sexual touching includes any bodily contact with the breasts, groin, mouth, or other bodily orifice of another individual, or any other bodily contact in a sexual manner.

(C) Incest is sexual intercourse or sexual contact with a person known to be related to them, either legitimately or illegitimately, as an ancestor, descendant, brother, or sister of either wholly or half related. Descendant includes stepchildren, and adopted children under the age of eighteen (18).

(D) Statutory Rape (Rape of a Child) is non-forcible sexual intercourse with a person who is under the statutory age of consent.

(E) Domestic violence is physical violence, bodily injury, assault, the infliction of fear of imminent physical harm, sexual assault, coercive control, damage or destruction of personal property, stalking or any other conduct prohibited under RCW 10.99.020, committed by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of State of Washington, or by any other person against an adult or youth victim who is protected from that person鈥檚 acts under the domestic or family violence laws of the State of Washington.

(F) Dating violence is physical violence, bodily injury, assault, the infliction of fear of imminent physical harm, sexual assault, or stalking committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim; and where the existence of such a relationship shall be determined based on a consideration of the following factors:

(I) The length of the relationship;

(II) The type of relationship; and

(III) The frequency of interaction between the persons involved in the relationship.

(G) Stalking means engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear for the person鈥檚 safety or the safety of others or to suffer substantial emotional distress.

(b) 鈥淐onsent.鈥� For purposes of this code, 鈥渃onsent鈥� means knowing, voluntary and clear permission by word or action, to engage in mutually agreed upon sexual activity.

(i) Each party has the responsibility to make certain that the other has consented before engaging in the activity.

(ii) For consent to be valid, there must be at the time of the act of sexual intercourse or sexual contact actual words or conduct indicating freely given agreement to have sexual intercourse or sexual contact.

(iii) A person cannot consent if they are unable to understand what is happening or are disoriented, helpless, asleep or unconscious for any reason, including due to alcohol or other drugs. An individual who engages in sexual activity when the individual knows, or should know, that the other person is physically or mentally incapacitated has engaged in nonconsensual conduct.

(iv) Intoxication is not a defense against allegations that an individual has engaged in nonconsensual sexual conduct.

(c) 鈥淭itle IX Retaliation,鈥� means intimidation, threats, coercion, or discrimination against any person by a student, for the purpose of interfering with any right or privilege secured by Title IX, or because the person has reported information, made a complaint, testified, assisted, or participated or refused to participate in any manner in a sex discrimination investigation, proceeding, or hearing under this part, including during an informal resolution process, during a Title IX investigation, or during any disciplinary proceeding involving allegations of sex discrimination.

(8) 鈥淪tudent employee鈥� means an individual who is both a student and an employee of the college. When a complainant or respondent is a student employee, the college must make a fact-specific inquiry to determine whether the individual鈥檚 primary relationship with the college is to receive an education and whether any alleged student conduct code violation, including but not limited to sex-based harassment, occurred while the individual was performing employment-related work.

(9) 鈥淪tudent group鈥� is a student organization, athletic team, or living group including, but not limited to, student clubs and organizations, members of a class or student cohort, student performance groups, and student living groups.

(10) 鈥淪upportive measures鈥� means reasonably available, individualized and appropriate, non-punitive and non-disciplinary measures offered by the college to the complainant or respondent without unreasonably burdening either party, and without fee or charge for purposes of:

(a) Restoring or preserving a party鈥檚 access to the college鈥檚 educational program or activity, including measures that are designed to protect the safety of the parties or the college鈥檚 educational environment; or providing support during the college鈥檚 investigation and disciplinary procedures, or during any informal resolution process; or

(b)Supportive measures may include, but are not limited to: counseling; extensions of deadlines and other course-related adjustments; campus escort services; increased security and monitoring of certain areas of campus; restriction on contact applied to one or more parties; a leave of absence; change in class, work, housing, or extracurricular or any other activity, regardless of whether there is or is not a comparable alternative; and training and education programs related to sex-based harassment.

(11) 鈥淭itle IX Coordinator鈥� is the administrator responsible for processing complaints of sex discrimination, including sex-based harassment, overseeing investigations and informal resolution processes, and coordinating supportive measures, in accordance with college policy.

WAC 132J-126-520 Sex discrimination - Jurisdiction.

(1) This supplemental procedure applies only if the alleged misconduct meets the definition of 鈥渟ex discrimination鈥� as that term is defined in WAC 132J-126-510 and occurs:

(a) On college premises;

(b) At or in connection with college programs or activities; or

(c) Off college premises, if in the judgment of the college, the conduct has an adverse impact on the college community, the pursuit of its objectives, or the ability of a student or staff to participate in the college鈥檚 programs and activities.

WAC 132J-126-530 Sex discrimination 鈥� Dismissal and initiation of discipline.

(1) Any member of the college community may file a complaint against a student or student group for conduct which may constitute sex discrimination.

(2) The college鈥檚 Title IX Coordinator or designee shall review, process, and, if applicable, investigate complaints or other reports of sex discrimination, including sex-based harassment. The disciplinary process for allegations of sex discrimination, including sex-based harassment, against a student shall be addressed through the student conduct code.

(3) Both the respondent and the complainant in cases involving allegations of sex discrimination shall be provided the same procedural rights to participate in student discipline matters, including the right to participate in the disciplinary process and to appeal any disciplinary decision.

(4) When a summary suspension is imposed pursuant to WAC 132J-126-230, the complainant shall be notified that a summary suspension has been imposed on the same day that the summary suspension notice is served on the respondent. The college will also provide the complainant with timely notice of any subsequent changes to the summary suspension order.

(5) The student conduct officer shall review the investigation report provided by the Title IX Coordinator, and determine whether, by a preponderance of the evidence, there was a violation of the student conduct code; and if so, what disciplinary sanction(s) and/or remedies will be recommended. The student conduct officer shall, within five (5) business days of receiving the investigation report, serve respondent, complainant, and the Title IX Coordinator with a written recommendation, setting forth the facts and conclusions supporting their recommendation. The time for serving a written recommendation may be extended by the student conduct officer for good cause.

(a) The complainant and respondent may either accept the student conduct officer鈥檚 recommended finding and disciplinary sanction(s) or request a hearing before a student conduct committee.

(b) The complainant and respondent shall have twenty-one (21) calendar days from the date of the written recommendation to request a hearing before a student conduct committee.

(d) The student conduct officer shall promptly notify the other party of the request.

(e) The student conduct officer may recommend dismissal of the complaint if:

(i) The college is unable to identify respondent after taking reasonable steps to do so;

(ii) Respondent is not participating in the college鈥檚 educational programs or activities;

(iii) The complainant has voluntarily withdrawn any or all of the allegations in the complaint, and the Title IX Coordinator has declined to initiate their own complaint. In cases involving allegations of sex-based harassment, the Complainant must withdraw their complaint in writing;

(iv) The college determines that, even if proven, the conduct alleged by the complainant would not constitute sex discrimination; or

(v) The conduct alleged by the complainant falls outside the college鈥檚 disciplinary jurisdiction.

(g) If no request for a full hearing is provided to the student conduct officer, the student conduct officer鈥檚 written recommendation shall be final and implemented immediately following the expiration of twenty-one (21) calendar days from the service of the written recommendation.

(h) Upon receipt of the student conduct officer鈥檚 written recommendation, the Title IX Coordinator or their designee shall review all supportive measures and, within five (5) business days, provide written direction to the complainant and respondent as to any supportive measures that will be implemented, continued, modified, or terminated. If either party is dissatisfied with the supportive measures, the party may seek review in accordance with the college鈥檚 Title IX investigation procedure.

(i) If the respondent is found responsible for engaging in sex discrimination, the Title IX Coordinator shall also take prompt steps to coordinate and implement any necessary remedies to ensure that sex discrimination does not recur and that complainant has equal access to the college鈥檚 programs and activities.

WAC 132J-126-540 Sex discrimination - Prehearing procedure.

(1) For cases involving allegations of sex discrimination, including sex-based harassment, members of the student conduct committee must receive training on serving impartially, avoiding prejudgment of facts at issue, conflicts of interest, and bias. The chair must also receive training on the student conduct process for sex discrimination cases, as well as the meaning and application of the term, 鈥渞elevant,鈥� in relations to questions and evidence, and the types of evidence that are impermissible, regardless of relevance in accordance with 34 C.F.R. 搂 106.45 and 搂 106.46.

(2) In sex discrimination cases, the College may, in its sole and exclusive discretion, contract with an administrative law judge or other qualified person to act as the presiding officer, authorized to exercise any or all duties of the student conduct committee and/or committee chair.

(3) In cases involving allegations of sex discrimination, the complainant has a right to participate equally in any part of the disciplinary process, including appeals. Respondent and complainant both have the following rights:

(a) Notice. The college must provide a notice the parties are entitled to an equal opportunity to access relevant and permissible evidence, or a description of the evidence upon request.

(b) Advisors. The complainant and respondent are both entitled to have an advisor present, who may be an attorney retained at the party鈥檚 expense.

(c) Extensions of time. The chair may, upon written request of any party and a showing of good cause, extend the time for disclosure of witness and exhibit lists, accessing and reviewing evidence, or the hearing date, in accordance with the procedures set forth in paragraph 4(b) of this section.

(d) Evidence. In advance of the hearing, the student conduct officer shall provide reasonable assistance to the respondent and complainant in accessing and reviewing the investigative report and relevant and not otherwise impermissible evidence that is within the college鈥檚 control.

(e) Confidentiality. The college shall take reasonable steps to prevent the unauthorized disclosure of information obtained by a party solely through the disciplinary process, which may include, but are not limited to, directives by the student conduct officer or chair pertaining to the dissemination, disclosure, or access to evidence outside the context of the disciplinary hearing.

(4) In cases involving allegations of sex-based harassment, the following additional procedures apply:

(a) Notice. The prehearing notice must inform the parties that: (a) the respondent is presumed not responsible for the alleged sex-based harassment; (b) that the parties will have an opportunity to present relevant and not otherwise impermissible evidence to a trained, impartial decisionmaker; (c) that they may have an advisor of their choice, who may be an attorney, to assist them during the hearing; and (d) they are entitled to an equal opportunity to access relevant and not otherwise impermissible evidence in advance of the hearing; and (e) the student conduct code prohibits knowingly making false statements or knowingly submitting false information during a student conduct proceeding.

(b) Extensions of time. The chair may, upon written request of any party and a showing of good cause, extend the time for disclosure of witness and exhibit lists, accessing and reviewing evidence, or the hearing date. The party requesting an extension must do so no later than 48 hours before any date specified in the Notice of Hearing or by the chair in any prehearing conference. The written request must be served simultaneously by email to all parties and the chair. Any party may respond and object to the request for an extension of time no later than 24 hours after service of the request for an extension. The chair will serve a written decision upon all parties, to include the reasons for granting or denying any request. The chair鈥檚 decision shall be final. In exceptional circumstances, for good cause shown, the chair may, in their sole discretion, grant extensions of time that are made less than 48 hours before any deadline.

(c) Advisors. The college shall provide an advisor to the respondent and any complainant, if the respondent or complainant have not otherwise identified an advisor to assist during the hearing.

(e) Confidentiality. The college shall take reasonable steps to prevent the unauthorized disclosure of information obtained by a party solely through the disciplinary process, which may include, but are not limited to, directives by the student conduct officer or chair issuing directives pertaining to the dissemination, disclosure, or access to evidence outside the context of the disciplinary hearing.

(f) Separate locations. The chair may, or upon the request of any party, must, conduct the hearing with the parties physically present in separate locations, with technology enabling the committee and parties to simultaneously see and hear the party or the witness while that person is speaking.

(g) Withdrawal of complaint. If a complainant wants to voluntarily withdraw a complaint, they must provide notice to the college in writing before a case can be dismissed.

WAC 132J-126-550 Sex Discrimination - Presentation of Evidence.

(1) In cases involving allegations of sex-based harassment, the complainant and respondent may not directly question one another or other witnesses. In such circumstances, the chair will determine whether questions will be submitted to the chair, who will then ask questions of the parties and witnesses, or allow questions to be asked directly of any party or witnesses by a party鈥檚 attorney or advisor. The committee chair may revise this process if, in the chair鈥檚 determination, the questioning by any party, attorney, or advisor, becomes contentious or harassing.

(a) Prior to any question being posed to a party or witness, the chair must determine whether the question is relevant and not otherwise impermissible; and must explain any decision to exclude a question that is deemed not relevant, or is otherwise impermissible. The chair will retain for the record copies of any written questions provided by any party.

(b) The chair must not permit questions that are unclear or harassing; but shall give the party an opportunity to clarify or revise such a question.

(c) The chair shall exclude and the committee shall not consider legally privileged information unless the individual holding the privilege has waived the privilege. Privileged information includes, but is not limited to information protected by the following: (a) spousal/domestic partner privilege; (b) attorney-client communications and attorney work product privilege; (c) clergy privileges; (d) medical or mental health providers and counselor privileges; (e) sexual assault and domestic violence advocate privileges; and (f) other legal privileges set forth in RCW 5.60.060 or federal law.

(d) The chair shall exclude and the committee shall not consider questions or evidence that relate to the complainant鈥檚 sexual interests or prior sexual conduct, unless such question or evidence is offered to prove someone other than the respondent committed the alleged conduct, or is evidence of specific instances of prior sexual conduct with the respondent that is offered to prove consent to the alleged sex-based harassment. The fact of prior consensual sexual conduct between the complainant and respondent does not by itself demonstrate or imply the complainant鈥檚 consent to the alleged sex-based harassment or preclude determination that sex-based harassment occurred.

(e) The committee may choose to place less or no weight upon statements by a party or witness who refuses to respond to questions deemed relevant and not impermissible. The committee must not draw an inference about whether sex-based harassment occurred based solely on a party鈥檚 or witness鈥檚 refusal to respond to such questions.

WAC 132J-126-560 Sex discrimination - Initial order.

In cases involving sex-based harassment, the initial decision shall be served on all parties simultaneously, as well as the Title IX Coordinator.

WAC 132J-126-570 Sex discrimination - Appeals.

(1) Any party, including a complainant in sex-based harassment cases, may appeal the committee鈥檚 decision to the president by filing a written appeal with the appropriate vice president鈥檚 office (appeal authority) within twenty-one (21) calendar days of service of the committee鈥檚 decision. Failure to file a timely appeal constitutes a waiver of the right and the decision shall be deemed final.

(2) The written appeal must identify the specific findings of fact and/or conclusions of law in the decision that are challenged and must contain argument why the appeal should be granted. Appeals may be based upon, but are not limited to: (a) procedural irregularity that would change the outcome; (b) new evidence that would change the outcome and that was not reasonably available when the initial decision was made; and (c) the investigator, decisionmaker, or Title IX Coordinator had a conflict of interest or bias for or against a respondent or complainant individually or respondents or complainants generally.

(3) Upon receiving a timely appeal, the appeal authority will promptly serve a copy of the appeal on all non-appealing parties, who will have ten (10) business days from the date of service to submit a written response addressing the issues raised in the appeal to the president or a designee, and serve it on all parties. Failure to file a timely response constitutes a waiver of the right to participate in the appeal.

(4) If necessary to aid review, the appeal authority may ask for additional briefing from the parties on issues raised on appeal. The appeal authority鈥檚 review shall be restricted to the hearing record made before the student conduct committee and will normally be limited to a review of those issues and arguments raised in the appeal.

(5) The appeal authority shall serve a written decision on all parties and their attorneys, if any, within twenty (20) calendar days after receipt of the appeal. This decision shall be final and subject to judicial review pursuant to Chapter 34.05 RCW, Part V.

(6) In cases involving allegations of sex-based harassment, the appeal decision must be served simultaneously on all parties and the Title IX Coordinator.

(7) The appeal authority shall not engage in an ex parte communication with any of the parties regarding an appeal.

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