STUDENT RIGHT TO ACTIVE COUNSEL

Summary

This bill enacts language related to disciplinary proceedings in an institution of higher education.

STUDENT RIGHT TO ACTIVE COUNSEL

Model Policy: STUDENT RIGHT TO ACTIVE COUNSEL
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7     LONG TITLE
8     General Description:
9          This bill enacts language related to disciplinary proceedings in an institution of higher
10     education.
11     Highlighted Provisions:
12          This bill enacts:
15               •     requiring an institution of higher education to allow certain parties to have legal
16     representation at a disciplinary proceeding;
17               •     governing the exchange of evidence at a disciplinary proceeding;
18               •     prohibiting certain conflicts of interest in a disciplinary proceeding; and
19               •     authorizing a cause of action; and
20          ▸     amends applicable governmental immunity provisions.
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39     Be it enacted by the Legislature of the state of [STATE]:
40          Section 1. Section [xxx] is enacted to read:
41

CHAPTER 27. CAMPUS INDIVIDUAL RIGHTS ACT
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Part 1. General Provisions
43          53B-27-101. Title.
44          (1) This chapter is known as the “Campus Individual Rights Act.”
45          (2) The provisions of this chapter may not be interpreted to:
46          (a) govern campus law enforcement departments or law enforcement personnel; or
47          (b) otherwise replace or amend criminal procedures that govern law enforcement
48     activities.
49          Section 2. Section 53B-27-102 is enacted to read:
50          53B-27-102. Definitions.
51          As used in this chapter, “institution” means an institution of higher education listed in
52     Section 53B-1-102.
53          Section 3. Section 53B-27-201 is enacted to read:
54

Part 2. Student Legal Representation
55          53B-27-201. Definitions.
56          As used in this part:
57          (1) “Academic dishonesty” means an act of dishonesty relating to a student’s academic
58     work or performance.

59          (2) “Accused student” means an individual enrolled in an institution who has allegedly
60     violated a policy or rule.
61          (3) “Accused student organization” means a student organization that has allegedly
62     violated a policy or rule.
63          (4) “Alleged victim” means an individual whose rights are allegedly infringed or who
64     is otherwise allegedly harmed by an accused student’s or student organization’s violation of a
65     policy or rule.
66          (5) “Evidence” means information that is inculpatory or exculpatory as it relates to an
67     accusation against an accused student or accused student organization, including:
68          (a) a complainant statement;
69          (b) a third-party witness statement;
70          (c) electronically stored information;
71          (d) a written communication;
72          (e) a post to social media; or
73          (f) demonstrative evidence.
74          (6) “Full participation” means the opportunity in a student or student organization
75     disciplinary proceeding to:
76          (a) make opening and closing statements;
77          (b) examine and cross-examine a witness; and
78          (c) provide support, guidance, or advice to an accused student, accused student
79     organization, or alleged victim.
80          (7) “Legal representation” means an attorney or, at a person’s sole discretion, a
81     nonattorney advocate.
82          (8) “Policy or rule” means a policy or rule of an institution that, if violated, may result:
83          (a) for a student, in suspension of 10 calendar days or more or expulsion from the
84     institution; or
85          (b) for a student organization, in the suspension or the removal of institutional
86     recognition of the student organization.
87          (9) Ĥ→ (a) ←Ĥ “Proceeding” means an adjudicatory meeting, whether formal or informal,
88     including an appeal that is:
89          Ĥ→ [(a)] (i) ←Ĥ required by a policy or rule; or

90          Ĥ→ [(b)] (ii) ←Ĥ held to determine whether a policy or rule has been violated.
90a      Ĥ→ (b) “Proceeding” does not include an adjudicatory meeting, formal or informal,
90b     before a court. ←Ĥ
91          (10) (a) “Student disciplinary proceeding” means a proceeding initiated by an
92     institution to determine whether an accused student has violated a policy or rule.
93          (b) “Student disciplinary proceeding” does not include a proceeding that solely
94     involves a student’s academic dishonesty.
95          (11) “Student organization” means a club or other organization:
96          (a) that meets during noninstructional time;
97          (b) that is recognized by the institution at which the organization meets; and
98          (c) the majority of whose members are current students at the institution.
99          (12) (a) “Student organization disciplinary proceeding” means a proceeding initiated by
100     an institution to determine whether an accused student organization has violated a rule or
101     policy.
102          (b) “Student organization disciplinary proceeding” does not include a proceeding that
103     solely involves a student’s academic dishonesty.
104          Section 4. Section 53B-27-203 is enacted to read:
105          53B-27-203. Student disciplinary proceedings — Legal representation.
106          (1) An institution may not prohibit:
107          (a) an accused student from being represented, at the accused student’s expense, by
108     legal representation at a student disciplinary proceeding that pertains to the accused student; or
109          (b) an accused student’s legal representation from full participation in a student
110     disciplinary proceeding that pertains to the accused student.
111          (2) An institution may not prohibit:
112          (a) an alleged victim from being represented, at the alleged victim’s expense, by legal
113     representation at a student disciplinary proceeding that pertains to the alleged victim; or
114          (b) the alleged victim’s legal representation from full participation in a student
115     disciplinary proceeding that pertains to the alleged victim.
116          (3) (a) An institution shall provide an accused student described in Subsection (1) or an
117     alleged victim described in Subsection (2) written notice of the accused student’s or alleged
118     victim’s rights under this section.
119          (b) Unless there are exigent circumstances that reasonably justify proceeding without
120     providing notice under Subsection (3)(a), an institution shall establish policies and procedures

121     to ensure that the institution provides written notice of the accused student’s or alleged victim’s
122     rights as soon as practicable but no later than seven days before a student disciplinary
123     proceeding that pertains to the accused student or alleged victim.
124          Section 5. Section 53B-27-204 is enacted to read:
125          53B-27-204. Student organization disciplinary proceedings — Legal
126     representation.
127          (1) An institution may not prohibit:
128          (a) an accused student organization from being represented, at the accused student
129     organization’s expense, by legal representation at a student organization disciplinary proceeding
130     that pertains to the accused student organization; or
131          (b) an accused student organization’s legal representation from full participation in a
132     student organization disciplinary proceeding that pertains to the accused student organization.
133          (2) An institution may not prohibit:
134          (a) an alleged victim from being represented, at the alleged victim’s expense, by legal
135     representation at a student organization disciplinary proceeding that pertains to the alleged
136     victim; or
137          (b) the alleged victim’s legal representation from full participation in a student
138     organization disciplinary proceeding that pertains to the alleged victim.
139          (3) (a) An institution shall provide an accused student organization described in
140     Subsection (1) or an alleged victim described in Subsection (2) written notice of the accused
141     student organization’s or alleged victim’s rights under this section.
142          (b) Unless there are exigent circumstances that reasonably justify proceeding without
143     providing notice under Subsection (3)(a), an institution shall establish policies and procedures
144     to ensure that the institution provides written notice of the accused student organization’s or
145     alleged victim’s rights as soon as practicable but no later than seven days before a student
146     organization disciplinary proceeding that pertains to the accused student organization or
147     alleged victim.
148          Section 6. Section 53B-27-205 is enacted to read:
149          53B-27-205. Exchange of evidence.
150          (1) An institution shall ensure that an accused student and an alleged victim have
151     access to all material evidence that is in the institution’s possession, including both inculpatory

152     and exculpatory evidence, not later than one week before the start of a proceeding.
153          (2) Nothing in this part may be interpreted to:
154          (a) provide for formal or informal discovery beyond the exchange of evidence
155     described in Subsection (1); or
156          (b) incorporate or bind an institution to:
157          (i) the [STATE] Rules of Civil Procedure or the [STATE] Rules of Evidence; or
158          (ii) the Federal Rules of Civil Procedure or the Federal Rules of Evidence.
159          Section 7. Section 53B-27-206 is enacted to read:
160          53B-27-206. Conflict of interest.
161          (1) Except as provided in Subsection (2), an institution shall prohibit an individual
162     employed by or otherwise representing an institution from acting as an adjudicator, hearing
163     officer, or appellate hearing officer if the individual has also served in one of the following
164     roles for purposes of a student disciplinary proceeding or student organization disciplinary
165     proceeding:
166          (a) an advocate or counselor for an alleged victim, accused student, or accused student
167     organization;
168          (b) an investigator;
169          (c) an institutional prosecutor; or
170          (d) an advisor to a person described in Subsection (1)(a), (b), or (c).
171          (2) If an individual employed by the institution or otherwise representing the institution
172     serves as an investigator and an institutional prosecutor for the alleged violation of a policy or
173     rule, the institution shall advise an accused student, accused student organization, or alleged
174     victim before the investigation proceeding.
175          (3) An individual may not serve as an investigator or institutional prosecutor and an
176     advocate for an accused student, accused student organization, or alleged victim.
177          Section 8. Section 53B-27-207 is enacted to read:
178          53B-27-207. Application — Institution policies.
179          (1) Nothing in this part may be interpreted to prohibit an institution from temporarily
180     suspending an accused student or accused student organization pending the completion of a
181     student or student organization disciplinary proceeding.
182          (2) (a) An institution shall enact policies to govern proceedings in which a student has

183     a right to active counsel in accordance with this part.
184          (b) An institution may adopt a policy requiring the attorney or advocate of an accused
185     student, accused student organization, or alleged victim to submit questions for an opposing
186     party first to a hearing officer, provided that the hearing officer will only exclude questions that
187     in the hearing officer’s good faith interpretation are irrelevant or unduly prejudicial.
188          (c) A hearing officer shall place the hearing officer’s rationale for excluding a question
189     on the record for appellate review.
190          Section 9. Section 53B-27-208 is enacted to read:
191          53B-27-208. Cause of action.
192          (1) An accused student, accused student organization, or alleged victim may bring an
193     action in a court of competent jurisdiction for an alleged violation of this part by an institution.
194          (2) If the court finds that an institution committed a violation under Subsection (1), the
195     court may award, as applicable, the accused student, accused student organization, or alleged
196     victim:
197          (a) compensatory damages;
198          (b) reasonable court costs incurred;
199          (c) reasonable attorney fees incurred;
200          (d) monetary damages:
201          (i) in an amount equal to or more than the cost of tuition paid by or on behalf of the
202     accused student or alleged victim to the institution for the academic period in which the
203     violation occurred; and
204          (ii) in an amount equal to or more than the amount of scholarship funding an accused
205     student has lost as a result of the outcome of a student disciplinary proceeding; and
206          (e) any other relief the court determines just.
207          (3) An action based upon a cause of action under this part shall be commenced within
208     one year after the date that an accused student, accused student organization, or alleged victim
209     receives final notice of the outcome of the student or student organization disciplinary
210     proceeding.
211          Section 10. Section 63G-7-301 is amended to read:
212          63G-7-301. Waivers of immunity.
213          (1) (a) Immunity from suit of each governmental entity is waived as to any contractual

214     obligation.
215          (b) Actions arising out of contractual rights or obligations are not subject to the
216     requirements of Sections 63G-7-40163G-7-40263G-7-403, or 63G-7-601.
217          (c) The Division of Water Resources is not liable for failure to deliver water from a
218     reservoir or associated facility authorized by Title 73, Chapter 26, Bear River Development
219     Act, if the failure to deliver the contractual amount of water is due to drought, other natural
220     condition, or safety condition that causes a deficiency in the amount of available water.
221          (2) Immunity from suit of each governmental entity is waived:
222          (a) as to any action brought to recover, obtain possession of, or quiet title to real or
223     personal property;
224          (b) as to any action brought to foreclose mortgages or other liens on real or personal
225     property, to determine any adverse claim on real or personal property, or to obtain an
226     adjudication about any mortgage or other lien that the governmental entity may have or claim
227     on real or personal property;
228          (c) as to any action based on the negligent destruction, damage, or loss of goods,
229     merchandise, or other property while it is in the possession of any governmental entity or
230     employee, if the property was seized for the purpose of forfeiture under any provision of state
231     law;
232          (d) subject to Subsection 63G-7-302(1), as to any action brought under the authority of
233     [STATE] Constitution, Article I, Section 22, for the recovery of compensation from the
234     governmental entity when the governmental entity has taken or damaged private property for
235     public uses without just compensation;
236          (e) subject to Subsection 63G-7-302(2), as to any action brought to recover attorney
237     fees under Sections 63G-2-405 and 63G-2-802;
238          (f) for actual damages under Title 67, Chapter 21, [STATE] Protection of Public Employees
239     Act;
240          (g) as to any action brought to obtain relief from a land use regulation that imposes a
241     substantial burden on the free exercise of religion under Title 63L, Chapter 5, [STATE] Religious
242     Land Use Act;
243          (h) except as provided in Subsection 63G-7-201(3), as to any injury caused by:
244          (i) a defective, unsafe, or dangerous condition of any highway, road, street, alley,

245     crosswalk, sidewalk, culvert, tunnel, bridge, viaduct, or other structure located on them; or
246          (ii) any defective or dangerous condition of a public building, structure, dam, reservoir,
247     or other public improvement; [and]
248          (i) subject to Subsection 63G-7-201(4), as to any injury proximately caused by a
249     negligent act or omission of an employee committed within the scope of employment[.]; and
250          (j) as to any action brought to obtain relief under Title 53B, Chapter 27, Part 2, Student
251     Legal Representation.