V. Disciplinary Procedures

Vice President

As delegated by the University President, the Vice President shall have general jurisdiction and authority over all student misconduct matters. Additionally, the following are designated as disciplinary entities within the Code.

Provost

The Provost shall have authority and jurisdiction over matters of academic misconduct. The Provost may designate an entity to serve on their behalf.

Dean of Students

The Vice President has been designated by the President to coordinate student conduct matters at DSU. The Dean of Students may serve as a hearing officer. Additionally, in consultation with the President, or designee, the Vice President will designate one or more hearing officers each academic year. Hearing officers will be trained to officiate investigations, prehearing conferences, and hearings. Students will not serve as hearing officers.

Director of Campus Life

The Director of Campus Life, as designated by the Vice President, will assist with the implementation of and compliance with the Student Code of Conduct. The Director of Campus Life will work to ensure due process under this code. The Director of Campus Life can serve as a hearing officer.

Title IX Coordinator

The Title IX Coordinator has authority and jurisdiction over matters of Title IX misconduct. The Title IX Coordinator may designate an entity to serve on their behalf.

5.1 Resolution of Alleged Code Violations

The following steps will typically be followed to resolve Code violations:

receipt of an incident report;
creation of a conduct file;
implementation of interim actions, if appropriate;
notice of alleged violations;
investigation of incident;
prehearing conference;
hearing;
notification of findings, including sanctions;
appeal; and
notification of appeal decision.

The University will strive to resolve all complaints under this policy no later than sixty (60) calendar days after the University becomes aware of an alleged violation. In the interest of maintaining an effective and equitable process, the University may extend the resolution process beyond 60 calendar days on a case-by-case basis. If the investigation and resolution exceed 60 calendar days, the University will notify all parties in writing of the reason for the delay and the expected time frame adjustment.

The Dean of Students and/or designee will collaborate with the Title IX Compliance Officer and/or other relevant Title IX staff when a Title IX investigation results in the need for a Student Conduct Hearing.

5.2 Reporting and Investigating Complaints

A complaint charging students and/or student organizations with misconduct may be filed by any University person having knowledge of the pertinent facts based on personal observation or other reliable information. A complaint may be filed in the name of the University by an authorized institutional official. The party filing a complaint shall be designated the “Complainant” and the party charged with misconduct the “Respondent” for purposes of this Code.

Complaints regarding faculty and staff misconduct shall be filed with the form found here: Non-Sexual Harassment Complaint Form.

Non-academic based complaints may be submitted to the Dean of Students, academic complaints may be submitted to the Vice President or Provost, and University housing complaints may be submitted to the Director of Campus Life.

Once a complaint is received, the respondent(s) will be notified of alleged charges. Complaints are used by the hearing officer to determine whether a student is likely responsible for the alleged violation(s) and used to:

provide educational opportunities;
promote safety, health, and well-being within the campus community;
provide a basis for fair inquiry into alleged violations;
determine if policy was violated;
determine if mitigating and/or extenuating circumstances exist; or
identify appropriate next steps and/or resolution.

A hearing officer will then investigate the report and schedule a prehearing conference as soon as practicable. During the prehearing conference, rights and procedures will be reviewed. The investigation may include interviewing witnesses, reviewing documents, and speaking to impacted parties. At the conclusion of the investigation, a complaint can be dismissed, an alternate resolution can be reached, or charges may be filed that necessitate having a hearing. Any person believed to have information relevant to an investigation may be contacted and requested to participate.

Should a hearing need to be scheduled, the Respondent(s) will receive written notice of the hearing date at least ten (10) University business days in advance. Written notice of the time, date, and place of the hearing, and the identity of the members involved, shall be provided to the hearing officer, complainant, and respondent(s). A copy of the complaint will be provided to all participating parties.

If good cause is demonstrated to reschedule the hearing, a new date will be set. Good cause may include considerations such as the absence of party, a party’s advisor, or a witness, concurrent law enforcement activity, or the need for accommodations for language or disability.

Students who fail to appear for a scheduled hearing will be deemed to have foregone their right to a hearing, and the hearing will proceed.

5.3 Interim Measures

For safety and security, interim measures may be taken prior to a hearing occurring. Examples of interim measures include but are not limited to changing housing or work assignment, no contact orders, loss of privileges, limited access to facilities, removal from campus, or temporary/emergency suspension. Interim measures may be appealed. Pending appeal, the interim measures are stayed.

5.4 Searches and Seizures

The entry into and search of University property, including residences, by University officials will be permitted when one or more of the following instances occurs:

the student consents to the search;
the official(s) responsible fear an imminent danger to health, safety, life, or property;
the Dean of Students (or designee) provides written administrative authorization specifically addressing reason for search, objects of information sought, and area(s) to be searched based upon reasonable belief of such existing;
when facilities or property are endangered; and/or
when there is a reasonable cause to believe there has been a violation of DSU policy.

When students are suspected of violating NDUS or DSU Acceptable Use Polices, student computers and associated devices may be taken into temporary custody.

The Vice President (or designee) must be notified of searches. DSU will not intervene between students and searches authorized under law by any law enforcement agency.

Separate from the Code is the right for University personnel to inspect University owned properties, without notice, for purposes of maintaining, cleaning, safety, and administrative provisions. Such action is agreed to when entering a housing contract with DSU.

Reasons for entry without notice may include but are not limited to:

health, life, or property is jeopardized by circumstances such as, but not limited to fire, plumbing, or drainage problems, mechanical failure, medical emergency, or any other type of emergency situation;
reasonable cause to believe that a serious violation of DSU policy has occurred or is occurring, including but not limited to violations involving disruptive behavior, violations of visitation hours, inappropriate behavior, alcohol, drugs, weapons, hazardous materials, and burning candles or incense;
inspection of the premises for routine maintenance and safety concerns, to show vacancies to prospective students, to prepare for the arrival of a new resident, or to make repairs to the premises or other legitimate purposes with the job responsibilities of the staff; or
as a result of violation of DSU policy on the part of the residents, a Student Code of Conduct officer has stipulated future random inspections of the residence as part of the sanctioning process. In non-emergency situations DSU personnel will knock before entering and announce the intent to enter.

5.5 Notice of Charges

Once a complaint has been received, a written notice will be sent to the respondent(s). The notice of charges will include what is known of the following:

nature of the alleged Code violation;
date, time, and place of alleged violation(s);
source of the information;
summary of evidence;
nature of sanctions applicable if found responsible;
the right for a student to have an attorney present, or non-attorney advocate, at the student’s expense, if suspension or expulsion are identified as possible sanctions; and/or
notice that a decision could be reached with or without the student’s participation (except in Title IX cases and cases where suspension and/or expulsion are possible sanctions).

Students will be provided notice of a prehearing conference at least ten (10) University business days in advance.

5.6 Prehearing Conference

Students will have the opportunity for a prehearing conference, at which time the hearing officer will review the student’s rights and responsibilities, the nature of the complaint, and how the Code may have been violated. The student may request to proceed with an immediate hearing, except in cases where suspension or expulsion may result. The assigned hearing officer may refuse to hear the case and refer to another hearing officer, with good cause.

5.7 Conduct Hearing

Hearings shall be administrative fact-finding proceedings, the purpose of which shall be to determine whether the respondent is responsible or not responsible for the misconduct charged in the complaint. An administrative hearing involves the respondent, hearing officer, and any other individuals deemed necessary to determine whether there has been a violation of the Code. Administrative hearings may include a hearing panel. For most conduct violations, students may request to have a hearing with or without a hearing panel. The University reserves the right to deny this request. Students may not serve on hearing panels in which suspension or expulsion may result.

During the hearing, the respondent has a right to make a written and/or oral statement describing the events leading up to the charge(s). In all cases involving an allegation of sexual misconduct, the respondent and the alleged victim shall have equal procedural rights, as detailed in SBHE Policy 520: NDUS Title IX Policy.

The hearing officer will ensure the hearing is conducted in a manner which is fair, orderly, not unduly delayed or prolonged, and in compliance with all applicable procedures. The hearing officer shall have authority to rule on requests and objections which may arise; to adopt reasonable rules to facilitate the hearing process; to impose reasonable constraints on any party, including the respondent, whose behavior is disruptive, intentionally harassing, or who refuses to adhere to a ruling or procedure; and, generally, to exercise such control as may be necessary and expedient to accomplish these ends.

When a case has potential to result in suspension or expulsion, the hearing will be recorded and retained in the student’s conduct file.

The hearing officer will provide written notice of findings and associated sanctions to the student in a prompt and timely manner.

5.8 Advisory Options

The respondent has the right to have a person present who may act in an advisory capacity. Hearing advisors may not serve as witnesses. Hearing advisors who do not comply with hearing procedures or directives of the hearing officer may be cautioned and/or asked to leave.

The respondent may, at their own expense, consult with an attorney at any time during the disciplinary procedures and may have an attorney present at the hearing. If a student chooses to have an attorney present as a hearing advisor, DSU may request legal representation be present as well.

When a possible sanction is suspension or expulsion, attorneys or non-attorney advocates may fully participate in the hearing; meaning, they may make opening and closing statements, examine and cross-examine (through the hearing officer) witnesses present during the hearing, and provide the respondent with support, guidance, and advice throughout the hearing.

5.9 Parties Present

Only those parties who are deemed participants in the hearing shall be allowed to be present. This will typically include the hearing officer, the respondent(s), the complainant, advisors/attorneys, and hearing panel members (when panel is being used), along with any support personnel necessary to record the proceedings and the complainant. Witnesses, except those already listed, will be excluded from the hearing except when testifying.

5.10 Default Proceedings

In cases where the respondent/organization fails to appear without notice, or leaves the University with unresolved charges, the hearing officer may make a decision without the respondent/organization participating, providing sufficient written notice was provided via the DSU email system. The hearing officer may place a hold on the student’s records indicating the student may not register until the matter is resolved. A notice may also be placed on the student’s transcript indicating “may not register for non-academic reason,” with consultation and approval from the Vice President or designee.

Student organizations that do not participate will lose recognition as an organization. Student leaders may still face individual sanctions. Student organizations that lose recognition in such a manner, except in cases where suspension or expulsion are involved, will be required to participate with a hearing in the future if recognition is sought again.

5.11 Conflict of Interest

Hearing officers and/or hearing panel members are expected to excuse themselves from hearing procedures when a conflict of interest or bias arises.

5.12 Burden and Standard of Proof

The burden of proof resides with the University. The standard of proof is “more likely than not,” or a preponderance of evidence. For the Student Code of Conduct, preponderance of evidence is based on the more convincing evidence and its probable truth or accuracy and not on the amount of evidence. Students who admit to the violation are found to have violated the Code.

5.13 Hearing Sequence

For cases in which suspension or expulsion are not possible sanctions, the hearing shall generally proceed as follows:

the hearing officer will read the charges to the respondent, who will admit to or deny the charges;
failure to respond shall be deemed a denial;
admitting to the charges will sustain a finding of misconduct without further proceedings;
the complainant may offer evidence in support of the charges;
the respondent may offer evidence;
rebuttal evidence may be provided by either party;
each party may make a closing statement; and
the hearing officer (and panel if used), will move into closed session for deliberation.

5.14 Evidence and Witnesses

The hearing officer shall determine what evidence is accepted, utilizing as governing criteria relevance to the issues at hand, fundamental fairness, and the limitation of repetitious evidence that would unduly prolong the hearing. Formal or technical rules of evidence shall not apply, although recognized principles of confidentiality and privilege shall be respected. Affidavits properly sworn may be received if the affiant is not reasonably available to testify in person, or if the receipt of affidavits would avoid the necessity of calling multiple witnesses on the same matter at hand and would not prejudice other parties. Affidavits must be received, in writing, at least two (2) University business days before a scheduled hearing date.

Witnesses shall be asked to affirm that their testimony is truthful. Additionally, the hearing officer and hearing panel members may take notice of matters which are clearly with the general experience of members of the University community.

An absolute right of cross examination is not granted under the Code. All questions will be addressed through the hearing officer, who will determine if the questions are relevant and reasonable. The hearing officer may exclude questions that are redundant or irrelevant in determining responsibility. Witnesses will only remain in the hearing for the duration of their own testimonies.

Character witnesses are not permitted. If the respondent is found responsible for violating the Code, character statements may be considered during sanctioning. The respondent may provide up to three (3) letters to the hearing officer, at least two (2) University business days prior to the scheduled hearing date. Each letter must be dated, signed, and submitted electronically from the author of the written statement.

Because hearings are an educational process, formal rules of evidence do not apply. For this reason, hearsay evidence, that construed as testimony given by a witness who speaks about information received from others rather than information given directly by that witness, may be permitted in cases in which suspension and/or expulsion are not a possible sanction. The value of such evidence rests with the discretion of the hearing officer.

Sufficient time will be allotted for the respondent and the hearing officer to present written/oral information relevant in determining responsibility. Accused students and witnesses shall not be compelled to incriminate themselves in conduct constituting a violation of this Code and/or local, state, or federal law.

5.15 Hearing Board

Except in cases in which suspension or expulsion is a possible sanction, respondents may request to have a hearing board hear a case instead of a hearing officer. In such incidences, when the request is granted, a hearing officer will preside over the hearing, but the determination of sanctions will be within the purview of the board instead of the hearing officer.

Cases in which a hearing board presides will have at least three hearing board members present. Board members will be appointed by the Vice President or designee each academic year. Board members will be trained prior to participating with any case. In situations where there are not sufficient board members and/or enough trained board members, the case will proceed with a hearing officer.

Board members will be current DSU students, faculty, and staff. Students will not be allowed to serve as board members on hearings in which suspension and/or expulsion are a possible sanction.

5.16 Determination of Sanctions

Only evidence accepted and arguments made at the hearing shall be considered in making findings regarding misconduct. A finding of misconduct shall require a majority vote when a hearing panel is used.

If a respondent is found responsible of misconduct, the hearing officer and/or hearing board will be provided with a synopsis of the past disciplinary record of the respondent, and/or information concerning any pattern of criminal record of the respondent when such information exists. In matters of progressive sanctioning, the hearing officer and/or hearing board will be made aware of the number of like charges/sanctions.

The hearing officer and/or the hearing board may ask the respondent and/or complainant for additional information regarding extenuating circumstances or other considerations which may have a bearing on sanctions. Selection of sanctions will align with the sanctioning matrix/rubric contained within the Code.

5.17 Sanction Report

The hearing officer will issue a written report which sets forth the findings, evidentiary support, and the sanction(s) to be imposed.

5.18 Appeals

Students may file one appeal with the Vice President and the decision of that appeal is final. See Section VIII for appeal procedures.

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DSU Student Code of Conduct