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PART V: Students’ Rights and Responsibilities; Student Discipline and Appeal Hearing Processes

  1. Student Rights
    1. To be accompanied by an advocate at meetings or hearings related to charges.
    2. To be notified of alleged facts and evidence supporting the charge(s) at least five (5) days prior to any scheduled disciplinary hearing.
    3. To examine evidence the university has concerning the incident.
    4. To receive notice of any witnesses the university plans to call to testify at the hearing.
    5. To participate in a fact finding hearing with an impartial hearing officer: A student party to the proceedings may challenge the impartiality of a designated hearing or appeal officer. The challenged hearing or appeal officer may elect voluntary recusal. If the challenged official does not voluntarily recuse, the Chief Judicial Officer shall determine the validity of the challenge and if applicable, appoint an alternate hearing officer.
    6. To call witnesses to present relevant testimony on behalf of the student, as determined by Hearing Officer.
    7. To question witnesses who are called to present testimony in support of the charge(s).
    8. To choose not to answer questions during the investigative process and to not testify at the disciplinary hearing, without the student’s silence being treated as evidence of being responsible for violating the Code.
    9. The right to appeal the decision of the disciplinary Hearing Officer to a higher authority.
  2. Student Responsibilities:
    1. Charged students, as well as students who are witnesses, shall be honest and cooperative with university officials during investigative and hearing/appeal processes. This responsibility is subject to a student’s constitutional right to remain silent in order to not implicate oneself in a violation or crime. If a student exercises the right to not testify or chooses to not participate at all in the proceedings, the Hearing Officer may choose to proceed based upon the evidence gathered from other sources.
    2. A charged student electing to contest the charges shall, at least three (3) days in advance of the hearing, provide the Hearing Officer with a list indicating the witnesses who the student intends to call upon to testify at the hearing, and shall also submit copies of the documentation or identify other evidence, if any, in support of the student’s position relative to the charge.
    3. If the student is found ultimately responsible for violating the code, and a sanction is imposed, the student shall complete all sanctions(s) required in the final decision and report such completion to the Office of the Dean of Students.
  3. Students’ Rights when Title IX is Implicated: Victims/complainants, as defined in this policy, especially with regard to alleged violations of Title IX (sexual discrimination, including sexual misconduct and harassment, sexual assault/violence, domestic violence, dating violence, stalking and other crimes of violence), have the right to special consideration and assistance during the investigation, hearing and resolution phases of the student disciplinary process. In order to ensure fairness to all parties in the proceedings, the student charged is entitled to request the same consideration:
    1. Questioning During Investigation and Hearing: A victim/complainant or student charged may provide a list of questions and request that they be asked during the investigative or hearing stages of the student discipline processes. In order to be considered, the questions must be submitted in writing to the Hearing Officer, as appropriate, and at least three (3) days in advance of any scheduled disciplinary hearing.
    2. Hearing Modifications: A victim/complainant or student charged may request reasonable alternate arrangements relating to participation in the disciplinary hearing, such as submission of questions in written form rather than verbal direct questioning, or to be allowed to provide information from a separate location. As long as the integrity of the hearing is not compromised, and the parties and the hearing official are able to see and communicate with each witness (including the victim/complainant and the accused), reasonable requests will be granted.
    3. Past Behavior: A victim/complainant or student charged has a right to have past unrelated behavior excluded from the disciplinary hearing. The issue of whether past behavior is related or relevant will be determined by the Hearing Officer.
    4. Victim Impact Statement: If the charged student(s) is found responsible, the victim/complainant has a right to submit a victim impact statement to the Hearing Officer for consideration at the sanctioning phase only. The statement may include a description of how the victim was impacted by the conduct violation and may include recommendations for sanctions, penalties, or restitution. However, the Hearing Officer is not bound by these recommendations.
    5. Notification: In cases involving arson, assault, burglary, criminal homicide, destruction/damage/vandalism of property, dating violence, domestic violence, kidnapping, robbery, forcible sex offences, non-forcible sex offense, stalking or any other crime or attempted crime of violence, the victim/complainant has a right to be notified by the Office of the Dean of Students of the final results of the investigation and disciplinary proceedings conducted with respect to the alleged offense. The notification of final results will include (1) the name of the charged student(s); (2) the violation with which the student was charged; (3) whether the student was found “responsible” or “not responsible”; and (4) any sanction(s) imposed, to the extent that the sanction may affect the victim/complainant.
    6. Appeal: As is the case for all violations of the code, in incidents involving violations of Title IX (sexual discrimination, including sexual misconduct and harassment, sexual assault/violence, domestic violence, dating violence, stalking and other crimes of violence); the victim/complainant and the charged student each have the right to appeal the outcome of the fact finding/sanction hearing, as outlined below in this Part V, Section 5.
  4. Investigation and Educational Conference
    1. Determination of Charges
      1. Alleged violations of the code may be reported to the appropriate administrator by any member of the community including but not limited to: (a.) university departments, (b.) university police, (c.) faculty, staff, or students or (d.) third parties.
      2. The appropriate administrator, or designee, will review the information to determine if a student/student organization will be charged with violating the code.
      3. The appropriate administrator, or designee, may not charge a student/student organization with a violation of the Code more than one year after the date the conduct occurred or was discovered, whichever is later.
    2. Notification of Charges and Date/Time of Educational Conference
      1. The appropriate administrator or designee will notify the student/student organization in writing of the allegations and charge(s).
      2. The notice will include the date and time of an Educational Conference. The conference will be scheduled no earlier than five (5) days and no later than ten (10) days from the date of the notice unless requested by the student/student organization representative(s). If the time or date of the conference is not feasible to the student/student organization representative(s), the student/student organization representative(s) must notify the appropriate office based on the information provided in the notification within two (2) business days of the scheduled Educational Conference to reschedule.
      3. If at any time during the course of the judicial process, the appropriate administrator determines that either charges are not warranted or that insufficient evidence exist to continue, then the charges may be withdrawn, and the student/student organization representative(s) will be so notified in writing.
    3. Educational Conference
      1. Educational Conferences are facilitated by individuals identified by the Chief Judicial Officer. Individual Educational Conference for cases will be delegated by the appropriate administrator.
      2. The purpose of the Educational Conference is to review with the student/student organization representative(s) the allegations and charges, the code, the judicial process, the hearing forum, possible sanctions, and to answer questions the student/student organization representative(s) may have.
      3. During the conference the charged student/student organization:
        1. Will be presented with a list of rights and responsibilities as a charged student/student organization. The charged student/student organization will be requested to sign the document indicating that the rights have been explained and that the student/student organization’s representative understands them.
        2. Have the opportunity to accept or deny responsibility for the alleged violations. An acceptance of responsibility for the violations will constitute a waiver of the student/student organization’s right to a hearing and appeal.
      4. If the student/student organization’s representative fails to attend the Educational Conference without notice of reasonable cause, the case may be forwarded to the next step in the process.
    4. Hearing
      1. A student has the right to a fact finding hearing before a Hearing Officer.
      2. The purpose of the hearing is for the university to present the evidence related to the alleged violation, provide a time to allow the accused student/student organization to give a statement or present evidence, and to hear from witnesses.
      3. Absent a time extension, a hearing shall be scheduled no less than five (5) days from notice and no more than ten (10) days from the Educational Conference. Extensions may be granted to either the Hearing Officer (requests will be considered by the Chief Judicial Officer) or to a student, (requests will be considered by the Hearing Officer) provided all parties are notified about the request for time extension and the reason for the need for an extension.
  5. Fact Finding Hearing and Determination of Sanctions, if Warranted
    1. Hold on Student’s Record: The University may place a hold on the records or registration of any student who fails to respond to a university disciplinary notice or fulfill any sanctions previously issued by the university. All pending disciplinary matters must be resolved prior to a student’s graduation, transfer from or continued education at the university.
    2. Standard of Proof: The duty to prove a disciplinary case rests with the university and the standard of proof shall be preponderance of the evidence. “Preponderance of the evidence” means that the information presented supports the findings that it was more likely than not that the violation occurred.
    3. Advocate: A charged student/student organization is entitled to have any one (1) person at the hearing to serve in the capacity as the Advocate. Student/student organization may consult with their advocate during the hearing process. However, this consultation must take place in a manner that does not disrupt the proceedings. The advocate shall not speak on behalf of the student, question witnesses, present information or argue before the panel. The advocate shall not serve as a witness. The student must notify the appropriate administrator no later than three (3) days prior to the hearing if the student will have an advocate present during the hearing
    4. Confidentiality: All hearings shall be closed and confidential.
    5. Accommodations for Students with Disabilities: Any student with a disability may request reasonable accommodations during the disciplinary process. This request must be made to the appropriate office which handles accommodations for students with disabilities at least three (3) days in advance of the hearing. If necessary, the Hearing Officer may postpone the hearing to provide reasonable accommodations.
    6. Safety Procedures: The Hearing Officer may accommodate concerns for the safety of the individuals involved by providing separate facilities or other alternatives.
    7. Pre-hearing Information Notice: The University will make available pre-hearing information including a copy of the hearing procedures and copies of records that will be presented by the university at the hearing. The pre-hearing information will be available at least three (3) days in advance of the hearing.
    8. Failure to Appear: If a charged student fails to appear, without giving notice of extenuating circumstances, the hearing may proceed in the student’s absence.
    9. Role of the Hearing Officer:
      1. Accept information for consideration as deemed to be relevant. Repetitive testimony offered for the same purpose is an example of evidence the Hearing Officer might deem to not be necessary.
      2. Make procedural decisions relating to the hearing. Examples include requests for time extensions, assertions of conflict of interest affecting impartiality of hearing officer.
      3. Make procedural modifications in the interest of fairness or safety.
      4. Take action deemed necessary to maintain order in the hearing process.
    10. Right Not to Testify: No student will be compelled to make self-incriminating statements.
    11. Information: The Hearing Officer and the charged student/student organization will be given an opportunity to provide information. This may include, but is not limited to, pertinent records, documents, written or oral statements. The student/student organization will also be given an opportunity to inspect records held by the appropriate office.
    12. Witnesses: The Hearing Officer and the charged student/student organization may call witnesses. In order to preserve the educational atmosphere of the hearing and to avoid creation of an adversarial environment, all questions for witnesses will be directed through the Hearing Officer. If a witness cannot appear, their written or recorded statement may be considered. Witnesses will be required to wait outside until their point of participation and will be asked to leave the hearing after being questioned.
    13. Multiple Students Charged: In cases involving multiple students charged from the same incident, information obtained in one hearing may be used at another hearing subject to FERPA, HIPAA and other individual privacy considerations, and provided that each charged student involved has the opportunity to review and respond to the information at their hearing.
    14. Effective Date of Sanctions: When the Hearing Officer’s decision affects a student’s academic status, the change will be effective immediately, and may only be changed based on the terms contained in the Hearing Officer’s decision (e.g. a one year suspension) or based on the terms of a decision on appeal.
    15. Decisions of “responsible” or “not responsible” on the charge(s): The Hearing Officer’s decision letter shall be based on the information presented at the hearing. The Hearing Officer shall determine whether or not the student is responsible for violating the code as charged.
    16. Record: There shall be a single record of all student/student organization conduct hearing and shall be maintained in the Office of the Dean of Students. This record is the official record and is the property of the university. For hearings before a Hearing Officer, the Officer’s notes will become part of the record. The student/student organization may request a copy in writing which will be provided.
    17. Notice of Hearing Officer’s Decision: The Hearing Officer shall issue a written decision letter to the student/student organization within five (5) days following the conclusion of the hearing. This time may be extended, provided the student/student organization shall be notified of any such extensions. The decision letter shall explain the basis for the Hearing Officer’s finding(s) on each charge and sanction for each charge if found responsible for the charge.
    18. Notice of Right to Appeal/Final Review: The decision letter shall also inform the student/student organization of their right to appeal to an Appeal Officer, in writing, within five (5) days from the date of receipt of the Hearing Officer’s decision letter.
  6. Appeal from Decision of Hearing Officer
    1. The Appeal Officer will review the notice of intent to appeal and determine:
      1. Whether the appeal was submitted timely; if not submitted timely, the Appeal Officer may decide to accept the appeal, if the appealing student requests a waiver of the time limit and provides the reason for the late submission which indicates an extenuating circumstance outside the student’s control prevented a timely appeal; and
      2. Whether or not the notice of appeal states a permissible ground for appeal. If grounds for appeal have not been identified in the written notice of appeal, the appeal shall not be considered further, and the decision of the Hearing Officer will be upheld.
      3. Grounds for appeals are:
        1. procedural or prejudicial error was committed, or
        2. evidence not available at the time of the hearing is now available.
    2. If proper grounds for appeal have been identified, and the appeal has been deemed timely, the Appeal Officer will proceed to review the matter.
    3. Each party may submit a statement in writing explaining why they think the determination of the Hearing Officer should be upheld, reversed, or modified.
      1. The statement from the student/student organization must be included with the request for appeal.
      2. The statement from the Hearing Officer will be submitted to the Appeal Officer, along with the hearing record, at the time the request for appeal is received. Absent a time extension, the Hearing Officer must submit the statement and the hearing record within two (2) days of receipt of appeal. The Appeal Officer may grant a time extension, upon notice to all parties.
    4. The Appeal Officer will review the evidence presented at the hearing, any relevant policies or law, the decision of the Hearing Officer and the submittals from the parties in order to issue a decision of the appeal in writing.
    5. The student/student organization will be notified of the decision by the Appeal Officer within five (5) days from receipt of the Request for Appeal, absent notification to all parties that additional time is needed in which to review. Delivery of the decision may be accomplished electronically to the student’s official NMSU email address via the conduct database used by the university.
    6. The decision by the Appeal Officer will be final.
  7. Records
    1. Records of all disciplinary actions imposed within the NMSU system shall be forwarded to the Office of the Dean of Students to maintain as the official student conduct record.
    2. Students found “not responsible” or cases in which charges are dropped are considered not to have a judicial record. However, the records will be maintained by the university in accordance with applicable State record retention laws or university policy whichever is longer.
  8. Transcript Notations
    1. A notation will be placed on the student’s transcript during any period of permanent probation, suspension, dismissal or expulsion. In the case of permanent probation, suspension, or dismissal the student, after a period of one year or term of sanction whichever is longer, may request to have the notation removed from the transcript by submitting a letter to the Dean of Students or Vice President of Student Services/Success with the reason the notation should be removed. The Dean of Students or appropriate Vice President for Student Services/Success will make the determination if the notation should be removed. The Dean of Students or appropriate Vice President of Student Services/Success’s decision is final.
    2. If a student is expelled, a permanent notation will be placed on the student’s transcript.