Enrolled Copy H.B. 414
1 DUE PROCESS AMENDMENTS
2024 GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Jordan D. Teuscher Senate Sponsor: Todd D. Weiler
2
3 LONG TITLE
4 General Description:
5 This bill addresses due process in disciplinary proceedings in an institution of higher
6 education.
7 Highlighted Provisions:
8 This bill:
9 ▸ defines terms;
10 ▸ enacts provisions related to disciplinary proceedings in institutions of higher education,
11 including:
12 ● requiring an institution of higher education to allow certain parties to have legal
13 representation at a disciplinary proceeding;
14 ● governing the exchange of evidence at a disciplinary proceeding;
15 ● prohibiting certain conflicts of interest in a disciplinary proceeding; and
16 ● authorizing a cause of action;
17 ▸ requires an institution to adopt policies and procedures consistent with the provisions of
18 this bill; and
19 ▸ amends applicable governmental immunity provisions.
20 Money Appropriated in this Bill:
21 None
22 Other Special Clauses:
23 None
24 Utah Code Sections Affected:
25 AMENDS:
26 63G-7-301, as last amended by Laws of Utah 2023, Chapter 516
27 67-5-1, as last amended by Laws of Utah 2023, Chapter 330
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28 ENACTS:
29 53B-27-601, Utah Code Annotated 1953
30 53B-27-602, Utah Code Annotated 1953
31 53B-27-603, Utah Code Annotated 1953
32 53B-27-604, Utah Code Annotated 1953
33 53B-27-605, Utah Code Annotated 1953
34 53B-27-606, Utah Code Annotated 1953
35 53B-27-607, Utah Code Annotated 1953
36 53B-27-608, Utah Code Annotated 1953
37 53B-27-609, Utah Code Annotated 1953
38
39 Be it enacted by the Legislature of the state of Utah:
40 Section 1. Section 53B-27-601 is enacted to read:
41
Part 6. Student Legal Representation
42 53B-27-601 . Application.
43 The provisions of this part do not:
44 (1) govern campus law enforcement departments or law enforcement personnel; or
45 (2) otherwise replace or amend criminal procedures that govern law enforcement activities.
46 Section 2. Section 53B-27-602 is enacted to read:
47 53B-27-602 . Definitions.
48 As used in this part:
49 (1) "Academic dishonesty" means an act of dishonesty relating to a student's academic
50 work or performance.
51 (2) "Accused student" means an individual enrolled in an institution who has allegedly
52 violated a policy or rule.
53 (3) "Accused student organization" means a student organization, recognized by an
54 institution, that has allegedly violated a policy or rule.
55 (4) "Alleged victim" means an individual whose rights are allegedly infringed or who is
56 otherwise allegedly harmed by an accused student's or a student organization's violation
57 of a policy or rule.
58 (5) "Evidence" means information that is inculpatory or exculpatory as the information
59 relates to an accusation against an accused student or accused student organization,
60 including:
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61 (a) a complainant statement;
62 (b) a third-party witness statement;
63 (c) electronically stored information;
64 (d) a written communication;
65 (e) a post to social media; or
66 (f) demonstrative evidence.
67 (6) "Full participation" means the opportunity in a student or student organization
68 disciplinary proceeding to:
69 (a) make opening and closing statements;
70 (b) examine and cross-examine a witness;
71 (c) introduce relevant evidence; and
72 (d) provide support, guidance, or advice to an accused student, accused student
73 organization, or alleged victim.
74 (7) "Legal representation" means an attorney, who is licensed to practice law in this state
75 and whom:
76 (a) an accused student selects to assist the student in the student's disciplinary
77 proceeding;
78 (b) an alleged victim selects to assist the alleged victim at a proceeding that pertains to
79 the alleged victim; or
80 (c) an accused student organization selects to assist the student organization at a student
81 organization disciplinary proceeding.
82 (8) "Nonattorney advocate" means an individual, who is not licensed to practice law and
83 whom:
84 (a) an accused student selects to assist the student in the student's disciplinary
85 proceeding;
86 (b) an alleged victim selects to assist the alleged victim at a proceeding that pertains to
87 the alleged victim; or
88 (c) an accused student organization selects to assist the student organization at a student
89 organization disciplinary proceeding.
90 (9) "Policy or rule" means a policy or rule, or a relevant section of a policy or rule, of an
91 institution that, if violated, may result in:
92 (a) for a student, a suspension of 10 calendar days or more or expulsion from the
93 institution; or
94 (b) for a student organization, the suspension or the removal of institutional recognition
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95 of the student organization.
96 (10) "Proceeding" means an adjudicatory hearing, including an appeal, in which evidence is
97 presented to a hearing officer or a hearing panel, and that is:
98 (a) required by a policy or rule; or
99 (b) held to determine whether a policy or rule has been violated.
100 (11) (a) "Student disciplinary proceeding" means a proceeding initiated by an institution
101 to determine whether an accused student has violated a policy or rule.
102 (b) "Student disciplinary proceeding" does not include a proceeding that solely involves
103 a student's academic dishonesty.
104 (12) "Student organization" means a club or other organization:
105 (a) that meets during noninstructional time;
106 (b) that is recognized by the institution at which the organization meets; and
107 (c) with a majority of members who are current students at the institution.
108 (13) (a) "Student organization disciplinary proceeding" means a proceeding initiated by
109 an institution to determine whether an accused student organization has violated a
110 rule or policy.
111 (b) "Student organization disciplinary proceeding" does not include a proceeding that
112 solely involves a student's academic dishonesty.
113 Section 3. Section 53B-27-603 is enacted to read:
114 53B-27-603 . Student disciplinary proceedings -- Legal representation.
115 (1) An institution may not prohibit:
116 (a) an accused student from being represented, at the accused student's expense, by legal
117 representation or a nonattorney advocate at a student disciplinary proceeding that
118 pertains to the accused student; or
119 (b) an accused student's legal representation or nonattorney advocate from full
120 participation in a student disciplinary proceeding that pertains to the accused student.
121 (2) An institution may not prohibit:
122 (a) an alleged victim from being represented, at the alleged victim's expense, by legal
123 representation or a nonattorney advocate at a student disciplinary proceeding that
124 pertains to the alleged victim; or
125 (b) the alleged victim's legal representation or nonattorney advocate from full
126 participation in a student disciplinary proceeding that pertains to the alleged victim.
127 (3) (a) An institution shall provide an accused student described in Subsection (1) or an
128 alleged victim described in Subsection (2) written notice of the accused student's or
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129 alleged victim's rights under this section.
130 (b) The institution shall ensure that the notice provided to an accused student under
131 Subsection (3)(a) notifies the accused student that:
132 (i) the accused student is entitled to a student disciplinary proceeding to contest the
133 charges against the accused student;
134 (ii) the accused student is entitled to a presumption of innocence; and
135 (iii) the presumption of innocence remains until:
136 (A) the accused student acknowledges responsibility for the alleged violation; or
137 (B) the institution has established every element of the alleged violation at a
138 student disciplinary proceeding.
139 (c) Unless exigent circumstances reasonably justify proceeding without providing notice
140 under Subsection (3)(a), an institution shall establish policies and procedures to
141 ensure that the institution provides written notice of the accused student's or alleged
142 victim's rights as soon as practicable but no later than seven days before a student
143 disciplinary proceeding that pertains to the accused student or alleged victim.
144 Section 4. Section 53B-27-604 is enacted to read:
145 53B-27-604 . Student organization disciplinary proceedings -- Legal
146 representation.
147 (1) An institution may not prohibit:
148 (a) an accused student organization from being represented, at the accused student
149 organization's expense, by legal representation or a nonattorney advocate at a student
150 organization disciplinary proceeding that pertains to the accused student
151 organization; or
152 (b) an accused student organization's legal representation or nonattorney advocate from
153 full participation in a student organization disciplinary proceeding that pertains to the
154 accused student organization.
155 (2) An institution may not prohibit:
156 (a) an alleged victim from being represented, at the alleged victim's expense, by legal
157 representation or a nonattorney advocate at a student organization disciplinary
158 proceeding that pertains to the alleged victim; or
159 (b) the alleged victim's legal representation or nonattorney advocate from full
160 participation in a student organization disciplinary proceeding that pertains to the
161 alleged victim.
162 (3) (a) An institution shall provide an accused student organization described in
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163 Subsection (1) or an alleged victim described in Subsection (2) written notice of the
164 accused student organization's or alleged victim's rights under this section.
165 (b) The institution shall ensure that the notice provided to an accused student
166 organization under Subsection (3)(a) notifies the accused student organization that:
167 (i) the accused student organization is entitled to a student organization disciplinary
168 proceeding to contest the charges against the accused student organization;
169 (ii) the accused student organization is entitled to a presumption of innocence; and
170 (iii) the presumption of innocence remains until:
171 (A) the accused student organization acknowledges responsibility for the alleged
172 violation; or
173 (B) the institution has established every element of the alleged violation at a
174 student organization disciplinary proceeding.
175 (c) Unless exigent circumstances reasonably justify proceeding without providing notice
176 under Subsection (3)(a), an institution shall establish policies and procedures to
177 ensure that the institution provides written notice of the accused student
178 organization's or alleged victim's rights as soon as practicable but no later than seven
179 days before a student organization disciplinary proceeding that pertains to the
180 accused student organization or alleged victim.
181 Section 5. Section 53B-27-605 is enacted to read:
182 53B-27-605 . Exchange of evidence.
183 (1) (a) An institution shall ensure that an accused student, an alleged victim, or an
184 accused student organization has access to all material evidence that is in the
185 institution's possession, including both inculpatory and exculpatory evidence, unless
186 the material is subject to a legal privilege, no later than one week before the day on
187 which a proceeding begins.
188 (b) Evidence that is an accused student's or an alleged victim's personal medical record,
189 mental health record, therapy note, or journal may not be used as evidence in a
190 proceeding unless the accused student or alleged victim consents to the use of the
191 evidence in the proceeding.
192 (c) Any evidence presented in a proceeding under this part is confidential and may not
193 be:
194 (i) used as evidence in a subsequent proceeding; or
195 (ii) used or disclosed to a third-party for any other purpose other than for the
196 proceeding.
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197 (2) Nothing in this part:
198 (a) provides for formal or informal discovery beyond the exchange of evidence
199 described in Subsection (1); or
200 (b) incorporates or binds an institution to:
201 (i) the Utah Rules of Civil Procedure or the Utah Rules of Evidence; or
202 (ii) the Federal Rules of Civil Procedure or the Federal Rules of Evidence.
203 Section 6. Section 53B-27-606 is enacted to read:
204 53B-27-606 . Conflict of interest.
205 (1) An institution shall conduct a student disciplinary proceeding or student organization
206 disciplinary proceeding in an impartial manner free from conflicts of interests.
207 (2) Except as provided in Subsection (3), in order to avoid conflicts of interest created by a
208 comingling of roles, an institution shall prohibit an individual employed by or otherwise
209 representing an institution from acting as an adjudicator, hearing officer, or appellate
210 hearing officer in a student disciplinary proceeding or student organization disciplinary
211 proceeding if the individual has also served in one of the following roles in the same
212 matter:
213 (a) an advocate or counselor for an alleged victim, accused student, or accused student
214 organization;
215 (b) an investigator;
216 (c) an institutional prosecutor; or
217 (d) an advisor to a person described in Subsection (2)(a), (b), or (c).
218 (3) If an individual employed by the institution or otherwise representing the institution
219 serves as an investigator and an institutional prosecutor for the alleged violation of a
220 policy or rule, the institution shall advise an accused student, accused student
221 organization, or alleged victim before the investigation proceeding.
222 (4) An individual may not serve as an investigator or institutional prosecutor and an
223 advocate for an accused student, accused student organization, or alleged victim in the
224 same matter.
225 (5) In a proceeding conducted under this part, an institution shall allow an accused student,
226 accused student organization, or an alleged victim to raise objections to issues that could
227 potentially compromise the impartiality of the proceedings, including any potential
228 conflicts of interest in violation of this section.
229 Section 7. Section 53B-27-607 is enacted to read:
230 53B-27-607 . Application -- Institution policies.
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231 (1) This part does not prohibit an institution from temporarily suspending an accused
232 student or accused student organization pending the completion of a student or student
233 organization disciplinary proceeding.
234 (2) An institution shall:
235 (a) enact policies to govern proceedings in which a student has a right to an active legal
236 representation or a nonattorney advocate in accordance with this part;
237 (b) train adjudicators, hearing officers, and appellate hearing officers on relevant
238 evidence and nonrelevant, nonprobative evidence; and
239 (c) enact policies and procedures to notify a student of the student's right to bring a cause
240 of action in violation of this part to the attorney general's office.
241 (3) An institution may adopt a policy requiri