House bill NO. 950

INTRODUCED BY M. Hopkins

By Request of the ****

A BILL FOR AN ACT ENTITLED: "AN ACT Establishing the Student and Administration Equality Act; PROVIDING DEFINITIONS; establishing procedural protections and rights for students in disciplinary proceedings; providing that violations are a CAUSE of action; ESTABLISHING a statute of limitations; PROVIDING AN APPROPRIATION; and PROVIDING AN EFFECTIVE DATE."

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:

NEW SECTION. Section 1. Short title. [Sections 1 through 4] may be cited as the "Student and Administration Equality Act".

NEW SECTION. Section 2. Definitions. As used in [sections 1 through 4], unless the context clearly indicates otherwise, the following definitions apply:

(1) "Disciplinary proceeding" means an investigatory interview or hearing or any other procedure conducted by the public postsecondary institution relating to the alleged violation that a student or student organization reasonably believes may result in disciplinary action against the student or student organization.

(2) "Fully participate" means the opportunity to be present, to make opening and closing statements, to examine and cross-examine witnesses, and to provide the accuser or accused student or student organization with support, guidance, and advice. [Sections 1 through 4] do not require a public postsecondary institution to use formal rules of evidence in disciplinary proceedings. The institution, however, shall make good faith efforts to include relevant evidence and exclude evidence that is neither relevant nor probative.

(3) "Public postsecondary institution" or "institution" means:

(a) a unit of the Montana university system as described in 20-25-201; and

(b) a Montana community college defined and organized as provided in 20-15-101.

NEW SECTION. Section 3. Disciplinary proceedings -- rights and procedural protections. (1) A public postsecondary institution shall maintain an administrative file of all disciplinary proceedings. The file must include all documents and evidence in the institution's possession or control relevant to the alleged violation and the institution's investigation, including but not limited to exculpatory evidence, statements by the accuser and accused student, third-party witness statements, electronically stored information, written communications, social media posts, demonstrative evidence, documents submitted by any participant, and the institution's choice of a video recording, audio recording, or transcript of any disciplinary hearing ultimately held in the matter. The file may not include privileged documents or internal memorandums that the institution does not intend to introduce as evidence at any hearing on the matter.

(2) The code of student conduct at a public postsecondary institution must include the following disciplinary rights and procedural protections for a student enrolled at the institution who is accused of violating the nonacademic disciplinary or conduct rules that carry a potential penalty of a suspension of 10 or more days or expulsion and a student organization officially recognized by a public postsecondary institution that is accused of a violation that is punishable by suspension or removal of the student organization from the institution:

(a) the right to be represented at the student's or the student organization's expense by an attorney or, if the student or the student organization prefers, by a nonattorney advocate, who in either case may fully participate during the disciplinary procedure or other procedure adopted and used by the public postsecondary institution, except as provided in subsection (3). The right of the student or the student organization to be represented, at the student's or the student organization's expense, by the student's or the student organization's choice of either an attorney or a nonattorney advocate, also applies until the conclusion of any campus appellate process.

(b) the express presumption of innocence and that the accused student or the accused student organization may not be considered guilty of the violation until the accused student or the accused student organization formally acknowledges responsibility or the conclusion of a hearing in which the institution has established every element of the alleged violation;

(i) be present at a hearing;

(ii) make an opening and closing statement;

(iii) present relevant evidence; and

(iv) cross-examine adverse witnesses through counsel or, at the student's or the student organization's sole discretion, a nonattorney advocate. If the student or the student organization does not have counsel or a nonattorney advocate to conduct the cross-examination, the institution shall either appoint one to perform this function or provide an alternative method for conducting meaningful cross-examination.

(d) the timely advisement of rights. Before the disciplinary proceeding is scheduled, and at least 2 business days before a student or a student organization is to be questioned by a public postsecondary institution or by an agent of the institution about allegations of violations, the institution shall advise the student or the student organization of the student's or the student organization's rights under this section in writing.

(e) the opportunity to appeal. A student or a student organization that is found to be in violation of the institution's nonacademic or conduct rules must be afforded an opportunity to appeal the institution's initial decision to an appellate entity that is an institutional employee or body that did not make the initial decision. The appeal must be filed within 90 days after receiving final notice of the institution's decision. The institution may designate the appellate entity as the final institutional authority on the matter. Nothing in [sections 1 through 4] may preclude a court from granting a prevailing plaintiff equitable relief.

(f) reasonable continuing access to the administrative file and the ability to make copies of all evidence or documents in the file beginning at least 7 business days prior to any disciplinary hearing, or sooner if otherwise specified under federal law, except that individual portions of the administrative file must be redacted if disclosure of the evidence is required by law;

(g) the disciplinary proceedings are carried out free from conflicts of interest by ensuring that there is no commingling of administrative or adjudicative roles. For the purposes of this subsection (2)(g), an institution is considered to be commingling roles if any individual carries out more than one of the following roles with respect to the proceeding:

(i) advocate or counselor for a complaining or accused student or student organization;

(ii) investigator;

(iii) institutional prosecutor;

(iv) adjudicator; and

(v) appellate adjudicator.

(3) A student or a student organization does not have the right under this section to be represented by an attorney or nonattorney advocate for any allegation of academic dishonesty as defined by the public postsecondary institution.

(4) This section does not create a right of a student or a student organization to be represented at public expense.

(5) The code of student conduct at a public postsecondary institution must include the following rights of the student accuser in disciplinary proceedings, subject to subsection (2), that arise from a complaint by a student against another student:

(a) to be represented at the student accuser's own expense by an attorney or, if the student accuser prefers, a nonattorney advocate, who may fully participate during the disciplinary procedure or other procedure adopted by the institution. The right of the student accuser to be represented at the student accuser's own expense or by the student accuser's choice of either an attorney or a nonattorney advocate also applies until the conclusion of any campus appellate process.

(b) to have reasonable continuing access to the administrative file and the ability to make copies of all evidence or documents in the file beginning at least 7 business days prior to any disciplinary hearing, or sooner if otherwise specified under federal law, except that individual portions of the administrative file must be redacted if disclosure of the evidence is required by law.

(6) When required by federal law, the right to appeal must be extended to a student accuser. In these cases, the student accuser and the accused student must be provided simultaneous notification of the institution's procedures to appeal the result of the disciplinary proceeding.

(7) Nothing in this section may be interpreted to impair an institution's ability to take reasonable interim measures necessary to ensure the physical safety of members of the campus community during a timely investigation and adjudication of a student disciplinary issue, including but not limited to the ability to make adjustments in student housing arrangements, impose conditions of no contact between the accused student and the accuser, temporarily suspend a student, or ban a student from campus. The reasonable interim measures must include:

(a) within 24 hours, written notice to the accused student of the interim measures that explains the institution's reasons for enacting the interim measures;

(b) within 3 business days of the written notice, unless otherwise waived by the accused student, an interim measure hearing to determine whether there is substantial evidence that the accused student poses a risk to the physical safety of a member of the campus community and that the interim measure is appropriate to mitigate that risk; and

(c) at the interim measure hearing, the accuser and the accused student must have the right to be represented by an attorney or a nonattorney advocate who may fully participate in the interim measure hearing. An accused student's waiver of the right to an interim measure hearing may not constitute an admission of guilt or a waiver of any additional rights afforded under this section.

NEW SECTION. Section 4. Cause of action -- statute of limitations. (1) Any student or student organization whose rights under [sections 1 through 4] have been violated may bring an action in district court.

(2) In an action brought under [sections 1 through 4], if the court finds a violation of this part, the court shall award the aggrieved student or student organization compensatory damages, reasonable court costs, and attorney fees, including expert fees, monetary damages of not less than the cost of tuition paid by the student or on the student's behalf to the public postsecondary institution for the semester during which the violation occurred, plus monetary damages of not less than the amount of any scholarship funding lost as a result of the campus discipline, and any other relief in equity or law as considered appropriate, including but not limited to a de novo rehearing at the public postsecondary institution in accordance with [sections 1 through 4].

(3) An action against a public postsecondary institution based on the institution's alleged violation of [sections 1 through 4] must be commenced not later than 1 year after the day the cause of action accrues. For the purposes of calculating the 1-year limitation period, the cause of action is considered accrued on the date that the student or student organization receives final notice of discipline from the institution.

NEW SECTION. Section 5. Appropriation. There is appropriated $10,000 from the general fund to the office of the commissioner of higher education for the biennium beginning July 1, 2023, for the purpose of notifying public secondary institutions and supporting the implementation of [sections 1 through 4].

NEW SECTION. Section 6. Codification instruction. [Sections 1 through 4] are intended to be codified as an integral part of Title 20, chapter 25, part 5, and the provisions of Title 20, chapter 25, part 5, apply to [sections 1 through 4].

NEW SECTION. Section 7. Effective date. [This act] is effective July 1, 2023.