Discriminatory Misconduct Procedures
Standard Operating Procedures for Allegations of Discriminatory Misconduct
Table of Contents
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- Section I: Introduction
- Section II: Preliminary Information
- Section III: Initiating Student Conduct Allegations
- Section IV: Investigation
- Section V: Adjudication
- Section VI: Appealing a Final Decision
- Section VII: Exceptions to Procedures
- Appendix A: Glossary of Important Terms
- Appendix B: Action Plan Guidance
- Appendix C: Administrative Conference Structure and Logistics
- Appendix D: Rules of Decorum for Administrative Conferences
Section I: Introduction
The following procedures implement the Student Code of Conduct (“Code”) as it relates to allegations of Discriminatory Misconduct when the Respondent is an individual Student, excluding allegations which constitute Title IX Sexual Harassment. The stated timelines in these procedures are not binding and create no additional rights for the Parties. If there is a conflict between University policy and these procedures, the policy controls.
The procedures for resolving allegations of Title IX Sexual Harassment are set forth in University policy AD85. When a report includes allegations of both Title IX Sexual Harassment and Prohibited Conduct under the Code, including Discriminatory Misconduct, the Senior Director of the Office of Student Accountability and Conflict Response (OSACR) may refer the Prohibited Conduct allegations to be resolved with the Title IX Sexual Harassment allegations in accordance with the procedures outlined in the AD85 policy. The decision to consolidate is discretionary and may not be appealed.
In cases where allegations are related to both Discriminatory Misconduct and other forms of Prohibited Conduct under the Code, these procedures may be utilized to resolve all potential violations associated with the alleged misconduct.
Throughout these procedures, the term “Senior Director” refers to the Senior Director of OSACR. The term “Director of OSMPR” is used to refer to the Director of the Office of Sexual Misconduct Prevention and Response (OSMPR). Both the Senior Director and the Director of OSMPR may designate others, including designees at each Penn State campus, to fulfill the responsibilities outlined in these procedures. For a glossary of additional important terms, see Appendix A.
Section II: Preliminary Information
Penn State is committed to ensuring an inclusive, accessible, and equitable process for all Participants. Students who have a disability and believe they require reasonable accommodation to participate in the student conduct process should contact their Campus Disability Coordinator. Accommodations which are deemed necessary and approved will be incorporated into the student conduct process. Requests should be made as soon as possible to ensure the University has sufficient time to review and process the accommodation request. Participants who wish to request language interpretation or translation services, for a need other than disability accommodation, should contact their Investigator to discuss available resources.
Respondents with other affiliations, including but not limited to student-organization membership, University-affiliated programs (e.g., ROTC), academic programs, NCAA athlete status, University appointment or employment, or visa status, may be subject to applicable processes or standards in addition to the Student Code of Conduct. Those processes are managed by the offices and/or units which oversee the programs, separately from the student conduct process.
In some incidents, misconduct may also constitute a violation of the law. Incidents addressed through the University's conduct system are separate from the criminal justice system and/or civil protective order processes. The Senior Director, the Director of OSMPR, or any other University official who makes decisions as a part of the student conduct process is unable to give legal advice about any implications arising from a Respondent’s participation in the conduct process.
Conduct Withdrawal: When there is concurrent or pending criminal investigation and/or judicial process, a Respondent may request a conduct withdrawal from the Senior Director. Respondents should request the conduct withdrawal form from their case manager. If approved, the conduct process is paused, and a notation is placed on the Respondent’s transcript indicating the Student withdrew while a conduct process was pending. The Respondent is prohibited from being present at University Premises, including virtual spaces, and from participating in University Sponsored Activities until further notice. The Senior Director’s decision is discretionary, and the conduct process may be reinitiated at any time.
Temporary Request for Delay: At the request of law enforcement, the University may temporarily delay the student conduct process until some, or all, of the criminal process has been completed. The decision to suspend the student conduct process will be made taking into consideration the health and safety of the campus community. Interim actions may be imposed during the delay.
Conduct Holds on Student Account
The Senior Director may place a hold (“conduct hold”) on a student’s account if the student is the Respondent in a pending student conduct proceeding, or as a part of an administrative sanction under the Code. A conduct hold may restrict the student from class registration, obtaining an official transcript, or receiving a degree from the University until the hold has been removed. If a conduct hold is put in place pending the outcome of the student conduct proceeding, the Respondent will be notified of the hold and be provided an opportunity to contest the hold or request that it be made less restrictive. Placing a conduct hold does not assume any determination of, or create any expectation of, a violation of the Code.
The Senior Director or Director of OSMPR may also place a conduct hold that restricts class registration on the student account of a Witness or other Participant who has failed to attend a required meeting with their respective office.
Confidential Resources and Supportive Measures
All Students who have experienced, witnessed, or been accused of Discriminatory Misconduct are entitled to supportive measures, including but not limited to academic arrangements (such as class withdrawals, incomplete grades and alternative course completion, extension of deadlines), campus escort services, assistance with housing, transportation, and other support services, referrals to community agencies, and/or other reasonable measures. Students may also seek confidential resources such as health and counseling services. Penn State also offers resources to support faculty and staff members who have been affected by Discriminatory Misconduct.
The Senior Director may impose an interim action(s), as outlined in Section VIII of the Code, when it is necessary to address a threat to the health or safety of any person, a threat to property, or a disruption or interference with the normal operations of the University, or when the Student is charged with a serious violation of state or federal law. Interim action may include, but is not limited to, an interim suspension from the University and/or removal from University-owned housing facilities pending the consideration of a case through the procedures in this document.
If interim action is to be taken, the following will occur:
- When possible, the Complainant will be informed of any interim action prior to its implementation.
- The Respondent will receive written Notice of the interim action (which may occur simultaneously with the implementation of the interim action).
- Both Parties may contest the Interim Action to the Assistant Vice President for Student Affairs, or designee.
The Senior Director may authorize other University Officials to take temporary, emergency action to address an urgent concern outside of business hours until a determination can be made regarding whether an interim action is appropriate. Emergency actions will be in place for no more than two business days before they are removed or replaced by an interim action.
No Contact Directive
The Senior Director or Director of OSMPR may issue a No Contact Directive prohibiting contact between two or more Students when there is reasonable concern that such contact may:
- Cause disruption of or interference with university services and/or administrative functions or an environment conducive to learning,
- Create a hostile or unwelcoming environment, and/or
- Cause reasonable fear of physical harm.
Violations of No Contact Directives are subject to student conduct action in accordance with the Code. The University will not issue a No Contact Directive when there is reasonable belief that the directive has been requested for the purpose of discrimination or harassment and may refer allegations of discrimination or harassment for further review.
More information about no contact directives is available on the Office of Student Accountability and Conflict Response website.
Party Participation: Parties may choose how, if at all, they will participate in the resolution process. Regardless of their level of participation, parties retain their rights in the process as afforded by university policy and applicable state and federal law, and the University will continue to send official communications throughout the process. The University will not retaliate against any party for choosing not to participate in the process. Whenever possible, and always when required by law, the Discriminatory Misconduct resolution process will afford equal access and participation to both Respondents and Complainants. When allegations do not include sex and/or gender-based harassment or crimes of violence, the extent to which a Complainant may participate in the process and/or have access to case materials may be limited as required by the Family Educational Rights and Privacy Act.
Honest Participation: To the extent that a Respondent, Complainant, or Witness chooses to participate, it is expected that participation will be honest and forthright.
Selective Participation: Decisions regarding whether a violation occurred will not be based solely on a Complainant, Respondent, or Witness refusing to answer questions or participate in the student conduct process. However, choosing to answer some material questions but not others, or choosing to participate in some portions of the process but not others, may be considered during determinations regarding credibility or the weight given to information provided.
Retaliation is prohibited by University policy (see AD67). The University will not tolerate retaliation in any form against any individual who makes an allegation, files a Report, serves as a Witness, assists a Complainant or Respondent, or participates in the student conduct process. Allegations of retaliation should be reported immediately.
Parties may seek the assistance of one Support Person, of their choosing, to provide support, advice, or guidance throughout the process. To designate a Support Person, the party must notify the University in writing. Should a Party wish to change their designated Support Person during the process, new written consent must be submitted. The opportunity to have a Support Person present during a meeting does not allow for an unreasonable delay. The Senior Director or the Director of OSMPR will determine what constitutes an unreasonable delay.
Respondents or Complainants from the incident cannot serve as Support Persons in that case. While it is not prohibited, the University discourages having a Witness also participate as a Support Person. Parties should be aware that choosing a Witness to serve as their Support Person may impact the credibility of that Witness' testimony as Support Persons have access to information not otherwise accessible to a Witness.
Once designated, Support Persons may attend meetings and be copied on case communications. They are not permitted to act or speak on behalf of the Respondent, or a Complainant or disrupt any meetings. The University may require a Support Person to leave a meeting, including the Administrative Conference, if the Support Person engages in unreasonable, disruptive, harassing, or retaliatory behavior.
Time Limit to File a Report
While there is no timeline to file a report, the University encourages Complainants and other persons with knowledge of possible Discriminatory Misconduct to submit Reports as soon as possible. A delay in reporting may impact the University’s ability to gather relevant and reliable information, or to assign an Action Plan to a Respondent found in violation of the Code.
Section III: Initiating Student Conduct Allegations
Review of the Initial Report
When a Report covered by these procedures is received, the Senior Director will consider whether:
- The Report contains information that, if proven by a Preponderance of the Evidence, would violate the Code;
- The University has jurisdiction over the underlying allegations; and
- The matter requires further response based on the totality of the information obtained.
Preliminary fact-finding may be necessary to facilitate these considerations. This may include interviews with the person who submitted the Report, Witnesses, including any Impacted Parties, and/or the Complainant.
When the Senior Director decides further response is necessary, they will assess whether an adaptable resolution, formal student conduct action, or other process is appropriate. When formal student conduct action will not proceed, the University may take other appropriate steps designed to eliminate the alleged conduct, prevent its recurrence, and address its impact on the Complainant and the University community. This may include a mandatory meeting with the Respondent and a designated University Official to clarify University expectations. Any resolution will be subject to applicable record retention requirements.
When a Report alleges Sexual Misconduct, Sexual Exploitation, and/or Sex and gender- based harassment, the Director of OSMPR has been designated to review the Report and make determinations regarding further response.
Request for No Action
Upon receiving a Report covered by these procedures, the University will promptly contact the Complainant to discuss confidential resources and supportive measures and explain to the their options regarding reporting and potential action. The University respects a Complainant’s desire for anonymity and decision to not pursue formal conduct action.
A Complainant may request that their personal identifying information not be shared, that the Respondent not be informed of the Report, and/or that the University not initiate a student conduct process. The University will seek to honor a Complainant’s request(s) to the extent possible while also meeting its obligation to protect the health and safety of the Complainant and the University community. If such a request is granted, the University may be limited in its ability to respond to the allegations. In general, the University will interpret no response to outreach to be a Request for No Action from the Complainant.
When the University is unable to honor a Complainant’s request, the Complainant will be notified that the University will be initiating student conduct action.
Notice of Allegations and Investigation
When the University initiates formal student conduct action, a written Notice of Allegations and Investigation will be simultaneously issued to both parties. Throughout the student conduct process, all e-mail communications from the University are considered received when sent. The Notice will include the following:
- A brief description of the alleged misconduct;
- The alleged violations of the Code;
- The name and contact information for the assigned Investigator;
- A direct link to the Student Code of Conduct and these procedures;
- Whether the Respondent may be subject to suspension or expulsion; and
- For the Respondent Only: The date, time, and location (or virtual access information) for the informational meeting; or
- For the Complainant Only: An opportunity to schedule an informational meeting.
The University may issue a revised Notice to both parties should new information support additional or different allegations, or impact whether the Respondent may be subject to suspension or expulsion. A revised Notice of Allegations does not restart the formal student conduct process. Parties will be provided with reasonable time to respond to any new allegations, including the opportunity to present relevant information to the Investigator.
At the sole discretion of the University, allegations may be dismissed, either in whole or in part, at any time before the Administrative Conference. Circumstances where dismissal may be appropriate include, but are not limited to, the following:
- The Complainant requests, in writing, that the University dismiss the allegations;
- The Respondent is no longer enrolled at the University;
- It is determined that there are not sufficient facts or information to support the alleged code violation(s);
- Specific circumstances prevent the University from gathering information sufficient to reach a determination (including where no Complainant is identified during the investigation, when allegations have been adjudicated previously, when the length of time between incident and complaint prevents collection of information, or when Complainant has stopped participating and the only information available is the Complainant’s statement); or
- There is substantial information demonstrating the allegation(s) was made in bad faith and/or with the sole intent to harass the other party.
The University will send a Notice of Dismissal to both Parties indicating which allegations are being dismissed and stating the reason(s) for the dismissal. This notice will also clarify whether any remaining allegations will continue in the formal student conduct process, or under another applicable University policy. A decision to dismiss some or all allegations may not be appealed. The University maintains discretion to reinitiate a dismissed allegations should new or additional information become available.
The Respondent will have an opportunity to attend an informational meeting with their assigned Investigator. The date, time, and location or virtual access information of the informational meeting will be included as part of the Notice of Allegations and Investigations. The Respondent may choose to, but does not need to, make statements in response to the allegations at this meeting.
During the informational meeting, the Respondent will be able to learn about the formal conduct process, options for identifying a Support Person, and possible options for resolving the complaint including adaptable resolution. The Investigator may also use this time to assist with supportive measures requests and to schedule future meetings, including an interview. The Respondent is encouraged to bring their Support Person to the informational meeting if they have already identified someone.
A Complainant may also request an informational meeting to better understand the process, adaptable resolution options, and how they are able to participate and to request supportive measures.
Adaptable Resolution Pathway
An adaptable resolution may be an option to resolve reported misconduct. Adaptable resolution processes include but are not limited to restorative practices, mediation, mutual agreement, and other informal resolutions. This option may be appropriate where the Senior Director determines that it is consistent with the University’s obligations – under the law, institutional policies, and institutional values – to end the misconduct, prevent the misconduct from happening again, and address or remedy its effects.
Either party may submit a request for Adaptable Resolution. If the Senior Director, and Director of OSMPR when appropriate, determines it is appropriate, and both Parties agree, voluntarily and in writing, to participate in an adaptable resolution process, the formal student conduct process will be placed on hold for a designated period of time. Either Party, or the Senior Director, may decide to resume the formal student conduct process at any time prior to an adaptable resolution agreement being finalized.
Any adaptable resolution agreement will be in writing and represent the final resolution of the case. Failure to adhere to the terms of the adaptable resolution agreement may constitute a separate violation of the Code and/or result in reopening of the existing student conduct matter.
Mutual Agreement: This adaptable resolution option allows the Complainant and Respondent to mutually agree to what violation(s) and Action Plan will be imposed outside of the formal investigation and adjudication process. As with all adaptable resolutions, the University must determine whether the outcome is appropriate, and both parties must voluntarily agree to the resolution in writing.
Section IV: Investigation
While the parties are encouraged to promptly provide all pertinent information and materials the burden of gathering evidence remains, at all times, on the University. The information may also include, in some cases, medical, psychological, or other treatment records, provided that the party provides the investigator with written consent to consider and include the treatment records in the investigation. If the party provides the investigator with written consent, the treatment documents will be included in the investigative report.
The University will take reasonable steps to gather initial facts and evidence by providing both parties with an opportunity to meet with the Investigator. An Investigator will gather relevant information or evidence, including documents, photographs, communications between the Parties, other electronic records as appropriate, as well as other evidence the Parties may provide. The Investigator may gather additional information from public records, documented observation, online sources, and Witness interviews. In some cases, the Investigator may consult with relevant experts when deemed appropriate and necessary by the University.
Parties should provide names, contact information, and a summary of expected information for any proposed Witnesses, and any relevant documents, as soon as possible. A delay in providing this information could impact the ability to gather information during the investigation. Parties should not delete, destroy, or otherwise alter any relevant information or material. Failure to comply with this expectation may result in a negative inference as to the information or material destroyed or altered.
At the conclusion of the initial investigation, the Investigator will create a draft report that includes all evidence gathered related to the allegations in the Notice of Allegations and Investigation that has been deemed relevant by the Investigator.
The Investigator will make the draft report, along with a file including any evidence deemed to be irrelevant, accessible to each Party, and their designated Support Person, in an electronic format other than email, such as secure file-sharing platform of the University’s choosing. The parties and their Support Persons will not be permitted to download, copy, photograph or take other measures designed to retain copies of the draft report. Failure to comply with this directive may result in student conduct action, up to and including suspension from the University.
Within 10 days of being granted access to the draft report, the Parties may submit a written response to the Investigator. This response may include messages, photos, other documents, new witnesses, and additional information. If a Party disagrees with any of the Investigator’s determinations about relevance, the Party can make that argument in this response. At the conclusion of the review period, the University will remove the parties’ electronic access to the draft report. The Investigator may conduct further fact-finding if deemed necessary after the Parties respond to the draft report. Parties should be aware that new or additional information provided in a draft report response may cause a delay in the resolution timeline.
After considering any timely responses from the Parties, and conducting any additional investigation, the Investigator will complete the final investigation report.
Prior to issuing the final investigative report to the Parties, the University will review the final report and make a threshold determination either to proceed to adjudication or dismiss the entirety or portions of the allegations, in accordance with the “Dismissals” section above. Generally, this determination will occur within five days following the completion of the final investigation report.
The final report, along with a file including any evidence deemed to be irrelevant, will be made accessible to the parties, and their Support Persons, using a secure file-sharing platform of the University's choice, at least ten days before the Administrative Conference. The same restrictions regarding copying, photographing, or otherwise making attempts to retain a copy of the draft report apply to the final report.
Section V: Adjudication
When a case proceeds to adjudication, the Respondent will receive an Adjudication Notice which includes a proposed Violation Agreement. The Respondent may elect one of the following options within five days of this Notice:
- Resolution by Violation Agreement: Agree to resolve the matter through a Violation Agreement, acknowledge that the violation(s) occurred, and accept the proposed Action Plan. Should the Respondent elect to accept the Violation Agreement, both parties preserve the option to appeal the Action Plan (in writing).
- Administrative Conference: Proceed to an Administrative Conference in accordance with these procedures.
Resolution by Violation Agreement
If the Respondent agrees to acknowledge the violation(s) occurred by choosing option 1, the University will send a Notice of Resolution by Violation Agreement, including the Action Plan, to both Parties. This Notice will also describe both Parties’ right to appeal the Action Plan.
Administrative Conference Overview
If the Respondent chooses option 2, or does not respond to the Adjudication Notice, then an Administrative Conference will proceed as outlined below.
The Administrative Conference is an administrative proceeding not comparable to a criminal or civil trial and is not subject to the rules of evidence, the rules of civil procedure, or other rules that apply to court and court-like proceedings. Any right to a live hearing, established by law or policy, is satisfied by the opportunity to appear at the Administrative Conference virtually.
Notice of the Administrative Conference: At least five days before the Administrative Conference, the University will provide the Parties written Notice of the name of the Decision-maker and the date, time, and location or virtual access information for the Administrative Conference. The University may postpone the Administrative Conference for good cause and will notify the Parties of the new Conference date. The University may also determine that it is appropriate to hold portions of a Conference on different dates. This may be done, for example, when the University determines that it is appropriate to do so in order to accommodate reasonable scheduling issues with a Party, a Support Person, or a Witness.
Pre-conference Meeting: To promote a fair and expeditious Administrative Conference, the parties and their Support Persons will attend a pre-conference meeting. The pre-conference meeting assures that the parties and their Support Persons understand the Administrative Conference process and allows for significant issues to be addressed in advance of the Conference. Pre-conference meetings should occur no less than five days prior to the date of the Conference.
Witness Participation: Witnesses will be considered the University’s Witnesses. Names of Witnesses may be provided by either party or others who may have been involved with the case. Any Witness who has not met with an Investigator will be required to provide a brief written statement outlining the relevant information they will share, no later than the scheduled time of the Pre-conference meeting. The University will determine whether it is appropriate to have a proposed Witness, including those who were previously interviewed by the Investigator, participate in the Administrative Conference.
Digital Recording: The Administrative Conference will be audio and/or video recorded and may be transcribed at the University’s discretion. This recording is the sole property of the Pennsylvania State University. No other person (including Parties, Support Persons, and Witnesses) is permitted to audio or video record any part of the Conference. Failure by the University to record all or part of an Administrative Conference shall not be grounds for invalidating the Administrative Conference, does not constitute a procedural irregularity, and is not a basis for appeal.
Administrative Conference Procedures
Participants: The Administrative Conference is a closed proceeding and is not open to the public. The individuals who may be present during the Administrative Conference are the Decision-maker, Complainant, Respondent, Support Persons to the Complainant and Respondent, Witnesses, and other individuals the Decision-maker may deem necessary or appropriate.
Non-Attendance by Either Party: Neither party is required to attend the Administrative Conference. If, despite being notified of the date, time and location of the Administrative Conference, one or both Parties are not in attendance, the Conference may proceed and if applicable, an Action Plan may be imposed.
Questioning Parties and Witnesses: The Decision-maker may ask relevant questions of each Party and Witness. Parties are permitted to submit questions for the other party to be asked by the Decision-maker. Only questions which are deemed relevant by the Decision-maker will be asked of the party. Parties may ask questions of each Witness directly. The Decision-maker must determine whether each question is relevant prior to the Witness’ response.
Evidence: Evidence permitted at the Administrative Conference is limited to only that which is relevant to the alleged misconduct. Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action. Evidence which was not included in the final report may be accepted for consideration at the discretion of the Decision-maker.
If the Decision-maker determines that unresolved issues exist that would be clarified by the presentation of additional information, the Decision-maker may suspend the Administrative Conference in order to obtain such information before resuming the Conference in a timely manner. The Administrative Conference will not be suspended due to the failure of a Witness to appear without good cause or due to the proposed introduction of information that could have been provided during the investigation.
Structure, Logistics and Rules of Decorum: The Administrative Conference will proceed according to the structure and rules outlined in Appendix C (Administrative Conference Structure and Logistics) and Appendix D (Rules of Decorum for Administrative Conferences). The Parties and their Support Persons will be provided with these documents, including any anticipated modifications, at the time the Administrative Conference is scheduled. In addition to any rules that specifically apply during the Administrative Conference, Parties and their Support Persons will be expected to continue to adhere to all expectations which are outlined in these procedures.
Decision and Action Plan
It is the responsibility of the Decision-maker to objectively evaluate all relevant evidence prior to making a decision as to whether it is more likely than not (Preponderance of the Evidence) that the violation(s) occurred.
Consideration Statements: Within five days of the conclusion of the Administrative Conference, the parties may submit a Consideration Statement to the Senior Director. The Consideration Statement will only be provided to the Decision-maker for consideration if the Decision-maker determines that the Respondent violated University policy.
Action Plan: When the Decision-maker intends to find the Respondent in violation, the Decision-maker must consult with the Senior Director regarding the determination of an appropriate Action Plan prior to issuing the Notice of Findings. The Student Code of Conduct includes a list of sanctions and outcomes that may be imposed individually or in various combinations of an Action Plan. A list of factors and guidelines generally considered in creating the Action Plan can be found in Appendix B.
Notice of Finding: Within ten days of the conclusion of the Administrative Conference, the Decision-maker will issue a written notice of the decision and Action Plan, if applicable, to the Parties. The Notice of Finding will include:
- A general description of the information considered when reaching a decision;
- A statement of, and rationale for, the result as to each allegation, including a decision regarding whether the Respondent is in violation;
- The Action Plan as determined by the Decision-maker, if applicable;
- The University’s procedures and bases for Parties to appeal.
Parent and/or Guardian Notification: Under the Family Educational Rights and Privacy Act (FERPA), colleges and universities are afforded certain liberties relative to notifying parents or guardians of information concerning their student. In order to involve families in the total educational experience of the student, and to facilitate communication between students and their parents/legal guardians, the Office of Student Accountability and Conflict Response has established a consistent policy regarding parent/guardian notification and disclosure. That policy is available on the Office of Student Accountability and Conflict Response website.
Section VI: Appealing a Final Decision
Either party may appeal a final decision, in writing, within five days of the final decision, as follows:
- If the case is resolved by Violation Agreement, the final decision is the Notice of Resolution by Violation Agreement, and the five-day timeline starts to run on the date that Notice is issued. A Party may only appeal the Action Plan (Basis #2, below) when the case is resolved by Violation Agreement.
- If a determination is made by the Decision-maker following an Administrative Conference, the final decision is the Notice of Findings, and the five-day timeline will start to run on the date that Notice is issued.
Information regarding where and how to submit the appeal is specified in the Notice of Findings.
Bases for Appeal
Pursuant to Section V of the Code, Parties may only appeal a final decision on at least one of the following bases:
- To determine whether there was any procedural irregularity, including bias, that significantly affected the outcome of the matter;
- To determine whether the Action Plan imposed was appropriate for the violation(s); and/or
- To consider new information that could alter a decision, only if such information could not have been known to the appealing party at the time of the Administrative Conference.
Notice of Appeal
Upon receipt of the appeal, both parties will be provided written Notice of the appeal, including the name of the designated Appeals Administrator. The non-appealing party has the opportunity to submit a written response to the appeal which solely addresses the identified bases for appeal within five days of that Notice. The appeal and the non-appealing party’s response, if any, will be provided to the Appeals Administrator. The Appeals Administrator may not have served as the Investigator or the Decision-maker in the underlying matter.
Scope of the Appeal
An appeal is limited to the review of any recording of the Administrative Conference and the written case file, which consists of the final investigative report, Notice of Outcome, written appeal, and written appeal response, if any. As such, neither party has the opportunity to meet with the Appeal Administrator.
After reviewing the information submitted by the parties, the Appeal Administrator may request additional information to explain the basis of new information. If information is provided in response to this request, the other party will have an opportunity to review and respond to that information. The Appeal Administrator is permitted to set reasonable timelines regarding responses from both parties.
The Appeal Administrator will consider each basis of appeal and make a decision to grant or deny the appeal within ten business days of the Notice of Appeal. The Appeal Administrator may consult the Senior Director and/or the Director of OSMPR, as appropriate, regarding matters of procedures.
When an appeal is granted, the Appeal Administrator will decide to modify the action plan or send the matter back to the Senior Director with a recommendation for additional fact finding, other resolution, or dismissal of the case. If the appeal was granted based on “new information,” the only action that may be taken is to send the case back to the Director with a recommendation for additional fact finding, other resolution, or dismissal of the case.
Appeal Decision Letter
Within five business days of receipt of the Appeal Administrator’s review decision, the Senior Director will send an Appeal Decision Letter which outlines the decision and any next steps. The letter will be delivered to both parties.
If the appeal is granted, the decision letter will indicate that:
- The violation decision has been upheld but the Appeal Administrator has modified the Action Plan;
- The Senior Director has decided to dismiss the case;
- The Senior Director has decided to offer an informal or adaptable resolution; or
- The Senior Director has assigned the case to a new Decision-maker to be redecided.
Requesting a Stay Pending Appeal
The Action Plan imposed by the University will remain in effect through the University's appeal process. Exceptions to this rule may be granted if a Party demonstrates irreparable harm if the Action Plan is not stayed pending an appeal.
Parties may request a stay pending appeal by submitting (i) an appeal as described in these procedures and (ii) a petition to stay the Action Plan to the University within ten days of the date the appeal is submitted. The other Party will be notified of the petition to stay the sanction(s) and provided an opportunity to submit a response prior to the University issuing a decision.
The University will decide whether to issue the stay pending appeal taking into account the harm to the moving Party and the impact on the non-moving Party and larger University community. After the University’s appeals process has concluded, any Action Plan imposed will take effect. This means the Action Plan imposed by the University will remain in effect through any external appeals process, unless the reviewing body issues a stay of the Action Plan.
Section VII: Exceptions to Procedures
Petitions by Complainant or Respondent
Either Party may request exceptions to these procedures, including requests to extend or shorten timeframes, by submitting a petition for good cause.
In order to be considered, petitions must:
- Provide a brief statement regarding the reason for the exception; and
- Be made by the date specified in these procedures and where not specified no later than a date that gives the University a reasonable amount of time to consider the request.
The University has the discretion to grant or deny petitions. Where the outcome of a petition has the potential to impact both Parties, the University may choose to provide the other Party with an opportunity to respond to the petition.
Exceptions by the University
For good cause, the University may also make an exception to these procedures. If an exception is made by the University which significantly impacts timelines or other aspects of the process, the University will send out Notice of the exception within a reasonable time.
Petition for Bias or Conflict of Interest
If a Party believes that an Investigator, Decision-maker, Appeal Administrator, or other individual who makes decisions as part of the process is biased or has a conflict of interest, that Party may make a request for a new individual to be assigned or designated to make the decision in question. Petitions must be submitted to the University as soon as the Party has reason to believe the designated individual is biased, and no later than twenty-four (24) hours prior to the next relevant meeting with the allegedly biased individual.
The following will not, on their own, be considered sufficient to establish bias:
- The fact that the Investigator has previously or is currently investigating other cases involving the same Party;
- The fact that a Decision-maker has previously decided a case involving the same Party; or
- Previous roles or positions held by the Investigator, Decision-maker, Appeal Administrator, or other University Decision-maker.
A finding of bias will require specific allegations about why the individual cannot be fair or impartial under the circumstances of a particular case. Upon a finding of bias or conflict of interest, the University will assign a new individual to serve in that role or delegate a new person to make the decision.
Appendix A: Glossary of Important Terms
In addition to the terms below, these procedures incorporate by reference the definitions of the Student Code of Conduct and other University policy.
Action Plan – A combination of administrative sanction(s) and educational, reflective, and/or restorative outcomes assigned when there is a violation of the Code, giving consideration to whether the Action Plan will (a) bring an end to the violation in question, (b) reasonably prevent a recurrence of a similar violation, and (c) remedy the effects of the violation. An “Action Plan” is intended to promote reflection and growth, repair any harm caused, and help the Respondent recommit to institutional values.
Appeal Administrator – A trained and impartial person designated to review appeals of dismissals and/or final decisions subject to these procedures. An Appeals Administrator may not otherwise be involved in the underlying conduct matter.
Complainant – A person who is listed in the Formal Complaint as having been subjected to Respondent’s alleged misconduct.
Consideration Statement - A written statement submitted by the Respondent and/or Complainant describing any aggravating or mitigating factors which should be considered during the creation of an Action Plan.
Day – Unless otherwise specified, the word “day” means “business day” excluding weekends and those days which are designated as holidays by the official University calendar or by action of the University President or Provost.
Decision-maker – The trained and impartial person designated by the University to conduct the Administrative Conference, make a decision regarding the alleged violations based upon a Preponderance of the Evidence and impose an Action Plan, if applicable. When the Respondent may be subject to suspension or expulsion, the Decision-maker may not be the same person as the Case Manager.
Discriminatory Misconduct – As defined by the Student Code of Conduct.
Impacted Party – Defined in these procedures as someone who has been adversely impacted by the alleged misconduct but does not meet the definition of a Complainant.
Investigator - The trained and impartial person designated by the University to meet with the Respondent to discuss the allegations and the conduct process, and to investigate allegations of Discriminatory Misconduct. The Investigator is the “Case Manager” for purposes of the Code.
Notice – An official correspondence between the University and the Parties, for example the Notice of Allegations and Investigation, Notice of Dismissal, Notice of Findings, and Notice of Appeal. Unless otherwise noted in these procedures, the official method of communication with all Participants is by Penn State email. All Students and employees of the University are responsible for understanding the content of those emails. Once a communication has been sent to a Student’s or employee’s university email, then the University considers that person to have received Notice of the communication.
**If a Participant does not have a university email, then the individual will receive Notice through an identified preferred method, such as personal email. If there is no identified preferred method, Notice may be sent via first-class mail and will be considered received three (3) days after it was sent.
Participant – Any Party or Witness or other Participant in the student conduct process, including any Support Person.
Preponderance of the Evidence – The standard of proof that applies to student conduct violation decisions. It means that the evidence supports a conclusion that it is more likely than not that the violation occurred.
Report – Information received officially by the University from a Mandatory Reporter, or from the Complainant directly, or from any other source that gives the University actual knowledge that Discriminatory Misconduct or related violation(s) may have occurred.
Respondent – The person alleged to have violated the Student Code of Conduct.
Senior Director – The Senior Director of Student Conduct or the person serving as their designee.
Support Person – A person of the Party’s choosing, who may but is not required to be an attorney, designated to provide support, advice, or guidance throughout the process. Unless specifically stated otherwise, a person designated as a Party’s Support Person is also that Party’s Support Person for purposes of the Code.
Student – Any person with Student status as defined by the Student Code of Contact.
Witness - An individual who may have information relevant to the incident, including individuals who may have observed the alleged behavior, may be able to provide contextual information, or may have other information related to the incident. The University may identify Witnesses independent of the proposal of Witnesses by the Respondent or any Complainant.
Appendix B: Action Plan Guidance
The Decision-maker will create an Action Plan utilizing the guidelines and criteria outlined below. The Action Plan will consist of administrative sanction(s) and educational, reflective, and/or restorative outcomes, the Code. The Decision-maker may consult with the Senior Director and/or other University Officials, as appropriate, while creating the action plan.
Each Action Plan will be individualized to the circumstances of the violation and the development needs of the Respondent, giving consideration to whether the Action Plan will (a) bring an end to the violation in question, (b) reasonably prevent a recurrence of a similar violation, and (c) remedy the effects of the violation.
Criteria for Determining Administrative Sanctions
Administrative sanctions may include, without limitation, conduct warning, conduct probation, suspension, expulsion, housing contract termination, or any other administrative sanction deemed to be appropriate. To determine what administrative sanction(s) should be applied, the University will consider the following factors:
- The violation specific guidance outlined in this document;
- The nature of the misconduct, including the severity, persistency, and/or pervasiveness of the behavior;
- The level of risk and/or harm of the respondent to self, others, and/or property;
- Whether the respondent has previously been found in violation of the Code;
- The developmental needs of the respondent;
- Whether a particular sanction is necessary in order to eliminate the misconduct, prevent its recurrence, and remedy its effects on others; and/or
- Any other mitigating, aggravating, or compelling circumstances which should be considered to reach a proportional and appropriate resolution in each case.
Aggravating and mitigating circumstances are compelling facts that may enhance or reduce the Action Plan. Examples include:
- Committing a violation of the Code while voluntarily under the influence of alcohol and/or other drugs is not considered a mitigating factor but may be considered an aggravating factor, when appropriate.
- An Act of Bias, as defined by the Code, is especially intolerable in view of the University’s commitment to creating an educational environment which is respectful and welcoming for all members of the community and should be considered as a significant aggravating factor.
- The decision-maker may consider level of intent, demonstrated remorse, and the respondent’s understanding of their impact on others as either a mitigating or aggravating factor. In some cases, a respondent’s level cooperation during the incident may be considered a mitigating factor.
Educational, Reflective, and/or Restorative Outcomes
As appropriate, the Decision-maker may apply educational, reflective, and restorative outcomes based on the specific needs of each case. Outcomes are designed to promote personal reflection and growth, prevent further misconduct, repair any harm caused, and help the Respondent realign with institutional values. For more information, please see the Student Code of Conduct.
Appendix C: Administrative Conference Structure and Logistics
Structure of the Administrative Conference
The basic structure of the Administrative Conference follows the format below. The Decision-maker may adjust the sequence as necessary to ensure fairness. The Parties and their Support Persons will be provided with this document, including any adjustments, at the time the Administrative Conference is scheduled.
- The Parties, and any other attendees, are asked by the Decision-maker to introduce themselves.
- The Decision-maker will address the Parties and provide information about procedures and expectations during the Administrative Conference, as well as announce the Witnesses who will be participating in the Conference.
- The Complainant is permitted to present a brief opening statement, describing the incident(s), of 10 minutes or less. The statement must be limited to the specific reported incident(s) as stated in the Notice of Allegations and Investigation.
- The Decision-maker may ask relevant questions of the Complainant.
- The Respondent may pose questions to be asked of the Complainant. Questions deemed relevant by the Decision-maker will be asked of the Complaint by the Decision-maker.
- The Respondent is permitted to present a brief opening statement, describing the incident(s), of 10 minutes or less. The statement must be limited to the specific reported incident(s) as stated in the Formal Complaint.
- The Decision-maker may ask relevant questions of the Respondent.
- The Complainant may pose questions to be asked of the Respondent. Questions deemed relevant by the Decision-maker will be asked of the Respondent by the Decision-maker.
- One at a time, the Investigator, and then each Witness, may be questioned by the Decision-maker, then by the Complainant, and finally the Respondent. Once a Witness has been dismissed, they may not be recalled for additional questions absent a showing of good cause.
- The Decision-maker may ask additional relevant questions of the Parties.
- The Complainant is permitted to present a closing statement of 5 minutes or less. This statement may include a response to any information presented during the hearing that the Complainant did not have the opportunity to address previously.
- The Respondent is permitted to present a closing statement of 5 minutes or less. This statement may include a response to any information presented during the hearing that the Respondent did not have the opportunity to address previously.
- The Decision-maker thanks the Participants and ends the Administrative Conference.
Administrative Conference Logistics
Unless otherwise specified, the Administrative Conference will be held using the Zoom video conferencing platform. It is important to carefully review the Zoom logistics below and to ask any questions about Zoom logistics in advance.
Participants will receive a link to be used for logging onto the Zoom session. At the date and time specified, the parties should join the Administrative Conference using the Zoom link. It is helpful to check well in advance of the conference to ensure that you are using the most up-to-date version of Zoom. Instructions for checking and updating your version of Zoom can be found on the Zoom support website.
In order to provide an opportunity to work out any technical issues, we ask that Complainant and Complainant’s Support Person join the Zoom session approximately 20 minutes before the scheduled start time of the conference and ask that Respondent and Respondent’s Support Person join the Zoom session approximately ten minutes before the scheduled start time of the conference. The staggered start times will provide time for each Party to ensure that Zoom is working correctly before the conference begins.
After logging into Zoom, a notification will appear indicating that you are waiting for the host to admit you into the conference. Please continue waiting until you are admitted into the conference.
While the conference is in session, we will be recording using the Zoom software. The recording shall be the sole property of The Pennsylvania State University. No other person (including the Respondent, a Complainant, a Witness, and/or an Advisor) is permitted to record any part of the Conference. Failure by the University to record all or part of an Administrative Conference shall not be grounds for invalidating the Administrative Conference, does not constitute a procedural irregularity, and is not a basis for appeal.
All Participants will be on mute when first entering the conference and we request that the parties and their Support Persons keep their outgoing audio turned off during the conference except at times when called upon to speak. Zoom will initially be set to allow conference Participants to mute and unmute themselves, but that setting can be changed if it is abused.
The Decision-maker and Parties must be able to see and hear a Participant when that Participant is speaking.
The conference facilitator will set up break-out rooms in Zoom for each party and their Support Person to use to privately confer. While the conference is in session, we will be recording using the Zoom software, but the break-out rooms are not recorded. A notification on the Zoom screen shows when Zoom is and is not recording.
Zoom contains a chat feature. We ask that Participants refrain from using the chat feature during the conference unless responding to a communication from the Decision-maker.
Appendix D: Rules of Decorum for Administrative Conferences
The purpose of the Rules of Decorum is to provide clear expectations for the behavior of all Participants and to provide clear notice of the consequences for failure to adhere to these expectations.
Rules for Participation
- All Participants are expected to treat each other and the Decision-maker with respect.
- It is expected that all Participants will be honest and forthright throughout the Administrative Conference.
- Abusive behavior will not be tolerated.
- Actions reasonably intended to intimidate another Participant or cause them to cease or alter their participation may constitute retaliation.
- Party statements should be directed to the Decision-maker, not the other Party. Answers to questions should be directed to whomever asked the question. Support Persons may not speak to the other Party or any Witness during the Administrative Conference.
- Participants will not yell, use profanity, or aggressive/bullying language unless such language is part of the information they are providing in response to a question.
- During the Administrative conference, Participants will not communicate with anyone outside the Administrative Conference regarding anything related to the Administrative Conference; this includes text messages, social media messaging or posting; etc.
- Parties or their Support Persons may request reasonable breaks. The Decision-maker may set limits on the number, timing, and duration of breaks.
- When the Administrative Conference occurs virtually, it is expected that:
- Participants will not share the provided virtual access information with anyone. Each Party, Support Person, and Witness will receive a separate invitation to join.
- Only the Party will be in the physical room from which they are joining virtually (unless with their Support Person).
- Only the Support Person will be in the physical room from which they are joining virtually (unless with the Party).
- Only the Witness will be in the physical room from which the Witness joins virtually.
Rules for Questioning
- Questions must be neutral in tone.
- Questions should be designed to obtain direct observations or facts, not personal opinions.
- Questions may not include accusations within the text of a question.
- Witnesses must wait to answer any question from a Party until the Decision-maker has determined whether the question is relevant.
- Questions may not be repetitive. When the Decision-maker determines a question has been “asked and answered” or is otherwise not relevant, the Party must move on. The Decision-maker has the sole authority to determine the relevancy of questions.
- Generally, questions about the Complainant’s past sexual history or questions about privileged information will be deemed irrelevant, unless a specific exception exists.
- A Party may not yell at, scream at, or badger a Witness.
Consequences for Non-compliance
If the Decision-maker determines that a Participant has violated these Rules of Decorum, the Decision-maker will provide the Participant with one opportunity to correct their behavior. If the Decision-maker determines that the Participant continues to violate these Rules, the Decision-maker may either limit that individual’s participation moving forward or remove the individual from the Administrative Conference. For repeated violations and/or egregious behavior, a Support Person may be prohibited from serving as a Support Person in University processes.
If a Support Person is removed from the Administrative Conference, that Party may either select a new Support Person or continue the Administrative Conference without a support person. If the Party would like to select a new support person, the Administrative Conference, or the rest of the Administrative Conference may be postponed if necessary. Any actions taken by the Decision-maker regarding violation of these Rules or removal of Participants will be documented.