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AN ACT relating to student discipline at public postsecondary education 1
institutions. 2
Be it enacted by the General Assembly of the Commonwealth of Kentucky: 3
Section 1. KRS 164.370 is amended to read as follows: 4
(1) For the purposes of this section: 5
(a) "Complainant" means a student who has formally filed a complaint 6
alleging that the student is the victim of a violation of the code of student 7
conduct promulgated by the governing body of an institution; 8
(b) "Institution" means the following public postsecondary education 9
institutions: University of Kentucky, University of Louisville, Eastern 10
Kentucky University, Kentucky State University, Morehead State University, 11
Murray State University, Northern Kentucky University, and Western 12
Kentucky University; 13
(c) "Governing board" means the boards of trustees or boards of regents of an 14
institution; 15
(d) "Participant" means a respondent or a complainant; 16
(e) "Respondent" means a student who has been formally accused of a 17
violation of the code of student conduct promulgated by the governing 18
board of an institution; 19
(f) "Student" has the same meaning as in KRS 164.348; and 20
(g) "Title IX" means Title IX of the Education Amendments of 1972, 20 U.S.C. 21
sec. 1681 et seq., applicable federal regulations, and binding federal judicial 22
precedent. 23
(2) Each governing board shall adopt a code of student conduct that clearly sets forth 24
the rules for nonacademic student conduct and establishes disciplinary 25
procedures to enforce those rules. The disciplinary procedures shall set forth 26
rules for establishing the admissibility of evidence that are consistent with KRS 27 UNOFFICIAL COPY 22 RS BR 1717
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13B.090, KRE 412, and Title IX. 1
(3) At a minimum, when a violation is punishable by a suspension or expulsion from 2
the institution or termination of a respondent's residence in campus housing, the 3
disciplinary procedures contained in the code of student conduct shall: 4
(a) 1. Afford a respondent the presumption that the respondent is innocent 5
and has not committed a violation of the code of student conduct until 6
the institution has established every element of the alleged violation; 7
and 8
2. Clearly state that the presumption afforded by subparagraph 1. of this 9
paragraph shall not be construed to mean that the complainant or any 10
witness has presented false testimony or evidence; 11
(b) Provide a participant written notice of: 12
1. A formal charge of an alleged violation and the specific details of the 13
facts upon which the alleged violation is based; 14
2. The rights of the participant as set forth in this section, the code of 15
student conduct, and any other applicable law; and 16
3. The date, time, and location of each phase of the disciplinary process 17
at least: 18
a. Three (3) business days prior to any scheduled event at which the 19
participant is expected to appear, including any meeting or 20
interview that serves an investigative purpose; and 21
b. Ten (10) business days prior to any disciplinary hearing; 22
(c) 1. Require the institution to maintain an administrative file of the 23
disciplinary proceedings. The file shall include all documents and 24
evidence in the institution's possession or control relevant to the 25
alleged violation and the institution's investigation thereof, including 26
but not limited to exculpatory evidence, documents submitted by any 27 UNOFFICIAL COPY 22 RS BR 1717
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participant, and the institution's choice of a video recording, an audio 1
recording, or a transcript of any disciplinary hearing ultimately held 2
in the matter. The file shall not include privileged documents or 3
internal memorandums that the institution does not intend to 4
introduce as evidence at any hearing on the matter; 5
2. Provide a participant reasonable continuing access to the 6
administrative file and the ability to make copies of all evidence or 7
documents contained therein beginning at least seven (7) business 8
days prior to any disciplinary hearing, except that individual portions 9
of the administrative file may be redacted if disclosure of the evidence 10
is otherwise prohibited by law; 11
3. Require that all documentary or tangible evidence that the institution 12
or a participant intends to introduce at a disciplinary hearing be 13
submitted to the administrative file at least three (3) business days 14
prior to the disciplinary hearing. Any documentary or tangible 15
evidence that is submitted less than three (3) days prior to the 16
disciplinary hearing shall only be admissible upon the discretion of 17
the hearing officer. An institution shall immediately notify a 18
participant when documents and evidence are added to the 19
administrative file within three (3) business days of a disciplinary 20
hearing; 21
4. Require that the institution and participants submit a list of all 22
witnesses the institution or participant expects to call at the 23
disciplinary hearing to the administrative file at least three (3) 24
business days prior to the hearing. Additional witnesses submitted less 25
than three (3) business days prior to the disciplinary hearing shall 26
only be permitted upon the discretion of the hearing officer. An 27 UNOFFICIAL COPY 22 RS BR 1717
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institution shall immediately notify a participant when a witness is 1
added to list of institutional witnesses within three (3) business days of 2
a disciplinary hearing; 3
5. Require that only evidence contained in the administrative file that is 4
determined by the hearing officer to be relevant and admissible may be 5
considered in the determination of whether a violation occurred, 6
including but not limited to the audio recording, video recording, or 7
transcript of any disciplinary hearing ultimately held in the matter; 8
and 9
6. Require that the institution maintain the administrative file: 10
a. Permanently if a violation results in the expulsion of a student; 11
and 12
b. In all other matters, the later of either: 13
i. Three (3) years after the respondent's graduation or last 14
date of attendance; or 15
ii. Three (3) years after all sanctions have been met; 16
(d) Provide a participant the right to: 17
1. Be present and participate meaningfully at any disciplinary hearing, 18
interim measure hearing, or other scheduled event where the rights of 19
the respondent are to be determined, except as restricted by Title IX; 20
2. Fair and impartial treatment at each phase of the disciplinary process, 21
which shall exclude any individual that conducts an investigation or 22
presides over an alternative dispute resolution process related to the 23
matter from participating as a hearing adjudicator or on a hearing 24
tribunal; and 25
3. Provide a limited waiver of the confidentiality of any phase of the 26
disciplinary process to permit the attendance of any support person so 27 UNOFFICIAL COPY 22 RS BR 1717
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long as that person would not violate the privacy rights of another 1
student or substantially delay the disciplinary process. A support 2
person shall have no right to participate unless the support person is 3
attending as an advisor to the participant in accordance with Title IX; 4
and 5
(e) In addition to the rights set forth in paragraphs (a) to (d) of this subsection, 6
if an alleged violation is punishable by a final order of suspension of three 7
(3) or more days, expulsion from the institution, or termination of a 8
respondent's residence in campus housing, provide a participant: 9
1. At the participant's own expense, the right to be represented by 10
counsel or, if required by Title IX, an adviser, at each material phase 11
of the disciplinary process, including but not limited to any alternative 12
dispute resolution phase, meeting, hearing, or appeal of the matter. 13
Upon written notification of representation, this right shall require an 14
institution to direct all correspondence related to the disciplinary 15
proceeding to both the participant's counsel or advisor and to the 16
participant; and 17
2. At any hearing, the right to: 18
a. Make opening and closing statements; 19
b. Present relevant evidence; and 20
c. Cross-examine any testimony personally or through counsel. 21
Cross-examination of a student who is a victim or the 22
complainant that is personally conducted by a respondent shall 23
require: 24
i. The participant to submit the questions to a neutral 25
hearing officer. The neutral hearing officer shall ask all 26
relevant questions to the student witness during the live 27 UNOFFICIAL COPY 22 RS BR 1717
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hearing, state the specific rationale for excluding any 1
question, and grant a participant the right to amend a 2
question that has been excluded in order to cure any 3
objection thereto sustained by the hearing officer, and to 4
submit follow-up questions to the student witness; and 5
ii. Cross-examination be restricted as required by Title IX or 6
other applicable federal law. 7
(4) (a) Subject to subsection (3) of this section, a governing board[Each board of 8
regents] may invest the faculty, administration, or a representative committee 9
of designated faculty, staff, and students with the power to suspend or expel 10
any student from the institution, or otherwise discipline a student, for a 11
violation of[ disobedience to] its code of student conduct[its rules, or for any 12
other contumacy, insubordination or immoral conduct]. [In every case of 13
suspension or expulsion of a student] 14
(b) If, after a hearing on the matter, a violation results in a final order of 15
suspension of a respondent for three (3) or more days, expulsion of a 16
respondent from the institution, or termination of a respondent's residence 17
in campus housing, the disciplinary procedures shall grant the respondent 18
the right to[the person suspended or expelled may] appeal to the governing 19
board or its designee[ of regents]. The disciplinary procedures[board of 20
regents] shall prescribe the manner and the mode of procedure on appeal. The 21
decision of the governing board or its designee[ of regents] shall be a final 22
order. 23
(c) If, after a hearing on the matter, an allegation of conduct that constitutes 24
sexual discrimination as defined by Title IX does not result in a finding of a 25
violation, the disciplinary procedures shall grant the complainant the right 26
to appeal to the governing board or its designee in the same manner as 27 UNOFFICIAL COPY 22 RS BR 1717
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prescribed to the respondent pursuant to paragraph (b) of this subsection. 1
(d) Notwithstanding KRS 13B.020(2)(i), a respondent, or a complainant as 2
required by Title IX, shall have the right to appeal a final order of the 3
governing board or its designee in accordance with KRS 13B.140, except 4
that a participant who has the final order overturned for a violation of this 5
section shall be entitled to actual damages from the institution, including 6
reasonable attorney's fees and court costs. 7
(5) Nothing in this section shall be interpreted to: 8
(a) Impede or delay law enforcement officials in investigating an alleged 9
violation of local, state, or federal law; 10
(b) Impair an institution's ability to take reasonable interim measures 11
necessary to ensure the physical safety of members of the campus 12
community during a timely investigation and adjudication of a student 13
disciplinary issue, including but not limited to the ability to make 14
adjustments in student housing arrangements, impose conditions of no 15
contact between the respondent and complainant, temporarily suspend a 16
student, or ban a student from campus. Such reasonable interim measures 17
shall require: 18
1. Within twenty-four (24) hours, written notice of the interim measures 19
that explains the institution's reasons for enacting the interim 20
measures; and 21
2. Within three (3) business days of the written notice, unless otherwise 22
waived by the respondent, an interim measure hearing to determine 23
whether there is substantial evidence that the respondent poses a risk 24
to the physical safety of a member of the campus community and that 25
the interim measure is appropriate to mitigate that risk. At the interim 26
measure hearing, a respondent shall have the right to be represented 27 UNOFFICIAL COPY 22 RS BR 1717
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as set forth in subsection (3)(e)1. of this section. A respondent's waiver 1
of the right to an interim measure hearing shall not constitute an 2
admission of guilt or a waiver of any additional rights afforded under 3
Sections 1 and 2 of this Act; 4
(c) Impair an institution's duty or ability to implement any measure necessary 5
to effectuate a valid judicial order, including but not limited to termination 6
of a respondent's residence in campus housing. Notwithstanding paragraph 7
(b) of this subsection, measures necessary to effectuate a judicial order shall 8
not be subject to an interim measure hearing; 9
(d) Impair an institution's ability to terminate a student's residence in campus 10
housing for any reason other than a violation of the code of student 11
conduct, including but not limited to a breach of any housing contract 12
between the student and campus housing; 13
(e) Impair an institution's ability to require one (1) or more complainants to 14
serve as a representative of a class of student victims if: 15
1. The class is so numerous that joinder of all members is impracticable; 16
2. There are questions of law or fact common to the class; 17
3. The claims or defenses of the representatives are typical of the claims 18
or defenses of the class; and 19
4. The representative parties will fairly and adequately protect the 20
interests of the class; or 21
(f) Limit any additional rights afforded to a student under federal law, 22
including Title IX or the Jeanne Clery Disclosure of Campus Security 23
Policy and Campus Crime Statistics Act of 1990, 20 U.S.C. sec. 1092(f). 24
SECTION 2. A NEW SECTION OF KRS CHAPTER 164 IS CREATED TO 25
READ AS FOLLOWS: 26
(1) By July 1, 2023, and by July 1 every three (3) years thereafter, each institution, as 27 UNOFFICIAL COPY 22 RS BR 1717
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defined in Section 1 of this Act, shall electronically publish a report on student 1
discipline to a prominent location on the institution's Web site. The first report 2
shall have a one (1) year reporting period, and each report thereafter shall have a 3
three (3) year reporting period. Each report on student discipline shall be 4
submitted to the Interim Joint Committee on Education no later than September 5
1 of the year the report is due to be published. The report on student discipline 6
shall include but is not limited to: 7
(a) Without providing any personally identifiable information, the total number 8
of disciplinary proceedings, including formal investigations, initiated by the 9
institution for an alleged violation of the institution's code of student 10
conduct during the reporting period, and of those, the total number and 11
percentage of disciplinary proceedings that resulted in: 12
1. A dismissal of the complaint by the institution prior to a hearing on 13
the matter; 14
2. A negotiated resolution or agreement prior to a hearing on the matter; 15
3. A hearing on the matter; 16
4. A dismissal of the complaint by the institution after a hearing on the 17
matter; 18
5. Suspension of a student; 19
6. Expulsion of a student; 20
7. Termination of a student's residence in campus housing; 21
8. An appeal to the governing board or its designee of the institution in 22
accordance with subsection (4)(b) of Section 1 of this Act; and 23
9. An appeal from a final decision of the governing board or its designee 24
of the institution in accordance with subsection (4)(c) of Section 1 of 25
this Act; and 26
(b) Without providing any personally identifiable information, for each data 27 UNOFFICIAL COPY 22 RS BR 1717
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point required by paragraph (a) of this subsection: 1
1. A summary of the basic demographics of the students that were the 2
subject of the disciplinary proceedings included in that figure, 3
including but not limited to race, gender, whether the student resided 4
in campus housing at the time the violation allegedly occurred, and 5
the approximate number of credit hours earned; 6
2. The specific rule in the code of student conduct alleged to have been 7
violated; 8
3. The general source of the initial information underlying the alleged 9
violation, including but not limited to another student, faculty, staff, 10
community member, or law enforcement; and 11
4. The percentage of students that were the subject of the disciplinary 12
proceedings included in that figure that were represented by an 13
attorney licensed to practice law in Kentucky. 14
(2) (a) If a public postsecondary education institution believes, due to federal law, 15
that any specific data point required by paragraphs (a) and (b) of subsection 16
(1) of this section cannot be adequately deidentified for public reporting, the 17
institution shall submit a request for an exemption to the reporting 18
requirement established in subsection (1) of this section for each specific 19
data point to the Attorney General. The Attorney General shall review the 20
request for exemption to determine whether each data point submitted can 21
be adequately deidentified. 22
(b) A request for exemption shall be submitted no later than April 1 of the year 23
the report is due to be published. The Attorney General shall make all 24
reasonable efforts to grant or deny any request for exemption within sixty 25
(60) days of receipt. 26
(c) 1. If the request for an exemption is granted, the report on student 27 UNOFFICIAL COPY 22 RS BR 1717
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discipline published by the institution shall clearly identify each 1
specific data point excluded pursuant to the exemption. 2
2. If an institution fails to submit a timely request for exemption, the 3
Attorney General fails to grant or deny a timely filed request for 4
exemption in the sixty (60) day time frame, or the request for 5
exemption is denied and the institution continues to believe that a 6
specific data point cannot be adequately deidentified, the institution 7
shall: 8
a. In the report on student discipline published by the institution, 9
clearly identify each specific data point excluded pursuant to the 10
institution’s objection that is not substantiated pursuant to an 11
exemption from the Attorney General; and 12
b. Submit a confidential, supplemental report to the Interim Joint 13
Committee on Education by July 1 of each year in which the 14
report on student discipline is due. The supplemental report shall 15
identify each data point the institution believes cannot be 16
adequately deidentified and clearly set forth the reasoning for 17
the institution's position. The committee may consider each 18
supplemental report as it determines and in its discretion. Each 19
supplemental report, and the consideration thereof by the 20
committee, shall be exempt from the open records and open 21
meetings requirements contained in KRS Chapter 61. 22
Section 3. This Act may be cited as the Kentucky Campus Due Process 23
Protection Act. 24