Section 7: Formal Conduct Procedures
O. Failure to Complete Conduct Sanctions
All students, as members of the Marian community, are expected to comply with conduct sanctions within the timeframe specified by the Director of Student Safety, Rights & Responsibilities or Administrative Hearing Officer. Failure to follow through on conduct sanctions by the date specified, whether by refusal, neglect or any other reason, may result in additional sanctions and/or suspension from the University. In such situations, resident students will be required to vacate Marian housing within 24 hours of notification by the Dean of Students, though this deadline may be extended upon application to, and at the discretion of, the Director of Residence Life and/or the Dean of Students. A suspension will only be lifted when compliance with conduct sanctions is satisfactorily achieved. This determination will be made by the Dean of Students.
P. Appeal Review Procedures
Any party may request an appeal of the decision of the formal hearing process by filing a written request to the Dean of Students, subject to the procedures outlined below. All sanctions imposed by the original hearing body remain in effect, and all parties should be timely informed of the status of requests for appeal, the status of the appeal consideration, and the results of the appeal decision.
1. GROUNDS FOR APPEAL REQUESTS
Appeals requests are limited to the following grounds:
- A procedural error occurred that significantly impacted the outcome of the hearing (e.g. substantiated bias, material deviation from established procedures, etc.);
- To consider new evidence, unavailable during the original hearing or investigation, that could substantially impact the original finding or sanction. A summary of this new evidence and its potential impact must be included;
- The sanctions imposed are substantially outside the parameters or guidelines set by Marian University for this type of offense or the cumulative conduct record of the responding student.
Appeals must be filed in writing with the Dean of Students within three (3) business days of the notice of the outcome to the hearing, barring exigent circumstances. Any exceptions are made at the discretion of the Dean of Students and, when appropriate, the Title IX Coordinator.
The Dean of Students will share the appeal by one party with the other party (parties) when appropriate under procedure or law (e.g., if the responding student appeals, the appeal is shared with the reporting party, who may also wish to file a response, request an appeal on the same grounds or different grounds). The Dean of Students will conduct an initial review to determine if the appeal request meets the limited grounds and is timely. They may consult with the Title IX Coordinator on any procedural or substantive questions that arise, if pertinent.
If the appeal is not timely or substantively eligible, the original finding and sanction will stand and the decision is final. If the appeal has standing, the Dean of Students determines whether to refer the appeal to the Appeals Panel or to remand it to the original decision-maker, typically within 3-5 business days. Efforts should be made to use remand whenever possible, with clear instructions for reconsideration only in light of the granted appeal grounds. Where the original decision-maker may be unduly biased by a procedural or substantive error, a new hearing officer will be assigned to reconsider the matter, which can in turn be appealed, once. Full re-hearings by the Appeals Panel are not permitted. Where new evidence is presented or the sanction is challenged, the Dean of Students will determine if the matter should be returned to the original decision-maker for reconsideration or if it should be reviewed by the Appeals Panel with instruction on the parameters regarding institutional consistency and any applicable legal guidelines. In review, the original finding and sanction are presumed to have been decided reasonably and appropriately, thus the burden is on the appealing party(ies) to show clear error. The Appeals Panel must limit its review to the challenges presented.
On reconsideration, the Appeals Panel or original decision-maker may affirm or change the findings and/or sanctions of the original hearing body according to the permissible grounds. Procedural errors should be corrected, new evidence should be considered, and sanctions should be proportionate to the severity of the violation and the student's cumulative conduct record.
All decisions of the Appeals Panel are to be made within five (5) days of submission to the Panel and are final, as are any decisions made by the original hearing body, Dean of Students (or designee), or Title IX Coordinator as the result of reconsideration consistent with instructions from the Appeal Review Officer.
2. THE APPEALS PANEL
Three-member Appeals Panels are drawn from the hearing panel pool, with the following requirements to serve:
- they did not serve as a hearing officer in any manner for the initial hearing
- they were not involved in the investigation in any way
The Dean of Students will have final authority to approve all those serving on the panel. The parties may challenge a panelist(s) on the basis of potential bias, and any panelist who cannot render an impartial decision must recuse themselves. The Dean of Students will make the determination as to the validity of any challenge or need for recusal. In the event of a recusal from the panel, the Dean of Students will solicit a replacement from the pool of panelists.
The Director of Student Community Standards and/or the Dean of Students or designee serves as the non-voting advisor to the panel, with responsibility for training the panel, conducting preliminary investigations, and ensuring a fair process for the complainant and responding student.
The presumptive stance of Marian is that all decisions made and sanctions imposed by the original decision-maker are to be implemented during the appellate process. At the discretion of the Dean of Students, and in consultation with the Title IX Coordinator when necessary, implementation of sanctions may be stayed pending review only in extremely exigent circumstances. This does not include proximity to graduation, end of term, or exams. Instead, it refers to an overwhelming likelihood, as determined by the Dean of Students and/or the Title IX Coordinator, in consultation, that the appeal would result in a reversal of the finding and/or substantial modification of the sanctions.
3. OTHER GUIDELINES FOR APPEALS
- All parties will be timely informed the status of requests for appeal, the status of the appeal consideration, and the results of the appeal decision;
- Every opportunity to return the appeal to the original decision-maker for reconsideration (remand) should be pursued;
- Appeals are not intended to be full re-hearings of the complaint. In most cases, appeals are confined to a review of the written documentation or record of the original hearing, and pertinent documentation regarding the grounds for appeal; Witnesses may be called if necessary.
- Appeals are not an opportunity for appeals panelists to substitute their judgment for that of the original decision-maker merely because they disagree with the finding and/or sanctions. Appeals decisions are to be deferential to the original decision-maker, making changes to the finding only where there is clear error and to the sanction only if there is a compelling justification to do so.