Pursuant to Article XIV of the University Senate Code and Articles V and VI of the University Senate Rules and Regulations (U.S.R.R.) of the University of Kansas, the University of Kansas School of Law ("Law School") establishes the following rules governing the procedure for the handling of disputes within the Law School.
Proposed Revisions as Approved by Faculty Student Assembly (with technical changes)
(Sept. 27, 2002, effective Jan. 1, 2003)
A: General Provisions
Section 1: Scope
These procedures apply to any dispute within the cognizance of the University of Kansas School of Law as a unit of the University of Kansas pursuant to the University Senate Code and the U.S.R.R. Such disputes include, but are not limited to, grade appeals, honor code violations, and other allegations of academic or professional misconduct occurring in the law school setting or affecting the law school.
(a) These procedures do not apply to any matter that is within the exclusive jurisdiction of another body pursuant to the University Senate Code or U.S.R.R., rules governing professional responsibility and discipline of attorneys, or any other state or federal law or regulation.
(b) These procedures apply only to the extent that they are consistent with and not superseded by other provisions of law, including the University Senate Code and U.S.R.R., rules governing professional responsibility and discipline of attorneys, or any other state or federal law or regulation.
Section 2: Rights of Parties
(a) These procedures shall be applied so as to protect the due process and other rights of parties to the dispute.
(b) Parties to the dispute shall receive reasonable notice of any charges or allegations against them, of the time and place of any hearing, and of the material issues to be determined.
(c) With due regard for the authority of the hearing body to exclude irrelevant, immaterial, cumulative or improper evidence, parties to the dispute shall have a full and fair opportunity to present their version of events, present and cross examine witnesses, or otherwise plead their case, and may be represented by counsel at their own expense.
(d) Parties to the dispute are entitled to a decision by an impartial hearing body based upon the record of the proceedings. Members of the hearing body shall not communicate with each other or with any other person on matters material to the dispute except through the hearing process.
(e) The hearing body and others administering the dispute resolution procedures shall respect the confidentiality of the proceedings. Confidentiality does not apply to information that is relevant to the investigation or prosecution of a disciplinary action by the Disciplinary Administrator of the Kansas Bar , any matter relating to the admission of an attorney to the bar of any state or federal jurisdiction or court, or in any case where disclosure is required by court order or other legal authority.
(f) No person shall be subject to discharge, suspension, discipline, harassment, or any form of discrimination for having used or having assisted others in the use of the dispute resolution procedure described herein, except that a person who establishes a pattern of repeatedly filing frivolous grievances may lose the right to file grievances pursuant to U.S.R.R. 6.5.4.
B. Prehearing Procedures
Section 3. Informal Dispute Resolution
These dispute resolution procedures are intended to supplement, not supplant, other more informal means of resolving disputes that may arise, and parties are encouraged to resolve disputes informally before resorting to formal procedures.
(a) The Dean shall, in consultation with students, faculty, and staff, appoint a Law School Ombudsman to facilitate the informal resolution of disputes and grievances and to provide information and impartial assistance to affected parties in connection with the dispute resolution process.
(b) A complaining party should first discuss his or her complaint with the Law School Ombudsman, who shall consider the matter with an eye to seeking a conciliatory solution. To this end, the Law School Ombudsman may, to the extent he or she considers it appropriate in the circumstances, interview parties, secure documents, and develop other evidence relevant to the dispute and its resolution.
(1) Time during which the parties are engaged in attempts to resolve the dispute under the oversight of the Law School Ombudsman shall not count against any time limits on the filing or resolution of the complaint.
(2) Statements of the parties made during efforts at informal dispute resolution shall not be admissible in any hearing or appeal under these procedures; nor shall the Law School Ombudsman be called to testify or provide written information concerning the informal dispute resolution process in any hearing or appeal under these procedures.
(3) If, when a formal complaint is filed, the Ombudsman has in his or her possession documentary evidence that is to be made part of the record of the dispute, he or she shall provide this evidence to the hearing body.
(c) The Law School Ombudsman shall provide information to parties involved in the grievance process concerning the nature of the process and its operation. In particular, the Ombudsman should work to ensure that students understand their professional obligations, the potential consequences of adverse decisions, and their rights under the dispute resolution process.
(d) The Law School Ombudsman may at any time recommend that the parties engage in informal dispute resolution efforts, or that they engage in further informal dispute resolution efforts, and may recommend that the parties to the dispute seek assistance in the informal resolution of the dispute in accordance with U.S.R.R. 6.2.
(e) This section does not require any party to a dispute to engage in informal dispute resolution, and it does not foreclose recourse to other means of informal dispute resolution agreed upon by the parties to the dispute.
Section 4. Complaint and Response
The complaining party may initiate a hearing by submitting a written complaint to the Law School's Associate Dean for Academic Affairs. In addition to the original, the complaining party shall provide copies of the complaint for each responding party, to be delivered promptly to the responding party or parties by the Associate Dean for Academic Affairs either personally or by certified mail.
(a) The written complaint shall set forth all facts on which the complaint is based and shall indicate the provision or provisions of the University or Law School rules and regulations, or of federal or state law, alleged to have been violated. The complaint should also identify potential witnesses or documentary evidence relevant to the dispute.
(b) The respondent(s) may submit a written response to the complaint. Within one week (seven calendar days) of receiving the complaint, the respondent(s) shall notify the Associate Dean for Academic Affairs of the intent to file a response, and the Associate Dean for Academic Affairs shall specify a reasonable period of time in which to do so.
(c) The parties may elect to invoke the jurisdiction of the University Judicial Board pursuant to U.S.R.R. 188.8.131.52.
Section 5. Formation of Panel
Upon receipt of a written complaint, the Associate Dean for Academic Affairs shall promptly form a hearing panel as provided for in this section. The hearing panel shall be composed as follows:
(a) For disputes in which a faculty member is the responding party, three members of the faculty shall be selected by lot;
(b) For alleged violations of the Honor Code, the Associate Dean for Academic Affairs shall convene the Honor Committee, consisting of:
(1) The President of the Student Bar Association
(2) The Presidents of the first, second, and third year classes;
(3) One representative from the Law Review and one representative from the Journal of Law and Public Policy, each selected by but not the head of these organizations;
(4) The senior student American Bar Association Representative; and
(5) One faculty member, to be selected by the Honor Committee, who will serve as advisor to the committee and who will not have a vote in the decision.
(c) For all other disputes, the panel shall include one member of the faculty selected by lot, one member of the unclassified or classified staff selected by lot, and the president of the SBA or another elected officer of the SBA nominated by the president of the SBA.
(d) No person shall serve on a hearing panel who has a prior involvement with the dispute, an interest in the dispute, or whose determination of the dispute would otherwise be improper. If any person chosen by lot is disqualified or declines to serve on a hearing panel, a replacement member shall be selected by lot. If an elected SBA officer or class officer is disqualified under this paragraph, he or she shall be replaced by the next highest ranking elected SBA or class officer. If all elected student officers are disqualified, then a student shall be chosen by lot to replace them.
Section 6. Preliminary Matters
(a) Unless otherwise specified, the hearing panel shall upon its formation select a Chair from among its members. The Chair shall have the responsibility for communicating with parties and managing the conduct of the hearing. The Law School Ombudsman and Associate Dean for Academic Affairs shall provide to the panel any documents or information gathered which forms a part of the record in the dispute.
(b) The hearing panel may dismiss a complaint without a hearing if it appears beyond dispute that
(1) the complaint, or another complaint involving substantially the same occurrence or events has been or is being adjudicated by proper procedures;
(2) the complaint was not filed in a timely manner, as defined in U.S.R.R. 184.108.40.206;
(3) the hearing panel lacks jurisdiction over the complaint;
(4) the complaint does not state a violation of the University Code, University Senate Rules and Regulations, the Honor Code, or other applicable rule, regulation, or provision of law; or
(5) the party filing the complaint lacks standing or has been denied the right to file grievances pursuant to U.S.R.R. 6.5.4.
(c) Unless the hearing panel dismisses the complaint under subsection (b) of this section, it shall promptly schedule a hearing. In scheduling the hearing the hearing panel shall bear in mind the time allowed for a written response, and shall allow a reasonable time for the parties to prepare. A hearing involving one or more students as parties or panel members may not be scheduled during the final examination period. A hearing may be scheduled during the summer session or on a day when the law school does not hold classes only if all parties agree.
(d) The parties to the dispute shall provide each other with copies of materials to be used in evidence and names of witnesses to be examined at the hearing, far enough in advance of the hearing as is reasonable in the circumstances and consistent with requirements established by the Chair of the hearing panel.
C. Hearings and Decisions
Section 7. Confidentiality
Except when all parties agree that the hearing before the hearing panel shall be public, all proceedings provided for in these Rules shall be closed to all but the hearing panel, the parties to the dispute, and their representatives. Public reports by the Law School or its agents may not include the names of the parties or include any reference that would permit their identification. Confidentiality does not apply to information that is relevant to the investigation or prosecution of a disciplinary action by the Disciplinary Administrator of the Kansas Bar, any matter relating to the admission of an attorney to the bar of any state or federal jurisdiction or court, or in any case where disclosure is required by court order or other legal authority.
Section 8. Conduct of the Hearing
(a) In proceedings under the Honor Code, a quorum shall consist of a majority of the total number of student members of the Honor Committee authorized by section 5(b). In all other matters, a quorum shall consist of all members of the panel authorized by section 5(a) or section 5(c), as the case may be.
(b) The Chair shall preside over the hearing, and has the authority to set reasonable rules for the fair and orderly conduct of the hearing, including but not limited to setting time limits on the parties' presentations, ruling on the relevance of evidence, and all other powers normal and necessary for a fair and orderly hearing. In proceedings under the Honor Code, the Chair and other members of the Honor Committee may consult with the faculty Advisor concerning procedural issues and other matters relating to the conduct of the hearing.
(c) All witnesses shall be given an oath or affirmation before testifying.
(d) The complaining party shall present his or her evidence and witnesses first, followed by the responding party, who has the privilege of remaining silent. Each party shall be given the opportunity for rebuttal.
(e) Each party to the dispute shall be entitled to examine the evidence presented by the other party or parties to the dispute, including the opportunity to cross-examine witnesses.
(f) Each party to a dispute may represent himself or herself or be represented by an advisor or counsel of his or her choice, at his or her own expense.
(g) Rules of evidence that govern court proceedings shall not apply.
(h) The complaining party shall bear the burden of proof and must establish by clear and convincing evidence that a violation has occurred.
Section 9. Deliberation and Recommendation
(a) Within a reasonable time after hearing the evidence and arguments presented concerning the complaint, the hearing panel shall deliberate and decide on a recommendation to the Dean. In proceedings under the Honor Code, the faculty advisor shall attend the deliberations but shall not vote, and the decision shall be by the vote of a majority of the student members who participated in the hearing. In all other matters, the decision shall be by the vote of the majority of the total number of members by the panel, as authorized by section 5(a) or 5(c), as the case may be.
(b) The recommendation shall be made in writing, shall explain the reasons for the recommendation including the factual and legal basis for the decision, and shall recommend a sanction, if any is appropriate, pursuant to applicable rules and regulations. Each party to the hearing shall receive prompt, written notice of the hearing panel decision, including a copy of the written recommendation to the Dean.
Section 10. Record
The Chair of the hearing panel shall maintain a record of the hearing, including relevant documents, an audiotape of the proceedings, a stenographic record prepared by a certified shorthand reporter, and a copy of the panel's written recommendation to the Dean. At the conclusion of the case, the Chair of the hearing panel shall transfer the record to the Dean for storage in accordance with procedures established by the Dean. The record shall be made available only (i) to the parties, (ii) to the Dean, (iii) to the appropriate reviewing body, as referred to in section 12 below, if an appeal is filed in accordance with that section, and (iv) officials responsible for bar admissions and attorney discipline or other legal authorities, upon proper request.
Section 11. Decision by Dean
(a) Within one week (seven calendar days) after receiving the hearing panel recommendation, any party to the dispute may make written submissions to the Dean concerning the recommendation.
(b) The Dean may undertake further procedures consistent with the rights of the parties that he or she considers to be appropriate for the fair and accurate resolution of the dispute.
(c) The Dean shall consider, but is not bound by, the hearing panel recommendation. Before the Dean departs from a hearing panel recommendation, he or she shall ensure that the adversely affected party has had notice of the reasons for the departure and an opportunity to respond to them in writing.
(d) Following receipt of written submissions or the completion of further procedures, the Dean shall, within one week (seven calendar days), decide what action to take, if any. The Dean shall provide prompt written notice of his or her decision to the parties and to the hearing panel.
Section 12. Appeal
A party who is dissatisfied with the decision of the Dean may obtain further review of the decision through established University procedures for the type of complaint involved pursuant to U.S.R.R. 6.4. In the written notice of decision, the Dean shall identify the correct avenue for further review.
Section 13. Special Procedures for Change of Grades
If the Dean determines in any matter that affects a student's grade that the grade was improperly awarded, he or she may decide that the student's work must be reevaluated and a new grade determined. If the faculty member in question is unable, unwilling, or disqualified from changing the grade, the Dean shall, pursuant to U.S.R.R. 2.3.2., appoint a group of three faculty members to evaluate the student's work and, if necessary, change the student's official grade.
Section 14. Prior Decisions
The hearing panel may refer to prior decisions for purposes of determining how particular provisions or procedures have been applied in the past or what sanctions have been considered appropriate for comparable violations, but prior decisions are not binding precedent. To facilitate reference to prior decision, the Dean or a person designated by the Dean shall maintain a copy of written decisions made pursuant to the Law School Grievance Procedure and shall upon request make relevant decisions available to the parties or to a hearing panel. Decisions made available to the hearing panel or parties pursuant to this section shall be redacted to prevent identification of the parties.