Executive Memorandum 05-10

__________________________________________
May 25, 2005

EXECUTIVE

MEMORANDUM

05-10
__________________________________________

From:

Paul J. Zingg, President

Subject:

Executive Memorandum 05-10, Revisions to Student Grievance Procedures (Supercedes EM 94-22)

On the recommendation of the Academic Senate, and with the concurrence of the Provost, I approve this Executive Memorandum for immediate implementation.

STATEMENT OF PURPOSE
The relationship of the student to California State University, Chico is one governed by statutes, rules, and policies adopted by the California Legislature, the Trustees, the Chancellor, the campus President, and their duly authorized designees. This document establishes and describes procedures that are to be used for resolving student complaints and grievances arising from a student's claim that a member of the faculty, staff, or administration has in some material way failed to meet their official obligations as agents of the University, thus resulting in an unjust or adverse impact on the student. Only those claims arising from official actions taken by faculty, staff, or administrators on behalf of California State University, Chico can be considered legitimate, and the grievability of such claims is to be determined through the procedures specified in this document.

Procedures for informally resolving complaints or, when necessary, for resolving formal grievances are specified herein. Students are encouraged to resolve complaints informally and, to this end, the Director of Student Judicial Affairs or designee is assigned as an impartial representative from the Office of the Vice President for Student Affairs to provide students with assistance and guidance. Should informal attempts to resolve a complaint fail, formal grievance procedures may be invoked. In all cases, these procedures are designed to effect reasonable and orderly resolutions of student complaints and grievances in a fair, consistent, and timely manner.

The procedures specified herein are to be followed when no other specific campus policy or procedure exists that would more appropriately and effectively bring about a resolution of a student's complaint or grievance. If there is a specific policy or procedure for appealing decisions made in a department, when appropriate, that appeal process should be completed prior to filing a grievance through Student Judicial Affairs. Department policies must be pre-approved by the Office of Student Judicial Affairs.
Departments are encouraged to consult with the Office of Student Judicial Affairs while establishing departmental policies and/or procedures regarding students.
DEFINITIONS
"Attorney" means a person currently admitted to the practice of law before any state or federal court. "Complainant" means a student who has filed a complaint at the informal level. "Director" means Director of Student Judicial Affairs (or their designee), the member of the University staff assigned responsibility by the President for negotiating the informal resolution of disputes.

"Facilitator" means Formal Proceedings Facilitator, the member of the University faculty or staff assigned responsibility by the President for managing those cases in which informal resolution of differences has not been achieved and formal proceedings are invoked.

"Grievance" means a complaint that was not satisfactorily resolved at the informal level. The official action taken on behalf of CSU, Chico must have occurred when the individual was a registered student at the University.

"Grievant" means a student who has filed a complaint that is proceeding to the formal level and a grievance hearing. The student must be presently enrolled at CSU, Chico or previously enrolled at the time the complaint occurred.

"Instructional days" means days on which regularly scheduled classes or examinations are held at CSU, Chico.

"Notice of Inquiry" is a form designed by the Director to record information to start the informal resolution procedures. The "Notice of Inquiry" will contain a description of the complaint and the desired outcome (written by the affected student).

"President" means the President of CSU, Chico or his or her designee.

"Provost" means the Provost or his or her designee.

The "Request for a Formal Student Grievance Hearing" form is a form designed by the Director to record a description of the grievance and the desired outcome. The written "Request for a Formal Student Grievance Hearing" form, including any supporting documentation, signals the start of the formal proceedings and must be written by the grievant.

"Representative" means an individual who advises or speaks on behalf of the grievant.
"Respondent" means the faculty, staff member, or administrator (as determined by the Director) against whom the grievance is filed.
"Serious and Compelling Reason" means a verified accident, illness, personal emergency, or significant hardship that is approved by the Facilitator during the formal process or the Director during the informal process.

"Student" means a person who has paid fees and is registered at California State University, Chico.
DECISION AUTHORITY
1. Unless otherwise provided, the Director is responsible for making procedural decisions during informal resolution.
2. Unless otherwise provided, the facilitator is responsible for making procedural decisions during the formal proceedings. All parties involved, including the grievant and respondent, should consult directly with the facilitator.
3. If the grievance involves a staff member or an administrative employee, throughout this document "full-time tenured faculty" must be substituted with "full-time permanent staff member," and "Department Chair" or "Dean" must be substituted with "appropriate supervisory personnel," Coordinator, Director, or Administrator as determined by the Director.
4. If the grievance concerns an area within Business and Finance or Student Affairs, throughout this document "Provost" must be substituted with the "Vice President for Business and Finance" or the "Vice President for Student Affairs," respectively.
5. Recommendations resulting from the Grievance Hearing are forwarded to the Provost, who renders a decision based on those recommendations. This decision may be appealed to the President, whose decision is final.
INFORMAL PROCEEDINGS
Before filing a grievance, a student who has a complaint must follow these steps to attempt to resolve the matter informally. The student is encouraged to keep in contact with the Director throughout the informal resolution.

Grievable Action
1. Limits
  A "Notice of Inquiry" must be filed with the Director within thirty instructional days after the student has discovered or reasonably should have discovered the grievable action. A Request for a Formal Grievance Hearing must be submitted by the end of the semester during which the grievance was initiated. If the grievance was initiated during the last five weeks of a semester, the time that the student has to request a Formal Grievance Hearing will be extended through the first five weeks of the following semester. Note: "semester" in this document refers to the fall or spring semester. Should the need for a Formal Grievance Hearing arise during the summer or intersession, it will be held during the first five weeks of the following semester.
2. Additional Time Limits
The Director, under extraordinary circumstances, i.e. , a "serious and compelling" reason, may extend the time limit but for not more than one calendar year from the date of the discovery of the grievable action.
Limitations
1. Nothing from these proceedings can be entered into the personnel files of the parties involved. This does not preclude subsequent personnel action against the non-student parties involved, following appropriate procedures, on the basis of evidence brought forth during the grievance process.
2. Remedies indicated by these proceedings will be implemented as agreed upon by both parties.
3. These procedures cannot be used for actions for which other remedies are being sought and may not be used as a method of rebuttal to any student disciplinary action.
4. These procedures cannot be used for actions arising out of previous grievances.
5. These procedures cannot be used in circumstances where the sole allegation is of professional misconduct that requires formal personnel action as specified in a University employee personnel policy.
The student must meet with the Director to file a "Notice of Inquiry" (see IV.A.1).
The Director informs the student of the steps in attempting an informal resolution.
The Director will determine who the respondent will be and may notify the respondent that a complaint has been filed against him or her and forward appropriate documents explaining the nature of the complaint. The respondent may choose to contact the Director for an explanation of rights and proceedings.
The student should meet with the respondent to attempt to resolve the matter informally. The Director may be present during the meeting between the respondent and the student.
If the matter remains unresolved, the student must meet with the appropriate department chair and attempt to resolve the matter informally.
If the matter still remains unresolved, the student must meet with the appropriate college dean and attempt to resolve the matter informally.
If the dean is unable to resolve the matter informally, the student may then invoke the formal Grievance Proceedings. In this case, the grievant and respondent shall each contact the Director for information on the formal grievance proceedings.
The student may meet with the respondent, chair, or dean at any time during the process to resolve the matter informally but must have met with the chair and dean before requesting a Formal Grievance Hearing.

FORMAL PROCEDINGS

Determining Grievability

Grievability

The grievant must show that he or she has been adversely affected by the action, and

The grievant must show that the remedy sought will not effectively result in either (1) special favoritism for him or her and/or (2) prejudice against others. The fact that no other student has initiated a grievance or requested a Formal Grievance Hearing regarding the same issue does not preclude the outcome being in favor of the grievant.

The grievant must demonstrate with reasonable certainty that an official action was taken which was either unreasonable or not specifically authorized; and

If the action follows a written policy or syllabus, the grievant must demonstrate that the policy or syllabus constitutes a material abuse of discretion or was not generally or specifically authorized; or

If the action is not related to any written policy, the grievant must demonstrate that the action constituted a material abuse of discretion or was not generally or specifically authorized; or

If the action is not related to any policy but a policy may be implied, the grievant must demonstrate the implied policy constitutes a material abuse of discretion or is not generally or specifically authorized, and, further, the lack of such policy does not, standing alone, imply grievability of the action.

No one may seek to establish university policy through the grievance process.

Filing of Grievance and Rebuttal

The Director must provide both grievant and respondent with copies of these procedures and be available for instruction in or interpretation of these procedures.

To initiate a grievance, the affected student must complete the "Request for a Formal Student Grievance Hearing" form and deliver it to the Director, who will within ten instructional days transmit copies to the respondent, the facilitator, the department chair, and the dean.

At any point in the proceedings, the grievant may withdraw the grievance or accept an informal solution.

After receiving the written grievance request, the dean must notify the Director in writing within five instructional days whether all informal means for resolving the complaint have been exhausted as described in Article IV.

The respondent will provide the grievant with a written answer to the grievance, with a copy sent to the Director within five instructional days of receipt of the written grievance request. If a written answer from the respondent is not received within five instructional days, the Director must notify the dean. The hearing process may continue with no written response from the respondent. If there is a "serious and compelling" reason, the dean must notify the chair to respond on behalf of the respondent or allow additional time for a response as appropriate.

After receiving notification from the dean that all informal means for resolving the complaint have been exhausted, and after receiving the written answer, if any, from the respondent to the grievance, the Director will, within ten instructional days, forward all materials to the facilitator and notify the facilitator that formal grievance proceedings can begin.

Representation

The grievant and the respondent may each name a representative to accompany him or her to the grievance hearing. The name of the representative must be given to the facilitator no less than two instructional days prior to the grievance hearing. Attorneys may not appear in the proceedings as representatives. However, if either the grievant or respondent is an attorney, both parties may be represented by attorneys. A party being represented by an attorney may seek no reimbursement of attorney's fees. Both parties are responsible for notifying their representatives of the hearing date and ensuring their presence at the hearing.

Naming of Witnesses

Grievant and respondent are responsible for obtaining their own witnesses and documentation. Participation in this process by prospective witnesses is voluntary. Both parties are responsible for notifying their witnesses of the hearing date and ensuring their presence at the hearing.

The names of witnesses, if any, for either party and signed statements of their willingness to testify at the hearing, along with a brief statement of what their testimony will consist of, must be submitted in writing to the facilitator at or before the meeting of the selection of the Grievance Hearing Committee. The facilitator will share the names of the witnesses with the grievant and respondent.

The representative for the grievant or respondent may not be a witness.

Every effort should be made to ensure the witnesses appear in person. The facilitator may also approve an electronic appearance. However, if the witness cannot be present, written evidence must be submitted. The witness submitting written evidence must sign the following statement: "I hereby declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration is executed at (location of signing) on (date of signing). " Failure to sign the above statement will render the written statement inadmissible.

If the witness fails to appear in person, with the exception of a serious and compelling reason, and only submits writen evidence, the Grievance Hearing Committee may, if it so chooses, discount the witness' written evidence.

Witnesses who will be presenting evidence in person to the committee must submit to the facilitator, at least two instructional days prior to the hearing, any other written evidence they may be submitting. If evidence is not submitted to the facilitator at least two instructional days prior to the start of the hearing, then the evidence should not be admitted unless the facilitator rules on the admissibility of the evidence out of the committee's presence.

An exhibit or witness declaration must be labeled and an index of all the evidence being presented must be prepared by the grievant and the respondent and submitted to the facilitator at least two instructional days prior to the hearing.

Copies of witness reference materials (regulations, statements in catalogs, or student handbooks, etc. ) should be included as exhibits and enough copies (seven) should be made by the grievant or respondent for the other party and the Grievance Hearing Committee prior to the hearing.

Selection of Grievance Hearing Pool

The Grievance Hearing Pool will consist of forty-two members: a total of fourteen full-time tenured or FERP faculty that includes two representatives from each college; fourteen students selected from the most recent five percent random sample who have completed twenty-four units at CSU, Chico and who are not on academic or disciplinary probation; and fourteen full-time permanent staff. The Grievance Hearing Pool shall be selected at the beginning of each academic year, and members shall be notified by the Director of their responsibilities in the event they are selected to serve on the committee. The Staff Council will recommend to the Director fourteen staff members.

All academic deans, in consultation with their chairs, will select two faculty members from their college for a total of fourteen faculty members. The Director will select the fourteen student members. The Staff Council will select the fourteen staff members. The Director may select an additional alternate set(s) of fourteen students if there is a need for a larger pool of students in order to ensure two students are found who are willing to serve on the committee. Faculty and staff members will be appointed for the academic year on a two-year rotating term. Student members will be selected at the beginning of each formal grievance hearing.

Formation of the Grievance Hearing Committee and Eligibility

Within fifteen instructional days after receiving the grievance materials from the Director, the facilitator will hold a meeting to select the panel for the Grievance Hearing Committe. The grievant and respondent must attend this meeting. If either party fails to attend this meeting, they must provide documentation of a "serious and compelling reason" to the facilitator.

Grievance Hearing Membership. Each Grievance Hearing Committee will consist of four members selected from the Grievance Hearing Pool consisting of two faculty members and two students. In the event the grievance is against staff, two staff members will be selected from the Grievance Hearing Pool in place of the two faculty members.

If the grievance involves grading, the committee will consist of the two students and two faculty members only. The following persons cannot serve on the Grievance Hearing Committee:

friends of either party;

persons involved with the grievance;

any person who is serving as an advocate for faculty, staff, students, or administration;

staff members, administrators, and nonteaching faculty when the grievance involves a grading dispute.

Challenges

Each party to the grievance is permitted to exercise challenges for cause to the proposed committee membership; the facilitator must grant or deny the challenge.

Committee Formation

The first two faculty names or the first two staff names (when appropriate) and the first two student names to survive challenge and who are available at the time of the hearing form the Grievance Hearing Committee. The remaining names are alternates. If an original committee member cannot or will not serve, a replacement is made by taking the first alternate who is available in the respective category to fill the vacancy. If a committee cannot be formed, the facilitator, the grievant, and the respondent will meet again to select a new committee.

Grievance Hearing Procedures

Hearing Date

Grievance hearings are held only during the fall and spring semesters. If the grievance was filed less than five weeks before the first day of finals, the hearing may be held early in the following semester. Under extraordinary circumstances, at the discretion of the facilitator, an exception may be allowed if it is requested by the grievant and the respondent, provided that the committee and witnesses, if any, are available.

The facilitator must inform the grievant, respondent, the dean, and the department chair of the time, date, and location of the hearing as well as information on other matters which affect the hearing.

The committee may be convened by the facilitator prior to the hearing for briefing or other purposes.

The committee will normally convene within fifteen instructional days of its selection.

Quorum

Three of the four members of the committee constitute a quorum. When the grievance involves grading, both faculty members must be present to constitute a quorum.

Closed Hearing

Attendance in the closed hearing is limited to the grievant, the respondent, and their representatives, if any, witnesses while giving evidence, the facilitator, the committee, and a person who provides clerical support for the facilitator. The content of the proceedings and the committee recommendations resulting therefrom must not be made public by any participant in the hearing. In the event these matters should become public, however, such public statements as are appropriate may be made by the President. This policy of confidentiality does not preclude subsequent action following appropriate procedures on the basis of evidence developed at the hearing.

Facilitation

The facilitator must present all written material for the committee to study and provide relevant information if so requested by the committee. The facilitator chairs the hearing and makes rulings on procedural matters. In the event of a tie vote, the facilitator will vote to break the tie.

Process

The facilitator shall be responsible for conducting the hearing in such a manner that the rights of the grievant and the respondent are observed throughout and that fair play and due process is accorded.

The hearing shall not be conducted according to technical legal rules relating to evidence and witnesses or rigid procedural guidelines. The facilitator shall admit evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs, but shall exclude evidence that is irrelevant, inappropriate, or unduly repetitious.

Witnesses

Each witness must leave the room after giving evidence and must not hold discussions with other witneses.

At the request of the committee, a witness may be recalled only to provide clarification. The facilitator must make a decision on the importance of the potential testimony against the inconvenience of recalling excused witnesses.

Additional witnesses, beyond those previously named by the grievant and the respondent, may not be called to present evidence at the hearing unless approved by the facilitator.

Each party may question each witness.

The facilitator may ask each witness the following question: "Do you promise that the testimony you are about to give in this matter shall be the truth as known to you?"

Committee Deliberation

Deliberation occurs among committee members only. However, when the grievance involves a grade dispute and the committee finds in favor of the student, student members of the committee may not vote to determine the final grade to be assigned. The facilitator must be present for consultation and to vote in the event of a tie. A person may also be present to provide clerical support.

Committee members must consider the case based only on evidence admitted.

A committee member may seek procedural advice only from the facilitator.

The facilitator must not allow unreasonable coercion of any member of the committee by another member.

The Committee will, by secret ballot, determine the grievability of the grievance using the guidelines established in Section V.B. on grievability. The facilitator is responsible for ensuring that each member clearly understands the guidelines given in Section V.B. on grievability. The facilitator records the vote.

The facilitator must write a report consisting of the finding of facts and recommendations made by the Grievance Hearing Committee to the Provost. This report will be signed by all the committee members. Dissenting committee members may write a minority report. The report, and the minority report, if any, constitute the committee's recommendation.

The recommendations and all materials on file form the report, which is to be submitted to the Provost within ten instructional days after the committee has determined the outcome of the grievance.

Decision

Within ten instructional days from receipt of the committee's report, the Provost (for cases within Academic Affairs), the Vice President for Student Affairs, or the Vice President for Business and Finance makes a written decision on the grievance. Written copies of the committee's report and the decision must be furnished to the grievant and the respondent. The department chair and the dean will receive written copies of the decision. In the event that a grade change has been recommended, the Provost will then replace the instructor of record as the initiator of the change of grade form. The grade change procedure will then continue as noted in Section X of The Grading Policy, EM 92-13.

Decisions not implementing the recommendations of the committee must contain reasons for that lack of implementation.

VI. APPEAL PROCEDURES

Either the grievant or the respondent may appeal the decision of the Provost.

The party wishing to appeal the decision must deliver a written appeal to the President with copies to the other party and to the facilitator. This appeal must be delivered within five instructional days from the date of the decision of the Provost.

The appeal must specify the following:

That it is an appeal;

The name of the appellant;

The reasons for the appeal and the facts supporting those reasons.

Within five instructional days of receipt of a copy of the appeal, the facilitator must forward all grievance materials to the President.

Within five instructional days of receipt of the appeal, the other party may deliver a written response to the appeal to the President, with copies to the appellant and to the facilitator, setting forth the reasons why the appeal should be denied and any facts supporting those reasons.

Normally, within ten instructional days of receipt of the appeal, the President renders a decision thereon, which is final for all purposes.

Tapes pertaining to the hearing will be available in the Office of Student Judicial Affairs. Requests for copies of the tapes must be made three working days in advance. There will be a charge for the tapes. Only the grievant or respondent may request tapes and the use of the tapes shall be limited to subsequent administrative and judicial proceedings held in connection with the matter.

VII. OTHER PROVISIONS

Ordinarily, the outcome of the formal Grievance Hearing shall not be overturned because of technical departure from the procedures or because of errors in their application. However, if technical departures or errors were such that a fair and just determination of the issues was compromised, then the President may reject the recommendation or call for a new hearing.

Deciding the effect, if any, of any failure to strictly adhere to the time deadlines stated in these procedures is within the discretion of the President with input from the Director, the facilitator, the Vice President for Student Affairs, the Provost, and the Grievance Committee.

The Notice of Inquiry Form and Request for a Formal Student Grievance Form are available on the Student Judicial Affairs website at: http://www.csuchico.edu/sjd/SJA_Forms/