Procedure for Appeals to the Board of Trustees

Title

University of North Carolina at Chapel Hill Procedure for Appeals to the Board of Trustees

I. Introduction

This document establishes procedures to be followed where, pursuant to University of North Carolina at Chapel Hill ("University") policy, a party has the right to an appeal to the Board of Trustees ("the Board"). These procedures are supplemental to substantive policies providing the right to appeal, and in the event of any discrepancy between such policies and these procedures, the provisions of the policies will take precedence.¹ Matters covered by these procedures include the following:

Student Matters

1. Appeals pursuant to the Instrument of Student Judicial Governance ("Instrument") by students who have been expelled from the University and who allege a violation of due process or a material deviation from Substantive and Procedural Standards adopted by the Board of Governors.²
2. Appeals pursuant to Section IV.J.2. of the Procedures for Reporting and Responding to Complaints of Discrimination, Harassment, and Related Misconduct Involving a Student as the Responding Party ("Discrimination, Harassment and Related Misconduct Procedures") and appeals involving a student subject to expulsion pursuant to section IV.D. of the Procedures for Addressing Prohibited Sexual Harassment Under Title IX ("Title IX Procedures").

Faculty and EHRA Non-Faculty Employee Matters

1. Appeals pursuant to Step Four Review of the University's EHRA Non-Faculty Grievance Policy.
2. Appeals pursuant to the Procedures for the Faculty Grievance Committee.
3. Appeals pursuant to Section 8 of the Trustee Policies and Regulations Governing Academic Tenure in the University of North Carolina at Chapel Hill ("Tenure Policy").

Matters Involving Faculty, Staff or Students

1. Appeals regarding ownership of copyrighted works pursuant to the University Copyright Policy.

II. Process for Appeals to the Board

A. Submission of an Appeal

Appeals to the Board must be submitted in writing to the Chair of the Board through the Office of the Chancellor and must specify the basis for the appeal and, as required by policy or procedure or as requested by the Board, must include any supporting facts or documents upon which the Appellant bases the appeal. Except as otherwise provided for by the applicable policy, the appeal petition must be submitted within fourteen (14) calendar days of delivery of the letter communicating the result of the prior appellate review.

In consultation with the Office of University Counsel, the Chair³ will review the appeal petition to determine if there is a valid basis for appeal under the policy or procedures creating the right to appeal. If the Chair determines that there is no valid basis for appeal, the Chair will notify the Appellant in writing, the Board will take no further action on the appeal, and the prior decision will stand.

If the Chair determines there is a valid basis for appeal, the Chair will notify the Appellant in writing and specify whether any of the grounds alleged by the Appellant have been deemed invalid for appeal. The Chair will also notify the University official responsible for the decision at issue, as well as any additional Appellee.

For purposes of these procedures, the University official responsible for the decision at issue will be deemed an "Appellee" where the policy providing the right to appeal requires that official to respond to the appeal petition or where the Board deems it helpful for that official to do so. In appeals pursuant to the Discrimination, Harassment and Related Misconduct or Title IX Procedures, the Chair will notify any other party to the decision of the decision that the appeal petition states a valid basis for appeal. That person will also be considered an "Appellee" under these Procedures.

Upon request from the Chair, an Appellee will have fourteen (14) calendar days from delivery of the Chair's decision that the petition states a valid basis for appeal to submit a written response to the Chair. The Appellee's written response must address the grounds deemed valid for appeal by the Chair and specify all supporting facts or documents on which the Appellee bases the response.

As permitted by applicable policy and procedure, any time period requirements imposed under this Section II.A. may be extended upon good cause shown, as determined in the discretion of the Chair, through written application to the Chair.

B. Review of an Appeal

Following the determination that the appeal petition states a valid basis for appeal, the Chair will appoint a three (3) person panel of the Board ("the BOT Panel") to consider the appeal. The BOT Panel will consider the appeal at the BOT Panel's earliest convenience, but in general will consider 

the appeal within sixty (60) days from receipt of all appeal materials (including personal testimony, if requested). In the event of a delay in considering the appeal, the BOT Panel will communicate in writing with the parties about the extension and provide a revised timeframe for consideration of the appeal.

The BOT Panel's review will be based upon the record provided to the Board by the relevant University committee or office, in addition to the appeal petition submitted by the Appellant and any response submitted by the Appellee(s).

Where permitted by applicable policy or procedure, the BOT Panel may determine it is important to receive personal testimony in addition to the existing record in order to decide the specific issue(s) on appeal. In such instances, the BOT Panel may request the presence of the Appellant or Appellee(s), or any other person who can provide testimony relevant to the issues on appeal.⁴ Such testimony will be limited to matters relevant to the issues on appeal.

When requested by the BOT Panel, an individual may appear before the BOT Panel in person, by videoconference, or by phone. A party may be accompanied by legal counsel, who may make a brief opening statement to the BOT Panel in support of the party's position on appeal. Unless required by applicable law (including associated regulations), attorneys will not be allowed to otherwise participate in the process. The BOT Panel Chair will have discretion to control the conduct of the appeal proceedings, including the imposition of such deadlines as are necessary and appropriate, and may limit or exclude testimony when deemed redundant or irrelevant.

C. Decision of the Board

1. For faculty appeals of discharge, serious sanction, nonreappointment, or termination decisions under Section 8 of the Tenure Policy, the BOT Panel will issue a recommended decision to the Board, which may be in the form of a written memorandum to the Board or may be communicated orally to the Board by the BOT Panel Chair. The Board will have access to the record in the matter. If a majority of the Board members in attendance vote to accept the BOT Panel's recommendation, the BOT Panel's recommended decision will be deemed the decision of the Board. If a majority of the Board members present vote against the BOT Panel's recommendation, the Board will issue an alternate decision.
   If the Board finds for the Appellant based on the standards of review set by applicable policy or procedure⁵, it may remand the matter to the Chancellor to provide for a new hearing or a supplemental review inquiry. In the event the Board decides to remand the case, the Board may provide, as appropriate, guidance regarding the recommended scope of the remand.
2. For appeals pursuant to the Faculty Grievance Procedures, a designated committee of the BOT may issue a decision on behalf of the Board. The Board may find for the Appellant only if the Appellant can show that the Chancellor's decision was clearly erroneous, violated applicable federal or state law or University policies or regulations, or that the process used in deciding the grievance was materially flawed.
   The Board will decide whether to remand the case to the Grievance Committee or to recommend other corrective action if the alleged violation cannot be corrected through remand. In the event the Board decides to remand the case, the Board may provide, as appropriate, guidance regarding the recommended scope of the remand.
3. For all other appeals covered by these Procedures, the BOT Panel will issue a decision on behalf of the Board. The Board may find for the Appellant only if the Appellant can show that, in reaching the decision under review, the individual or committee making that decision committed clear and material error. If the Appellant is unable to satisfy this burden, the Board must affirm the prior decision. In the event the Appellant meets the burden of proof, the Board will proceed as described below.
   1. Instrument⁶ - The Board will decide whether to remand the case for a new Honor System hearing or to dismiss the charge if the alleged violation cannot be corrected through remand. In the event the Board decides to remand the case, the Board may provide, as appropriate, guidance regarding the recommended scope of the remand.
   2. Procedures Pursuant to the Policy on Prohibited Discrimination, Harassment, and Related Misconduct and Procedures for Addressing Prohibited Sexual Harassment Under Title IX - The Board will decide whether to remand the case to the Hearing Panel or to dismiss the charge if the alleged violation cannot be corrected through remand. In the event the Board decides to remand the case, the Board may provide, as appropriate, guidance regarding the recommended scope of the remand.
   3. EHRA Non-Faculty Grievance Procedures - The Board will decide whether to remand the case to the Grievance Committee or to recommend other corrective action if the alleged violation cannot be corrected through remand. In the event the Board decides to remand the case, the Board may provide, as appropriate, guidance regarding the recommended scope of the remand.
   4. Copyright Policy - The Board will remand the matter to the Provost and Vice Chancellor for Research to implement such clarification of copyright ownership as is appropriate to the circumstances.
4. The decision of the Board will be communicated simultaneously to all parties in writing and will state the Board's findings, its determination, and its rationale.

III. Notices and Timing

In general, notices and communications under these Procedures may be transmitted via electronic, campus, or first-class mail. Where required, the notice or communication will be transmitted by a method that requires a signature for delivery as specified in The Code of the University of North Carolina and accompanying regulations.

Where it is not possible to use the method of delivery specified in applicable policy or procedure, the Board will send the notice or communication via any other means reasonably designed to reach the intended recipient. Failure or refusal of an individual to sign or confirm delivery does not invalidate receipt of the notice or communication.

Absent evidence to the contrary, receipt will be deemed to occur on the third calendar day after issuance of the notice or communication.

IV. Further Appeals

The Board's decision is the final University decision in all cases.

V. References

• The Instrument of Student Judicial Governance
• Procedures for Reporting and Responding to Complaints of Discrimination, Harassment, and Related Misconduct Involving a Student as the Responding Party
• EHRA Non-Faculty Employees Dispute Resolution & Grievances
• Procedures for the Faculty Grievance Committee
• Trustee Policies and Regulations Governing Academic Tenure in the University of North Carolina at Chapel Hill
• Chapter 100.1, sections 502D, 603, 604, 607, 611 of the UNC System Policy Manual
• The Copyright Policy of the University of North Carolina at Chapel Hill

Footnotes

1. In the event of any conflict between these procedures and applicable law (including associated regulations), applicable law governs.
2. See Chapter 100.1, section 502D of the UNC System Policy Manual ("Section 502D").
3. The Chair may appoint a designee. References to the "Chair" in these Procedures include the Chair's designee in such cases.
4. Where required by applicable law (including associated regulations), the Board must provide an equal opportunity for both parties to provide testimony, present evidence, and have equal and timely access to materials that will be used in the appeal.
5. If no standard is set by applicable policy or procedure, the Board may find for the Appellant only if the Appellant can show that, in reaching the decision under review, the individual or committee making that decision committed clear and material error.
6. Absent a determination to the contrary by the Chair of the Board of Trustees, the Student Body President must exercise self-recusal from consideration and determination of any appeal before the Board arising under the Instrument or any appeal under the Discrimination, Harassment, and Related Misconduct Procedures that involves a student.