at the hearing, to be present, to be represented by an attorney, and that these and other due process rights will be forfeited if they are not exercised at the hearing; 5.2.7. A statement that if the amount in controversy exceeds two thousand five hundred dollars or if a property right may be terminated, any party may require the use of the Office of Hearing Examiners by giving notice of the request to the institution no later than ten (10) days after service of the notice required by this section; and 5.2.8. A statement that the final decision may be appealed to circuit court and the South Dakota Supreme Court as provided by law. 5.3. If a party does not have an advisor present at the live hearing, the institution must provide without fee or charge to that party, an advisor of the institution’s choice, who may be, but is not required to be an attorney. Without limiting the due process provided for contested case proceedings pursuant to SDCL chapter 1-26, the live hearing must: 5.3.1. Permit each party’s advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility. 5.3.2. Require cross-examination to be conducted directly, orally, and in real time by the party’s advisor of choice and never by a party personally. 5.3.3. If requested by either party, provide for the live hearing to occur with the parties located in separate rooms with technology enabling the hearing examiner and parties to simultaneously see and hear the party or the witness answering questions. 5.3.4. Require the hearing examiner to determine whether any question asked of a complainant, respondent, or witness is relevant before they may answer the question and explain any decision to exclude a question as not relevant before a party or witness answers a cross-examination or other question. 5.3.5. Ensure questions and evidence about the complainant’s sexual predisposition or prior sexual behavior are not relevant, unless such questions and evidence about the complainant’s prior sexual behavior are offered to prove that someone other than the respondent committed the conduct alleged by the complainant, or if the questions and evidence concern specific incidents of the complainant’s prior sexual behavior with respect to the respondent and are offered to prove consent. 5.3.6. Ensure that if a party or witness does not submit to cross-examination at the live hearing, the hearing examiner must not rely on any statement of that party or witness in reaching a determination regarding responsibility; provided, however, the hearing examiner cannot draw an inference about the determination regarding responsibility solely on a party’s or witness’s absence from the live hearing or refusal to answer cross-examination or other questions. 5.4. The hearing examiner shall issue a proposed determination to the president/superintendent of the institution, or their designee, who cannot be the same person(s) as the Title IX Coordinator or the investigator(s). The institution must then issue a written determination regarding responsibility. To reach this determination, the institution must apply the preponderance of the evidence standard as described in section 2.2.9 above. In reviewing the proposed determination, the institution must give due regard to the hearing examiner’s opportunity to observe the witnesses. If the institution rejects or modifies the proposed determination of the hearing examiner, or any part thereof, the institution shall provide the reasons for doing so in writing to the parties. The written determination must include: 5.4.1. Identification of the allegations potentially constituting sexual harassment; 58 NSU STUDENT HANDBOOK 2024-25
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