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Massachusetts Legislature Considers New Campus Sexual Misconduct Laws (Part 2)

writing-1149962_1920In our last post, we assessed the provisions and potential impacts of two of the campus sexual misconduct bills that will be considered by the Massachusetts Legislature in an upcoming hearing on April 9. In this post we are focusing on several of the other bills that will be up for debate, including one that would require a school to label a student’s transcript as soon as he or she is accused of certain criminal acts and another that would mandate sexual harassment training for all Massachusetts college and university students, faculty, and staff.

S. 747: An Act Relative to Disciplinary Notations on College Transcripts.

This bill would require colleges and universities to put a “prominent” notation on the transcript of a student accused of crimes of violence, which includes aggravated assault and both forcible and non-forcible sex offenses, as soon as a disciplinary process is started. That notation would be removed if the student was eventually found not responsible through the process.

What would this mean in practice? Most schools currently do not note disciplinary matters on students’ transcripts, but instead keep that information in a student’s educational record. When students apply to transfer to other schools, to graduate school, for professional licenses, or for some types of jobs, they are asked to disclose any disciplinary action taken against them at any educational institution and are sometimes asked to grant access to their educational records. When students seek to transfer schools or apply for graduate school while a disciplinary matter is pending against them, they are usually required to notify the school to which they are applying of any changes in their disciplinary status that happen after they submit their applications. Students who have been disciplined by their schools are therefore often required to self-report that discipline, particularly if they want to continue their educations or obtain professional licensure.

In our experience, campus sexual assault investigations take anywhere from four months to over a year from the time a complaint is made until the case is finally resolved. That means that if this bill goes into effect every student accused of misconduct will be branded a possible sexual assailant for the entire duration of the disciplinary process. This is true also when two students accuse each other of sexual assault, something that routinely happens in campus adjudications. In that case both students are treated as both complainants and respondents, and under this law both would have a transcript notation for the duration of the case. Because this type of transcript notation would impede a student’s ability to continue his or her education or gain employment, without being provided with any process before it is imposed, the law could be open to a constitutional challenge. The law certainly flies in the face of the presumption of innocence that is guaranteed to accused students at public colleges and universities in the Commonwealth. For example, the Massachusetts Department of Higher Education’s Affirmative Action Plan for state universities gives responding students the right “to be presumed not in violation of University policy until a violation is established through the complaint investigation process.”  The University of Massachusetts – Boston’s policy contains the same language. The University of Massachusetts – Amherst Student Conduct Policy notes that the burden of proof is on the complainant, meaning there is a presumption of innocence unless the complainant overcomes that presumption.

For most students, this bill would mean that if they are accused of misconduct, they will be unlikely to obtain any internships, jobs, or admission to other schools while their case is pending. Even if they are eventually found not responsible, as many students are, they will have had their education and career prospects permanently damaged solely based on an accusation. This impact could also make students less likely to report incidents to the school by raising the stakes for doing so; they may think twice about filing a complaint if doing so would have an immediate negative impact on the person being reported.

H.1223: An Act Requiring Sexual Harassment Training at Institutions of Higher Education.

This Act would require every institution to provide annual sexual harassment training to all students, faculty, and staff. Two parts of this bill stand out to us. First, the bill creates a definition of sexual harassment that inconsistent with well-settled law. The bill defines sexual harassment as “unwanted or offensive sexual behavior that has the purpose or effect of creating a hostile or stressful living, learning, or working environment.” The concept of a “stressful environment” is vague and undefined, and therefore may be invoked improperly by students or schools.

Second, the bill appears to incentivize schools reporting incidents to law enforcement, by requiring them to submit annual reports about their training programs, and also about the number of cases they have reported to local or state law enforcement. Any student who has experienced sexual violence on campus has a right to report that incident to local law enforcement, and schools routinely notify students of that right. Advocates for complainants have voiced serious concerns that automatic referrals to law enforcement serve to deter victims from coming forward and reporting allegations of sexual misconduct. As both criminal defense lawyers and lawyers who represent accused and complaining students, we can say that being involved in the criminal justice system, especially as a teenager (which many of our campus clients are), is a harrowing experience for both victims and defendants. Where the complainant has not chosen to report an incident to law enforcement, schools should not be encouraged to ignore his or her decision and automatically throw both the complainant and respondent into the criminal justice process without some compelling reason for doing so.

Third, the bill expressly incorporates federal law by requiring that all “trainings and policies” comply with Title IX and other federal laws, as well as “related regulations and guidance.” Since schools are required to follow federal law, this provision seems unnecessary. And incorporating federal “guidance” would include not just regulations that have gone through the lengthy administrative process but also letters or Q&A documents like the 2011 Dear Colleague Letter under the Obama Administration, which has now been rescinded, or the 2017 Q&A on Campus Sexual Misconduct adopted by the Trump Administration. Neither of these documents has been subject to public comment or oversight because, in theory, they are not legally binding.

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Creating sensible, fair laws about campus sexual misconduct is not easy. However the current proposals by the Massachusetts legislature fail to recognize the serious harmful consequences that will ensue from, for example, branding accused students’ transcripts before there is any adjudication of guilt or innocence, encouraging schools to send their students into the criminal justice system, or incorporating all guidance that may issue from the U.S. Department of Education into state law. We look forward to following the progress of these bills as they head to hearing next week.

 

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