In a late-night session on the last night of the 191st General Court (our legislative session), the Massachusetts Legislature passed S. 2979, “An Act Relative to Sexual Violence on College Campuses.” This bill was the latest version of a bill that has been introduced, and had previously failed to pass, in every session since 2014.
We have previously written about prior versions of this bill (our blog posts can be found here, here, and here). My colleagues and I have also submitted testimony to the Legislature in both 2017 and 2019 about campus sexual assault and the need for transparent, fair processes for students. While the bill addresses a number of topics, including climate surveys, sexual misconduct training for students and employees, coordination with local law enforcement, and the information schools must post on their websites, I will focus here on what the law will require schools to do when they receive a complaint of sexual misconduct. If Governor Baker signs the bill, its changes will take effect on August 1, 2021.
What obligations does the bill impose on schools?
The bill requires institutions of higher education to adopt policies on sexual misconduct that are consistent with federal and state law and regulations, and comport with best practices and current professional standards. As we have discussed in detail, recent federal regulations have dramatically changed how colleges and universities are required to address complaints of sexual misconduct.
The federal law that prohibits sex discrimination in education, Title IX, already requires institutions that accept federal funds to have sexual misconduct policies, so there are likely few colleges in Massachusetts—only those, like certain religious institutions, that take no federal money—that are not already legally obligated to have these policies.
The procedures for how schools must address complaints of sexual misconduct have to have the following components (among others):
- Notice to the respondent must include the date, time, and location (if known) of the incident alleged and a specific statement of which policies were allegedly violated and by what actions;
- That there will be an impartial investigation by a trained professional;
- That the respondent is presumed not responsible until a decision is made;
- Both parties have the right to inspect and review evidence obtained in the investigation that is “directly related to the allegations”;
- Both parties are entitled to an advisor of their choice, who can be an attorney;
- The procedures have to set forth the standard of evidence that will be used (the law does not require a particular standard of evidence);
- The parties will be provided with a copy of the institution policies on what evidence will be considered, and the parties have an equal opportunity to present evidence and witnesses;
- The parties will be provided with equal access to “relevant evidence” that will be used in the determination;
- The school is allowed to impose restrictions on the evidence that can be considered (e.g. character witnesses or evidence of the parties’ past sexual activity);
- The parties are not allowed to directly question one another during a hearing;
- The parties will get written notification of the decision within 7 business days after it has been decided;
- If there is an appeal offered, both parties are allowed to appeal.
The bill also provides a limited amnesty provision for someone who reports or causes an investigation of sexual misconduct, meaning that person would not be investigated or disciplined for certain rules they may have violated if that information comes out in the course of a sexual assault investigation. These types of amnesty provisions are often applied to institution rules regarding alcohol and drug consumption to ensure that people who experience sexual misconduct feel free to report that misconduct even if they were engaging in prohibited behavior at the time.
The scope of these policies is not spelled out in the bill. The bill states that schools must accept complaints of sexual misconduct “regardless of where the offense occurred,” and makes clear that school-based supportive measures must be offered to students and employees regardless of whether the harassment occurred in the school’s education program. There is nothing in the bill indicating that the school’s obligation to provide the process detailed above is not applicable to all complaints of sexual misconduct.
What effect will the bill have on schools in Massachusetts?
With respect to the requirements for schools’ procedures to handle complaints of sexual misconduct, the Massachusetts bill tracks some of the Title IX regulations that went into effect in August 2020. The requirements related to access to evidence are similar, though the Massachusetts law does have conflicting language about what evidence parties are entitled to see (in one place saying only evidence “directly related to the allegations” and in another saying only “relevant evidence”). Both the regulations and the Massachusetts law require a presumption of innocence for the respondent and allow parties to have an advisor of their choice. Both prohibit the parties from questioning each other during any live hearing.
There are notable differences between the Title IX regulations and the Massachusetts bill. Some of these differences will impose new burdens on Massachusetts schools as soon as the law goes into effect; others may only become relevant if the federal government rolls back or modifies the Title IX regulations.
First, while both the Title IX regulations and the new Massachusetts law require notice to the respondent to include the date and location of the alleged incident, and a description of the conduct at issue, the Massachusetts law also requires the school to spell out what policies are alleged to have been violated and by which conduct. This kind of clarity is important for respondents who should not have to guess at what they are being accused of, particularly when allegations may span months or years if they arose in the context of a relationship.
Second, the Title IX regulations require a live hearing for those sexual misconduct complaints that come under the regulations. (The Title IX requirements only apply to a subset of sexual misconduct complaints that might be brought to a school, and many schools have maintained a second, separate policy to address other complaints). The Massachusetts bill does not require live hearings. If, under the new federal administration, the Title IX regulations are rescinded or modified such that a hearing is not required, Massachusetts schools could resume the common pre-August 2020 practice of handling these complaints solely through investigations with no live hearing.
Third, the Title IX regulations have some detailed requirements related to admissibility of evidence, something the Massachusetts bill leaves to the discretion of each institution. The Title IX regulations create a complicated hearsay rule that requires schools to exclude statements made by a party who does not testify at the live hearing. The Title IX regulations also require schools to allow expert witnesses and expert evidence to be considered. If the Title IX regulations are rescinded, schools will need to develop their own policies for how to handle evidence and what evidence should be admitted.
Finally, unlike the Title IX regulations, the procedural requirements contained in the Massachusetts bill appear to apply to all allegations of sexual misconduct. The Title IX regulations limit their application to complaints by people attempting to participate in the school’s educational programs or activities, and in turn defines “educational programs or activities” to be limited to physical locations or circumstances where the university “exercised substantial control over both the respondent and the context in which the sexual harassment occurs.” The Massachusetts law therefore heightens the procedural protections for students and employees accused of misconduct that doesn’t fall under the Title IX regulations—for example, allegations of sexual assault that occurred in an off-campus apartment, or allegations brought by someone unaffiliated with the school against a student at the school. As soon as this bill goes into effect, schools that currently have two different sexual misconduct procedures (one for complaints covered by Title IX and one for other complaints of sexual misconduct) will have to ensure that their non-Title IX policies provide the procedural protections set out in the bill.
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The Massachusetts law provides important procedural protections to students and employees involved in campus sexual misconduct cases. The notice requirements and access to evidence requirements are elements we have long lobbied the Legislature to include in any bill addressing campus sexual misconduct. People bringing and defending against sexual misconduct claims have to have sufficient information about the allegations and evidence to be able to prepare their cases. Most importantly, these protections apply uniformly to all sexual misconduct cases at institutions of higher education in the state, not only those that occur on campus and are brought by someone who is part of the school’s program. Imposing clearer procedures on colleges and universities in the Commonwealth will bring much needed uniformity, clarity, and fairness to the patchwork of policies currently used by schools.
If you are involved in a sexual misconduct case at your school or university, contact our Title IX lawyers at (617) 742-6020.