State legislation is playing an increasingly important role in addressing campus sexual violence given U.S. Department of Education (ED) Secretary DeVos’s rescission of the 2011 Dear Colleague Letter (2011 DCL) and the 2014 Q&A on Title IX document, as well as the ED’s Office for Civil Rights’ changing policies and staffing cuts. As state laws are passed to fill the void, they raise the possibility of legal challenges to Secretary DeVos’s intended revision of the DCL’s disciplinary procedures if they conflict with provisions in state laws or the Clery Act Amendments. Peter Lake predicts that “it almost has to go [to] court, because that’s how to resolve conflicting legal mandates.”
The specter of this conflict became real when Pennsylvania Governor Wolf encouraged Pennsylvania schools to continue following the 2011 DCL’s guidance in his letter to Secretary DeVos: “Based on the actions taken this week by the Trump administration, congress needs to revisit this issue and strengthen our laws to ensure victims are not revictimized during investigations. Until that happens, I strongly encourage all colleges and universities within the commonwealth to continue using the standards set out in this 2011 policy.”
Moreover, Governor Wolf isn’t waiting for federal action and introduced the following “It’s On Us PA” legislation:
- PA Senate Resolution 57 directs the Joint State Government Commission to establish an advisory committee to conduct a comprehensive study of the issue of rape and sexual assault on postsecondary school campuses and environs and to report its findings and recommendations to the Senate
- PA SB871 providing for alcohol and drug use amnesty policies at certain colleges and universities
- PA SB870 expands the office of Safe Schools to higher education as part of the state’s “It’s on Us” Initiative
- PA SB 547 requires age-appropriate dating violence education in grades 7-12, and colleges and universities to provide sexual violence awareness programs
- PA HB1615 providing for sexual violence education programs in colleges and universities
- PA HB1921 requiring sexual violence prevention education and adoption of an affirmative consent standard in the code of conduct
- PA HB1633 establishes a Task Force on Campus Intimate Partner Violence and Sexual Assault
California, New York, Illinois, and Minnesota have already adopted comprehensive laws that mirror the 2011 DCL’s guidance and go further, requiring that colleges and universities adopt policies that include an affirmative consent standard and immunity from alcohol or drug violations that are revealed when a student reports sexual assault.
In addition, California’s SB 967 codified the preponderance of evidence standard that has turned into one the DCL’s most controversial requirements in deciding disciplinary cases involving sexual violence. SB 967 also required colleges and universities to adopt other disciplinary procedures that:
- Protect survivors’ privacy
- Provide trauma-informed training for campus officials involved in conduct proceedings
- Require investigation protocols and a preponderance of evidence standard to decide responsibility for sexual misconduct in campus disciplinary proceedings
California Governor Brown vetoed SB 169 on October 15, 2017, which would have required schools to interpret the requirements of the legislation consistent with the 2011 DCL. In his veto message, Governor Brown said he would not impose additional requirements for addressing interpersonal and sexual violence “in reaction to a shifting federal landscape” until there was sufficient data on the impact of California’s SB 967.
Governor Brown expressed concerns about whether SB 967 and the 2011 DCL had impacted the number of investigations, the circumstances that result in expulsion, whether race or ethnicity plays a role in these decisions, and the due process of accused students. Therefore, he said he would assemble a group of “knowledgeable persons” to help assess whether more or less statutory requirements are needed, because “It is time to pause and survey the land.”
Currently, Massachusetts Senate Bill 2203 is pending, which follows many of the recommendations in the June 2016 report issued by the Task Force on Campus Safety and Violence Prevention. The bill emphasizes employee training, working with community-based sexual assault crisis centers, and providing confidential resources for students. It would also standardize campus disciplinary proceedings to encourage reporting, provide information on support services, establish the preponderance of evidence standard to resolve complaints and require awareness programming for newly enrolled students and newly hired employees.
On November 2nd, the Massachusetts Senate unanimously voted to pass Bill 2203 and it now goes to the House. A similar bill also passed the Senate last year but failed to clear the House. S.2203 is supported by the Women’s Caucus Sexual Assault Working Group.
Looking forward, if the role of the ED’s Office for Civil Rights to enforce Title IX rights adopts a lower profile, state laws may continue to create a patchwork quilt of requirements to address campus sexual and relationship violence. Legislation keeps the focus on setting a baseline for eliminating campus sexual violence. Meanwhile, Campus Prevention Network members across the country continue to implement best practices and build effective prevention programs that go beyond legal compliance.