Two New Bills Address Sexual Assault Issues

Tim Burke, Manley Burke, tburke@manleyburke.com

In July, two bills – the Safe Campus Act and the Fair Campus Act – were introduced in the United States House of Representatives.  Both bills have the support of the National Panhellenic Conference (NPC) and the North American Interfraternity Conference (NIC).  The bills join the national effort to address sexual assault issues on American campuses.  While focusing on protecting victims of sexual assault with an emphasis on education and training that will reduce the incidences of sexual assault and provide assistance to victims, the bills also seek to ensure that Institutions of Higher Education (IHE) must provide a fair process for both victims and the accused.

The principal difference between these two bills is that the Safe Campus Act specifically provides that if an institution of higher education receives written consent from the victim, the institution must report and refer the allegation “to the law enforcement agency of the unit of local government with jurisdiction” for investigation.  Under those circumstances, the university may not conduct its own investigation or impose final discipline while the criminal investigation is being conducted.  (Under certain circumstances, a university police department may fill the role of the local government police.)  The university may, while the law enforcement agency is investigating, take interim measures if they are a “reasonable measure to promote campus safety and well-being.”  These include temporary suspensions, no contact orders, adjustment of class schedules, or changing housing assignments.

Under the Safe Campus Act, if an alleged victim of sexual violence provides a written notification, including knowledge of the consequences of doing so, to the IHE that the individual does not want the allegation to be investigated by law enforcement, the university may not undertake disciplinary action against the alleged perpetrator or impose any interim measures.

These limits on an IHE’s ability to investigate and discipline are the most controversial, these provisions are not in the Fair Campus Act.

Both bills apply to any IHE receiving federal financial assistance.  If adopted, the bills would apply to almost all colleges and universities in the country since the overwhelming majority, both public and private, receive federal assistance, which includes assistance provided to students.

Both bills provide specific due process guarantees to the involved students and student organizations.  Those guarantees require notice to all parties at least two weeks prior to the start of any formal hearing or proceeding.  The notice must detail the rights and responsibilities to be provided in the proceedings, a statement of all relevant details of the allegation and a specific statement of the sanctions which may be imposed.  All parties involved – victim and accused – must have access to all material evidence a week in advance, including complainant statements, third party witness statements, and specifically “electronically stored information … and social media posts.”  Parties involved may, at their expense, retain the assistance of an attorney “or other advocate” who may ask questions in the proceedings, file papers, examine evidence, and examine witnesses.

The bills mandate that it shall be “presumptively improper for any person to make any inquiry about the sexual history of the individual reporting the incident, other than with regard to the relationship between the alleged victim and the accused.”  The bills make it clear that IHEs must provide a process which avoids conflicts of interest and may not co-mingle administrative or adjudicative roles.  Under the process required in the bill, an individual member of the IHE administration may not serve in duplicative roles.  For example, a college employee could not serve both as a victim counselor and an investigator, or any other role in the process.  Critically, a university employee could not be both prosecutor and adjudicator, or adjudicator and decide an appeal of his or her own decision.

IHEs, under these bills, would be free to determine for themselves what standard of proof to use.  That provision responds to the controversy created by the Department of Education when it required all universities to use a “preponderance of the evidence” standard, as opposed to either “clear and convincing evidence” or “beyond a reasonable doubt.”  IHE disciplinary decisions would be subject to judicial review in United States District Court.

Both the Safe Campus Act and the Fair Campus Act re-emphasize the importance of the Title IX exemption under which fraternities and sororities are free to remain single sex organizations.  Both state that the exemption “that allows single-sex organizations to continue to flourish at institutions of higher education is still essential to developing a wide range of enrichment opportunities for students to learn and grow.”

Both acts go on to provide:

 “While Title IX has done much to provide opportunities for women and men alike, the single sex exemption is a part of that tapestry of opportunities, and institutions of higher education may not take actions that undermine this single-sex exemption.”

This provision, if adopted, would appear to prohibit even private institutions which receive federal support from mandating fraternities and sororities become co-ed.

Each bill also provides that IHEs may not mandate that a volunteer advisor to a student organization or an employee of the student organization must serve as a campus security authority under the Clery Act (unless such individual is also an employee of the institution), and that IHEs may not deny recognition to a student organization because an advisor or organizational employee refuses to register or serve as a campus security authority.

Earlier this year, as reported in the March issue of Fraternal Law, a bi-partisan group of 12 United States Senators introduced the Campus Safety and Accountability Act, which is also designed to address the issue of sexual assault on campus.  While that bill addresses some critical elements of the problem, it does not address others such as due process, Title IX, or the role of chapter advisors.  The Senate Education Committee conducted a hearing on that bill in July and this month the House Education Committee heard testimony on the campus sexual assault issues. With the media attention that continues to be focused on sexual assault, it may well be that some marriage of these three bills will occur as the legislative process goes forward.