The wave of campus sexual assault legislative efforts appears to be unrelenting. The latest legislative foray is the introduction of the “Safe Campus Act of 2015” in the House of Representatives. The sponsors are Rep. Matt Salmon (R-AZ), Rep. Pete Sessions (R-TX), and Rep. Kay Granger (R-TX). The bill has been portrayed as an effort to counter balance the recent campus sexual assault initiatives that have been instituted under Title IX by the Obama administration.
The bill has the support of national fraternity and sorority organizations, but also has received opposition from the higher education community as reflected in the statement issued by the Association for Student Conduct Administrators. A review the proposed legislation provides an easy understanding of why each sector has assumed their positions. The bill will create restrictions on the ability of colleges and universities to take action against fraternities or sororities following a sexual assault. The bill would also set out another set of specific national standards for the manner in which colleges and universities are to respond to incidents of campus sexual violence.
The proposed bill starts out by setting parameters for educational programming, support services, the role of volunteer advisors to student organizations, and training requirements about the bill for relevant campus personnel. Most significantly this part of the bill will forbid colleges and universities from designating volunteer student organization advisors (who are not institutional employees) as Clery Act campus security officers. Currently institutions have to latitude to decide whether to designate volunteer advisors as campus security authorities under the Clery Act. This bill will eliminate this discretion.
The second part of the proposed bill sets out a framework under which an institution will be obligated to report a sexual violence allegation to a law enforcement agency, unless the victim provides written notification that he/she does not want the matter investigation by a law enforcement agency. The bill will also set strict limits on an institution’s ability to impose interim sanctions on students and student organizations in situations involving a sexual violence allegation while a law enforcement investigation is ongoing. These restrictions are as follows.
- Once a law enforcement agency starts an investigation an institution can not initiate or carry out a disciplinary proceeding with respect to the allegation, provided however that it can impose interim sanctions (temporary suspension, no contact orders, etc.) if the institution determines they are a reasonable measure to promote student campus safety.
- The bill will further limit a temporary suspension of a student to no more than 15 days, which can be extended for additional 30 day periods if following a hearing the institution finds that the student poses an immediate threat to campus safety and student well-being.
- In the case of a student organization the temporary suspension can be for not more than 10 days, but only if there is determination that the organization engaged in activity that presents a significant risk to the health and physical safety of campus community members. No provision is made for an extension of the suspension.
- The interim sanctions shall expire upon the conclusion of the law enforcement agency’s investigation, but if an indictment issues a temporary suspension can be extended until the end of the case or the completion of any sentence imposed. An interim sanction can not be imposed if both the victim and the investigating law enforcement agency jointly request the institution to not impose an interim sanction.
The third part of the bill will mandate particular requirements for campus disciplinary hearings for sexual violence allegations. It will require that an institution can not sanction a student or a student organization for sexual violence unless there is hearing that has the following elements:
- at least two weeks prior to a disciplinary hearing written notice of the allegations, potential sanctions, and rights under the process shall be given to the parties;
- each person against whom an allegation is made shall be given a meaningful opportunity to admit or contest the allegation;
- all parties will be given access to all “material evidence” at least one week prior to the start of the disciplinary hearing;
- the parties will be permitted to be represented by an attorney at the hearing and the attorney can participate in the hearing;
- the parties shall have the right to confront witnesses;
- there shall be no commingling of administrative or adjudicate roles in the disciplinary process in order to eliminate conflicts of interest; and
- an institution can use a standard of proof of its choosing and will not be required to use the “preponderance of the evidence standard” mandated by the Office for Civil Rights in its 2011 DCL.
The bill also veers off onto curious ground by imposing requirements upon the filing of a civil action in a federal district court by a person who is aggrieved by a sanction imposed by an institutional disciplinary proceeding. The bill sets a one year statute of limitations to bring a claim; the standard of review would be whether the “imposition of the penalty was arbitrary, capricious, or contrary to law;” once an action is filed an institution shall send to the court the administrative record of the disciplinary proceeding; and it sets out the range of damages a court may award to a prevailing party.
On its face this bill appears to have little chance of success given its apparent lack of bi-partisan support. It is noteworthy in that it illustrates how everyone is jumping into the campus sexual assault issue. It also highlights how federal officials and legislators have no difficulty in constantly changing the rules regarding campus sexual violence, thereby requiring colleges and universities to constantly rewrite procedures and implement new systems in a significant and relentlessly ongoing basis.
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