Colleges and universities in the Commonwealth should be aware of legislation that is pending before the Massachusetts Legislature that would require them to implement specific procedures and follow additional reporting requirements relative to sexual misconduct on campus. After years of inaction, Massachusetts House Bill No. 4418, “An act relative to sexual violence on higher education campuses” (“H.4418”), as well as its Senate corollary, S.2580, recently gained momentum and may pass before the end of the year. Advocates say the new federal regulations for Title IX of the Education Amendments of 1972 recently promulgated by the U.S. Department of Education (“USED Title IX Regulations”) make passage even more urgent because they interfere with the rights of survivors. If it passes, in addition to policy changes necessitated by the new Title IX regulations and the ongoing COVID-19 pandemic, colleges and universities would likely need to make further modifications to comply with this law.

Status of the Campus Sexual Assault Legislation

This legislation was first advanced in 2015 by The Every Voice Coalition, a nonprofit formed by a small number of students with the goal of promoting awareness about and protecting students and staff from sexual harassment and sexual misconduct on college campuses. Although the House and Senate failed to reconcile competing versions of the bill during the 2018-2019 legislative session, H.4418 and a corresponding Senate bill, S.2580, were refiled and gained traction early this year before the pandemic hit. At that point, they were endorsed by the Massachusetts Joint Committee on Higher Education and sent to the respective Committees on Ways and Means. 

In September, Speaker Robert DeLeo urged the House to consider H.4418 before the end of the extended legislative session,[1] creating a renewed push for the bill to pass this year.[2] The Speaker shared his optimism that the bill would pass at Every Voice’s virtual advocacy summit. Given the passage of similar bills last session in each chamber, the legislation appears to have sufficient support.[3]

Summary of H.4418

H.4418 seeks to impose a set of sexual misconduct policies and procedures on higher education institutions. These policies mandate access to information about the process for reporting incidents of sexual misconduct to the school or elsewhere, options for next steps, including investigation and resolution of sexual misconduct claims, where to receive assistance or emergency services, and how to notify the institution if a protective order has been issued. The legislation would require the school to implement a laundry list of specific procedures around the investigation and disciplinary process for sexual misconduct, including a prohibition on direct questioning by the complaining and accused student during a disciplinary hearing and a requirement that both students have the right to appeal a disciplinary decision. In addition, H.4418 requires schools to publish information on their website, including, the Annual Security Report required under the federal Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act,[4] the telephone number and website for a 24-hour hotline providing information on sexual misconduct, contact information for the school’s Title IX Coordinator and confidential resource advisor, and information about students’ options to report sexual misconduct, the investigation and adjudication process, and the process to request interim protective measures.

As is the case with the USED Title IX Regulations, H.4418 offers protections to students or employees who report incidents of sexual misconduct to colleges or universities. Specifically, H.4418 prohibits retaliation against any individual who reports or assists someone in making a report of sexual misconduct or is otherwise involved in such an investigation. Further, confidential resource advisors advocating on behalf of a reporting party are also protected from any discipline or retaliation by the institution.

Additionally, H.4418 requires institutions to adopt a memorandum of understanding with local law enforcement setting forth each agency’s respective role when a report of sexual misconduct is made. Schools without their own sexual assault crisis service center must execute a memorandum of understanding with a community-based sexual assault crisis center to provide services.[5] The legislation also seeks to implement a new privilege restricting the disclosure of a confidential communications in civil or criminal proceedings without written consent from the reporting party.

The legislation calls for mandatory training or programming that will provide awareness about sexual misconduct, safety measures, the role of alcohol and drugs, where and how to report, and the institution’s procedures and sanctions for new students and employees. As discussed below, the school would need to offer sexual misconduct programming to new employees and students within a certain time frame. 

H.4418 contains two reporting requirements for institutions. First, if the legislation passes, colleges and universities must conduct a sexual misconduct climate survey every four years and post responses anonymously on their website. A task force of representatives from various disciplines, including students, educators, lawmakers, law enforcement, advocacy groups, and researchers, will develop a climate survey for schools to use, approved by state higher education officials. Alternatively, the institution has the option of creating its own. The purpose of the climate survey is to gather data about sexual misconduct on college campuses across Massachusetts. The information collected would include when and where the sexual misconduct occurred, whether it was reported, to whom it was reported, how the institution responded, and the overall awareness of institutional policies and procedures regarding sexual assaults. The climate survey allows students and employees an anonymous way to report incidents of sexual misconduct and in turn, allows schools to gather data related to acts of violence that largely go unreported in order to monitor the efficiency of their policies.[6] The results of the survey must be posted on the school’s website 120 days after it is completed and analyzed.

Second, H.4418 requires institutions to submit an annual report to the Massachusetts Department of Higher Education, which includes information related to sexual misconduct allegations and investigations involving students and employees. Schools must disclose the number of allegations of sexual misconduct reported to the Title IX coordinator, the number of cases that were investigated by local or state law enforcement, the number of students found responsible and not responsible for violating policies on sexual misconduct, and the number of disciplinary actions imposed by the institution as a result of such finding of responsibility.

In sum, H.4418 sets forth a mandatory roadmap for colleges and universities to follow to provide information, services, and support relative to campus sexual misconduct, in addition to the USED Title IX Regulation requirements, which advocates hope will create a safer and more supportive campus environment.

The USED Title IX Regulations

If passed this year, H.4418 would take effect only months after the new USED Title IX Regulations implemented by the U.S Department of Education (“USED”).[7] The USED Title IX Regulations were first published on May 6, 2020 and took effect on August 14, significantly altering the regulatory obligations of institutions related to sexual harassment and misconduct.

A summary of key provisions and consequences of the USED Title IX Regulations is available here. At high level they:

• Limit the definition of Title IX-covered sexual harassment, as to USED;
• Limit program and geographical reach (e.g., excluding any incident outside of the U.S. or involving an accused or setting that is outside of the substantial control of an institution, even if the incident has significant effect on the institution’s program and its participants in the U.S.);
• Limit the definition of what constitutes an entity’s knowledge of sexual harassment, which is the trigger for an institution’s obligation to respond even generally (recognizing only a Title IX Coordinator’s knowledge or that of an official with “authority to institute remedial measures” on behalf of the institution);
• Limit response requirements for incidents of sexual harassment and, aside from limited safety and protective actions (including mutual no-contact order), prohibit discipline and other adverse consequences for the accused before a finding of responsibility based on the filing of a formal complaint and resolution process);
• Require that an identified target or Title IX Coordinator file a formal complaint before an institution that is subject to the regulations is permitted—formally or informally—to resolve an incident between an identified target and an accused;
• Require that an identified target be (or is attempting to be) a current participant in the educational program/activity at the time a formal complaint is filed (making it impossible to file a complaint if a target leaves the organization); 
• Impose prescriptive formal grievance process requirements that are mandatory when a formal complaint is filed (unless, after filing a formal complaint, an institution offers and both parties agree to an informal resolution);
• Prohibit informal resolution (even with a formal complaint) if the accused is an employee and the identified target is a student; and
• Require that covered institutions that seek to address sexual harassment beyond the Title IX Regulations’ limited reach, adopt separate policies and processes (for Title IX sexual harassment and other sexual harassment)—even when the same parties and incidents are involved. 

In cumulative effect, the USED Title IX Regulations establish impediments to the discovery and prevention of harassment, create disincentives for individuals to come forward with claims of harassment, and establish administrative burdens on addressing sexual harassment, both within and beyond the scope of the USED Title IX Regulations.[8]

Compliance with the USED Title IX Regulations and H.4418

Schools were only given a few months after the USED Title IX Regulations were published to implement and update their policies. If H.4418 passes, schools in Massachusetts will likely have to implement additional changes to such policies within a similar timeframe. Colleges and universities employ multi-layered approaches to address campus sexual misconduct, which may again need to be reworked to comply with new requirements. 

H.4418 requires schools to implement policies that may, at times, implicate the USED Title IX Regulations’ definition of sexual harassment. Therefore, while the Massachusetts legislation may use the USED Title IX Regulations as a baseline and provide additional protections or obligations on the school, colleges and universities must be careful to ensure that any new policies pursuant to potential new state legislation do not conflict with the USED Title IX Regulations. 

Generally, H.4418 expands the types of incidents triggering an institution’s required response compared to the USED Title IX Regulations. H.4418 utilizes the term “sexual misconduct,” which it defines to encompass sexual harassment and sexual assault, in addition to other conduct, such as gender-based violence and violence based on sexual orientation, identity, or expression. In contrast, by limiting the definition of what constitutes an entity’s knowledge of specifically defined sexual harassment, [9] the USED Title IX Regulations narrow the circumstances in which an institution would need to respond even generally. Further complicating matters, the USED Title IX Regulations require schools to adopt separate policies and processes for misconduct other than sexual harassment as defined in the USED Title IX Regulations.[10] In practice, certain incidents may fall within the definition of sexual misconduct under H.4418 and not sexual harassment under the USED Title IX Regulations thereby triggering different obligations for the school. In other words, the same incident involving the same parties may constitute sexual misconduct under H.4418 but not under the USED Title IX Regulations. This creates ambiguity as to whether there is commonality or differences in the laws, making it challenging to navigate between the two. 

In addition, H.4418 requires schools to provide certain information to a reporting party even if the incident occurred off campus, whereas the USED Title IX Regulations, limit triggering incidents to those that fit within the narrow definition of sexual harassment on campus or at school events and activities.

As a result of these intertwined policies, a complete understanding of the USED Title IX Regulations and mandated policies set forth in H.4418 will be necessary, if the legislation passes, to ensure that the requirements of H.4418 do not hinder the protections of a respondent as set forth in the USED Title IX Regulations.

For example, under H.4418, schools will be given authority to create their own rules to regulate and conduct proceedings arising out of complaints of sexual misconduct including the role of each parties’ support person, which may include certain restrictions on cross-examination. If, however, the reported sexual misconduct falls within the USED Title IX Regulations’ definition of sexual harassment, schools will be prohibited from implementing rules restricting cross-examination by a party’s support person that conflict with the USED Title IX Regulations. 

Additionally, H.4418 mandates the designation of at least one “confidential resource advisor” who cannot also be designated a “responsible employee” or the Title IX Coordinator.[11] Therefore, a confidential resource advisor aware of an incident of sexual misconduct does not automatically trigger a school’s response obligations under the USED Title IX Regulations. Instead, the confidential resource advisor may take reports from students or employees, in confidence, to provide services upon request, including, but not limited to, requesting supportive measures on behalf of the reporting party’s request. 

Conflicts may arise, however, when a confidential resource advisor requests a protective or supportive measure on behalf of the reporting party. Pursuant to H.4418, the confidential resource advisor must coordinate with the Title IX Coordinator or her designee and such a request “shall not constitute notice to a responsible employee for Title IX purposes.” [12] To receive interim supporting measures, such as counseling, course adjustments, modifications of work or class schedules, changes in housing, or mutual restrictions on contact between the reporting party and accused party, the Title IX Coordinator must be notified in order to coordinate and implement such measures. Therefore, to the extent sexual misconduct which falls within the definition of sexual harassment under the USED Title IX Regulations is reported to a confidential resource advisor and subsequently relayed to the Title IX Coordinator for the purpose of implementing interim supportive measures only, the school will have actual knowledge. In other words, if the sexual misconduct constitutes sexual harassment under the USED Title IX Regulations, it will be impossible to keep the report confidential and not trigger the school’s actual knowledge, contrary to the language of H.4418.

These are just some of the ways in which compliance with Massachusetts law and the USED Title IX Regulations will pose a challenge to institutions if H.4418 passes.

Key Deadlines in H.4418

Schools should take note of certain deadlines that are included in H.4418. For example, if the legislation passes, the summary of the results of the campus climate survey must be posted on the institution’s website within 120 days of completion and analysis. By October 1 each year, institutions must submit to the Massachusetts Department of Higher Education the sexual misconduct report discussed above.

In addition, H.4418 requires sexual misconduct prevention and awareness programming for new students and employees within 45 days of their matriculation or employment, along with opportunities for ongoing programming. If passed, it is unclear at what point this clock starts ticking and whether and to what extent it will apply to students currently enrolled and employees currently working for the school. Schools will likely only have a short period of time (i.e. 90 days) to implement this policy and create an effective program consistent with H.4418.

Conclusion

If H.4418 (or a similar compromise bill) is signed into law, institutions of higher education across Massachusetts will be subject to new policies and procedures addressing campus sexual misconduct, in addition to the recently imposed USED Title IX Regulations. There is still time to take an active role in the legislative process and help shape the resulting legislation through advocacy and submission of amendments. The provisions of the current campus sexual assault bills and the USED Title IX Regulations are nuanced and intertwined, which puts schools at greater risk of drafting policies that conflict with federal law. Navigating the requirements and properly implementing the new procedures and reporting mechanisms, all while managing a changing education system in the middle of a pandemic, is a considerable undertaking. Accordingly, schools are encouraged to consult with experienced attorneys to ensure they comply with both state and federal law.