Legislative Alert: Passage of campus sexual assault legislation
January 6, 2021
Dear AICUM General Counsels and Government Relations VPs/Directors:
Yesterday was the final day of the 191st Massachusetts legislative session and, as we fully expected, both branches enacted campus sexual assault legislation in the closing hours of the session. AICUM was in constant contact with House and Senate leaders and staff throughout the day and evening yesterday and we were able to secure a few last-minute changes to what is now a much-improved piece of legislation from where this process first started more than five years ago. We will share a final version of the legislation when it is made available by the Clerk’s office.
The House kicked off yesterday’s action by amending the bill passed by the Senate in December. We are pleased that the House agreed to remove a provision added by the Senate that would have required institutions already offering sexual assault crisis services on campus to enter into an MOU with a community-based sexual assault crisis center.
The key elements of the legislation include:
- A requirement that all colleges and universities conduct a sexual misconduct climate survey at least once every 4 years
o A task force co-chaired by the commissioner of higher education and the commission of public safety would be charged with developing model questions for use by institutions in such climate surveys.
o AICUM institutions would have 2 representatives on the 27-member task force. There would also be 2 students from a private college or university on the task force.
o The group of model questions developed by the task force would also include a “subset of questions taken from or consistent with” questions that have been used in the Administrator-Researcher Campus Climate Collaborative survey or other “high-quality” sexual misconduct climate surveys (e.g. AAU Survey) that are currently in use by institutions
o A college or university may develop and use its own campus-specific survey if the survey: is designed to provide the institution with data to inform policies to prevent and respond to sexual misconduct, meets quality standards determined by the DHE commissioner, and includes the subset of model questions taken from the “high-quality” surveys.
o Within 120 days of completion and analysis of the climate survey, colleges and universities would be required to post a summary of the results on the institution’s website.
- An effort to codify into state statute many of the policies and procedures that were implemented during the Obama administration.
o All colleges and universities would be required to adopt policies on sexual misconduct involving students and employee that are consistent with applicable state and federal law/regulation and comport with the best practices and current professional standards
o The parties involved in an alleged incident of sexual misconduct would not be personally allowed to directly question each other during a hearing or disciplinary proceedings
o To the extent feasible, all institutions would be required to enter into an MOU with the local law enforcement agency to establish how each will work to prevent and respond to on- and off-campus sexual misconduct
o If a college or university does not provide its own sexual assault crisis services on campus, it would be required to enter into an MOU with a community-based sexual assault crisis service center and a community-based domestic violence program
o All colleges and universities would be required to provide a method for anonymously reporting an incident of sexual misconduct that involves a student or employee of the institution
o Each institution would be required to designate at least 1 employee as a “confidential resources provider”. The confidential resource provider cannot be a student, the Title IX coordinator, or any employee who is required by Title IX to report to the Title IX coordinator.
o The confidential resource provider would be available to inform either a reporting party or a responding party about the institution’s disciplinary process, including reporting options, counseling services, medical/health services, and supportive measures.
While we are pleased that this five-year legislative effort resulted in better bill that builds upon the impressive work done by AICUM member colleges and universities to ensure safe campuses for their students, faculty and staff, we anticipate the incoming Biden administration will seek to undo many of the Title IX changes implemented by the Trump administration. This process will likely result in the need to amend the new state law to avoid conflicts with any changes to federal law. Legislative leaders have already acknowledged that future changes to Title IX and other federal statues will require concomitant adjustments to state law.
In the coming weeks, we will schedule a webinar to provide a deeper analysis of the legislation and its interplay with existing federal laws and regulations and policies currently in place on AICUM campuses.
Please let us know if you have any questions about the legislation or next steps in implementing the new law following Governor Baker’s anticipated approval.