New Massachusetts Sexual Misconduct Law Continues a Busy Year-Plus for Title IX Administrators in Higher Education
Biden Administration Revisions, New State Law and Continued Judicial Interpretation Mark Evolving Nature of Campus Sexual Assault Prevention Efforts for Public and Private Colleges and Universities in the Commonwealth
Title IX Administrators have endured a whirlwind of change over the last eighteen months, from implementing the 2020 revisions to the federal Title IX regulations to navigating a new presidential administration. In 2021, Massachusetts institutions also have a new state law on sexual misconduct. The volume of change has been substantial even for normal times, yet student affairs professionals have worked through the COVID-19 pandemic and crises in race and gender during a year without precedent.
This Fenway Law EdBrief summarizes the new Massachusetts law on sexual misconduct in higher education and its relationship with evolving Title IX regulations at the federal level.
Change is the Only Constant in 2021
In January, the Massachusetts Legislature passed a sweeping new law meant to strengthen processes and protections in cases of sexual misconduct on college campuses across the Commonwealth. The Biden administration took office shortly after the new law was passed, one of the few state-level sexual misconduct statutes to be enacted in the wake of (and largely in response to) the 2020 Title IX revisions. The law should be viewed as a “gap-filler” aimed at maintaining some consistency in the Commonwealth should regulatory revisions continue to recur at the federal level.
The Biden administration has signaled just that, in word and in deed. For example, the White House issued Executive Orders in January and March of this year that are aimed at restoring protections for gender identity and sexual orientation. Earlier this summer, Biden nominated Catherine Lhamon to lead the Department of Education’s Office of Civil Rights (OCR), the agency charged with enforcing Title IX; Lhamon held the same position in the Obama administration, which issued the 2015 revisions that were largely undone in 2020. Lhamon’s nomination is now on hold in the U.S. Senate following a deadlock in committee.
The Department of Education has also moved forward on previewing further Title IX revisions by issuing a Q&A on July 20 to clarify a number of process issues; the law firm Nixon Peabody published a tidy summary on the most important highlights here. Administration officials have published an official notice that formal rulemaking to revise Title IX (yet again) will begin no later than May 2022. Stay tuned.
In the meantime, while K-12 administrators also remain working to adapt to the changes expected from the Biden administration, courts continue to provide clarity on the 2020 revisions. Two weeks ago, Senior Judge William Young in the U.S. District Court for Massachusetts held that the section 106.45(b)(6)(i) prohibition on hearing officers from considering any statement in the record that is not subject to cross-examination as “arbitrary & capricious” under the Administrative Procedures Act (APA). See Victim Rts. Law Ctr. v. Cardona, №20–11104-WGY at 45–50 (D.Mass., Jul. 28, 2021). As Young points out, competent respondent’s counsel would likely advise their clients to refrain from participation in a hearing, thereby shielding any statements made by the respondent to administrators, law enforcement officers outside of the investigatory process. Id. at 46. The voluminous rulemaking record contained no evidence that the Department intended this result — much less considered it, and Young remanded the provision for further consideration and explanation by the government.
Filling In the Gaps In Massachusetts
The amendments to Chapter 6 of the General Laws, found in new sections 168D and 168E, took effect at the beginning of August. Institutions have two immediate deadlines coming up:
- August 20: all Massachusetts colleges and universities must email a copy of their revised policy and process to students by this date
- Within 45 days of the start of the Fall semester: newly matriculated students must receive training on the institution’s sexual misconduct policy and process (more on training below)
The new law includes a number of notable requirements that exceed federal Title IX regulations. In addition to assuring that individuals have clear, confidential and anonymous resources to report or seek help in response to instances of sexual misconduct, the new requirements include:
Climate Survey. Institutions are now required to conduct a climate survey at least once every four years in order to gain insight from the student body on campus. The survey must include feedback on:
- reported and unreported incidents
- awareness of the institutional policies and processes
- student satisfaction
- access to services
- overall campus safety
The Massachusetts Department of Higher Education (DHE) has convened a task force to create a model survey for use by institutions. The deadline for the task force to complete its work is January 1, 2022; institutions have until July 31, 2025 to complete its first survey under the new law. An institution must also post survey results to its own website, and annually report to DHE the number of prior year:
- sexual misconduct reports, and related
- findings, and
MOUs. The new law also requires institutions to enter into memoranda of understanding with law enforcement agencies (LEAs) with jurisdiction over the institution’s campus locations. This requirement has been a logistical challenge for a number of institutions with campuses that cut across several jurisdictions, and presents additional challenges for institutions and LEAs given the requirement that roles and responsibilities in the prevention of and response to sexual misconduct on campus be clearly defined for each party.
Practically speaking, the law provides that institutions must engage in efforts to achieve MOUs with relevant LEAs “to the extent feasible.” In the event that an institution cannot achieve an MOU with LEAs, administrators should be prepared to demonstrate their efforts to DHE. The first annual institutional reports to DHE are due in August 2022, and DHE may request that institutions that have not yet executed MOUs share drafts and related materials in order to demonstrate efforts made toward compliance.
Note that institutions will also need to enter into an MOU with sexual assault crisis services providers, unless such services are provided through institutional resources. These resources include a sexual assault nurse examiner (SANE) available to respond to victims of sexual assault, and the capability to make and receive reports from an off-campus location.
Confidential Resource Provider. The CRP is an institutional employee or contractor that does not report to the Title IX coordinator but is available to complainants and respondents to discuss: (i) reporting options; (ii) on- and off-campus counseling services; (iii) on- and off-campus medical services; (iv) supportive measures; and, (v) the campus disciplinary process. Practically speaking, each institution should designate at least two CRPs, given that a CRP cannot advise adverse parties in the the same incident. CRPs are not required to report an incident of sexual misconduct to the institution or to law enforcement unless otherwise required to do so by law, and a CRP’s request for supportive measures on behalf of a reporting party does not require a formal complaint under Title IX. A CRP’s notice of alleged sexual misconduct similarly does not trigger the actual or constructive notice provisions under Title IX, which can otherwise obligate the institution to take further action.
Training. Section 168E builds upon Title IX training requirements to include:
- for students — a survey of applicable civil rights laws; the effects of alcohol and drugs on consent; and, the availability of confidential and anonymous resources and reporting methods.
- for campus law enforcement — awareness and prevention of sexual misconduct; and,
- for investigators — methods for interviewing victims; conduct that constitutes misconduct; the effects of alcohol and drugs on consent; the impacts of trauma, cultural differences and disability on victims, respondents and witnesses in an investigation; and, due process.
As a reminder, the law requires training within 45 days of matriculation for new students, and practically speaking institutions should plan on completing training of all other covered individuals prior to the first annual DHE report (in August 2022).
Other notable new requirements. The law includes a number of other new enhancements to the federal protections under Title IX. These include:
- A requirement that institutions provide a clear process for individuals to disclose and seek enforcement of protective orders on campus
- While many campuses already provide amnesty for students engaged in other conduct violations who become victims of or witnesses to sexual misconduct, the new state law now requires it.
- Institutions may allow hearing officers to place limits on the use of character witnesses (Title IX regulations are silent on this issue), and adverse parties are prohibited from directly questioning one another in a hearing.
- An institution must notify all parties of a final determination on a complaint within seven business days after reaching a decision; Title IX regulations have no such requirement.
The law also declines to require a rigid standard of evidence, recognizing that with shifting federal regulations institutions in the Commonwealth may adhere to the applicable legal standard or best practices that may otherwise be allowed under Title IX.
Institutions have the August 20 notice deadline for students on the horizon and further training obligations that follow soon after. Later on in the academic year, institutions can look for:
- the DHE task force to report out on a model climate survey, by January 1, 2022
- the federal Department of Education to initiate formal rulemaking to further revise the Title IX regulations, by May 2022
- the deadline to submit the first of annual reports under the new law to DHE, by August 2022
- the deadline to complete the first campus climate surveys under the new law, by July 31, 2025
For campuses that have yet to meet the August 1 deadline under the new Massachusetts law, Fenway Law can help institutions with process updates, policy reviews and training on the new requirements, and lead investigations or provide hearing support for complaints under Title IX and the new state law.