During information sessions regarding November’s Title IX proposed rules, NASPA received questions regarding how the new rules, if enacted as proposed, would interact with state law. The technical response to this is somewhat simple: the final rule, having undergone the rulemaking process, would have the same effect as federal law, and would therefore require a public institution to comply with both the federal and state-level standard. For example, if the state requires the preponderance of evidence standard, institutions in that state would need to comply with both the state standard and additional stipulations regarding preponderance of evidence within the final rule.
The answer to questions regarding state interaction becomes more complicated, however, when considering how state laws in this arena tend to be shaped. State law, especially regarding issues of urgency such as student safety, is highly sensitive to an evolving local and national policy landscape. State-level precedent on sexual assault prevention and response, emphasized as a result of Obama-era federal Title IX guidance, may be similarly impacted through judicial outcomes and new regulations under the Trump administration. This post works to unpack some of the ways in which state-based sexual assault prevention and response policies have been shaped over the last few years, and what to expect from 2019 state legislatures.
Incidents of Sexual Assault Lead to State Action
State-based policies regarding sexual assault prevention and response often arise in direct response to specific incidents that occur. Following the adoption of Obama-era guidance in 2014, local judges have ruled in favor of the respondent in a number of cases of alleged campus misconduct after finding a lack of due process in campus investigation proceedings. In January 2019, a state appellate court in California ruled that respondents should have a right to a hearing and cross-examination. This ruling, determined from a case in which former University of Southern California football player Bryce Dixon was denied a fair hearing, sets a new precedent in the state, that had, since the release of Obama-era guidance, otherwise expanded equitable protections for complainant and respondent through 2014 affirmative consent legislation (CA SB 967) and 2015 protections within community college districts (CA SB 186). The ruling now applies to all California public and private colleges and universities. While somewhat different from cross-examination stipulations in the proposed rule by the Department of Education, the court ruling disrupted Title IX investigations across the state in February, as universities worked to develop the new compliance protocol.
In 2017, former California Governor Jerry Brown vetoed Senate Bill 169, which would codify Obama-era Title IX guidance into law after its recent rescission by the Department of Education. In his veto, Governor Brown reasoned, “Given the strong state of our laws already, I am not prepared to codify additional requirements in reaction to the shifting federal landscape, when we haven’t yet ascertained the full impact of what we recently enacted.” As noted above, California had just passed several pieces of legislation to uphold an established federal-level precedent to fight sexual assault on college campuses. Campuses across the country had taken up the cause, motivated by the Obama administration’s “It’s On Us” campaign. In 2015 New York passed a comprehensive measure, Enough is Enough, that established affirmative consent, expanded definitions of sexual harassment, and also more flexibility in turning over evidence to both parties during an investigation as a measure to incentivize both complainant and respondent to submit comprehensive evidence.
In another example, as a fallout of the sexual assault case against Larry Nassar, the Michigan legislature passed several measures in 2018 that would add protections and processes with greater odds of preventing an incident of this kind in the future, ranging from legislation expanding permissions of who can provide survivor impact statements on behalf of minors, to allowing for a greater window of time in which childhood sex abuse survivors could sue their alleged perpetrators. In 2019, the precedent of the Nassar case prompted North Carolina legislators to introduce House Bill 228, which includes a provision that requires medical professionals to report incidents of suspected sexual assault at the risk of losing their licenses.
Outlook for 2019 State Legislatures
NASPA is tracking 53 state measures related to sexual violence prevention and response at colleges and universities in 2019, and legislation varies widely from state to state. A few examples of legislation are detailed here, with more specific updates to tracked legislation available in the Weekly Policy Update.
The nationwide fight against sexual assault seems to have taken hold in the states, where despite rescinded guidance, measures to mandate affirmative consent in institutions of higher education continue to be reintroduced each year. Affirmative consent policies also offer a level of sexual assault prevention that remains untouched by proposed regulations, and therefore avoid the risk of conflict between state and federal policy. In 2019 affirmative consent policies were reintroduced in Minnesota (MN SF 187; MN HF 217), and introduced for the first time in New Mexico (NM HB 133; died in committee).
Similar to provisions within New York’s Enough is Enough policy, Iowa (IA SF 342) and Utah (UT HB 36; passed) have introduced policies to provide those who report instances of sexual assault with amnesty from drug and alcohol use violations. Several policies introduced in 2019 would also enhance reporting requirements at institutions, such as New Jersey Senate Bill 779 that would require institutions to report sexual assault to the State Secretary of Education and Texas Senate Bill 212 that would require Title IX investigative reports to be sent to the president of the university.
In Missouri, House Bill 573 and Senate Bill 259 would create an appeal process for either party of a Title IX case to appeal a decision if they disagreed with the finding of the college or university, and would allow either party to request a formal public hearing before Missouri’s Administrative Hearing Commission. Since its introduction, the legislation has undergone a number of changes through committee amendments but is still viewed by advocates as threatening to survivors and an overreach by the state. On the other hand, survivor-centered policies introduced in Colorado (CO SB 7), Utah (UT HB 134), Mississippi (MS HB 1300; died in committee), and Indiana (IN SB 260) would require colleges to have meet certain standards in line with sexual misconduct policy.
During a time of multiple unknowns regarding what to expect from the final Title IX rule, states continue to play an important role in the work of sexual assault prevention and response. State policy is shaped and impacted through both local and national policy outcomes. In the absence of a final rule in the months ahead, staying abreast of evolving conversations in your state and reviewing institutional policies and procedures with legal counsel offer avenues to better ensure compliance. As many state legislatures move to wrap up in April, the NASPA policy and advocacy team is working to provide analysis on a number state-level issues impacting the higher education community. Have you seen our posts on free college, free speech, trans and gender non-binary individuals’ rights, and firearms on campus? Look for upcoming 2019 state-level and in-state tuition for undocumented students next week!