Focus on Legislation: MD’s College Fair Process Bill

May 02nd, 2018

By Alexandra J. Hoskins, Esq., Staff Attorney, Sexual Assault Legal Institute

By now we’ve all seen the statistics: more than 20% of women and 7% of men experience sexual assault during college.[1]  Sexual assault is a major problem on our nation’s college campuses, including right here in Maryland.  One essential part of fixing that problem is ensuring that every college and university has a strong, fair system in place for adjudicating reports of sexual misconduct.  In the past, the federal law Title IX and its associated guidance provided schools with the tools they needed to make fair determinations in sexual misconduct investigations.  Unfortunately, a lot of that guidance was revoked last fall, and replaced with lower standards that do nothing to protect survivors and disrupt the fairness between the parties to these investigations.  If students cannot rely on their federal government to legislate fair investigative processes in these cases, then we in the states must step up to ensure that each student’s right to an education is equally protected and valued.   

Imagine for a moment that you are a student and you were sexually assaulted by a classmate.  You’ve made the brave decision to report the incident to your school, trusting them to take your story seriously, and to give you a chance to be heard.  Now the school is telling you that you are going to be required to sit down with the person who assaulted you and “work it out”.  Your school also tells you they are not sure how long this whole process will take, and as the months drag by with no progress, you’re starting to lose faith that they are ever going to do something.  In the meantime, you still see your attacker every day in class, and walking around campus.  You don’t feel safe at school anymore, and because your school’s not doing anything about what happened to you, you don’t feel valued or welcomed there either.  Your school also tells you that if they ever get around to adjudicating your case, only your attacker will have the right to appeal the outcome; you will not be given that same right.  And your school has decided to raise the standard of evidence used in cases like yours, so that your attacker’s education is valued more highly than your own.

Does any of that sound fair to you?  I bet it doesn’t.  But all of that is permissible under the federal Title IX guidance released this fall.  That’s why, this session, the Maryland General Assembly passed House Bill 913/Senate Bill 607—to restore protections that have been eliminated at the federal level and strengthen protections for all students. 

Under the new law, Maryland colleges and universities will be required to provide a fair process to all students involved in campus sexual misconduct proceedings, and must treat students with dignity, respect, and sensitivity.  Campus adjudicators will be prohibited from considering evidence of a student’s prior sexual history unless certain specific exceptions apply, and may not consider a student’s mental health history without the consent of the student.  Schools must now provide students with written notice of a final determination, and any party may appeal the determination or sanctions imposed.  Mediation or other informal resolution mechanisms may only be used upon the request of the complaining party, and only with the agreement of all parties.  Mediation may be stopped at any time, and cannot be used in cases involving sexual assault or coercion.  Perhaps most significantly, the new law allows students to request the assistance of an attorney, at no cost to the student, at any point prior to the conclusion of the disciplinary proceedings.

As conversations about sexual assault are happening more and more, and survivors are feeling safer coming forward and telling their stories, we must ensure that colleges and universities in Maryland are prepared to handle those reports with a prompt, fair system that values everyone’s education equally—this law does that.

 

[1] Christopher Krebs, et al., Campus Climate Survey Validation Study Final Technical Report, at 73-74 (2016), available at https://www.bjs.gov/content/pub/pdf/ccsvsftr.pdf.

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