Preventing, Reporting, and Responding to Sexual Violence on College Campus – Landmark New Legislation in Massachusetts

  by Paul G. Lannon, Jr.

   Legal Analysis

The Massachusetts Campus Sexual Violence Act

On January 12, 2021, Governor Charles Baker signed the Campus Sexual Violence Act (CSVA), landmark legislation addressing sexual violence on all college and university campuses in the Commonwealth.  See G.L. c. 6, §§ 168D and 168E. The new law, which took effect on August 1, 2021, is the state’s version of Title IX of the Education Amendments of 1972 (“Title IX”). Title IX prohibits sex discrimination, including sexual assault and harassment, in programs and activities at higher education institutions receiving federal aid, and contains additional provisions that focus on preventing, reporting, and responding to sexual assaults and other forms of sexual violence. While the CSVA overlaps with various aspects of Title IX and other federal laws, it imposes further obligations discussed below.

The CSVA applies to public and independent institutions of higher education that are physically located in Massachusetts and have degree-granting authority. Institutions that are online-only, non-degree granting, or located only in other states are not affected. The Massachusetts Department of Higher Education (DHE) issued implementing regulations at 610 C.M.R. 14.00, which took effect on August 20, 2021.

The CSVA applies to “sexual misconduct,” defined broadly to encompass rape, sexual assault, and other forms of sexual violence. While courts have interpreted Title IX to prohibit discrimination based on sexual orientation, gender identity, or gender expression, the CSVA expressly prohibits misconduct based on those personal characteristics. Sexual misconduct for purposes of the CSVA also includes domestic violence, dating violence, and stalking – categories of misconduct and crime specified in the federal Violence Against Women Act, as amended.

What’s New

The CSVA and its implementing regulations impose new obligations on Massachusetts colleges and universities, most notably, to conduct a campus climate survey every four years, implement specific student and employee training programs, enter into a memorandum of understanding with local law enforcement, and submit an annual report to state authorities.

Periodic student surveys

Covered institutions will need to survey all students at least every four years regarding specified campus safety topics. The survey topics extend well beyond the established federal reporting requirements under the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act of 1990, 20 U.S.C. §1092(f) (Clery Act). Institutions will need to survey students not only about instances of sexual misconduct and the circumstances under which they occurred, but also about students’ awareness of institutional policies and procedures, the advice and guidance students received, demographic information, and “perceptions” of campus safety and “confidence” in the institution’s efforts at protection.

A diverse task force, authorized by the CSVA, will develop model questions and recommendations to provide institutions with direction and guidance on effective means for conducting the required surveys. The task force is expected to publish model survey questions and recommendations no later than January 1, 2022. Institutions may develop and use their own surveys, provided they are designed to obtain the data required by the CSVA, meet the quality standards established by the Commissioner of Higher Education, and include a certain subset of model questions. Summaries of survey results must be posted on the institution’s website. There is, as yet, no guidance on what actions, if any, institutions should or must take in response to survey results.

Student and employee training

Covered institutions must provide new students and employees with comprehensive training on sexual misconduct prevention, identification, reporting and response, within 45 days of their matriculation or employment. The training must cover applicable civil rights laws, the role of drugs and alcohol, reporting channels, anonymous methods of reporting, complaint resolution procedures and the range of sanctions, confidential resources, bystander intervention, and risk reduction. Anyone responsible for implementing any part of a sexual misconduct complaint process must also satisfy rigorous training or experience requirements in subject matters that include interviewing witnesses, consent, the impact of drugs and alcohol, the effects of trauma, sensitivity, disabilities, and due process.

One aspect of the required training for responsible officials is the inclusion of cultural competence. Officials must be trained on cultural competence to understand how sexual misconduct may impact people differently depending on their backgrounds.  G.L. c. 6, § 168E(n)(v). It is unclear what cultural competence training will or should encompass. Cultural competence is not defined in the CSVA or the regulations, nor is it part of the Title IX regulatory scheme.

MOU with local law enforcement

Covered institutions are now obligated to contact local law enforcement and attempt in good faith to adopt a memorandum of understanding (MOU) about their respective roles and responsibilities concerning incidents of sexual misconduct on and off campus. G.L. c. 6, § 168E(c); 610 C.M.R. 14.03. Institutions must contact each municipal or state law enforcement agency with jurisdiction on or around the campus. Exact boundaries are not defined, which suggests that institutions should be over inclusive when deciding which law enforcement agencies to contact. Institutions may enter into a single MOU with multiple agencies.

The regulations prescribe the content of each MOU, which “shall” contain primary points of contact, methods for notifying the district attorney’s office, protocols and standards for information sharing, delineation and description of respective jurisdictions including cross-jurisdictional and multijurisdictional responses, and the institution’s responsibilities and procedures under Title IX and other applicable laws. With respect to the last item, presumably institutions may simply refer to their published sexual misconduct prevention and complaint policies, but it is not clear from the regulations whether additional information is necessary.

The DHE will publish on its website whether institutions are in compliance with the MOU requirements. Compliance status will be updated at least annually. Institutions should notify the DHE if any published information is incorrect.

Annual Report

Most colleges and universities are already obligated under the Clery Act to publish a campus security report each October that includes data on crimes occurring on or adjacent to their properties with names and other personally identifiable information removed. 20 U.S.C. § 1092(f)(1). The CSVA adds to those reporting obligations. By December 1 of each year, covered institutions must submit to the DHE the number of sexual misconduct reports, reports that were investigated, students and employees found responsible and not responsible, and the disciplinary actions imposed. The DHE will prescribe the form and manner for submitting such data.

Law enforcement MOUs must be sent to the DHE along with the institution’s annual report.  Institutions are required to list all the law enforcement agencies with jurisdiction on or around their campuses and to certify that they have either entered into a legally compliant MOU with each agency or else have determined that an MOU is “infeasible” for that year. The DHE regulations do not specify who must provide the certification, nor the form or manner by which to submit the certification to the DHE. Further guidance from the DHE is expected prior to the initial December 1 deadline.

In determining whether an MOU is feasible in a given year, institutions may consider various factors, specifically including whether law enforcement refuses to cooperate or fails to respond in a timely manner to reasonable requests from the institution, and whether despite good faith efforts the parties cannot finalize terms that are compliant with the institution’s legal obligations.  Infeasibility determinations must be reported to the DHE with the annual report and must contain “a summary of and attestation to the institution’s good faith efforts” toward obtaining an MOU.  The regulations do not specify who should sign the attestation or what form it should take, but institutions are well advised to maintain detailed records of all efforts to secure an MOU and any responses from law enforcement agencies.

What We Have Seen Before

Not everything in the CSVA is new. Indeed, much of the act is duplicative of Title IX — covered institutions must adopt, implement, and publish accessible policies on sexual misconduct that include prevention measures, confidential and other support resources, and complaint resolution procedures. To avoid conflicts, the new state law requirements are to be interpreted “consistent with federal law and regulation” presumably Title IX, the Clery Act and other applicable laws.

Like Title IX, complaint resolution procedures under the CSVA must provide detailed written notice of the alleged misconduct, presume the respondent is not responsible, provide parties with equal access to evidence from the investigation, prohibit the parties from directly cross-examining the other, permit the parties to have advisors (who may be attorneys) present for any meetings or disciplinary proceedings, provide equal opportunities for appeal if appeals are afforded, and include a written outcome notice within seven days after the disciplinary process is completed. Noticeably absent from the CSVA is the controversial provision in the recently published Title IX regulations requiring live hearings to resolve complaints, nor does the CSVA prescribe a standard of evidence that must be applied, in contrast to the Title IX regulations which permit institutions to choose either the preponderance of the evidence standard or the clear and convincing evidence standard.

The CSVA policy and procedure requirements are comprehensive and should be scrutinized. Of particular note are the following provisions:

• Policies must “comport with best practices and current professional standards,” which implies an obligation to monitor developments in this area from year to year.
• Institutions are obligated to advise students about their options for medical or emergency support, assistance from crisis centers or other counseling services, interim protective measures, protection through law enforcement or the courts, as well as complaint resolution procedures.
• Institutions must provide amnesty from disciplinary sanctions to students who report sexual misconduct, unless their report was not made in good faith or their own misconduct was “egregious” which includes jeopardizing the health and safety of others.
• Institutions must designate at least one confidential resource provider, who is subject to specific training requirements and detailed confidentiality obligations.
• Policies and procedures concerning sexual misconduct reporting and investigation must be emailed to all students and employees by August 20 each year. Before sending these emails, institutions should ensure with legal counsel that their policies and procedures comply with current state and federal requirements.

The CSVA also has more specific notice requirements than Title IX, particularly for websites.  Websites must include the sexual misconduct policies and procedures, the annual campus security report required by the Clery Act, timely warning and emergency notification information as required by the Clery Act, contact information for the Title IX Coordinator and confidential resource provider, medical and “rape kit” resources as well as transportation options, and contact information for a 24-hour hotline for sexual misconduct information.

What’s To Come

The CSVA contains no definitions of consent, affirmative consent, or revocation of consent; consequently, Massachusetts institutions retain flexibility to define those terms in their own sexual misconduct policies and procedures. Whether DHE regulations will attempt to define those terms is an open question.

Further guidance is expected from the DHE and other state agencies over the next several months regarding the form and manner for submitting MOUs, certifications, feasibility reports and annual reports. After initial submissions, institutions should also expect requests for additional information and documentation as compliance standards develop. Institutions are advised to check the DHE’s website regularly for updates.

Efforts at preventing and remedying sexual violence have had varying degrees of success on campuses nationwide. The CSVA is the first attempt by a state to address the problem through comprehensive legislation. The law imposes substantial new compliance obligations on colleges and universities in Massachusetts. Whether it will help or hinder institutional efforts remains to be seen and will depend in large part on how the law is interpreted and enforced by state agencies.

Paul G. Lannon, Jr. is a partner at Holland & Knight where he co-chairs the firm’s national education law practice.  He is the former co-chair of the BBA’s College and University Section and is the editor of the College and University Law Manual (MCLE 2021 edition).