Massachusetts Senate Votes to Kill Due Process in Campus Sexual Assault Tribunals

  BOSTON — A bill that addresses campus sexual assault and harassment allegations swept through the Senate in a unanimous vote this week, but a close inspection of the language suggests it may open up the Bay State’s colleges and universities to a batch of lawsuits from the accused.

The unintended consequences stemming from the measure, titled “An Act Relative to Sexual Violence on College Campuses,” could be similar to the legal ramifications that dogged former President Barack Obama’s Title IX directive instructing colleges and universities to rely on a “preponderance of the evidence” standard instead of due process.

The Obama-era guideline on how colleges should handle allegations of sexual assault was recently rescinded by current federal education secretary Betsy DeVos. But Massachusetts legislators appear to be moving toward enacting something similar here. The bill the state Senate passed Thursday is on the verge of being adopted as Massachusetts state law, should the Democrat-controlled House approve it.

 None of the Senate’s six Republicans offered any opposition. Senate Minority Leader Bruce Tarr, who according to the State House News Service’s session transcript spent a chunk of his time at the microphone complimenting various colleagues’ wardrobe choices, said at one point he wanted the vote to be unanimous.

The 13-page bill, sponsored by state Senator Michael Moore (D-Millbury), calls “for the use of a preponderance-of-the-evidence standard to resolve complaints” and stipulates that colleges “may establish rules regarding how the proceedings will be conducted.”

The rules, according to Moore’s bill, can include “guidelines on the extent to which the advisor or support person for each party may participate in a meeting or disciplinary proceeding and any limitations on participation which shall apply equally to both parties.”

That stipulation, however, indicates that an accused person’s representative can be barred from asking the accuser questions.

“The reporting party and the responding party shall not be allowed to directly question each other during disciplinary proceedings,” the legislation states.

Students and employees would also be given the option of declining to notify police, although colleges would be ordered to “adopt policies and procedures with local law enforcement agencies to establish the respective roles and responsibilities of each party related to the prevention of and response to on-campus and off-campus sexual assault.”

Moore’s legislation also mandates that Bay State students and college employees undergo yearly sexual violence awareness and prevention training. Colleges and universities would also be required to post and disseminate their sexual assault policies, though Moore and other lawmakers have not identified any institutions in the commonwealth that do not already do so.

The legislation would also create a new administrative position at the state Department of Elementary and Secondary Education — “a campus safety adviser who shall have experience in public safety policy to facilitate and advance statewide campus safety at public and private institutions of higher education.”

The cost of implementation is projected to be $1 million annually, according to the Senate clerk’s office:

Several House Republicans reached Friday said they could not comment on the bill, saying they have not yet reviewed the language.

During an interview with the State House News Service in July, Moore expressed his “fear” that “students are being directed to handle things administratively and not pursue the legal aspect of sexual assault.”

“Why would sexual assault be going through an administrative board when it is something law enforcement would be involved in?”

Moore also specified at the time that his bill is intended to serve as a direct response to the end of the Obama-era guidelines.

“There are a lot of philosophical changes in how regulations are being applied and federally this is one area they talk about looking at,” he said at the time. “We don’t know what could happen with regulations are far as Title IX goes and by passing this we would be able to codify protections students currently have and enhance them.”

DeVos announced in September that the Obama-era mandate dumping due process in favor a “preponderance of the evidence standard” was being scrapped.

During Senate debate Thursday, Moore said his bill “represents how schools will protect some of the most precious people, our children,” and added that it will “hopefully help lift a veil of secrecy and empower our children in times of crisis.”

Moore mentioned the change in federal Title IX guidelines under DeVos and argued the new interpretation is “creating uncertainty for our students, making this a critical time for Massachusetts to ensure fair procedures and appropriate services at our higher education institutions.”

He cited the 2015 Association of American Universities’ sexual assault survey, which he noted found that nearly a quarter of the 150,000 female undergraduates who took part reported experiencing non-consensual sexual contact. Moore did not mention that the survey was sent out to more 800,000 students, generating a response rate of less than 20 percent.

The survey has also been scrutinized, with critics noting that it deliberately omitted words such as “rape” and “assault” and alleging that the omissions were intended to induce more startling results.

Moore added that the bill requires that all disciplinary proceedings provide equal information on evidence and an equal opportunity to appeal, but only “if the school permits appeals.”

“Passing this bill will ensure we will not be deterred by the current administration’s retreat from protecting our students,” Moore said.

Yet in Massachusetts, especially, an alarming number of lawsuits filed by accused parties in response to their treatment at the hands of colleges and universities have seen settlements. In a federal complaint involving Brandeis University, a former student who accused school administrators of “railroading” him saw Massachusetts U.S. District Court Judge Dennis Saylor reject Brandeis’s motion to dismiss.

In a story first reported by NewBostonPost, Saylor in his 89-page opinion ripped Brandeis administrators for “appear[ing] to have substantially impaired, if not eliminated, an accused student’s right to a fair and impartial process.”

In May 2016, three prominent Harvard Law School professors issued a public letter to Obama urging him to reconsider his administration’s “preponderance of the evidence” stance, arguing that it “unlawfully expanded the nature and scope of institutions’ responsibility to address sexual harassment.”

Yet while Obama’s guidelines discouraged direct cross examinations during the course of adjudicating sexual assault allegations, Moore’s bill specifically prohibits the option.

Most recently, Amherst College in August reached a settlement with a student who had been barred from using his accuser’s own admissions in his effort to prove his innocence.

None of these instances, however, were mentioned during Thursday’s Senate session. The lone amendment offered by Republicans came from state Senator Donald Humason (R-Westfield), who successfully proposed forming a task force to examine the merits of allowing female students to carry mace or pepper spray on campus.

Others who spoke in support of Moore’s bill included state senators Eric Lesser (D-Longmeadow), a former Obama White House staffer; Cynthia Stone Creem (D-Newton); and Harriette Chandler (D-Worcester).

Creem said the bill “gives the Senate an opportunity to say things are changing” while Chandler specifically called out DeVos in her remarks.

“We are becoming uncomfortably aware of how Washington feels about protecting our female students,” Creem said. “Our secretary of education made those feelings all too apparent.

“Massachusetts, the first in many causes, needs to stand up today.”

Tarr said the following after Creem delivered her remarks:

“I want to thank the gentlelady for her explanation and the work she’s done with the gentleman from Worcester [Moore] to weave together a comprehensive bill addressing an important priority, to ensure our college campuses are places where there is a safe environment, a feeling of safety, so those present can be engaged without consideration of threats of sexual violence,” Tarr said. “I hope the bill as amended is adopted. I know a roll call has been ordered on the bill, and I hope that when you bang the gavel it will be unanimous.”

California’s state Legislature has already passed similar legislation, but last month Democratic Governor Jerry Brown vetoed the measure.

Brown stated in his veto message that “on the one side are complainants who come forward to seek justice and protection; on the other side stand accused students, who, guilty or not, must be treated fairly and with the presumption of innocence until the facts speak otherwise,” noting that “there are victims who never come forward, and perpetrators who walk free.”

Brown then mentioned the affirmative consent proposal he signed into law in 2014, which made California the first state to require university and college students to provide verbal confirmation and consent to sexual activity. He wrote in his letter about how the new law sparked “thoughtful legal minds” to “increasingly question whether federal and state actions to prevent and redress sexual harassment and assault — well-intentioned as they are — have also unintentionally resulted in some colleges’ failure to uphold due process for accused students.”

Brown in his note added that his administration had “no insight into how many formal investigations result in expulsion, what circumstances lead to expulsion, or whether there is disproportionate impact on race or ethnicity.”

“We may need more statutory requirements than what this bill contemplates. We may need fewer. Or still yet, we may need simply to fine tune what we have. It is time to pause and survey the land.”

K.C. Johnson, who co-authored a non-fiction work that dissected the 2006 false rape claims lodged against several Duke University lacrosse players, told New Boston Post on Friday that the law Beacon Hill senators passed Thursday is even more far-reaching than the Calilornia bill vetoed by Brown.

“If you look at the state’s that have passed laws, California has affirmative consent laws — New York and Connecticut have campus sexual assault laws, and Minnesota and Illinois have training-related laws — if this is passed it would be the most due-process-unfriendly of any of them,” said Johnson, who was raised in Leominster, Massachusetts and teaches history at Brooklyn College.

Asked to comment on Brown’s veto, Johnson said the California Democrat is correct about “what he says regarding the dangers of due process deprivation.”

Another part about Brown’s message that stood out to Johnson was the racial factor the governor touched upon.

“He mentions it and it seems to play a role and you would think Massachusetts would have considered that,” said Johnson, who has researched campus sexual assault matters extensively. “The interesting thing about Massachusetts was that there was zero legislative opposition to it in the Senate. No debate whatsoever. Obviously Massachusetts Republicans seem to be a little more liberal than their California counterparts.”

Moore’s bill passed unanimously on a 39-0 vote.