We would like to thank Foley Summer Associate Tori Breese for her contributions to this article.
Sexual misconduct on college campuses remains prevalent: recent studies show that 13% of students have reported nonconsensual sexual contact during college, yet only 20% of female student victims report such incidents to law enforcement. To further the goals of increased safety and equity for students at Massachusetts’ institutions of higher education, the commonwealth enacted the Campus Sexual Violence Act. Effective August 1, 2021, this landmark law is the state analogue to Title IX, the federal law banning sex discrimination in education. The Campus Sexual Violence Act, which applies to public and independent institutions of higher education that are physically located in Massachusetts and have degree-granting authority, goes above and beyond Title IX by imposing additional requirements, such as mandatory sexual misconduct training for both students and employees.
The new law requires Massachusetts colleges and universities to provide comprehensive sexual misconduct training to all new students and employees within 45 days of their matriculation or employment, respectively. This training must generally cover sexual misconduct prevention and awareness, but the law specifies several training requirements. For example, the training must include an explanation of civil rights laws, the role drugs and alcohol play in affecting the ability to consent, bystander intervention, and risk-reduction strategies.
The training for students and employees also must cover the individual institution’s sexual misconduct policies. For example, the training must explain sexual misconduct reporting options, methods, and effects, including confidential and anonymous disclosure. Additionally, the institution must provide information on its procedures for resolving complaints and the range of sanctions it may impose on student or employee perpetrators of sexual misconduct.
In addition to the mandatory training for students and employees, the law requires “not less than annual” training tailored for individuals who participate “in the implementation of an institution’s disciplinary process for addressing complaints of sexual misconduct, including an individual responsible for resolving complaints of reported incidents.” This requirement is broadly drafted and likely means that your HR personnel involved in addressing sexual misconduct complaints need to be trained too. The law requires that these individuals, who may or may not be employees, have training or experience in handling sexual misconduct complaints and the operation of the institution’s disciplinary process. Broadly, this training aims to provide these individuals with strategies to more effectively and fairly resolve complaints.
For example, this training must cover communicating with and interviewing victims of sexual misconduct, particular types of sexual misconduct, the role drugs and alcohol play in consent, the effects of trauma (including neurobiological impacts), how sexual misconduct may affect those with disabilities, and the principles of due process to ensure complaints are resolved fairly. Additionally, the training must include “cultural competence” information on how sexual misconduct may impact individuals differently depending on one’s cultural background, including, but not limited to, national origin, sex, ethnicity, religion, gender identity, gender expression and sexual orientation.
While the Massachusetts Campus Sexual Violence Act is only applicable to Massachusetts colleges and universities, employers in other states with similar laws should take heed, as the new law may be a preview of future trends in this area. For example, Illinois’ “Preventing Sexual Violence in Higher Education Act” requires institutions to provide sexual violence primary prevention and awareness programming for all students who attend one or more classes on campus. Following Massachusetts’ lead, Illinois and other states with similar laws may decide to implement campus employee sexual misconduct training in the future.
Employers in all states can expect Title IX changes on the federal level as well. For example, we have discussed the implementation of gender identity and sexual orientation anti-discrimination provisions in Title IX following last summer’s Bostock decision. Additionally, in June, the U.S. Department of Education held a Title IX comment hearing where several members of the public advocated changing the Trump-era sexual misconduct rules, such as those regarding off-campus reports, hearings, and cross-examination requirements. Looking to the future, the Biden administration may make other Title IX changes that more closely mirror the new Massachusetts Campus Sexual Violence Act.