Highlights

Legislation

  • Bills have been introduced in the Mississippi, Vermont, and Missouri legislatures to address sexual violence on college campuses.
  • A bill introduced in the New York legislature would make hazing a crime and require secondary and postsecondary schools to provide hazing education.

Legal Action 

  • A Massachusetts federal district court concluded that employees may seek damages for Title IX violations in employment discrimination lawsuits.
  • Fines for Clery Act violations were increased to $59,017 for each violation.

Policy

  • The Biden-Harris administration announced senior political appointees to lead various parts of the U.S. Department of Education.
  • The largest decline in fall 2020 enrollment occurred at community colleges, but community colleges may play an important role in rebuilding the post-pandemic economy

Legislations

Mississippi

A bill (HB0581) introduced year after year by House Judiciary Chairwoman Angela Cockerham (I-Magnolia), was passed by the Mississippi House of Representatives on February 10, and is now being considered by the Senate. If enacted, "The Sexual Assault Response for College Students Act" would require schools to

  • train all employees, student employees, and persons with supervising authority how to assist any student who alleges a violation of the comprehensive policy;
  • apply a preponderance of the evidence standard in disciplinary proceedings involving sexual or relationship misconduct;
  • not compel complainants or respondents to testify in person; and
  • provide an alternative (such as written questions) if it limits or prohibits direct cross-examination of the complainant and respondent.

In addition, this bill would require all Mississippi colleges and universities to adopt a comprehensive policy that

  • prohibits sexual assault, dating violence, domestic violence, sexual exploitation, and stalking, whether it occurs on- or off-campus;
  • requires all employees and contractual/non-contractual workers with teaching or supervisory responsibilities to report sexual or relationship violence, or stalking to the school's Title IX office;
  • defines consent to sexual activity as a voluntary agreement that cannot be given by someone who is incapacitated by drugs or alcohol;
  • provides a confidential advisor to refer survivors, complainants, and respondents to resources, counseling, and mental and physical health support;
  • explains how to report alleged violations of the comprehensive policy; and
  • prohibits retaliation against someone for making a report or taking part in a complaint resolution procedure.

 

Vermont

A bill (H.183) introduced in the Vermont General Assembly creates an Intercollegiate Sexual Violence Prevention Council to create a coordinated response to campus sexual misconduct, which would be responsible for

  • interdisciplinary planning and information sharing to support sexual violence prevention programs on every college campus in Vermont;
  • an annual review of aggregate data collected from climate surveys on sexual violence on college campuses in Vermont; and
  • developing and distributing best practices and recommendations on violence prevention, sexual health education, and strategies for mitigating sexual violence and tertiary violence on college campuses in Vermont.

Beginning in December 2022, the bill would require the Council to submit an annual report to the General Assembly with a summary of the Council's activities and any recommendations for further legislative action.

Missouri

If enacted, Missouri's "Enough is Enough Act" (HB328) would require all public and private colleges and universities to

  • train their employees who interact with students regularly on how to recognize and appropriately address allegations of sexual harassment or violence under Title IX;
  • adopt sexual assault policies derived from evidence-based and peer-reviewed research and annually distribute them to all enrolled students;
  • offer counseling, health, mental health, or other holistic and comprehensive support services to all students affected by sexual harassment or violence, and notify students of campus and community counseling, health, mental health, and other student services;
  • conduct periodic assessments of the institution's efforts to prevent sexual harassment and violence, which would inform future prevention efforts; and
  • submit copies of all student complaints alleging sexual harassment or violence, together with documents related to the investigation of each complaint, to the U.S. Department of Education's Office for Civil Rights.

New York

Identical bills pending in the New York legislature (A3443 and S194) would make hazing a crime and require secondary and post-secondary schools to provide hazing education to all students that covers

  • prevention and awareness,
  • bystander intervention, and
  • institutional hazing policies.

Under the bill, hazing programs would need to be completed within 30 days of enrollment at a college or university, or within 30 days of the start of the secondary school year. Students who fail to complete the program within 30 days would not be allowed to attend school or participate in a local or national organization until the program is completed.

Under the current version of the bill, national organizations would also be required to provide a separate and supplemental hazing education program for members of their local affiliate chapters operating in New York.

In addition, if employees or members of the governing boards of national Greek organizations or institutions of higher education knowingly directed, supervised, or actively participated in the hazing, the bill provides that organization or institution may be fined up to $15,000 for the crime of organizational hazing.

An individual who participated in hazing could be convicted of a personal hazing offense, which would be punishable by a fine of up to $5,000 if it doesn't result in serious bodily injury. Aggravated personal hazing that causes serious bodily injury would be punishable by a fine of up to $15,000, or ten years' imprisonment, or both.

If enacted, this bill would also create a "state anti-hazing fund" with the fines collected for hazing offenses, which would be used for hazing education programs.

Title IX/Clery

Geographic boundaries of the US Coures of Appeals and US District Courts

Title VII Does Not Preempt Employee's Title IX Claim

A federal district court in Massachusetts denied a university's motion to dismiss an associate professor's Title IX and retaliation claims in a private lawsuit seeking monetary damages. The professor served a 30-day suspension after he was found responsible for sexually harassing a student. After returning to campus, he was later terminated because he spent class time discussing the Title IX investigation against him.

The professor sued his university, alleging that the disciplinary proceeding involving allegations of sexual harassment against him made by one of his students was biased and resulted in an erroneous outcome in his case due to gender bias prohibited by Title IX. The complaint also alleged that the university retaliated against him for speaking up about the unfairness of the process when some of his students approached him in class—a protected activity—and violated Title VII when his employment was terminated.

While the U.S. Courts of Appeals for the Fifth and Seventh Circuits have concluded that employees cannot sue for damages under Title IX, the Massachusetts federal district court agreed with the majority of circuits that have decided this issue—the Third, Fourth, and Sixth circuits, as well as another Massachusetts federal district court—that allowed employees to seek damages for Title IX violations in employment discrimination lawsuits.

The Education Department also noted Title IX's protection of employees against discrimination based on sex in its discussion of the 2020 final regulations (see Federal Register, May 19, 2020, at p. 30439), noting that the U.S. Supreme Court concluded that Title IX applied to employee-on-student sexual harassment and that courts have approved of the Department's administrative enforcement of Title IX to protect employees.

The Massachusetts federal district court's decision doesn't settle the question of an employee's right to file a Title IX complaint for damages, but the circuit split raises a Title IX issue that is ripe for Supreme Court review. Another Title IX issue that's a candidate for Supreme Court review involves whether Title IX prohibits discrimination based on sexual orientation and gender identity, consistent with the court's Bostock decision (see the January 26, 2021 HE Brief).

Clery Fines Increase

Last month the amount of the Department of Education's civil fine for Clery Act violations was adjusted for inflation and is now $59,017 for each violation, which can add up over years of campus reporting and other Clery violations as some universities have faced multi-million dollar fines.

Policy

Biden's Education Department Appointees

Among the Biden-Harris administration's list of senior political appointees to lead various parts of the U.S. Department of Education is Michelle Asha Cooper. As deputy assistant secretary for postsecondary education, Cooper will be responsible for higher education operations, but it's suggested that she may have more influence on policy issues than her predecessors. Previously, Cooper was president of the Institute for Higher Education Policy (IHEP), deputy director of the Education Department's Advisory Committee on Student Financial Assistance, and a program associate at the Association of American Colleges and Universities’ Office of Diversity, Equity and Global Initiatives. As president of IHEP, Cooper was involved in research on Pell grants for incarcerated students and wrote a paper outlining a balance of power between the federal government and states to advance a free college policy.

In a podcast—"Equity and Higher Education Policy"— hosted by Inside Higher Ed, Cooper "stressed the importance of dealing with equity, particularly as students struggle during the pandemic." Cooper also said that more needs to be done to address Black and Latinx students' decreasing college enrollment, and how higher education can help close the racial wealth gap.

Other new appointments include:

  • Sheila Nix, Chief of Staff, who previously worked as Chief of Staff to Dr. Jill Biden during the Obama-Biden administration's second term, and served as the U.S. Executive Director of Bono's ONE Campaign.
  • Donna Harris-Aikens, Senior Advisor for Policy and Planning, Office of the Secretary, who previously served as Senior Director for Education Policy and Practice at the National Education Association where she advocated for students, educators, and working families to support equity and excellence in education.
  • Rich Williams, Chief of Staff, Office of Postsecondary Education, who has spent his career working on college affordability, student debt, and consumer protection policies. Most recently, he helped lead an initiative at Pew Charitable Trusts, working to devise policies that better support struggling student loan borrowers.
  • Jasmine Bolton, Senior Counsel, Office for Civil Rights, who previously was a senior staff attorney at the Bail Project; a policy analyst for the Warren for President campaign, where she focused on a broad range of interrelated topics such as criminal justice reform, K-12 education, and rural communities; and worked as a Legal Fellow at the Southern Poverty Law Center, where she focused on educational equity, combating the school-to-prison pipeline, and improving youth access to mental health services.

The Future of Community Colleges

Overall postsecondary enrollment in fall 2020 declined by 2.5 percent, which was nearly twice the enrollment decline reported in fall 2019. The largest decline in enrollment occurred at community colleges, which saw enrollment drop by more than 10% in fall 2020, compared to about a 1% drop in undergraduate enrollments at 4-year institutions. As you drill down into these numbers, there was a 21.7 percent drop overall in college enrollment directly from high school, but the drop in enrollment for graduates at high-poverty high schools was 32.6 percent, compared to a 16.4 percent drop for graduates at low-poverty high schools.

Changes in number of students enrolling in college after high school by high school characteristics.

Source: National Student Clearinghouse

There are, however, signs that community colleges may see increased support from the Biden administration. The Biden campaign's plan for education beyond high school proposes legislation that provides "two years of community college tuition free for hard working students." The plan also includes $8 billion "to help community colleges improve the health and safety of their facilities, and equip their schools with new technology."

The importance of community colleges and career and technical education dominated the discussion of higher education topics at Miguel Cardona's confirmation hearing. And, during a virtual legislative summit hosted by the Association of Community College Trustees and the American Association of Community Colleges, Jill Biden said that free access to community college and training programs will be an important part of rebuilding the economy.

California Governor Gavin Newsom is also focused on community colleges to play a pivotal role in the state's economic recovery by helping support displaced workers and training the post-pandemic workforce. Governor Newsom's 2021-2022 budget proposal includes $380 million for California's 116 community college system with $250 million in emergency financial assistance for students, $100 million for students facing food and housing insecurity, and $30 million for mental health services, internet access, and computer equipment. Newsom noted the number of community college students who dropped out of school because of the pandemic, and included proposals to "re-engage" them.

The University of California and California State University systems are slated for recurring money to fund

  • an initiative to improve student graduation rates;
  • a learning management platform that integrates online courses with the community colleges; and
  • mental health initiatives.