New bill aims to expand due process rights for students accused of sexual misconduct

By: - February 25, 2020 9:24 am

In 1996, Virginia was thrust to the forefront of an emerging movement focused on sexual assault at colleges and universities. That year, a Virginia Tech student sued the school, accusing administrators of mishandling her sexual assault complaints against two football players.

Over the next two decades, ending and preventing sexual assault on campus has become a nationwide effort. But as schools draft policies to protect survivors, some argue another group has been ignored: the students accused of sexual misconduct.

“Title IX is a broken system,” Joshua Farmer, a Glen Allen-based attorney, said in an email. The federal civil rights law, which prevents discrimination based on sex, has been the basis for hundreds of lawsuits surrounding alleged sexual misconduct on college campuses.

“Its goals are well-intended, but guidance from the federal government is constantly changing,” Farmer continued. “Schools who fail to enforce proper policies may be subject to sanctions. As a result, they’d rather be accused of doing too much than too little.”

That’s led to a central tenet of the debate: whether students accused of sexual misconduct are offered due process by their colleges and universities. In 2015, Virginia lawmakers passed a policy requiring “prominent” transcript notations for students who were suspended, permanently dismissed, or chose to withdraw from school during a sexual violence investigation.

Currently, Virginia colleges have policies in place to expunge those citations for students who re-enroll in school and return to “good standing,” said Ashley Lockhart, academic initiatives coordinator for the State Council of Higher Education for Virginia. The definition of “good standing” varies from school to school, but Farmer said it generally applies when students are cleared of sexual misconduct allegations or meet certain conditions set by the university.

Those can include community service, writing an essay, or — in some cases — offering an apology, he added.

What Virginia schools don’t have is a way to expunge transcript notations for students who choose to leave a college or university during a sexual misconduct investigation. Lockhart said there’s currently no state policy that allows universities to remove a notation if a student is suspended and chooses to withdraw from school. That’s the case even if the student meets all the conditions to return to good standing after their suspension.

A new bill — requested by SCHEV and making its way through the General Assembly — would offer a path forward. Under legislation sponsored by Del. Joe Lindsey, D-Norfolk, schools would be required to adopt policies to expunge transcript notations for “good cause shown” after a period of three years.

The bill was passed unanimously by the House in a block vote on Jan. 31. The Senate deferred a vote on the legislation on Monday afternoon.

“We’re asking that institutions be given the opportunity to extend to individuals who have been suspended the due process that’s currently available to students on campus,” said Ellen Plummer, the associate vice provost for academic administration at Virginia Tech, during a Senate committee meeting. While the bill itself offers little guidance for how the policy would be applied, both she and Lockhart said students would have to request the expungement, with a final decision issued by university administrators.

Due process laws focused on the accused have often faced controversy from sexual assault survivors and advocates. Last year, the Virginia Sexual and Domestic Violence Action Alliance opposed more onerous legislation from Lindsey that would have required both parties in a sexual misconduct allegation to face each other in a trial-like proceeding organized by the university.

“We thought it was a really terrible idea,” said Jonathan Yglesias, the policy director for VSDVAA. A formal memo from the advocacy group noted that adversarial tactics could “deeply retraumatize victims of violence.” The bill would effectively task universities with running criminal justice proceedings, Yglesias added — something they’re not set up to do.

Some legislators had concerns that Lindsey’s newest bill would create more complications for victims of sexual violence. In a committee hearing, Sen. Ghazala Hashmi, D-Chesterfield, said the legislation wouldn’t allow survivors to address ongoing concerns or contest their alleged attacker’s appeal for expungement.

But Yglesias said VSDVAA wasn’t taking a position on the bill based on its own skepticism toward transcript notations. While the group isn’t strongly opposed to the policy, Yglesias said there’s no good evidence that the practice discouraged offenders or reduced recidivism on college campuses. Anecdotally, some victims have said it has a chilling effect on their own willingness to come forward or participate in the investigation process.

“We’ve seen people who don’t want to go through with it because they say, ‘The person who did this to me is close to me and I don’t want this to follow them,’” he added. “I think the way this plays out on campus is actually pretty nuanced.”

Title IX policies on-campus have led to multiple lawsuits in Virginia — many of them filed by the accused. Farmer said those kinds of cases now make up about a third of his practice. To date, he’s participated in investigations at eight Virginia colleges, both private and public.

Lindsey named the growing number of lawsuits as another reason for his most legislation. But Farmer had his own doubts that it would offer more due process to accused students if universities continue to maintain individual criteria for determining “good standing.”

“This makes it particularly difficult for students who believe they have been wrongly accused,” he wrote. “If they offer an apology, they are admitting to guilt. If they don’t offer an apology, they may not be returned to good standing. In the meantime, their academic career is in a holding pattern.”

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Kate Masters
Kate Masters

An award-winning reporter, Kate grew up in Northern Virginia before moving to the Midwest, earning her degree in journalism from the University of Missouri. She spent a year covering gun violence and public health for The Trace in Boston before joining The Frederick News-Post in Frederick County, Md. While at the News-Post, she won first place in feature writing and breaking news from the Maryland-Delaware-DC Press Association, and Best in Show for her coverage of the local opioid epidemic. Before joining the Mercury in 2020, she covered state and county politics for the Bethesda Beat in Montgomery County, Md.