On August 10, 2021, Louisiana’s top higher education board enacted new rules governing how college campuses must respond to and report sexual misconduct and harassment complaints, with training for school administrators scheduled for this week. These rules are in response to an independent report that documented years of Louisiana State University’s mishandling of allegations of rape, assault, and other abuse, especially in its athletic department. The report, which was greeted with a great deal of anger and concern, caused legislatures to leap into action. When discussing the importance of these regulations, board Chairman Blake David said, “We felt it was critical to have the new policy in place before our campuses reopen for the fall semester in the next few weeks. And while the law prescribed a January deadline for having these new policies in place, we have training scheduled for next week,” and “there’s no time to waste when it comes to protecting our students.”
The regulations, which outline who is required to report allegations and what steps must be followed for dealing with claims, took just months to be adopted. Under the new laws and regulations, colleges must fire employees who do not report sexual misconduct, harassment, exploitation, and abuse allegations. Schools must also withhold transcripts or add notifications on transcripts for students who are under investigation for sexual misconduct and seeking transfer to another school. The withholding of transcripts will be a regulation to watch, as it contradicts the currently Title IX regulations, a federal law that mandates that schools investigate and determine allegations of sexual misconduct in a certain fashion. Under the current Title IX regulations, schools must refrain from imposing any disciplinary sanctions or taking other actions that are not supportive measures until a grievance process is conducted. It will likely be argued that withholding one’s transcript, thereby disabling their ability to transfer schools, amounts to a punitive disciplinary sanction.
Louisiana colleges will also be mandated to publish detailed reports online about its security policies and crime statistics. If a school fails to do so, it will be ineligible to borrow money for state-financed construction projects. The Board of Regents will submit annual reports about campus incidents to the Governor and legislative leaders. Colleges must submit more detailed campus-specific policies for handling and reporting misconduct allegations to the Board by December 2021 for compliance review.
These new rules make one thing clear – the pressure is on to curb sexual misconduct on campus. This pressure seems analogous to the pressure that was applied to schools nationwide by the 2011 Dear Colleague Letter, which required schools to create Title IX compliant policies for investigating and determining discipline for allegations of sexual misconduct. While the goal of the Letter was honorable, it led to a diminution of due process rights for accused students and staff, as schools tried to curb sexual misconduct by stripping those accused of a meaningful opportunity to defend themselves.
While curbing sexual misconduct should be at the top of the priority list for schools, the rights of the accused cannot be ignored. In recent years, federal courts around the country have upheld various due process rights afforded to accused students and staff facing allegations of sexual misconduct. In addition to the judicial opinions, the 2020 Title IX regulations provide those accused with significant rights and a fairer opportunity to defend themselves against these allegations. Schools in Louisiana that receive federal funding are subject to Title IX regulations and must provide those accused with the due process outlined in the regulations. Still, real concern remains that the rules promulgated by Louisiana may lead to accused students and staff being found responsible of misconduct and/or sanctioned, regardless of whether the facts support the conclusion. In these situations, it is imperative that students and staff know their rights under Title IX and have an adviser who can fight to secure those rights.
At Friedman & Nemecek, LLC, our Title IX attorneys have years of experience dealing with the fluid regulations presented by political changes, court decisions, and securing the rights of all parties at the school level. As schools are returning to campus this fall, our attorneys will be prepared to help with any issues pertaining to Title IX regulations and procedures. If you have questions regarding a student’s rights in Title IX proceedings, or you have been subjected to or accused of sexual misconduct, sexual assault, dating violence, or sexual harassment on campus, please call Friedman & Nemecek, L.L.C., in Cleveland, Ohio at 216-928-7700 for a free initial consultation.