H. R. 3408
IN THE HOUSE OF REPRESENTATIVES
July 29, 2015
Mr. Sessions (for himself and Mrs. Brooks of Indiana) introduced the following bill; which was referred to the Committee on Education and the Workforce
To amend the Higher Education Act of 1965 to protect victims of sexual violence, to improve the adjudication by institutions of higher education of allegations related to sexual violence, and for other purposes.
This Act may be cited as the
Fair Campus Act of 2015.
Institution of higher education requirements for protecting victims of sexual violence and investigating and adjudicating allegations of sexual violence
Title I of the Higher Education Act of 1965 (20 U.S.C. 1001 et seq.) is amended by adding at the end the following new part:
Treatment of Allegations of Sexual Violence
The requirements of this part shall apply to any institution of higher education receiving Federal financial assistance under this Act, including financial assistance provided to students under title IV, other than a foreign institution of higher education.
In this part, the following definitions shall apply:
The term covered allegation means, with respect to an institution of higher education, an allegation that a student of the institution committed an act of sexual violence, or that members of a student organization of the institution or the organization itself committed or were involved in creating a hostile environment resulting in an act of sexual violence.
Institutional disciplinary proceeding
The term institutional disciplinary proceeding means the process by which an institution of higher education investigates and adjudicates a covered allegation and imposes a sanction with respect to the allegation, in accordance with the institution’s own code of conduct or similar internal rules.
The term sexual violence means, with respect to an institution of higher education—
aggravated sexual abuse under section 2241 of title 18, United States Code;
assault resulting in substantial bodily injury under section 113(a)(7) of title 18, United States Code;
battery, as defined under the applicable criminal law of the jurisdiction in which the institution is located;
rape, as defined under the applicable criminal law of the jurisdiction in which the institution is located;
sexual abuse under section 2242 of title 18, United States Code; and
sexual assault, as defined under the applicable criminal law of the jurisdiction in which the institution is located.
Education, reporting, and student care strategies for preventing sexual violence
Each institution of higher education which is subject to this part is encouraged to provide education programs designed to address sexual violence that, at a minimum, provide training for reporting covered allegations, intervening as a bystander, and fostering development of healthy relationships.
Access to programs
The institution is encouraged—
to provide access to the programs required under this subsection for each student during each academic year; and
to ensure new students are made aware of the programs and can access them as soon as possible after beginning the course of study at the institution.
Each institution of higher education which is subject to this part shall devote appropriate resources for the care, support, and guidance for students affected by sexual violence.
Role of Volunteer Advisors to Student Organizations
An institution of higher education which is subject to this part—
may not designate an adult volunteer advisor to a student organization, or any employee of a student organization who is not also an employee of the institution, as a campus security authority under section 485 or regulations implementing that section; and
may not deny recognition to a student organization because an advisor or employee described in paragraph (1) does not register or serve as a campus security authority under section 485 or regulations implementing that section.
Each institution of higher education which is subject to this part shall provide appropriate annual training to campus security personnel, campus disciplinary committee members, and other relevant institutional personnel regarding the requirements of this part, and shall at a minimum require each student who serves as a resident advisor in housing facilities which are owned or supervised by the institution to participate in this training.
Due process requirements for institutional disciplinary proceedings
Due process rights
Except as provided with respect to interim sanctions under section 164, each institution of higher education which is subject to this part may not impose any sanction on any person, including a student organization, in response to a covered allegation which is reported to the institution unless the sanction is imposed under a formal hearing or similar adjudicatory proceeding, in accordance with institutional disciplinary proceedings that meet each of the following requirements:
The institution shall provide all parties to the proceeding with adequate written notice of the allegation not later than 2 weeks prior to the start of any formal hearing or similar adjudicatory proceeding, and shall include in such notice a description of all rights and responsibilities under the proceeding, a statement of all relevant details of the allegation, and a specific statement of the sanctions which may be imposed.
The institution shall provide each person against whom the allegation is made with a meaningful opportunity to admit or contest the allegation.
The institution shall ensure that all parties to the proceeding have access to all material evidence, including both inculpatory and exculpatory evidence, not later than one week prior to the start of any formal hearing or similar adjudicatory proceeding. Such evidence may include but is not limited to complainant statements, third-party witness statements, electronically stored information, written communications, social media posts, and demonstrative evidence.
The institution shall permit each party to the proceeding to be represented, at the sole expense of the party, by an attorney or other advocate for the duration of the proceeding, including during the investigation of the allegation and other preliminary stages prior to a formal hearing or similar adjudicatory proceeding, and shall permit the attorney or other advocate to ask questions in the proceeding, file relevant papers, examine evidence, and examine witnesses (subject to paragraph (5)).
The institution shall permit each party to the proceeding to safely confront witnesses, including the complainant, in an appropriate manner, including by submitting written questions to be asked by the person serving as the adjudicator in any formal hearing or similar adjudicatory proceeding, except that it shall presumptively improper for any person to make any inquiry about the sexual history of the individual reporting the covered allegation (other than an inquiry made by the individual against whom the allegation is made, or such individual’s counsel or advocate, about the sexual history between such individual and the individual reporting the covered allegation).
The institution shall ensure that the proceeding is carried out free from conflicts of interest by ensuring that there is no commingling of administrative or adjudicative roles. For purposes of this paragraph, an institution shall be considered to commingle such roles if any individual carries out more than one of the following roles with respect to the proceeding:
Victim counselor and victim advocate.
Standard of proof
An institution of higher education may establish and apply such standard of proof as it considers appropriate for purposes of any adjudication carried out as part of an institutional disciplinary proceeding under this section.
Private right of action
Any individual who is aggrieved by a decision to impose a sanction under an institutional disciplinary proceeding under this section may bring a civil action in an appropriate district court of the United States, but only if the action is brought not later than 1 year after the date on which the individual received final notice of the sanction imposed on the individual under the proceeding.
Standard for review
In any action brought under this subsection, the court may find for the plaintiff only if the court finds that the imposition of the sanction was arbitrary, capricious, or contrary to law.
As soon as practicable after a civil action is filed under this subsection, the institution of higher education involved shall forward the administrative record of the institutional disciplinary proceeding to the court.
Damages and prevailing party fees
In any civil action under this subsection, the court may award the prevailing party (other than the institution of higher education) compensatory damages, reasonable court costs, attorney fees, including expert fees, and any other relief in equity or law that the court deems appropriate.
Publication in Student Handbook
Each institution of higher education which is subject to this part shall publish annually in the institution’s Student Handbook (or equivalent publication) a statement of the procedures applicable to institutional disciplinary proceedings under this section, and shall publish such statement in the form of a contract between the institution and its students and student organizations.
No Right to Paid Advocate
Nothing in this section shall be construed to create a right for any individual to be represented by an attorney or other advocate at an institution of higher education’s expense.
Special rules for imposition of interim sanctions
Permitting Institution To Impose Interim Sanctions
Notwithstanding section 163, an institution may impose interim sanctions against the subject of the allegation with respect to the allegation (including temporary suspensions, no contact orders, adjustments of class schedules, or changes in housing assignments) and carry out investigations and adjudications with respect to the imposition of such sanctions, but only if the institution determines that the imposition of such a sanction is a reasonable measure to promote campus safety and student well-being.
Special rules for duration of periods of temporary suspensions
Subject to paragraph (3), if the subject of an allegation is a student, an institution may impose a temporary suspension for a period of not more than 15 days as an interim sanction under this subsection, and may extend the suspension for additional periods of not more than 30 days per period if, pursuant to a hearing held in accordance with the requirements of section 163 for each such additional period, the institution finds that extension is necessary because the student poses an immediate threat to campus safety and student well-being.
If the subject of an allegation is a student organization, an institution may impose a temporary suspension for a period of not more than 10 days on the operations of the organization as an interim sanction under this subsection, but only if the institution determines that the organization has engaged in activity that presents a significant risk to the health and physical safety of campus community members, and that the imposition of the suspension is not done merely for punitive purposes.
Period in which interim sanction is in effect
An interim sanction imposed under this subsection with respect to an allegation shall terminate no later than the conclusion of the proceedings carried out in accordance with section 163.
Prohibiting imposition of interim sanctions upon joint request of alleged victim and law enforcement
An institution may not impose an interim sanction under this subsection with respect to a covered allegation during any period for which the alleged victim and the law enforcement agency which is investigating the allegation submit a joint request to the institution to not impose such an interim sanction.
No institution of higher education which is subject to this part shall be considered to have violated any provision of title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.) or any policy or regulation implementing any such provision on the grounds that the institution deferred to a law enforcement investigation at the request of law enforcement personnel, to the extent that the institution was prohibited under this section from initiating or carrying out any institutional disciplinary proceeding with respect to the allegation.
An institution of higher education which is subject to this part may not impose a sanction on a student who is a victim of, or a bystander witness to, an act of sexual violence on the grounds that the student engaged in conduct prohibited under the institution’s code of conduct (other than violent conduct) if the institution learned that the student engaged in such conduct as part of a report of a covered allegation which was made in good faith by the student to an agent of the institution.
No Effect on Civil Remedies
Nothing in this section or section 163 may be construed to limit the authority of any person to seek a civil remedy in a court of competent jurisdiction with respect to any covered allegation.
Preservation of single-sex exemption for student organizations
Restatement of Congressional Position on Title IX and Single-Sex Organizations
Congress finds as follows:
The enactment of title IX of the Education Amendments of 1972 (commonly known as
title IX) continues to be a vital element of ensuring all Americans have equal access to higher education.
The exemption under title IX that allows single-sex organizations to continue to flourish at institutions of higher education is still essential to developing a wide range of enrichment opportunities for students to learn and grow.
While title IX has done much to provide opportunities for women and men alike, the single-sex exemption is a part of that tapestry of opportunities, and institutions of higher education may not take actions that undermine this single-sex exemption.
Prohibiting Institutions From Requiring Single-Sex Student Organizations To Waive Title IX Protections
An institution of higher education which is subject to this part may not—
require a student organization which is authorized under section 901(a)(6)(A) of the Education Amendments of 1972 (20 U.S.C. 1681(a)(6)(A)) to limit its membership to individuals of one sex to admit individuals as members who do not meet the organization’s membership requirements;
compel a student organization or the governing body of a student organization that is itself comprised of single-sex organizations to accept organizations or individuals that do not meet the organization’s or governing body’s membership qualifications; or
require an organization which is covered by section 901(a)(6)(A) of the Education Amendments of 1972 (20 U.S.C. 1681(a)(6)(A)) to waive its coverage under such section as a disciplinary or punitive measure.
The amendments made by this section shall apply with respect to allegations made on or after the expiration of the 1-year period that begins on the date of the enactment of this Act.