Issues relating to incidents of sexual misconduct on college and university campuses have been in the national discussion for the past several years, particularly following the Department of Education Office for Civil Rights’ issuance of its Dear Colleague Letter in April 2011. The Dear Colleague Letter instructs a college or university to “promptly investigate” allegations of sexual harassment or assault when it “knows, or reasonably should know, about possible harassment” of a student, regardless of whether the harassed student actually makes a complaint. The Dear Colleague Letter further requires colleges and universities to employ the “preponderance of the evidence” standard in the adjudication of sexual misconduct disciplinary charges. Since the Dear Colleague Letter, a significant number of Title IX lawsuits have been filed in federal courts nationally by both complainants and respondents against colleges and universities, which challenge the propriety and timing of measures undertaken during the investigation of a complaint and the disciplinary process. As these cases make their way through the courts and further define Title IX jurisprudence, state legislatures are also considering measures regarding the response to sexual misconduct reports.
This past legislative session, the Georgia legislature considered a bill requiring higher education employees to report suspected felonies to campus or local law enforcement. In addition, the proposed measure sought to limit a college or university’s ability to investigate such cases and required “due process” measures for the accused student before the school could impose discipline or responsive measures. Critics of the legislation, including students who were sexual assault victims, contended that the proposed measures would dispel the reporting of alleged sexual assaults or misconduct and argued that the references to “due process” were not defined as to how such measures should be implemented.
The legislation, known as House Bill 51, passed the Georgia House of Representatives on March 1 by a 155–55 vote, but it was tabled by the Georgia Senate Judiciary Committee. The tabling did not end the legislative review of the measure. In a procedural move to prompt consideration of the legislation, the House affixed its language to a Senate Bill under its consideration, Senate Bill 71, which resulted in its return back to the Senate for further consideration. On the last day of the legislative session on March 31, the Senate did not take action on the returned bill. The leading proponent of the legislation, Representative Earl Ehrhart has stated that he will reintroduce and pursue the legislation during the next session. In the meantime, Representative Ehrhart is the named plaintiff in a lawsuit pending in the United States District Court for the Northern District of Georgia challenging the legality of the Dear Colleague Letter, which OCR issued as a “significant guidance document” and not through the administrative rule making process.