JEFFERSON CITY, Mo. — In a standing-room-only public hearing, dozens listened intently as witnesses tried to explain the ins and outs of a bill that would alter the process for which colleges investigate sexual misconduct.
On Tuesday night, the Missouri House Judiciary Committee held a public hearing on HB 573, sponsored by Rep. Dean Dohrman. The proposal is a companion bill to Sen. Gary Romine’s SB 259, which has passed out a Senate committee.
The proposal would make significant changes to how complaints involving Title IX would be handled on college campuses. Alterations to the process would include unifying the system statewide, enable lawyers to speak for clients, and ensure due process is followed.
“HB 573 would bring back the very basic tenant of due process,” said Dohrman. “[This will] ensure justice is indeed administered for all.”
Over the course of nearly two hours, those that have personal experience with the current system laid out issues they have with the current Title IX process and issues they have with the bill as written.
“I am here to testify basically in favor of the House bill,” said Mike Colona, a St. Louis attorney and former state representative.
Part of his role as a lawyer has been to represent students involved in Title IX investigations and subsequent hearings at institutes of high learning. And it’s from those experiences he has identified issues with the current process.
There is no uniformed set of procedures from college to college. Some schools use a single investigator, some use multiple investigators. In some schools, not cooperating with an investigation is a conduct violation, but not at others. Colona referred to the varying guidelines as “bad.”
He also pointed out that attorneys are not allowed to truly represent their client in these hearings. For example, he could only write questions down or issue advice to his client instead of being about to speak for his client and answer or not answer questions.
Colona likened his role in Title IX to that of a support person or support animal.
“I am there just as a pretty face to smile and tell my client everything is going to be okay,” said Colona. “I don’t mean to be flippant, but that is the way we have been treated.”
Those are specific issues the measure addresses, according to supporters. The proposal creates a uniformed process throughout the state, allows lawyers to represent clients in proceedings, and ensures that students have access to all information in the case in a timely manner.
Concerns about the inability to ferret out potential bias or conflicts of interest from decision-making panels were also brought up. According to those who testified in support of the bill, there is no mechanism set up to request a change in individuals hearing the case if someone on the panel is friends with the accuser or accused, or has some known bias on the subject.
Rep. Gina Mitten pointed out that the bill does not address impartiality problems with those presiding over hearings. While it does give those involved in the case the option to transfer to the Administrative Hearing Commission, the measure doesn’t have a mechanism to avoid bias or conflicts of interest within that state panel.
There were several other concerns raised with the measure, from those testifying for and against the bill.
One point raised involved what could be submitted into evidence under the proposal. Since the measure specifically states that no evidence can be repressed and makes no applicability consensions, completely irrelevant information or hearsay could be presented on a never-ending scale.
“It would open the door of limitless evidence,” said Andy Hays, Title IX coordinator at the University of Missouri and former assistant prosecuting attorney in Boone County.
There is no applicability for rape-shield laws, which protects victims of sexual assault or harassment from being asked questions about their past sexual encounters, their past relationships, unrelated social media posts, or what kind of clothing they were wearing.
Another concern was that the identity of those involved would be made public. Under the proposal, either the accused or accuser can request that the case goes to the Administrative Hearing Commission at any point, which would make the proceedings public.
“There is nothing in the bill that deals with confidentiality,” said Colona. “These proceedings should be confidential.”
Creating a new cause of action against those who file a complaint, but may not have a preponderance of the evidence, raised flags for several people on the committee and testifying on the bill.
Mitten pointed out that a few years back, with SB 43, the General Assembly took away a victim of sexual harassment ability to pursue a civil cause of action against their alleged abuser.
She went on the note that those who are falsely accused can sue for defamation and a new cause of action is unneeded.
“I don’t think you need a private cause of action,” said Colona.
Hays sought to clarify what she believes is a misconception with Title IX cases. She said that people are not getting “railroaded in investigations” and that expulsion is extremely rare. More often than not issues can be resolved by changing classes or dorms, or other informal steps, according to Hays.
In the previous year, the University of Missouri had 750 alleged policy violations — which go far beyond Title IX — and 46 investigations which resulted in 11 finds of violations. No person was expelled.
These proceedings are alleged conduct violations and not criminal cases when handled by the university. One of the biggest pieces of why students report to her office, and not the police, is victims of rape are looking for a quicker resolution process with less intimate details being made public. Some elements of a criminal trial are humiliating, she noted
“It is a photo of their vagina that is going to be blown up on a screen in a courtroom that is open to 12 jurors and a packed courtroom,” said Hays. “That is a strong reason why people don’t want to participate in a criminal process.”
The other issue raised was that the proposal would encompass private colleges and not just public universities.
“Can you point to me in the Constitution of the United States or any law in the state of Missouri that entitles a student to enroll in a college,” Rep. Mark Elbracht asked. “What we are trying to do is enshrine due process of law rights to private college disciplinary hearings…can you imagine a larger government overreach than that?”
Alisha Shurr is a reporter for the Missouri Times and Missouri Times Magazine. She joined the Missouri Times in January 2018 after working as a copy editor for her hometown newspaper in Southern Oregon. Alisha is a graduate of Kansas State University. Contact Alisha at firstname.lastname@example.org.