According to a recently published Dallas Morning News article, “fifteen percent of undergraduate female students surveyed at the University of Texas at Austin said they’ve been raped, according to a statewide study that the UT System will soon release.” The study is reported to be a comprehensive survey of 28,000 students during the 2015 academic year, at 13 UT campuses. Calling the survey “a wake-up call” and “a tremendous concern”, UT-Austin president Gregory Fenves is quoted as saying “the first injustice committed in every assault or inappropriate behavior is the act itself, but the second injustice is often the silence of the community surrounding the survivor.”

Through its release of a “Dear Colleague” letter in 2011, the United States Department of Education’s Office of Civil Rights previously issued a wake-up call to federally funded colleges (which includes the colleges in the UT System),  by harshly admonishing  them to swiftly and strictly respond to allegations complaining of sexual assault, sexual violence, sexual harassment and other acts of misconduct that may be sexual or gender-based in orientation — as a condition of continuing to receive federal funding.  Since then, many schools have found it difficult in the face of increasing pressure upon them to do, to balance their obligations to aggressively respond to complaints of sexually oriented misconduct with the legal and procedural rights of students who complain about the misconduct, and those students who are accused of misconduct.

Students often choose not to report or officially complain about rape and other instances of sexually oriented misconduct fearing retaliation by school officials or peers, or other adverse consequences of reporting.  Rather than risk suffering such adverse consequences of reporting misconduct, or officially complaining, these students silently suffer increased fear, stress, anxiety, and declines in social popularity and academic performance. This often leads to their departures from the schools where they were assaulted, without receiving a remedy for the harm they have experienced.

Many colleges and universities have not been passive about responding to complaints of sexual misconduct.  To the contrary, heeding the 2011 wake-up call and warning that their federal funding is dependent upon aggressive action taken in response to reported sexual misconduct, many schools have  become extremely aggressive in pursuing investigations, often ignoring the due process rights of accused students, including their rights under Title IX to a fair investigation and disciplinary process.   On an interim and permanent basis, often pre-judging guilt without evidence or a hearing of any kind, school officials quickly and arbitrarily penalize accused students, based on allegations alone. And the penalties are harsh and life altering.  They include expulsions, suspensions, and permanent marks on transcripts that impede admission to other schools, graduate programs, or even job offers.  While the reputations of the accused are often severely damaged, these aggressively acting schools happily report their swift and harsh responses to alleged misconduct to the Department of Education, thereby preserving their coveted federal funding.

According to the Dallas Morning News article, as a result of the UT System survey, the Texas Senate is now debating four bills that are designed to change the way public and private colleges in Texas deal with sexual assault reporting, and prevention. Some of these bills seek to harshly penalize schools and school officials for their failures to report or aggressively respond to sexual misconduct occurrences, subjecting them to both criminal and monetary sanctions.   And, William McRaven, UT System Chancellor, reportedly stated “we’re not going to run from this. We’re not going to hide from this.  We are going to take it head on and address all of these issues.”

Colleges already have a legal and ethical responsibility to promptly take action to eliminate sexual misconduct, prevent it from happening again, and to protect victims from retaliation and a hostile environment that can negatively affect their educational experiences.  They likewise already have a legal and ethical responsibility to accused students to ensure that any investigations into alleged misconduct, and disciplinary action that is undertaken, are fair, reasonable and non-discriminatory.

So what will be the impact of the newly proposed legislation in Texas?  Will it simply encourage and lead to reporting of misconduct that is not being reported and lead to appropriate remedial action?  Will it encourage colleges receiving complaints – especially those that are involve controversial or unpopular facts—to address them in a more serious manner?  Or, will it cause colleges and college officials—fearing criminal or monetary reprisals to become more concerned about aggressively rushing to impose harsh punishments, and less concerned about complying with the legal rights of those who are accused?

One thing is for certain—the issues of reporting misconduct to colleges and requiring those colleges to respond in a legally compliant manner, while protecting the rights of the accusers and the accused, will remain controversial issues.  And they most assuredly will continue to be the subject of intense scrutiny in the courts.