WEST virginia legislature

2019 regular session

Introduced

Senate Bill 479

By Senators Cline, Baldwin, and Woelfel

[Introduced January 30, 2019; Referred
to the Committee on Education; and then to the Committee on the Judiciary]

A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §18B-4-11, relating to requiring each state institution of higher education, on or before a certain date, to adopt and submit to the West Virginia Higher Education Policy Commission a written sexual assault policy that includes certain due process protections in disciplinary proceedings; requiring disciplinary proceedings provisions to include a description of the rights for certain students and to include certain provisions; requiring the disciplinary proceedings provisions to require an institution of higher education to provide certain students with a certain notice, to use a certain standard of proof in certain disciplinary proceedings, to prohibit the use of mediation to resolve certain allegations except under certain circumstances, to prohibit a certain adjudicating official or body from considering certain types of evidence except in certain circumstances, to authorize counsel to be provided to certain students under certain circumstances, to require the institution to pay certain costs and fees except under certain circumstances;  specifying that the institution is not required to pay a student’s attorney’s fees for representation in a criminal or civil matter; and relating to sexual assault and disciplinary proceedings provisions at institutions of higher education.

Be it enacted by the Legislature of West Virginia:

ARTICLE 4. GENERAL ADMINISTRATION.

§18B-4-11. Policy on sexual assault disciplinary proceedings.

(a) The governing board of each state institution of higher education subject to rules of accreditation pursuant to §18B-4-7 of this code, and the governing boards of West Virginia University and Marshall University, shall adopt or revise, on or before August 1, 2019, a campus sexual assault policy that includes all of the following disciplinary proceeding provisions for alleged violation of the sexual assault policy:

(1)  A description of the rights of the student who alleges a violation of or a student who responds to an allegation of a violation of the institution’s sexual assault policy;

(2) Treatment with dignity, respect, and sensitivity by officials of the institution of higher education during all phases of the disciplinary proceedings;

(3) A fair and impartial investigation;

(4) Disciplinary proceedings and resolutions that are prompt and equitable and provide an opportunity for the alleged victim and the alleged violator to be heard;

(5) Timely written notice of:

(A) The reported violation including the date, time, and location of the alleged violation, and the range of potential sanctions associated with the alleged violation;

(B) The student’s rights and responsibilities under the sexual assault policy and information regarding other civil and criminal options;

(C) The date, time, and location of each hearing, meeting, or interview that the student is required or permitted to attend;

(D) A final determination made by the adjudicating official or body regarding whether a sexual assault policy violation occurred and the basis for the determination;

(E) Any sanction imposed; and

(F) The student’s rights to appeal and a description of the appeal process;

(6) Participation in the disciplinary proceedings, including:

(A) Access to the case file and evidence regarding the incident obtained by the institution of higher education during the investigation or considered by the adjudicating official or body, with personally identifiable or other information redacted as required by applicable law;

(B) Offering testimony at a hearing or, if the institution’s process does not include a hearing, to the adjudicating official;

(C) Submitting evidence, witness lists, and suggested specific questions to be posed to the other student involved in the disciplinary proceedings by investigators or the adjudicating official or body;

(D) Providing and reviewing testimony electronically or in a way in which the students are not required to be in the physical presence of the other;

(E) Reviewing and providing written responses to reports and proposed findings; and

(F) Appealing a determination or a sanction;

(7) Assistance by a licensed attorney, an advocate supervised by an attorney, or a trained advocate throughout the disciplinary proceedings, including an attorney or advocate’s:

(A) Attendance at the hearings, meetings, and interviews with the student;

(B) Private consultations with the student during hearings, meetings, and interviews, except during questioning of the student at a hearing; and

(C) Assistance with the student’s exercise of any right during the disciplinary proceedings;

(8) Despite a student’s choice under subdivision (b)(5) of this section, the presence of no more than two people, including a personal supporter of the student’s choice, an attorney, or an advocate, at any hearing, meeting or interview during the disciplinary proceedings.

(b) The disciplinary proceedings provisions required under subsection (a) of this section shall:

(1) Require the institution of higher education to provide each student in the disciplinary proceedings with notice of:

(A) The student’s right to the assistance of an attorney or advocate;

(B) Legal service organizations and referral services available to the student; and

(C) The student’s right to have a personal supporter of the student’s choice at any hearing, meeting, or interview during the disciplinary proceedings;

(2) Require the use of the same standard of proof used in other disciplinary proceedings at the institution of higher education for allegations of code of conduct violations involving discrimination or harm to another individual;

(3) Except as provided in subsection (c) of this section, prohibit the institution of higher learning from using mediation to resolve an allegation of a violation of the institution’s sexual assault policy;

(4) Prohibit the adjudicating official or body from considering certain evidence, including:

(A) A student’s prior sexual history with an individual other than a party to the proceedings, except to:

(i) Prove the source of injury;

(ii) Prove prior sexual misconduct;

(iii) Support a claim that a student has an ulterior motive; or

(iv) Impeach a student’s credibility after that student has put his or her own prior sexual conduct at issue; and

(B) A student’s history of mental health, counseling, treatment, or diagnosis, unless the student consents; and

(5) Authorize students to access counsel paid for by the institution, as described under subsection (d) of this section, for:

(A) A current or former student who makes a complaint on which a formal investigation under Title IX of the Education Amendments Of 1972, 20 U.S.C. A§ 1681 et seq., is initiated and who was enrolled as a student at the institution at the time of the incident that is the basis of the complaint, unless the student knowingly and voluntarily chooses not to have counsel; and

(B) A current or former student who responds to a complaint on which a formal Title IX investigation is initiated and who was enrolled as a student at the institution at the time of the incident that is the basis of the complaint, unless the student knowingly and voluntarily chooses not to have counsel.

(c) The disciplinary proceedings provisions required under subsection (a) of this section shall authorize an institution to use mediation or other informal mechanisms for resolving a complaint relating to the institution’s sexual assault policy if:

(1) The complaining student requests an informal mechanism;

(2) All parties to the complaint and the institution agree to the use of the informal mechanism;

(3) The institution participates in the informal mechanism by providing trained staff; 

(4) Any party may end the informal mechanism at any time in favor of a formal resolution proceeding; and  

(5) The alleged misconduct does not involve sexual assault or sexual coercion.

(d) The disciplinary proceedings provisions required under subsection (a) of this section shall, unless a student waives counsel under subdivision (b)(5) of this section, require the institution to pay reasonable costs and attorney’s fees for students provided counsel thereunder.

(e) In consultation with state and local bar associations and legal services providers with expertise in sexual misconduct proceedings, the institution shall develop a list of attorneys and legal services programs willing to represent students on a pro bono basis or at fees equivalent to those paid to attorneys under civil legal services programs.

(1) A student may select an attorney from the list developed under subsection (e) of this section.

(2) A student may select and retain an attorney before the conclusion of formal Title IX proceedings.

(3) An institution may not discourage a student from retaining an attorney.

(4) If a student selects and retains an attorney who is not on the list developed under subsection (e) of this paragraph, the institution shall pay fees to the attorney selected by the student that are equivalent to those paid to attorneys under civil legal services programs.

(f) This section may not be construed to prohibit an institution of higher education from imposing interim safety measures.

(g) An institution shall not be required to pay a student’s attorney’s fees for representation in a criminal or civil matter.

 

NOTE: The purpose of this bill is to require each state institution of higher education, on or before August 1, 2019 to adopt and submit to the West Virginia Higher Education Policy Commission a written sexual assault policy that includes certain due process protections for students in disciplinary proceedings.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.