Washington lawmakers are considering new state laws that would shine more light on public universities’ findings of sexual misconduct.
Following stories recently published by The Seattle Times, lawmakers say they’re focusing on stopping employees from being able to quietly move between colleges after findings of such misconduct and ending the use of nondisclosure agreements with students at public universities. In doing so, Washington would join a growing number of states creating laws broader than federal obligations to address sexual misconduct.
“In this era of #MeToo and survivors of abuse being able to lift their voices to get the action they deserve, I think we need to continue to bring to light any misconduct and not just sweep misdeeds under the rug,” said Sen. Emily Randall (D-Bremerton), vice-chair of the Higher Education and Workforce Development Committee.
Advocates say they are encouraged by the proposals, but urge lawmakers not to assume they know what is best for survivors of sexual assault. Lawmakers will discuss the issues with university officials this summer and say they hope to hear from students.
A Seattle Times article last week revealed that after the UW found credible an athlete’s claim that a senior athletic official sexually assaulted her, the official got a job as administrator of another university last year
The article shocked some lawmakers, who compared the incident to how the Roman Catholic Church relocates sexually abusive priests among parishes under a veil of secrecy. But experts say the lack of information-sharing isn’t unusual, as gaps in universities’ policies can allow employees to move to new schools without any record of their misconduct following them.
UW President Ana Mari Cauce said in a statement that she believes the university’s response was sufficient, but she has initiated a review of how the university handles cases and reference checks.
“As a public agency, we have a responsibility to increase transparency within the bounds of the law and consistent with our responsibilities to survivors and the people of Washington,” Cauce said. “But we can’t do it alone.”
How employees can quietly move between colleges
Colleges are required to respond to sexual misconduct under Title IX, a federal civil-rights law that prohibits gender discrimination in schools. Federal regulations do not require schools to share findings of employee misconduct with the public, police or prospective employers.
“It’s not quite the Wild West, but it’s pretty wide-open for many schools to determine what they’re going to do about those issues,” said Peter Lake, an expert in higher-education law and policy at Stetson University College of Law in Florida.
When former UW senior associate athletic director Roy Shick was hired as vice president at Grand Canyon University last year, the Arizona school didn’t know about UW’s finding regarding a star volleyball player’s sexual-assault allegation against Shick. Shick’s direct supervisor, UW Athletic Director Jen Cohen, was not contacted for a reference check, according to a UW spokesman.
Shick, who did not participate in the university’s investigation, did not respond to requests for comment. On his behalf, attorney David H. Smith said, “There are reasons why individuals would find themselves in the position to not participate in an investigation, therefore it would be unfair to transmit incomplete information to prospective employers.”
While colleges sometimes investigate conduct that could rise to the level of a crime, most Washington colleges don’t report to police unless that’s what the survivor wants. The athlete who reported Shick did not want to go to police.
University findings don’t show up on a criminal background check, which is what many colleges (including Grand Canyon) rely on before hiring employees. Schools can learn of misconduct by asking an employee’s previous school about it.
But none of Washington’s public four-year colleges tell hiring managers to specifically ask about misconduct, and most don’t require reference checks. Colleges don’t have uniform policies, and whether misconduct is disclosed depends on a number of factors including the school’s specific policy. For example, some Washington colleges only reveal misconduct if specifically asked, while others require a waiver from the employee to disclose information.
While Washington law protects employers who disclose wrongful acts committed by employees during reference checks, Lake said colleges typically keep findings as confidential as possible to avoid legal risk.
Rep. Gerry Pollet, a North Seattle Democrat who serves on the House committee and a multistate commission on higher education, said schools have a “trust system” when they’re hiring.
“But when they’re in their employer hats and people are leaving, a different arm of the university is eager to not disclose,” he said. “There’s the desire to avoid litigation and just close it up, move on. There’s also the huge embarrassment factor.”
Lawmakers are also looking at how universities have required confidentiality in settlements with students who have alleged sexual misconduct. Sen. Karen Keiser, a Des Moines Democrat who has worked on addressing workplace harassment, said she hopes to ban public institutions from using nondisclosure agreements.
A law for K-12, but no regulations for colleges
When Jeanne Kohl-Welles, who currently serves on the King County Council, was a state senator, she pushed to regulate how K-12 schools handle sexual misconduct. She said lawmakers acted after the Seattle Times series “Coaches Who Prey” published in 2003, exposing how coaches of girls sports in Washington continued to coach or teach after findings of sexual misconduct.
One of her bills that passed the following year required schools to obtain sexual misconduct records from schools where an applicant previously worked and released districts from liability in disclosing them. Employees can view their own files and rebut allegations.
While lawmakers addressed this issue in K-12 more than a decade ago, they say there hasn’t been much discussion of the issue in higher education.
“Colleges haven’t been forced into a regulatory process yet,” Randall said. “In cases like this in any sort of field, if there’s not a mechanism that requires information to be shared, we’ve seen throughout history that it doesn’t happen.”
Lake said working off the K-12 law would be a promising start, but warned it would likely be more complicated in higher education, as it’s more common to move between states for jobs and there isn’t as much of a certification process. Change at the national level would be most effective, Lake said, but isn’t likely to come any time soon.
Advocates warn against mandatory police referral
Some lawmakers said they believe universities should inform police when they learn of an allegation of serious misconduct against an employee. Pollet said he believes the UW failed by not telling police about the Shick report.
“There is no gray area here to me about whether or not it should be reported,” Pollet said. “If the university has knowledge of a criminal action by an employee, I think it becomes a very clear duty to report to law enforcement.”
But Sage Carson, manager of survivor-advocacy group Know Your IX, said mandatory referrals to police can harm survivors. The burden of protecting others and holding people accountable should be on schools, not survivors, she said.
She rejected statements from some lawmakers that survivors who are reluctant to go to police are often glad after reporting.
“We cannot continue to take away the consent of survivors and decide what they’re going to like or appreciate later on,” Carson said. “The rapist has already taken their consent away and we should not continue to replicate that abuse of power through our system and through our laws.”
The conflict between respecting a survivor’s wishes and protecting others from perpetrators is one of the most contested issues in law enforcement and on college campuses, Lake said.
Cauce recognized this struggle while defending UW’s policy, saying confidential reporting options for survivors “is critical to encouraging them to come forward.”
“Balancing their privacy needs while holding harassers and abusers accountable can be like walking a tightrope,” she said.