On July 8, Pennsylvania Gov. Tom Wolf held a ceremonial bill signing for two initiatives intended to encourage reporting of sexual harassment and sexual violence at institutions of higher education across the Commonwealth. The initiatives are included in Act 16 of 2019 (HB 1615), an omnibus education bill that Gov. Wolf signed into law on June 28. They take effect in June 2020.
Act 16 amends the Pennsylvania Public School Code of 1949 to add Article XX-J, which has two main components. First, Article XX-J requires colleges and universities to adopt a “clear, understandable written policy on sexual harassment and sexual violence that informs victims of their rights under federal and state law,” including under the Crime Victims Bill of Rights. 24 P.S. § 20-2002-J(A). (Although the Bill of Rights is currently in the Crimes Code, the Senate and House have passed legislation during two consecutive legislative sessions as required to amend Pennsylvania’s Constitution to include the Bill of Rights, such that a referendum should appear on ballots this fall.) The policy must state that a witness or victim who makes a report in good faith will not be sanctioned under the institution’s code of conduct for drug or alcohol violations revealed in the report.
According to Act 16, the Pennsylvania Department of Education will be releasing a model policy that colleges and universities can choose to adopt. Given the breadth of obligations applicable to schools under Title IX (including the pending regulatory developments discussed in Pepper Hamilton’s recent webinar on this topic, accessible here) and the Clery Act, however, it is unlikely that the model policy geared strictly to the requirements of Act 16 will be sufficient for use by institutions of higher education.
Act 16 also requires postsecondary institutions to establish an online reporting system for complaints of sexual harassment and sexual violence — from students and employees — including those submitted anonymously. 24 P.S. § 20-2003-J(A). Colleges and universities must investigate all online reports, regardless of whether any identifying information is included. The platform must provide reporters with (1) information regarding who will receive and have access to the reports, (2) how the reported information will be used, and (3) contact information for on- and off-campus resources serving victims of sexual harassment and sexual assault.
In implementing their online reporting platforms, colleges and universities must have certain data security measures in place under Act 16. Specifically, they must limit access to the “data collected, created or maintained” as a result of the report to the “data subject” and those employees with “explicit authorization” to access the data. The ability of authorized individuals to access the data must be limited “through the use of role-based access,” and the institution must maintain a data audit trail of “actions in which the data related to an incident of sexual harassment or sexual violence are entered, updated, accessed, shared or disseminated.” Because the legislation acknowledges that reports are to be investigated through the processes established by an institution’s sexual harassment and sexual violence policies, presumably this limitation does not prevent institutions from sharing information with the respondent, consistent with other legal obligations.
Colleges and universities are already doing much of what is required under Act 16 by virtue of their compliance with Title IX, the Clery Act and related guidance. However, Act 16 adds another layer of compliance, illustrating the challenges that can arise as more state and federal bodies stake a direct claim in the battle against sexual violence, sometimes without coordinating amongst themselves.
Amy Foerster is co-chair of Pepper Hamilton’s Higher Education Practice Group, which embraces the mission and business of higher education, while providing comprehensive legal services to colleges, universities and other educational institutions as they navigate the myriad issues impacting their campuses each day.
The material in this publication was created as of the date set forth above and is based on laws, court decisions, administrative rulings and congressional materials that existed at that time, and should not be construed as legal advice or legal opinions on specific facts. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, a lawyer-client relationship.