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At some Texas universities, students accused of rape can transfer without a record

Universities are required to investigate when a student is accused of raping another student. But if the accused transfers, his or her new school may never know about the past allegations.

Sierra Smith in front of Neff Hall on the Baylor University campus on July 12, 2017.

When Sierra Smith told Baylor University she’d been sexually assaulted by a classmate during a 2016 spring break trip to South Padre Island, she hoped administrators would move to protect her and other students.

It took several months of investigation, but the university eventually did, suspending the male student for three semesters for violating Baylor’s sexual violence and harassment policies.

But by then, the punishment had little effect. The student Smith reported had already transferred to a new school — without a blemish on his record.

“It bothers me that there could be another girl out there who could go through this, too,” she said.

Baylor isn’t the only school that doesn’t list disciplinary violations on its students’ transcripts. Many other universities in Texas and across the nation, including the University of North Texas, have similar policies.

Schools say they are following a practice that has been standard in higher education for years. They argue that disciplinary proceedings aren’t criminal cases — and that a transcript should be viewed as an academic file, not a disciplinary record.

Several other Texas schools, including the University of Houston, Texas State University and Texas A&M University, include notations when the investigation is final, but don’t note when a case is pending. They say they are are trying not to punish students before they have even been found responsible for wrongdoing.

But some college administrators and victims’ rights advocates worry that failing to provide notice on a transcript — either of a final or pending investigation — creates an escape hatch for students transferring to avoid punishment. A student could end up at a new school, they say, without that university ever knowing the student’s past.

“That happens routinely,” said Wanda Mercer, associate vice chancellor of student affairs at the University of Texas System and an expert on the issue.

Lately, more universities are beginning to address those concerns. Baylor, for example, is currently reviewing whether it should change its policy.

But supporters of including disciplinary records on transcripts say change is coming too slowly. Case in point: An attempt to impose a statewide rule requiring the notations failed during the 2017 Texas legislative session.

Three-semester suspension

Stories of female students upset about the handling of their sexual assault cases have plagued Baylor for years. But in Smith’s instance, the university took action — even if it took longer than she had hoped.

She was a sophomore during the trip to South Padre, visiting for the night with a friend. Once there, she met up with a male student with whom she had been previously romantically involved.

“Whenever I woke up later that night, it was to him deciding that me saying no wasn’t enough deterrence,” Smith said.

Smith didn’t report the incident to the university at first. She didn’t even tell most of her friends. But soon, it began to affect her schoolwork and her personal life. She had trouble concentrating in class. And she turned to partying to take her mind off of the incident.

“I was just replaying in my head everything that happened over and over again,” she said. “Maybe I remembered it wrong. Maybe I’m going crazy.”

One day, Smith broke down crying in the office of one of her professors. She told her teacher everything, prompting a Baylor investigation. Within a couple of days, the university had sent the male student an order to avoid all contact with Smith. It also sent official notice that it was opening a disciplinary case, which is required by federal law when one student accuses another of assault.

The university ultimately found the male student responsible in the case and placed him on probation. Smith appealed that decision, and the punishment was increased to a three-semester suspension.

That final decision was little comfort for Smith, who learned that the male student had already transferred. While she was happy he was out of her life, she wondered, “What happens when he goes [to his new school]?”

Sierra Smith in Baylor's Armstrong Browning Library.
Sierra Smith in Baylor University's Armstrong Browning Library. Laura Skelding for The Texas Tribune

Slowly, changing attitudes

For the UT System’s Mercer, it comes as no surprise that a student would try to transfer amid a disciplinary case.

“If you are someone who is charged and you don’t feel like you have violated the rules, the processes can take some time,” she said. “You might say, ‘The semester is not over yet, but I am out of here.’”

Mercer, who wrote her Ph.D dissertation on the subject, has spent years warning universities about that possibility. The solution is simple, she says: Include a notation of a disciplinary case on the student’s transcript, so any future school will know to ask questions before admitting the student. She helped the UT System devise such a policy in recent years. Texas Tech University takes a similar approach.

Many other schools have been reluctant. A 2015 national survey of university registrars found that about 40 percent didn't support including disciplinary notations on transcripts.

That opposition appears to be shrinking. For two decades, the influential American Association of Collegiate Registrars and Admissions Officers actively discouraged schools from making note of disciplinary issues on transcripts. In December 2015, the group switched to being neutral on the subject. Last month, it shifted again and began encouraging such notations when disciplinary cases are final. The group doesn’t specifically recommend a policy on pending disciplinary cases.

“It’s a touchy issue,” said Kristi Wold-McCormick, the registrar at the University of Colorado who chaired the task force that recommended the most recent change. “When a conduct case is pending and an investigation is underway, we don’t know the outcome yet.”

Wold-McCormick said some registrars still believe transcripts should solely be academic documents — not records of disciplinary matters. She said others are worried about legal liability; students might sue if they feel they were blocked from transferring because of a note on their transcript.

There is also concern about how transcript notations could affect the futures of punished students. Disciplinary notations don’t usually say what students were punished for — only that they were suspended or expelled. A student kicked out for drinking at a conservative school might have a hard time getting into a new school that isn’t overly concerned with that offense.

While Baylor officials wouldn’t comment publicly on their policy, background information they provided to The Texas Tribune suggests its administrators share some of those concerns.

Advocates for the notations say those worries are easily addressed: Limit the use of notations to major offenses — those serious enough to warrant expulsion or suspension. A notation for a suspension could be removed from a transcript once the term of the suspension is complete, they say.

The advocates also add that when there’s no criminal record, a student’s transcript may be a future university’s only source of warning. Sexual assault cases involving two students who know each other rarely make it to criminal court, because victims are often reluctant to go through a public trial and prosecutors hesitate to take on cases that pit one student’s word against another’s.

But many universities worry about punishing a student too much too soon. Just because someone is under investigation doesn’t mean they are guilty, school officials say. Many universities — including A&M, which adds transcript notations only when the final results are in — say they will provide information on pending investigations verbally to transfer universities conducting background checks on potential students.

House bill fails

In recent years, two states, New York and Virginia, have adopted laws that establish statewide disciplinary notation policies. This year, Rep. Chris Turner, D-Grand Prairie, tried to make Texas the third. His proposal, House Bill 3142, would have required notations for all university cases that resulted in a major punishment.

Smith traveled from Waco to Austin to testify in favor of the proposal. At a late-night committee hearing in April, she told the Texas House Higher Education Committee her story.

“I was not the first girl he came into contact with,” she told legislators, “and I will not be the last.”

“So the next time a girl decides to be brave enough to report him — because it will happen again — there will be no record,” she added. “The school will not know what has happened in the past and he will run away again or get off with nothing.”

A week later, the committee unanimously advanced the bill. But Turner’s legislation suffered a common fate in the Texas Capitol — the clock ran out on the legislative session before the Texas House could vote on it.

Turner and Smith both said they hope universities will consider changing their policies on their own. If not, Turner said he expects to file the bill again in 2019. And Smith, an aspiring lawyer, said she’ll be there again to tell her story.

“I hope to continue to advocate for these things for the rest of my life,” she said.

Disclosure: Baylor University, the University of Texas System, Texas A&M University, the University of Houston, Texas State University, Texas Tech University and the University of North Texas have been financial supporters of The Texas Tribune. A complete list of Tribune donors and sponsors can be viewed here.

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