When a due process bill was introduced in both the Missouri House and Senate in the 2019 session, St. Louis University School of Law professor Marcia McCormick thought the proposed legislation was questionable in a number of ways.
If approved, HB 573 and SB 259 would have permitted students involved in a sexual harassment incident to appeal a Federal Title IX procedural hearing to the Administrative Hearing Commission. The federal Title IX law bars sexual discrimination in education.
“Having a state commission that didn't have expertise in hearing claims like this or any expertise in anti-discrimination law just really didn't seem like it would be a good idea for any party involved in a Title IX proceeding whether they were the complainant or the respondent and it seemed to use state resources in a way that wasn't very prudent,” said McCormick who teaches employment discrimination law, civil rights law, constitutional law, and sexuality in the law.
It turns out, according to a lawsuit filed in St. Louis Circuit Court, that the legislative proposal had been introduced for a specific purpose that McCormick found shocking.
The St. Louis Business Journal reported that Jefferson City Lobbyist Richard McIntosh, the father of a former Washington University student who was expelled for allegedly harassing another student, was advocating for lawmakers to support the bill because Audrey Hanson McIntosh, his wife, and mother of the student, is a chief commissioner on the Administrative Hearing Commission.
"I don't know them personally but, as a member of the public, it does certainly seem like they attempted to use that kind of lobbying to pass legislation to solve a personal problem and that is not what we ought to be using the legislature for,” McCormick told the St. Louis Record.
The proposed legislation, which the St. Louis Business Journal reveals McIntosh helped to write, did not pass the House or Senate but if it had, McIntosh’s son could have retroactively appealed the allegations against him to the Administrative Hearing Commission where his mother presides.
“It might make some sense to give a state agency the power to review something that happens in public schools and in schools that are subject to the jurisdiction of the state of Missouri in that way but it doesn't make much sense to subject private institutions to a state agency commission,” McCormick said.
Washington University in St. Louis is a private research university but the Administrative Hearing Commission considers questions about professional licensing for Medicaid providers and statutes that protect kids with disabilities in schools.
“Washington University is the institution that expelled the adult child of the lobbyist and the allegation is that because of the processes that the adult child was subject to, Washington University had the information about the proposed legislation leaked to the press,” she said.
“The implication is that they did it as a way to stop the legislation. The plaintiff's legal obstacles include whether or not he has a private right of action under the Family Educational Rights and Privacy Act, (FERPA) which is usually why schools will not reveal information about sexual assault investigations but it does also depend on whether the plaintiff, John Doe, is the student who was subject to the proceedings or his father."