UNFINISHED BUSINESS  

Bill No: SB 493

Author: Jackson (D), et al.

Amended: 8/24/20

Vote: 21

SENATE EDUCATION COMMITTEE: 6-0, 4/3/19

AYES: Leyva, Wilk, Chang, Durazo, McGuire, Pan

NO VOTE RECORDED: Glazer

SENATE JUDICIARY COMMITTEE: 7-0, 4/23/19

AYES: Jackson, Allen, Caballero, Monning, Stern, Umberg, Wieckowski

NO VOTE RECORDED: Borgeas, Jones

SENATE APPROPRIATIONS COMMITTEE: 4-2, 5/16/19

AYES: Portantino, Bradford, Hill, Wieckowski

NOES: Bates, Jones

SENATE FLOOR: 30-8, 5/28/19

AYES: Allen, Archuleta, Atkins, Beall, Bradford, Caballero, Chang, Dodd, Durazo, Galgiani, Glazer, Hertzberg, Hill, Hueso, Hurtado, Jackson, Leyva, McGuire, Mitchell, Monning, Pan, Portantino, Roth, Rubio, Skinner, Stern, Umberg, Wieckowski, Wiener, Wilk

NOES: Bates, Borgeas, Grove, Jones, Moorlach, Morrell, Nielsen, Stone

ASSEMBLY FLOOR: 60-12, 8/30/20 - See last page for vote

SUBJECT: Education: sex equity

SOURCE: Equal Rights Advocates

Women’s Foundation of California/Women’s Policy Institute

DIGEST:

This bill requires postsecondary educational institutions to, among other things, adopt rules and procedures for the prevention of sexual harassment, and adopt and post on their Web sites the grievance procedures to resolve complaints of sexual harassment.

Assembly Amendments

(1) delete the authority for a person to bring a private right of action in court for a violation of this bill; (2) delete the requirement that grievance procedures provide student parties the opportunity to cross-examine one another and any adverse witnesses, and instead require grievance procedures to include reasonable and equitable evidentiary guidelines, places boundaries on what a hearing officer may consider, and require hearings to be subject to specified rules (including for cross-examination); (3) remove the requirement that specific rights be afforded if both the complainant and respondent are students at the institution (some remain as components of grievance procedures); and (4) make numerous less significant changes.

ANALYSIS:

Existing federal law:

1. Provides that, in part, "no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program of activity receiving Federal financial assistance."  Enforcement of compliance is initiated upon the filing of a complaint alleging a violation of Title IX. 
2. Requires each school district and county office of education, or a local public or private agency that receives funding from the state or federal government, to designate a person to serve as the Title IX compliance coordinator to enforce compliance at the local level, including coordinating any complaints of non-compliance.  (Title IX of the Education Amendments of 1972 to the 1964 Civil Rights Act)

Existing state law:

1. Requires each educational institution in California (K-12 and postsecondary education) to have a written policy on sexual harassment, and requires schools to  display the policy in a prominent location in the main administrative building or other area of the campus or schoolsite, be provided as part of any orientation program for new students, provided to each faculty member, administrative staff and support staff, and appear in any publication of the school that sets forth the rules, regulations, procedures and standards of conduct.  (Education Code § 231.5 and § 66281.5)
2. Requires the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions to adopt policies concerning campus sexual violence, domestic violence, dating violence, and stalking that includes an affirmative consent standard, detailed and victim-centered policies and protocols, and the standard used in determining whether the elements of the complaint against the accused have been demonstrated is the preponderance of the evidence.  (EC § 67386)
3. Requires schools to post information on their Web sites relative to the designated Title IX coordinator, rights of students and responsibilities of schools, and a description of how to file a complaint.  (EC § 221.61)

This bill:

1. Requires, as a condition of receiving state financial assistance, the governing board or body of a campus of the University of California (UC), California State University (CSU), or California Community College (CCC), a private postsecondary educational institution, or an independent institution of higher education that receives state funds to comply with all of the following requirements at the institution:
   1. Disseminate, by electronic of other means, a notice of non-discrimination to each employee of the institution, volunteer who will regularly interact with students, and individual or entity under contract with the institution to perform any service involving regular interaction with students at the institution.
   2. Designate at least one employee to coordinate its efforts to comply with and carry out its responsibilities. This bill authorizes the employee to be the same individual as the institution’s federal Title IX coordinator. This bill requires the employee to have adequate training on what constitutes sexual harassment and on trauma-informed investigatory and hearing practices, and understand how the institution’s grievance procedures operate.

Sexual harassment policy

• 1. Adopt rules and procedures within the policies required by Title IX and existing state law for the prevention of sexual harassment that also provide for specified elements, including, but not limited to:
     1. The institution shall take reasonable steps to respond to each incident of sexual harassment, as specified.
     2. Regardless of whether or not a complaint has been filed under the institution’s grievance procedures, if the institution knows, or reasonably should know, about possible sexual harassment involving individuals subject to the institution’s policies at the time, the institution shall promptly investigate to determine whether the alleged conduct more likely than not occurred, or otherwise respond if the institution determines that an investigation is not required. This bill presumes an institution knows of sexual harassment under specified circumstances, and allows institutions to rebut this presumption of knowledge.

Grievance procedures

• 1. Adopt and publish on its Web site grievance procedures that provide for prompt and equitable resolution of sexual harassment complaints filed by a student against an employee or another student. This bill requires the grievance procedures to satisfy specified requirements, including, but not limited to:
     1. Ensure that the persons or entities responsible for conducting investigations, finding facts, and making disciplinary decisions are neutral.
     2. Ensure trauma-informed and impartial investigation of complaints. Student parties shall be given an opportunity to identify witnesses and other evidence to assist the institution in determining whether a policy violation has occurred, and shall be informed that any evidence available but not disclosed during the investigation might not be considered at a subsequent hearing.
     3. Include reasonable and equitable evidentiary guidelines.
     4. Include specified boundaries on what a hearing officer may consider.
     5. Provide an explanation of the meaning of the preponderance of the evidence standard, and affirm that it shall apply to adjudications under this section. The preponderance of the evidence standard is met if the institution determines that it is more likely than not that the alleged misconduct occurred, based on the facts available at the time of the decision.
     6. Provide for written notice to parties of the outcome of the complaint, including whether a policy violation was found to have occurred, the basis for that determination, including factual findings, and any discipline imposed.
     7. Allow either party to appeal the outcome of the grievance proceeding if the institution has such an appeals process.
     8. Contain a requirement that the Title IX coordinator or other designated employee assess each report of sexual harassment and provide outreach, as appropriate and as specified.

Hearing rules

• 1. Require any hearing to be subject to specified rules, including, but not limited to the following:
     1. Any cross-examination of either party or any witness shall not be conducted directly by a party or a party’s advisor.
     2. Either party or any witness may request to answer the questions by video from a remote location.

Training

• 1. Require institutions to provide training to each employee engaged in the grievance procedures related to sex discrimination, including sexual violence, which shall include training on trauma-informed investigatory and hearing practices that help ensure an impartial and equitable process, best practices for assessment of a sexual harassment or sexual violence complaint and best practices for questioning of the complainant, respondent, and witnesses, and on implicit bias, and racial inequities, both broadly and in school disciplinary processes.
  2. Require an institution, if it has on-campus housing, to ensure that residential life student and non-student staff, or their equivalent, annually receive training on how to handle, in a trauma-informed manner, reports made to them sexual harassment or violence in student residential facilities.
  3. Provide training to all employees on the identification of sexual harassment, including the person to whom it should be reported.

Civil action

1. Provides that a violation of this section may constitute discrimination and shall be subject to a civil action brought pursuant to existing law.

Miscellaneous

1. Provides that this bill does not require an institution to provide separate grievance procedures for student sexual harassment complaints, and authorizes the institution to use student disciplinary procedures or other separate procedures to resolve sexual harassment complaints.
2. Requires each postsecondary institution to implement the provisions of this bill by January 1, 2022.
3. Provides numerous definitions.

Comments

Changes to federal Title IX rules. The United States Department of Education rescinded guidance issued by the previous administration that is related to how institutions of higher education are to comply with Title IX, and issued new guidance in September 2017. In November 2018, the U.S. Department of Education released proposed changes to Title IX rules, and final regulations in May 2020 (to become effective on August 14, 2020). Federal regulations change how postsecondary educational institutions implement Title IX; changes that are related to provisions of this bill include:

• 1. Authority for institutions to use either the “preponderance of evidence” standard, or the “clear and convincing evidence” standard.
  2. Modification of the standard for when an institution of higher education must respond to allegations of sexual harassment from “know or reasonably should know” to “actual knowledge.”
  3. Authority for the cross-examination of complainants during a live hearing.
  4. Exclusion of some off-campus conduct.

[https://www2.ed.gov/about/offices/list/ocr/docs/titleix-regs-unofficial.pdf]

This bill specifically applies the preponderance of evidence standard to all investigations; requires an institution that receives a complaint regarding an incident that took place on campus to process the complaint in accordance with this bill; prohibits any cross-examination from being conducted directly by a party or party’s advisor, and allows either party or any witness to answer questions by remote video; and prohibits an institution from mandating mediation, requiring the complainant enter a voluntary resolution agreement or any other form of resolution, or issuing an interim mutual no-contact directive automatically.

If this bill were to become law, California would have stronger Title IX protections and requirements in postsecondary educational institutions than would be required by federal standards.

NOTE: Please see prior analyses for additional comments.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

According to the Assembly Appropriations Committee, this bill would impose one-time Proposition 98 General Fund (GF) cost pressures in the 2021-22 fiscal year, potentially in the low millions of dollars, to CCCs, CSUs, and UCs, respectively, to make changes to recently revised Title IX policy and provide training for responsible employees and hearing officers. Potential ongoing Proposition 98 GF cost pressures of an unknown amount to CCCs, CSUs, and UCs, should litigation related to the bill's provisions arise, and minor costs to provide training to new employees and hearing officers.

SUPPORT: (Verified 8/30/20)

Equal Rights Advocates (co-source)

Women’s Foundation of California/Women’s Policy Institute (co-source)

Alameda County District Attorney’s Office

American Association of University Women-California

Asian Americans Advancing Justice-California

Asian Pacific Policy and Planning Council

Business and Professional Women of Nevada County

California Association for Health, Physical Education, Recreation and Dance

California Commission on the Status of Women and Girls

California Faculty Association

California Partnership to End Domestic Violence

California State Student Association

California Voices for Progress

California Women’s Law Center

Child Care Law Center

Children’s Defense Fund-California

Citizens for Choice

City and County of San Francisco, Department on the Status of Women

Coalition for Humane Immigrant Rights

Community Overcoming Relationship Abuse

Consumer Attorneys of California

Courage Campaign

Ella Baker Center for Human Rights

Empowering Pacific Islander Communities

End Violence Against Women International

Faculty Association of California Community Colleges

Family Violence Law Center

Feminist Majority Foundation

Girls Inc. of Orange County

Impact Fund

Latino Council

Legal Aid at Work

Los Angeles United Methodist Urban Foundation

National Association of Social Workers, California Chapter

National Survivor Network

National Women’s Law Center

Peace Over Violence

Public Counsel

Santa Barbara Women’s Political Committee

Service Employees International Union California

Southeast Asia Resource Action Center

United Food and Commercial Workers Western States Council

University of California

University of California Student Association

Work Equity

OPPOSITION: (Verified 8/30/20)

Families Advocating for Campus Equality

Hathaway Parker

ASSEMBLY FLOOR: 60-12, 8/30/20

AYES: Aguiar-Curry, Arambula, Bauer-Kahan, Berman, Bloom, Boerner Horvath, Bonta, Burke, Calderon, Carrillo, Cervantes, Chau, Chiu, Chu, Cooley, Cooper, Daly, Friedman, Gabriel, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez, Gray, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager, Lackey, Levine, Limón, Low, Maienschein, McCarty, Medina, Mullin, Muratsuchi, Nazarian, O'Donnell, Petrie-Norris, Quirk, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Waldron, Weber, Wood, Rendon

NOES: Bigelow, Brough, Choi, Cunningham, Megan Dahle, Flora, Fong, Gallagher, Kiley, Mathis, Obernolte, Patterson

NO VOTE RECORDED: Chen, Diep, Eggman, Frazier, Mayes, Voepel, Wicks

Prepared by: Lynn Lorber / ED. /

8/31/20 0:46:51

**** END ****

SENATE THIRD READING

STR Bill Id:SB 493

Author:(Jackson)

As Amended Ver:August 24, 2020

Majority vote

SUMMARY:

This bill requires, by January 1, 2022, except as specified, that any postsecondary institution that receives state financial assistance, comply with various requirements pertaining to student sexual harassment protections and, provide students with procedural protections relating to claims of sexual harassment.

Major Provisions

This bill requires the governing board or body of each postsecondary institution that receives state financial assistance to:

1. Disseminate a notice of nondiscrimination to each employee, volunteer and individual or entity contracted with the institution
2. Designate at least one employee of the institution to coordinate its efforts to comply with this bill's requirements
3. Adopt rules and procedures for the prevention of sexual harassment.
4. Adopt and publish on its website grievance procedures related to the prompt and equitable resolution of sexual harassment complaints.
5. Publish on its website the name, title and contact information for the Title IX coordinator or other employee designated to coordinate the institution's efforts to comply with this bill's requirements and individuals with the authority to investigate complaints or to institute corrective measures, as specified.
6. Provide training for each employee engaged in the grievance procedure.
7. Include annual training for residential life student and nonstudent staff for the trauma-informed handling of reports regarding incidents of sexual harassment or violence at an institution with on-campus housing.
8. Notify employees of the obligation to report sexual harassment to appropriate school officials.
9. Provide training to all employees on the identification of sexual harassment.
10. Authorize enforcement of these provisions through a civil action brought pursuant to existing law, as specified.

COMMENTS:

Scope of the problem. In August of 2014 the United States Department of Justice Office on Violence Against Women (OVW) funded the Bureau of Justice Statistics (BJS) to develop and test a pilot campus climate survey that could be implemented by schools or researchers. BJS contracted with RTI International, a nonprofit research organization, to collaborate on the design and implementation of the Campus Climate Survey Validation Study (CCSVS). The CCSVS surveyed more than 23,000 students across nine higher education institutions found that:

1. One in five female students in their fourth year of college had experienced attempted or completed sexual assault while in college.
2. Freshman women were at greater risk for sexual assault during the first months of the school year (August-October) than at any other time throughout college.
3. About 65% of surveyed rape victims reported the incident to a friend, family member, or roommate. Less than 10% reported it to police or school officials.

In 2015, the Association of American Universities (AAU) published a report on sexual assault and sexual misconduct. Based on a survey of more than 150,000 students at 27 universities, their findings indicated:

1. 11.7% of student respondents reported experiencing some form of nonconsensual sexual contact.
2. The most common reason for not reporting sexual assault and sexual misconduct victimization was that students did not consider the victimization to be serious enough.
3. Other common reasons for not reporting sexual assault and sexual misconduct included fear that nothing would be done, embarrassment, and emotional distress.

Changes to federal Title IX rules. The United States Department of Education rescinded guidance issued by the previous administration that is related to how institutions of higher education are to comply with Title IX, and issued new guidance in September 2017. In November 2018, the US Department of Education released proposed changes to the Title IX rule, and the new rule was formally adopted on May 6, 2020. Campuses were required to implement the rule by August 14, 2020. Some of the most significant changes include:

1. Allows schools to use the "preponderance of evidence" or the more demanding "clear and convincing evidence" standard – but requires the elected evidentiary standard to be used in all cases, including those involving faculty and staff.
2. Allows institutions to choose whether to have mandatory reporting for all employees or to designate some employees to be confidential resources for college students to discuss sexual harassment without automatically triggering a report to the Title IX office. Notice includes a report of a sexual harassment to the Title IX Coordinator or to an official with authority to institute corrective measures on the recipient's behalf, charges a school with actual knowledge, and triggers the school's response obligations.
3. Requires that that postsecondary institutions hold live disciplinary hearings in sexual misconduct cases and allow cross-examination of witnesses, and explicitly prohibit postsecondary schools from employing the "single investigator" model.

Committee comments. The substantial amendments taken in the Assembly Appropriations Committee are the result of a year of collaboration that includes the author, the sponsors, California's higher education segments, student organizations, and staff across numerous committees. The amendments taken were intended to accomplish a series of goals for the sake of addressing clarity, cost, interaction with federal law, and implementation timelines. These amendments broadly included:

1. Language to ensure certain provisions are consistent with existing law, which include explicit references to existing law and definition clarifications.
2. Amendments to reduce potential costs as well as ensure clarity regarding the scope of institutions' obligations and ensure the requirements are feasible for institutions to implement, accounting for differences among school systems and across individual institutions and campuses. Significant amendments include removing private right of action language included in the previous version of the bill (while preserving the use of an existing private right action authorized in current law), refining the definition of "responsible employee" to provide clarity regarding which individuals are responsible for reporting sexual harassment and to clarify the scope of an institution's responsibility when a "responsible employee" is aware of sexual harassment (but fails to report), and clarifying that no additional staff required to be hired to carry out obligations under the bill.
3. Provisions to address the interaction of the bill with federal law, including language rendering inoperative provisions of the bill that are in conflict with federal law for the duration of the conflict, and delaying implementation for one year until January 1, 2022.

According to the Author:

According to the author, "Sexual harassment and assault impede a student's right to receive an education free of sex-based discrimination. SB 493…addresses the gap in California law as it concerns institutions of higher education by putting in place required processes for schools to respond to alleged sexual harassment and assault, including notice and posting requirements to ensure students are aware of such processes and their rights, as well as transparent procedures for investigating complaints to ensure a fair and equitable process for all students. This bill would require colleges and universities to publish the contact information for individuals responsible for investigating complaints and instituting corrective measures, the rules and procedures for prevention of sexual harassment and grievance procedures providing for the prompt and equitable resolution of sexual harassment complaints."

"The bill would also require schools to provide training to employees engaged in the grievance procedures on trauma informed best practices for investigating sexual harassment or sexual assault complaints as well as training on implicit bias and the history of institutional racism and racial inequities in school disciplinary processes."

"This bill provides clarity for higher education institutions and a guaranteed common baseline process for California students in higher education when it comes to the enforcement of their civil right to equal access to education."

Arguments in Support:

Equal Rights Advocates, a sponsor of SB 493, shared correspondence with the committee. They wrote that, "Sexual harassment and violence in higher education is pervasive. According to research published by the American Association of University Women, during college, 62% of women and 61% of men experience sexual harassment. More than 1 in 5 women and nearly 1 in 18 men are sexually assaulted in college. Historically marginalized groups are more likely to experience sexual violence, including women, students of color, and LGTBQI students."

"Students who experience sexual violence not only suffer physically and emotionally, but are also denied equal access to education. Among the many harmful results of campus harassment and assault is the "pushout" that occurs when schools fail to take appropriate steps to respond to these incidents. An estimated 34% of student survivors drop out of college"

"SB 493 addresses this gap in state law and responds to the attacks on students' civil rights at the federal level by outlining transparent, fair and equitable processes for institutions of higher education to follow when responding to incidents of sexual harassment, including sexual violence, in order to comply with existing law and provide a fair process for all parties to protect the civil rights, safety and well-being of students."

The University of California wrote concerning the amendments taken in Assembly Appropriations, noting that "Responding appropriately to matters of sexual misconduct of any student on our campuses is of paramount importance. Following years of effort, the UC reformed our Title IX policies to ensure a fair process to those accused and to those bringing complaints. Many schools around the country did the same, and we remain steadfast in our commitments. We are also working diligently to implement new Title IX regulations passed by the US Department of Education, which come at a time when our nation is still grappling with the far-reaching impacts of sexual harassment and violence. The US Department of Education's action reverses some hard-fought social and policy gains. Senate Bill 493 provides clarity at this time, and sufficient time to implement the law."

Arguments in Opposition:

There is no opposition on file to the legislation as amended on August 24, 2020.

FISCAL COMMENTS:

According to the Assembly Appropriations Committee, one-time Proposition 98 General Fund (GF) cost pressures in the 2021-22 fiscal year, potentially in the low millions of dollars, to California Community Colleges (CCCs), California State Universities (CSUs), and University of California (UCs), respectively, to make changes to recently revised Title IX policy and provide training for responsible employees and hearing officers. Potential ongoing Proposition 98 GF cost pressures of an unknown amount to CCCs, CSUs, and UCs, should litigation related to the bill's provisions arise, and minor costs to provide training to new employees and hearing officers.

VOTES:

SENATE FLOOR: 30-8-0

YES: Allen, Archuleta, Atkins, Beall, Bradford, Caballero, Chang, Dodd, Durazo, Galgiani, Glazer, Hertzberg, Hill, Hueso, Hurtado, Jackson, Leyva, McGuire, Mitchell, Monning, Pan, Portantino, Roth, Rubio, Skinner, Stern, Umberg, Wieckowski, Wiener, Wilk

NO: Bates, Borgeas, Grove, Jones, Moorlach, Morrell, Nielsen, Stone

ASM HIGHER EDUCATION: 9-3-0

YES: Medina, Arambula, Bloom, Gabriel, Irwin, Levine, Low, Santiago, Weber

NO: Choi, Kiley, Patterson

ASM JUDICIARY: 9-2-1

YES: Mark Stone, Chau, Chiu, Gonzalez, Holden, Kalra, Maienschein, Petrie-Norris, Reyes

NO: Kiley, Obernolte

ABS, ABST OR NV: Gallagher

ASM APPROPRIATIONS: 14-4-0

YES: Gonzalez, Bauer-Kahan, Bloom, Bonta, Calderon, Carrillo, Chau, Diep, Eggman, Gabriel, Eduardo Garcia, Petrie-Norris, Quirk, Robert Rivas

NO: Bigelow, Megan Dahle, Fong, Voepel

UPDATED:

VERSION: August 24, 2020

CONSULTANT: Kevin J. Powers / HIGHER ED. / (916) 319-3960 FN: 0003347

Date of Hearing: August 21, 2019

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

SBPCA Bill Id:SB 493

Author:(Jackson) – As Amended Ver:August 12, 2019

Urgency: No State Mandated Local Program: Yes Reimbursable: Yes

SUMMARY:

This bill requires, by January 1, 2021, a postsecondary institution that receives state funds to comply with various requirements pertaining to student sexual harassment protections and to provide students with procedural protections relating claims of sexual harassment. Specifically, this bill requires the governing board or body of each of these institutions to:

1. Disseminate a notice of nondiscrimination to each employee, volunteer and individual or entity contracted with the institution.
2. Designate at least one employee of the institution to coordinate its efforts to comply with this bill’s requirements.
3. Adopt rules and procedures for the prevention of sexual harassment.
4. Create procedures for the investigation of sexual harassment policy violations.
5. Adopt and publish on its website grievance procedures related to the prompt and equitable resolution of sexual harassment complaints.
6. Publish on its website the name, title and contact information for the employee designated to coordinate the institution's efforts to comply with this bill’s requirements and individuals with the authority to investigate complaints or to institute corrective measure.
7. Provide training for each employee engaged in the grievance procedure.
8. Provide training for residential life student and nonstudent staff on trauma-informed handling of reports regarding incidents of sexual harassment at an institution with on-campus housing.
9. Notify employees of the obligation to report sexual harassment to appropriate school officials.
10. Provide training to all employees on the identification of sexual harassment.

In addition, this bill authorizes the Attorney General and any student or former student who alleges to have suffered injury caused by a violation of these provisions to bring an action in a court to enjoin, or recover specified damages for, a violation of its provisions. The bill also authorizes a court to assess a civil penalty not to exceed $2,500 per day of violation and $50,000 total per violation, against a postsecondary institution found to have violated this act in an action brought by the Attorney General.

FISCAL EFFECT:

1. Ongoing Proposition 98 General Fund cost pressures to CCCs in the tens of millions of dollars annually for increased litigation, increased number of hearing and for training employees. This estimate assumes each of the CCC’s 72 districts receives a total of 288 lawsuits (four per campus) a year resulting in annual total costs between $29 million and $58 million, depending on several variables, including how many lawsuits go to trial. (The CCC serves about two million students annually.) The estimate also assumes 100 hearings systemwide a year, resulting in annual total costs of $1 million to $2 million. The estimate also assumes at least three people at each CCC campus, plus 10 individuals at the 12 campuses with housing, receiving training, resulting in annual total costs of between $1 and $2 million.

The state would need to reimburse these costs to CCC, if the Commission on State Mandates determines the bill’s requirements to be a reimbursable state mandate.

1. Ongoing General Fund cost pressures to CSUs of about $10 million annually for increased litigation, increased number of hearings and for training for employees. This estimate assumes the CSU’s 23 campuses receives a total of 17 lawsuits a year, with costs between $3 million and $6 million, depending on several variables, including how many lawsuits go to trial. (The CSU serves about 480,000 students annually.) The estimate also assumes 100 hearings systemwide a year, with annual costs of $1 million to $2 million. Training would have costs, but they likely would not be significant, as CSUs already provide extensive training on sexual harassment.
2. Ongoing General Fund cost pressures to UCs of about $2 million to $5 million annually for increased litigation, increased number of hearing and for training employees. This estimate assumes the UCs nine campuses receive a total of seven lawsuits a year, with costs between $1 and $3 million, depending on several variables, including how many lawsuits go to trial. (The UC serves about 225,000 students annually.) The estimate also assumes 100 hearings system wide a year, with annual costs of $1 to $2 million. Training would have costs, but they likely would not be significant, as UCs already provides extensive training on sexual harassment.
3. Ongoing General Fund costs to the Department of Justice of about $3 million to hire 16 employees, with lower costs in the 2020-21 fiscal year of about $2 million as the department ramps up staff.

COMMENTS:

1. Purpose. According to the author:

SB 493 addresses the gap in California law as it concerns institutions of higher education by putting in place required processes for schools to response to alleged sexual harassment and assault, including notice and posting requirements to ensure students are aware of such processes and their rights, as well as transparent procedures for investigating complaints to ensure a fair and equitable process for both parties.

1. Background. Federal law (Title IX of the Education Amendments of 1972 to the 1964 Civil Rights Act) states that, "no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program of activity receiving Federal financial assistance." Sexual harassment on college campuses may be considered a violation of Title IX because it impedes a student’s right to receive an education free of sex-based discrimination. Federal law requires institutions of higher education to designate an individual on each campus to serve as a Title IX coordinator.

State law currently requires schools to post information on their websites related to the designated Title IX coordinator, rights of students and responsibilities of schools with regard to Title IX, and a description of how to file a complaint. In addition, state law requires each educational institution in California to have a written policy on sexual harassment. The policy is to be displayed on campus, be provided during orientations for new students and staff and appear in certain school publications.

This bill expands upon and further standardizes the responsibilities of institutions with regard to sexual harassment. Mostly notably, the bill authorizes enforcement of its provisions by the Attorney General and it provides for a private right of action, (meaning that an individual who has had their rights under the bill violated could file suit in court seeking redress against the higher education institution involved). Higher education institutions subject to this bill have voiced concerns about the anticipated costs of this portion of the bill.

Institutions subject to the provisions of this bill are all UC campuses, all CSU campuses, all CCC campuses and various private institutions that receive state funding. The most common state aid received by private institutions, including institutions such as Stanford, St Mary’s College and the University of Southern California, is through the state’s Cal Grant student aid program.

California universities indicate some of their Title IX procedures have changed since the California Court of Appeals’ January 4, 2019, Doe vs. Allee decision found deficiencies in Title IX review processes at the University of Southern California, and indicate costs to comply with certain portions of this bill are lower as a result.

1. Related Legislation. SB 169 (Jackson), of the 2017-18 Legislative Session, was similar to this bill. The bill was vetoed by the Governor, who instead convened a workgroup to make recommendations related to the issues of this bill. The workgroup’s recommendations largely are addressed the current iteration of this bill.

Analysis Prepared by: Natasha Collins / APPR. / (916) 319-2081

Date of Hearing: July 9, 2019

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

SBPCA Bill Id:SB 493

Author:(Jackson) – As Amended Ver:May 17, 2019

As Proposed to be Amended

SENATE VOTE: 30-8

SUBJECT: EDUCATION: POSTSECONDARY: SEXUAL HARASSMENT

KEY ISSUE: should colleges and universities in california - in order to more effectively prevent, investigate, and address incidents of sexual harassment, including sexual violence - adopt detailed procedural requirements for handling such complaints from students?

SYNOPSIS

Sexual harassment and assault on college and university campuses is rampant and substantially impedes equitable access to education for victims, who are disproportionately from underserved and minority communities. Several federal and state laws prohibit discrimination on the basis of sex, including at educational institutions, and courts have interpreted such prohibitions to provide an implicit mandate for educational institutions to adopt procedures to identify, mitigate, and discipline sexual harassment and assault. Nonetheless, these laws are general and vague as to the proper implementation of their provisions, leading to vacillating federal guidance, inconsistency, and confusion. In 2011, the Department of Education under the Obama Administration released a "Dear Colleague" letter which provided detailed guidelines for sexual harassment complaint procedures in order to comply with long-standing federal protections against sexual discrimination and harassment enshrined in the regulations of Title IX of the Educational Amendment of 1972. However, the Department of Education under the Trump Administration rescinded that letter in 2017, and has telegraphed the emergence of new implementing regulations for Title IX that focus more on the due process rights of the alleged perpetrator. Concern that new regulations will undermine the protections afforded by Title IX and other laws has led to legislative interest in state guidance for implementation of these protections.

This bill seeks to codify aspects of the 2011 "Dear Colleague" letter including notification requirements for parties to a sexual harassment complaint and certain requirements for associated grievance procedures. The bill also incorporates several provisions relating to appropriate procedures to afford reasonable due process protections to all parties, which were standardized in a recent California appellate court decision, including requiring live hearings and opportunities to cross-examine via a neutral fact finder. Most controversially, the bill provides for enforcement by the Attorney General or by private right of action, though the bill in print does not define the parameters of such litigation effectively. The bill in print lacks clarity in many respects, including as to which provisions apply to whom, and many of the details surrounding the private right of action and provisions prohibiting automatic issuing of mutual no-contact directives.

In response to these issues, the author has agreed to a host of clarifying and substantive amendments which, inter alia, specify that the rights and responsibilities delineated in this bill apply to students, and do not confer any new rights to non-student parties, limiting the scope of the private right of action to students who suffered an injury-in-fact for which violation of the provisions of the bill was a proximate cause, and permitting mutual no-contact directives if the complainant has harmed or threatened to harm the respondent, or if the complainant has interfered with, or has threatened behavior that would interfere with, the investigative or disciplinary proceedings through contact with the respondent.

This bill is co-sponsored by Equal Rights Advocates and the Women's Foundation of California Women's Policy Institute, and the bill in print is supported by a coalition of women's advocates, legal aid organizations, civil rights advocates, workers' rights organizations, and domestic violence prevention groups. Supporters of the bill argue that state and federal law lack sufficient guidance to implement workable policies relating to complaints of sexual harassment on campus, and that the clarification and protections for both parties to such a complaint provided by this bill are crucial to ensuring the civil rights, safety, and well-being of all students is paramount. This bill is opposed by groups advocating on behalf of the rights of the accused who are concerned that the bill codifies practices that are inefficient for investigating and hearing complaints, does not sufficiently provide for the due process rights of the accused, and will ultimately conflict with the new federal regulations set to be released this fall. The bill is also opposed unless amended by the University of California and the Association of Independent California Colleges and Universities who are concerned that granting a broad private right of action without defining parameters for litigation will subject the institutions to costly and time consuming lawsuits that may be founded on unmeritorious claims. This bill was heard and approved by the Assembly Committee on Higher Education by a 9-3, party-line vote.

SUMMARY: Requires postsecondary educational institutions in California to comply with specific detailed regulations in conducting proceedings relating to complaints of sexual harassment, including sexual violence, on campus. Specifically, this bill:

1. Provides that in order to receive state funds for student financial assistance, the appropriate governing board or body of each postsecondary institution must implement, and at all times comply with, all of the following requirements:
   1. Disseminate a notice of non-discrimination to each employee of the institution, volunteer who will regularly interact with students, and individual or entity under contract with the institution to perform any service involving regular interaction with students at the institution.
   2. Designate at least one employee of the institution, trained on what constitutes sexual harassment, trauma-informed investigatory and hearing practices, and the grievance procedures of the institution, to coordinate its efforts to comply with and carry out its responsibilities under the provisions of this bill.
   3. Adopt rules and procedures within the policies required by Title IX and otherwise in the Education Code providing for all of the following:
      1. The institution’s primary concern shall be student safety.
      2. The institution shall take reasonable steps to respond to sex discrimination in connection with all academic, educational, extracurricular, athletic, and other programs of the institution, whether those programs take place in the institution’s facilities, during travel, at a class or training program sponsored by the institution at another location, or elsewhere on or off campus where such incidents could interfere with a student's equitable access to education.
      3. If a student files a complaint with the institution regarding an incident that took place on campus, the institution shall process the complaint in accordance with the provisions of this bill; if the incident took place off-campus, the institution shall evaluate the complaint to determine if there is a nexus between the off-campus incident and the institution such that the incident could contribute to a hostile environment on campus - if so, the institution shall process the complaint in accordance with the provisions of this bill.
      4. If the institution knows, or reasonably should know, about possible sexual harassment, the institution shall promptly investigate, and shall immediately take all reasonable steps to eliminate any resulting hostile environment on campus.
   4. Adopt and publish on its internet website grievance procedures that provide for prompt and equitable resolution of student sexual harassment complaints filed by a student against an employee, another student, or a third party.
2. Requires grievance procedures for prompt and equitable resolution of student sexual harassment complaints to include all of the following requirements:
   1. Notice to each student of the grievance procedures, including where and how complaints may be filed.
   2. A neutral fact-finder responsible for investigating the complaint, finding facts, and making credibility assessments in order to determine whether a policy violation has occurred, who is not the same as the person or entity responsible for making disciplinary decisions.
   3. Trauma-informed and impartial investigation of complaints, including the opportunity for both parties to identify witnesses and other evidence to assist the institution in determining whether a policy violation has occurred.
   4. If the institution determines that a hearing is required in order to determine whether a policy violation has occurred, the opportunity for students to cross-examine one another and any adverse witnesses live, through submission of written questions to the neutral fact-finder in advance with an opportunity for the other party to object.
   5. Explanation as to the meaning of a preponderance of the evidence standard and affirmation that such a standard shall apply to all investigations of sexual harassment or sexual violence.
   6. A reasonably prompt timeframe for all of the major stages of the complaint process.
   7. Periodic status updates to students on the investigation consistent with the timelines provided.
   8. Notice in writing to parties of any extension of a time period granted in the investigation and fact-finding process.
   9. Notice in writing to the parties of the outcome of the complaint including whether a policy violation was found to have occurred, the basis for that determination, and any discipline imposed.
   10. Assurance that the institution will take steps to prevent recurrence of any harassment and to correct its discriminatory effects on the complainant and others, if appropriate.
   11. Notice to parties that the institution is conducting a formal investigation, including the allegations and alleged institutional policy violations.
   12. Reasonable procedures for the investigation process, including evidentiary guidelines, deadlines, and limitations on submissions from student parties.
   13. The opportunity to have a support person or adviser accompany a student party during key stages of the investigation and hearing process, if requested.
   14. Notice regarding appropriate counseling resources developed and maintained by the institution for student parties in school misconduct matters involving sexual violence.
   15. Notice that student parties have the right to seek the assistance of an attorney at any stage of the process if they wish to do so.
   16. Information as to the disciplinary outcomes, remedial measures, and systemic remedies that may be put in place during the pendency of an investigation and following a final finding of responsibility, including the following requirements:
       1. An institution shall not mandate mediation to resolve allegations of sexual violence.
       2. An institution shall not require that the complainant enter a voluntary resolution agreement or any other form of resolution as a prerequisite to receiving remedial measures from the institution.
       3. An institution shall not issue an interim mutual no-contact directive automatically when an allegation of harm has been made against only one of the parties, and shall only issue a mutual no-contact directive if there is reason to believe that the complainant has harmed or threatened to harm the respondent, or has interfered with, or threatened behavior that would interfere with, the investigative or disciplinary proceedings through contact with the respondent.
   17. Description of obligations of all faculty and staff designated by the institution as required to report concerns of sexual harassment to the Title IX officer or other designated employee.
   18. A Title IX officer or employee designated to assess each report of sexual harassment and provide outreach, as appropriate, to each identifiable student who is alleged to be the victim of the reported conduct, as specified, and information on the internet website of the institution regarding the contact information of that individual as well as any official within the institution with the authority to investigate complaints made pursuant to these provisions.
   19. Mandatory training to each employee engaged in the grievance procedures related to sex discrimination, including training on trauma-informed investigatory and hearing practices.
   20. Mandatory training to each employee of their obligation to report harassment to appropriate school officials and on the identification of sexual harassment.
3. Allows an action to enjoin a violation of these provisions, or to recover compensatory damages, court costs, and reasonable attorney's fees, as specified, to be brought by the Attorney General or by a student or former student of a postsecondary institution who alleges to have suffered injury-in-fact for which violation of these provisions was a proximate cause.
4. Provides that a violation of these provisions is established by demonstrating in an action in a court of competent jurisdiction any of the following:
   1. That the institution's written policy does not conform to the requirements of these provisions.
   2. That the institution engages in a non-conforming process that does not substantially and materially comply with its written policy.
   3. That an institution, by an act or actions of one of its employees, knowingly violated the requirements of these provisions.
5. Requires a person alleging injury caused by a violation of these provisions to give written notice to the institution and to the Attorney General of the specific provisions alleged to have been violated, including the facts and theories to support the alleged violation and injury, prior to filing a civil action.
6. Permits a person alleging injury to commence a civil action seeking damages after 90 days have elapsed from the date of the institution's receipt of the notice pursuant to 5), above.
7. Provides that a person alleging injury caused by a violation of these provisions may commence a civil action exclusively seeking injunctive relief at any time following written notice pursuant to 5), above.
8. Permits a court to grant compensatory damages as relief in any action filed pursuant to these provisions by a person alleging injury as a result of a violation of these provisions, provided all of the following are demonstrated:
   1. The person suffered an injury-in-fact.
   2. The defendant institution was in violation of these provisions at the time of the alleged injury.
   3. The violation of these provisions by the defendant institution was a proximate cause of the alleged injury.
9. Permits a court, in its discretion, to award the prevailing party in a civil action pursuant to these provisions reasonable attorney’s fees and costs, except that a prevailing defendant shall not be awarded fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.
10. Provides that a person shall bring an action alleging a violation of these provisions no later than the statute of limitations applicable to a personal injury claim in California at the time the cause of action accrues.
11. Provides that, in addition to compensatory damages, injunctive relief or other remedies appropriate to the circumstances may also be available to injured parties who file a civil action under these provisions.
12. If an action brought by the Attorney General establishes a postsecondary institution to be in violation of these provisions, permits the court to assess a civil penalty not to exceed $2,500 per day that the institution remains in violation, and not exceed $50,000 total per violation.
13. Defines "sexual harassment" to include sexual battery, sexual violence, and sexual exploitation, and to have the same meaning as elsewhere in the Education Code.
14. Defines "sexual violence" to mean physical sexual acts perpetrated against a person without the person's affirmative consent, as defined, including all of the following:
    1. Rape, defined as penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.
    2. The intentional touching of another person's intimate parts.
    3. The use of duress or force, or the attempt to use duress or force, to touch another person's intimate parts.
15. Defines "sexual battery" to have the same meaning as in Section 1708.5 of the Civil Code.
16. Defines "sexual exploitation" to mean a person taking sexual advantage of another person for the benefit of anyone other than that person without that person's consent, including all of the following:
    1. The prostituting of another person.
    2. The trafficking of another person, defined as the inducement of a person to perform a commercial sex act, or labor or services, through force, fraud, or coercion.
    3. The recording of images, including video or photograph, or audio of another person's sexual activity, intimate body parts, or nakedness, without that person's consent.
    4. The distribution of images, including video or photograph, or audio of another person's sexual activity, intimate body parts, or nakedness, if the individual distributing those images or audio knows or should have known that the person depicted in the images or audio did not consent to the disclosure.
    5. The viewing of another person's sexual activity, intimate body parts, or nakedness, in a place where the other person would have a reasonable expectation of privacy, without that person's consent, for the purpose of arousing or gratifying sexual desire.
17. Makes several findings and declarations relating the pervasiveness and insidiousness of sexual harassment at postsecondary educational institutions.

EXISTING LAW:

1. Provides, under Title IX of the federal Education Amendments of 1972, that no person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving federal financial assistance. (20 U.S.C. Section 1681 et seq.)
2. Requires any school district, college, or university (recipients) that receive federal financial assistance to comply with procedural requirements outlined in Title IX implementing regulations. Specifically, for purpose of this bill, Title IX regulations require recipients to do the following:
   1. Disseminate a notice of nondiscrimination. Specifies that the notice of nondiscrimination must state that the recipient does not discriminate on the basis of sex in its educational programs and activities, and that Title IX prohibits the recipient from discriminating in such a manner. (34 CFR Section 106.9.)
   2. Designate at least one employee to coordinate its efforts to comply with and carry out its responsibilities under Title IX. (34 CFR Section 106.8 (a).)
   3. Adopt and publish a grievance procedure providing for prompt and equitable resolution of student and employee sex discrimination complaints. (34 CFR Section 106.8 (b).)
3. Declares that it is the policy of this state to afford all persons in public schools, regardless of their disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any other characteristic, equal rights and opportunities in the educational institutions of the state. Declares further that all students have the right to participate fully in the educational process, free from discrimination and harassment; that California’s public schools have an affirmative obligation to combat racism, sexism, and other forms of bias, and a responsibility to provide equal educational opportunity; and that harassment on school grounds directed at an individual on the basis of personal characteristics or status creates a hostile environment and jeopardizes equal educational opportunity. (Education Code Sections 200-201; all further references to code sections refer to the Education Code unless otherwise specified.)
4. Requires educational institutions in California to have a written policy on sexual harassment and to display that policy in a conspicuous place, and to distribute it, as specified, to students, faculty, and staff. (Section 231.5.)
5. Requires the governing board of each community college district, the Trustees of the California State University (CSU), the Regents of the University of California (UC), and the governing boards of independent postsecondary institutions to adopt policies concerning campus sexual violence, domestic violence, dating violence, and stalking that include an affirmative consent standard, detailed and victim-centered policies and protocols, and to use the "preponderance of evidence" standard for determining whether the elements of the complaint against the accused have been demonstrated. (Section 67386.)
6. Requires schools to post information on their websites about the school's designated Title IX coordinator, the rights of students under Title IX, the responsibilities of schools in addressing sexual discrimination and harassment, and a description of how to file a complaint. (Section 221.61.)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: Sexual harassment and assault on college and university campuses is rampant and substantially impedes equitable access to education for victims, who are disproportionately from underserved and minority communities. Several federal and state laws prohibit discrimination on the basis of sex, including at educational institutions, and courts have interpreted such prohibitions to provide an implicit mandate for educational institutions to adopt procedures to identify, mitigate, and discipline sexual harassment and assault. Nonetheless, these laws are general and vague as to the proper implementation of their provisions, leading to vacillating federal guidance, inconsistency, and confusion. In 2011, the Department of Education under the Obama Administration released a "Dear Colleague" letter which provided detailed guidelines for sexual harassment complaint procedures in order to comply with long-standing federal protections against sexual discrimination and harassment enshrined in the regulations of Title IX of the Educational Amendment of 1972. However, the Department of Education under the Trump Administration rescinded this letter in 2017, and has telegraphed the emergence of new implementing regulations for Title IX that focus more on the due process rights of the alleged perpetrator. Concern that new regulations will undermine the protections afforded by Title IX and other laws has led to legislative interest in state guidance for implementation of these protections.

This bill seeks to codify aspects of the 2011 "Dear Colleague" letter including notification requirements for parties to a sexual harassment complaint and certain requirements for associated grievance procedures. The bill also incorporates several provisions relating to appropriate procedures to afford reasonable due process protections to all parties, which were standardized in a recent California appellate court decision, including requiring live hearings and opportunities to cross-examine via a neutral fact finder. Most controversially, the bill provides for enforcement by the Attorney General or by private right of action, though the bill in print does not define the parameters of such litigation effectively. The bill in print lacks clarity in many respects, including as to which provisions apply to whom, and many of the details surrounding the private right of action and provisions prohibiting automatic issuing of mutual no-contact directives. In response to these issues, the author has agreed to a host of clarifying and substantive amendments which, inter alia, specify that the rights and responsibilities delineated in this bill apply to students, and do not confer any new rights on non-student parties, limiting the scope of the private right of action to students who suffered an injury-in-fact for which violation of the provisions of the bill was a proximate cause, and permitting mutual no-contact directives if the complainant has harmed or threatened to harm the respondent, or if the complainant has interfered with, or has threatened behavior that would interfere with, the investigative or disciplinary proceedings through contact with the respondent. The proposed amendments are discussed in this analysis.

According to the author:

[Schools] in California lack sufficient or clear guidance regarding the processes to follow if put on notice of an incident of sex discrimination (including sexual harassment or sexual violence), including during a school misconduct investigation based on an underlying complaint of gender-based discrimination, including sexual harassment and/or violence.

SB 493 will address this deficiency in state law as it concerns institutions of Higher Education, which is particularly important in light of the rampant epidemic of sexual violence in higher education. The bill delineates processes for schools to respond to alleged incidents of sexual harassment and sexual violence. These requirements include: notice and posting requirements to ensure students are aware of such processes, their rights, and where to report; transparent procedures for timely investigating complaints to ensure a fair and equitable process for all parties; [and] training for school officials involved in misconduct investigations[.]

The bill also acknowledges the individuality and autonomy of these institutions and allows ample room for local problem-solving built on a foundation of fundamental process rights students must have. This creates clarity for our higher education institutions and a guaranteed common baseline process experience for California students when it comes to the enforcement of their civil right to equitable access to education.

Sexual harassment, including sexual assault, sexual battery, and sexual exploitation, is alarmingly prevalent at colleges and universities. Recent efforts to quantify the scope of the campus sexual assault epidemic have painted a horrific picture. A report prepared for the National Institute of Justice and submitted to the United States Department of Justice indicated that at the two large public universities surveyed, "13.7 percent of undergraduate women had been survivors of at least one completed sexual assault since entering college: 4.7 percent were survivors of physically forced sexual assault, 7.8 percent of women were sexually assaulted when they were incapacitated after voluntarily consuming drugs and/or alcohol," and 0.6 percent were sexually assaulted while incapacitated after being involuntarily drugged. (Krebs et al., The Campus Sexual Assault (CSA) Study: Final Report (Document 221153), U.S. Department of Justice, Oct. 2007, http://www.ncjrs.gov/pdffiles1/nij/grants/221153.pdf.)

Despite the severity of this issue, the same study suggested that campus sexual assault is dramatically under-disciplined. According to that study, only 0.6 percent of perpetrators of campus sexual assault were disciplined for this conduct by their university, and only 5.7 percent of these perpetrators were arrested, prosecuted, or convicted by the criminal justice system. (Ibid.) These findings are in spite of the fact that 90 percent of campus rapes are committed by repeat offenders comprising approximately six percent of men on campus. (Lisak & Miller, Repeat Rape and Multiple Offending Among Undetected Rapists (2002) Violence and Victims, 17(1), 73-84.) Given this rate of recidivism, colleges and universities appear to lack a sufficiently robust disciplinary framework to protect their students from sexual assault, as ideally these repeat offenders would be disciplined and removed from campus before they can reoffend.

Sexual assault substantially infringes upon the equitable access of victims to educational opportunity. The impact of sexual assault on the educational environment of a victim is startling, and demonstrates a fundamental educational interest, beyond the obvious moral interest, in combating campus sexual assault. The Campus Sexual Assault Study discussed previously spells out some of the repercussions of sexual assault at a college or university: 22.1 percent of victims of forced sexual assault sought psychological counseling, 67.4 percent avoided or tried to avoid the assailant following the assault, 8.3 percent dropped a class, 1.2 percent changed a major, 3.1 percent changed universities, 11.5 percent moved residences, and 3.5 percent quit a job. Worse still, a 2016 study published in the Journal of College Student Retention found that 34 percent of student victims of campus sexual assault dropped out of school. (Mengo & Black, Violence Victimization on College Campus: Impact on GPA and School Dropout (2016) Journal of College Student Retention: Research, Theory & Practice, Vol. 18, Issue 2, https://journals.sagepub.com/doi/abs/10.1177/1521025115584750.)

These affronts to the educational experience of victims are not proportionate across demographics, but rather primarily affect typically underserved communities such as students of color, LGBTQ students, and women. Nearly 14 percent of gay or lesbian students have experienced a sexual assault while at a postsecondary institution (Cantor et al., Report on the AAU Campus Climate Survey on Sexual Assault and Sexual Misconduct, Association of American Universities (Sept. 2015, rev. Oct. 2017)), and transgender students are nearly 300 percent more likely to be sexually assaulted than their cisgender counterparts. (Rankin et al., Sexual Assault Victimization Disproportionately Affects Certain Minority College Students, University of Pittsburgh School of the Health Sciences (Mar. 27, 2017).) Cisgender women are 150 percent more likely to be sexually assaulted than cisgender men, and the disparity is even higher among black women. (Ibid.) Black students face higher rates of sexual assault across all sexual orientations and gender identities. (Ibid.) Considering these disparities, campus sexual assault is not only a moral and educational problem, but a civil rights issue as well.

Title IX and California laws modeled on Title IX prohibit sex discrimination including by requiring policies for ensuring equitable access to education for victims of sexual harassment. Title IX of the Education Amendments of 1972 bars sex discrimination in any "educational institution" that receives or benefits from federal aid. Title IX defines "educational institution" broadly to include local educational agencies, school districts, elementary schools, and secondary schools, as well as colleges and universities. While perhaps best known for its requirement that schools provide equal funding for athletic programs, Title IX covers several academic, extracurricular, and administrative matters related to discrimination on the basis of sex. It applies not only to admissions, but also to treatment of students once they are admitted, including discrimination in housing and facilities, courses, educational activities, counseling, student financial aid, student health and insurance benefits, marital or parental status, and athletics. Moreover, federal regulations and relevant case law generally define "sex discrimination" to include any form of "sexual harassment" of students by peers, employees, faculty, or third parties. Federal regulations also define "sexual harassment" to include any form of "sexual violence." To warrant disciplinary action, the harassment must be sufficiently serious to deny or limit a student's ability to fully participate in, or benefit from, a school's programs or activities. (See U.S. Department of Education, Office for Civil Rights, Title IX Resource Guide, April 2015.) Title IX requirements also interact with two other federal laws: the Jeanne Cleary Act, which requires campuses to report crime statistics and investigate and act upon complaints; and the Violence Against Women Act (VAWA), which, among other things, requires colleges to notify victims of their right not to report the crime to law enforcement and ensures victim confidentiality in crime reporting.

In addition to Title IX and other federal laws, schools in California are also subject to various state laws and policies – for the most part modeled after Title IX – that prohibit sex discrimination, including sexual harassment, in the educational institutions of the state. (See e.g. Education Code Sections 200 et seq.) To further this policy, California law requires every school in the state to develop, publish, and disseminate a written policy on sexual harassment. The policy must include information on where to obtain the specific rules and procedures for reporting charges of sexual harassment and for pursuing available remedies. (Section 231.5.) In the last three years, the Legislature has enacted a number of other laws to address, in particular, the problem of sexual assault on campus. SB 967 (De León), Chap. 748, Stats. 2014, requires California colleges to adopt the so-called "affirmative consent" standard (i.e. only "yes" means "yes"), to educate students about issues of "consent," sexual assault, and bystander intervention, and to review and improve their response and prevention protocols. SB 695 (De León), Chap. 424, Stats. 2015, requires students, as a prerequisite for high school graduation, to take a course in health education that includes information on identifying, preventing, and reporting sexual assault and sexual harassment. AB 2654 (Bonilla), Chap. 107, Stats. 2016, requires colleges to post written policies on sexual harassment on their Internet websites.

Despite federal and state requirements that schools develop policies designed to prevent sexual harassment and sexual violence – and to ensure fair and equitable remedies when such incidents occur – far too many studies suggest that sexual harassment and sexual violence remain a serious problem on schools and campuses. It is difficult to know for certain whether increased reporting of sexual violence on college campuses, in particular, reflects an increase in the incidence of sexual violence and assault or an increase in the reporting of sexual violence and assault. In either case, studies suggesting that one in five women experience some form of sexual harassment, sexual violence, or sexual assault remains unacceptably high.

Previous guidance for implementing the federal campus sexual misconduct requirements was rescinded in 2017 and replaced with a notice of new, substantively distinct, regulations. Though state and federal laws require schools to develop complaint and disciplinary procedures for campus sexual misconduct, the statutory requirements for these procedures are fairly vague in order to allow for campuses to specifically tailor their procedures to their student population. Nonetheless, the lack of specific guidance relating to implementation of such policies has resulted in varying campus procedures that can be either confusing or insufficient in some cases. Accordingly, in April of 2011, the United States Department of Education's Office of Civil Rights issued a "Dear Colleague" letter providing detailed instructions on the requirements of sexual misconduct policies and guidelines for effective implementation. This included specific frameworks for producing and disseminating notices of nondiscrimination, for designating an officer to coordinate Title IX compliance and responsibilities, and for adopting and publishing grievance procedures "for prompt and equitable resolution of student and employee sex discrimination complaints." (Dear Colleague Letter, U.S. Department of Education, Apr. 4, 2011.)

However, in September 2017, Betsy DeVos, the Secretary of Education under President Trump, rescinded the 2011 "Dear Colleague" letter and issued an interim set of "Questions and Answers" that covered, in part, the new policy direction set to replace the previous guidance. (Q&A on Campus Sexual Misconduct, U.S. Department of Education, Sep. 2017.) The Trump Administration then further clarified their policy intent through a Notice of Proposed Rulemaking issued a year later, indicating that new proposed regulations would include the following: colleges and universities must apply basic due process protections for students, including a presumption of innocence throughout the grievance process, written notice of allegations, and equal opportunity to review evidence collected, as well as a right to cross-examination; colleges and universities must hold a live hearing where cross-examination can be conducted through the parties' advisors; colleges and universities may not use a "single investigator" or "investigator-only" model for grievance proceedings; sexual harassment shall be defined as "unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school's education program or activity." (Secretary DeVos: Proposed Title IX Rule Provides Clarity for Schools, Support for Survivors, and Due Process Rights for All, U.S. Department of Education, Nov. 16, 2018.)

Critics have pointed out a number of shortcomings and potential issues created by these proposed regulations. Among such criticisms are that these regulations are premised on a seemingly overstated equivalence between Title IX hearings and criminal cases, despite the fact that the fundamental objectives of these hearings are unique from criminal proceedings. Not only are Title IX hearings civil rather than criminal matters, but the broader objective of these hearings is not to dispense justice, but rather to provide for an educational environment conducive to the school's mission for all students. Additionally, the regulations increase the legal standard for identifying an act as sexual harassment. While typically sexual harassment cases are decided on a "severe or pervasive" standard, these regulations require that the unwelcome sexual conduct is "severe, pervasive, and objectively offensive." This change in standard would generally make it more difficult for a complainant to spur action on the part of the institution toward removing an assailant or other perpetrator of sexual harassment. It is certainly critical that all parties are entitled to due process in grievance proceedings, but it should be noted that these proceedings are not related to the criminal investigation of the alleged offense, which may be carried out in parallel, and while possible discipline may be assigned based on the proceedings, the intent is to mitigate the risk of interfering with student education. These regulations are not yet operational and are currently being reviewed. As such, they would have no preemptive effect on this bill.

SB 169 sought to codify many components of the Title IX compliance guidance provided in the 2011 Dear Colleague letter, but was vetoed by Governor Brown. Because changes in federal policy guidance convoluted the development of sexual misconduct policies on college and university campuses, the Legislature prudently recognized a need for implementation standards. Regular changes in policy can be costly for institutions that must redevelop procedures, and can be confusing for students who may be less informed on new policies and procedures, especially when those policies differ markedly from one institution to another. Accordingly, in 2018, the author of this bill proposed SB 169, which codified several components of the guidance provided in the 2011 "Dear Colleague" letter. Since, generally, the "Dear Colleague" letter provided for more intensive sexual misconduct processes on campuses, the bill did not seem to conflict with federal law, but rather guided California institutions with respect to a stricter standard relative to the alternative federal guidance. Though the bill passed both houses of the Legislature and made it to Governor Brown's desk, it was vetoed due to concerns regarding due process for accused students.

Governor’s veto message:

I am returning Senate Bill 169 without my signature.

This bill would codify a combination of federal regulations and guidance on sexual harassment - some of which has been repealed, some of which is still in effect - as well as some language from model policies that have been developed by California universities.

This is not a simple issue. Sexual harassment and sexual violence are serious and complicated matters for colleges to resolve. On the one side are complainants who come forward to seek justice and protection; on the other side stand accused students, who, guilty or not, must be treated fairly and with the presumption of innocence until the facts speak otherwise. Then, as we know, there are victims who never come forward, and perpetrators who walk free. Justice does not come easily in this environment.

That is why in 2014 I signed into law the first affirmative consent standard in the country for colleges to adopt in their sexual assault policies, so that clear and basic parameters for responsible behavior could be established. Yes Means Yes, along with its attendant preponderance standard, is the law in California, which only the courts or a future legislature can change.

Since this law was enacted, however, thoughtful legal minds have increasingly questioned whether federal and state actions to prevent and redress sexual harassment and assault - well-intentioned as they are - have also unintentionally resulted in some colleges' failure to uphold due process for accused students. Depriving any student of higher education opportunities should not be done lightly, or out of fear of losing state or federal funding.

Given the strong state of our laws already, I am not prepared to codify additional requirements in reaction to a shifting federal landscape, when we haven't yet ascertained the full impact of what we recently enacted. We have no insight into how many formal investigations result in expulsion, what circumstances lead to expulsion, or whether there is disproportionate impact on race or ethnicity. We may need more statutory requirements than what this bill contemplates. We may need fewer. Or still yet, we may need simply to fine tune what we have.

It is time to pause and survey the land.

I strongly believe that additional reflection and investment of time in understanding what is happening on the ground will help us exercise due care in this complex arena. I intend to convene a group of knowledgeable persons who can help us chart the way forward.

The court in Doe v. Allee identified procedural standards for institutional disciplinary procedures to provide parties to sexual harassment grievances with sufficient due process. A commonality between Governor Brown's veto message and the proposed regulations by the current federal administration is the focus on due process protections for the accused. Several cases in California and elsewhere have weighed in on the availability of due process across a number of different institutional disciplinary procedures related to sexual misconduct, and have arrived at different conclusions (if any) as to how a procedure can appropriately balance the rights of the accused with the safety and security of the alleged victim. The Court of Appeal of California's Second Appellate District considered the range of decisions on this topic in deciding Doe v. Allee (2019) 30 Cal. App. 5th 1036. The court in Doe v. Allee was tasked with determining whether, if a student accused of sexual misconduct faces severe disciplinary sanctions and the credibility of witnesses is central to the adjudication, due process rights require the opportunity for cross-examination of those witnesses at a live hearing in front of a neutral fact finder. The court ultimately held that the availability of live cross-examination in front of a neutral fact finder is, under state law, the minimum standard for affording due process to the parties. The court described their determination as follows:

[We] hold that when a student accused of sexual misconduct faces severe disciplinary sanctions, and the credibility of witnesses (whether the accusing student, other witness, or both) is central to the adjudication of the allegation, fundamental fairness requires, at a minimum, that the university provide a mechanism by which the accused may cross-examine those witnesses, directly or indirectly, at a hearing in which the witnesses appear in person or by other means (e.g. videoconferencing) before a neutral adjudicator with the power independently to find facts and make credibility assessments. That fact finder cannot be a single individual with...divided and inconsistent roles... (Doe v. Allee, 30 Cal. App. 5^th at 136-137.)

This bill seeks to codify aspects of the 2011 Dear Colleague letter as well as the standard provided by Doe v. Allee to provide a uniform procedural baseline for Title IX sexual harassment complaints at California postsecondary institutions. This bill contains many of the same provisions as SB 169 in that guidance from the 2011 "Dear Colleague" letter would be codified as a standard framework for sexual misconduct grievance proceedings on campus. In addition, this bill also incorporates the procedural standard for sufficient due process provided by Doe v. Allee. It provides for extensive noticing requirements for student parties to complaints regarding sexual harassment allegations on campus or at other locations during activities with a nexus to campus, including notice of rights and resources, as well as the nature of proceedings. The bill in print also provides that an action to enforce its provisions can be brought either by the Attorney General, or by a person whose right to equitable access to education was infringed by violation of the bill, and that mutual no-contact agreements shall not be permitted, and shall be imposed only unilaterally against the alleged perpetrator unless a counter complaint has been filed. The bill in print lacks clarity in a number of provisions, including an absence of specific remedies available to persons bringing actions for violation of the bill, and confusion as to which provision of the bill apply to whom (e.g. students only, students and employees, third parties, etc.). However, the author has accepted proposed amendments to provide essential clarity in these respects, specifying that the provisions of this bill apply to student parties and do not provide non-students with any rights beyond those conferred otherwise in statute or regulation.

Private right of action. Much of the controversy surrounding this bill relates to the author's decision to include a private right of action as a means of enforcing its provisions. The author and supporters contend the private right of action is essential to ensure compliance as it democratizes enforcement authority. Critics, primarily institutions that would be subject to such actions, argue that the inclusion of a private right of action in the bill in print, particularly with minimal parameters provided to clarify its boundaries, will result in costly and unmeritorious litigation, and could lead to weaponization of the legal system in order to coerce favorable judgments in complaint proceedings. To address these concerns in part, the author has agreed to amendments that limit the scope of this right of action. Rather than applying to any party that can allege infringement upon their right to equitable access to education, the proposed amendments specify that a student or former student can bring an action for injunctive relief, compensatory damages, and/or attorney's fees, if they establish that 1) the institution was in violation of the provisions of this bill; 2) the student or former student suffered an injury-in-fact; and 3) the violation of the provisions of this bill was a proximate cause of the injury-in-fact. The additional limitations and guidance here clarify the intent of this private right of action and reduce the risk of frivolous litigation apart from receiving damages for harms. The proposed amendments also require written notice to the institution and the Attorney General if such harm is alleged and an action will be brought, and does not permit an action to commence seeking compensatory damages for at least 90 days from the receipt of the written notice. The proposed amendments further clarify the remedies that can be sought by the Attorney General as well by defining a civil penalty, and clarifying that the Attorney General is seeking penalties for the violation of the bill, whereas the private party would be seeking damages for injury caused by violations of the bill.

Mutual no-contact directive. Another controversial component of the bill in print is its prohibition of issuing mutual no-contact directives upon receipt of a sexual misconduct complaint. Often when investigating and hearing a complaint relating to sexual misconduct, an institution will issue a directive that the two parties do not contact one another. The objective here, according to those institutions, is to cool the situation down in order to avoid retaliation, particularly by the respondent. However, the author and sponsors of the bill point out that restrictions on behavior that could result in disciplinary action should not be imposed on a complainant simply by virtue of having brought a complaint, especially since no allegations of wrongdoing have been alleged about the complainant. The bill in print does permit issuing a mutual no-contact directive when a counter-allegation of harm exists, so long as it is not facially retaliatory.

There are valid arguments both in favor and against permitting the use of mutual no-contact directives, but balancing the interests of both parties in this respect requires a delicate approach. In an effort to address the concerns of the opposition toward the no-contact directive provision, the author has agreed to proposed amendments that would allow a mutual no-contact directive to be issued if there is reason to believe that the complainant has harmed or threatened to harm the respondent, or has interfered with, or threatened behavior that would interfere with, the investigative or disciplinary proceedings through contact with the respondent. The proposed amendments also require the institution to provide a party or parties subject to a no-contact directive with a written justification for the directive and an explanation of the terms of the directive, including circumstances, if any, under which violation could be subject to disciplinary action.

Impending federal regulations. Some concerns have been raised that the adoption of the provisions of this bill would be premature considering the likelihood that the new federal Title IX regulations will be released in the near future. Though it is unlikely that the provisions of this bill would conflict with such regulations considering the general authority of states to impose stricter regulations than those at the federal level, and considering the provisions of this bill largely implement rather than modify Title IX, proposed amendments nonetheless address this concern. The author has agreed to include intent language clarifying that this bill is intended to work in conjunction with Title IX and other federal and state laws, and has also included a severability clause in the event any provision of the bill is preempted by the new regulations.

ARGUMENTS IN SUPPORT: This bill is supported by a large coalition of women's rights advocates, legal aid organizations, civil rights advocates, workers' rights organizations, and domestic violence prevention groups. Supporters of the bill argue that state and federal law lack sufficient guidance to implement workable policies relating to complaints of sexual harassment on campus, and that the clarification and protections for both parties to such a complaint provided by this bill are crucial to ensuring that the civil rights, safety, and well-being of all students is paramount to the process.

Public Counsel, the nation's largest public interest law firm specializing in delivering pro bono legal services to low-income communities, argues:

Existing state and federal laws prohibit discrimination in education based on sex and require equal access to educational opportunities. However, there is insufficient state law and/or agency guidance regarding the processes that schools must have in place to respond to complaints of sexual harassment and assault and thereby ensure that students' right to equal access to education is upheld.

SB 493 will address this gap in state law by outlining processes for institutions of higher education to follow to respond to and investigate sexual harassment and assault, in order to ensure clarity for students and a fair process for both the complainant and respondent to protect the civil rights, safety and well-being of all students.

ARGUMENTS IN OPPOSITION: This bill is opposed by groups advocating on behalf of the due process rights of the accused, including Families Advocating for Campus Equality and Stop Abusive and Violent Environments, who are concerned that the bill codifies practices that are inefficient for investigating and hearing complaints, does not sufficiently provide for the due process rights of the accused, and will ultimately conflict with the new federal regulations set to be released this fall.

The bill is also opposed unless amended by the University of California and the Association of Independent California Colleges and Universities. Representatives of these institutions share concerns that granting a broad private right of action without defining parameters for litigation will subject the institutions to costly and time consuming lawsuits that may be founded on unmeritorious claims. They also express concerns that the limitations on mutual no-contact directives eliminate an important interim measure that can help protect against cross-complaints while an allegation is being investigated. The University of California argues:

The measure currently in print is not practicable, and would significantly expand the burdens on California’s schools as they investigate sexual assault allegations. Over the past several weeks, we have worked with our higher education partners to communicate those concerns to the author and to develop solutions that ensure a fair and equitable process without unintended consequences.

The UC’s concerns include:

1. Granting a broad private right of action without defining parameters for litigation. The University believes that the broad scope of right to sue would likely result in unmeritorious claims that would disrupt investigations. For example, the University already faces more litigation related to sexual violence and sexual harassment from respondents than complainants, and we believe that respondents will make disproportionate use of the private right of action.

2. Prohibiting mutual no-contact directives. A mutual no-contact directive can serve as an important interim measure during an investigation. These are issued on a case-by-case basis and are reviewed regularly to ensure equity in the process. We are concerned that a prohibition would lead to an increase in cross-complaints against students who come forward seeking help.

3. Conflicting or unclear definitions. California has an affirmative consent standard for the adjudication of Title IX hearings on college and university campuses. However, the author has not clarified why the existing definition needs to be modified. The bill references definitions in the Penal Code, which will be difficult to reconcile or administer in an academic – not judicial – setting; these conflicts would result in unclear policies.

Several of these concerns have been addressed, in part, by the proposed amendments, but it is unclear whether the proposed amendments satisfy the concerns of these institutions. Limitations on the private right of action to situations in which violation of the provisions of the bill constitutes a proximate cause of injury-in-fact to the student would significantly narrow the scope of this right and the likelihood of frivolous litigation. The proposed amendments also adjust the mutual no-contact provision to permit mutual no-contact directives if the complainant has harmed or has threatened to harm the respondent, or if the complainant has interfered with, or has threatened to interfere with, the investigative or disciplinary proceedings through contact with the respondent. Definitions are proposed to be amended to draw either from the Cleary Act or the Education Code if possible, except when no such definitions are available, in which case Civil Code definitions are used instead of Penal Code definitions, underscoring that this is a civil, rather than criminal, proceeding.

REGISTERED SUPPORT / OPPOSITION:

SUPPORT

Equal Rights Advocates (co-sponsor)

Women's Foundation of California, Women's Policy Institute (co-sponsor)

Alameda County District Attorney's Office
American Association of University Women - California
Asian Americans Advancing Justice - California
Asian Pacific Institute on Gender Based Violence
Asian Pacific Policy and Planning Council
Business and Professional Women of Nevada County
California Association for Health, Physical Education, Recreation & Dance
California Commission on the Status of Women and Girls

California Faculty Association
California Partnership to End Domestic Violence
California State Council of Service Employees
California Voices for Progress
California Women's Law Center
Child Care Law Center
Children's Defense Fund-California
Citizens for Choice
City and County of San Francisco Department on the Status of Women
Coalition for Humane Immigrant Rights
Consumer Attorneys of California
Courage Campaign
Ella Baker Center for Human Rights
Empowering Pacific Islander Communities (EPIC)
End Rape on Campus
End Violence Against Women International
Family Violence Law Center
Feminist Majority Foundation

Girls, Inc. of Orange County
Motivating Individual Leadership for Public Advancement (MILPA)
National Association of Social Workers, California Chapter
Peace Over Violence
Public Counsel
Southeast Asia Resource Action Center
United Food and Commercial Workers, Western States Council

Voices for Progress

OPPOSITION

Families Advocating for Campus Equality (FACE)

Hathaway Parker, LLP
Stop Abusive and Violent Environments (SAVE)

OPPOSE UNLESS AMENDED

Association of Independent California Colleges and Universities (AICCU)

University of California

Analysis Prepared by: Landon Klein / JUD. / (916) 319-2334

Date of Hearing: June 25, 2019

ASSEMBLY COMMITTEE ON HIGHER EDUCATION

Jose Medina, Chair

SBPCA Bill Id:SB 493

Author:(Jackson) – As Amended Ver:May 17, 2019

[Note: This bill is doubled referred to the Assembly Committee on Judiciary and will be heard by that Committee as it relates to issues under its jurisdiction.]

SENATE VOTE: 30-8

SUBJECT: Education: sex equity

SUMMARY: This bill requires higher education institutions to, among other things, adopt rules and procedures for the prevention of sexual harassment, and adopt and post on their Web sites the grievance procedures to resolve complaints of sexual harassment. Specifically, this bill:

1. Requires, as a condition of receiving state funds for student financial assistance, the governing board or body of a campus of the University of California (UC), California State University (CSU), or California Community College, a private postsecondary educational institution, or an independent institution of higher education that receives state funds to comply with all of the following requirements at the institution:
   1. Disseminate a notice of non-discrimination to each employee of the institution, volunteer who will interact with students more than 10 hours in a calendar year, and individual under contract with the institution to perform any service at the institution. The notice must include but is not limited to all information required to be included in the currently-required notice related to written policies on sexual harassment;
   2. Designate at least one employee to act as a gender equity officer to coordinate its efforts to comply with and carry out its responsibilities. This bill authorizes the gender equity officer to be the same individual as the institution’s federal Title IX coordinator. This bill requires the gender equity officer to have adequate training on what constitutes sexual harassment and on trauma-informed investigatory and hearing practices, and understand how the institution’s grievance procedures operate;

Sexual harassment policy

• 1. Adopt rules and procedures for the prevention of sexual harassment that also provides for specified elements, including but not limited to:
     1. The institution’s primary concern shall be student safety. The use of alcohol, or drugs, or both shall not constitute grounds for determining that a complainant is at fault for sexual harassment or sexual violence; and,
     2. If a student files a complaint with the institution regarding an incident that took place on campus, the institution shall process the complaint in accordance with this bill. If a student files a complaint regarding an incident that took place off-campus, the institution shall evaluate the complaint to determine if there is a nexus between the off-campus incident and the institution such that the incident could contribute to a hostile environment on campus. If such a nexus exists, the institution shall process the complaint in accordance with this section. In the absence of evidence to the contrary, a nexus to the campus exists whenever the incident complained of is so grievous and the likelihood of continuing to encounter the perpetrator on campus is so credible that inaction would deprive the complainant of the benefits of any education program.

Grievance procedures

• 1. Adopt and publish on its Web site grievance procedures that provide for prompt and equitable resolution of student sexual harassment complaints filed by a student against an employee, another student, or a third party. This bill requires the grievance procedures to satisfy specified requirements, including, but not limited to:
     1. They shall require notice to each student of the grievance procedures, including where and how complaints may be filed;
     2. They shall ensure that the investigation of the allegation and the adjudication of the matter are not conducted by the same person or entity;
     3. They shall provide for a hearing before a neutral adjudicator with the power independently to find facts and make credibility assessments;
     4. They shall ensure adequate, reliable, trauma-informed and impartial investigation of complaints, including the opportunity for both parties to present witnesses and other evidence;
     5. They shall include an explanation of the meaning of a preponderance of the evidence standard, which shall apply to all investigations involving complaints of sexual harassment or sexual assault. The preponderance of the evidence standard is met if an allegation is more likely than not to be true;
     6. They shall provide for notice in writing to parties of any extension of a time period granted in the investigation and outcome determination process;
     7. They shall provide for notice to parties of the outcome of the complaint in writing. The written outcome shall explain to the parties the reasons for the decision; and,
     8. They shall contain a requirement that the gender equity officer, or that officer’s designee, assess each report of sexual harassment and provide outreach, as appropriate, to each identifiable student who is alleged to be the victim of the reported conduct. This bill requires outreach to include specified information.
  2. Provide that this bill does not require a school to provide separate grievance procedures for student sexual harassment complaints, and authorizes the school to use student disciplinary procedures or other separate procedures to resolve sexual harassment complaints. This bill requires any procedures used to adjudicate complaints of sexual harassment, including disciplinary procedures, to afford a complainant and a respondent a prompt and equitable resolution;

Rights that must be provided in grievance procedures

• 1. Provide that if both the complainant and the respondent are students at the institution, they shall be afforded specified rights, including:
     1. To have the opportunity to give information, identify witnesses, and provide documentary information during the course of the investigation and the opportunity and a reasonable amount of time to respond to any evidence upon which any findings will be based;
     2. To have a support person or adviser accompany a student party during key stages of the investigation and hearing processes, if requested;
     3. To receive a notice regarding appropriate legal and counseling resources developed and maintained by the institution for student parties in school misconduct matters involving sexual violence;
     4. To receive a written outcome of the findings, including disciplinary outcomes; and
     5. If the institution has an appeals process for an investigation, for either party to appeal the outcome of the misconduct proceeding or the disciplinary proceeding.

Cross examination

• 1. Provide that nothing in this bill requires schools to provide non-student parties with rights listed in this bill, to the extent that the student rights listed in this bill do not otherwise exist by statute or agreement;
  2. Require the grievance procedures to provide both parties the opportunity, during the hearing, to cross-examine one another and any witnesses against them subject to the following rules:
     1. The cross examination shall be live, but either party and any witness may request to answer the questions by video from a remote location; and
     2. The live cross examination of either party and any witnesses shall be conducted indirectly, through the submission of written questions to the neutral adjudicator in advance and with an opportunity for the other party to object. The neutral adjudicator shall have the authority and obligation to discard or rephrase any question that the neutral adjudicator deems to be repetitive, irrelevant, or harassing. In making these determinations, the neutral adjudicator is not bound by, but may take guidance from, the formal rules of evidence. The neutral adjudicator shall provide a mechanism for both parties to ask, indirectly, through the neutral adjudicator, and subject to objections, follow up questions to be posed to the cross-examinee. The neutral adjudicator shall be empowered to require any witness to answer any question to which, in the view of the neutral adjudicator, the witness has not yet been responsive. In no circumstance shall a cross-examinee be limited to answering “yes” or “no.”

Prohibitions that must be included in grievance procedures

• 1. Require remedial measures, and systemic remedies put in place following a final finding of responsibility. To ensure this right is properly protected, an institution of higher education is prohibited from doing any of the following:
     1. Mandating mediation to resolve allegations of sexual assault;
     2. Requiring that the complainant enter a voluntary resolution agreement or any other form of resolution as a prerequisite to receiving remedial measures from the institution which safeguard the complainant’s access to education; and,
     3. Issuing a mutual no-contact directive when an allegation of harm has been made against only one of the parties or when a counter allegation of harm is facially retaliatory.

Who to contact

• 1. Require institutions to publish in a prominent place on its Web site, with accompanying text clearly associating them with the sexual harassment and sexual assault grievance processes, the name, title, and contact information (which shall include the telephone number, office location, and email address) of each of the following individuals:
     1. The gender equity officer or the gender equity officer’s designee; and,
     2. Any individual official within the institution with the authority to investigate complaints made or to institute corrective measures such as sanctions, accommodation, or other forms of resolution of the complaint.

Training

• 1. Require institutions to provide mandatory training to each employee engaged in the grievance procedures related to sex discrimination, including sexual violence, which shall include for these employees training on trauma-informed investigatory and hearing practices that help ensure an impartial and equitable process, best practices for assessment of a sexual harassment or sexual assault complaint and best practices for questioning of the complainant, respondent, and witnesses, and on implicit bias, the history of institutional racism, and racial inequities, both broadly and in school disciplinary processes. This bill requires materials approved by the institution for this training to include statistics on the prevalence of sexual harassment and sexual violence in the educational setting, and the rates at which students of color, LGBTQI, disabled, non-binary, cisgendered female, and cisgendered male students experience sexual harassment and sexual assault on campus to ensure that campus procedures are grounded in best practices; and

(This bill requires, when possible, citation to such data to be included in the written anti-discrimination policies accompanying the institution’s grievance procedures.)

• 1. Require an institution, if it has on-campus housing, to ensure that residence life student and non-student staff, or their equivalent, annually receive training on trauma-informed handling of reports made to them regarding incidents of sexual harassment or assault, or incidents of sexual harassment or assault of which they have actual or constructive knowledge in student residential facilities.

Action in court

1. Authorizes either of the following people to bring an action in a court of competent jurisdiction to enjoin a knowing violation of this bill or to recover compensatory damages, court costs, and reasonable attorney’s fees, or all of these:
   1. The Attorney General, consistent with the Attorney General’s existing authority under Section 13 of Article V of the California Constitution and Article 2 (commencing with Section 11180) of Chapter 2 of Part 1 of Division 3 of Title 2 of the Government Code, to investigate, and, as necessary, prosecute any knowing violation of the law. The Attorney General may also conduct an investigation or bring an action under this section; and,
   2. A person whose right to equitable access to a higher education institution, program, or activity through a higher education institution that is a recipient of state funds was infringed through knowing violation of this bill.
2. Requires that a person bring an action no later than the statute of limitations applicable to a personal injury claim in California at the time the cause of action accrues.
3. Authorizes civil law remedies to also be available to complainants.

Miscellaneous

1. Requires this bill to be implemented at each higher education institution by January 1, 2021.
2. Requires the gender equity officer, if the school relies on disciplinary procedures for compliance, to review the school’s disciplinary procedures to ensure that the procedures comply with the requirements of this bill.
3. Defines “higher education institution” as a campus of the University of California, California State University, or California Community College, a private postsecondary educational institution, or an independent institution of higher education that receives state funds.
4. Modifies the definition of “sexual harassment” to specifically include sexual battery, sexual violence, and sexual exploitation.
5. Defines “sexual violence” as physical sexual acts perpetrated against a person without the person’s affirmative consent, and provides that physical sexual acts include specified acts such as rape.
6. Defines “sexual battery” as is currently defined in the Penal Code.
7. Defines “sexual exploitation” as taking sexual advantage of another person for the benefit of anyone other than that other person without that other person’s consent, regardless of that other person’s affiliation with the higher education institution, including specified acts.

EXISTING LAW:

Existing federal law:

1. Provides that, in part, "no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program of activity receiving Federal financial assistance." Enforcement of compliance is initiated upon the filing of a complaint alleging a violation of Title IX.
2. Requires each school district and county office of education, or a local public or private agency that receives funding from the state or federal government, to designate a person to serve as the Title IX compliance coordinator to enforce compliance at the local level, including coordinating any complaints of non-compliance. (Title IX of the Education Amendments of 1972 to the 1964 Civil Rights Act)

Existing state law:

1. Requires each educational institution in California (K-12 and postsecondary education) to have a written policy on sexual harassment, and requires schools to display the policy in a prominent location in the main administrative building or other area of the campus or schoolsite, be provided as part of any orientation program for new students, provided to each faculty member, administrative staff and support staff, and appear in any publication of the school that sets forth the rules, regulations, procedures and standards of conduct. (Education Code (EDC) Section 231.5 and Section 66281.5)
2. Requires the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions to adopt policies concerning campus sexual violence, domestic violence, dating violence, and stalking that includes an affirmative consent standard, detailed and victim-centered policies and protocols, and the standard used in determining whether the elements of the complaint against the accused have been demonstrated is the preponderance of the evidence. (EDC Section 67386)
3. Requires schools to post information on their Web sites relative to the designated Title IX coordinator, rights of students and responsibilities of schools, and a description of how to file a complaint. (EDC Section 221.61)

FISCAL EFFECT: According to the Senate Appropriations Committee:

1. The bill’s provision creating a private cause of action will result in unknown but potentially significant costs associated with litigation to the UC and CSU.
2. CSU estimates an additional $1.8 million associated with the bill’s provisions allowing a suing party to recover compensatory damages and reasonable attorney’s fees. CSU also estimates additional costs of about $3.7 million for each campus to hire a new gender equity officer for each of its 15 campuses.
3. The Department of Justice estimates ongoing General Fund costs of approximately $895,000 to fund four positions.

COMMENTS: Need for the bill. According to the author, “Schools in California lack clear guidance regarding the rights California students are entitled to during a school misconduct investigation and proceeding involving an underlying complaint of gender-based discrimination, including sexual harassment and/or violence.”

“Gender-based discrimination is prohibited under federal law in federally-funded academic institutions and state law in state-funded academic institutions; and federal Title IX regulations require a “prompt and equitable” process for investigating and issuing a finding in Title IX-related student misconduct complaints.”

“While existing state and federal laws prohibit discrimination in education based on sex and require equal access to educational opportunities, there is insufficient state law and/or agency guidance regarding the processes that a college or university must have in place to respond to and investigate complaints of sexual harassment and assault in order to ensure that students’ right to equal access to education is upheld.”

“SB 493 will address this deficiency in state law as it concerns institutions of Higher Education, which is particularly important in light of the rampant epidemic of campus sexual assault. The bill delineates processes for schools to respond to allegations of sexual harassment and violence, including notice and posting requirements (to ensure students are aware of such processes and their rights) as well as transparent procedures for investigating complaints to ensure a fair and equitable process for all parties.”

“The bill also acknowledges the individuality and autonomy of these institutions and allows ample room for local problem-solving built on a foundation of fundamental process rights students must have. This creates clarity for our higher education institutions and a guaranteed common baseline process experience for California students in higher education when it comes to the enforcement of their civil right to equitable access to education.”

Scope of the problem. In August of 2014 the U.S. Department of Justice Office on Violence Against Women (OVW) funded the Bureau of Justice Statistics (BJS) to develop and test a pilot campus climate survey that could be implemented by schools or researchers. BJS contracted with RTI International, a nonprofit research organization, to collaborate on the design and implementation of the Campus Climate Survey Validation Study (CCSVS). The CCSVS surveyed more than 23,000 students across 9 higher education institutions found that:

1. 1 in 5 female students in their fourth year of college had experienced attempted or completed sexual assault while in college.
2. Freshman women were at greater risk for sexual assault during the first months of the school year (August-October) than at any other time throughout college.
3. About 65% of surveyed rape victims reported the incident to a friend, family member, or roommate. Less than 10% reported it to police or school officials.

In 2015, the Association of American Universities (AAU) published a report on sexual assault and sexual misconduct. Based on a survey of more than 150,000 students at 27 universities, their findings indicated:

1. 11.7% of student respondents reported experiencing some form of nonconsensual sexual contact.
2. The most common reason for not reporting sexual assault and sexual misconduct victimization was that students did not consider the victimization to be serious enough.
3. Other common reasons for not reporting sexual assault and sexual misconduct included fear that nothing would be done, embarrassment, and emotional distress.

Proposed changes to federal Title IX rules. The United States Department of Education rescinded guidance issued by the previous administration that is related to how institutions of higher education are to comply with Title IX, and issued new guidance in September 2017. Guidance is not necessarily legally binding. In November 2018, the US Department of Education released proposed changes to Title IX rules, which upon implementation would be legally binding. Proposed changes that are related to provisions of this bill include:

1. Places limits on the use of the “preponderance of evidence” standard, and requires institutions of higher education to otherwise use the “clear and convincing evidence” standard.
2. Modifies the standard for when an institution of higher education must respond to allegations of sexual harassment from “know or reasonably should know” to “actual knowledge.”
3. Allows for the cross-examination of complainants during a live hearing.
4. Excludes some off-campus conduct.

This bill specifically applies the preponderance of evidence standard to all investigations; requires an institution that receives a complaint regarding an incident that took place on campus to process the complaint in accordance with this bill; requires the live cross examination of either party and any witnesses to be conducted indirectly, through the submission of written questions to the neutral adjudicator in advance and with an opportunity for the other party to object; and prohibits an institution from mandating mediation, requiring the complainant enter a voluntary resolution agreement or any other form of resolution, or issuing a mutual no-contact directive.

If this bill were to become law and the proposed changes to federal Title IX rules are adopted, California would have stronger Title IX protections and requirements in institutions of higher education than would be required by federal standards.

Federal guidance institutions have been following. The United States Department of Education’s Office for Civil Rights (OCR) issued a “Dear Colleague” letter on April 4, 2011, providing guidance on ensuring compliance with Title IX specific to sexual harassment. The letter detailed numerous requirements under Title IX related to sexual harassment, explained that sexual harassment includes sexual violence, and provided guidance relative to specific requirements pursuant to Title IX. The OCR stated that its “letter does not add requirements to applicable law, but provides information and examples to inform recipients about how OCR evaluates whether covered entities are complying with their legal obligations.” This guidance stated, among other things, that:

1. Sexual harassment of students, which includes acts of sexual violence, is a form of sex discrimination prohibited by Title IX.
2. Institutions must publish a notice of non-discrimination, as specified.
3. Institutions must designate an employee as the Title IX coordinator and notify students and employees of the name and contact information for the Title IX coordinator.
4. Institutions that know or reasonably should know about harassment that creates a hostile environment must take immediate action to eliminate the harassment, prevent its recurrence, and address its effects.
5. Institutions must adopt and publish grievance procedures providing for the prompt and equitable resolution of sex discrimination complaints.
6. Institutions’ grievance procedures should specify the timeframe within which the institution will conduct a full investigation, both parties receive a response regarding the outcome, and the parties may file an appeal.
7. Institutions must use a preponderance of the evidence standard (it is more likely than not that sexual harassment or violence occurred) in order for the grievance procedures to be consistent with Title IX standards.
8. Institutions are not relieved of their duty under Title IX to resolve complaints promptly and equitably whether or not a criminal investigation is underway.
9. Institutions must notify both parties, in writing, about the outcome of the complaint and any appeal.
10. Institutions need to ensure their employees are trained to know how to report harassment and how to respond properly.

This bill essentially codifies the guidance provided by the OCR’s “Dear Colleague” letter in 2011, as well as imposes requirements, procedures, and rights that the proposed changes in federal Title IX rules modify.

Related workgroup. This bill is similar to SB 169 (Jackson, 2018), which was vetoed by Governor Brown. A portion of Governor Brown’s veto message read “I am not prepared to codify additional requirements in reaction to a shifting federal landscape, when we haven't yet ascertained the full impact of what we recently enacted. We have no insight into how many formal investigations result in expulsion, what circumstances lead to expulsion, or whether there is disproportionate impact on race or ethnicity. We may need more statutory requirements than what this bill contemplates. We may need fewer. Or still yet, we may need simply to fine tune what we have. It is time to pause and survey the land. I strongly believe that additional reflection and investment of time in understanding what is happening on the ground will help us exercise due care in this complex arena. I intend to convene a group of knowledgeable persons who can help us chart the way forward.”

Governor Brown subsequently convened a workgroup, and the workgroup issued their recommendation in November 2018. Most of the working group’s findings are consistent with this bill. For example, among other things, the governor’s working group embraced the focus on sexual misconduct as involving both sexual harassment and sexual violence, the importance of training on trauma-informed investigatory practices, the use of the preponderance of the evidence standard, the right to legal counsel if desired, and the importance of ensuring that any cross-examination is conducted indirectly.

There are differences between some nuances of the working group’s recommendations and some nuances of the content of this bill. For example, while the governor’s working group embraced the preponderance of the evidence standard, it describes that standard as requiring “persuasive, relevant, and substantial” evidence, whereas the bill uses the more traditional explanation that preponderance of the evidence means “more likely than not.” Similarly, while both the governor’s working group and the bill emphasize that investigations must be impartial, and both endorse the importance of trauma-informed investigatory methods, the governor’s working group also explicitly states that trauma-informed investigatory methods should not be used to undermine the impartiality of the investigation, whereas the bill assumes that such methods, used properly, enhance truth-finding and impartiality.

Related court decision. In Doe v. Allee (2019) 30 Cal.App.5th 1036, the court set aside the expulsion of a student accused of sexual assault. The court criticized the higher education institution’s procedures for handling complaints of sexual assault and provided the following minimal standard:

“…we hold that when a student accused of sexual misconduct faces severe disciplinary sanctions, and the credibility of witnesses (whether the accusing student, other witnesses, or both) is central to the adjudication of the allegation, fundamental fairness requires, at a minimum, that the university provide a mechanism by which the accused may cross-examine those witnesses, directly or indirectly, at a hearing in which the witnesses appear in person or by other means (such as means provided by technology like videoconferencing) before a neutral adjudicator with the power independently to find facts and make credibility assessments. (Doe v. Allee (2019) 30 Cal.App.5th 1036, 1039.)”

Unlike the proposed federal regulations, these court rulings are currently binding on California.

Preponderance of evidence standard. According to the 2011 “Dear Colleague” letter from the OCR, “the Supreme Court has applied a preponderance of the evidence standard in civil litigation involving discrimination under Title VII of the Civil Rights Act of 1964 … Like Title IX, Title VII prohibits discrimination on the basis of sex.” The letter also notes that the Title IX regulations adopt the procedural provisions applicable to Title VI of the Civil Rights Act. The letter states “Thus, in order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of evidence standard.” Existing state law, pursuant to SB 967 (de León, Chapter 748, Statutes of 2014), requires California’s postsecondary institutions to adopt policies concerning campus sexual violence that includes an affirmative consent standard and the preponderance of evidence standard for determining whether the elements of the complaint against the accused have been demonstrated.

Training. Current law requires institutions of higher educations’ policies and procedures to include training for campus officials involved in investigating and adjudicating cases, but stops short of actually requiring the training to occur. This bill requires institutions to provide the mandatory training to each employee engaged in the grievance procedures related to sex discrimination, including sexual violence. This bill requires the training to include training on trauma-informed investigatory and hearing practices that help ensure an impartial and equitable process, best practices for assessment of a sexual harassment or sexual assault complaint, best practices for questioning of the complainant, respondent, and witnesses, and on implicit bias, the history of institutional racism, and racial inequities, both broadly and in school disciplinary processes.

This bill requires the gender equity officer to have adequate training on what constitutes sexual harassment and on trauma-informed investigatory and hearing practices, and understand how the institution’s grievance procedures operate. This bill also requires residence life student and non-student staff to annually receive training on trauma-informed handling of reports made to them regarding incidents of sexual harassment or assault, or incidents of sexual harassment or assault of which they have actual or constructive knowledge in student residential facilities It is unclear whether all campuses have the capacity to provide this level of training; however, this bill does not preclude campuses from partnering or contracting with an outside entity to provide this training.

Committee comments. SB 493 contains a private right of action, meaning that individuals who have had their rights under the bill violated could file suit in court seeking redress against the higher education institution involved.

Higher education institutions in California that have communicated to committee staff are united in their concern over this private right of action. The higher education institutions assert that, in the context of requirements that are extensive and that may be open to interpretation in some instances, the private right of action could result in an enormous amount of litigation against them. To note, The Supreme Court has established that individuals have an implied private right of action under Title IX, and as noted in the Senate Judiciary Committee analysis, it may not be so unreasonable to propose an equivalent remedy for violations of this bill.

Committee staff also notes that stakeholders have been engaging with the author to address concerns that are largely in the jurisdiction of the Assembly Judiciary Committee.

Prior legislation. SB 169 (Jackson, 2017) was similar to this bill. SB 169 was vetoed by Governor Brown. A passage of the veto message can be found above in the Related Workgroup section.

SB 1375 (Jackson) Chapter 655, Statutes of 2016, required all schools receiving federal funding post the following information on their Web site: the name and contact information of their Title IX Coordinator; the rights of a pupil and the public, and the responsibilities of the school under Title IX; a description of how to file a complaint under Title IX. SB 1375 also required the State Superintendent of Public Instruction to electronically send an annual letter to all schools notifying them of this responsibility.

SB 1435 (Jackson) Chapter 633, Statutes of 2016, requests that the “Health Framework for California Public Schools” includes comprehensive information on the development of healthy relationships and be age and developmentally appropriate.

AB 2654 (Bonilla) Chapter 107, Statutes of 2016, required postsecondary educational institutions to post their written policy on sexual harassment on their Internet Web sites. AB 2654 also required the policy to include information on the complaint process and the timeline for the complaint process. The policy must include information on where to obtain the specific rules and procedures for pursuing available remedies and resources, both on and off campus.

AB 969 (Williams, 2016) would have required annual reporting for sexual assault complaints received by CCC districts, CSU, the UC, and independent postsecondary educational institutions. AB 969 was vetoed by the Governor.

SB 186 (Jackson) Chapter 232, Statutes of 2015, enabled the governing board of a California community college district to exercise jurisdiction over student conduct that occurs off district property in cases of sexual assault and sexual exploitation, regardless of the victim’s affiliation with the college.

SB 665 (Block, 2015) required the Attorney General to establish a statewide Title IX Oversight Office, required postsecondary educational institutions to report specific data to this office, required each student to complete training on rape and sexual assault awareness and prevention annually. SB 665 was held in the Senate Appropriations Committee.

SB 695 (DeLeón) Chapter 424, Statutes of 2015, required school districts that require completion of a course in health education as a condition of high school graduation to include instruction in sexual assault and violence.

SB 967 (DeLeón) Chapter 748, Statutes of 2014, required the governing boards of California community college districts, the Trustees of the California State University system, and the Regents of the University of California, as well as the governing boards of independent postsecondary institutions in California to adopt victim-centered sexual assault, domestic violence, dating violence, and stalking policies as a condition of receiving state funds for student financial assistance.

AB 1433 (Gatto) Chapter 798, Statutes of 2014, required all California campuses to have policies in place to ensure immediate reporting and disclosure to law enforcement.

AB 3133 (Roos) Chapter 1117, Statutes of 1982, enacted the Sex Equity in Education Act, which, similar to its federal Title IX counterpart, prohibits discrimination in California schools on the basis of sex.

REGISTERED SUPPORT / OPPOSITION:

Support

Alameda County District Attorney's Office
American Association of University Women - California
Asian Americans Advancing Justice - California
Asian Pacific Policy and Planning Council
California Association for Health, Physical Education, Recreation & Dance
California Commission on the Status of Women and Girls
California State Council of Service Employees
California Women's Law Center
Child Care Law Center
Children's Defense Fund-California
City and County of San Francisco Department on the Status of Women
Courage Campaign
Ella Baker Center for Human Rights
Equal Rights Advocates
National Association of Social Workers, California Chapter
Peace Over Violence
United Food and Commercial Workers, Western States Council
Women's Foundation of California, Women's Policy Institute Trauma Justice Team

Opposition

None on file.

Analysis Prepared by: Kevin J. Powers / HIGHER ED. / (916) 319-3960

 THIRD READING  

Bill No: SB 493

Author: Jackson (D), et al.

Amended: 5/17/19

Vote: 21

SENATE EDUCATION COMMITTEE: 6-0, 4/3/19

AYES: Leyva, Wilk, Chang, Durazo, McGuire, Pan

NO VOTE RECORDED: Glazer

SENATE JUDICIARY COMMITTEE: 7-0, 4/23/19

AYES: Jackson, Allen, Caballero, Monning, Stern, Umberg, Wieckowski

NO VOTE RECORDED: Borgeas, Jones

SENATE APPROPRIATIONS COMMITTEE: 4-2, 5/16/19

AYES: Portantino, Bradford, Hill, Wieckowski

NOES: Bates, Jones

SUBJECT: Education: sex equity

SOURCE: Equal Rights Advocates

Women’s Foundation of California/Women’s Policy Institute

DIGEST:

This bill requires higher education institutions to, among other things, adopt rules and procedures for the prevention of sexual harassment, and adopt and post on their Web sites the grievance procedures to resolve complaints of sexual harassment.

ANALYSIS:

Existing federal law:

1. Provides that, in part, "no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program of activity receiving Federal financial assistance."  Enforcement of compliance is initiated upon the filing of a complaint alleging a violation of Title IX. 
2. Requires each school district and county office of education, or a local public or private agency that receives funding from the state or federal government, to designate a person to serve as the Title IX compliance coordinator to enforce compliance at the local level, including coordinating any complaints of non-compliance.  (Title IX of the Education Amendments of 1972 to the 1964 Civil Rights Act)

Existing state law:

1. Requires each educational institution in California (K-12 and postsecondary education) to have a written policy on sexual harassment, and requires schools to  display the policy in a prominent location in the main administrative building or other area of the campus or schoolsite, be provided as part of any orientation program for new students, provided to each faculty member, administrative staff and support staff, and appear in any publication of the school that sets forth the rules, regulations, procedures and standards of conduct.  (Education Code § 231.5 and § 66281.5)
2. Requires the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions to adopt policies concerning campus sexual violence, domestic violence, dating violence, and stalking that includes an affirmative consent standard, detailed and victim-centered policies and protocols, and the standard used in determining whether the elements of the complaint against the accused have been demonstrated is the preponderance of the evidence.  (EC § 67386)
3. Requires schools to post information on their Web sites relative to the designated Title IX coordinator, rights of students and responsibilities of schools, and a description of how to file a complaint.  (EC § 221.61)

This bill:

1. Requires, as a condition of receiving state funds for student financial assistance, the governing board or body of a campus of the University of California (UC), California State University (CSU), or California Community College, a private postsecondary educational institution, or an independent institution of higher education that receives state funds to comply with all of the following requirements at the institution:
   1. Disseminate a notice of non-discrimination to each employee of the institution, volunteer who will interact with students more than 10 hours in a calendar year, and individual under contract with the institution to perform any service at the institution. The notice must include but is not limited to all information required to be included in the currently-required notice related to written policies on sexual harassment.
   2. Designate at least one employee to act as a gender equity officer to coordinate its efforts to comply with and carry out its responsibilities. This bill authorizes the gender equity officer to be the same individual as the institution’s federal Title IX coordinator. This bill requires the gender equity officer to have adequate training on what constitutes sexual harassment and on trauma-informed investigatory and hearing practices, and understand how the institution’s grievance procedures operate.

Sexual harassment policy

• 1. Adopt rules and procedures for the prevention of sexual harassment that also provides for specified elements, including but not limited to:
     1. The institution’s primary concern shall be student safety. The use of alcohol, or drugs, or both shall not constitute grounds for determining that a complainant is at fault for sexual harassment or sexual violence.
     2. If a student files a complaint with the institution regarding an incident that took place on campus, the institution shall process the complaint in accordance with this bill. If a student files a complaint regarding an incident that took place off-campus, the institution shall evaluate the complaint to determine if there is a nexus between the off-campus incident and the institution such that the incident could contribute to a hostile environment on campus. If such a nexus exists, the institution shall process the complaint in accordance with this section. In the absence of evidence to the contrary, a nexus to the campus exists whenever the incident complained of is so grievous and the likelihood of continuing to encounter the perpetrator on campus is so credible that inaction would deprive the complainant of the benefits of any education program.

Grievance procedures

• 1. Adopt and publish on its Web site grievance procedures that provide for prompt and equitable resolution of student sexual harassment complaints filed by a student against an employee, another student, or a third party. This bill requires the grievance procedures to satisfy specified requirements, including, but not limited to:
     1. They shall require notice to each student of the grievance procedures, including where and how complaints may be filed.
     2. They shall ensure that the investigation of the allegation and the adjudication of the matter are not conducted by the same person or entity.
     3. They shall provide for a hearing before a neutral adjudicator with the power independently to find facts and make credibility assessments.
     4. They shall ensure adequate, reliable, trauma-informed and impartial investigation of complaints, including the opportunity for both parties to present witnesses and other evidence.
     5. They shall include an explanation of the meaning of a preponderance of the evidence standard, which shall apply to all investigations involving complaints of sexual harassment or sexual assault. The preponderance of the evidence standard is met if an allegation is more likely than not to be true.
     6. They shall provide for notice in writing to parties of any extension of a time period granted in the investigation and outcome determination process.
     7. They shall provide for notice to parties of the outcome of the complaint in writing. The written outcome shall explain to the parties the reasons for the decision.
     8. They shall contain a requirement that the gender equity officer, or that officer’s designee, assess each report of sexual harassment and provide outreach, as appropriate, to each identifiable student who is alleged to be the victim of the reported conduct. This bill requires outreach to include specified information.
  2. Provide that this bill does not require a school to provide separate grievance procedures for student sexual harassment complaints, and authorizes the school to use student disciplinary procedures or other separate procedures to resolve sexual harassment complaints. This bill requires any procedures used to adjudicate complaints of sexual harassment, including disciplinary procedures, to afford a complainant and a respondent a prompt and equitable resolution.

Rights that must be provided in grievance procedures

• 1. Provide that if both the complainant and the respondent are students at the institution, they shall be afforded specified rights, including:
     1. To have the opportunity to give information, identify witnesses, and provide documentary information during the course of the investigation and the opportunity and a reasonable amount of time to respond to any evidence upon which any findings will be based.
     2. To have a support person or adviser accompany a student party during key stages of the investigation and hearing processes, if requested.
     3. To receive a notice regarding appropriate legal and counseling resources developed and maintained by the institution for student parties in school misconduct matters involving sexual violence.
     4. To receive a written outcome of the findings, including disciplinary outcomes.
     5. If the institution has an appeals process for an investigation, for either party to appeal the outcome of the misconduct proceeding or the disciplinary proceeding.
  2. Provide that nothing in this bill requires schools to provide non-student parties with rights listed in this bill, to the extent that the student rights listed in this bill do not otherwise exist by statute or agreement.

Cross examination

• 1. Require the grievance procedures to provide both parties the opportunity, during the hearing, to cross-examine one another and any witnesses against them subject to the following rules:
     1. The cross examination shall be live, but either party and any witness may request to answer the questions by video from a remote location.
     2. The live cross examination of either party and any witnesses shall be conducted indirectly, through the submission of written questions to the neutral adjudicator in advance and with an opportunity for the other party to object. The neutral adjudicator shall have the authority and obligation to discard or rephrase any question that the neutral adjudicator deems to be repetitive, irrelevant, or harassing. In making these determinations, the neutral adjudicator is not bound by, but may take guidance from, the formal rules of evidence. The neutral adjudicator shall provide a mechanism for both parties to ask, indirectly, through the neutral adjudicator, and subject to objections, followup questions to be posed to the cross-examinee. The neutral adjudicator shall be empowered to require any witness to answer any question to which, in the view of the neutral adjudicator, the witness has not yet been responsive. In no circumstance shall a cross-examinee be limited to answering “yes” or “no.”

Prohibitions that must be included in grievance procedures

• 1. Require remedial measures, and systemic remedies put in place following a final finding of responsibility. To ensure this right is properly protected, an institution of higher education is prohibited from doing any of the following:
     1. Mandating mediation to resolve allegations of sexual assault.
     2. Requiring that the complainant enter a voluntary resolution agreement or any other form of resolution as a prerequisite to receiving remedial measures from the institution which safeguard the complainant’s access to education.
     3. Issuing a mutual no-contact directive when an allegation of harm has been made against only one of the parties or when a counter allegation of harm is facially retaliatory.

Who to contact

• 1. Require institutions to publish in a prominent place on its Web site, with accompanying text clearly associating them with the sexual harassment and sexual assault grievance processes, the name, title, and contact information (which shall include the telephone number, office location, and email address) of each of the following individuals:
     1. The gender equity officer or the gender equity officer’s designee.
     2. Any individual official within the institution with the authority to investigate complaints made or to institute corrective measures such as sanctions, accommodation, or other forms of resolution of the complaint.

Training

• 1. Require institutions to provide mandatory training to each employee engaged in the grievance procedures related to sex discrimination, including sexual violence, which shall include for these employees training on trauma-informed investigatory and hearing practices that help ensure an impartial and equitable process, best practices for assessment of a sexual harassment or sexual assault complaint and best practices for questioning of the complainant, respondent, and witnesses, and on implicit bias, the history of institutional racism, and racial inequities, both broadly and in school disciplinary processes. This bill requires materials approved by the institution for this training to include statistics on the prevalence of sexual harassment and sexual violence in the educational setting,, and the rates at which students of color, LGBTQI, disabled, non-binary, cisgendered female, and cisgendered male students experience sexual harassment and sexual assault on campus to ensure that campus procedures are grounded in best practices. This bill requires, when possible, citation to such data to be included in the written anti-discrimination policies accompanying the institution’s grievance procedures.
  2. Require an institution, if it has on-campus housing, to ensure that residence life student and non-student staff, or their equivalent, annually receive training on trauma-informed handling of reports made to them regarding incidents of sexual harassment or assault, or incidents of sexual harassment or assault of which they have actual or constructive knowledge in student residential facilities.

Action in court

1. Authorizes either of the following people to bring an action in a court of competent jurisdiction to enjoin a knowing violation of this bill or to recover compensatory damages, court costs, and reasonable attorney’s fees, or all of these:
   1. The Attorney General, consistent with the Attorney General’s existing authority under Section 13 of Article V of the California Constitution and Article 2 (commencing with Section 11180) of Chapter 2 of Part 1 of Division 3 of Title 2 of the Government Code, to investigate, and, as necessary, prosecute any knowing violation of the law. The Attorney General may also conduct an investigation or bring an action under this section.
   2. A person whose right to equitable access to a higher education institution, program, or activity through a higher education institution that is a recipient of state funds was infringed through knowing violation of this bill.
2. Requires that a person bring an action no later than the statute of limitations applicable to a personal injury claim in California at the time the cause of action accrues.
3. Authorizes civil law remedies to also be available to complainants.

Miscellaneous

1. Requires this bill to be implemented at each higher education institution by January 1, 2021.
2. Requires the gender equity officer, if the school relies on disciplinary procedures for compliance, to review the school’s disciplinary procedures to ensure that the procedures comply with the requirements of this bill.
3. Defines “higher education institution” as a campus of the University of California, California State University, or California Community College, a private postsecondary educational institution, or an independent institution of higher education that receives state funds.
4. Modifies the definition of “sexual harassment” to specifically include sexual battery, sexual violence, and sexual exploitation.
5. Defines “sexual violence” as physical sexual acts perpetrated against a person without the person’s affirmative consent, and provides that physical sexual acts include specified acts such as rape.
6. Defines “sexual battery” as is currently defined in the Penal Code.
7. Defines “sexual exploitation” as taking sexual advantage of another person of the benefit of anyone other than that other person without that other person’s consent, regardless of that other person’s affiliation with the higher education institution, including specified acts.

Comments

1. Proposed changes to federal Title IX rules. The United States Department of Education rescinded guidance issued by the previous administration that is related to how institutions of higher education are to comply with Title IX, and issued new guidance in September 2017. Guidance is not necessarily legally binding. In November 2018, the US Department of Education released proposed changes to Title IX rules, which are legally binding. Proposed changes that are related to provisions of this bill include:
   1. Places limits on the use of the “preponderance of evidence” standard, and requires institutions of higher education to otherwise use the “clear and convincing evidence” standard.
   2. Modifies the standard for when an institution of higher education must respond to allegations of sexual harassment from “know or reasonably should know” to “actual knowledge.”
   3. Allows for the cross-examination of complainants during a live hearing.
   4. Excludes some off-campus conduct.

[https://www2.ed.gov/about/offices/list/ocr/docs/title-ix-nprm.pdf]

This bill specifically applies the preponderance of evidence standard to all investigations; requires an institution that receives a complaint regarding an incident that took place on campus to process the complaint in accordance with this bill; requires the live cross examination of either party and any witnesses to be conducted indirectly, through the submission of written questions to the neutral adjudicator in advance and with an opportunity for the other party to object; and prohibits an institution from mandating mediation, requiring the complainant enter a voluntary resolution agreement or any other form of resolution, or issuing a mutual no-contact directive.

If this bill were to become law and the proposed changes to federal Title IX rules are adopted, California would have stronger Title IX protections and requirements in institutions of higher education than would be required by federal standards.

1. Federal guidance institutions have been following. The United States Department of Education’s Office for Civil Rights (OCR) issued a “Dear Colleague” letter on April 4, 2011, providing guidance on ensuring compliance with Title IX specific to sexual harassment. The letter detailed numerous requirements under Title IX related to sexual harassment, explained that sexual harassment includes sexual violence, and provided guidance relative to specific requirements pursuant to Title IX. The OCR stated that its “letter does not add requirements to applicable law, but provides information and examples to inform recipients about how OCR evaluates whether covered entities are complying with their legal obligations.”
   
   This guidance stated, among other things, that:
   1. Sexual harassment of students, which includes acts of sexual violence, is a form of sex discrimination prohibited by Title IX.
   2. Institutions must publish a notice of non-discrimination, as specified.
   3. Institutions must designate an employee as the Title IX coordinator and notify students and employees of the name and contact information for the Title IX coordinator.
   4. Institutions that know or reasonably should know about harassment that creates a hostile environment must take immediate action to eliminate the harassment, prevent its recurrence, and address its effects.
   5. Institutions must adopt and publish grievance procedures providing for the prompt and equitable resolution of sex discrimination complaints.
   6. Institutions’ grievance procedures should specify the timeframe within which the institution will conduct a full investigation, both parties receive a response regarding the outcome, and the parties may file an appeal.
   7. Institutions must use a preponderance of the evidence standard (it is more likely than not that sexual harassment or violence occurred) in order for the grievance procedures to be consistent with Title IX standards.
   8. Institutions are not relieved of their duty under Title IX to resolve complaints promptly and equitably whether or not a criminal investigation is underway.
   9. Institutions must notify both parties, in writing, about the outcome of the complaint and any appeal.
   10. Institutions need to ensure their employees are trained to know how to report harassment and how to respond properly.
       

This bill essentially codifies the guidance provided by the OCR’s “Dear Colleague” letter in 2011, as well as imposes requirements, procedures, and rights that the proposed changes in federal Title IX rules modify.

1. Related Workgroup. This bill is similar to SB 169 (Jackson, 2018), which was vetoed by Governor Brown. A portion of Governor Brown’s veto message read “I am not prepared to codify additional requirements in reaction to a shifting federal landscape, when we haven't yet ascertained the full impact of what we recently enacted. We have no insight into how many formal investigations result in expulsion, what circumstances lead to expulsion, or whether there is disproportionate impact on race or ethnicity. We may need more statutory requirements than what this bill contemplates. We may need fewer. Or still yet, we may need simply to fine tune what we have. It is time to pause and survey the land. I strongly believe that additional reflection and investment of time in understanding what is happening on the ground will help us exercise due care in this complex arena. I intend to convene a group of knowledgeable persons who can help us chart the way forward.”
   
   Governor Brown subsequently convened a workgroup, and the workgroup issued their recommendation in November 2018. Most of the working group’s findings are consistent with this bill. For example, the working group embraced the focus on sexual misconduct as involving both sexual harassment and sexual violence, the importance of training on trauma-informed investigatory practices, the use of the preponderance of the evidence standard, the right to legal counsel if desired, and the importance of ensuring that any cross-examination is conducted indirectly.
   
   Some of the recommendations from the workgroup differ somewhat from provisions of this bill. For example, while the working group embraced the preponderance of the evidence standard, it describes that standard as requiring “persuasive, relevant, and substantial” evidence, whereas this bill uses the more traditional explanation that preponderance of the evidence means “more likely than not.” Similarly, while both the working group and this bill emphasize that investigations must be impartial, and both endorse the importance of trauma-informed investigatory methods, the working group also explicitly states that trauma-informed investigatory methods should not be used to undermine the impartiality of the investigation.

[http://www.ivc.edu/policies/titleix/Documents/Recommendations-from-Post-SB-169-Working-Group.pdf]

1. Related court decision. In Doe v. Allee (2019) 30 Cal.App.5th 1036, the court set aside the expulsion of a student accused of sexual assault. The court criticized the higher education institution’s procedures for handling complaints of sexual assault and provided the following minimal standard:

we hold that when a student accused of sexual misconduct faces severe disciplinary sanctions, and the credibility of witnesses (whether the accusing student, other witnesses, or both) is central to the adjudication of the allegation, fundamental fairness requires, at a minimum, that the university provide a mechanism by which the accused may cross-examine those witnesses, directly or indirectly, at a hearing in which the witnesses appear in person or by other means (such as means provided by technology like videoconferencing) before a neutral adjudicator with the power independently to find facts and make credibility assessments. (Doe v. Allee (2019) 30 Cal.App.5th 1036, 1039.)

Unlike the proposed federal regulations, these court rulings are currently binding on California.

1. Preponderance of evidence standard. According to the 2011 “Dear Colleague” letter from the OCR, “the Supreme Court has applied a preponderance of the evidence standard in civil litigation involving discrimination under Title VII of the Civil Rights Act of 1964 … Like Title IX, Title VII prohibits discrimination on the basis of sex.” The letter also notes that the Title IX regulations adopt the procedural provisions applicable to Title VI of the Civil Rights Act. The letter states “Thus, in order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of evidence standard.”
   
   Existing state law, pursuant to SB 967 (de León, Chapter 748, Statutes of 2014), requires California’s postsecondary institutions to adopt policies concerning campus sexual violence that includes an affirmative consent standard and the preponderance of evidence standard for determining whether the elements of the complaint against the accused have been demonstrated.
2. Training. Current law requires institutions of higher educations’ policies and procedures to include training for campus officials involved in investigating and adjudicating cases, but stops short of actually requiring the training to occur. This bill requires institutions to provide the mandatory training to each employee engaged in the grievance procedures related to sex discrimination, including sexual violence. This bill requires the training to include training on trauma-informed investigatory and hearing practices that help ensure an impartial and equitable process, best practices for assessment of a sexual harassment or sexual assault complaint, best practices for questioning of the complainant, respondent, and witnesses, and on implicit bias, the history of institutional racism, and racial inequities, both broadly and in school disciplinary processes.
   
   This bill requires the gender equity officer to have adequate training on what constitutes sexual harassment and on trauma-informed investigatory and hearing practices, and understand how the institution’s grievance procedures operate.
   
   This bill also requires residence life student and non-student staff to annually receive training on trauma-informed handling of reports made to them regarding incidents of sexual harassment or assault, or incidents of sexual harassment or assault of which they have actual or constructive knowledge in student residential facilities
   
   It is unclear whether all campuses have the capacity to provide this level of training; however, this bill does not preclude campuses from partnering or contracting with an outside entity to provide this training.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

According to the Senate Appropriations Committee:

1. The bill’s provision creating a private cause of action will result in unknown but potentially significant costs associated with litigation to the UC and CSU.
2. CSU estimates an additional $1.8 million associated with the bill’s provisions allowing a suing party to recover compensatory damages and reasonable attorney’s fees. CSU also estimates additional costs of about $3.7 million for each campus to hire a new gender equity officer for each of its 15 campuses.
3. The Department of Justice estimates ongoing General Fund costs of approximately $895,000 to fund four positions.

SUPPORT: (Verified 5/16/19)

Equal Rights Advocates (co-source)

Women’s Foundation of California/Women’s Policy Institute (co-source)

American Association of University Women-California

California Association for Health, Physical Education, Recreation and Dance

California Partnership to End Domestic Violence

California Women’s Law Center

Children’s Defense Fund-California

Citizens for Choice

Courage Campaign

Ella Baker Center for Human Rights

Empowering Pacific Islander Communities

Family Violence Law Center

Feminist Majority Foundation

Los Angeles United Methodist Urban Foundation

National Association of Social Workers, California Chapter

Peace Over Violence

Public Counsel

Southeast Asia Resource Action Center

OPPOSITION: (Verified 5/16/19)

Families Advocating for Campus Equality

Prepared by: Lynn Lorber / ED. /

5/20/19 12:54:17

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anthony Portantino, Chair

2019 - 2020 Regular Session

SB 493 (Jackson) - Education: sex equity

Bill Summary:

This bill requires higher education institutions adopt rules and procedures for the prevention of sexual harassment, as specified, and adopt and post on their websites the grievance and investigation procedures to resolve complaints of sexual harassment.

*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********

The following information is revised to reflect amendments

adopted by the committee on May 16, 2019

Fiscal Impact:

• The bill’s provision creating a private cause of action will result in unknown but potentially significant costs associated with litigation to the University of California (UC) and the California State University (CSU). (General Fund)
• CSU estimates an additional $1.8 million associated with the bill’s provisions allowing a suing party to recover compensatory damages and reasonable attorney’s fees. CSU also estimates additional costs of about $3.7 million for each campus to hire a new gender equity officer for each of its 15 campuses. This estimate assumes that the existing Title IX coordinators would not be able to assume the additional workload resulting from this measure.
• The Department of Justice estimates ongoing General Fund costs of approximately $895,000 to fund four positions as a result of this measure.

Committee Amendments:

Raise the standard for which specified persons may bring an action in a court of competent jurisdiction to knowing violations of the bill’s provisions, as specified.

-- END --

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anthony Portantino, Chair

2019 - 2020 Regular Session

SB 493 (Jackson) - Education: sex equity

Bill Summary:

This bill requires higher education institutions adopt rules and procedures for the prevention of sexual harassment, as specified, and adopt and post on their websites the grievance and investigation procedures to resolve complaints of sexual harassment.

Fiscal Impact:

• The University of California (UC) and the California State University (CSU) estimate that the bill’s provision creating a private cause of action will result in significant costs associated with litigation to the segments. CSU estimates that the total cost of defense over a two-year period will be between $4.4 million and $5.5 million, while the UC estimates the liability to be at least $4 million to $5 million each year. (General Fund)
• CSU estimates an additional $1.8 million associated with the bill’s provisions allowing a suing party to recover compensatory damages and reasonable attorney’s fees. CSU also estimates additional costs of about $3.7 million for each campus to hire a new gender equity officer for each of its 15 campuses. This estimate assumes that the existing Title IX coordinators would not be able to assume the additional workload resulting from this measure.
• The Department of Justice estimates ongoing General Fund costs of approximately $895,000 to fund four positions as a result of this measure.

Background:

Existing federal law provides that, in part, "no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program of activity receiving Federal financial assistance." Enforcement of compliance is initiated upon the filing of a complaint alleging a violation of Title IX. Federal law also requires each school district and county office of education, or a local public or private agency that receives funding from the state or federal government, to designate a person to serve as the Title IX compliance coordinator to enforce compliance at the local level, including coordinating any complaints of non-compliance.

Existing state law requires each educational institution in California (K-12 and postsecondary education) to have a written policy on sexual harassment, and requires schools to display the policy in a prominent location in the main administrative building or other area of the campus or schoolsite, be provided as part of any orientation program for new students, provided to each faculty member, administrative staff and support staff, and appear in any publication of the school that sets forth the rules, regulations, procedures and standards of conduct. (Education Code § 231.5 and § 66281.5)

Existing state law requires the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions to adopt policies concerning campus sexual violence, domestic violence, dating violence, and stalking that includes an affirmative consent standard, detailed and victim-centered policies and protocols, and the standard used in determining whether the elements of the complaint against the accused have been demonstrated is the preponderance of the evidence.

Proposed Law:

This bill requires higher education institutions to, among other things, adopt rules and procedures for the prevention of sexual harassment, and adopt and post on their websites the grievance and investigation procedures to resolve complaints of sexual harassment. The bill’s provisions include:

• Disseminate a notice of nondiscrimination, as specified, to each employee of higher education, volunteer who will interact with students more than 10 hours in a year, and individuals under contract to perform any service at the institution.
• Designate at least one employee to act as a gender equity officer to coordinate its efforts to comply with and carry out its responsibilities. This bill authorizes the gender equity officer to be the same individual as the institution’s federal Title IX coordinator. This bill requires the gender equity officer to have adequate training on what constitutes sexual harassment and on trauma-informed investigatory and hearing practices, and understand how the institution’s grievance procedures operate.
• Adopt and publish on its website grievance procedures that provide for prompt and equitable resolution of student sexual harassment complaints filed by a student against an employee, another student, or a third party, as specified.
• Publish in a prominent place on its website, with accompanying text clearly associating them with the sexual harassment and sexual assault grievance processes, the name, title, and contact information.
• Provide mandatory training to each employee engaged in the grievance procedures related to sex discrimination, including sexual violence, as specified.
• Requires an institution, if it has on-campus housing, to ensure that residence life student and non-student staff, or their equivalent, annually receive trauma-informed training for handling reports made to them regarding incidents of sexual harassment or assault, or incidents of sexual harassment or assault of which they have actual or constructive knowledge in student residential facilities.
• Adopt and publish on its website procedures for an investigation providing for prompt and equitable resolution of student sexual harassment complaints filed by a student, or initiated by the higher education institution itself, against an institution employee, another student, or a third party.
• Authorizes either of the following people to bring an action in a court of competent jurisdiction to enjoin a violation of this bill or to recover compensatory damages, court costs, and reasonable attorney’s fees, or all of these: the Attorney General or a person whose right to equitable access to a higher education institution, program, or activity through a higher education institution that is a recipient of state funds was infringed through violation of this bill. Requires that a person bring an action no later than the statute of limitations applicable to a personal injury claim in California at the time the cause of action accrues.

Related Legislation:

SB 169 (Jackson, 2017) was similar to this bill and was vetoed by Governor Brown.

-- END --

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2019-2020 Regular Session

Bill No: SB 493 (Author:Jackson)

Version: February 21, 2019

Hearing Date: April 23, 2019

Fiscal: Yes

Urgency: No

Consultant: TSG

SUBJECT

Education: sex equity

DIGEST

This bill establishes baseline standards and procedures that California colleges and universities must follow, in order to continue receiving state funds, in regard to incidents of sexual harassment, sexual battery, sexual violence, and sexual exploitation that impact equal access to educational opportunity.

EXECUTIVE SUMMARY

Research has documented an epidemic of sexual harassment and sexual violence at educational institutions throughout the U.S. The research also shows wide-ranging negative impacts resulting from this epidemic. Sexual harassment and sexual violence not only interfere with students’ ability to learn, they can also produce life-long social, psychological, and economic harm. Female students bear the overwhelming – though not exclusive – brunt of this problem.

Existing federal law, in the form of Title IX, requires educational institutions to provide for the prompt and equitable resolution of student and employee reports of sexual harassment and violence. Existing state law contains some further specifications about how California colleges and universities must handle such incidents. This bill would provide still greater detail about the obligations of California institutions of higher education. Its content borrows heavily from U.S. Department of Education guidelines issued during the Obama Administration and subsequently withdrawn under President Trump. The bill is also designed to be responsive to recent court decisions that have elaborated on respondents’ rights within the context of campus-related sexual harassment and violence complaints.

The bill is sponsored by Equal Rights Advocates and the Women’s Foundation of California, Women’s Policy Institute. It is supported by women’s and victims’ rights advocates. Opposition is from parents of alleged perpetrators who assert that it does not sufficiently protect the rights of students accused of sexual harassment and sexual violence. The bill passed out of the Senate Education Committee by a vote of 6-0.

PROPOSED CHANGES TO THE LAW

Existing federal law:

1. States that no person in the U.S. shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving federal financial assistance. (Title IX of the Education Amendments of 1972 to the Civil Rights Act of 1964; 20 U.S.C. § 1681 et seq.)
2. Mandates that recipients of federal financial assistance comply with the procedural requirements outlined in the Title IX implementing regulations. To do so, a recipient must: (1) disseminate a specified notice of nondiscrimination; (2) designate at least one employee to coordinate its efforts to comply with and carry out its responsibilities under Title IX; and (3) adopt and publish grievance procedures providing for prompt and equitable resolution of student and employee sex discrimination complaints. (34 C.F.R. §§ 106.9, 106.8(a), 106.8(b).)

Existing state law:

1. Defines “sexual harassment” as unwelcome sexual advances, requests for sexual favors, and other verbal, visual, or physical conduct of a sexual nature, made by someone from or in the work or educational setting, under any of the following conditions:
2. submission to the conduct is explicitly or implicitly made a term or a condition of an individual’s employment, academic status, or progress;
3. submission to, or rejection of the conduct by the individual is used as the basis of employment or academic decisions affecting the individual;
4. the conduct has the purpose or effect of having a negative impact upon the individual’s work or academic performance, or of creating an intimidating, hostile, or offensive work or educational environment; or
5. submission to, or rejection of the conduct by the individual is used as the basis for any decision affecting the individual regarding benefits and services, honors, programs, or activities available at or through the educational institution. (Ed. Code § 212.5)
6. Requires each postsecondary educational institution in California to have a written policy on sexual harassment and to:
7. display the policy in a prominent location;
8. provide the policy to each faculty member, administrative staff, and support staff;
9. provide the policy as part of any orientation program for new students; and
10. include the policy in any publication of the school that sets forth the rules, regulations, procedures, and standards of conduct. (Ed. Code § 66281.5.)
    
11. Requires the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions to adopt policies concerning campus sexual violence, domestic violence, dating violence, and stalking that include:
12. an affirmative consent standard;
13. detailed and victim-centered policies and protocols; and
14. the use of a preponderance of the evidence standard in determining whether the elements of the complaint against the respondent have been established sufficiently for consequences to be imposed on the respondent. (Ed. Code § 67386.)
    

This bill:

1. Makes a series of legislative findings regarding the prevalence of sexual harassment and sexual violence in the postsecondary educational setting and its short-term and long-term impacts on the ability of survivors to thrive in the educational setting and beyond.

1. Modifies the definition of “sexual harassment” to specifically include sexual battery, sexual violence, and sexual exploitation.
2. Defines “sexual violence” as physical sexual acts perpetrated against a person without the person’s consent, and provides that physical sexual acts include specified acts such as rape.
3. Defines “sexual battery” as it is currently defined in the Penal Code.
4. Defines “sexual exploitation” as taking sexual advantage of another person to the benefit of anyone other than that other person without that other person’s consent, regardless of that other person’s affiliation with the higher education institution, including specified acts.
5. Requires the governing board or body of a campus of the University of California (UC), California State University (CSU), or California Community College (CCC), a private postsecondary educational institution, or an independent institution of higher education that receives state funds to adopt and follow specified policies for addressing sexual harassment and sexual violence that interferes with equal access to education as a condition of receiving state funds for student financial assistance.
6. Authorizes either the Attorney General or any person whose right to equitable access to a higher education institution, program, or activity was infringed as a result of a violation of this bill, to bring an action in court seeking redress in the form of injunctive relief, compensatory damages, court costs, and reasonable attorney’s fees, for any of the following:
7. a failure to adopt the required policies;
8. a failure to adhere to the required policies despite adopting them; or
9. violation of any of the specified requirements in the bill by an act or actions of one of a higher education institution’s employees, administrators, or any person contracted to perform a service at the institution involving investigation or resolution of a complaint of sexual assault, harassment, or sex-based discrimination, or by the enforcement of an institutional policy.
10. Provides that all other civil remedies shall also be available to complainants and specifies that a complainant need not exhaust administrative complaint processes before pursuing such remedies.

COMMENTS

1. Data on the scope of the problem of sexual violence on campuses

There is ample evidence of an epidemic of sexual harassment and sexual violence taking place on higher education campuses, at locations connected with those campuses, and in the course of extracurricular activities associated with the campus. There is also strong evidence demonstrating how this epidemic negatively impacts survivors’ ability to thrive and succeed in the educational setting. Because the overwhelming majority of victims are female and because other vulnerable populations, including LGBTQ individuals and people of color, are disproportionately impacted, addressing sexual harassment and violence in the educational context is not merely a public safety issue. It is also, fundamentally, a civil rights issue.

The following statistics offer a sense of the scope of the problem. Victims’ stories, such as those provided through the Clap Back Project, speak to the human impact behind these numbers.^[1]

1. Evidence of scope of sexual harassment and sexual violence in the postsecondary educational context

A research report prepared for the National Institute of Justice, and submitted to the U.S. Department of Justice, provides a statistical picture of the impacts of campus sexual assault. The report, entitled The Campus Sexual Assault (CSA) Study, collected data from two large public universities using web-based surveys collected from over 5,466 undergraduate women and 1,375 undergraduate men. The report finds “13.7 percent of undergraduate women had been survivors^[2] of at least one completed sexual assault since entering college: 4.7 percent were survivors of physically forced sexual assault,^[3] 7.8 percent of women were sexually assaulted when they were incapacitated after voluntarily consuming drugs and/or alcohol,”^[4] and an additional 0.6 percent were sexually assaulted when incapacitated after being involuntarily drugged.

Research findings indicate that 90 percent of campus rapes are committed by repeat offenders. Those offenders make up approximately six percent of men on campus.^[5] The CSA Study found that only 0.6 percent of assailants committing acts of forcible sexual assault received disciplinary action from their university, and just 5.7 percent of assailants of forcible sexual assault were arrested, prosecuted, or convicted by the criminal justice system. Of the assailants committing an act of sexual assault on an incapacitated victim, a mere 0.8 percent were disciplined by the university, and only 0.4 percent were arrested, prosecuted, or convicted by the criminal justice system. A lack of enforcement of student code of conduct standards and state and federal law creates an unsafe environment for students on campus. This research suggests that if a student commits one sexual assault, there is a high likelihood the student is an ongoing risk to the campus community.

1. Data regarding the negative impact of sexual harassment and sexual violence on educational opportunity

The CSA Study also reported findings on the impacts of college sexual assault on a survivor’s health and safety. The study revealed that 22.1 percent of the survivors of forced sexual assault sought psychological counseling, 67.4 percent avoided or tried to avoid their assailant after the assault, 8.3 percent dropped a class, 1.2 percent changed a major, 3.1 percent changed universities, 11.5 percent moved residences, and 3.5 percent quit a job. Of the students who were survivors of sexual assault while incapacitated, 5.6 percent sought psychological counseling, 61.9 percent avoided or tried to avoid their assailant, 1.8 percent dropped a class, 0.8 percent changed a major, 1.5 percent changed universities, 1.5 percent moved their residence, and 0.2 percent quit a job.

A 2016 study, meanwhile, estimated that 34 percent of student survivors of sexual harassment or violence dropped out of school.^[6]

1. Evidence of the disparate impact of sexual harassment and sexual violence on women, students of color, and LGBTQ students

The author’s office also points to research indicating that historically marginalized and underrepresented groups are more likely to experience sexual harassment. A 2016 study conducted by the Association of American Universities of over 150,000 students at 27 universities found that female students experienced the highest rates of sexual assault and misconduct, along with TGQN (transgender, genderqueer or non-conforming, questioning, or not listed on the survey) students.^[7] Meanwhile, nearly 14 percent of gay or lesbian students reported experiencing a sexual assault while in college.^[8]

A UC Berkeley campus survey revealed that “women, across all affiliate groups, are considerably more likely to report experiencing just about every form of SVSH [(sexual violence and sexual harassment)] than are men, and transgender participants are more likely than women or men to report experiencing most forms of SVSH, most notably sexual assault.”^[9] The study further found that among undergraduates, Latino participants reported the highest incidence of sexual harassment, stalking, and relationship violence, and African-American participants and participants of more than one race or ethnicity reported the highest incidence of sexual assault.^[10]

Finally, according to a national study by the University of Pittsburgh, “gay, bisexual, and black men all had higher odds of being sexually assaulted than heterosexual and white men.” Black women were more likely to be sexually assaulted than their peers. Among transgender students, black transgender students had a higher likelihood of being sexually assaulted.”^[11]

2. Recent developments in this area of the law

The Legislature’s consideration of this bill comes at a time in which court decisions and federal regulatory activity has shifted, and may continue to alter, the surrounding legal context. The resulting instability represents a particular challenge for the colleges and universities attempting to carry out Title IX’s mandate. They have had to adjust and re-adjust their policies constantly in response.

• 1. Changes in federal guidance

In an attempt to help curb the epidemic of sexual assault on campus, on April 4, 2011, the U.S. Department of Education’s Office of Civil Rights (ED OCR) issued a “Dear Colleague” Letter setting forth a lengthy series of instructions about what policies and procedures educational institutions must follow to prevent and respond to incidents of sexual harassment and sexual violence in order to remain compliant with Title IX.^[12] This bill draws a number of its provisions from that 2011 regulatory guidance.

In September 2017, not long after her appointment to head the ED by President Trump, current Education Secretary Betsy DeVos retracted the 2011 “Dear Colleague” Letter and began the rule-making process with an eye toward issuing a different set of regulations. Meanwhile, ED issued an interim set of Questions and Answers partially addressing the subjects covered in the April 2011 Guidance.^[13]

Then, in November 2018, the ED issued a Notice of Proposed Rule Making (NPRM) in this area. Of particular note, the proposed regulations would, according to ED:

• require schools to apply basic due process protections for students, including a presumption of innocence throughout the grievance process; written notice of allegations and an equal opportunity to review all evidence collected; and the right to cross-examination, subject to “rape shield” protections;
• require colleges and universities to hold a live hearing where cross-examination would be conducted through the parties’ advisors. Personal confrontation between the complainant and respondent would not be permitted;
• prohibit the use of “single investigator” or “investigator-only” models;
• define sexual harassment as unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity.^[14] (Emphasis added.)

The proposed federal regulations can be criticized on a number of grounds. First and foremost, they implicitly equate Title IX hearings with criminal cases. Title IX hearings are different from criminal proceedings in multiple ways. To begin with, Title IX hearings are civil matters. While the consequences for everyone involved are serious and long-term, nobody will be imprisoned as the result of a Title IX hearing. In addition, Title IX hearings are administrative in nature, meaning that less formality is to be expected. Finally, Title IX hearings take place in the educational setting, not in a courtroom. The participants are students, faculty, and administrators, rather than lawyers and judges, and the process is supposed to take that difference into account.

Second, the proposed federal regulations seem to be especially preoccupied with protecting the alleged perpetrator against the possibility of a false accusation. Less weight seems to be given to what happens to victims, and the campus community more generally, if perpetrators are not held accountable. Relatedly, by focusing on the individual parties’ interest, the federal regulations give short shrift to the broader public interest at stake. As with any civil rights law, Title IX is not just about resolving disputes among individuals. It greater purpose is to try to ensure equal access to educational opportunity for all.

Finally, the proposed federal regulations seem to impose a legal standard for sexual harassment that is considerably higher than the one used in most civil rights contexts. Whereas most sexual harassment cases are decided based on a “severe or pervasive” standard, the proposed federal regulations only consider unwelcome sexual conduct to be harassment if it is severe, pervasive, and objectively offensive. This standard tilts the scales significantly in favor of harassers over victims.

The proposed federal regulations have been controversial since they became public. The NPRM received over 106,000 public comments responding to the regulations, including letters from both the UC and the CSU systems outlining the complications and difficulties the proposed regulations would pose.^[15]

ED is now in the process of reviewing and responding to the large quantity of comments received something it must complete before the proposed regulations can be finalized and adopted. It is not clear exactly how long this will take, but it could be up to a year or more. In the event that the proposed regulations are adopted without significant alterations, a number of organizations have indicated their intent to sue to halt their implementation.

As the proposed regulations are not yet law, they have no preemptive effect on this bill unless and until they are formally adopted. If that happens, any elements of this bill that are in conflict with the proposed regulations might preempted from that point forward. In the meantime, given her strong disagreement with the proposed federal regulation’s interpretation of Title IX, the author has chosen a different path.

• 1. Court decisions

In the past year, a flurry of court rulings have been handed down elaborating on the “fair hearing” and due process rights of students in Title IX cases. Fair hearing rights apply to private academic institutions, while due process rights apply at public institutions.

In general, these decisions can be characterized as emphasizing that students responding to allegations of sexual harassment or violence are entitled to significant procedural protections even in spite of the fact that a Title IX hearing is civil and administrative in nature.

The most significant of these rulings was Doe v. Allee (2019) 30 Cal.App.5th 1036. In that case, the court set aside the expulsion of a student accused of sexual assault. The court heavily criticized the higher education institution’s procedures for handling complaints of sexual assault and laid down the following minimal standard:

we hold that when a student accused of sexual misconduct faces severe disciplinary sanctions, and the credibility of witnesses (whether the accusing student, other witnesses, or both) is central to the adjudication of the allegation, fundamental fairness requires, at a minimum, that the university provide a mechanism by which the accused may cross-examine those witnesses, directly or indirectly, at a hearing in which the witnesses appear in person or by other means (such as means provided by technology like videoconferencing) before a neutral adjudicator with the power independently to find facts and make credibility assessments. (Doe v. Allee (2019) 30 Cal.App.5th 1036, 1039.)

Unlike the proposed federal regulations, these court rulings are binding on California now. As discussed later in these Comments, refinements to the bill may, in some instances, help to ensure that it could not be misinterpreted to conflict with any aspect of those decisions.

3. Report from former Governor Jerry Brown’s working group

In many ways, this bill follows in the footsteps of SB 169, Senator Jackson’s 2017 bill that also sought to codify many elements of ED’s 2011 “Dear Colleague” Letter. Then Governor Brown vetoed SB 169. He wrote that the issue deserved further thought and he convened a working group to present recommendations. That working group issued its findings on November 14, 2018.

Most of the working group’s findings are consistent with this bill. For example, among other things, the governor’s working group embraced the focus on sexual misconduct as involving both sexual harassment and sexual violence, the importance of training on trauma-informed investigatory practices, the use of the preponderance of the evidence standard, the right to legal counsel if desired, and the importance of ensuring that any cross-examination is conducted indirectly.

There are differences between some nuances of the working group’s recommendations and some nuances of the content of this bill. For example, while the governor’s working group embraced the preponderance of the evidence standard, it describes that standard as requiring “persuasive, relevant, and substantial” evidence, whereas the bill uses the more traditional explanation that preponderance of the evidence means “more likely than not.” Similarly, while both the governor’s working group and the bill emphasize that investigations must be impartial, and both endorse the importance of trauma-informed investigatory methods, the governor’s working group also explicitly states that trauma-informed investigatory methods should not be used to undermine the impartiality of the investigation, whereas the bill assumes that such methods, used properly, enhance truth-finding and impartiality. It appears to be on the basis of such nuances that the opponents of this bill contend that it “ignores” the working group’s recommendations.

4. Key legal aspects of the bill

The shifting legal context and the differing perspectives on Title IX enforcement discussed in the preceding Comments play out throughout this bill. In some cases, practical or legal considerations mean that the bill’s existing language could be further clarified, and the author proposes to incorporate a number of amendments to do so. (See Comment 4, below.) In additional, there are ongoing discussions between the author and representatives of California’s higher education institutions in an effort to ensure that this bill is respectful of their efforts to eradicate sexual harassment and sexual violence that impacts their campus communities.

The key policy issues in the bill are addressed in turn, below:

a. The campus nexus issue

The bill in print states that higher education institutions must process complaints of sexual harassment or sexual violence, regardless of where the incident occurred. Similarly, the bill states that a higher education institution has a duty to take action in response to sexual harassment that could create a hostile environment on campus, whether the harassment took place on campus or off campus.

While there is consensus that Title IX does require higher education institutions to respond to incidents taking place off campus in some cases, the current language in the bill has raised some concern. Interpreted broadly, it could been read as suggesting that a higher education institution has a duty to investigate essentially any incident involving sexual harassment anywhere in the vicinity of the school or involving two people affiliated with the institution. Such a mandate would be difficult for higher education institutions to carry out and goes beyond what Title IX requires. Instead, there is general agreement that the key issue is whether off-campus incidents have a nexus to what happens on campus. In other words, will what took place off campus impact the ability of the people involved to access the educational opportunities that the institution offers? The key is finding a way to describe this nexus in a way that protects students, gives good guidance to the higher education institutions, and limits the likelihood of disputes.

To try to respond to this challenge, the author proposes to amend these sections of the bill to make the nexus requirement more explicit. To help clarify the meaning of the nexus requirement, the amendment pulls from language in a Tenth Circuit case involving incidents of sexual assault that took place at off-campus fraternity houses. (Farmer, et. al. v. Kansas State University (10th Cir., No. 17-3207) (March 18, 2019).) The higher education institution in question refused to take responsive action to these incidents on the ground that no subsequent incidents had taken place on campus. The court disagreed with this reasoning and held that higher education institutions have a duty to take action where an off-campus incident is grave enough and the likelihood that the victim will encounter the assailant on campus is high enough, that inaction would result in depriving the victim of equal access to educational opportunity. (Id. at p. 21.) The proposed amendment incorporates this standard.

b. Cross-examination

The bill in print states that parties to a campus sexual harassment or sexual violence proceeding shall not be subjected to any form of direct, live cross-examination from the other party or the other party’s advisor. This aspect of the bill reflects the fact that, as a civil, administrative process, Title IX grievance proceedings are not like a criminal court. It also reflects what is arguably a healthy skepticism about the virtues of unfettered cross-examination. Judges sometimes display a nearly worshipful devotion to the supposed power of cross-examination to elicit the truth.^[16] In the process, they may fail to give full consideration to the possibility that unbridled cross-examination can intimidate, shame, and re-traumatize survivors of sexual harassment or sexual violence. The prospect of enduring cross-examination that is repetitive, harassing, or disrespectful could actually serve to dissuade some victims from coming forward to confront their assailants. Quite the opposite of eliciting the truth, therefore, unconstrained cross-examination could play a role in burying it.

Nonetheless, as previously discussed, the courts have ruled that live cross-examination before a neutral adjudicator must be allowed in order for a campus grievance procedure to meet the fair hearing standard. (Doe v. Allee (2019) 30 Cal.App.5th 1036, 1039.). Thus, the language in the existing bill may need further clarification so as to detail exactly what form of cross-examination would be permissible. The Allee decision makes clear that the required cross-examination need not be direct, and that witnesses may request to testify by live feed video from another room. The Allee decision is silent on the role that the neutral adjudicator is to have in the cross-examination process, but given that even judges sitting in a criminal matter have the authority to intervene to avoid duplicative, harassing, argumentative, or otherwise inappropriate questioning, it seems entirely consistent with the civil rights purpose of Title IX that the neutral adjudicator would have similar or perhaps even stronger authority to prevent both respondents and complainants from using the cross-examination process for purposes of harassment or intimidation.

With all of this in mind, the author proposes to amend the bill to provide for live, indirect cross-examination through the submission of written questions to the neutral adjudicator, who shall then pose the questions to the witnesses. The neutral adjudicator would be empowered, much like a judge in a courtroom, to strike or rephrase questions that are duplicative, harassing, or irrelevant. The process would also allow for the submission of follow-up questions. Such cross-examination would be consistent with Allee as well as the recommendations of Governor Brown’s working group. It would allow all parties to question one another in a fair, impartial, and respectful manner, without permitting the process to devolve into an abusive or traumatic experience for anyone.

• 1. Separation of investigatory and adjudicatory functions

Another key aspect of the Allee decision was its clear statement that a Title IX investigator cannot also serve in the role of deciding the outcome of a Title IX complaint. The bill in print makes it plain that both the investigator and the adjudicator must be impartial, but it does not currently state anywhere that the roles must be separated. To ensure that the bill could not be misinterpreted to conflict with Allee, the author proposes to amend the bill to require separation of the investigatory and adjudicatory roles. This would also be consistent with the recommendations of Governor Brown’s working group.

• 1. Exhaustion of administrative remedies

In addition to authorizing enforcement by the Attorney General, the bill contains a private right of action, meaning that individuals who have had their rights under the bill violated could file suit in court seeking redress against the higher education institution responsible.

The higher education institutions in California that have weighed in on the bill are united in their concern over this private right of action. It is probably fair to describe this element of the bill as their primary worry about the bill. The higher education institutions assert that, in the context of requirements that are extensive and that may be open to interpretation in some instances, the private right of action could result in an enormous amount of litigation against them.

In response, the proponents of the bill point out that Title IX itself may be enforced through a private right of action, so it may not be so unreasonable to propose an equivalent remedy for violations of this bill. After all, the bill is in many ways just a more detailed explanation of what Title IX requires. The private right of action aspect of the bill will likely remain a source of contention and conversation assuming the bill advances.

In the meantime, there may be room to eliminate misunderstandings about the proposed private right of action. Specifically, as the bill reads currently, it is not to be construed to require exhaustion of “the administrative complaint process” before an individual plaintiff may pursue civil law remedies. The proponents of the bill intend this provision to mirror Title IX in the sense of not requiring individual plaintiffs to exhaust the ED’s administrative civil rights enforcement process or any state equivalent before proceeding to court. Some stakeholders, however, have read the provision to mean that people could sue a higher education institution under the bill without even bothering to go through the campus grievance procedures.

In response to this potential for misinterpretation of the intent behind the bill, the author proposes to remove the reference to “the administrative complaint process.” This would not mean that aggrieved parties would be stuck going through a grievance procedure that did not comply with the requirements of this bill. In such a situation, the aggrieved party could seek civil remedies in court right away. It should, however, alleviate the concern that aggrieved parties might simply skip the campus grievance procedure altogether and proceed directly to court, even if the grievance procedure was fully compliant with this bill.

5. Proposed amendments

In order to address the issues set forth in the Comments, above, the author proposes to incorporate amendments into the bill that would, among other things:

• clarify when a higher education institution has a duty to respond to incidents of sexual harassment and sexual violence taking place off campus;
• specify that the campus grievance procedure must separate the investigator and adjudicator roles;
• require live, indirect cross-examination before a neutral adjudicator with specified safeguards against the use of cross-examination for purposes of intimidation or harassment; and
• modify the requirements relating to the provision of a list of attorneys and other resources available to complainants and respondents.

The specific amendments are as follows:

Amendment 1

In the header, after “Jackson” insert:

(Coauthor: Senator Mitchell)

(Coauthors: Assembly Members Bauer-Kahan, Limón and Petrie-Norris)

Amendment 2

On page 3, in line 30, strike out “by themselves” and after “probative” insert:

by themselves

Amendment 3

On page 4, in line 26, strike out “acknowledges” and insert:

notes

Amendment 4

On page 4, in line 29, after “proceeding.” insert:

In enacting this bill, it is the intent of the Legislature to account for the significant individual civil consequences faced by respondents charged with committing sexual violence as well as the significant harm to individual victims and to education equity more generally if sexual violence goes unaddressed.

Amendment 5

On page 5, in line 11, strike out “consent.” and insert:

affirmative consent, as defined in section 67386(a)(1).

Amendment 6

On page 5, in line 12, after “give” insert:

affirmative

Amendment 7

On page 5, in line 25, after “regardless” insert:

of

Amendment 8

On page 5, in line 28, strike out “prostituting of another person” and insert:

trafficking of another person, as defined in Penal Code section 236.1, without that person’s consent.

Amendment 9

On page 5, in line 31, strike out “nakedness.” and insert:

nakedness, without that person’s consent.

Amendment 10

On page 5, in line 36, strike out “disclosure and objected to the”

Amendment 11

On page 6, in line 17, strike out “each higher”, strike out lines 18 to 20 inclusive, and insert:

each:

1. employee of the higher education institution;
2. volunteer who will interact with student more than ten hours in a calendar year; and
3. individual under contract with the higher education institution to perform any service at the institution.

Amendment 12

On page 6, strike out lines 32 to 40, inclusive

Amendment 13

On page 7, strike out lines 1 and 2

Amendment 14

On page 7, in line 3, strike out “(B)” and insert:

(A)

Amendment 15

On page 7, in line 10, strike out “(B)” and insert:

(C)

Amendment 16

On page 7, in line 14, strike out “on a schoolbus,” and insert:

during travel,

Amendment 17

On page 7, strike out lines 16 to 25, inclusive, and insert:

(C) If a student files a complaint with the institution regarding an incident that took place on campus, the institution shall process the complaint in accordance with this section. If a student files a complaint regarding an incident that took place off campus, the institution shall evaluate the complaint to determine if there is a nexus between the off campus incident and the institution such that the incident could contribute to a hostile environment on campus. If such a nexus exists, the institution shall process the complaint in accordance with this section. In the absence of evidence to the contrary, a nexus to the campus exists whenever the incident complained of is so grievous and the likelihood of continuing to encounter the perpetrator on campus is so credible that inaction would deprive the complainant of the benefits of any education program.

Amendment 18

On page 7, in line 26, strike out “(E)” and insert:

(D)

Amendment 19

On page 7, in line 28, strike out “determine whether to”

Amendment 20

On page 8, after line 5, insert:

(C) They shall ensure that the investigation of the allegation and the adjudication of the matter are not conducted by the same person or entity.

D) They shall provide for a live hearing before a neutral adjudicator with the power independently to find facts and make credibility assessments.

Amendment 21

On page 8, in line 6, strike out “(C)” and insert:

(E)

Amendment 22

On page 8, after line 8, insert:

(F) They shall provide both parties the opportunity, during the hearing, to cross examination one another and any witnesses against them subject to the following rules: (i) the cross examination shall be live, but either party and any witness may request to answer the questions by video from a remote location; (ii) the live cross examination of either party and any witnesses shall be conducted indirectly, through the submission of written questions to the neutral adjudicator in advance and with an opportunity for the other party to object. The neutral adjudicator who shall have the authority and obligation to discard or rephrase any question that the neutral adjudicator deems to be repetitive, irrelevant, or harassing. In making these determinations, the neutral adjudicator is not bound by, but may take guidance from the formal rules of evidence. The neutral adjudicator shall provide a mechanism for both parties to ask, indirectly, through the neutral adjudicator, and subject to objections, follow up questions to be posed to the cross-examinee. The neutral adjudicator shall be empowered to require any witness to answer any question to which, in the view of the neutral adjudicator, the witness has not yet been responsive. In no circumstance shall a cross-examinee be limited to answering “yes” or “no.”

Amendment 23

On page 8, in line 9, strike out “(D)” and insert:

(G)

Amendment 24

On page 8, in line 14, strike out “(E) They shall determine the timeframes” and insert:

(H) They shall determine a reasonably prompt timeframe

Amendment 25

On page 8, in line 15, strike out the second “the” and insert:

a

Amendment 26

On page 8, in line 16, strike out “timelines,” and insert:

timeline for good cause only,

Amendment 27

On page 8, in line 27, strike out “(F)” and insert:

(I)

Amendment 28

On page 8, in line 30, strike out “(G)” and insert:

(J)

Amendment 29

On page 8, in line 36, strike out “(H)” and insert:

(K)

Amendment 30

On page 9, in line 1, strike out “(I)” and insert:

(L)

Amendment 31

On page 9, in line 4, strike out “(J)” and insert:

(M)

Amendment 32

On page 9, strike out lines 39 and 40

Amendment 33

On page 10, in line 1, strike out “an attorney advocates list” and insert:

a notice regarding appropriate legal and counseling resources

Amendment 34

On page 10, in line 3, strike out “assault” and insert:

violence

Amendment 35

On page 10, strike out lines 5 to 23, inclusive, and insert:

(I) The notice shall advise student parties of their right to seek the assistance of an attorney at any stage of the process if they wish to do so.

(II) The notice shall provide student parties with a list of known complainant and respondent attorneys. For each party, at least two referrals must be pro bono or nonprofit legal organizations. The institution shall make a diligent effort to include referrals that are within 25 miles of the institution’s main campus.

(III) The list shall indicate whether the attorney or legal aid organization is known by the institution to represent complainants, respondents, or both. The difference between the number of attorneys on the attorney referral list known to represent complainants or respondents exclusively shall not exceed by more than three the number of attorneys that represent the other side exclusively.

(IV) The institution shall confirm at least once per calendar year that all of the listed attorneys and organizations continue to accept clients for Title IX proceedings.

(V) The institution shall not remove anyone from the list in retaliation for pursuing any legal action or seeking any legal remedy against the institution.

Amendment 36

On page 11, after line 8, insert:

(N) They shall describe the obligations of all staff designated by the institution to report concerns of sexual harassment to the gender equity officer. An individual who has a confidential relationship with a student or students by law, or other relationship designated by the institution as confidential, is exempt from having to report sexual harassment concerns to the gender equity officer pertaining to the confidential relationship or relationships.

(O) They shall contain a requirement that the gender equity officer or that officer’s designee, assess each report of sexual harassment and provide outreach, as appropriate, to each identifiable student who is alleged to be the victim of the reported conduct. The outreach shall include all of the following information:

(i) The institution has received a report that the student may have been a victim of sexual harassment.

(ii) The prohibition of retaliation.

(iii) Behavioral health services at the institution or in the community.

(iv) If there is the possibility of a criminal act, notice that the student has the right, but not the obligation, to report the matter to law enforcement.

(v) The institution’s investigation procedures established pursuant to the requirements of this section.

(vi) Potential interim measures, such as no contact directives, housing changes, and academic schedule changes, where applicable.

(vii) The importance of preserving evidence.

(viii) A request for the student to meet with the gender equity officer, or the officer’s designee, to discuss options for responding to the report.

(ix) The manner in which the institution responds to reports of sexual harassment and a description of potential disciplinary consequences.

Amendment 37

On page 11, in line 25, strike out “and victim centered” and insert:

investigatory and hearing practices that help ensure an impartial and equitable process,

Amendment 38

On page 11, in line 27, strike out “complaint and” and insert:

complaint, best practices for

Amendment 39

On page 11, in line 32, strike out “data-based information” and insert:

statistics

Amendment 40

On page 11, in lines 33 and 34, strike out “assault in education, the rate of accuracy in reporting by complainants,” and insert:

sexual violence in the educational setting,

Amendment 41

On page 11, in lines 36 to 38, strike out “on campus to ensure that campus procedures are grounded in best practices.” and insert:

in the educational setting.

Amendment 42

On page 11, in line 38, strike out “data” and insert:

statistics

Amendment 43

On page 12, in line 3, strike out “trauma-informed training for handling” and insert:

training on trauma-informed handling of

Amendment 44

On page 12, strike out lines 7 to 40, inclusive

Amendment 45

On page 13, strike out lines 1 to 6, inclusive

Amendment 46

On page 13, in line 26, strike out “General.” and insert:

General, consistent with the Attorney General’s existing authority under Cal. Const., art V., § 13 and Gov. Code § 1180 et seq to investigate, and, as necessary, prosecute any violation of the law. The Attorney General may also conduct an investigation or bring an action under this section.

Amendment 47

On page 13, in line 34, strike out “either” and insert:

any

Amendment 48

On page 13, in line 18, strike out “Nothing in this” and strike out lines 19 to 21, inclusive.

6. Arguments in support of the bill

According to the author:

Title IX of the Education Amendments of 1972 (20 U.S.C. Sec. 1681 et seq.) prohibits sex discrimination in educational programs and activities. Title IX protections apply to all schools, public and private, that receive federal funding, including K-12 and postsecondary schools. Existing California law already requires higher education institutions that receive state funding to incorporate trauma-informed policies when addressing sexual assault, domestic and dating violence, and stalking involving students, both on and off campus.

Senate Bill 493 would amend the California Education Code to enumerate necessary requirements for schools to follow when responding to reports of sexual assault and harassment.

As sponsor of the bill, Equal Rights Advocates and the Women’s Foundation of California, Women’s Policy Institute write:

It has been widely studied and documented that sexual harassment, including sexual assault, on college and university campuses is rampant. Students who experience sexual harassment and/or assault suffer not only physically and emotionally, but also in their right to equitable access to education, as required by law. It is therefore critical that schools have appropriate policies and procedures in place to prevent and respond to such incidents, that the processes for reporting and addressing claims of sexual harassment and assault are clear and straightforward, and that the processes and standards for investigating and adjudicating such complaints are clear, transparent, and fair for all students involved.

7. Arguments in opposition to the bill

In opposition to the bill, Stop Abusive and Violent Environments writes:

SB 493 is designed to resurrect due process-eroding policies like those vetoed in SB 169, thus undermining accuracy and reliability in campus decision-making […]. SB 493 ignores California’s experts recommendations, heedlessly tramples CCP §1094.5(b)’s requisite fair hearing process, and repudiates several thoughtful and reasoned California Court of Appeal decisions […]. Recent appellate and lower courts in California have held that robust procedural protections such as live hearings, cross-examination, and impartial decision-makers are essential when students are facing suspension or expulsion for sexual misconduct […]. California lawmakers must reject SB 493’s effort to eliminate equitable and due process procedures that are precisely designed to maximize the likelihood of accurate and reliable decision making.

In further opposition to the bill, Families Advocating for Campus Equality writes:

Please take off your political hat and open your eyes to what’s happening to innocent students who could be your sons and daughters – because doing what’s right no longer protects you in this scary ‘accusation = guilt’ world – teenagers and young adults who’ve lost faith in our justice system, are emotionally destroyed and their lives permanently and irrevocably changed because of a seriously flawed process with a 30 percent likelihood of error.

SUPPORT

Equal Rights Advocates (sponsor)

Women’s Foundation of California, Women’s Policy Institute (sponsor)

Alliance of Californians for Community Empowerment

American Association of University Women of California

Asian Americans Advancing Justice, California

California Association for Health, Physical Education, Recreation and Dance

California Commission on the Status of Women

California Partnership to End Domestic Violence

California Women’s Law Center

Child Care Law Center

Children’s Defense Fund - California

The Cooperative Restraining Order Clinic

Courage Campaign

Empowering Pacific Islander Communities

End Rape on Campus

End Violence Against Women International

Family Violence Law Center

Girls, Inc.

Motivating Individual Leadership for Public Advancement

National Association of Social Workers, California Chapter

National Women’s Law Center

National Women’s Political Caucus

Nancy O’Malley, District Attorney, Alameda County

Nevada County Citizens for Choice

Peace Over Violence

Public Counsel

Santa Barbara Women’s Political Committee

United Food and Commercial Workers, Western States Council

Ten individuals

OPPOSITION

Families Advocating for Campus Equality

Stop Abusive and Violent Environments

Three individuals

RELATED LEGISLATION

Pending Legislation: None known

Prior Legislation:

SB 169 (Jackson, 2017) was substantially similar to this bill, but would also have applied to K-12 educational institutions. In his message vetoing SB 169, then Governor Jerry Brown wrote: “Given the strong state of our laws already, I am not prepared to codify additional requirements in reaction to a shifting federal landscape, when we haven’t yet ascertained the full impact of what we recently enacted. We have no insight into how many formal investigations result in expulsion, what circumstances lead to expulsion, or whether there is disproportionate impact on race or ethnicity. We may need more statutory requirements than what this bill contemplates. We may need fewer. Or still yet, we may need simply to fine tune what we have.” Governor Brown went on to ask a group of experts to study the matter.

SB 1375 (Jackson, Chapter 655, Statutes of 2016) required all schools receiving federal funding post the following information on their website: the name and contact information of their Title IX Coordinator; the rights of a pupil and the public, and the responsibilities of the school under Title IX; a description of how to file a complaint under Title IX. SB 1375 also required the State Superintendent of Public Instruction to electronically send an annual letter to all schools notifying them of this responsibility.

SB 1435 (Jackson, Chapter 633, Statutes of 2016) requested that the “Health Framework for California Public Schools” include comprehensive information on the development of healthy relationships and be age and developmentally appropriate.

AB 2654 (Bonilla, Chapter 107, Statutes of 2016) required postsecondary educational institutions to post their written policy on sexual harassment on their websites. AB 2654 also required the policy to include information on the complaint process and the timeline for the complaint process. The policy must include information on where to obtain the specific rules and procedures for pursuing available remedies and resources, both on and off campus.

SB 186 (Jackson, Chapter 232, Statutes of 2015) enabled the governing board of a California community college district to exercise jurisdiction over student conduct that occurs off district property in cases of sexual assault and sexual exploitation, regardless of the victim’s affiliation with the college.

SB 665 (Block, 2015) would have required the Attorney General to establish a statewide Title IX Oversight Office, required postsecondary educational institutions to report specific data to this office and required each student to complete training on rape and sexual assault awareness and prevention annually. SB 665 was held in the Senate Appropriations Committee.

SB 695 (De León, Chapter 424, Statutes of 2015) required K-12 school districts that require completion of a course in health education as a condition of high school graduation to include instruction in sexual assault and violence.

SB 967 (DeLeón, Chapter 748, Statutes of 2014) required the governing boards of California community college districts, the Trustees of the California State University system, and the Regents of the University of California, as well as the governing boards of independent postsecondary institutions in California to adopt victim-centered sexual assault, domestic violence, dating violence, and stalking policies as a condition of receiving state funds for student financial assistance.

AB 1433 (Gatto, Chapter 798, Statutes of 2014) required all California campuses to have policies in place to ensure immediate reporting and disclosure to law enforcement.

AB 3133 (Roos, Chapter 1117, Statutes of 1982) enacted the Sex Equity in Education Act, which, similar to its federal Title IX counterpart, prohibits discrimination in California schools on the basis of sex.

PRIOR VOTES:

Senate Education Committee (Ayes 6, Noes 0)

**************

1. Meyerhoff, The Clapback: An Investigation of the Sexual Assault and Rape Climate at Cal Poly San Luis Obispo (2019) https://the-clapback.com/ (as of Apr. 11, 2019). ↑

2. The term “survivor” is sometimes used in this analysis; the word “victim” is sometimes used elsewhere, including in the relevant law. Use of the word survivor here is not intended to imply any legal distinction between the two terms. ↑

3. Sexual assault is, by definition, forced in all cases. The research on sexual assault uses the words “forced,” and “forcible” as modifiers for one type of sexual assault so as to distinguish it from sexual assault in which the person assaulted is incapacitated at the time of the assault. For purposes of consistency with the research only, this analysis uses the same terminology here. ↑

4. Krebs et al., The Campus Sexual Assault (CSA) Study: Final Report (Document 221153) (Oct. 2007) U.S. Department of Justice https://www.ncjrs.gov/pdffiles1/nij/grants/221153.pdf (as of Apr. 21, 2019). ↑

5. Lisak and Miller, Repeat Rape and Multiple Offending Among Undetected Rapists (2002) Violence and Victims, 17(1), 73-84 https://www.davidlisak.com/wp-content/uploads/pdf/RepeatRapeinUndetectedRapists.pdf (as of Apr. 21, 2019). ↑

6. Mengo and Black, Violence Victimization on College Campus: Impact on GPA and School Dropout (2016) Journal of College Student Retention: Research, Theory & Practice, Vol. 18, Issue 2 https://journals.sagepub.com/doi/abs/10.1177/1521025115584750?journalCode=csra& (as of Apr. 11, 2019). ↑

7. David Cantor et al., Report on the AAU Campus Climate Survey on Sexual Assault and Sexual Misconduct, Association of American Universities (Sept. 2015, revised October 2017) https://www.aau.edu/sites/default/files/AAU-Files/Key-Issues/Campus-Safety/AAU-Campus-Climate-Survey-FINAL-10-20-17.pdf (as of Apr. 11, 2019) at pgs. 13-14. ↑

8. Id. ↑

9. Bartolone and Gebhert, Final Report: University of California Berkeley MyVoice Survey National Opinion Research Center at the University of Chicago https://myvoice.berkeley.edu/lib/img/pdf/MyVoice_Final_Report_Publish.pdf (as of Apr. 11, 2019) at pgs. 22-23. ↑

10. Id. ↑

11. Rankin et al, Sexual Assault Victimization Disproportionately Affects Certain Minority College Students (Mar. 27, 2017) University of Pittsburgh School of the Health Sciences https://www.eurekalert.org/pub_releases/2017-03/uops-sav031617.php (as of Apr. 11, 2019). ↑

12. See, Dear Colleague Letter (April 4, 2011) U.S. Department of Education https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.html (as of Apr. 21, 2019). ↑

13. See, Q&A on Campus Sexual Misconduct (Sep. 2017) U.S. Department of Education https://www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf (as of Apr. 21, 2019). ↑

14. See, Secretary DeVos: Proposed Title IX Rule Provides Clarity for Schools, Support for Survivors, and Due Process Rights for All (Nov. 16, 2018) U.S. Department of Education https://www.ed.gov/news/press-releases/secretary-devos-proposed-title-ix-rule-provides-clarity-schools-support-survivors-and-due-process-rights-all (as of Apr. 19, 2019). ↑

15. CSU Comment to the NPRM, Docket ID ED-2018-OCR-0064 (January 29, 2019) https://www.sfchronicle.com/file/375/4/3754-Chancellor%20White%20ltr%20DeVos%20Betsy%20NPRM%20-%20Title%20IX%201-29-19.pdf (as of Apr. 21, 2019); UC Comment to the NPRM, Docket ID ED-2018-)CR-0064 (January 28, 2019) https://sexualviolence.universityofcalifornia.edu/files/documents/uc-title-ix-letter.pdf (as of Apr. 21, 2019). ↑

16. See, e.g., Doe v. Allee (2019) 30 Cal.App.5th 1036, 1065-1066 (referring to cross-examination as, among other things, “the greatest legal engine ever invented for the discovery of truth.”) ↑

SENATE COMMITTEE ON EDUCATION

Senator Connie Leyva, Chair

2019 - 2020 Regular

Bill No: SB 493 Hearing Date: April 3, 2019

Subject: Education: sex equity.

NOTE: This bill has been referred to the Committees on Education and Judiciary. A "do pass" motion should include referral to the Committee on Judiciary.

SUMMARY

This bill requires higher education institutions to, among other things, adopt rules and procedures for the prevention of sexual harassment, and adopt and post on their websites the grievance and investigation procedures to resolve complaints of sexual harassment.

BACKGROUND

Existing federal law:

1. Provides that, in part, "no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program of activity receiving Federal financial assistance." Enforcement of compliance is initiated upon the filing of a complaint alleging a violation of Title IX.
   
2. Requires each school district and county office of education, or a local public or private agency that receives funding from the state or federal government, to designate a person to serve as the Title IX compliance coordinator to enforce compliance at the local level, including coordinating any complaints of non-compliance. (Title IX of the Education Amendments of 1972 to the 1964 Civil Rights Act)

Existing state law:

1. Requires each educational institution in California (K-12 and postsecondary education) to have a written policy on sexual harassment, and requires schools to display the policy in a prominent location in the main administrative building or other area of the campus or schoolsite, be provided as part of any orientation program for new students, provided to each faculty member, administrative staff and support staff, and appear in any publication of the school that sets forth the rules, regulations, procedures and standards of conduct. (Education Code § 231.5 and § 66281.5)
   
2. Requires the governing board of each community college district, the Trustees of the California State University, the Regents of the University of California, and the governing boards of independent postsecondary institutions to adopt policies concerning campus sexual violence, domestic violence, dating violence, and stalking that includes an affirmative consent standard, detailed and victim-centered policies and protocols, and the standard used in determining whether the elements of the complaint against the accused have been demonstrated is the preponderance of the evidence. (EC § 67386)
   
3. Requires schools to post information on their Web sites relative to the designated Title IX coordinator, rights of students and responsibilities of schools, and a description of how to file a complaint. (EC § 221.61)

ANALYSIS

This bill requires higher education institutions to, among other things, adopt rules and procedures for the prevention of sexual harassment, and adopt and post on their websites the grievance and investigation procedures to resolve complaints of sexual harassment. Specifically, this bill:

1. Requires, as a condition of receiving state funds for student financial assistance, the governing board or body of a campus of the University of California (UC), California State University (CSU), or California Community College (CCC), a private postsecondary educational institution, or an independent institution of higher education that receives state funds to comply with all of the following requirements at the institution:
   
   1. Disseminate a notice of non-discrimination to each employee and volunteer, including any individual employed by contract to perform any service at the institution. The notice must include but is not limited to all information required to be included in the currently-required notice related to written policies on sexual harassment.
      
   2. Designate at least one employee to act as a gender equity officer to coordinate its efforts to comply with and carry out its responsibilities. This bill authorizes the gender equity officer to be the same individual as the institution’s federal Title IX coordinator. This bill requires the gender equity officer to have adequate training on what constitutes sexual harassment and on trauma-informed investigatory and hearing practices, and understand how the institution’s grievance procedures operate.
      

Sexual harassment policy

• 1. Adopt rules and procedures for the prevention of sexual harassment that also provides for specified elements, including but not limited to:
     
     1. The harassing conduct shall be deemed to create a hostile environment on campus for the purposes of this section if the conduct is sufficiently serious that it interferes with or limits a student’s ability to participate in or benefit from the institution’s programs or activities (including a single or isolated incident of sexual harassment).
     2. The institution’s primary concern shall be student safety. The use of alcohol, or drugs, or both shall not constitute grounds for determining that a complainant is at fault for sexual harassment or sexual violence.
     3. If a student files a complaint with the institution, regardless of where the conduct occurred, the institution shall process the complaint in accordance with this bill.
        

Grievance procedures

• 1. Adopt and publish on its website grievance procedures that provide for prompt and equitable resolution of student sexual harassment complaints filed by a student against an employee, another student, or a third party. This bill requires the grievance procedures to satisfy specified requirements, including but not limited to:
     
     1. They shall require notice to each student of the grievance procedures, including where and how complaints may be filed.
     2. They shall ensure adequate, reliable, trauma-informed and impartial investigation of complaints, including the opportunity for both parties to present witnesses and other evidence.
     3. They shall include an explanation of the meaning of a preponderance of the evidence standard, which shall apply to all investigations involving complaints of sexual harassment or sexual assault. The preponderance of the evidence standard is met if an allegation is more likely than not to be true.
     4. They shall provide for notice in writing to parties of any extension of a time period granted in the investigation and outcome determination process.
     5. They shall provide for notice to parties of the outcome of the complaint in writing. The written outcome shall explain to the parties the reasons for the decision.
        

Provides that this bill does not require a school to provide separate grievance procedures for student sexual harassment complaints, and authorizes the school to use student disciplinary procedures or other separate procedures to resolve sexual harassment complaints. This bill requires any procedures used to adjudicate complaints of sexual harassment, including disciplinary procedures, to afford a complainant and a respondent a prompt and equitable resolution.

Rights that must be provided in grievance procedures

1. If both the complainant and the respondent are students at the institution, they shall be afforded specified rights, including:
   • • 1. To have the opportunity to give information, identify witnesses, and provide documentary information during the course of the investigation and the opportunity and a reasonable amount of time to respond to any evidence upon which any findings will be based.
       2. To have a support person or adviser accompany a student party during key stages of the investigation and hearing processes, if requested.
       3. To not be subjected to any form of direct, live cross-examination from the other party or the other party’s advisor.
       4. To receive an attorney advocates list developed and maintained by the institution for student parties in school misconduct matters involving sexual harassment or sexual assault.
       5. To receive a written outcome of the findings, including disciplinary outcomes.
       6. If the institution has an appeals process for an investigation, for either party to appeal the outcome of the misconduct proceeding or the disciplinary proceeding.

Provides that nothing in this bill requires schools to provide non-student parties with rights listed in this bill, to the extent that the student rights listed in this bill do not otherwise exist by statute or agreement.

Prohibitions that must be included in grievance procedures

• • • 1. To have appropriate disciplinary outcomes, remedial measures, and systemic remedies put in place following a final finding of responsibility. To ensure this right is properly protected, an institution of higher education is prohibited from doing any of the following:
         1. Mandating mediation to resolve allegations of sexual assault.
         2. Requiring that the complainant enter a voluntary resolution agreement or any other form of resolution as a prerequisite to receiving remedial measures from the institution which safeguard the complainant’s access to education.
         3. Issuing a mutual no-contact directive when an allegation of harm has been made against only one of the parties or when a counter allegation of harm is facially retaliatory.
            

Who to contact

Publish in a prominent place on its website, with accompanying text clearly associating them with the sexual harassment and sexual assault grievance processes, the name, title, and contact information (which shall include the telephone number, office location, and email address) of each of the following individuals:

• • • 1. The gender equity officer or the gender equity officer’s designee.
         
      2. Any individual official within the institution with the authority to investigate complaints made or to institute corrective measures such as sanctions, accommodation, or other forms of resolution of the complaint.
         

Training

Provide mandatory training to each employee engaged in the grievance procedures related to sex discrimination, including sexual violence, which shall include for these employees training on trauma-informed and victim-centered best practices for assessment of a sexual harassment or sexual assault complaint and questioning of the complainant, respondent, and witnesses, and on implicit bias, the history of institutional racism, and racial inequities, both broadly and in school disciplinary processes. This bill requires materials approved by the institution for this training to include data-based information on the prevalence of sexual harassment and assault in education, the rate of accuracy in reporting by complainants, and the rates at which students of color, LGBTQI, disabled, non-binary, cisgendered female, and cisgendered male students experience sexual harassment and sexual assault on campus to ensure that campus procedures are grounded in best practices. This bill requires, when possible, citation to such data to be included in the written anti-discrimination policies accompanying the institution’s grievance procedures.

Requires an institution, if it has on-campus housing, to ensure that residence life student and non-student staff, or their equivalent, annually receive trauma-informed training for handling reports made to them regarding incidents of sexual harassment or assault, or incidents of sexual harassment or assault of which they have actual or constructive knowledge in student residential facilities.

Investigation

Adopt and publish on its website procedures for an investigation providing for prompt and equitable resolution of student sexual harassment complaints filed by a student, or initiated by the higher education institution itself, against an institution employee, another student, or a third party. This bill requires the procedures to contain specified elements.

Action in court

1. Authorizes either of the following people to bring an action in a court of competent jurisdiction to enjoin a violation of this bill or to recover compensatory damages, court costs, and reasonable attorney’s fees, or all of these:
   
   1. The Attorney General.
      
   2. A person whose right to equitable access to a higher education institution, program, or activity through a higher education institution that is a recipient of state funds was infringed through violation of this bill.
      
2. Requires that a person bring an action no later than the statute of limitations applicable to a personal injury claim in California at the time the cause of action accrues.
   
3. Authorizes civil law remedies to also be available to complainants, and provides that nothing in this bill is to be construed to require an exhaustion of the administrative complaint process before civil law remedies may be pursued.

Miscellaneous

1. Requires this bill to be implemented at each higher education institution by January 1, 2021.
   
2. Requires the gender equity officer, if the school relies on disciplinary procedures for compliance, to review the school’s disciplinary procedures to ensure that the procedures comply with the requirements of this bill.
   
3. Defines “higher education institution” as a campus of the University of Calif9ornia, California State University, or California Community College, a private postsecondary educational institution, or an independent institution of higher education that receives state funds.
   
4. Modifies the definition of “sexual harassment” to specifically include sexual battery, sexual violence, and sexual exploitation.
   
5. Defines “sexual violence” as physical sexual acts perpetrated against a person without the person’s consent, and provides that physical sexual acts include specified acts such as rape.
   
6. Defines “sexual battery” as is currently defined in the Penal Code.
   
7. Defines “sexual exploitation” as taking sexual advantage of another person of the benefit of anyone other than that other person without that other person’s consent, regardless of that other person’s affiliation with the higher education institution, including specified acts.

STAFF COMMENTS

1. Need for the bill. According to the author, “Schools in California lack clear guidance regarding the rights of California students are entitled to during a school misconduct investigation and proceeding involving an underlying complaint of gender-based discrimination, including sexual harassment and/or violence. While existing California law prohibits institutions of higher education that receive state funding from discriminating on the basis of sex, there is no state law or state agency guidance on what a process for student misconduct investigation and findings by a school must entail in order to ensure that these rights are effectuated and to equity in such a process. SB 493 delineates the rights students are afforded by the state in these processes and also acknowledges the individuality and autonomy of these institutions and allows ample room for local problem-solving built on a foundation of fundamental process rights students must have. This creates clarity for our higher education institutions and a guaranteed common baseline process experience for California students in higher education when it comes to the enforcement of this important civil right.”
   
2. Proposed changes to federal Title IX rules. The United States Department of Education rescinded guidance issued by the previous administration that is related to how institutions of higher education are to comply with Title IX, and issued new guidance in September 2017. Guidance is not necessarily legally binding. In November 2018, the US Department of Education released proposed changes to Title IX rules, which are legally binding. Proposed changes that are related to provisions of this bill include:
   
   1. Places limits on the use of the “preponderance of evidence” standard, and requires institutions of higher education to otherwise use the “clear and convincing evidence” standard.
      
   2. Modifies the standard for when an institution of higher education must respond to allegations of sexual harassment from “know or reasonably should know” to “actual knowledge.”
      
   3. Allows for the cross-examination of complainants during a live hearing.
      
   4. Excludes some off-campus conduct. https://www2.ed.gov/about/offices/list/ocr/docs/title-ix-nprm.pdf

This bill specifically applies the preponderance of evidence standard to all investigations; provides that specified harassing conduct, which could be a single or isolated incident, is to be deemed to create a hostile environment; requires an institution, regardless of where the conduct occurred, to process the complaint in accordance with this bill; prohibits a complainant or respondent from being subjected to any form of direct, live cross-examination from the other party or the other party’s advisor; and prohibits an institution from mandating mediation, requiring the complainant enter a voluntary resolution agreement or any other form of resolution, or issuing a mutual no-contact directive.

If this bill were to become law and the proposed changes to federal Title IX rules are adopted, California would have stronger Title IX protections and requirements in institutions of higher education than would be required by federal standards.

1. Federal guidance institutions have been following. The United States Department of Education’s Office for Civil Rights (OCR) issued a “Dear Colleague” letter on April 4, 2011, providing guidance on ensuring compliance with Title IX specific to sexual harassment. The letter detailed numerous requirements under Title IX related to sexual harassment, explained that sexual harassment includes sexual violence, and provided guidance relative to specific requirements pursuant to Title IX. The OCR stated that its “letter does not add requirements to applicable law, but provides information and examples to inform recipients about how OCR evaluates whether covered entities are complying with their legal obligations.”
   
   This guidance stated, among other things, that:
   1. Sexual harassment of students, which includes acts of sexual violence, is a form of sex discrimination prohibited by Title IX.
      
   2. Institutions must publish a notice of non-discrimination, as specified.
      
   3. Institutions must designate an employee as the Title IX coordinator and notify students and employees of the name and contact information for the Title IX coordinator.
      
   4. Institutions that know or reasonably should know about harassment that creates a hostile environment must take immediate action to eliminate the harassment, prevent its recurrence, and address its effects.
      
   5. Institutions must adopt and publish grievance procedures providing for the prompt and equitable resolution of sex discrimination complaints.
      
   6. Institutions’ grievance procedures should specify the timeframe within which the institution will conduct a full investigation, both parties receive a response regarding the outcome, and the parties may file an appeal.
      
   7. Institutions must use a preponderance of the evidence standard (it is more likely than not that sexual harassment or violence occurred) in order for the grievance procedures to be consistent with Title IX standards.
      
   8. Institutions are not relieved of their duty under Title IX to resolve complaints promptly and equitably whether or not a criminal investigation is underway.
      
   9. Institutions must notify both parties, in writing, about the outcome of the complaint and any appeal.
      
   10. Institutions need to ensure their employees are trained to know how to report harassment and how to respond properly.
       

This bill essentially codifies the guidance provided by the Office of Civil Rights (OCR)’s “Dear Colleague” letter in 2011, as well as imposes requirements, procedures, and rights that the proposed changes in federal Title IX rules modify.

1. Preponderance of evidence standard. According to the 2011 “Dear Colleague” letter from the OCR, “the Supreme Court has applied a preponderance of the evidence standard in civil litigation involving discrimination under Title VII of the Civil Rights Act of 1964 … Like Title IX, Title VII prohibits discrimination on the basis of sex.” The letter also notes that the Title IX regulations adopt the procedural provisions applicable to Title VI of the Civil Rights Act. The letter states “Thus, in order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of evidence standard.”
   
   Existing state law, pursuant to SB 967 (de León, Chapter 748, 2014), requires California’s postsecondary institutions to adopt policies concerning campus sexual violence that includes an affirmative consent standard and the preponderance of evidence standard for determining whether the elements of the complaint against the accused have been demonstrated.
   
2. Training. Current law requires institutions of higher educations’ policies and procedures to include training for campus officials involved in investigating and adjudicating cases, but stops short of actually requiring the training to occur. This bill requires institutions to provide the mandatory training to each employee engaged in the grievance procedures related to sex discrimination, including sexual violence. This bill requires the training to include training on trauma-informed and victim-centered best practices for assessment of a sexual harassment or sexual assault complaint and questioning of the complainant, respondent, and witnesses, and on implicit bias, the history of institutional racism, and racial inequities, both broadly and in school disciplinary processes.
   
   This bill requires the gender equity officer to have adequate training on what constitutes sexual harassment and on trauma-informed investigatory and hearing practices, and understand how the institution’s grievance procedures operate.
   
   This bill also requires residence life student and non-student staff to annually receive trauma-informed training for handling reports made to them regarding incidents of sexual harassment or assault, or incidents of sexual harassment or assault of which they have actual or constructive knowledge in student residential facilities
   
   It is unclear whether all campuses have the capacity to provide this level of training; however, this bill does not preclude campuses from partnering or contracting with an outside entity to provide this training.
   
3. Other things to consider. This bill is double-referred to the Senate Judiciary Committee. Provisions of this bill that may be considered by the Judiciary Committee include: what it means for residence life student and non-student staff to have “constructive knowledge” of incidents of sexual harassment or assault in student residential facilities; bringing an action in a court of competent jurisdiction; the provision of a list of attorney advocates.
   
4. Prior legislation. SB 169 (Jackson, 2017) was similar to this bill. SB 169 was vetoed by Governor Brown, whose veto message read:

This bill would codify a combination of federal regulations and guidance on sexual harassment - some of which has been repealed, some of which is still in effect - as well as some language from model policies that have been developed by California universities.

This is not a simple issue. Sexual harassment and sexual violence are serious and complicated matters for colleges to resolve. On the one side are complainants who come forward to seek justice and protection; on the other side stand accused students, who, guilty or not, must be treated fairly and with the presumption of innocence until the facts speak otherwise. Then, as we know, there are victims who never come forward, and perpetrators who walk free. Justice does not come easily in this environment.

That is why in 2014 I signed into law the first affirmative consent standard in the country for colleges to adopt in their sexual assault policies, so that clear and basic parameters for responsible behavior could be established. Yes Means Yes, along with its attendant preponderance standard, is the law in California, which only the courts or a future legislature can change.

Since this law was enacted, however, thoughtful legal minds have increasingly questioned whether federal and state actions to prevent and redress sexual harassment and assault - well-intentioned as they are - have also unintentionally resulted in some colleges' failure to uphold due process for accused students. Depriving any student of higher education opportunities should not be done lightly, or out of fear of losing state or federal funding.

Given the strong state of our laws already, I am not prepared to codify additional requirements in reaction to a shifting federal landscape, when we haven't yet ascertained the full impact of what we recently enacted. We have no insight into how many formal investigations result in expulsion, what circumstances lead to expulsion, or whether there is disproportionate impact on race or ethnicity. We may need more statutory requirements than what this bill contemplates. We may need fewer. Or still yet, we may need simply to fine tune what we have.

It is time to pause and survey the land.

I strongly believe that additional reflection and investment of time in understanding what is happening on the ground will help us exercise due care in this complex arena. I intend to convene a group of knowledgeable persons who can help us chart the way forward.

SB 665 (Block, 2015) required the Attorney General to establish a statewide Title IX Oversight Office, required postsecondary educational institutions to report specific data to this office, required each student to complete training on rape and sexual assault awareness and prevention annually. SB 665 was held in the Senate Appropriations Committee.

SUPPORT

American Association of University Women-California

California Association for Health, Physical Education, Recreation and Dance

California Women’s Law Center

Children’s Defense Fund-California

Citizens for Choice

Empowering Pacific Islander Communities

Equal Rights Advocates

Family Violence Law Center

Los Angeles United Methodist Urban Foundation

National Association of Social Workers, California Chapter

Peace Over Violence

Public Counsel

Southeast Asia Resource Action Center

OPPOSITION

None received

-- END --