SB-169: We Can Do Better

UPDATE: On October 15, 2017, Gov. Jerry Brown vetoed SB-169, citing its many due process and fairness concerns. His veto letter can be seen HERE.

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SB-169 has been introduced in the California Senate. Although its stated goal is to promote “sex equity,” in truth the bill is filled with numerous provisions that are vague, biased, and/or unfair. SAVE urges lawmakers to not support this flawed bill. Instead, SAVE recommends consideration of the Campus Equality, Fairness, and Transparency Act.

Hashtag: #SB169WeCanDoBetter

Read SAVE’s letter to the Senate Standing Committee on Education.

ANALYSIS AND CRITIQUE

Bill Title: An act to amend Sections 212.5 and 231.5 of, and to add Sections 212.7, 212.81, and 66281.8 to, the Education Code, relating to education.

Introduced by: Senators Jackson and De Leon

Committee: Senate Education Committee

Hearing Date: April 19, 2017

Overview:

The purpose of SB-169 is stated in paragraph (g):

(g) It is critical for California to implement the federal regulations issued by the United States Department of Education’s Office of Civil Rights on April 4, 2011, to ensure that protections are in place to properly prevent and resolve instances of sexual harassment, including sexual violence, at California’s elementary or secondary schools and higher education institutions.    

SB-169 purports to enact “regulations” issued by the Department of Education’s Office for Civil Rights (OCR).  Although SB-169 characterizes OCR’s April 4, 2011 “Dear Colleague Letter” (DCL) as a “regulation,” the DCL is merely “guidance” and as such was never subjected to the public notice and comment opportunity required by the Administrative Procedure Act.  Nevertheless, SB-169 misleads lawmakers and the public by repeatedly referring to the federal guidance it seeks to codify as a “regulation.”

It would be a grievous error for the California legislature to codify a highly controversial and much criticized federal directive when it has become apparent over the past six years that the DCL’s procedures are causing institutions to shortchange identified victims and accused students alike, leading to thousands of OCR complaints and hundreds of federal lawsuits:

  1. The prestigious American College of Trial Lawyers, based in Irvine, California recently issued a White Paper on Campus Sexual Assault Investigations that exposed widespread problems with the current campus-based rape adjudication system. The ACTL report concludes, “Under the current system, everyone loses.” https://www.actl.com/library/white-paper-campus-sexual-assault-investigations
  2. The recent SAVE report, Six-Year Experiment in Campus Jurisprudence Fails to Make the Grade, discusses the continually increasing number of federal OCR complaints and civil lawsuits filed by students in the wake of the 2011 DCL. The report also highlights how college administrators, including Janet Napolitano, president of the University of California system, have become deeply frustrated by the ever-evolving standards, costs, and ineffectiveness of DCL’s procedures.  http://www.saveservices.org/reports/.
  3. Those students most severely impacted by these flawed campus disciplinary systems have been and will continue to be students who do not have the resources to consult or retain legal assistance, including first generation college students, minorities and other underprivileged populations. These are the students in whom our State has invested significant time, money and effort to ensure their opportunities are equal to their peers.

Detailed Analysis:
SB-169 reveals a perfunctory effort to address the extremely complex issues inherent in campus sexual misconduct disputes. The bill is replete with undefined teminology and it carelessly neglects to provide campuses with adequate tools to accomplish the broad policy goals it seeks to achieve. These omissions are particularly troublesome given the fact-specific nature of and importance of credibility determinations in such cases, particularly in combination with inadequate professional training, lack of resources, and the institution’s inherent conflict of interest in protecting its reputation.

  1. SB-169 Section 3 (a): fails to define “incapable of giving consent,” which will lead to an array of interpretations and result in inconsistent application of the statute among institutions.  It would be far more effective to use the term “incapacitated,” thereby providing a more definitive threshold and more likely to be within the capabilities of campus administrators to assess.
  2. SB-169 Section 3 (d): “Sexual violence means sexual coercion.”  This wording is unacceptably vague: what is “sexual coercion?”  Is it considered “coercion” when one party asks a partner for sex twice within an hour?  Six times over the course of an evening?
  1. SB-169 Section 4: Mandates that elementary and secondary school boards implement training, investigation and adjudication procedures, and assign a school employee to act as a “sex equity coordinator.”  There is no requirement, however, that these persons possess any training, knowledge, or skill in handling sexual assault investigations and adjudications in the “adequate, reliable, and impartial” manner that is required by SB-169.
  1. SB-169 Section 4 (c)(3)(C): Requires grievance procedures to provide both parties the opportunity to present witnesses and evidence. Unfortunately, there is no clarification with respect to the types of evidence admissible, how the evidence is to be accessed or presented, the parties’ rights to question evidence, rules for disclosure or sequestration, rape shield rules, etc.
  1. SB-169 Section 4 (c)(3)(G)(iii): allows complainants to appeal a finding of “not responsible.” Allowing such an appeal is tantamount to double jeopardy.
  1. SB-169 Section 4 (d): “Any procedures used to adjudicate complaints of sexual harassment, including disciplinary procedures, shall afford a complainant a prompt and equitable resolution.” This requirement reveals inherent bias for a complainant; an equitable instruction must require a prompt and equitable resolution for both parties.
  1. SB-169 Section 4 (f): “A school shall ensure that steps taken to accord due process rights to the alleged perpetrator do not restrict or unnecessarily delay the protections for the complainant.” What protections of due process could possibly harm the complainant? Schools should never be required to decide between due process and respectful treatment of complainants. Both are capable of being provided simultaneously.
  1. SB-169 Section 4 (i): would require that if a school detects harassment creating a hostile environment, the school shall “eliminate the hostile environment.” This provision could be interpreted to encourage expulsion as the remedy to any incident.  Given the vast array of potential sexual harassment allegations, the Bill should not predetermine a one size fits all penalty.
  1. SB-169 Section 4 (k): In part, states that the regulations shall include all provisions of the OCR April 4, 2011 19-page letter that are “not covered in this section.” It is inappropriate for a statute to impose unarticulated responsibilities on schools, especially when those responsibilities have been uniformly criticized and results of their application so obviously ineffective at resolving the intended problems.