On October 15, 2017 Governor Brown vetoed Senate Bill (SB) 169, a bill that would have codified into state law federal Title IX regulations and recently-repealed guidance on sexual assault and sexual violence issued by the U.S. Department of Education’s (ED) Office for Civil Rights (OCR).
In January 2017, a California State Senator introduced SB 169 in response to news the Trump Administration would review and likely rescind previously issued federal guidance regarding educational institutions’ obligations to respond to sexual assault and sexual violence under Title IX of the Civil Rights Act of 1964. Specifically SB 169 would have codified standards set forth in OCR’s 2011 Dear Colleague Letter into California law for both K-12 schools and institutions of higher education. In other words, certain provisions outlined by OCR’s regulations and guidance would remain in effect in California regardless of whether the ED amended or repealed Title IX regulations. On September 22, 2017, OCR, now under the leadership of U.S. Secretary of Education Betsy DeVos, rescinded the Obama era guidance documents, including the 2011 Dear Colleague Letter. The OCR cited the Department’s intent to engage in the formal rulemaking process concerning the development of new federal regulations pertaining to Title IX responsibilities arising from complaints of sexual misconduct. In the interim, OCR issued new guidance on campus sexual misconduct that explained the Department’s expectations of educational institutions.
Had Governor Brown signed SB 169 into law, the changes to state law would have included the following:
- SB 169 would have clarified that harassment and other sex-based discrimination includes sexual harassment and sexual violence. The now-repealed 2011 Dear Colleague Letter laid out equivalent standards.
- Under current state law, educational institutions must comply with federal guidance related to sexual harassment and sexual violence. SB 169 would have removed the reference to federal law and specified that all educational institutions use the “preponderance of evidence” standard of proof to decide whether an incident of sexual harassment or sexual violence occurred. This means the evidence must show it is “more likely than not” – i.e., greater than 50 percent likelihood – that the victim did not consent. Even without the passage of SB 169, however, current California law under Education Code section 67386 requires institutions of higher education to utilize the preponderance of evidence standard when adjudicating sexual assault complaints.
- Institutions of higher education covered by SB 169 would have been required to adopt grievance and investigation 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. These institutions would also have been required to designate at least one employee as a gender equity officer to coordinate its efforts to comply with and carry out its responsibilities under this law.
Governor Brown’s Veto
Governor Brown vetoed SB 169, stating that while he recognizes that sexual harassment and sexual violence are “serious and complicated matters” that require the educational institutions to balance the rights of the alleged victim and the accused, he was hesitant to enact more laws on the subject given already existing state protections. He explained,
Given the strong state of our laws already, I am not prepared to codify additional requirements in reaction to the 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 and 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.
In referencing current California law Government Brown was specifically referring to California’s affirmative consent or “Yes Means Yes” law enacted through passage of SB 967 in 2014. Under SB 967, an institution’s policy governing its student disciplinary process must use an affirmative consent standard to determine whether both parties to sexual activity provided consent. Affirmative consent is a conscious and voluntary agreement to engage in sexual activity. We previously published a summary of SB 967 here.
Additionally, in 2015, Governor Brown signed into law several bills addressing sex equity and assault in educational settings. Specifically, SB 186 permits community college districts to extend their jurisdictions beyond their campus borders and use their existing disciplinary process to discipline, expel, or suspend students for off-campus sexual assault and sexual exploitation. Similar to requirements under federal Title IX regulations, SB 1375 requires K-12 and higher education institutions receiving federal funding to post the following in a prominent location on their websites: the name and contact information of their Title IX coordinator, students’ rights and schools’ responsibilities under Title IX, and information about how to file a complaint under Title IX. In the K-12 educational context, SB 695 requires that public high school health classes provide students instruction on affirmative consent, sexual harassment, assault, violence, and the importance of developing positive and healthy relationships.
As many of these laws have only been enacted in the last three years, Governor Brown wants to provide the state legislature more time to determine whether current protections are effective before adding more requirements into the law.
As Governor Brown pointed out in his veto message, California law in its current form mandates that educational institutions respond to sexual assault and sexual violence. An educational institution’s obligations to address sex- and gender-based harassment and discrimination, including sexual violence, stalking, and intimate partner violence, stem from a variety of sources, including Title IX, Clery/VAWA Section 304, the U.S. Supreme Court, Title VII, Title VI, OCR, California state law, and the particular educational institution’s own policies and procedures. Some state laws provide stricter standards than federal laws and regulations. For example, community college districts’ requirements under Title 5 of the California Code of Regulations and the “Yes Means Yes” law are both more comprehensive and stringent that many requirements under federal Title IX. For these reasons, we recommend the following:
- All educational institutions should continue to implement their policies and procedures regarding reports of sexual harassment, assault, violence and stalking. If your educational institution has not updated its procedures in the last three years, we recommend that you work with legal counsel to audit your current policies and procedures.
- Institutions of higher education must continue to use the “preponderance of the evidence standard” when adjudicating claims of sexual assault, domestic violence, dating violence, and stalking. K-12 districts may also use this same standard, but absent any additional amendments to California law, they may also use the “clear and convincing” standard of proof. All educational institutions should continue to apply the same standard of proof in adjudications for sexual misconduct as they do for adjudicating other student misconduct cases.
- Contribute recommendations when the ED’s formal rulemaking process opens. The ED has yet to open this process, but we will provide updates once it does.
We will continue to provide guidance and alerts regarding the obligations of educational institutions to respond to sexual assault and sexual violence under state and federal law as new developments unfold. If you have questions about this issue, please contact any of our statewide offices.