There have been some interesting developments following the Department of Education’s Office for Civil Rights’ (OCR) September 22, 2017 withdrawal of two Obama era OCR guidances, including the controversial April 4, 2011 “Dear Colleague Letter”. Predictably, those who favored the provisions of the Obama era guidances have lamented the actions of the OCR and have communicated their intentions to push back against what they perceive as a betrayal by the Department of Education to the cause of sexual assault victim support and campus safety. On the other side of the issue, due process advocates have praised the steps taken by the Department as long overdue and necessary first steps in the restoration of basic due process rights to students accused of campus sexual misconduct.
Schedule your initial consultation - contact us.
The competing concerns crashed into one another in the most unlikely of places – California politics. Typically a bastion of progressive liberal ideology, California has been at the vanguard of championing the cause of campus sexual assault victims. As referenced in a past article on this blog entitled “California and Connecticut Codify the ‘Preponderance’ Standard”, California has enacted state legislation (California Education Code Section 67386) that mandates upon all state universities and all colleges receiving state funds, the implementation of certain policies pertaining to student misconduct in the areas of sexual assault, domestic violence, dating violence and stalking (i.e. Clery Act/VAWA and Title IX sexual assault categories). Under California law, all subject schools must adopt, among other requirements, “affirmative consent” as the standard of consent (67386(1)); and the “Preponderance of the Evidence” standard of proof in the adjudication of such cases (67386(3)).
Thus it was not a surprise, in response to the most recently issued OCR guidances, that the California Legislature quickly passed legislation (SB 169), which was designed to rollback, on the state level, the Department of Education’s latest Title IX initiatives. What was surprising was the fact that Governor Brown vetoed the legislation. In addition, there is great significance in the reasoning Governor Brown provided in explaining his veto. Here are his words, in pertinent part:
“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 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.
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.” (See Governor Brown SB 169 Veto Statement).
That the call for “additional reflection” is being made by the Governor of the country’s most influential state and by an individual who has an unquestioned pedigree as a committed progressive bodes well for the continuation of a serious and sober discussion on an issue that impacts, so profoundly, so many young lives.