California governor vetoes campus sexual misconduct bill

October 16, 2017

In a surprising move yesterday, California Governor Jerry Brown vetoed Senate Bill 169, a bill that sought to codify Obama-era campus sexual misconduct policy, applying it to all elementary and secondary schools, as well as any institution of higher education that accepts state funds or student financial assistance.

The bill contained several provisions that were worrisome to civil liberties advocates like FIRE. For example, it required K-12 schools and institutions of higher education to adjudicate campus sexual assault hearings using the low “preponderance of the evidence” standard. Advocates for this standard’s use in campus sexual assault cases argue that it is the only lawful standard for deciding such cases because it is what courts use in civil rights cases. But, as I have argued previously, courts deciding civil rights cases grant the participants crucial procedural protections that are typically absent in campus proceedings. For example, defendants in court have the right to discovery, to subpoena witnesses, to cross-examine their accusers, and to active representation of counsel, among other rights. Those procedural protections exist not only in criminal proceedings but also in civil proceedings because without them, tribunals cannot reach reliable results. Without incorporating similar protections, campus tribunals using the preponderance of the evidence standard to decide whether to expel an accused student are inviting error. This veto will have limited impact on the adjudication standard in higher education cases because state law already requires colleges to use the preponderance of the evidence standard, but it prevents K-12 schools from being required to use the low standard too.

Another concerning provision of the bill defined sexual harassment in a manner that directly conflicts with the definition provided by the Supreme Court of the United States’s decision in Davis v. Monroe County Board of Education. In Davis, the Court held that educational institutions could be held liable if they are deliberately indifferent to known instances of student-on-student harassment, which it defined as discriminatory conduct that is “so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.” Unfortunately, the legislation made no mention of a requirement that conduct be pervasive or even objectively offensive to a reasonable person in order to constitute harassment. Courts have repeatedly found that policies that abandoned those requirements were unconstitutional.

One aspect of the veto that is particularly interesting is the Governor’s acknowledgement that there are significant gaps in the information available to lawmakers to assess how current policy is either working or failing. For example, he notes in a letter explaining his decision:

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.

Indeed, the possibility of disparate treatment of or impact on students from minority backgrounds who find themselves accused is an aspect of campus sexual assault policy that is just starting to get serious attention. Tracking such data could prove very helpful in crafting policy that meets the needs of all.

The decision to veto SB 169 clearly was not made lightly. FIRE is thankful that the Governor acknowledged that attempts to address campus sexual assault have sometimes resulted in “colleges’ failure to uphold due process for accused students.” We are also grateful for the Governor’s apparent desire to approach this issue in a manner designed to protect the rights of complainants and accused alike. This is particularly welcome news in California, where state law already codifies the preponderance of the evidence standard in cases on college campuses and effectively flips the burden of proof to accused students to prove their innocence in sexual assault cases. Hopefully this development signals a shift in attitudes about addressing campus sexual assault. FIRE is hopeful that more lawmakers and governors will insist that policies addressing this issue are fair to all.

Governor Brown concluded his letter by writing that he “intend[s] to convene a group of knowledgeable persons who can help us chart the way forward.” If called upon, FIRE would be delighted to offer our assistance.