California’s ill-advised attempt to circumvent new Title IX rules

August 27, 2020

The California Assembly is debating SB 493, a bill which will further entrench problematic procedures for resolving campus sexual assault accusations. The bill, which was introduced in 2019, has already passed the state Senate. It includes many provisions that are at odds with due process and may also conflict with the U.S. Department of Education’s new Title IX rules, which took effect on Aug. 14. 

California has already locked into state law the misguided and impracticalaffirmative consent” standard for determining whether a party has consented to sexual activity. It already requires that schools use the low “preponderance of the evidence” standard when resolving accusations of campus sexual misconduct. Enacting SB 493 would put due process at even further risk. 

The bill is so devoid of procedural protections for the accused that the legislature, despite addressing the concept of burdens of proof, amazingly declined even to state that an accused student must enjoy a presumption of innocence before they may be found responsible. Instead the bill states:

[T]he investigation and adjudication of alleged misconduct under this section is not an adversarial process between the complainant, the respondent, and the witnesses, but rather a process for postsecondary institutions to comply with their obligations under existing law. The complainant does not have the burden to prove, nor does the respondent have the burden to disprove, the underlying allegation or allegations of misconduct.

If the bill’s point is that it is the institution — and not either of the students — that bear the burden of proof, that is certainly defensible. But the obvious problem is that while institutions often make the same argument that campus sexual misconduct proceedings are educational in nature as opposed to being adversarial, that argument is total nonsense, as several courts across the country have concluded. For example, in Doe v. Notre Dame, a federal district court, in response to the university’s argument that it didn’t need to allow an accused student to have access to an attorney because its disciplinary process was educational and not punitive, wrote: “This testimony is not credible. Being thrown out of school, not being permitted to graduate and forfeiting a semester’s worth of tuition is ‘punishment’ in any reasonable sense of that term.”

The legislature would be wise to revise or reject SB 493 given that the provisions of the bill that are directly in conflict with the Title IX regulations are likely preempted.

Another example of SB 493’s ambivalence towards the rights of the accused is evident in the bill’s treatment of cross examination. The bill provides “cross-examination of either party and any witnesses shall be conducted indirectly, through the submission of written questions to the neutral factfinder in advance and with an opportunity for the other party to object.” The cross-examination provision is further limited and available only “if the institution determines that a hearing is required in order to determine whether a policy violation has occurred.”

In contrast, the federal Title IX rules require a live hearing whenever either party requests a hearing, and states that “decision-maker(s) must permit each party’s advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility.” The regulations further clarify that “[s]uch cross-examination at the live hearing must be conducted directly, orally, and in real time by the party’s advisor of choice and never by the party personally . . . .” Prior to the finalization of the Title IX regulations, this bill’s allowance for cross-examination through the fact-finder would have been a modest step in the right direction, since many schools didn’t allow cross-examination at all. However, even then the bill’s provision was insufficient, because it didn’t require fact-finders put their rationales for declining to ask certain questions on the record for appellate review. But since the regulations now require more robust cross-examination, the bill’s language is squarely at odds with them. 

UC Berkeley Aerial Shot of CampusThousands of California college students at schools like the University of California, Berkeley, (pictured) would be impacted by the passage of SB 493.

The legislation also fails to protect the interests of the accused by declining to guarantee student parties access to all of the evidence in the institution’s possession. While it prohibits the institution from using evidence it failed to disclose, institutions can still get away with concealing exculpatory evidence—after all, no institution would use exculpatory evidence to make the case that the student committed the offense. Only by providing access to all of the evidence in the institution’s possession can a respondent adequately prepare for his or her defense.  

Another shortcoming of the bill is that it only provides for an appeal if the university has an appeals process in place. The Title IX regulations, however, require institutions to provide appeals to both parties.

The legislature should also be careful to ensure that it includes sufficient procedural protections in any legislation addressing allegations of campus sexual misconduct. Indeed, courts across the country are emphasizing the necessity of procedural fairness. As a court reviewing Brandeis University’s treatment of students accused of sexual misconduct powerfully explained:

Brandeis appears to have substantially impaired, if not eliminated, an accused student’s right to a fair and impartial process. And it is not enough simply to say that such changes are appropriate because victims of sexual assault have not always achieved justice in the past. Whether someone is a “victim” is a conclusion to be reached at the end of a fair process, not an assumption to be made at the beginning. Each case must be decided on its own merits, according to its own facts. If a college student is to be marked for life as a sexual predator, it is reasonable to require that he be provided a fair opportunity to defend himself and an impartial arbiter to make that decision.

California schools have not been providing fair procedures, and for the most part, SB 493 doubles down on the status quo. Still, one helpful provision of SB 493, which is more in line with the new regulations, requires institutions to ensure that the fact-finder — what they call the person responsible for investigating the complaint — is not the same person responsible for making disciplinary decisions. 

The legislature would be wise to revise or reject SB 493 given that the provisions of the bill that are directly in conflict with the Title IX regulations are likely preempted. Such conflicts will only increase uncertainty among students, faculty, and administrators, and may even lead to federal Title IX investigation into school policies.

Aside from preemption (and the fact that legal experts and courts across the country, including several in California, are increasingly critical of the lack of procedural protections for accused students), the bottom line is that fundamental fairness demands that institutions treat both the rights of accusers and the accused seriously. FIRE would welcome a conversation with the bill sponsors to discuss our concerns with the legislation and how to ensure that California law produces fair campus proceedings consistent with federal law.