BILL ANALYSIS Ó
SENATE COMMITTEE ON EDUCATION
Senator Carol Liu, Chair
2015 - 2016 Regular
Bill No: AB 967
------------------------------------------------------------------
|Author: |Williams |
|------------+-----------------------------------------------------|
|Version: |June 1, 2015 Hearing |
| |Date: July 8, 2015 |
------------------------------------------------------------------
-----------------------------------------------------------------
|Urgency: |No |Fiscal: |Yes |
-----------------------------------------------------------------
------------------------------------------------------------------
|Consultant: |Kathleen Chavira |
------------------------------------------------------------------
Subject: Postsecondary education: sexual assault cases
SUMMARY
This bill requires, as a condition of receiving state funds for
student financial assistance, that the governing boards of each
community college district, the California State University
(CSU) Trustees, the University of California (UC) Regents, and
the governing board of each independent postsecondary
institution adopt and carry out a uniform process for
disciplinary proceedings relating to any claims of sexual
assault, as specified, and that they annually report specified
information relative to sexual assault, dating violence, and
stalking complaints, investigations, and outcomes, as specified.
BACKGROUND
Existing federal law:
1)Establishes the Jeanne Clery Disclosure of Campus Security
Policy and Campus Crime Statistics Act (Clery Act) which
requires public and private postsecondary educational
institutions that receive federal financial aid to disclose
information about crimes on and around campuses as well as
establish certain rights for victims of sexual assault.
2)Requires institutions, under the Clery Act to collect,
classify and count crime statistics, publish an Annual
Security Report with crime statistics and security policies,
and report crime statistics to the United States Department of
AB 967 (Williams) Page 2
of ?
Education. The Clery Act requires reporting of crimes in
seven major categories, some with significant sub-categories
and conditions, including crimes involving forcible and
non-forcible sex offenses.
3)With the 2013 reauthorization of the federal Violence Against
Women Act, which includes the Campus Sexual Violence
Elimination Act, amended the Clery Act to, among other things,
require institutions to compile statistics of incidents of
sexual assault, domestic violence, dating violence and
stalking. This Act also requires the Annual Security Report
to contain additional information such as prevention programs,
procedures once incidents are reported, and possible sanctions
following an institutional disciplinary procedure. The final
rule implementing changes to the Clery Act was issued in
October 2014, and is effective July 1, 2015.
Existing state law requires:
1)The governing board of each community college district, the
Trustees of the California State University (CSU), the Regents
of the University of California (UC), and the governing board
of independent postsecondary institutions to adopt a policy
concerning campus sexual violence, domestic violence, dating
violence and stalking that includes specified components,
including the affirmative consent standard. (Education Code §
67386)
2)The governing board of each community college district, the
Trustees of the CSU, the Board of Directors of the Hastings
College of the Law, and the Regents of the UC to each adopt
and implement at each campus or other facilities, a written
procedure or protocol to ensure, to the fullest extent
possible, that students, faculty and staff who are victims of
sexual assault committed on grounds maintained by the
institution or affiliated student organizations receive
treatment and information.
(EC § 67385)
AB 967 (Williams) Page 3
of ?
3)Each campus of the California Community Colleges (CCC) and the
CSU, and requests each campus of the UC, to post sexual
violence prevention and education information on its campus
website. The information must include specific components
including dating violence, rape, sexual assault, domestic
violence and stalking crimes, how to file a complaint, and the
availability and contact information for resources for
victims. (EC § 67385.7)
4)Each campus of the CCC and the CSU, and requests each campus
of the UC, to develop policies to encourage students to report
any campus crimes involving sexual violence. (EC § 67385.7)
ANALYSIS
This bill:
1)Requires, in order to receive state funds for student financial
assistance, the governing boards of each community college
district, the CSU Trustees, the UC Regents, and the governing
board of each independent postsecondary institution to:
a) Adopt and carry out a uniform process, applicable
to each campus of the institution for disciplinary
proceedings relating to any claims of sexual assault.
b) Report by April 1, 2017, and annually thereafter
until December 31, 2021:
i) The number of sexual assault, domestic
violence, dating violence, and stalking complaints
received, investigated, and not investigated by the
institution.
ii) The number of investigations conducted in which
respondents were found responsible, and not responsible,
at institutional disciplinary proceedings.
iii) The number of disciplinary sanctions imposed on
respondents disaggregated by type of discipline in, at
minimum, the categories of expulsion, suspension of at
least 2 years, suspension of fewer than two years, and
probation.
AB 967 (Williams) Page 4
of ?
2)Requires the uniform process policies adopted, at minimum:
a) Refrain from carrying out different disciplinary
processes on the same campus, or alter the uniform process
based on student characteristics or status, or membership
on an athletic team, or the student's academic major.
b) Develop and implement a minimum standard of
discipline of at least two years of suspension, up to
expulsion, for students found responsible for specified
acts.
c) Provide for specific forms of discipline to
include expulsion, suspension, loss of financial aid or
scholarships, loss of activity privileges and removal from
student housing.
3)Clarifies that sexual assault, domestic violence, dating
violence, and stalking refer to all categories of misconduct
in the institution's sexual assault policies adopted pursuant
to specified state law.
4)Requires that reporting required by the bill occur in a manner
that provides appropriate privacy protections for the alleged
victim and the alleged perpetrator.
STAFF COMMENTS
1)Need for the bill. According to the author, there need to be
severe outcomes to
truly act as a deterrent and address rape culture on a campus.
The author opines that universities must at least consider
suspension for a minimum of two years if an individual is
found guilty of sexual assault. In addition, the author is
concerned that there is very little accountability for the
outcome of adjudication proceedings for campus sexual assault
cases.
This bill provides clear and consistent direction to
universities on handling rulings on campus sexual assault
cases through the campus adjudication system by requiring a
two year suspension for students found responsible for rape,
forced sodomy, forced oral copulation, and rape by a foreign
object. It also provides for specified reporting on the number
AB 967 (Williams) Page 5
of ?
of sexual assault, domestic violence, dating violence, and
stalking complaints received, investigated, and not
investigated by the institution, and the outcomes of
disciplinary proceedings and investigations.
2)National Guidelines. The Association of Student Conduct
Administrators (ASCA) is a national membership association
that, among other things, facilitates best practices of
student conduct administration and conflict resolution on
college and university campuses. ASCA notes that, given the
spectrum of sexual misconduct, there must also be a spectrum
of sanctions available, and recommends that sanctioning
guidelines rather than absolute sanctions be used for two main
reasons:
1) the circumstances of every case are unique and 2) mandatory
sanctions may deter reporting of incidents and/or lead
decision-makers to reach an inappropriate decision about
responsibility in order to avoid a certain sanction. ACSA also
suggests that sanctions should be relative and appropriate for
the violation.
In its "2014 White Paper: Student Conduct Administration &
Title IX: Gold Standard Practices for Resolution of
Allegations of Sexual Misconduct on College Campuses" ASCA
acknowledges that while the "one size fits all" concept is
challenging for campuses, there are guiding principles that
should underlie all student conduct policies and procedures
and recommended practices required of universities in
responding to allegations of sexual misconduct.
Association of Student Conduct Administrators (ASCA) notes
that the goals, restrictions, and outcomes of law enforcement
investigations and campus conduct investigations are
different, and notes in its white paper that, unlike the
courts which use a "beyond a reasonable doubt" standard to
determine if someone committed a crime, the student
adjudication process uses a "preponderance of evidence"
standard, to determine if a student "more likely than not"
violated institutional policies. Law enforcement investigates
to determine whether or not a crime occurred. Campus conduct
officials investigate to determine whether or not a policy was
violated including whether a hostile environment was created
by such conduct. ASCA notes that finding a student "guilty" of
"rape" or any other criminal offense through a campus conduct
AB 967 (Williams) Page 6
of ?
process, could result in an appeal in the courts for failing
to meet legal standards and/or due process rights of the
accused, potentially jeopardizing the ability for colleges to
respond promptly to separate a student from the campus
community when needed. ASCA cites a specific example in which
an appellate court reversed an institution's finding of
assault and battery because the university's violation was
predicated on the behavior being unlawful. That case was
remanded back to the university to vacate the violation and
remove the penalties that were imposed.
3)Uniform disciplinary process versus uniform disciplinary
sanctions. This bill removes the discretion to apply
sanctions/discipline on a case by case basis and instead
requires that an institution develop and implement a minimum
standard of discipline of at least two years suspension, up to
expulsion, for students found responsible for rape, forced
sodomy, forced oral copulation, and rape by a foreign object.
The committee may wish to consider the following questions:
a) In light of the less rigorous standard, of
"preponderance of evidence," should the institution's
adjudication proceedings be making findings that the
student is "responsible" for criminal acts such as rape,
forced sodomy, forced oral copulation, or rape by a foreign
object rape?
b) Will disciplinary panels be more hesitant to find a
student in violation of sexual assault policies based on
"preponderance" given a statutorily required minimum
sanction?
c) Could "findings" of responsibility for acts that are
criminal, versus acts that are violations of an
institution's adopted policies, and the subsequent
discipline, be subject to challenge as exceeding the
campus' authority?
d) Will the mandatory minimum 2 year suspension result in
victims choosing not to come forward, and have the
unintended consequence of resulting in fewer attackers
AB 967 (Williams) Page 7
of ?
being held accountable?
e) While consistent process makes sense, shouldn't the
institution retain the discretion to consider the evidence
and circumstance surrounding the alleged assault and
determine the appropriate sanction?
Staff recommends the bill be amended to delete the 2 year
suspension requirement and instead require the development
and implementation of consistent standards for the
imposition of discipline for students found responsible for
sexual assault as these acts are defined by an
institution's policies in compliance with Education Code
67386.
Staff further recommends the bill be amended to insert: "It
is the intent of the Legislature that the standards of
discipline adopted and implemented by institutions be fair,
objective and consistent, and severe enough to act as a
deterrent to sexual misconduct."
1)Related UC activity. In June 2014, President Napolitano formed
the President's Task Force on Preventing and Responding to
Sexual Violence and Sexual Assault (Task Force). Thus far,
the Task Force has produced two reports, the first in
September 2014 outlined recommendations accepted by President
Napolitano and reported to the Board of Regents, and the
second in January 2015, provided an update on the
recommendations that were implemented and discussed the next
steps to implement the remaining recommendations during 2015.
Two of the four remaining recommendations that the Task Force
is working to implement are consistent with the provisions of
this bill. These include the following:
a) Recommendation 2: Adopt systemwide, standard
investigation and adjudication standards.
b) Recommendation 7: Initiate/develop a systemwide standard
data collection system.
1)Loss of financial aid. This bill requires that the minimum
standards provide for specific forms of discipline, including
the loss of financial aid or scholarships. While some
AB 967 (Williams) Page 8
of ?
concerns have been raised that loss of financial aid may
differentially affect low-income students, the provisions of
this bill provide for its loss as one of several options, and
would still appear to allow for some discretion on the part of
the institution to determine the appropriate sanction. Staff
notes, however, that the institution may not have control over
eligibility for state and federal financial aid programs. The
institution does likely have control over campus-based
financial aid and scholarships. Staff recommends the bill be
amended to clarify on page 3 line 3 that forms of discipline
shall include loss of institutional financial aid or
scholarships.
2)Need for clarity and consistency. This bill uses the terms
"sexual assault" and "sexual violence."
AB 967 (Williams) Page 9
of ?
Staff recommends the bill be amended for consistency in the
use of the term within subdivision (a) by replacing these
terms with "sexual assault, as these acts are defined by an
institution's policies in compliance with Education Code
67386. In addition staff recommends the bill be amended on
page 2 line 10 to clarify that its provisions apply to
"registered students" as the institution's jurisdiction over
disciplinary proceedings and actions could only be applicable
to students registered at the institution.
3)Clarify reporting requirements. Federal law requires
postsecondary educational institutions to compile general
statistics of incidents of sexual assault, domestic violence,
dating violence and stalking. Each institution's Annual
Security Report must also contain information such as
prevention programs, procedures once incidents are reported,
and possible sanctions following an institutional disciplinary
procedure.
Federal legislation proposes the Campus Accountability and Safety
Act, which includes reporting requirements that are similar to
those proposed by this bill, such as the number of incidents
reported to the Title IX coordinator, the number of cases
processed through the student disciplinary process, and a
description of the final sanction, if any was imposed.
This bill requires that the specified information be reported
by April 1, 2017 and annually thereafter. Staff recommends
the bill be amended to change the reporting date to October 1,
consistent with federal reporting requirements. Staff further
recommends the bill be amended to clarify that the report is
to be posted on an institution's website in a manner easily
accessible to students.
Staff also recommends the bill be amended to add an additional
category of reporting, "G) The number of cases that were
closed for other reasons."
4)Privacy and confidentiality. This bill requires that information
be reported in a manner that protects the confidentiality of
alleged victims and alleged perpetrators. Staff recommends the
bill be amended in subdivision (d) line 28 to insert at the
end of the sentence, "consistent with the Family Educational
AB 967 (Williams) Page 10
of ?
Rights and Privacy Act (FERPA)."
SUPPORT
California Coalition Against Sexual Assault
California Federation of Teachers
OPPOSITION
None received.
-- END --