BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON EDUCATION
                              Senator Carol Liu, Chair
                                2015 - 2016  Regular 

          Bill No:               AB 967           
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          |Author:     |Williams                                             |
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          |Version:    |June 1, 2015                             Hearing     |
          |            |Date:     July 8, 2015                               |
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          |Urgency:    |No                    |Fiscal:     |Yes             |
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          |Consultant: |Kathleen Chavira                                     |
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          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  







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            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)









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          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. 









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       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  








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            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  








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            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  








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               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  








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            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." 
     




































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            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  








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            Rights and Privacy Act (FERPA)."

            SUPPORT
          
          California Coalition Against Sexual Assault
          California Federation of Teachers

            OPPOSITION
           
           None received. 

                                      -- END --