BILL ANALYSIS Ó
SENATE COMMITTEE ON EDUCATION
Senator Carol Liu, Chair
2015 - 2016 Regular
Bill No: SB 1439
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|Author: |Block |
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|Version: |March 28, 2016 Hearing |
| |Date: April 6, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Lenin Del Castillo |
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NOTE: This bill has been referred to the Committees on
Education and Judiciary. A "do pass" motion should
include referral to the Committee on Judiciary.
Subject: Postsecondary education: academic and administrative
employees: disclosure of allegations of sexual harassment
SUMMARY
This bill provides that the governing board of a community
college district and the Trustees of the California State
University shall require an application for appointment to an
academic or administrative position disclose any substantiated
allegation of sexual harassment.
BACKGROUND
Federal statutes addressing sexual assault on or around
institutions of higher education include Title IX and the Jeanne
Clery Disclosure of Campus Security Policy and Campus Crime
Statistics Act (Clery Act).
The Clery Act 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.
Those rights include notification to victims of the right to
file criminal charges, available counseling services, the
results of disciplinary proceedings, and the option for victims
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to change their academic schedule or living arrangements.
The Clery Act also requires postsecondary institutions to offer
prevention and awareness programs to new students and employees
regarding rape, domestic and dating violence, sexual assault,
and stalking. Programs must include a definition of those
offenses and consent with reference to sexual offenses.
Institutions are also required to compile statistics of
incidents of sexual assault, domestic violence, dating violence
and stalking.
The United States Department of Education's Office for Civil
Rights has also issued guidance regarding compliance with Title
IX specific to sexual harassment and sexual violence. This
guidance stated, among other things, that:
1) Institutions must use a preponderance of the evidence
standard (it is more likely than not that sexual harassment
or violence occurred) in order for the grievance procedures
to be consistent with Title IX standards.
2) Institutions are not relieved of their duty under Title IX
to resolve complaints promptly and equitably whether or not
a criminal investigation is underway.
3) Institutions need to ensure their employees are trained to
know how to report harassment and how to respond properly.
Current law requires the governing board of each community
college district, the Trustees of the California State
University (CSU), the Board of Directors of the Hastings College
of the Law, and the Regents of the University of California to
each adopt, and implement at each campus or other facilities, a
written procedure or protocols 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. The written procedures or protocols
must contain at least the following information:
1) The college policy regarding sexual assault on campus.
2) Personnel on campus who should be notified, and procedures
for notification, with the consent of the victim.
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3) Legal reporting requirements and procedures for fulfilling
them.
4) Services available to victims and personnel responsible for
providing these services.
5) A description of campus resources available to victims, as
well as appropriate off-campus services.
6) Procedures for ongoing case management, including keeping
the victim informed of the status of any student
disciplinary proceedings and helping the victim deal with
academic difficulties that may arise because of the
victimization and its impact.
7) Procedures for guaranteeing confidentiality and
appropriately handling requests for information from the
press, concerned students and parents.
8) Each victim of sexual assault should receive information
about the existence of at least the following options:
criminal prosecutions, civil prosecutions, disciplinary
process through the college, availability of mediation,
alternative housing assignments, and academic assistance
alternatives. (Education Code § 67385)
Current law also requires:
1) The governing board of each community college district and
the Trustees of the CSU, and requests the Regents of the
University of California, in collaboration
with campus- and community-based victim advocacy
organizations, to provide as part of campus orientations,
educational and preventive information about sexual
violence.
2) Each campus of the California Community Colleges and the
California State University (CSU), and requests each campus
of the University of California, to post sexual violence
prevention and education information on its campus website.
The information must include specific components including
how to file a complaint, and the availability and contact
information for resources for victims.
3) Each campus of the California Community Colleges and the
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CSU, and requests each campus of the University of
California, to develop policies to encourage students to
report any campus crimes involving sexual violence.
4) Each campus of the California Community Colleges and the
CSU, and requests each campus of the University of
California, to eliminate barriers for victims who come
forward to report sexual assaults, and to advise students
regarding these policies. (EC § 67385.7)
Current law provides that prior to making a decision relating to
the continued employment of a contract employee at a community
college district, certain requirements shall be satisfied,
including an evaluation of the employee and the governing
board's receipt of recommendations of the superintendent or
president of the district or community college. (EC § 87607)
ANALYSIS
This bill:
1) Provides that the governing board of a community college
district require that an application for appointment to an
academic or administrative position with that district
include a requirement that the applicant disclose any
allegations of workplace sexual harassment against him or
her that resulted in a final judicial or administrative
decision determining that the applicant committed sexual
harassment.
2) Requires the governing board of a community college
district, prior to making a decision relating to the
continued employment of a contract employee, to have
knowledge of any allegations of workplace sexual harassment
against the employee that resulted in a final judicial or
administrative decision determining that the employee
committed sexual harassment.
3) Provides that the Trustees of the CSU require that an
application for appointment to an academic or
administrative position with the CSU include a requirement
that the applicant disclose any allegations of workplace
sexual harassment against him or her that resulted in a
final judicial or administrative decision determining that
the applicant committed sexual harassment.
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STAFF COMMENTS
1) Need for the bill. According to the author's office,
"recent news reports have exposed serious incidents of
professors who engaged in the sexual harassment of their
students. A prominent professor of astronomy at UC Berkeley
was alleged and later found by the university to have
behaved inappropriately with students. More recently, the
Dean of Boalt Law School at UC Berkeley admitted to
"hugging, kissing, and making other inappropriate and
unwanted contact with multiple women on staff". He was
punished by the university but later resigned once the
matter became public. These egregious cases show a problem
of faculty sexual misconduct and the inability of colleges
and universities to prevent these incidents. This conduct
also has a chilling effect on students that but for their
experience, would have pursued a career in the subject
area.
In particular, current law does not require colleges and
universities to take into account the record of sexual
harassment misconduct of a candidate for professorship. The
Education Code on state universities' and community colleges'
hiring policies do not have any provisions that prevent the
hiring of professors with a troubling history of sexual
misconduct or a requirement that they disclose these histories
during the hiring process. A clear example of the problems from
this lack of disclosure can be seen at the University of
Chicago, where a professor was found to have made multiple
unwelcome sexual advances and engaged in sexual activity with a
student who was incapacitated from alcohol. The university found
that the professor was investigated for sexual harassment at
previous universities where he was employed. The full scope of
these complaints was not disclosed to the hiring committee at
the time."
The author's office indicates that professors and instructors
can avoid the consequences of their actions by moving from one
university to the next since their history does not follow them,
and that the information as to their misconduct should be
considered when hiring decisions are being made.
2) How will it work? While the bill requires an applicant to
disclose any previous allegations of sexual harassment that
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have been substantiated, it does not specify how this would
be accomplished. Would a standardized form be created by
the community college districts and the California State
University (CSU) or could the existing applications for
employment be amended to include a disclosure section?
Would this be left to the local district or campus
discretion?
3) Double-referral. The extent or level of detail of the
allegations that would have to be disclosed on an
application is unclear. It is also unclear if this
information would be used solely as a background check for
hiring purposes or if it could somehow result in the public
release of the information. The bill has been
double-referred to the Senate Judiciary Committee, which
typically covers, among other policy issues, privacy,
confidentiality and consumer protection. The author may
wish to consider addressing these issues as the bill moves
forward.
4) Policy of California's public universities. The University
of California updated policies relative to sexual
harassment and violence effective February 25, 2014. These
policies include procedures for training and education, a
process for reporting incidents, identification of on- and
off-campus resources for victims, and providing prompt and
effective response to reports of incidents.
The California State University recently updated its
policies as well, effective June 3, 2014, to reflect the
changes to the federal Campus Sexual Violence Elimination
Act and related guidance from the U.S. Department of
Education, Office for Civil Rights.
5) State Auditor's Report on Sexual Harassment and Sexual
Violence. The State Auditor released a report in June 2014
regarding the handling of sexual harassment and sexual
violence incidents at the state's public postsecondary
institutions. As part of this audit, the State Auditor
reviewed the sexual assault policies and procedures of the
University of California at Berkeley and Los Angeles, the
California State University, Chico, and San Diego State
University. The report noted that "staff in key roles of
the incident-reporting process receive adequate training on
responding to and reporting student incidents of sexual
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harassment and sexual violence, but other employees
including resident advisors and athletic coaches, who may
be the first point of contact, do not." The report also
noted that "none of the universities provides its sexual
harassment policy to all employees at the start of each
academic year, nor do they post the policies in certain
places where a large number of students can see them such
as in residence halls or athletic facilities."
As part of the report, the State Auditor included several
recommendations, including the recommendation for the
universities to review and modify educational programs and
provide more training and education to both university employees
and incoming students, and the recommendation for the
universities to properly distribute and post their policy on
sexual harassment.
6) Previous legislation.
AB 1433 (Gatto, Chapter 798, Statutes of 2014) requires
postsecondary educational institutions to establish
policies regarding the reporting of specified crimes to
local law enforcement.
SB 967 (De Leon, Chapter 748, Statutes of 2014) requires
the governing board of each community college district, the
Trustees of the California State University, the Regents of
the University of California, 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.
SUPPORT
None received.
OPPOSITION
None received.
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