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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