BILL ANALYSIS                                                                                                                                                                                                    Ó






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                                   THIRD READING 


          Bill No:  SB 1439
          Author:   Block (D) 
          Amended:  6/1/16  
          Vote:     21 

           SENATE EDUCATION COMMITTEE:  9-0, 4/6/16
           AYES:  Liu, Block, Hancock, Huff, Leyva, Mendoza, Monning, Pan,  
            Vidak

           SENATE APPROPRIATIONS COMMITTEE:  6-0, 5/27/16
           AYES: Lara, Bates, Beall, Hill, McGuire, Mendoza
           NO VOTE RECORDED: Nielsen

           SUBJECT:   Postsecondary education:  academic and  
                     administrative employees:  disclosure of allegations  
                     of sexual harassment


          SOURCE:    Author


          DIGEST:  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 final  
          administrative decisions or a final judicial decision  
          determining that the applicant committed sexual harassment.


          ANALYSIS:  

          Existing law: 









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          1)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:

             a)   The college policy regarding sexual assault on campus.

             b)   Personnel on campus who should be notified, and  
               procedures for notification, with the consent of the  
               victim.

             c)   Legal reporting requirements and procedures for  
               fulfilling them.

             d)   Services available to victims and personnel responsible  
               for providing these services.

             e)   A description of campus resources available to victims,  
               as well as appropriate off-campus services.

             f)   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.

             g)   Procedures for guaranteeing confidentiality and  
               appropriately handling requests for information from the  
               press, concerned students and parents.

             h)   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)








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          2)Requires 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.

          3)Provides that each campus of the California Community Colleges  
            and the CSU, and requests each campus of the University of  
            California, to post sexual violence prevention and education  
            information on its campus Web site.  The information must  
            include specific components including how to file a complaint,  
            and the availability and contact information for resources for  
            victims.

          4)Provides that each campus of the California Community Colleges  
            and the CSU, and requests each campus of the University of  
            California, to develop policies to encourage students to  
            report any campus crimes involving sexual violence.  

          5)Provides that 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)

          6)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)   


          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 final  
            administrative decisions or final judicial decision  
            determining that the applicant committed sexual harassment.  

          2)Provides that the Trustees of the CSU require that an  







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            application for appointment to an academic or administrative  
            position with the CSU include a requirement that the applicant  
            disclose any final administrative decisions or final judicial  
            decision determining that the applicant committed sexual  
            harassment.  

          3)Defines "final administrative decision" as a determination  
            based on the investigative findings of a Title IX compliance  
            coordinator, or other designated investigator, at a college or  
            university on a complaint of sexual harassment.

          4)Defines "final judicial decision" as a determination of a  
            matter submitted to a court that is recorded in judgment or  
            order of that court.


          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  
          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  







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          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. 


          Comments
          
          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  







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          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.

          How will it work?  While this bill requires an applicant to  
          disclose any final administrative decisions or final judicial  
          decision of sexual harassment, it does not specify how this  
          would be accomplished.  Would a standardized form be created by  
          the community college districts and the 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? 

          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 CSU 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.

          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  







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          sexual 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.  


          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:YesLocal:   Yes


          According to the Senate Appropriations Committee, this bill  
          would result in the following:


           Mandate costs: The California Community Colleges Chancellor's  
            Office estimates costs of up to $3,000 per district to make  
            the necessary changes to its application forms, resulting in  
            statewide costs of up to $216,000.  To the extent the  
            Commission on State Mandates determined this requirement to be  
            a reimbursable state-mandated activity, there would be  
            pressure to increase the mandate block grant for community  
            colleges.  (Proposition 98)

           Other potential cost pressures: Both segments cite unknown,  
            potentially significant, costs related to liability resulting  
            from potential lawsuits pursued by applicants who disclose the  
            required information.  The CSU estimates costs of $50,000 per  
            case related to hiring outside counsel.   Both segments also  
            indicate the need to investigate the disclosures on  
            applications.  However, this is not a requirement of the bill.  
             It is unclear how many applicants will actually self-report  
            this information.







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          SUPPORT:   (Verified5/27/16)


          UAW Local 4123


          OPPOSITION:   (Verified5/27/16)


          None received

          Prepared by:Lenin DelCastillo / ED. / (916) 651-4105
          6/1/16 18:41:39


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