BILL ANALYSIS Ó
SB 1439
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Date of Hearing: June 21, 2016
ASSEMBLY COMMITTEE ON HIGHER EDUCATION
Jose Medina, Chair
SB
1439 (Block) - As Amended June 1, 2016
SENATE VOTE: 36-1
SUBJECT: Postsecondary education: academic and administrative
employees: disclosure of sexual harassment
SUMMARY: Requires that the California State University (CSU)
and the California Community Colleges (CCC) require applicants
for employment, as specified, to disclose information regarding
final administrative findings of sexual harassment.
Specifically, this bill:
1)Requires the governing board of a CCC district to 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 decision or final judicial decision determining
that the applicant committed sexual harassment.
2)Requires the trustees of the CSU to require that an
application for appointment to an academic or administrative
position with the CSU include a requirement that the applicant
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disclose any final administrative decision or final judicial
decision determining that the applicant committed sexual
harassment.
3)Defines the following terms:
a) "Final administrative decision" means a final
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.
b) "Final judicial decision" means a final determination of
a matter submitted to a court that is recorded in a
judgment or order of that court.
EXISTING LAW:
1)Requires the governing board of public, private, and
independent postsecondary educational institution that
receives public funds for student financial assistance to
compile records of crimes on campus, make crime records
available upon request, and to disclose a reported Part 1
violent crime, sexual assault, or hate crime, to the local law
enforcement agency where the campus is located. (Education
Code Section 67380, 67383)
2)Requires, under the Kristen Smart Campus Safety Act, UC
Regents, CSU Trustees, CCD governing boards, and independent
colleges that meet specified conditions to enter into specific
written agreements with local law enforcement agencies
regarding the coordination and responsibilities for
investigating Part 1 violent crimes which occur on campus.
(EDC Section 67381)
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3)Requires public postsecondary educational institutions 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 specified information. (EDC Section
67385.)
4)Requires public postsecondary educational institutions, and
requests UC, in collaboration with campus- and community-based
victim advocacy organizations, to provide as part of campus
orientations, educational and preventive information about
sexual violence and to develop policies to encourage students
to report any campus crimes involving sexual violence. (EDC
Section 67385.7.)
5)Requires public and independent postsecondary institutions, as
a condition of receipt of student aid funds, to adopt a policy
concerning campus sexual violence, domestic violence, dating
violence, and stalking that includes specified components and
standards, including an "affirmative consent" standard for
determining whether consent was given by both parties to
sexual activity. Establishes a preponderance of evidence as
the evidentiary standard for determining if sexual
violence/harassment occurred. (EDC Section 67386)
6)Requires, under the federal Jeanne Clery Disclosure of Campus
Security Policy and Campus Crime Statistics Act (Clery Act),
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public and private postsecondary educational institutions that
participate in the federal financial aid program to disclose
information about crimes on and around campuses. (20 U.S.C.
section 1092(f))
7)Requires, under federal Title IX (20 U.S.C. sections
1681-1688), public and private postsecondary educational
institutions that participate in the federal financial aid
program to establish certain rights for victims of sexual
assault, including:
a) Institutions are responsible for immediately and
effectively responding to any sexual harassment or violence
that creates a hostile environment. The institution must
eliminate the harassment or violence, prevent its
recurrence, and address its effects. Regardless of whether
a student chooses to file a complaint with the institution,
the institution is responsible for investigating and taking
appropriate steps to resolve the situation. A criminal
investigation does not relieve the school of its duty under
Title IX.
b) Institutions must have and distribute policies against
sex discrimination; the policy must state that inquiries
concerning Title IX may be referred to the institution's
Title IX coordinator or to the Office of Civil Rights
(OCR).
c) Institutions must have a designated Title IX coordinator
and notify students and employees of the name and contact
information for the Title IX coordinator. The coordinator
is responsible for overseeing all complaints of sex
discrimination, which include harassment and assault, and
identifying and addressing patterns or systemic problems.
d) Institutions are required to have and make known the
procedures for students to file complaints of sex
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discrimination, and procedures must provide for prompt and
equitable resolution of sex discrimination complaints. All
complainants must have the right to present his or her
case, including the right to a full investigation, to
present witnesses and evidence, and to an appeal process
(available to both parties).
e) Establishes a preponderance of the evidence standard
(more likely than not) when determining if sexual
harassment or violence occurred.
f) Provides complainants the right to be notified of the
outcome of the complaint, including the sanction.
Complainants cannot be required to abide by a nondisclosure
agreement.
g) Authorizes grievance procedures to include voluntary
informal methods (such as mediation) for resolving some
types of sexual harassment complaints. However, mediation
is not appropriate in cases involving allegations of sexual
assault.
FISCAL EFFECT: According to the Senate Appropriations
Committee:
1)Mandate costs: The CCC 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)
2)Other potential cost pressures: Both segments cite unknown,
potentially significant, costs related to liability resulting
from potential lawsuits pursued by applicants who disclose the
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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.
COMMENTS: Purpose of this bill. According to the author, "the
current practice of hiring professors at California colleges and
universities does not take into account the potential
candidate's history of sexual harassment or misconduct when a
negative decision has been rendered. Professors who have been
investigated for workplace sexual harassment at a university and
found to have violated sexual harassment rules do not have to
disclose that they were previously investigated and disciplined
when they apply for a position at another university. In
addition, hiring universities do not have access to these
applicants' disciplinary history. Consequently, universities may
inadvertently hire professors who have a history of misconduct
and pose a serious threat to the well-being of their students.
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. The information as to their
misconduct should be considered when hiring decisions are being
made."
This bill directs the CCC and CSU to require applicants for an
academic or administrative position to disclose any final
administrative decisions or final judicial decisions that
determined that the applicant committed sexual harassment.
CSU requested amendments. CSU has indicated support for the
goal of this proposal, to prevent sexual harassers from
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violating the rights of students and employees, but is concerned
about the following provisions:
1)Final judicial or administrative decisions. According to CSU,
a final judicial decision is relatively easy to apply, and can
be applied across all sectors of employment. However, the
overwhelming majority of civil suits are settled with no final
judgment.
CSU notes that the definition of "final administrative
decision", which relies on the investigative findings of a
Title IX officer, would be difficult to implement for a number
of reasons. Title IX compliance officer investigations are
not final. Like civil litigation, they often are settled
without a final decision. Because many CSU employees come
from outside of higher education, where there is no Title IX,
these applicants would not be required to disclose
administrative sexual harassment allegations.
CSU has requested an amendment to remove administrative
decisions from this bill.
2)Timeline of disclosure requirement. According to CSU, by
requiring sexual harassment disclosure irrespective of the
severity or timing of the misconduct, this bill places higher
significant on sexual harassment than other forms of
misconduct, including criminal actions. Pursuant to Civil
Code Section 1786.18, employers in California are limited to
obtaining background check records of certain convictions or
other "adverse information" less than seven years old.
CSU has requested an amendment to limit disclosure to less
than seven years.
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3)Minimum employment criteria. CSU notes that, pursuant to
Labor Code Section 432.9, employers are prohibited from asking
about criminal convictions in a job application, and can only
make such an inquiry after a determination has been made that
the candidate meets the minimum employment criteria.
CSU has requested an amendment to require disclosure from the
applicant only after it has been determined that the applicant
meets minimum criteria.
4)Immunity from litigation. CSU has expressed concern regarding
potential exposure for liability if CSU makes a decision to
hire or reject candidates based on a minor, many-years-old
allegation.
CSU has requested an amendment to remove CSU liability for
suits arising out of the requirements of this bill. However,
CSU notes that this exposure is reduced by the aforementioned
suggested amendments.
REGISTERED SUPPORT / OPPOSITION:
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Support
United Auto Workers
Opposition
None on File
Analysis Prepared by:Laura Metune / HIGHER ED. / (916)
319-3960