BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    SB 1439


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          SENATE THIRD READING


          SB  
          1439 (Block)


          As Amended  August 1, 2016


          Majority vote


          SENATE VOTE:  36-1


           ------------------------------------------------------------------ 
          |Committee       |Votes|Ayes                  |Noes                |
          |                |     |                      |                    |
          |                |     |                      |                    |
          |                |     |                      |                    |
          |----------------+-----+----------------------+--------------------|
          |Higher          |12-0 |Medina, Baker, Bloom, |                    |
          |Education       |     |Chávez, Irwin,        |                    |
          |                |     |Jones-Sawyer, Levine, |                    |
          |                |     |Linder, Low,          |                    |
          |                |     |Santiago, Weber,      |                    |
          |                |     |Williams              |                    |
          |                |     |                      |                    |
          |----------------+-----+----------------------+--------------------|
          |Appropriations  |20-0 |Gonzalez, Bigelow,    |                    |
          |                |     |Bloom, Bonilla,       |                    |
          |                |     |Bonta, Calderon,      |                    |
          |                |     |Chang, Daly, Eggman,  |                    |
          |                |     |Gallagher, Eduardo    |                    |
          |                |     |Garcia, Holden,       |                    |
          |                |     |Jones, Obernolte,     |                    |
          |                |     |Quirk, Santiago,      |                    |
          |                |     |Wagner, Weber, Wood,  |                    |








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          |                |     |Chau                  |                    |
          |                |     |                      |                    |
          |                |     |                      |                    |
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          SUMMARY:  Requires the University of California (UC), the  
          California State University (CSU) and the California Community  
          Colleges (CCC) to 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, the Trustees  
            of a CSU, and the regents of the UC to require that an  
            application for appointment to an academic or administrative  
            position include a requirement that the applicant disclose any  
            final administrative decision or final judicial decision  
            determining that the applicant committed sexual harassment.
          2)Provides that an applicant shall not be asked to disclose the  
            aforementioned information until it has been determined that  
            the applicant meets the minimum employment qualifications  
            stated in the notice issued for the position. 


          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.










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          EXISTING LAW:    


          1)Requires the governing board of public, private, and  
            independent postsecondary educational institutions that  
            receive 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 (EDC) 67380, 67383)
          2)Requires, under the Kristen Smart Campus Safety Act, UC  
            Regents, CSU Trustees, CCC 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)


          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.)









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          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),  
            public and private postsecondary educational institutions that  
            participate in the federal financial aid program to disclose  
            information about crimes on and around campuses.  (20 United  
            States Code (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  








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               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  
               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.    








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          FISCAL EFFECT:  According to the Assembly Appropriations  
          Committee, any costs for districts, CSU, and UC to modify their  
          hiring processes to implement the bill's disclosure requirement  
          should be minor and absorbable.


          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."




          Analysis Prepared by:                                             
                          Laura Metune / HIGHER ED. / (916) 319-3960  FN:  
          0003886














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