BILL ANALYSIS Ó SB 1439 Page 1 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, | | SB 1439 Page 2 | | |Chau | | | | | | | | | | | | ------------------------------------------------------------------ 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. SB 1439 Page 3 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.) SB 1439 Page 4 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 SB 1439 Page 5 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. SB 1439 Page 6 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 SB 1439 Page 7