Contact: Rebecca Stewart
Telephone: 513-479-3335
Email: info@saveservices.org
Sen. Jackson Would Pit California Colleges Against State Judicial Rulings and the Federal Government; SAVE Urges Delay on Vote
WASHINGTON / August 27, 2020 – State senator Hannah Beth Jackson has inserted language into a Higher Education bill, SB-493, that would force California colleges to defy a new federal regulation designed to assure fairness during campus adjudications of sexual harassment. The federal rule, which recently took effect on August 14, requires that the school convene a live hearing where each party’s advisor (but not the student) is allowed to pose relevant questions to the other party.
Question-asking is viewed as essential to clarify the facts of the case and assess the credibility of each party. Such measures are necessary to identify allegations that are exaggerated or false.
Sen. Jackson’s language directly contradicts the federal requirements in two respects:
- Would make the hearing optional: “They shall provide that the institution shall decide whether or not a hearing is necessary to determine whether any sexual violence more likely than not occurred.” (1)
- Prohibits an advisor from posing any questions: “Any cross-examination of either party or any witness shall not be conducted directly by a party or a party’s advisor.”
Jackson’s provisions also ignore the findings of three recent judicial decisions:
In Doe v. California Institute of Technology, the court required the university to provide “an opportunity for the Committee to assess [accuser] Jane’s credibility by her appearing at the hearing in person or by videoconference or similar technology, and by the Committee’s asking her appropriate questions proposed by [accused student] John or the Committee itself. That opportunity did not exist here.” (2)
In Doe v. Allee (University of Southern California), the judge ruled, “When a student accused of sexual misconduct faces severe disciplinary sanctions, and the credibility of witnesses (whether the accusing student, other witnesses, or both) is central to the adjudication of the allegation, fundamental fairness requires, at a minimum, that the university provide a mechanism by which the accused may cross-examine those witnesses, directly or indirectly, at a hearing in which the witnesses appear in person or by other means (such as means provided by technology like videoconferencing).” (3)
In Doe v. Regents of the University of California (Santa Barbara) the court found that the campus committee denied the Plaintiff the opportunity to cross-examine the complainant on the effects of an antidepressant she was taking, leading the court to conclude that “[t]he Committee reached a significant finding based on nothing more than speculation.” (4)
The new Rule has been praised by a wide range of stakeholders, including the National Association of Criminal Defense Attorneys (5), Harvard law professor Jeannie Suk Gersen (6), former ACLU president Nadine Strossen (7), former Virginia governor Douglas Wilder (8), and others (9).
A survey of California voters found that many view false allegations of campus sexual assault to be a problem. 44.0% of respondents believe that such false allegations are a “big problem.” Only 14.4% viewed false allegations as “not much of a problem.” (10)
Links:
- https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200SB493
- Super. Ct. July 9, 2019
- 30 Cal. App. 5th 1036 (Cal. Ct. App. 2019)
- 28 Cal. App. 5th 44 (Cal. Ct. App. 2018)
- https://www.nacdl.org/newsrelease/NewTitleIXRegulationsDueProcess
- https://www.chronicle.com/article/The-Sex-Bureaucracy-Meets-the/248849
- https://ricochet.com/podcast/q-and-a/nadine-strossen-the-aclu-and-betsy-devos/
- https://www.roanoke.com/opinion/commentary/wilder-secretary-devos-right-to-restore-due-process-on-campus/article_dfac7ff4-7d4d-5109-9657-2532a0816f1d.html
- http://www.saveservices.org/2020/08/numerous-groups-and-individuals-applaud-new-title-ix-regulation/
- http://www.saveservices.org/sexual-assault/opinion-polls/