Dive Brief:

  • A California bill working through the state’s legislature likely conflicts with aspects of the new federal regulation governing campus sexual violence. 

  • The proposed legislation would prohibit a victim and an accused party to directly cross-examine each other, which the federal rule says colleges must allow, through a surrogate. The bill would also give California campus officials leeway to decide if a hearing is necessary, while the regulation requires that colleges hold them to determine if sexual misconduct occurred. 

  • Critics of the rule have derided it for undoing key protections for sexual assault survivors created under the Obama administration. It’s already the subject of lawsuits and California’s bill sets up more possible legal challenges, Title IX experts say.

Dive Insight:

The regulation directs how colleges should investigate and potentially punish campus sexual misconduct under Title IX, the federal law barring sex discrimination on campuses. It serves as a replacement for guidance the Obama administration issued in 2011, which is credited with giving greater national attention to the issue of campus sexual assault.  

Shortly after a draft version of the rule was released in 2018, Title IX experts raised concerns that it might clash with existing state laws.  

The final rule has come under fire from advocates of sexual assault survivors and liberal state officials. More than a dozen Democratic attorneys general and the American Civil Liberties Union, in conjunction with activist groups, sued separately to block the rule, though federal judges have so far declined to do so.

Now, the California bill seems to be challenging it legislatively.  

In addition to the aforementioned provisions that are likely inconsistent with the federal regulation, the state proposal would force California colleges to investigate all episodes of sexual violence, even off-campus ones, that create a hostile educational environment for students, “or otherwise interfere with a student’s access to education,” the bill states.

The regulation only asks that institutions look into off-campus incidents that occurred in buildings or areas with official ties to a college, such as a fraternity or sorority house. Whether this part of the rule is legal is unclear, as it does not match case law, said Laura Dunn, a lawyer who defends survivors and the founder of the L.L. Dunn Law Firm.

The rule also only directs colleges to pursue cases after a formal complaint is filed to a designated official, while the bill states schools must “promptly investigate” any incidents they’re aware of. 

The bill puts institutions in “direct conflict with the regs,” said Natasha Baker, an attorney specializing in Title IX and founder of the California-based Novus Law Firm.

California’s Senate approved the bill, which the Assembly is reviewing now. Baker, who has tracked the legislation for the roughly two years it’s been under consideration, said it is likely to pass and be sent to the governor’s desk. 

The office of the bill’s lead sponsor, state Sen. Hannah-Beth Jackson, did not respond to Education Dive’s request for comment by publication time Friday. The U.S. Department of Education declined to comment.

The bill also would create far more prescriptive procedures for making a decision in a sexual violence case than the regulation requires. 

It would force California institutions to rely on the legal “preponderance of the evidence” standard, meaning it is more likely than not that an incident happened. The regulation permits colleges to pick between that and the “clear and convincing” evidentiary standard, which is harder to meet.

Under the bill, both parties could object to questions raised during a hearing. This could be done in a written format. Dunn pointed to that bill provision, and the regulation, as evidence that Title IX cases have been pushed into a pseudo-judiciary system, adding they would be better addressed in administrative court.

Neither the bill nor the regulation are likely to alleviate the slew of Title IX-related lawsuits that bogged down the sector in recent years, Dunn said. If Democratic nominee Joe Biden wins the presidency, his administration would likely uproot the federal rule, creating more complications for colleges simply looking to comply with the law, she said.

“Why are you creating a whole new body of laws where one exists?,” Dunn said.

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