Title IX of the Education Amendments of 1972 prohibits a person, based on sex, from being excluded from participation in, or being denied the benefits of, or being subject to discrimination in any program or activity receiving federal financial assistance. Existing state law also declares that it is the policy of the State of California that all persons, regardless of sex, should enjoy freedom from discrimination of any kind in the educational institutions of the state. SB 493 adds additional protections to persons in institutions of higher education with respect to sexual harassment and clarifies the process for adjudicating complaints of sexual or gender-based violence, including dating or domestic violence.
SB 493 applies to campuses of the University of California, the California State University, and California Community Colleges. It defines sexual harassment as a form of sex discrimination prohibited by Education Code Section 66270, and also states that “sexual harassment” has the same definition as the definition in Education Code Section 212.5 and includes sexual battery, sexual violence, and sexual exploitation. The bill also defines sexual violence as physical sexual acts perpetrated against a person without the person’s affirmative consent, including rape, sexual battery, and sexual exploitation. Sexual exploitation includes trafficking, recording of images, video, or audio of another person’s sexual activity or intimate parts, distribution of such images, video, or audio, or viewing another person’s sexual activity or intimate parts in a place where the other person would have a reasonable expectation of privacy.
This bill appears to be the Legislature’s answer to the federal Department of Education’s recently released Title IX Regulations. The statutes created by SB 493 do not go into effect until January 1, 2022, so the identified postsecondary institutions have some time to implement these regulations. However, it is important for postsecondary institutions to know that state funds are conditioned upon meeting the requirements of SB 493. These regulations seem to require similar procedures to the Title IX procedures for complaints that would otherwise not fall within the Title IX requirements.
SB 493 also sets forth a number of procedural requirements for the addressing of sexual harassment, as defined. SB 493 defines a “responsible employee” as individuals in certain positions who have the authority to take action to redress sexual harassment or the duty to report sexual harassment. This includes:
- The Title IX Coordinator;
- Residential advisors (for institutions that have student housing);
- Housing directors, coordinators, or deans;
- Student life directors, coordinators, or deans; Coaches of any student athletic or academic team or activity;
- Faculty and associate faculty, teachers, instructors, or lecturers;
- Graduate student instructors, while performing the duties of employment by the institution;
- Laboratory directors, coordinators, or principal investigators;
- Internship or externship directors or coordinators; and
- Study abroad program directors or coordinators.
This does not include the following persons who would otherwise fall under the list above:
- Therapists, including a University of California Center for Advocacy, Resources, and Education (CARE) director, advocate or employee;
- California State University victim advocate or other position with similar responsibilities; or
- An individual acting in a professional capacity for which confidentiality is mandated by law.
The above individuals exempt from status as responsible employees must inform each student who provides the individual with information regarding sexual harassment of the student’s ability to report to a responsible employee and direct the student to those specific reporting resources.
Postsecondary institutions identified above must also adopt the following procedural requirement and doing so is a condition of receipt of state funding under Education Code 213:
- Distribute a notice of nondiscrimination, including, but not limited to all information required by Education Code 66281.5 to all of the following:
- Each employee of the postsecondary institution;
- Each volunteer who will regularly interact with students; and
- Each individual or entity under contract with the postsecondary institution to perform any service involving regular interaction with students at the institution.
- Designate at least one employee of the institution to coordinate its efforts to comply with and carry out its responsibilities under SB 493. This may be the same employee who acts as the institution’s Title IX Coordinator.
- The instruction must provide the employee with adequate training regarding what constitutes sexual harassment and on trauma-informed investigatory and hearing processes; and
- The employee must understand how the institution’s grievance procedures operate.
Adopt rules and procedures within the policies required by Title IX and Education Code Section 67386 for the prevention of sexual harassment.
The rules and procedures the institution adopts must include all of the following elements:
- The institution’s primary concern must be student safety.
- Any disciplinary measures imposed by the institution for violations of the institution’s student conduct policy at or near the time of the incident being investigated must be consistent with Education Code Section 67386, subdivision (b)(10), which provides the following victim-centered requirement:
An individual who participates as a complainant or witness in an investigation of sexual assault, domestic violence, dating violence, or stalking will not be subject to disciplinary sanctions for a violation of the institution’s student conduct policy at or near the time of the incident unless the institution determines the violation was egregious.
- The institution must take reasonable steps to respond to each incident of sexual harassment involving individuals subject to the institution’s policies that occur in connection with any educational activity or another program of the institution, as well as incidents that occurred outside of those educational programs or activities, whether they occurred on or off-campus if, based on the allegations, there is any reason to believe the incident could contribute to a hostile educational environment or otherwise interfere with a student’s access to education. This provision likely conflicts with the jurisdictional requirements of the Title IX Regulations, though the Title IX Regulations allow institutions the ability to use their own, separate processes to address allegations that fall outside of the jurisdiction of the Title IX Regulations. This would apply the provisions in this Bill to allegations and complaints that may fall outside of the jurisdiction of the Title IX Regulations.
- If the institution knows or reasonably should know about possible sexual harassment involving individuals subject to the institution’s policies at the time, regardless of whether or not any person has filed a complaint, the institution must: (1) Promptly investigate to determine whether the conduct more likely than nor occurred; or (2) Otherwise respond if the institution determines that an investigation is not required.
- If the institution determines that the alleged conduct more likely than not occurred it must immediately take reasonable steps to end the harassment, address the hostile environment, prevent its reoccurrence, and address its effects.
- A postsecondary institution is presumed to know of sexual harassment if a responsible employee knew, or in the exercise of reasonable care, should have known, about sexual harassment. This provision is different from the standard in the Title IX Regulations, which set forth a deliberate indifference standard. This is the standard that was originally set forth in Title IX Dear Colleague Letters and represents a greater duty on the part of the educational institution.
- An educational institution can rebut the presumption that it knew, or should have known, about the harassment if it shows all of the following:
- The institution provides training and requires all non-confidential responsible employees to report sexual harassment;
- The institution provided each nonconfidential responsible employee with actual or constructive knowledge of the conduct in question with training and direction to report sexual harassment.
- Each nonconfidential responsible employee with actual or constructive knowledge of the conduct in question failed to report it.
- A postsecondary institution must consider and respond to requests for accommodations relating to prior incidents of sexual harassment that could contribute to a hostile educational environment or otherwise interfere with a student’s access to education. This applies only if both individuals are, at the time of the request, subject to the institution’s policies.
- If a student requests confidentiality or requests that the postsecondary institution refrains from pursuing an investigation or disciplinary action, the institution must take the request seriously, while at the same time considering its responsibility to provide a safe and nondiscriminatory environment. The institution shall generally grant the request. However, in deciding whether to disclose a complainant’s name or proceed with an investigation over the objection of the complainant, the institution may consider the following:
- There are multiple prior reports of sexual misconduct against the respondent;
- The respondent reportedly used a weapon or physical restraints, or engaged in battery;
- The respondent is a faculty or staff member with oversight of students;
- There is a power imbalance between the complainant and the respondent.
- The complainant believes that the complainant will be less safe if the postsecondary institution discloses the complainant’s name or conducts an investigation; or
- The institution is able to conduct a thorough investigation and obtain relevant evidence in the absence of the complainant’s cooperation.
Postsecondary institutions must adopt and publish on their internet websites grievance procedures that provide for prompt and equitable resolution of sexual harassment complaints filed by a student against an employee or another student. The grievance procedures must contain the following:
- The investigation and adjudication of alleged misconduct under this section is not an adversarial process between the complainant, the respondent, and the witnesses, but rather a process for postsecondary institutions to comply with obligations under existing law. The burden to prove the underlying allegation or allegations rests with the postsecondary institution.
- A requirement to provide notice to students of the grievance procedures, including how and where to file a complaint.
- Ensure that the persons or entities responsible for conducting investigations, finding facts, and making disciplinary decisions are neutral.
- Ensure trauma-informed and impartial investigation of complaints.
- This includes allowing parties the ability to identify witnesses and other evidence.
- The postsecondary institution must inform the parties that any evidence available but not disclosed during the investigation might not be used at a subsequent hearing.
- Include reasonable and equitable evidentiary guidelines, including page or word limits on party submissions.
- Provide that the investigator or hearing officer may not consider:
- The past sexual history of a complainant or respondent except in limited circumstances described in the next two provisions;
- The prior or subsequent sexual history between the complainant and anyone other than the respondent for any reason unless directly relevant to provide that physical injuries alleged to have been caused by the respondent were inflicted by another individual.
- The existence of a dating relationship or prior or subsequent consensual sexual relations between the complainant and the respondent unless the evidence is relevant to how the parties communicated consent in prior or subsequent consensual sexual relations.
- The mere fact that the complainant and respondent engaged in other consensual sexual relations with one another is never sufficient, by itself, to establish that the conduct in question was consensual.
- Provide for the procedures under which the investigator or hearing officer allows consideration of evidence of prior sexual history.
- Cross-examination of either party may not be conducted directly by a party or a party’s advisor. This is a departure from the Title IX Regulations, which require a party advisor to conduct cross-examination.
- Either party or any witness may request to answer questions by video from a remote location.
- Student parties have the opportunity to submit written questions to the hearing officer in advance of the hearing, and the parties may note an objection to the questions at the hearing. Neither the hearing officer nor the postsecondary institution is required to respond, other than to include the objection in the record.
- The hearing officer has the discretion to discard or rephrase any question that the hearing officer deems to be repetitive, irrelevant, or harassing. The hearing officer is not bound by formal rules of evidence but may take guidance from them.
- Provide that parties may not introduce evidence at the hearing a party did not identify during the investigation. However, the hearing officer has discretion, for good cause, to admit the new evidence.
- Require a preponderance of evidence standard and include an explanation of the standard in the published grievance procedures.
- Provide a reasonably prompt timeframe for all of the major stages of the complaint process.
- Provide a process for extending the postsecondary institution’s timelines for good cause. Provide that the institution shall not unreasonably deny a student party’s request for an extension of a deadline related to a complaint during periods of examination or school closures.
- The procedures must provide for written notice to the parties of any extension of time.
- Provide for written notice to the parties of the outcome of the complaint, including whether a policy violation occurred, the basis for the determination, factual findings, and any discipline imposed.
- Provide assurance that the postsecondary institution will take steps to prevent the recurrence of any harassment and to correct its discriminatory effects on the complainant, if appropriate.
- Require notice to student parties if the institution is conducting a formal investigation.
- The notice must include the allegations and the alleged institutional policy violations under review.
- Any new allegations are subject to the same notice requirement.
- Provide for student parties to each have a support person or advisor to accompany them during any stage of the process and advise of the right to consult an attorney, at their own expense.
- Provide notice to student parties regarding appropriate counseling resources.
- Provide that either party may appeal the outcome of the grievance proceeding if the institution has such an appeals process. Unlike the Title IX Regulations, SB 493 does not require an appeals process.
- Outline possible interim measures that the postsecondary institution may put in place during the pendency of the investigation, the supportive measures that the postsecondary institution may provide in the absence of an investigation, and the disciplinary outcomes, remedial measures, and systemic remedies that may follow a final finding of responsibility.
- Provide that the postsecondary institution will not mandate mediation to resolve allegations of sexual harassment, and shall not allow mediation, even on a voluntary basis to resolve allegations of sexual violence.
- When requested by a complainant or otherwise determined to be appropriate, a postsecondary institution must issue an interim no-contact directive prohibiting the respondent from contacting the complainant during the pendency of the investigation. An institution may also issue an interim mutual no-contact directive based on the specific circumstances of each case.
- Describe the obligations of all faculty and staff designated by the institution as required to report concerns of sexual harassment to the Title IX Coordinator or other designated employee.
- Require the Title IX Coordinator or other designated employee to assess each report of sexual harassment and provide outreach to each identifiable student who is alleged to be the victim of reported conduct.
- Provide a process for students to report sexual harassment by a third party.
Postsecondary institutions must publish in a prominent place on its internet website, the name, title, and contact information, which shall include the telephone number, office location, and email address of the Title IX Coordinator or other designated employee and any individual official within the institution who has the authority to investigate complaints or institute corrective measures.
The postsecondary institution must provide the training set forth in Education Code Section 67386, subdivision (b)(12) to all employees engaged in the grievance process related to sex discrimination, including sexual violence, including trauma-informed investigatory and hearing processes.
If the postsecondary institution has on-campus housing, it must ensure that residential life student and nonstudent staff or their equivalent, annually receive training on how to handle reports of sexual harassment in a trauma-informed manner.
Postsecondary educations must notify employees of their obligation to report harassment to appropriate school officials.
Postsecondary educations must provide training to all employees on the identification of sexual harassment.
SB 493 does not require a postsecondary educational institutions to provide separate grievance procedures for student sexual harassment complaints. The institution may use student disciplinary procedures or other separate procedures. The procedures must comply with the requirements of SB 493.
A violation of the requirements of Section 493 is subject to civil action.
If, after SB 493 becomes operative on January 1, 2022, any provision of 493 that conflicts with federal law shall be rendered inoperative for the duration of the conflict and without affecting the remainder of the provisions.
Any case law interpreting procedural requirements or due process when adjudicating complaints of sexual or gender-based violence has no retroactive effect. Any case law that conflicts with SB 493 is superseded upon the operative date of the statute.
Because this law does not go into effect until January 1, 2022, postsecondary educational institutions have time to ensure their policies and procedures meet the requirements of SB 493. Some of the requirements of SB 493 are beyond the jurisdiction of the Title IX Regulations, so will likely require revision to their non-Title IX policies and procedures.
(SB 493 adds Sections 66262.5 and 66281.8 to the Education Code.)
