[guest post by JVW]
Just this past spring we were congratulating Secretary of Education Betsy DeVos for finally bringing to heel the Obama Administration’s notorious “Dear Colleague” letter which had helped set in motion a campus sexual assault hysteria resulting in controversial sanctions and expulsions, mostly of young men. I suppose we should have realized that this would not be allowed to stand in hyper-woke California, and yesterday Governor Gavin Newsom signed a bill authored by state Senator Hannah-Beth Jackson of Santa Barbara which reimposed on state universities much of the kangaroo court nonsense that Secretary DeVos had hoped to quell.
The overview and the summary of the bill appear on face value to be fairly innocuous, covering just requirements that state colleges have a point person for harassment claims, that they have established rules for a disciplinary process, that various administrators receive training, etc., but buried within Section 3 of the law are a few nuggets making it clear that California should return to the Obama-Era regulations:
Section 3, article IV, subsection 3, item C, part i
Regardless of whether or not a complaint has been filed under the institution’s grievance procedures, if the institution knows, or reasonably should know, about possible sexual harassment involving individuals subject to the institution’s policies at the time, the institution shall promptly investigate to determine whether the alleged conduct more likely than not occurred, or 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 shall immediately take reasonable steps to end the harassment, address the hostile environment, if one has been created, prevent its recurrence, and address its effects. [. . .]
In other words, as in the case of the USC football player and his girlfriend, a campus should investigate and punish an accuser on their own volition, even if the “victim” denies she has been harassed or assaulted.
Section 3, article IV, subsection 3, item C, part ii
The institution shall 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 where both individuals are, at the time of the request, subject to the institution’s policies.
If I am not mistaken, this could mean that Mary sees John at freshman orientation, reports to the administration that he got fresh with her at a high school party back when they were both 15, and the university would be required to investigate and perhaps adjudicate if Mary asserts that John’s presence on campus interferes with her ability to receive an education. Never mind that this happened in the past and away from campus; under this rule it is germane if one party claims a present impact.
Section 3, article IV, subsection 3, item d, part i
If a complainant requests confidentiality, which could preclude a meaningful investigation or potential discipline of the potential respondent, or that no investigation or disciplinary action be pursued to address alleged sexual harassment, the institution shall take the request seriously, while at the same time considering its responsibility to provide a safe and nondiscriminatory environment for all students, including for the complainant. The institution shall generally grant the request. [. . .]
The law then tries to outline how confidentiality requests would be granted, and to what degree that would impact the rights of the accused. But the reality of the situation is that they are creating a scenario in which the accused would have to respond to generic complaints without knowing any details which might divulge the identity of the complainant: “At any time during a party in the past three months did you place your hand on a female in a manner which she might have found harassing?” This is even worse for faculty or staff, or anyone else who is considered to enjoy a “power imbalance” over the complainant (campus advocacy groups have defined a power imbalance in such as broad fashion as to include a senior in a relationship with a freshman). And the new law states that the school can still judge a respondent guilty and subject to sanctions while maintaining complainant confidentiality, provided the institution can “conduct a thorough investigation and obtain relevant evidence.” While that seems to be a common-sense protection, past experience suggests that a broad definition of “thorough” and “relevant evidence” will allow the institution to make a great deal of mischief in pursuit of social justice.
And what would a California law these days be without a whole lot of stupid wishful thinking?
Section 3, article IV, subsection 4, item A, part i
[The published grievance procedures] shall state that 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 their obligations under existing law. The complainant does not have the burden to prove, nor does the respondent have the burden to disprove, the underlying allegation or allegations of misconduct.
I’m sure it will mean a great deal to the 19-year-old kid facing expulsion and being sent back home to Buttscratch where he’ll spend the rest of his life working on the road crew to know that the process isn’t meant to be adversarial. This section then goes on to inform the parties that although there shall be a process of investigation which consists of collecting evidence and/or witnesses, if some evidence and/or witnesses emerge after the hearing begins they may not necessarily be considered. But don’t worry: this law establishes that “the persons or entities responsible for conducting investigations, finding facts, and making disciplinary decisions are neutral.” Because I guess if there is one thing that college administrators and faculty are known for in 2020 it is being scrupulously neutral.
And how about the ability of the accused to cross-examine the accuser? Forget about it, unless you think that this bare fig-leaf is adequate [bolded emphasis added by me]:
Student parties shall have the opportunity to submit written questions to the hearing officer in advance of the hearing. At the hearing, the other party shall have an opportunity to note an objection to the questions posed. The institution may limit such objections to written form, and neither the hearing officer nor the institution are obligated to respond, other than to include any objection in the record. The hearing officer shall have the authority and obligation to discard or rephrase any question that the hearing officer deems to be repetitive, irrelevant, or harassing. In making these determinations, the hearing officer is not bound by, but may take guidance from, the formal rules of evidence.
To hell with those pesky “formal rules of evidence” if they make it easier for the accused to slip the noose, I suppose. And this naturally leads us back to the “preponderance of evidence” standard the Obama Administration imposed, meaning that the accused can be found guilty if the tribunal determines that it is slightly more likely than unlikely that he is guilty, discarding the Trump Administration’s “clear and convincing evidence” standard. In a very close case with lots of ambiguity, how many times do you think that college administrators are going to find the accused 51% likely of a Title IX violation as opposed to 49% likely?
If you doubt that this legislation isn’t simply a clear attempt to rally the social justice left against Secretary DeVos and the Trump Administration, check out the press release that Sen. Jackson’s office coughed up after Governor Newsom signed the bill. Never mind educational institutions’ heavily checkered record in handling such matters; never mind the atmosphere of hostility that surrounds young men (who are after all the minority: 53% of UC students and 57% of Cal State students are female) on campuses these days thanks to the ugly monoculture that has been allowed to infest higher education. There are scores to be settled, and nothing is going to stop the crybullies from pursuing their agenda.