California Bill Seeking Minimum Punishments in College Sexual Misconduct Cases Vetoed

Recently, California Governor Jerry Brown vetoed a bill introduced to the California State Assembly earlier this year. The bill sought to require colleges to give a minimum two-year suspension if a student was found guilty of sexual assault offenses through the campus disciplinary process.

In proposing a bundle of sexual assault-related bills, California Assemblyman Das Williams pointed to research that estimates one in five women experiences a form of sexual assault in college, and less than 5% of those incidents get reported to law enforcement.

Governor Brown, in vetoing the minimum punishments bill, suggested that colleges are in a better position to determine appropriate disciplinary measures. Governor Brown opined that colleges must consider many relevant factors and circumstances in disciplining students and, therefore, the bill would stifle colleges from using their better judgment in disciplinary proceedings.

All public and private colleges receiving federal funding are obliged to address reports of sexual assault on campus under Title IX of the Education Amendments of 1972. Title IX prohibits schools from discriminating on the basis of sex. Discrimination on the basis of sex has been expanded to cover sexual harassment and sexual assaults.

To comply with Title IX, institutions must adopt and publish grievance procedures for students to file complaints of sexual harassment or sexual violence. Although institutions must provide prompt and equitable resolutions of sex discrimination complaints, Title IX does not impose a specific type of discipline and allows schools to use their own disciplinary procedures to address the complaints.

Institutions that violate Title IX may be liable through (1) enforcement actions by the U.S. Department of Education’s Office of Civil Rights (“OCR”) and (2) private actions. The enforcement action may result in monetary fines or withholding of federal funds. Last year, OCR released a list of 55 higher education institutions which were subject to an open investigation for violating of Title IX. To date, this number has increased to more than 140.

In response to public spotlight on sexual violence on college campuses, many states have enacted laws that cover sexual harassment and sexual assaults on campus. For example, this year, the state of New York adopted “Enough is Enough” legislation to address sexual assault on college campuses. The new law requires all colleges to adopt a set of comprehensive procedures and guidelines, including: (1) a uniform definition of affirmative consent in engaging in sexual activity, (2) a statewide amnesty policy granting immunity from certain campus policy violations to reporting students, and (3) expanded access to law enforcement (please click here for more information on “Enough is Enough” legislation: http://www.cullenanddykman.com/news-advisories-103.html).

Colleges and universities are exposed to liability greater than ever before. In April 2015, OCR reported that sexual violence complaints in higher education increased more than 1000% within 5 years (from 9 complaints in 2009 to 102 complaints in 2014). Institutions should stay up to date with ever-changing federal and state laws in order to ensure full compliance with all relevant discrimination and harassment laws.

If you or your institution has any questions or concerns regarding employment or education-related issues, please contact Hayley B. Dryer at hdryer@cullenanddykman.com or at 516-357-3745.

Thank you to Garam Choe, a law clerk at Cullen and Dykman, for his help with this post.