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California governor vetoes anti-due process bill that would enshrine campus kangaroo courts

‘We haven’t yet ascertained the full impact of’ affirmative-consent law

Governor Moonbeam continues to surprise in his second act as chief executive of the Golden State.

Democrat Jerry Brown vetoed a bill Sunday that would have enshrined in California law the Title IX federal guidance that was rescinded by the Department of Education last month.

In his veto message, Brown said the state already had a statutory requirement to use the “preponderance” standard of evidence, better known as “more likely than not,” in campus sexual misconduct proceedings. That was part of a bill he signed in 2014 to mandate “affirmative consent” in campus adjudications.

But he’s evidently having second thoughts:

Since this law was enacted, however, thoughtful legal minds have increasingly questioned whether federal and state actions to prevent and redress sexual harassment and assault – well-intentioned as they are – have also unintentionally resulted in some colleges’ failure to uphold due process for accused students. Depriving any student of higher education opportunities should not be done lightly, or out of fear of losing state or federal funding.

Given the strong state of our laws already, I am not prepared to codify additional requirements in reaction to a shifting federal landscape, when we haven’t yet ascertained the full impact of what we recently enacted [in 2014].

Brown said the state needs more information on how many expulsions resulted from formal investigations and what caused them – and notably, “whether there is a disproportionate impact on race or ethnicity” – before it can responsibly enact more statutory changes.

He said he would “convene a group of knowledgeable persons who can help us chart the way forward.”

California Governor Jerry Brown veto message on SB 169 to enshrine rescinded federal guidance on Title IX by The College Fix on Scribd

Lawyer Mark Hathaway, who has represented several accused students in litigation following Title IX proceedings, told The College Fix in an email he spoke with an aide to Brown “for over an hour” last week about “how Title IX enforcement at the campus level is actually conducted, things they had never heard of.”

The discussion included how the University of California and California State University systems use the “single investigator” model, in which one person conducts the investigation, assigns responsibility and sets a penalty, as well as “vague and overbroad definitions” of misconduct.

Hathaway said he also discussed how “several hundred thousand” civil servants and public employees in the universities lost “important civil service protections” guaranteed by human resources or their unions in response to misconduct allegations, because they were subject to the same Title IX investigation process – “except faculty are not afforded the limited appeal rights that students get.”

Lawyer Cynthia Garrett, co-president of Families Advocating for Campus Equality, said in an email that her advocacy group’s families “engaged in a final push to plea with the Governor to veto the bill” last week. FACE also had “repeated meetings” with the bill’s sponsor, Senator Hannah Beth Jackson, and “several phone conferences” with her staff, to no avail.

In an open letter to Brown last week, Garrett said Jackson “refused to acknowledge or even consider that students most tragically affected by these one-sided proceedings are the underserved, minorities and scholarship students, most of whom have worked diligently to rise above the circumstances into which they were born.”

Families Advocating for Campus Equality letter to Gov. Jerry Brown opposing SB 169 on Title IX adjudication… by The College Fix on Scribd

Read Brown’s veto statement.

MORE: States embrace Obama’s Title IX rules as Trump signals changes

IMAGE: infomatique/Flickr

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About the Author
Associate Editor
Greg spent several years as a technology policy reporter and editor for Warren Communications News in Washington, D.C., and guest host on C-SPAN’s “The Communicators.” Previously he led media and public relations at Seattle’s Discovery Institute, a free-market think tank. Greg is developing a Web series about a college newspaper, COPY, whose pilot episode was a semifinalist in the TV category for the Scriptapalooza competition in 2012. He graduated in 2001 with a B.A. from Seattle Pacific University, where he co-founded the alternative newspaper PUNCH and served as a reporter, editor and columnist for The Falcon.

Add to the Discussion

  • Looktampa

    Smart move by the governor. Probably saved the state university system at least $100,000,000 over next 10 years on payouts in litigation losses to individuals wrongly expelled after failing to provide due process.

  • Tripin S

    So….my retirement plan is to go to California, get offended by something, and sue for millions.

    Profit?

  • rnagel

    Proves the adage about a blind chicken finding a kernel.

  • George Kimball

    “…have also unintentionally resulted in some colleges’ failure to uphold due process for accused students. ”
    Wasn’t anything unintentional about it. Left wing ideology is rooted in pretense, the assumption that they are superior and know what is right, and the derivative authoritarianism of enforcement. NO ONE is worse than university faculty in believing this obvious falsehood. That is what drives the absurd “rules” for investigations of sexual offenses, which are often so horrible they are incomprehensible.

    So Gov. Brown gets one right for once, but apparently only because he fears for minority students who are less sophisticated in dealing with the system. Reality is that no one can deal with these Star Chambers and loony faculty self-anointed deities. Ignoring majority and American students is just as wrong.

    The issue is that justice cannot be achieved by relying on unaccountable power – NOT minority rights.

    • Joe Joe

      Some black males are being targeted as well as whites, and we can’t have that. As soon as Jerry Moonbeam figures out a way to only expel whites, he could be persuaded to sign.

  • Joe Joe

    Translation: California is freaking broke and can’t afford any more lawsuits from unjustly accused males expelled from the giant UC/Cal State system.