Keenan Briefings

Briefings

New State Guidance on Prevention and Response to Campus Sexual Harassment

October 20, 2020

On September 29, 2020, Governor Newsom signed into law SB 493 (Chapter 303, Statutes of 2020) which will require community colleges and other secondary institutions that receive state financial assistance to comply with a lengthy list of requirements relating to the protection of students from sexual harassment (including sexual violence) and providing students with procedural protections relating to complaints.

Background

The United States Department of Education rescinded guidance issued by the previous administration that is related to how institutions of higher education are to comply with Title IX and issued new guidance in September 2017. In November 2018, the US Department of Education released proposed changes to the Title IX rule, and the new rule was formally adopted on May 6, 2020. Campuses were required to implement the rule by August 14, 2020.

Some of the most significant changes in the Title IX rule include:

  • Allowing schools to use the "preponderance of evidence" or the more demanding "clear and convincing evidence" standard.
  • Allowing institutions to choose whether to have mandatory reporting for all employees or to designate some employees to be confidential resources for college students to discuss sexual harassment without automatically triggering a report to the Title IX office.
  • Providing a higher standard for notice of a sexual harassment allegation. A complaint triggers the school’s response obligation if it is made to the Title IX Coordinator or to an official with authority to institute corrective measures on the recipient's behalf.
  • Requiring that postsecondary institutions hold live disciplinary hearings in sexual misconduct cases and allow cross-examination of witnesses. The regulations explicitly prohibit postsecondary schools from employing the "single investigator" model.

In 2017, Senators Jackson and De Leon introduced SB 169, a bill that was intended to in part return California’s enforcement of state laws prohibiting sexual harassment on campus to the standards that were in place under federal law before the Title IX guidance was rescinded. That bill was vetoed by Governor Jerry Brown, who instead convened a workgroup to make recommendations regarding the issue of campus sexual harassment. The workgroup’s recommendations were included in SB 493, which was then further amended with input from stakeholders. While the final version of SB 493 is intended to minimize conflict with the federal regulations, there are still areas where they differ.

Requirements

Effective no later than January 1, 2022, the bill will require the governing board of each college to do all the following:

  • Disseminate a notice of nondiscrimination to each employee, volunteer, and individual or entity contracted with the institution. The notice may be disseminated by electronic means. It must include all of the information required for a written policy on sexual harassment under Education Code 66281.5.
  • Designate at least one employee of the institution to coordinate its efforts to comply with its responsibilities specified in the law. This employee may be the same individual as the college’s Title IX Coordinator under federal law. The employee is required to have adequate training on what constitutes sexual harassment and on trauma-informed investigatory and hearing practices and must understand how the college’s grievance procedures operate.
  • Adopt rules and procedures within the policies required by Title IX and Education Code 67386 for the prevention of sexual harassment. Such rules and procedures must include the following elements: (1) the college’s primary concern must be student safety, (2) the college must take reasonable steps to respond to each incident of sexual harassment that occurs involving individuals subject to the college’s policy regardless of the place they occurred, if there is any reason to believe that the incident could contribute to a hostile education environment or interfere with a student’s access to education. We note that this appears to be broader than the currently in-force Title IX regulations. (3) 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, it must promptly investigate and respond. This is definitely broader than Title IX, the regulations for which only require a college to investigate formal complaints received in writing. (4) treat complainant requests for confidentiality seriously, while at the same time considering its responsibility to provide a safe and nondiscriminatory environment for all students.
  • Adopt and publish on its website grievance procedures providing for the prompt and equitable resolution of sexual harassment complaints.
  • Publish on the institution’s internet website the name, title, and contact information for the Title IX Coordinator or other employee designated to coordinate the institution’s efforts to comply with and carry out the responsibilities specified in the act and any individual official with the authority to investigate complaints or to institute corrective measures.
  • Provide the comprehensive, trauma-informed training program required under Education Code 67386(b)(12), to each employee engaged in the grievance procedure.
  • Include annual training for residential life student and nonstudent staff for the trauma-informed handling of reports regarding incidents of sexual harassment or violence at an institution with on-campus housing.
  • Notify employees of the obligation to report sexual harassment to appropriate school officials.
  • Provide training to all employees on the identification of sexual harassment.

As noted above, some of these provisions have the potential to conflict with federal Title IX rules, especially with regard to what allegations a college is required to investigate. With more than a year before the effective date of SB 493, community colleges may wish to wait until the beginning of 2021 to begin revising policies and procedures. In the meantime, the United States Department of Education, Office of Civil Rights (OCR) recently released Q&A guidance regarding its implementation of Title IX regulations.

Some of the guidance is helpful in light of SB 493. For example, it clarifies that while each recipient must designate and authorize at least one Title IX Coordinator, the rules do not preclude a recipient using that same employee to review and investigate allegations of misconduct that fall outside the scope of Title IX. It also clarifies that a recipient may use its Title IX grievance process for allegations that fall outside the scope of Title IX. Other answers in the guidance, while not directly applicable to SB 493, address in detail aspects of the Title IX regulations, such as the definition of sexual harassment, the filing of a formal complaint, and conducting an investigative hearing. The full document can be found here.

Training is available through Keenan SafeColleges and all courses have been updated to reflect the new Title IX regulations:

  • Sexual Harassment Prevention:  Staff to Staff - Updated to reflect Title IX regulations
  • Title IX and Sexual Harassment Prevention - Previous title was Title IX and Sexual Misconduct
  • Title IX Regulations and Roles Overview - Previous title was Title IX:  Roles for Coordinators and Administrators
  • Title IX Roles of Employees - Previous title was Title IX: Roles of Responsible Employees
  • Sexual Violence Awareness for Employees (Campus SaVE Act) - Previous title was Campus SaVE Act

For information regarding Keenan SafeColleges, please contact your Keenan representative.


Keenan & Associates is not a law firm and no opinion, suggestion, or recommendation of the firm or its employees shall constitute legal advice. Clients are advised to consult with their own attorney for a determination of their legal rights, responsibilities and liabilities, including the interpretation of any statute or regulation, or its application to the clients’ business activities.