The “Yes Means Yes” bill was a big deal when Jerry Brown, the governor of California, signed it into law in 2014. Among other things, it made California the first state to pass an “affirmative consent” law (New York and Connecticut followed), which lays out rules for college students to engage in ongoing agreement while having sex. Essentially, it requires all parties to get consent for each touch each time; silence can not be interpreted as consent. Now, it seems, Brown is not so certain about what has been wrought. This week, in an unexpected move, Brown vetoed a new bill that would have broadened the definitions and rules regarding alleged sexual misconduct for students attending California colleges and universities.
The now-defunct bill would have codified into law controversial guidance issued by the Obama administration’s Department of Education on Title IX—the federal law that forbids gender discrimination in education. Some of that Obama-era guidance was recently rescinded by Secretary of Education Betsy DeVos, who said it had created a “failed system,” one that has not brought fairness either to accuser or accused. In a letter explaining his veto, Brown wrote he could not endorse the bill because of troubling concerns that have arisen in recent years. He noted that since he signed Yes Means Yes, “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.”
To my knowledge, Brown is the first prominent elected Democratic official to raise such questions of fundamental fairness in regard to how the country’s campuses now deal with sexual-misconduct allegations. Additionally, he expressed concern about the lack of transparency about how current rules are affecting the lives of students—particularly people of color. “We have no insight into how many formal investigations result in expulsion, what circumstances lead to expulsion, or whether there is disproportionate impact on race or ethnicity,” he wrote. His concerns, and his action, put Brown, whose term ends next year, at odds with his state party (the bill passed unanimously among Democrats) and the national one.
Last month, in a three-part series for The Atlantic, I argued that the worthy initiative by the Obama administration to address sexual misconduct on campus had in many ways gone awry. I wrote about the systematic deprivation of due process for the accused, the junk science that had infiltrated many adjudications, and concerns that a disproportionate number of men of color have been accused. I find Trump to be troubling and dangerous, so it has been strange to find myself agreeing with much of the reforms his education secretary has proposed so far regarding campus sexual-misconduct policy. Now Brown has written a letter that echoes many of the concerns raised by DeVos about previous policies.
In my series, almost all the critics of the Obama administration’s policies were Democrats and feminists. They have spoken out because of their own increasing worries in recent years that the legitimacy of the fight against sexual assault was being undermined by new rules on campus that had the effect of potentially turning any sexual encounter into a possible violation. Except for Brown’s singular statement, Democratic elected officials have not widely acknowledged—or perhaps do not understand—that their constituents equally desire the safety of their college-age daughters and sons, and that they want their sons to get through college without being labeled as predators because of a normal, if stumbling, teenage sexual encounter. Numerous Democratic members of the House and Senate have vowed to do everything in their power to oppose any Trump administration reform of Title IX. Representative Jackie Speier, a California Democrat, just introduced federal legislation that mirrors the bill Brown vetoed.
In reporting on this topic for the past several years, I’ve been struck at how blithely the federal Department of Education, state legislators, and college administrators have taken the ending of the educations of young men (they are almost all young men) accused of campus sexual misconduct. Being suspended or expelled for a sexual violation on campus can prevent someone from getting an undergraduate degree and may permanently bar him from many professions. Brown acknowledged the gravity of such punishment in his letter: “Depriving any student of higher education opportunities should not be done lightly, or out of fear of losing state or federal funding.”
While there is national movement to rethink the harsh sentencing and mandatory minimums that led to the disaster of mass incarceration, the massive University of California system last year imposed its own mandatory minimums on students found responsible for sexual misconduct. The typical minimum is a two-year suspension (although those accused of “fondling” could be suspended for one year)—the maximum penalty is expulsion. In 2015, Brown vetoed another piece of legislation that would have made such punishments mandatory at virtually all California institutions of higher education. He objected because the bill prevented the crafting of punishments tailored to individual circumstances. The president of the UC system, Janet Napolitano, was a prominent supporter of an Obama administration initiative to make it easier for young people who had been convicted of crimes to enroll in higher education. Increasing the opportunity of those with a criminal past to lead productive lives is a laudable goal. If only Napolitano would champion the due-process rights of those students who find themselves caught up in the draconian Title IX system on her campuses. Additionally, Napolitano was one of the earliest critics of the Obama Title IX policies, laying out her concerns in a scathing law review article in 2014. But with the election of Donald Trump she did a 180 on her previous critique and endorsed the now-vetoed California bill.
The most immediate salutary effect of Brown’s veto could be how it prompts other states to respond to similar legislation to codify the now-rescinded Title IX guidance. (Massachusetts, for example, has such a bill.) It probably is too much to hope that on this vital topic, Democrats and Republicans could agree that their hatred for each other is less important than making sure they are doing right by all the young people in their charge.
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