CALIFORNIA: Position Letter on Proposed SB-493
May 7, 2019
VIA E-MAIL SUBMISSION
The Hon. Anthony Portantino
Chair, Senate Appropriation’s Committee
California Senate
State Capitol Room 3086
Sacramento, CA 95814
RE: Position Letter on Proposed SB-493’s Current Negative Fiscal Impact.
Dear Senator Portantino and Honorable Members of the Appropriation’s Committee:
California leads the United State’s discussion about sexual hostility protections for men and women studying in a college or university who may become complainants of, or respondents to, charges of sexual misconduct. Proposed SB-493 is an important phrase in that discussion. Yet two issues in SB-493 require this Committee’s careful attention; particularly if the proposed SB-493 seeks to comply with the Appropriation’s Committee mandate to review a bill’s fiscal impact. In its current state SB-493 is a complete waste of the California taxpayer’s dollar. In its present form, without due process and adopting illusory numbers, every dollar spent funding this bill is not only a wasted dollar but actually a dollar that triggers the need for further dollars.
First, the provision that the panelists decide to ask and then ask cross-exam questions creates a fatal due process flaw to the entire bill and thus results in waste of the taxpayer monies that funded it. In addition, this flaw exposes the panelist, the school, the respondent, and the complainant, to further litigation and the related cost which yield a negative fiscal impact. That provision, at proposed section 66281.8 (b)(4)(J)(vii), currently states that the parties “shall be afforded” the right “[t]o not be subjected to any form of direct, live cross-examination from the other party or the other party’s advisor.” The provision should be re-drafted to provide for lawyer-led cross examination.
Second, the proposed citation to inflammatory and methodologically flawed surveys trivializes the bill’s intent, and distorts the fiscal impact of SB-493, as it normalizes the use of an illusory rate of rape in the United States. That language, at proposed SB-493 section 1(d), currently states that “According to research published by the American Association of University Women, during college, 62 percent of women and 61 percent of men experience sexual harassment. The Association of American Universities (AAU) survey of students shows that more than 1 in 5 women and nearly 1 in 18 men are sexually assaulted in college.” The language should be replaced with the impartial statistics from The Bureau of Justice Statistics’ National Crime Victimization Survey which reports the real rate of sexual assault: 6.1 per 1000 female students.
A. There is No Due Process Without Attorney-led Cross Examination. And Without Due Process the Fiscal Impact of SB-493 Becomes Negative.
The panel-led cross-examination proposed in SB-493 is a Title IX discrimination minefield with two levels of negative fiscal impact. First, because with panel-led cross any respondent can and will sue; the school system becomes liable for legal costs and ensuing damages. Respondents routinely sue—particularly state schools—reasonably claiming that they see anti-male discriminatory bias as a reason for why, for example, the panelist chose to not ask a cross-exam question of the female complainant, or altered the language of the cross-exam question for the complainant. Thus, when the panel handles cross, it automatically violates Title IX which increases risks, costs, and turns the fiscal impact of SB-493 negative. Second, Title IX protects both respondents and complainants. Thus, if the panelist poses the respondent’s cross to the complainant and she perceives it as harsh or re-traumatizing she too will sue alleging not just “deliberate indifference” to her trauma, but, in some situations, even slander “per se.”
Only attorney-led cross examination solves this dilemma and provides a net zero fiscal impact. This Committee must carefully assess the legal fact that panel-led cross examination does not deliver the process due to complainants and respondents. Establishing that fact will allow the Committee to find that, in its current form, the fiscal impact of SB-493 inescapably wastes taxpayer money. California’s public education systems must provide a sexual hostility free environment for everyone—indeed the stated goal of Title IX. But SB-493’s present attempt to deliver on this promise is a fiscal negative that can only become, at best, a net-zero proposition with the guarantee of attorney-led cross. Otherwise, either party sues the school claiming the panel discriminated against either one for lack of due process and gender based discrimination.
Further, consider the negative fiscal impact of race and the current SB-943. The proposed funding for a panel-led cross examination structure has an unlimited potential to have a negative fiscal impact for every single one of California’s public education systems because the complainant or the respondent can sue for race-based animus if there is a racial disparity between the parties. Given that California is a racial diversity paradise, so are its public higher education systems. This disparity will occur over and over again. Thus, there is a significant risk of increased costs when SB-943 tells the panel to handle cross examination and the respondent is a racial or national origin minority. Title VI forbids panelists from engaging in race or national origin based discrimination. Thus, when a white panelist refuses to ask of a white complainant the cross-examination posed by a respondent of color, that man can sue the school under Title VI. Potentially, complainants of color may also want to sue their schools arguing that the white panelist gave special treatment to the white respondent and ignored the questions she propounded. As a result, race and national origin objections to panel-handled cross-examination increase costs. Race objections to the panel’s cross frustrate due process and exponentially risk turning the fiscal impact of SB-493 into a negative.
Lawyer-led cross examination is optimal because it guarantees each party’s due process, it lowers the incidence of claims that the panel discriminated against any party based on the party’s gender or race and, importantly, it safeguards the dignity of the proceedings for two reasons. First, every lawyer who handles cross is subject to rules of ethics and can not badger a witness. Second, legal scholarship proves that badgering does not work. Thus, it is vastly more reasonable to expect better outcomes, which reduce liability as well as costs, using lawyers instead of panels for cross. Lawyers turn the current fiscal-negative status of SB-493 into a fiscal neutral. Imagine that!
B. California’s Statutory Language Should not Adopt Illusory Sexual Assault Surveys that Exaggerate Sexual Hostility and Magnify Costs.
No one in their right mind doubts the horrors of experiencing sexual assault at any time. Similarly, no one in their right mind denies that even those clearly guilty of sexual assault deserve due process. If anything, the United States criminal system guarantees to those persons the highest levels of due process. The current call from student-activists in campuses all across the United States for adoption of “restorative justice practices” in sexual misconduct matters enshrines these very views. In addition, this committee’s appropriations gravamen for SB-493 requires predictable, optimal, and reasonable costs for all involved. However, fair, unbiased data must be used for all of this effort to pay fruit, and for the fiscal impact of this bill to be at least neutral. Unfortunately, proposed SB-493 states, as a finding of the California Legislature, that over 60% of college students experience sexual harassment. Sadly, the surveys that sourced that language are everything but fair or unbiased. As a result their use contributes to the current fiscal negative impact of SB-493. To be clear, if SB-493 provides for due process via attorney-led cross, and fairly assesses the number of students at risk, namely 6.1 per 1000, then its fiscal impact is a positive.
Scholarly critique of the inflammatory numbers currently used in SB-493 identified fatal flaws in the underlying methodology of these surveys because they used anonymous questionnaires, which means they do not study a representative sample, and are thus not statistically viable. What these surveys do is create an illusory perception that because the horrid experience of sexual assault has been ignored, in such exaggerated numbers, for so long a time, the compensation to its victims should be even higher.
Clearly, no amount of money ever will compensate a victim of rape. But fiscally speaking, when the public’s perception of the school environment becomes illusory and equivalent to the rate of rape in countries were rape is used as a weapon of war, then the amount of damages that the public awards grows exponentially and emotionally because they have no basis in reality. Thus, using and incorporating these flawed surveys as a reason for passing SB-493 normalizes that very inflamed emotion in the public’s perception adding to the negative fiscal impact of this bill. To be clear, one rape is one rape too many. But no generally accepted statistical methodology supports the survey opinion that over 60% of students experience hostility that violates Title IX.
Thanks for your kind attention.
/s/
Raul Jauregui
Office of Raul Jauregui
720 Arch Street, No. 861
Philadelphia, PA 19107
(215) 559-9285
About Me:
I grew up Latino in Downey, Los Angeles County, California, and attended California public schools all of my life, a process that yielded a J.D. from UCLA where I served on the UCLA Law Review. Inevitably, and proudly, I’m a life-long Democrat. And while not a single Title IX issue ever came up during my time as a California student or resident, it has become a crisis since that time. As a result, I have represented plenty of men and women complaining of and responding to sexual misconduct violations within their schools and in federal court in Pennsylvania. Thus, while I do not state this position as an attorney, I do state it as one who cares about improving this bill because my California public education experience was excellent, empowering, as well as joyful--and I believe that it should be so for today’s students. California’s tradition of excellence in public education, and this committee’s mandate to correct for fiscal impact, requires that SB-493 incorporate the due process of cross examination by a lawyer for each party, and needs the use of The Bureau of Justice Statistics’ National Crime Victimization Survey which reports the real rate of sexual assault: 6.1 per 1000 female students.
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