SB 493 Will Require Colleges and Universities to Revise Sexual Harassment Complaint Procedures in 2022

12.14.2021

SB 493 was passed in September 2020 and becomes effective January 1, 2022.  SB 493 seeks to clarify the process and provide grievance procedures for adjudicating student complaints of sexual harassment at postsecondary educational institutions, including sexual or gender-based violence, and dating or domestic violence. SB 493 further attempts to clarify the definitions in Education Code section 66262.5 regarding sexual harassment and provides a new grievance procedure set forth in Education Code section 66281.8.  SB 493 also establishes specific employee training requirements.

Both the new Title IX regulations issued in 2020 and this new California grievance procedure apply to how postsecondary educational institutions respond to reports or complaints of sexual harassment.  In some respects, SB 493 mirrors the Title IX regulations; in other respects, SB 493 provides rights to the parties that are in addition to, but not inconsistent with, the minimum required by the Title IX regulations; in still other respects, the provisions of SB 493 are inconsistent with specific provisions of the Title IX regulations.  For example, the Title IX regulations specifically require that parties’ advisors have an opportunity to directly cross-examine opposing parties and witnesses during a live hearing.  In contrast, SB 493 specifically prohibits direct cross examination by a party’s advisor.  The issue of whether direct cross examination should or should not be allowed in hearings was the subject of a major policy debate when the Title IX regulations were under development.  There was strong opposition to direct cross examination from some quarters, but others strongly supported it.  The regulations reflect the policy judgment of the administration that issued them, that direct cross examination should be allowed.  SB 493 reflects the policy judgment of the authors that direct cross examination should not be allowed.  As matters presently stand, the Title IX regulations, as federal law, take precedence over SB 493, and SB 493 itself contains a specific provision to the effect that any inconsistencies between SB 493 and federal law must be resolved in favor of federal law. 

SB 493 is implicitly premised on the anticipation that federal regulations may change under the current administration.  Early in the Biden administration, the U.S. Department of Education announced plans to revisit the 2020 Title IX regulations, and last week, announced that it expects to issue new proposed regulations sometime around April 2022. For now, however, the 2020 Title IX regulations remain on the books and in full force and effect.  We encourage California postsecondary educational institutions to consult with legal counsel regarding which portions of SB 493 directly conflict with the new Title IX regulations, which portions of SB 493 increase the floor of the Title IX regulations without any conflict, and which sections of SB 493 address ways to process sexual harassment complaints that are specific to California postsecondary educational institutions.

Postsecondary educational institutions are encouraged to review their complaint policies and assess whether they are compliant with SB 493, amongst other statutory requirements.

SB 493 requires postsecondary educational institutions that receive state financial assistance to:

1. Disseminate notices of nondiscrimination to employees, volunteers, and those who contract with the institution;
2. Designate an SB 493 coordinator (Note, this individual can be the same person who serves as your Title IX Coordinator);
3. Adopt rules and procedures for the prevention of sexual harassment, including those required by Title IX of the Education Amendments of 1972 (20 U.S.C. Sec. 1681 et seq.);
4. Adopt and publish on their website the grievance procedures which provide for the prompt and equitable resolution of sexual harassment complaints;
5. Publish on their website the name, title, and contact information for the Title IX Coordinator or other employee designated to coordinate the compliance with SB 493, and any individual official with authority to investigate complaints or to institute corrective measures as specified;
6. Include specific training to each employee engaged in the grievance procedure;
7. Include annual training for residential life student and nonstudent staff for the trauma-informed handling of reports regarding incident of sexual harassment or violence at an institution with on-campus housing;
8. Notify “responsible employees” of the obligation to report sexual harassment to appropriate school officials; and
9. Provide training to all employees on the identification of sexual harassment.

The newly-enacted law authorizes enforcement of its provisions through civil action.  The law also provides that costs of compliance may be reimbursable as a mandated cost, in accordance with mandated costs procedures.

SB 493 requires postsecondary educational institutions that know or reasonably should know about possible sexual harassment to promptly investigate to determine whether the alleged conduct more likely than not occurred, or otherwise respond if the institution determines that an investigation is not required.  A postsecondary institution will be presumed to know of sexual harassment if a responsible employee (as defined in Education Code section 66281.8(2)) knew, or, in the exercise of “reasonable care,” should have known, about the sexual harassment. 

The grievance procedures required by SB 493 must contain the following provisions, in addition to others:

• State that “the investigation and adjudication of alleged misconduct under the section is not an adversarial process between the complainant, the respondent, and the witnesses, but rather a process for postsecondary institutions to comply with their obligations under existing law. The complainant does not have the burden to prove, nor does the respondent have the burden to disprove, the underlying allegation or allegations of misconduct.”
• Provide notice to all students of the grievance procedures, including where and how complaints may be filed.
• Ensure that persons or entities responsible for conducting investigations, finding facts, and making disciplinary decisions are neutral.
• Ensure trauma-informed and impartial investigation of complaints.
• Provide student parties an opportunity to identify witnesses and evidence to assist in determining whether a policy violation has occurred, and inform them that any evidence available but not disclosed during the investigation might not be considered at a subsequent hearing.
• Include reasonable and equitable evidentiary guidelines, which may include page or word limitations.
• Include an admonition that the investigator or hearing officer shall not consider the past sexual history of a complainant or respondent, except in limited circumstances permitted by the law.
• Provide that the postsecondary educational institution shall decide whether or not a hearing is necessary to determine whether any sexual violence more likely than not occurred.
• Ensure hearings adhere to the following rules, in addition to others:
  • Any cross-examination of either party or witness shall not be conducted directly by a party or a party’s advisor.
  • The hearing officer has discretion to accept for good cause, or exclude, new evidence offered at the hearing.
  • Affirm that the preponderance of the evidence standard applies to adjudications under the section.
• Provide a reasonably prompt time frame, including information about: the period for conducting an investigation; the date by which parties will be notified of the outcome of an investigation; deadlines and process for appeals; requests for extension; periodic status updates; written notice of outcome to the parties; written notice including the allegations and the alleged policy violations under review; and advise students about their right to consult with an attorney, at their own expense at any stage of the process, amongst other things.
• Allow either party to appeal the outcome of the grievance proceeding if the postsecondary educational institution has such an appeal process.
• When requested by a complainant or otherwise determined to be appropriate, issue an interim no-contact directive prohibiting the respondent from contacting the complainant during the pendency of the investigation. Upon issuance of a mutual no-contact directive, an institution shall provide the parties with written justification for the directive and an explanation of the terms of the directive.

The training requirements of SB 493 provide that each employee engaged in the grievance procedures shall be trained on trauma-informed investigatory and hearing practices that help ensure an impartial and equitable process; best practices for assessment of a sexual harassment or sexual violence complaint; best practices for questioning of the complainant, respondent, and witnesses; and implicit bias and racial inequities, both broadly and in school disciplinary processes.  Training materials must include statistics on the prevalence of sexual harassment and sexual violence in the educational setting, and the differing rates at which students experience sexual harassment and sexual assault in the educational setting based on their race, sexual orientation, disability, gender, and gender identity.  Additionally, all employees must receive training on the identification of sexual harassment, including the person to whom it should be reported.

For more information and counsel about your impending and existing obligations under SB 493 and Title IX, respectively, please contact one of the attorneys listed on this Alert. 

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process. 

© 2021 Atkinson, Andelson, Loya, Ruud & Romo