The state of California has obligated universities to adjudicate sexual assault under an unworkable affirmative consent standard, it has instructed high schools to teach teenagers that consensual sex requires affirmative consent, and it has tried to force colleges to expel students found guilty of violating these absurd policies. But the last of these policies will not become law, thanks to Gov. Jerry Brown's veto of Assembly Bill 967.
The bill would have established mandatory minimum sentences for students found responsible of sexual misconduct by a university tribunal, essentially requiring two-year suspensions as the default punishment. In his letter announcing the veto, Brown explained that the bill was unnecessarily meddlesome:
It is eminently reasonable to expect that discipline shall not vary based on a student's status as an athlete or a declared area of study. This bill, however, could deprive professionals from using their better judgment to discipline according to relevant circumstances. Moreover, it creates an expectation that the state should recommend minimum penalties for violations of specific campus policies. …
I don't think it's necessary at this point for the state to directly insert itself into the disciplinary and governing processes of all private and nonprofit colleges in California.
If only Brown had applied this quite reasonable logic to SB 967, a bill he signed that inarguably inserted the state into the disciplinary and governing process of all colleges in California by requiring them to adjudicate sexual assault using a standard spelled out by the legislature. This standard, the affirmative consent, "Yes Means Yes" standard, substitutes the better judgment of education professionals for the wisdom of politicians. Unfortunately, the standard tips the scales of justice against the accused, and will be a disaster for campus due process.
That said, Brown is also wrong that the judgment of education professionals in these matters is beyond reproach. These officials have no legal training and are ill-equipped to settle disputes in a manner that is fair to both the accuser and the accused. In fact, they are routinely accused of violating due process for falsely accused students, and of failing to achieve justice for actual victims.
A more logically sound veto letter from Gov. Brown would have read: "Neither California's legislators, not the administrators at the University of California, know the first thing about adjudicating sex crimes, and thus the matter should be left to actual courts." In lieu of such a concession, advocates for campus fairness should still savor a small victory: mandatory minimums for college sex crimes didn't just become a thing.