Title IX

Jerry Brown Vetoes Campus Sexual Assault Bill Because It Threatens Due Process

"Depriving any student of higher education opportunities should not be done lightly," says the California governor.

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Jerry Brown
Geodakyan Artyom/ZUMA Press/Newscom

Today California Gov. Jerry Brown vetoed Senate Bill 169, which would have codified the Obama-era Education Department's guidance for how college campuses should deal with sexual misconduct.

What's more, he vetoed the bill on explicit due-process grounds. Accused students, guilty or not, "must be treated fairly and with the presumption of innocence until the facts speak otherwise," he wrote in a statement.

Brown's veto comes at a time when the new Education Department, led by Betsy DeVos, is revising the guidance. The Obama-era approach had prompted college officials to adopt investigatory procedures that imperiled free speech and due process. DeVos' department recently formally rescinded the most onerous of the dictates.

The California legislature tried to ensure that schools keep doing things the old way. But as Brown noted:

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. Depriving any student of higher education opportunities should not be done lightly, or out of fear of losing state or federal funding.

Given the strong state of our laws already, I am not prepared to codify additional requirements in reaction to a shifting federal landscape, when we haven't yet ascertained the full impact of what we recently enacted. 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.

Brown isn't wrong to suggest that the softening of due process protections for accused students might have disproportionately affected students of color. As Emily Yoffe discussed in a thoroughly reported series for The Atlantic, there are good reasons to think minority students are much more likely to run afoul of the campus anti-rape bureaucracy.

I'm pleasantly surprised that Brown vetoed this bill and released such a strong statement reaffirming the importance of due process protections. It's a brave stance that makes him an outlier within the Democratic Party, whose leaders have been far more likely to condemn DeVos for trying to tamper with the system.