California Senators Want to Codify Obama-Era Title IX Guidance on Campus Sexual Assault

Since the passage of Title IX over 45 years ago, feminists have had to hold the line against ceaseless efforts to shrink the scope of the landmark women’s rights law and its fundamental applications. The latest attack is possibly one of the most egregious yet—and California lawmakers are fighting back in an effort to enshrine protections for sexual assault survivors on campus.

Creative Commons / Lorie Shaull

With the stroke of a pen, Education Secretary Betsy Devos rescinded Obama-era Title IX guidance—effectively undoing nearly half a century of policy and advocacy work that helped to protect women and girls from sexual assault and advance equal access to education. The Department of Education’s updated guidance on Title IX allows schools to mediate rather than adjudicate sexual assault cases, revokes the suggested timeline for investigations and revises the suggested “preponderance of evidence” standard for sexual assault cases to make room for schools to enforce “clear and convincing evidence” standards.

Colleges and universities have been swift to respond, speaking out against the new interim guidance and pledging to uphold the old standards by following the procedures with which they were imbued under the Obama-era guidance. In a statement on Friday, UC Berkeley said it “stands firmly in support of the profoundly important policies enacted in recent years that seek to ensure a more efficient and fair system for all parties in cases of sexual harassment and sexual violence.” Penn State stated that it was their goal “to keep our reporting mechanisms and supportive services for responding to incidents of sexual and gender-based harassment and discrimination as effective and accessible as possible.” Washington University announced that “regardless of decisions at the federal level” they “have no intention of turning back on our commitment or resolve.”

These responses are undeniably uplifting and important—but laws are only as good as their enforcement. Without the proper mechanisms for effective enforcement that the previous guidance provided, it is hard to say whether schools will hold themselves accountable to the law or let their promises ring empty. Rather than hope for the best, California Senator Hannah-Beth Jackson (D-Santa Barbara) authored a bill that would enshrine into California law the Obama guidelines that guaranteed girls and women equal access to education.

SB 169 sends a message that the state does not want to sit idly by as the federal government attempts to propel women’s rights into the past. “In California, we will not go back,” Jackson said in a statement on Friday. “Both houses of the Legislature made a clear bipartisan statement by passing my bill, SB 169, to protect the Obama-era guidelines that strike an appropriate balance that were put in place during his tenure. We will not back down from the progress we have made on sexual assault and sexual violence.”

SB 169 passed with a 28-10 vote and is awaiting a signature from Governor Jerry Brown (D). Groups like the Feminist Majority have submitted letters of support and are mobilizing supporters around the effort. In an open letter, 30 members of the California Delegation have also urged the Governor to sign the bill, emphasizing the effectiveness of the previous guidance and the subsequent need to ensure that schools continue providing safe learning environments for California students:

As members of Congress, we hear from survivors of sexual violence frequently about the pain they experienced when they were attacked, and the additional indignity and hardship they suffer when our educational institutions and government fail to adhere to Title IX directives. Many of us are parents, and have had the experience of taking our children on college tours where the first question asked by parents is what the university is doing to protect students and prevent sexual assaults.

SB 169 is a necessary response to reduce an endemic culture of gender discrimination and violence in our schools. When 20 percent of undergraduate women and 6 percent of undergraduate men will be sexually assaulted or suffer an attempted sexual assault during their college years, it is incumbent on California to act when the federal government threatens to roll back important civil rights protections. By codifying provisions of the 2011 OCR guidance into California law, SB 169 strengthens Title IX in California and establishes clear standards for schools to follow to precent and respond to student sexual harassment and violence.

Ensuring that Brown signs this bill and prevents theses changes from afflicting California is absolutely essential, especially given the time of year. As Dr. Nancy Deutsch, Associate Professor in the Curry School of Education at the University of Virginia told Ms., “right now we are in the red zone on college campuses”—the period in which most sexual assaults occur. “The idea that schools somehow can be on the fly making changes to its system—that’s not realistic and that’s also not helpful for schools that have spent a lot of time and effort putting into place policies and systems,” Deutsch explained, adding that the work of schools “is better if they are advancing what they are doing rather than thinking about how they are going to respond next.” For that reason, interims like Devos’ guidance are neither helpful nor effective, particularly in the midst of a crisis.

The disconnect between Devos’ decision and the actual situation for women on campuses is as palpable as ever. Right now, it may be up to California—and other states willing to follow their lead—to pick up the pieces.



Jessica Merino is a former Ms. editorial intern.