- The Washington Times - Monday, October 16, 2017

California Gov. Jerry Brown vetoed a bill Monday to codify into state law the aggressive Obama-era campus federal sexual assault guidance, echoing concerns about the rights of the accused raised by Education Secretary Betsy DeVos.

Mr. Brown said it was “time to pause and survey the land” before moving forward with more regulations “when we haven’t yet ascertained the full impact of what we recently enacted” with California’s 2014 affirmative consent law.

“Since this law was enacted, however, 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,” Mr. Brown said in his veto message.

Ms. DeVos cited the same concerns when she rescinded last month the department’s 2014 Title IX guidance, which lowered the standard of proof in sexual assault cases to a “preponderance of the evidence” instead of the clear-and-convincing standard.

She pointed to complaints about students suspended or expelled based on flimsy accusations by campus officials fearful of running afoul of the Education Department’s office for civil rights.

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

The Democratic governor pointed to the state’s affirmative consent law, which he signed, a first-in-the-nation standard requiring state universities to adopt procedures to ensure that students give “affirmative, conscious and voluntary agreement” before engaging in sexual activity.

Mr. Brown said “we haven’t yet ascertained the full impact of what we recently enacted,” including possible racial disparities.

“We have no insights into how many formal investigations result in expulsion, what circumstances lead to expulsion, or whether there is disproportionate impact on race or ethnicity,” said Mr. Brown.

Thirty members of California’s U.S. congressional delegation had urged Mr. Brown to sign the bill in a Sept. 28 letter, calling it a “necessary response to reduce an endemic culture of gender discrimination and violence in or schools.”

The sponsor of Senate Bill 169, state Sen. Hannah-Beth Jackson, a Democrat, said California may be “the only state currently working to preserve these Title IX civil rights protections in state law.”

Ms. DeVos also opened a public-comment period on rule-making last month to replace the Obama administration’s guidance.

Her decision to rescind the 2014 Dear Colleague guidance allows schools to decide whether to replace the lower evidentiary standard on their campuses.

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