Families Advocating for Campus Equality

As a long-time California resident and attorney it is with deep disappointment and mounting
frustration that I express my concerns regarding the California State Senate's April 3rd Education
committee hearing on a campus "sex equity" bill known as SB-493.

I have two daughters who have attended California universities. As Co President of the nonprofit
Families Advocating for Campus Equality (FACE),[1] I help provide support to students wrongfully
suspended or expelled from their college and university campuses following flawed Title IX
disciplinary proceedings, and advocate for equality in these processes.

These students have been denied such basic rights as notice of the charges against
them, access to evidence, the ability to present evidence or question their accusers, and
an experienced advocate to assist them in mounting and presenting their defense.

Despite common misconceptions, FACE does not support the denial of victim rights or protections,
nor do we believe that most allegations of sexual misconduct on our campuses are false. It is
important to us that our daughters and other students be protected from sexual violence and
respected if they report a sexual assault. Though the students FACE supports are mostly male, FACE
also has welcomed wrongfully accused female and many LGBTQ students.

However, we are also convinced that protecting victims and providing fair,
transparent disciplinary processes are not mutually exclusive goals.

I know first hand that we can find a way forward that protects all parties in Title IX disciplinary
proceedings because I personally served on an American Bar Association Criminal Justice Section Task
Force whose members reached a consensus on appropriate Title IX procedures, even though they
included victims’ advocates and campus administrators as well as defense-oriented attorneys.[2]

It is with this background that FACE submitted its opposition to SB-493, entitled “FACE- SB-493
Campus Sexual Misconduct - We Can Do Better” (Opposition),[3] hoping to work with Senator Jackson
to create a “better,” more equitable bill. Unfortunately, despite having submitted our Opposition
sufficiently in advance of the April 3rd hearing (as instructed on SB-493's website), distributed the
Opposition in person throughout the Senate on March 20th, and emailed it on March 31st to every
senator in the California legislature, we were astonished and dismayed to learn that the Education
committee’s bill analysis stated SB-493 had received "no opposition."
FACE SB-493: We Can Do Better 2

It is very important that FACE’s Opposition be recognized. Most Californians would be stunned to
learn how Title IX disciplinary processes are conducted on many California campuses. Those
who have had this unfortunate experience have discovered what others cannot fathom, that
such Kafkaesque "trials" are allowed in America, ostensibly land of the free and fair.

My first thought when told about these proceedings was, "this is America - they can't do that!"

Perhaps most concerning, Senator Jackson's bill ignores multiple California appellate and superior
courts that recently have found both public and private California schools' Title IX procedures
“deeply flawed,” that they create “an unacceptable risk of bias,” have completely “obliterated” "due
process," operate like a “kangaroo court,” have even “failed the alleged victim,” and “improperly
permitted” evaluations based on the same "trauma-informed’ approach” Senator Jackson's SB-493 seeks
to have schools implement.[4]

In fact, late last year California’s Second District Court of Appeal criticized officials at UC Santa
Barbara, finding it:

ironic that an institution of higher learning, where American history and government
are taught, should stray so far from the principles that underlie our democracy.[5]

Since Governor Brown's veto of SB-169, lawsuits nationwide filed by accused students against their
colleges and universities have multiplied to over 400, and the trajectory shows courts increasingly
finding in accused students’ favor, with decisions against schools nearing 140.[6] More than 130
schools have settled these lawsuits, often after courts entered decisions against them.[7]
California courts alone have awarded hundreds of thousands of dollars to accused students after
finding their schools subjected them to processes that were unfair and sometimes discriminatory.[8]

Denied the protections which normally accompany the use of the required (under California law)
preponderance standard of evidence, and despite the fact that up to 30% of campus disciplinary
decisions are likely wrong,[9] the transcripts of “responsible” students are permanently imprinted with
a disciplinary notation; for them there is no “ban the box,” even though they’ve been found "more
likely than not" “responsible” for conduct that, if it occurred, most often is not criminal, in a “process”
conducted by administrators and professors who euphemistically call the experience “educational” (a
characterization at least one court has found "not credible.")

It is disconcerting that, although Senator Jackson was fully aware of opposition against SB-493,
the Senator refused to acknowledge either its existence or legitimacy at the April 3rd hearing.

Not only had FACE informed Senator Jackson’s own staff member of its Opposition to SB-493 during
an in-person meeting on March 20th, the Senator's knowledge of the content of our Opposition was
further demonstrated by the fact that during the hearing Jackson both raised and attempted to
undermine some of our key concerns. At the same time the Senator disrespectfully denigrated those
at the hearing who opposed her bill, referring to them as "just some moms of accused students."
FACE SB-493: We Can Do Better 3

Considering all perspectives on proposed legislation is the very foundation of how our
government was intended to create judicious, equitable, nondiscriminatory laws.

At the April 3rd hearing Senator Jackson also insulted FACE by misrepresenting to the committee
that our opposition to SB-493 had “lied” when it reported Jackson did not pay attention to the
recommendations made by Governor Brown’s Post SB-169 working group report.[10]

Either Jackson has not read the Post SB-169 working group report -- or this was another lie.

For example, SB-493 would mandate that California schools adopt “trauma-informed” policies ---
which are appropriate to ensure victims are not retraumatized during interviews. But SB-493 would
also require school officials to be trained in trauma-informed hearings, directly contradicting the
Post SB-169 working group report which states that trauma-informed policies are “incompatible with
due process protections,” and should generally be limited to interviewing complainants.[11]

SB-493 also by default permits schools to use a single investigator process, a method commonly
used by California schools that puts a single campus official in charge of both investigating and
adjudicating Title IX violations. However, the Post SB-169 working group report found this method
“rarely meets due process requirements,”[12] and the ABA task Force considered it “inherently biased.”

Finally, SB-493 denies “any form of direct, live cross-examination from the other party or the other
party’s advisor," even though the Post SB-169 working group report requires a live hearing allowing
cross-examination by a party’s intermediary whenever facts are disputed.[13] Our own California
appellate courts agree, and have interpreted CCP§1094.5(b)’s “fair hearing” provision to require a
live hearing and cross-examination when credibility is at issue and facts are in dispute.[14]

Though I was in D.C. and unable to attend the April 3rd hearing, I was informed that those who
sought to testify were treated rudely, interrupted, and denied the full four minutes they had been
allotted. At the same time, at least one supporter of Senator Jackson’s bill spoke for over ten
minutes. Other families who sought to provide testimony on how their students had been denied
basic rights by California schools were told they could come forward and state their names only.

These Californians reported that this caused them overwhelming frustration, and compared their
experience at the hearing to just another one-sided and result-driven Title IX hearing.

Following the April 3rd hearing a FACE family member spent nearly three days roaming the Capitol
to learn how to submit an opposition paper the Education committee would acknowledge. The
objections he received were that our submission had not been "signed" (though my name and
contact information was clearly provided), they thought the document was not a "letter" and
opposition must be submitted in the form of a "letter," and, unlike other Senate committees and
online instructions that ask for opposition to be posted on a bill's website, the Education committee
requires opposition to be submitted via its website, the link for which was difficult to locate.
FACE SB-493: We Can Do Better 4

Even after submitting our signed opposition "letter" by hand, we were told FACE’s Opposition would
never be added as opposition on the eleven-page bill analysis because our submission was previously
submitted "incomplete," presumably meaning it was not signed.

The legislative process should not be treated like a game of hide-and-seek with changing rules that
appear designed to obstruct California citizens’ rights to provide input on proposed laws.

Having personally spent significant time in both D.C. and Sacramento meeting with legislators on
these issues, I have never before encountered such a corruption of our system of representation.
The bottom line is that Senator Jackson knew full well that FACE - and many other interested parties
throughout California - had mailed or emailed their California senators or submitted their comments
on SB-493's website expressing grave concerns about the bill.

Finally, similar to SB-169, Jackson’s SB-493 neglects to acknowledge or address the reality that
students most tragically affected by these one-sided proceedings are the underserved, minorities,
first-generation, and scholarship students, most of whom have worked diligently to rise above the
circumstances into which they were born. These young students - often just 18 or 19 years old - are
blindsided by experienced campus attorneys and administrators who effectively act as their
prosecutor, compiling evidence and testimony only to establish their guilt, while denying them an
equivalently experienced advocate or attorney their families do not have the resources to retain.

Imagine constructing your own defense at that age. The consequences of this David v. Goliath farce
are innocent students left with no opportunity to complete their education, loss of a promised
career, and significant loans to pay for a diploma they will never receive.

No wonder an African American mother told me, "to us, it's just more of the same."

Perhaps even more tragically, the foundation on which these students have relied since childhood,
the promise of a better future and their belief in the American system of justice, is destroyed. Many
attempt suicide, some successfully, many, many are hospitalized, and most suffer significant life-
long trauma, PTSD and anxiety. Even students found not responsible have been traumatized by
these one-sided prosecutorial-like proceedings.

When will this stop?

When will our representatives remove their political hats and, as a human beings, open their eyes to see
the destruction of promising young, innocent lives, not only in California but across this entire country?

Cynthia P. Garrett Co President

Families Advocating for Campus Equality (FACE)
CPGarrett@FaceCampusEquality.org
619-823-5378
FACE SB-493: We Can Do Better 5

NOTES

[1] FACE website: https://www.facecampusequality.org.

[2] American Bar Association (ABA) Criminal Justice Section Task Force was comprised of various stakeholders including victims
advocates and campus administrators, and yet was able to reach a consensus. ABA Task Force, Report on College Due Process Rights
and Victim Protections: Recommendations for Colleges and Universities in Resolving Allegations of Sexual Misconduct (June 1,
2017), https://www.americanbar.org/content/dam/aba/publications/criminaljustice/2017/ABA-Due-Process-Task-Force-
Recommendationsand-Report.authcheckdam.pdf.
[3] FACE- SB-493 Campus Sexual Misconduct- We Can Do Better” (FACE Opposition,
https://www.dropbox.com/s/xofexksbho9mx5g/FACE-%20SB-493%20CAMPUS%20SEXUAL%20MISCONDUCT-
%20WE%20CAN%20DO%20BETTER-signed.pdf?dl=0.
[4] KC Johnson, “CA Appeals Court: “Serious, Serious Questions” on UCSB Case,” Academic Wonderland (Jul. 18, 2018),
https://academicwonderland.com/2018/07/18/likely-due-process-victory-in-ca-appeals-court/; KC Johnson, “At UCSD, ‘Where Is the
Kangaroo?’” Academic Wonderland (Nov. 5, 2016) https://academicwonderland.com/2016/11/05/at-ucsd-where-is-the-kangaroo/; Doe
v. Kegan Alee (USC), No. BS157112 (LA Sup. Ct. No. B283406) (2nd App. Dist., Div. 4, Jan. 4, 2019), p. 3, quoting Doe v. Regents of Univ.
of Cal. (UCSD), 5 Cal. App. 5th 1055, 1084 (4th App. Dist., Div. 1, 2016); Doe v. Claremont McKenna Coll., 25 Cal.App.5th 1055, 1070 (2nd
Appl. Dist., Div. 1, 2018) review den. Nov. 20, 2018. The court relied on the 6th Circuit Court of Appeal’s 2017 decision in Doe v. Univ.
of Cincinnati, (872 F.3d 393, 401-402): "`[t]he ability to cross-examine is most critical when the issue is the credibility of the accuser” ..
and “compelling a witness `to stand face to face with the [fact-finder] in order that it may look at him, and judge by his demeanor.’”
[5] Doe v. Regents of University of California (UCSB), 28 Cal. App. 5th 44, 61 (Cal. App. 2d Dist. October 9, 2018).
[6] Lawsuit Database, Title IX for All, http://www.titleixforall.com; KC Johnson and Stuart Taylor, Jr., Innocence Presumed, The Weekly
Standard (Sept. 6, 2018), https://www.weeklystandard.com/k-c-johnson/title-ix-betsy-devos-seeks-to-restore-campus-due-process.
[7] Lawsuit Database, Title IX for All, http://www.titleixforall.com.
[8] Greg Piper, “Judge forces college that railroaded accused student to pay his attorney’s fees,” The College Fix (Mar. 20,
2018), https://www.thecollegefix.com/judge-forces-college-that-railroaded-accused-student-to-pay-his-attorneys-fees/ ($250,000);
Kate Sequeira, “USC ordered to pay attorney fees after Title IX investigation was deemed unfair,” Daily Trojan (July 18,
2018), https://dailytrojan.com/2018/07/18/usc-ordered-to-pay-attorney-fees-after-title-ix-investigation-was-deemed-
unfair/ ($100,000); Doe v. Ainsley Cary (USC), No. BS163736, Notice of Ruling and Statement of Decision on Petition for Writ of
Administrative Mandate (Los Angeles Sup. Ct., Dec. 17, 2017) p. 12 of court-filed opinion (“disingenuous to argue that USC's review
process prevents bias” when Title IX official “expressed vitriol against [the accused]” and was to advise decision-makers); Doe v.
Regents of Univ. of Cal. (UCSB), RG16843940, Order Awarding Attorneys’ Fees (Alameda Sup. Ct., Apr. 18, 2018) ($30,000); Doe v.
Rivera (SDSU) No: 37-2015-00029558, Minute Order Granting Petition for Writ of Mandate. (S.D. Sup. Ct., Feb. 1, 2017) pp. 1, 4, 5; John
Doe v Timothy White, Chancellor of the Cal. State Univ. (Cal Poly) No. BS168476, Notice of Order Granting Petition for Writ of Mandate (LA
Sup. Ct., Jul. 12, 2018), pp. 1-2 and court’s attached Decision at p. 18; John Doe v Donald Dudley, et al. (UC DAVIS) No. PT 15-1253 (Yolo
Sup. Ct., Sept. 22, 2015.) See also, Title IX for All, http://boysmeneducation.com/wp-content/uploads/2015/11/Press-Release-
Werksman-Jackson-Hathaway-Quinn-University-of-California-Davis-case.pdf; Doe v. Regents of Univ. of Cal. (UCSB) No.
17CV03053, Notice of Order Finding Regents of University of California in Contempt of the Court’s Judgment Granting Petition for
Administrative Writ of Mandate (S.B. Sup. Ct. Aug. 10, 2018) and in the same case, Notice of Opinion and Judgment Granting Petition for
Writ of Administrative Mandate (S.B. Sup. Ct., Dec. 22, 2017).
[9] John Villasenor, “A probabilistic framework for modelling false Title IX ‘convictions’ under the preponderance of the evidence
standard,” Law, Probability and Risk, Volume 15, Issue 4, December 2016, pp. 223- 237, https://doi.org/10.1093/lpr/mgw006.
[10] Recommendations from Post SB 169 Working Group (Post SB-169 working group report) (Nov. 14, 2018)
http://www.ivc.edu/policies/titleix/Documents/Recommendations-from-Post-SB-169-Working-Group.pdf. This Report relied heavily
on recommendations of the ABA Task Force; cited in note 2. For similar recommendations made by the American College of Trial
Lawyers, see their White Paper on Campus Sexual Assault Investigations (Mar. 2017)
http://files.constantcontact.com/dbc236ec501/9b906384-177d-42df-9e1a-bcb6f62d9340.pdf. For a more detailed discussion of the
post Post SB-169 SB-169 working group report, see pages 1-2 of the FACE Opposition.
[11] Post SB-169 working group report, p. 2.
[12] Post SB-169 working group report, p. 2.
[13] Doe v. Regents of Univ. of Ca. (UCSB), 28 Cal. App. 5th 44, 61 (2018); Doe v. Claremont McKenna Coll. (CMC), 25 Cal.App.5th 1055,
1070 (2018); Doe v. Kegan Allee (USC), No. B283406 *pp. 1-2 (2nd Appl. Dist., Div. 4, Jan. 4, 2019).
[14] Post SB-169 working group report, pp. 2-3.