The California State Senate is considering a bill that would increase mandatory anti-sexual harassment training for California college students. Assembly bill (A.B.) 2683 would further entrench the already unconstitutional definition of sexual harassment used in state colleges and universities, and which might lead to an increase in unfounded Title IX claims.
California's education code currently defines sexual harassment as "unwelcome sexual advances, requests for sexual favors, and other verbal, visual, or physical conduct of a sexual nature, made by someone from or in the work or educational setting" that "has the purpose or effect of having a negative impact upon the individual's work or academic performance, or of creating an intimidating, hostile, or offensive work or educational environment."
A.B. 2683 would cement this broad definition by mandating most California public four-year and community colleges to "annually train [their] students on sexual violence and sexual harassment and cover certain topics, including, among other topics, the differing rates at which students experience sexual harassment and sexual assault in the educational setting based on their race, sexual orientation, disability, gender, and gender identity, as specified. The bill would, beginning September 1, 2024, and each year thereafter, require students attending the California Community Colleges to complete their annual training within 6 months of the beginning of the academic year."
While trainings on sexual harassment and assault are currently required at most California colleges, this new bill would expand the mandate to include community colleges, as well as expand the number of required topics the trainings must cover.
A.B. 2683 reflects the endless expansion of Title IX, the provision in federal law that requires universities which receive federal education dollars to protect students from sex discrimination. If passed, the law will likely lead more students to feel victimized, increase the number of complaints to Title IX officers, and make real instances of unacceptable, illegal harassment harder to differentiate from the noise of petty complaints.
"If students are taught they have the right to be free from harassment as broadly defined as is the case in California, it is all but certain that complaints will be filed over expression that is protected," says Greg Gonzalez, a legislative fellow with the Foundation for Individual Rights in Education (FIRE). He adds that "by requiring the state to train students using overbroad definitions, the state is encouraging frivolous complaints that will divert resources from meritorious complaints."
Alison Somin, a legal fellow with Pacific Legal Foundation, notes that the bill may also increase poorly constructed anti-harassment trainings: "[i]t's essentially a state subsidy to the trainers and consultants who teach these courses and the firms that develop them," Somin says. "The more government subsidizes consultants and firms like this, the more ambitious they get in terms of recasting seemingly innocuous interactions as 'microaggressions' or the like."
This bill would also further cement a definition of sexual harrasment which is at odds with the Supreme Court's definition of peer-on-peer hostile environment harassment, as established in Davis v. Monroe County Board of Education (1999). In that case, the Supreme Court determined that for schools to be constitutionally obligated to intervene, the harassment must be "so severe, pervasive, and objectively offensive that it effectively bars the victim's access to an educational opportunity or benefit."
Harassment codes like California's are often far more restrictive than Davis requires. As FIRE notes in their Guide to Free Speech on Camus, "Harassment codes often prohibit "verbal conduct" or "verbal behavior" that is demeaning, upsetting, or offensive to members of protected groups. In a free society, however, speech is permitted to demean, upset, and offend (indeed, much honest criticism and polemic aims to do precisely that), and such speech is protected by the First Amendment. Protected speech certainly does not qualify as discriminatory harassment."
College students need to know the actual legal definition of harassment, and to know that their actions will be judged in accordance with it. Mandating more anti-harassment training with increasingly specific rules is unlikely to change student behavior, but it might make it harder to Title IX officers to focus on the truly bad offenders.
A.B. 2683 was referred to the Senate education committee on May 18.
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