The California State Senate is considering a bill that would increase mandatory sexual harassment training for California students. Assembly Bill (AB) 2683 would further strengthen the already unconstitutional definition of sexual harassment used in state colleges and universities, which could lead to an increase in the number of unfounded Claims of Title IX.
The California Education Code currently defines sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal, visual, or physical behavior of a sexual nature, committed by or in the course of professional or educational environment” that “has the purpose or effect of adversely impacting the individual’s work or academic performance, or creating an intimidating, hostile or offensive work or educational environment”.
AB 2683 would cement this broad definition by requiring most public and community colleges in California to “annually form [their] students about sexual violence and sexual harassment and covers certain topics, including, among other topics, the different rates at which students experience sexual harassment and sexual assault in the educational setting based on their race, sexual orientation, their disability, sex and gender identity, as specified. The bill would, beginning September 1, 2024 and annually thereafter, require students attending California community colleges to complete their annual education within 6 months of the start of the academic year. »
While harassment and sexual assault trainings are currently required at most California colleges, this new bill would expand the mandate to include community colleges, as well as the number of required topics the trainings must cover.
AB 2683 reflects the endless expansion of Title IX, the provision of federal law that requires universities that receive federal education funds to protect students from gender discrimination. If passed, the law will likely lead to more students feeling victimized, increase the number of complaints to Title IX officers, and make actual cases of unacceptable unlawful harassment harder to differentiate from the noise of petty complaints.
“If students learn that they have a right to be free from harassment writ large as is the case in California, it is almost certain that complaints will be filed for protected expression,” says Greg Gonzalez , legislative member of the Foundation for Individual Rights in Education (FIRE). He adds that “by requiring the state to educate students using overly broad definitions, the state is encouraging frivolous complaints that will divert resources from meritorious complaints.”
Alison Somin, a legal scholar at the Pacific Legal Foundation, notes that the bill could also increase poorly constructed anti-harassment trainings: “[i]It’s basically a state subsidy to the trainers and consultants who teach these courses and the companies that develop them,” says Somin. “The more the government subsidizes consultants and companies like this, the more ambitious they become in terms of recasting seemingly innocuous interactions as ‘microaggressions’ or the like.”
This bill would also strengthen a definition of sexual harassment that runs counter to the Supreme Court’s definition of harassment in a hostile peer environment, as set out in Davis v. Monroe County Board of Educationn (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 prevents the victim from accessing an opportunity or benefit. educative”.
Harassment codes like those in California are often much more restrictive than Davis requires. As FIRE notes in their Guide to freedom of expression 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 controversy is aimed at doing just that), and such speech is protected by the First Amendment. Protected expression is certainly not considered discriminatory harassment.”
Students need to know the true legal definition of harassment and know that their actions will be judged accordingly. Mandating more anti-harassment training with increasingly precise rules is unlikely to change student behavior, but it could make it harder for Title IX agents to zero in on the real bad offenders.
AB 2683 was referred to the Senate Education Committee on May 18.