Bill to enshrine Obama’s Title IX rules in Colorado fails after Republicans add more due process

‘Truthful’ requirement for accusers belatedly added

The status quo on campus sexual assault was preserved in Colorado earlier this month, when state lawmakers first chipped away at due process and then strengthened it in legislation that died when the legislative session ended.

The version that passed the Democrat-controlled House would have codified certain provisions of the Obama administration’s Title IX guidance, since rescinded by the Trump administration. Notable among them: a ban on attorneys actively defending students in sexual misconduct proceedings and a low evidence standard.

HB 18-1391 took on significant changes in the Republican-controlled Senate, adding several amendments with the aim of making cases more fair to accused students.

This upset sponsors, most of whom ignored repeated queries from The College Fix to talk about their plans for next session. Earlier, some had conspired to kill the bill should the Senate version reach a conference committee with the House.

Supporters of the Obama administration guidance have struggled to codify it even in progressive states such as California.

Democratic Gov. Jerry Brown (below) unexpectedly vetoed a bill last fall because of concerns about due process, particularly for students of color. Three years earlier he signed legislation codifying the “affirmative consent” standard for sex and the “preponderance” standard for evidence in campus adjudications.

Accusers don’t need advisors: They already have the ‘Title IX bureaucracy’

The original bill’s provision banning “advisors” from speaking “on behalf” of either party drew scrutiny from a criminal defense attorney, Scott Greenfield, who said it would functionally tilt the playing field toward accusers.

In a blog post, Greenfield said the House-approved bill creates a false “appearance of fairness” for both parties because they’re provided “the same opportunities” to have an advisor “present during any part of the proceeding.”

“The complainant [accuser] doesn’t prosecute the accusation, but is merely a witness,” Greenfield wrote. “The school handles the prosecution. Indeed, the complainant isn’t obliged to appear, no less be required to provide first-hand testimony nor be cross-examined.”

The accuser doesn’t even need an advisor because she “enjoys a Title IX bureaucracy, from investigators to administrators, to present her allegations,” he continued.

Accused students, in contrast, are “facing devastating consequences” yet are “wholly unequipped to understand the process itself” and won’t be able defend themselves against the accusations. The accused student “doesn’t know what evidence is, no less how to gather it,” Greenfield said.

He scoffed at a claim by Raana Simmons of the Colorado Coalition Against Sexual Assault, who told CBS Denver that letting attorneys participate “would turn investigations from a truth-finding process to a who has the most money process.”

First, the bill doesn’t prevent students from hiring attorneys, and second, it would make all accused students equal for the worse, Greenfield wrote:

Does that mean the poor student is put in a significantly disadvantaged position because he can’t afford a lawyer? You bet. But is the solution to a poor student’s disadvantage to impose the same disadvantage on all accused?

By the time the House-approved bill was amended and passed by the Senate Judiciary Committee, it gave both parties the option to bring an attorney “who may participate at all stages of the investigation, adjudicatory hearing, and appellate processes” if the penalties include expulsion or suspension for at least one semester.

It was one of many changes that would alarm the House sponsors.

Higher standard required if a single person makes the decision

The original bill required colleges to formalize the preponderance standard of evidence, which judges students responsible if it’s “more likely than not” they committed the alleged offense.

The version amended in Senate Judiciary sets out different evidence standards based on the severity of the potential punishment.

Colleges can choose between preponderance and a second, higher standard known as “clear and convincing” for charges with milder sanctions. This option mirrored the interim Title IX guidance issued by the Trump administration last fall.

But when a student faces expulsion or suspension for a semester or more, the higher standard must be used “if the fact finding is performed by a single person,” and preponderance used “if the fact finder is a panel.”

It also mandates that colleges use different “individuals or panels” for each stage of a proceeding when higher penalties are at stake, such that they “shall not be invested in the outcome of a previous stage of the process.”

The Senate bill also shielded witnesses, accusers and “reporting” parties – accusations brought by a third party – from disciplinary action only for their “truthful” participation in the investigation.

The original bill protected participants from facing discipline under any conditions, even if they were judged to have lied or if they violated campus alcohol or drug rules.

Stop Abusive and Violent Environments, a national group that promotes due process in campus adjudications, told The Fix it hoped the amended bill would “increase the reliability of campus findings in Colorado.”

It should be a model for other state legislatures “to ensure campus sexual assault legislation is comprehensive,” bearing in mind “the need for respectful treatment of complainants and the need for fair adjudication procedures,” Deputy Executive Director Chris Perry wrote in an email.

He said the House’s failure to include “sufficient due process protections” was the reason the bill was “significantly amended by Republicans in the Senate, resulting in the bill’s indefinite postponement.”

SAVE appreciates amended provisions that prohibit “conflicts of interest for investigators and panelists,” allow “active participation of counsel” for serious sanctions, and impose the higher evidence standard for “single investigator/adjudicator” proceedings.

BREAKING: Senate Appropriates defeated bipartisan bill to address sexual assault on university campuses. Yesterday Senators Cooke and Gardner said they were OK with the bill after the GOP made changes. #coleg #copolitics #cogov

— Bente Birkeland (@BenteBirkeland) May 1, 2018

Too little work on ‘consensus language’

Before the amended bill was postponed “indefinitely” in the Senate Appropriations Committee, sponsors and supporters bad-mouthed the changes in Senate Judiciary, according to The Colorado Independent.

“It’s bad enough to have people not believe you, but then to know that you would face disciplinary consequence for not being believed— it’s just adding salt into a deep, gaping wound,” said Jessica Higgins, who claims she was raped at Colorado College.

Democratic State Rep. Faith Winter said victims might feel uncomfortable speaking out because of the Senate changes. “Why would women come forward knowing that for accountability, they would have to go through a higher standard?” she said.

A Republican sponsor who opposed amendments, Sen. Beth Humenik, said the amended version would create the “impression that this is going to be like a court hearing.”

Humenik told The Fix she felt determined to be a sponsor after hearing from parents who were concerned about their kids’ safety at college. She believes “procedure and safety” aren’t being met on campus.

“Parents also want to know that if and when a sexual assault does occur, that there is a consistent best practice guideline that all of Colorado’s college campuses have in place that is followed,” Humenik wrote in an email.

Even though some colleges “already have good processes and procedures in place … they are not consistently the same from campus to campus,” she continued. Parents testified for “better outcomes for the victims as well as more transparent penalties for those that commit a sexual assault crime.”

Humenik said sponsors worked on the failed bill for more than eight months. She believes Democratic House Speaker Crisanta Duran waited “too long until the end of the session to introduce it,” in addition to the lack of “work that was needed to agree on consensus language.”

Humenik said sponsors plan to bring the bill back at the start of the next session and believe it will be successful next time.

House Speaker Duran did not respond to Fix phone calls and emails last week on why the bill is needed, why it failed and plans going forward for supporters of the original House bill. Neither did Democratic Rep. Winter nor Sen. Andy Kerr, the only male sponsor.

Campus Safety Will Remain a Top Priority for Martinez Humenik: https://t.co/pFdaVVdNRJ #copolitics #coleg #tcot #gop @SenatorBethCO24 pic.twitter.com/rKkOBN41Tb

— Colorado Senate Republicans (@ColoSenGOP) May 2, 2018