California’s Sexual Assault Law Will Hurt Black Kids

Sexual Assault Law

Gov. Jerry Brown of California is poised to sign a worrisome bill that will codify the Obama-era sexual assault guidelines. Those rules told colleges to toughen up on sexual assault allegations or risk losing federal dollars.

California’s law explicitly applies to children in public kindergarten, elementary and high schools. So a first grader could face dire consequences if found to have committed an act of “sexual violence,” which is broadly defined to include any “physical sexual acts perpetrated against a person” without their consent.

California lawmakers quickly passed the bill last week after Education Secretary Betsy DeVos announced on Sept. 7 that she will roll back the guidelines set forth by the Obama administration in 2011. Survivors of sexual assault and their advocates, including those in the California legislature, roundly denounced Ms. DeVos’s decision. But many others, including progressives and feminists who are no fans of the Trump administration, tentatively clapped their hands.

The harsh truth is that the Obama guidelines have led to bad outcomes. They required ill-trained and intimidated school administrators to use a preponderance-of-evidence standard to find the accused student responsible for sexual assault — that is, if the allegation is proved true by 50.01 percent. In case after case, young men were expelled on the basis of allegations that they were not allowed to challenge by seeing the evidence against them or cross-examining witnesses.

California’s bill requires schools to uphold a problematic standard and take “appropriate” action against elementary-school-age children, which can include suspension or expulsion.

California’s bill requires schools to uphold this problematic standard and take “appropriate” action against elementary-school-age children, which can include suspension or expulsion.

Put aside for a moment whether a 6-year-old is capable of forming the intent to commit a sexual assault when she plants kisses on an unenthusiastic classmate, or whether it makes sense to bring sexual assault charges against an eighth grader who hugs the girl he has a crush on but who does not reciprocate his feelings. Put aside for a moment whether school administrators should be branding children sexual assailants even if they are 49.99 percent sure the allegations are not true.

Let’s focus instead on what we already know: Heavy-handed disciplinary policies fall disproportionately on students of color. Because of the stereotypes associated with them, including the noxious but persistent trope that black males are inherently sexually predatory, black kids are presumed guilty.

Black students are more than three times as likely to be suspended than their white counterparts, according to a report by the Department of Education’s Office of Civil Rights. Sixteen percent of black students enrolled in K-12 schools were suspended from 2009 to 2012, but only 5 percent of white students were, the Civil Rights Project at U.C.L.A. found.

So alarming were these findings that the California legislature passed a law in 2014 that barred schools from suspending or expelling children in grades K-3 for “willful defiance.” But while rates for these punishments fell dramatically in California, the racial disparities did not, according to a 2017 report by the Brookings Institution.

Consider the Lodi Unified School District in California’s Central Valley, which enrolls more than 30,000 students. After a study showed it suspended African-American students for “willful defiance” at more than five times the rate of white students during the 2014-15 school year, it reached a settlement with the federal government requiring the school to stop punishing kids in a racially discriminatory manner.

The consequences of these harsh disciplinary policies are profound. Students who are temporarily or permanently kicked out of school are far more likely to end up in the criminal justice system, a track known as the school-to-prison pipeline. But when Dan Roth, a Berkeley-based criminal defense lawyer, testified before the California State Senate about the bill’s potential to have a racially disparate impact, Senator Hannah-Beth Jackson, who drafted the law, dismissed Mr. Roth’s points as “hyperbole.” Lawmakers similarly rejected Mr. Roth’s common-sense suggestion that the bill include a provision for data collection on its racial impact.

There may be better ways to respond to students’ bad behavior. Some California school districts have implemented methods like restorative justice, which brings together the victim and the offender, along with a larger group that includes teachers, counselors and parents, to address what happened and devise solutions to repair the harm and promote accountability. The Oakland Unified School District, where 40 percent of schools practice restorative justice, has seen suspension rates plummet in recent years.

California’s bill threatens to undo this fragile progress. It says nothing about restorative justice or mediation. In a state where black students are at higher risk of being suspended or expelled for disciplinary violations, there is no reason to believe the results would be any different when they are accused of “sexual violence” as the California law expansively defines it. Given our country’s shameful history of wrongfully convicting a staggering number of African-Americans for sex crimes, there is every reason to believe that the outcomes would be worse.

lara bazelonCalifornia has rightly resisted the Trump administration’s attempts to roll back protections for the environment and undocumented immigrants. But as a lawyer who sees the extraordinary racial discrimination in the criminal justice system, I believe that this flawed policy from the Obama administration is a legacy California should not pass on to its children. Governor Brown must scrap this bill.

Lara Bazelon
New York Times

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