A Very Jerry Brown Defense of Due Process

For opponents of the former guidance—and lovers of the rule of law—Monday’s veto came as a welcome relief. For those who know Gov. Brown, his reluctance to codify rescinded federal guidance was hardly a surprise. While he did sign a 2014 bill requiring California schools to teach “affirmative consent,” restraining an activistic legislature is more Brown’s historic style. “He has not agreed with all of the anti-Trump bills the legislature has done this year,” notes Chris Micheli, a seasoned Sacramento lobbyist. Brown, who recently vetoed a bill to forbid smoking on public beaches, “generally does not like new bills on crime,” he added.

“This veto reflects his governing style because he respects individual rights,” says Micheli, who pins the governor’s opposition on the due process concerns common to Title IX dissenters. Indeed, Brown’s statement seems almost to crib DeVos’s cracker-jack speech writing staff: “Thoughtful legal minds have increasingly questioned whether federal and state actions to prevent and redress sexual harassment and assault—well-intentioned as they are—have also unintentionally resulted in some colleges’ failure to uphold due process for accused students,” he wrote.

Brown’s decision to await forthcoming replacement rules from the Department of Education, while not an outright rejection of the Obama administration’s Title IX regime, diverges from the Democratic party’s progressive/authoritarian wing, most notably 32 U.S. senators from Kirsten Gillibrand to Bernie Sanders urging the old rules’ reinstatement.

Sacramento started scrambling to codify the controversial rules when Betsy DeVos announced she would rescind the 2011 “Dear Colleague Letter” and subsequent Obama administration directives in September. Under SB 169, the Obama-era guidance would still apply in the Golden State.

University of California chancellor Janet Napolitano—who criticized the Title IX regime as recently as 2015—endorsed the legislation in a letter that referred to “unwelcome changes in federal guidance” and pledged unfaltering commitment to the spirit of the rescinded rules. (She does not support tightening oversight of the UC system in areas other than sexual assault adjudication, as the San Diego Union-Tribune notes this legislative season.)

While Napolitano has morphed from a scholarly Title IX skeptic to a “Resistance”-ready activist on the issue, the mandatory model for on-campus sexual misconduct investigation has faced mounting legal scrutiny from all sides. Brown’s veto belongs to this promising trend, says Andrew Miltenberg, a prominent attorney for accused students. “I think he played it down the middle and will look instead to follow the DOE’s ultimate guidance,” he tells me. But for those who’d come close to giving up on pragmatic reform, a liberal democrat playing it down-the-middle on Title IX is more momentous than it may sound. “To the extent that he did not merely rubber stamp the legislature’s attempt to solidify Obama-era Title IX rules for California,” Miltenberg adds, “it is part of a step toward a rational centrist shift among legally literate leaders on this issue.”

With the department’s recent rescission came a set of interim guidelines to direct campus procedures in the meantime. These guidelines—placeholder rules while we wait, not long now, for the Department’s proposed replacement guidance to come before public notice and comment—are a taste of what’s to come, in that they conservatively corrected the most egregious injustices.

With formal replacement rules still to be determined, leading Title IX consultant Brett Sokolow points out, we see the governor merely choosing to stay the status quo. “It’s just a pragmatic decision not to set California on a collision course with whatever OCR may do in issuing guidance by 2019 or so,” says. He credits Brown with the foresight not to pit California against the federal government: “Why set up a potential conflict that can be avoided by waiting?”

But the opposition isn’t finished, he adds. “You can expect to see this raised in California again, perhaps with greater momentum.” And it’s not just the opposition weighing its options. “The Governor left the door open,” statehouse whisperer Chris Micheli also noted. “He will convene a working group, and he wants to better understand the laws and procedures in effect at the state and federal levels and how they interact.” Brown’s veto letter to the legislature outlines his intention to study what’s at stake. It’s a cautious, fair-minded answer to an often emotionally-clouded problem—an answer for which Cynthia Garrett, a California attorney who advocates for accused students, admits, “I was not hopeful.”

Brown’s veto is cause for cautious optimism, she says, after an uphill campaign against SB 169. “For a liberal governor of one of the most liberal states in the U.S. to veto a bill attempting to codify Obama-era Title IX sexual misconduct guidance indicates a shift in public perception of the dominant narrative that it is necessary to protect women from sexual offenses at all costs”—a narrative that many thought would never waver. Well-versed in the inconvertible bias against her clients, Garrett knew better than to expect that—if only for the time being—fairness would prevail in California, of all palces. She was pleasantly surprised.