May 7, 2019

VIA E-MAIL SUBMISSION

The Hon. Anthony Portantino

Chair, Senate Appropriation’s Committee
California Senate
State Capitol Room 3086
Sacramento, CA 95814

RE: Position Letter on Proposed SB-493’s Current Negative Fiscal Impact.

Dear Senator Portantino and Honorable Members of the Appropriation’s Committee:

California leads the United State’s discussion about sexual hostility protections
for men and women studying in a college or university who may become complainants of,
or respondents to, charges of sexual misconduct. Proposed SB-493 is an important
phrase in that discussion. Yet two issues in SB-493 require this Committee’s careful
attention; particularly if the proposed SB-493 seeks to comply with the Appropriation’s
Committee mandate to review a bill’s fiscal impact. In its current state SB-493 is a
complete waste of the California taxpayer’s dollar. In its present form, without due
process and adopting illusory numbers, every dollar spent funding this bill is not
only a wasted dollar but actually a dollar that triggers the need for further dollars.

First, the provision that the panelists decide to ask and then ask cross-exam questions
creates a fatal due process flaw to the entire bill and thus results in waste of the taxpayer
monies that funded it. In addition, this flaw exposes the panelist, the school, the
respondent, and the complainant, to further litigation and the related cost which yield a
negative fiscal impact. That provision, at proposed section 66281.8 (b)(4)(J)(vii),
currently states that the parties “shall be afforded” the right “[t]o not be subjected to any
form of direct, live cross-examination from the other party or the other party’s advisor.”
The provision should be re-drafted to provide for lawyer-led cross examination.

Second, the proposed citation to inflammatory and methodologically flawed surveys

trivializes the bill’s intent, and distorts the fiscal impact of SB-493, as it normalizes the
use of an illusory rate of rape in the United States. That language, at proposed SB-493
section 1(d), currently states that “According to research published by the American
Association of University Women, during college, 62 percent of women and 61 percent of
men experience sexual harassment. The Association of American Universities (AAU)
survey of students shows that more than 1 in 5 women and nearly 1 in 18 men are
sexually assaulted in college.” The language should be replaced with the impartial
 The Hon. Anthony Portantino
May 7, 2019
Page 2

statistics from The Bureau of Justice Statistics’ National Crime Victimization

Survey which reports the real rate of sexual assault: 6.1 per 1000 female students.

A. There is No Due Process Without Attorney-led Cross Examination. And

Without Due Process the Fiscal Impact of SB-493 Becomes Negative.

The panel-led cross-examination proposed in SB-493 is a Title IX discrimination

minefield with two levels of negative fiscal impact. First, because with panel-led cross
any respondent can and will sue; the school system becomes liable for legal costs and
ensuing damages. Respondents routinely sue—particularly state schools—reasonably
claiming that they see anti-male discriminatory bias as a reason for why, for example, the
panelist chose to not ask a cross-exam question of the female complainant, or altered the
language of the cross-exam question for the complainant. Thus, when the panel
handles cross, it automatically violates Title IX which increases risks, costs, and
turns the fiscal impact of SB-493 negative. Second, Title IX protects both respondents
and complainants. Thus, if the panelist poses the respondent’s cross to the complainant
and she perceives it as harsh or re-traumatizing she too will sue alleging not just
“deliberate indifference” to her trauma, but, in some situations, even slander “per se.”

Only attorney-led cross examination solves this dilemma and provides a net zero
fiscal impact. This Committee must carefully assess the legal fact that panel-led cross
examination does not deliver the process due to complainants and respondents.
Establishing that fact will allow the Committee to find that, in its current form, the fiscal
impact of SB-493 inescapably wastes taxpayer money. California’s public education
systems must provide a sexual hostility free environment for everyone—indeed the stated
goal of Title IX. But SB-493’s present attempt to deliver on this promise is a fiscal
negative that can only become, at best, a net-zero proposition with the guarantee of
attorney-led cross. Otherwise, either party sues the school claiming the panel
discriminated against either one for lack of due process and gender based discrimination.

Further, consider the negative fiscal impact of race and the current SB-943.
The proposed funding for a panel-led cross examination structure has an unlimited
potential to have a negative fiscal impact for every single one of California’s public
education systems because the complainant or the respondent can sue for race-based
animus if there is a racial disparity between the parties. Given that California is a racial
diversity paradise, so are its public higher education systems. This disparity will occur
over and over again. Thus, there is a significant risk of increased costs when SB-943
tells the panel to handle cross examination and the respondent is a racial or national
origin minority. Title VI forbids panelists from engaging in race or national origin
based discrimination. Thus, when a white panelist refuses to ask of a white complainant
the cross-examination posed by a respondent of color, that man can sue the school under
 The Hon. Anthony Portantino
May 7, 2019
Page 3

Title VI. Potentially, complainants of color may also want to sue their schools arguing
that the white panelist gave special treatment to the white respondent and ignored the
questions she propounded. As a result, race and national origin objections to panel-
handled cross-examination increase costs. Race objections to the panel’s cross frustrate
due process and exponentially risk turning the fiscal impact of SB-493 into a negative.

Lawyer-led cross examination is optimal because it guarantees each party’s due

process, it lowers the incidence of claims that the panel discriminated against any party
based on the party’s gender or race and, importantly, it safeguards the dignity of the
proceedings for two reasons. First, every lawyer who handles cross is subject to rules of
ethics and can not badger a witness. Second, legal scholarship proves that badgering
does not work. Thus, it is vastly more reasonable to expect better outcomes, which
reduce liability as well as costs, using lawyers instead of panels for cross. Lawyers turn
the current fiscal-negative status of SB-493 into a fiscal neutral. Imagine that!

B. California’s Statutory Language Should not Adopt Illusory Sexual

Assault Surveys that Exaggerate Sexual Hostility and Magnify Costs.

No one in their right mind doubts the horrors of experiencing sexual assault at any
time. Similarly, no one in their right mind denies that even those clearly guilty of sexual
assault deserve due process. If anything, the United States criminal system guarantees to
those persons the highest levels of due process. The current call from student-activists in
campuses all across the United States for adoption of “restorative justice practices” in
sexual misconduct matters enshrines these very views. In addition, this committee’s
appropriations gravamen for SB-493 requires predictable, optimal, and reasonable costs
for all involved. However, fair, unbiased data must be used for all of this effort to
pay fruit, and for the fiscal impact of this bill to be at least neutral. Unfortunately,
proposed SB-493 states, as a finding of the California Legislature, that over 60% of
college students experience sexual harassment. Sadly, the surveys that sourced that
language are everything but fair or unbiased. As a result their use contributes to the
current fiscal negative impact of SB-493. To be clear, if SB-493 provides for due
process via attorney-led cross, and fairly assesses the number of students at risk,
namely 6.1 per 1000, then its fiscal impact is a positive.

Scholarly critique of the inflammatory numbers currently used in SB-493

identified fatal flaws in the underlying methodology of these surveys because they used
anonymous questionnaires, which means they do not study a representative sample, and
are thus not statistically viable. What these surveys do is create an illusory perception
that because the horrid experience of sexual assault has been ignored, in such exaggerated
numbers, for so long a time, the compensation to its victims should be even higher.
 The Hon. Anthony Portantino
May 7, 2019
Page 4

Clearly, no amount of money ever will compensate a victim of rape. But fiscally
speaking, when the public’s perception of the school environment becomes illusory and
equivalent to the rate of rape in countries were rape is used as a weapon of war, then the
amount of damages that the public awards grows exponentially and emotionally because
they have no basis in reality. Thus, using and incorporating these flawed surveys as a
reason for passing SB-493 normalizes that very inflamed emotion in the public’s
perception adding to the negative fiscal impact of this bill. To be clear, one rape is one
rape too many. But no generally accepted statistical methodology supports the
survey opinion that over 60% of students experience hostility that violates Title IX.

Thanks for your kind attention.

/s/
Raul Jauregui
Office of Raul Jauregui
720 Arch Street, No. 861
Philadelphia, PA 19107
(215) 559-9285
Raul.Jauregui@gmail.com
About Me:

I grew up Latino in Downey, Los Angeles County, California, and attended

California public schools all of my life, a process that yielded a J.D. from UCLA where I
served on the UCLA Law Review. Inevitably, and proudly, I’m a life-long Democrat.
And while not a single Title IX issue ever came up during my time as a California student
or resident, it has become a crisis since that time. As a result, I have represented plenty
of men and women complaining of and responding to sexual misconduct violations
within their schools and in federal court in Pennsylvania. Thus, while I do not state this
position as an attorney, I do state it as one who cares about improving this bill because
my California public education experience was excellent, empowering, as well as joyful--
and I believe that it should be so for today’s students. California’s tradition of excellence
in public education, and this committee’s mandate to correct for fiscal impact, requires
that SB-493 incorporate the due process of cross examination by a lawyer for each party,
and needs the use of The Bureau of Justice Statistics’ National Crime Victimization
Survey which reports the real rate of sexual assault: 6.1 per 1000 female students.

cc. via e-mail:

Brendan.Hughes@sen.ca.gov Jano.Dekermejian@sen.ca.gov
Sarah.Couch@sen.ca.gov Danielle.Parsons@sen.ca.gov
Domonique.Jones@sen.ca.gov Heather.Resetarits@sen.ca.gov