EdLawConnect Blog

A new California law calls on the state's public colleges and universities to address this issue as well.

Assembly Bill 620, which took effect January 1, 2012, "requests" the California State University, University of California, and the governing boards of each of California's community college districts to take the following steps:

• Adopt and publish policies on harassment, intimidation, and bullying to be included within rules of student conduct

• Designate an employee at each of their respective campuses as a point of contact to address the needs of lesbian, gay, bisexual, and transgender faculty, staff, and students. "At a minimum, the name and contact information of that designated employee shall be published on the Internet Web site for the respective campus and shall be included in any printed and Internet-based campus directories."

• Allow faculty, staff and students to identify sexual orientation, gender identity, and gender expression when providing other demographic data. A community college district is not required to update an existing form used to collect demographic data, but if any new or updated form is developed, the form must provide for the identification of sexual orientation, gender identity, and gender expression. Cal. State, UC, and the California Community Colleges Chancellor’s Office are requested to report on aggregate information collected.

The new law additionally revises the definition of gender for purposes of existing prohibitions against discrimination in higher education, adding "gender expression" to the definition of prohibited discrimination; "gender expression" in turn is defined as "a person's gender-related appearance and behavior, whether or not stereotypically associated with the person's assigned sex at birth." The new law makes additional changes to certain existing laws prohibiting discrimination in postsecondary institutions and programs, and requirements related to reporting of hate violence on campus, to include sexual orientation, gender identity, and gender expression within the scope of those prohibitions and requirements.

The law also calls for the Legislative Analyst to assess and make recommendations to improve the quality of life for lesbian, gay, bisexual, and transgender faculty, staff, and students, on public college and university campuses.

It bears noting that many provisions of AB 620 are not mandatory - the law "requests" rather than requires institutions to take many of the steps contemplated. Development of the policies called for by the new law will not necessarily be a simple task. Although the Legislature has called on public colleges and universities to address "harassment, intimidation, and bullying," the statute itself does not define these terms, nor prescribe the steps that should be taken to address them, leaving these policy considerations to institutions.

In some respects, the conduct and behavior that such policies seek to prevent and remedy may already be covered at least in part by existing institutional policies addressing discrimination and harassment on the basis of characteristics already protected by law, such as Title IX, Title VI, Title VII, and/or previously existing Education Code and Title 5 provisions. However, AB 620 is not limited to bullying based on membership in any particular defined group. Development of new policies specifically targeted at "harassment, intimidation and bullying" as such will require careful drafting to clearly define the conduct targeted and persons protected. To the extent that new policies target conduct that is distinct from discrimination and harassment already prohibited by existing institutional policies and law, new policies should address bullying in a manner that is both effective and that takes into account the sometimes competing rights of members of a college or university campus community. For example, some forms of speech or expressive conduct may be perceived as offensive or hostile by some members of a campus community, but may nevertheless be protected by the constitutional free speech rights of others on campus. As a result, policies that attempt to prohibit bullying but that rely on vague or overbroad definitions may be vulnerable to legal challenge. Social media and other new forms of technology add an additional layer of complexity, blurring the boundaries of the campus environment.

Development of an effective and legally defensible anti-bullying policy will require input from many constituencies in a campus community, and assistance of legal counsel. The process will likely be at least as much, if not more, art than science. The ultimate objective should be promotion of a campus learning environment that promotes educational opportunity and success for all.