In the scramble for colleges and universities to stem the tide of sexual violence that has come onto their campuses, California has become the first in the nation to enact a “yes means yes” standard into law. On September 28, 2014, Governor Jerry Brown signed legislation that requires colleges and universities receiving state funds to adopt sexual assault policies that include affirmative consent as the key element in determining whether sexual activity was consensual.
Just what is affirmative consent? What will count as a yes? It’s hard to say. It seems obvious, but the parameters of affirmative consent are illusive and hard to define. Even the Department of Education, which has been so aggressive in imposing onerous Title IX requirements on colleges and universities, has been resistive to defining affirmative consent. It is all a little reminiscent of Justice Stewart’s standard for pornography: “I know it when I see it.”
The California law adds little to the dialogue. It contains a succinct definitional statement, that is then followed by a long list of things that affirmative consent is not, which seem every bit as essential to understanding the term as the definition itself. Affirmative consent is: “affirmative, conscious, and voluntary agreement to engage in sexual activity.”
It is not silence, lack of protest or resistance, the existence of a dating relationship or previous sexual relations. It cannot exist when a sexual partner knew, or reasonably should have known, that the other was asleep, unconscious or incapacitated due to drugs, alcohol or medication, or unable to communicate due to a mental or physical condition.
The bill originally required that affirmative consent be “communicated.” This was taken out, and the final version permits affirmative consent to be nonverbal. Nonverbal communication can take many forms and will always be subject to misinterpretation.
Because each institution that receives state funds must adopt its own policies that include the new affirmative consent standard, it is predictable there will be subtle variations in the local language adopted at different institutions, and resultant uncertainty, confusion and potential inconsistency in enforcement. It is not clear whether state regulations will follow that might add to the definition of affirmative consent.
Both the University of California and the California State University already had affirmative consent policies in place by the time the new law was passed. Both actively supported the bill. Several other institutions -- e.g., Grinnell, Dartmouth, Yale, Claremont McKenna -- also have affirmative consent policies already in place. It has been proposed or is under active discussion at dozens of other institutions. Governor Cuomo of New York has recently announced that all of the SUNY campuses must enact policies that include the affirmative consent standard.
The California law requires training of both students and faculty about affirmative consent, including all incoming students as a part of orientation. Since Title IX already mandates much training around campus sexual behaviors, presumably this will be a natural and complementary add-on. How each campus goes about that training will vary. Students may be advised about the policies in live or video training, compelled to watch role-playing episodes performed by actors, required to take online tests to confirm their understanding, or even obliged to participate in live practice sessions on how to ask for, give and refuse consent.
But even if affirmative consent is, and likely always will be, subjective, the new California law makes a monumental change that is much less ambiguous, and will fundamentally change the way consent is determined in disciplinary proceedings.
The law places a burden on both parties to ensure that they have the affirmative consent of the other throughout any sexual activity. Consent can be revoked at any time, and must be renewed as sexual activity escalates. This means that when one sexual partner claims in a student discipline context that the other did not have affirmative consent to engage in any challenged sexual activity, the burden will shift to the initiator of the sexual activity to offer objective evidence of consent. He or she cannot claim confusion, or that his or her sexual partner did not establish boundaries. If there was no clear invitation to proceed, the college or university must conclude there was no affirmative consent.
There will still be situations where one student claims to have had consent and the other denies it. There will be cases involving alcohol, where one student claims that the other was not incapacitated. There will continue to be he said-she said disputes with no witnesses. But this new burden placed on the party claimed not to have had consent, to offer evidence of consent, transforms the institutional disciplinary process.
Some claim that the law is too much governmental intrusion into private sexual behavior. Maybe. But it is hard to argue in these times of egregious sexual misbehaviors that creating a clearer dialogue between sexual partners, and encouraging especially inexperienced young people to exercise great caution in their sexual lives, is a bad idea. The new law does not compel colleges and universities to be in the room or dictate what happens when students engage in sexual conduct. Rather, the college and university obligation is to adopt policies, only tested or enforced after the fact, when affirmative consent is claimed to have been lacking.
There are other important elements in the new law that should not be overlooked. Campus policies must be “victim-centered,” include privacy protections, interview standards, coordination with law enforcement, participation of victim advocates, and discipline exemption for student witnesses who participated in underage drinking. Campuses must provide trauma-informed training for those involved in investigation or adjudication of complaints. On- and off-campus support must be provided for students, both victims and perpetrators.
But the most remarkable aspect of the new law is the shifting of the burden in disciplinary hearings to the initiator of sexual activity to demonstrate that he or she had the permission of the other party to proceed.
Will the law make any difference? No one knows. There will likely be some chaos, confusion and controversy in the short term, before getting to consistently fair and balanced results. But the shift in expectation and proof is a game-changer and will most likely produce different student discipline results -- whether for better or worse remains to be seen.
Christine Helwick is former general counsel for the California State University system and now advises college and university clients at Hirschfeld Kraemer.
A few months after Gallup released findings from the largest representative study of U.S. college graduates, there is much to ponder. The Gallup-Purdue Index surveyed more than 30,000 graduates to find out whether they are engaged in their work and thriving in their overall well-being. In simple terms, did they end up with great jobs and great lives?
We learned some stunning things. But one of the most important is that where you went to college matters less to your work life and well-being after graduation than how you went to college. Feeling supported and having deep learning experiences during college means everything when it comes to long-term outcomes after college. Unfortunately, not many graduates receive a key element of that support while in college: having a mentor. And this is perhaps the biggest blown opportunity in the history of higher ed.
Six critical elements during college jumped off the pages of our research as being strongly linked to long-term success in work and life after graduation. Three of these elements relate to experiential and deep learning: having an internship or job where students were able to apply what they were learning in the classroom, being actively involved in extracurricular activities and organizations, and working on projects that took a semester or more to complete.
But the three most potent elements linked to long-term success for college grads relate to emotional support: feeling that they had a professor who made them excited about learning, that the professors at their alma mater cared about them as a person, and that they had a mentor who encouraged them to pursue their goals and dreams. If graduates strongly agree with these three things, it doubles the odds they are engaged in their work and thriving in their overall well-being.
When we looked at these three elements individually, we found that about 6 in 10 college graduates strongly agree they had a professor who made them excited about learning (63 percent). Fewer than 3 in 10 strongly agree the professors at their alma mater cared about them as a person (27 percent). And only about 2 in 10 strongly agree they had a mentor who encouraged their goals and dreams (22 percent) — which means that about 8 in 10 college graduates lacked a mentor in college.
Given how profound the impact of emotional support can be, it’s thoroughly depressing to learn how few college graduates receive it. A mere 14 percent of all college grads strongly agree that they experienced all three elements of emotional support.
Gallup has talked with many higher ed leaders about these findings, and it has been heartening to learn how many leaders are energized by having fresh insights about the importance and value of mentoring relationships in college. But it has also been frustrating to hear how many believe it’s too costly or unreasonable to ensure that every college student receives mentoring.
How is it possible that some leaders feel this kind of experience is more expensive or less practical than building and maintaining multimillion-dollar athletic facilities or high-end residential complexes? Or that it’s more difficult to provide mentors for students than to commit significant amounts of human and financial resources to eke out a few extra students in their admissions yield or create a massive machine to fund-raise from alumni?
If your college or university wants to get serious about finding mentors for its students, it could start by looking at is own alumni base. Assuming your institution has been around for 10 years or more, your alumni are one of the greatest human capital assets it has — not just as donors, but also as potential mentors.
Let’s use my alma mater, as an example. We have about 6,500 undergraduate students. There are more than 140,000 members of the alumni association. If just 10 percent of alumni agreed to serve as mentors, we would have a pool of 14,000 alumni for the 6,500 undergrads. That’s more than a two-to-one mentor-to-student ratio.
Imagine what would happen if your college applied just a portion of the staffing and budget for its development office toward recruiting alumni to mentor a current undergraduate. This relationship doesn’t have to be complicated — all that’s required is two to three calls, Skype meetings, or Google Hangouts between an alumnus and an undergrad each year for one-to-one coaching, plus some basic framework for how they engage one another. How many of your alumni might take you up on this offer if you made a concerted effort to recruit them? As an alumnus, would you be willing to mentor a current undergrad a few hours a year?
Within just one year, it’s completely conceivable that a college or university could achieve a 100 percent mentoring experience rate for its undergraduates. It’s simply a matter of valuing it and making it happen. For example, in a recent study Gallup conducted of Western Governors University alumni, fully 68 percent strongly agreed they had a mentor who encouraged them to pursue their goals and dreams. That’s three times higher than the national average of college graduates across all institutions – and accomplished at a fully online, adult-learner institution nonetheless.
At WGU, rather than conducting class, faculty members serve as mentors, working with students one-to-one. Upon enrollment, each WGU student is assigned a mentor who stays with them until graduation, meeting regularly by phone and in touch via email and text constantly. WGU mentors provide a wide range of support, from help with time management and finding learning resources to tutoring students on the course materials. It’s possible for all institutions to do this kind of mentoring in many different ways, and it doesn’t have to be costly. And as a side benefit: Imagine how much donations might rise among alumni who have a one-to-one relationship with a current undergrad.
Higher education has never tapped one its greatest human capital assets — its alumni — to provide a service its students might value most. According to Gallup research, it could be one of the most important changes a college or university could make toward supporting the success of its future graduates — or the biggest blown opportunity in its history.
Brandon Busteed is executive director of Gallup Education.
F is the grade I give myself for this past academic year at Bunker Hill Community College.
F? I ran out of bread.
A few Fridays ago, at the end of the day, I asked a young boy, maybe twelve, if he had had anything to eat that day.
“No,” the boy told me.
He had arrived with his mother, a student, who was looking for help. We used to ask students if they were hungry. The question was too easy to evade. Instead we ask, “Have you had anything to eat today?” A colleague helped the mother.
I had just the end of a baguette -- from the four? five? boxes of bread that Panera had donated that day. All day, students had arrived for loaves of bread or to make a peanut butter and jelly sandwich, to find help enrolling for food stamps, to sign up for the next food pantry when the Greater Boston Food Bank each month delivers 5,000 pounds of groceries that vanish in an orderly hour. All this, remember, at an institution of higher education in the United States in 2014.
I drew the baguette end from a plastic bag. To make a tiny sandwich for the boy, I broke the bread. I what? For crying out loud, you don’t have to be an English major. I broke the bread. (I know, I know; that’s just what I did.) I came to Bunker Hill seven years ago to teach College Writing 1. I have become a jury-rigged social worker. No complaints. I hadn’t worked out then that relieving hunger is a prerequisite to teaching College Writing.
F? Again? (Click here.) So far, I have no decent plan, beyond shouting, to persuade 14,000 poverty-pummeled students to commit to a job letter or a transfer essay free of errors in grammar, in punctuation, in ESL.
F? I failed to put a question about hunger/poverty on the federal College Scorecard. Even with a deputy under secretary of education interested, I failed to persuade enough colleges to write in with the request. F? No luck on my plan to improve college completion with my way-too-simple idea – a peanut-butter-and-jelly sandwich for the nine million students on Pell Grants. (Details here.) I even lobbied the peanut lobby. Forty-five million peanut butter sandwiches a week added to the federal budget? Not a nibble.
Paying students to study, to ease the money-for-rent/time-to-study tradeoff? (Details here.) Nowhere.
Slight shifts in tax policy? Nope. Any action to alter the reality that the neediest college students in the U.S. receive the least college aid? Nope. (My failed May 2013 proposal, Time for a Revolution.) Did I find a plaintiff to bring this to federal court? Nope.
“Are you off your meds?” a close family member demanded. “Stop being so depressing.” Find a shrink in August? I’ll put on J.S. Bach, no, WGBO Jazz 88 in Newark to stir me in a cheerier direction.
F? I haven’t stopped that asteroid about to smash into the U.S. economy and society. What asteroid? The nine million students on Pell Grants. That group for whom the accepted, not-Cassandra, not-Chicken-Little truth higher ed experts believe (and I agree) is that half will fail to complete their college degree or professional certificate. Query to the many wonks more able than me: Which half will fail? Help me begin?
My refrain, for as long as I’ve been writing, I still pray every day for better ideas than mine. I have many critics; no takers with better ideas.
Am I wrong about the asteroid? How about another metaphor? America’s Perfect Storm: Three Forces Changing Our Nation’s Future, the 2007 report by Arwin Kirsch, Henry Braun, Kentaro Yamamoto, and Andrew Sum, published by the Educational Testing Service, the higher ed establishment itself. (Click here for details.) The report details how “substantial disparities in skill levels (reading and math); seismic economic changes (widening wage gaps); and sweeping demographic shifts (less education, lower skills)” are creating skill and income gaps that shut too many out of the workforce. The American Dream, the report despairs, could become the American Tragedy.
Second, the U.S. is a market economy. If education is a good social investment, and if the U.S. needs more trained workers, should we, the people, be shortchanging nine million students we all know are at risk? Finance 101 says public capital should follow good investments. Wouldn’t, then, more public investment to prevent the perfect storm be a sound investment? Won’t undereducated students cost more public money? Why isn’t public capital trying to invest in even one million of the nine million?
To the critics about to post comments below: I have oversimplified nothing here. Don’t blame Congress and the U.S. Senate. Why are we, the people, stuck? Do I mean free discretionary education for all? No, I have proposed federal funding first focus on essential skills -- reading writing, and math. My plan is that Pell students must pass the Advanced Placement exams in expository writing and statistics before being eligible for Pell funding for courses in any other subjects. F again. (Click here for details.)
But, third, why are we, the people, watching this asteroid plummet? Or, worse, going to conferences with free lunches? Spewing undereducated, industrious, motivated human beings into society and the economy makes no sense. To me, anyway.
We may not (yet) have a unified theory to solve everything for the nine million students on Pell Grants. How about lunch and a T pass? Apply the Hippocratic oath? Paul Farmer, in public health, has called out similar blindness to public health crises such as AIDS in Africa. What gives any of us the right, Farmer might ask, to just watch 4.5 million students fail? “A failure of imagination” is one of Farmer’s terms. I feel so convicted. Anyone else?
Here is an example, of such “failure of imagination.” School opens again in a few weeks. What about the federal free and reduced lunch students voluntarily going on to a postsecondary credential?
Here in Boston, leaders know 70 percent of the k-12 public school students are on federal free and reduced lunch and most receive a free bus/T pass. Any of these students continuing their education after high school lose their lunch and the T pass. The T pass is $70 per month. Lunch? Pick a number.
I’ve heard no disagreement to the notion that students on free and reduced lunch are low-income, poor. I’ve read of no infusions of capital after high school for such students. So, the students are down $100 per month, and often hungry, for choosing to go beyond high school. And I’ve added food stamp certification, bread, peanut butter and jelly, and food-bank-pallet unloading to my professional skills.
“Cheer up. Can’t you write a column about the good that happened this year?” said another empathetic /despairing/weary friend.
O.K., with my essential disclaimer: All my good outcomes depended, too, on many, many people. “Might not have happened without me (or them)” is my good-outcome criterion.
A student who had gone on to graduate from UMass Boston came by with an impenetrable offer of financial aid (or maybe not?) from her “dream school” in public policy. I connected the student with a human being at the school. Success. The student is back on her track to start an NGO to help women in poverty in Africa.
“You came to my class a few weeks ago, to show us that cool website to help us with grammar and punctuation. I know I need to improve my writing. I have some questions about the site. Can you help me?” This was after spring classes had ended. The speaker standing in the doorway of my office? A male, of color, urban, U.S.-born, in other words the group deemed least likely to succeed in college. At my door. We are working on grammar.
Six veterans succeeding this summer in the Research Experience for Undergraduates at the Harvard School of Engineering and Applied Sciences.
Should I be cheered up? But, but, but…. Such success reporting just enables the stuck-in-a-swamp narrative we have about educating the poor in the U.S. today. “Oh, the problems are overwhelming. What can we do? Help one student at a time. Thank goodness people like [fill in the name of a public school teacher or community college professor you know] are willing to do what they do every day.”
And the asteroid plummets closer.
F? I ran out of bread? I can’t mark any progress.
A homeless student showed up late one Friday last summer. I had bread enough to make him a weekend's worth of PB&Js while he telephoned shelters. I had a bag, and I sent him on his way with more bread and jars of peanut butter and jelly, a plastic knife and napkins.
Progress this summer? A family instead of one student in need, including children? And I ran out of bread? Is it progress that this summer I could send the boy on his way with a 40-oz., instead of a 16-oz., jar of peanut butter?
F? Yes, because this summer I ran out of bread.
Wick Sloane is an end user of a higher education. Follow him @WickSloane.