Sexual Harassment and Sexual Violence Instruction (K-12)
Governor Brown recently signed Senate Bill 695, which adds section 51225.36 to the Education Code to establish new requirements for instruction in sexual harassment and violence. If a district requires a course in health education for graduation from high school, the district must include instruction in sexual harassment and sexual violence, including information on the affirmative consent standard. In addition, the district must ensure that teachers who deliver health instruction consult information related to sexual harassment and violence in the “Health Framework for California Schools.”
LEGAL UPDATE
October 19, 2015
To: Superintendents, Member School Districts (K-12)
From: Mia N. Robertshaw, Assistant General Counsel
Subject: Sexual Harassment and Sexual Violence Instruction
Memo No. 26-2015
Governor Brown recently signed Senate Bill 695, which adds section 51225.36 to the Education Code to establish new requirements for instruction in sexual harassment and violence. If a district requires a course in health education for graduation from high school, the district must include instruction in sexual harassment and sexual violence, including information on the affirmative consent standard. In addition, the district must ensure that teachers who deliver health instruction consult information related to sexual harassment and violence in the “Health Framework for California Schools.”
The affirmative consent standard is frequently in the news in the context of higher education. The standard is used in determining whether the parties involved in sexual activity gave consent. Affirmative consent is defined in Education Code section 67386(a)(1):
“Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.
Senate Bill 695 also adds Education Code section 33544, providing that during the next revision of the “Health Framework for California Schools,” the Instructional Quality Commission must consider including sexual harassment and sexual violence. If the Instructional Quality Commission includes comprehensive information on sexual harassment and violence in the revised “Health Framework for California Schools,” it must comply with certain conditions.
Please contact our office with questions regarding this Legal Update or any other legal matter.
The information in this Legal Update is provided as a summary of law and is not intended as legal advice. Application of the law may vary depending on the particular facts and circumstances at issue. We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.
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