Report 2013-124 Recommendation 58 Responses

Report 2013-124: Sexual Harassment and Sexual Violence: California Universities Must Better Protect Students by Doing More to Prevent, Respond to, and Resolve Incidents (Release Date: June 2014)

Recommendation #58 To: University of California, Berkeley

All universities should ensure that the differences between an informal or early resolution process and a formal investigation process are clearly explained to ensure that students know what to expect from each process. Further, they should explain that students whose cases are being handled under an informal or early resolution process have the right to move to a formal process at any time.

Annual Follow-Up Agency Response From October 2019

The University issued a revised Sexual Violence and Sexual Harassment (SVSH) Policy on July 31, 2019. The new policy requires that Title IX Officers inform parties who agree to participate in the informal process that the process is voluntary, that they have the right to terminate the process at any time, and that termination before a resolution may lead to a formal investigation. The revisions further state that if the informal process is terminated before resolution is reached, the Title IX Officer will initiate an official investigation unless the complainant prefers that no investigation occur (in which case the Title IX Officer will honor the complainant's wishes unless she or he determined that an investigation is necessary to mitigate a risk to the campus community). According to the proposed revisions, then, the complainant has the right to end the informal process at any time and have her or his complaint handled through the University's formal process. The revised SVSH Policy provides other details about the Alternative Resolution process, including examples of forms it may take, the timeline, the parties' right to written notices, and the Title IX Officer's role. The SVSH Policy also provides an overview of the formal investigation process; this process is explained in detail in the University's revised SVSH Student Adjudication Framework (Appendix E), also issued on July 31, 2019. These policies inform students of the differences between the informal resolution process and the formal investigation process and what to expect from each. The guidance for administering the Alternative Resolution process is consistent across all UC campuses.

California State Auditor's Assessment of Annual Follow-Up Status: Fully Implemented

Annual Follow-Up Agency Response From October 2018

In accordance with CSA's recommendations in its June 2018 report to UC, the Systemwide Title IX Office drafted revisions to the Systemwide Sexual Violenceand Sexual Harassment (SVSH) Policy which provide for the Complainant to end the informal process at any time and have her or his complaint handled through the university's formal process. See update to recommendation 49 for more detail on these systemwide SVSH policy changes.

Pending formal changes to the Systemwide SVSH Policy, the staff in Berkeley's Office for the Prevention of Harassment and Discrimination (OPHD) engages in the following process: OPHD complaint resolution officers explain the difference between Alternative Resolution and formal investigation and inform complainants of their right to go to formal investigation. OPHD complaint resolution officers inform Complainants and Respondents interested in an Alternative Resolution that the process is voluntary, that they have the right to terminate the process at any time, and that termination before resolution may lead to a formal investigation. This notification is done verbally at the beginning stages of the initial assessment of a complaint. In situations where both parties then agree to an Alternative Resolution, OPHD complaint resolution officers follow up in writing with the parties, confirming the individuals' prior agreement with executing an Alternative Resolution strategy, and reiterating what actions will follow as part of the Alternative Resolution. The Complaint Resolution officer further specifies that at the end of the Alternative Resolution process, if the resolution is not successful, or new issues arise, a Formal Investigation may still need to be implemented.

California State Auditor's Assessment of Annual Follow-Up Status: Pending

Annual Follow-Up Agency Response From November 2017

As the CSA has previously recognized, the UC Policy on Sexual Violence Sexual Harassment ("SVSH Policy") clearly delineates between a Formal Investigation and Alternative Resolution, and provides that a complainant has the right to request a Formal Investigation at any time. The recommendation states that a complainant should be informed of this right, and the SVSH Policy does inform the complainant of that right. The applicable federal guidance provides that a "complainant must be notified of the right to end the informal process at any time and begin the formal stage of the complaint process." (See OCR's Revised Sexual Harassment Guidance (2001).) The relevant federal guidance does not state that a formal investigation must be conducted upon a complainant's request. The federal guidance further provides that, "in addressing allegations of sexual harassment, the good judgment and common sense of teachers and school administrators are important elements of a response that meets the requirements of Title IX." (See 2001 Guidance at ii.) UCB believes the SVSH Policy is consistent with relevant federal guidance.

California State Auditor's Assessment of Annual Follow-Up Status: Partially Implemented

As we stated in our assessment comments on UC Berkeley's response in 2016, although the revised Sexual Violence/Sexual Harassment policy states complainants have the right to request a formal investigation at any time, it also states that the Title IX Officer has final authority for determining whether to initiate a formal investigation. In its response this year, UC Berkeley notes that the relevant federal guidance does not state that a formal investigation must be conducted upon a complainant's request. However, it continues to be our view, as we discussed in our report on page 52, that "the discretion within the UC policy to not initiate a formal investigation when requested to do so does not align with instructions in {federal guidance}, which indicate that the complainant must be notified of the right to end the informal process at any time."

Annual Follow-Up Agency Response From October 2016

When UCB or UCLA receive a report that a student has experienced sexual violence or sexual harassment, they conduct outreach to the student. In that written outreach, the student is informed of their right to report sexual violence to the University and provided a full copy of the UC Policy on Sexual Violence and Sexual Harassment (UC SVSH Policy). They are also offered the confidential survivor advocate (CARE Advocate) as a resource and informed that the confidential advocate could explain the University's reporting and resolution processes to them before they make their decision to report.

UCB and UCLA implement thorough intake processes when complaints are filed. During this process staff explain to both complainants and respondents both complaint resolution strategies allowed under the UC Policy on Sexual Violence and Sexual Harassment. Also, formal notice letters informing both parties of the allegations made, applicable policies, rights of both parties, and available resources, are accompanied by a full version of the UC SVSH Policy.

The Title IX/Student Conduct procedures that are provided to students participating in this process include detailed information about both paths to resolution and references the UC SVSH Policy. Moreover, both UCB and UCLA have confidential CARE (complainant's) advocates and respondent services providers who are trained in the Title IX procedures, and who can explain to students the differences between the two resolution strategies. Any student can access these resources, regardless of whether they wish to report formally. Students who are participating in a Title IX process are expressly advised of their options to access either the CARE (complainant's) advocate or the respondent services provider.

(Please see attached document for the continuation.)

California State Auditor's Assessment of Annual Follow-Up Status: Not Fully Implemented

The attached document that UCB referred to provided a few more sentences regarding the relevant portions of the revised UC Policy on Sexual Violence and Sexual Harassment.

Students are provided information that clearly explains the process for early resolution or formal review, and the revised Sexual Violence/Sexual Harassment policy states complainants have the right to request a formal investigation at any time. However, it also states that the Title IX Officer has final authority for determining whether to initiate a formal investigation. As we discuss in our report on p.52, "In our view, the discretion within the UC policy to not initiate a formal investigation when requested to do so does not align with instructions in [federal guidance], which indicate that the complainant must be notified of the right to end the informal process at any time". Therefore, we did not assess this recommendation as fully implemented.

Annual Follow-Up Agency Response From September 2015

Nothing new to report from the June submission.

California State Auditor's Assessment of Annual Follow-Up Status: Not Fully Implemented

1-Year Agency Response

The U.S. Department of Education's Office for Civil Rights is currently reviewing the UC Systemwide Policy on Sexual Harassment and Sexual Violence and accompanying implementing procedures. At the conclusion of this review, we will re-evaluate the policy language regarding investigation resolution options and how to best communicate those changes with students.

California State Auditor's Assessment of 1-Year Status: Pending

6-Month Agency Response

UCB has developed new informational tools (narrative and graphic representations), as well as an improved intake process that ensures that students have multiple opportunities to understand the complaint resolution strategies employed under the sexual harassment and violence policy, and the differences between those strategies.

The President's Task Force will be reviewing practices and standards in responding to reports of sexual misconduct across all UC locations, including best practices to support fair and objective adjudication procedures. The UC Policy is also being revised.

California State Auditor's Assessment of 6-Month Status: Partially Implemented

60-Day Agency Response

UCB (University of California, Berkeley) has developed new informational tools (narrative and graphic representations), as well as an improved intake process that ensures that students have multiple opportunities to understand the complaint resolution strategies employed under the sexual harassment and violence policy, and the differences between those strategies.

The President's Task Force will be reviewing practices and standards in responding to reports of sexual misconduct across all UC (University of California) locations, including best practices to support fair and objective adjudication procedures. The UC (University of California) Policy is also being revised.

California State Auditor's Assessment of 60-Day Status: Partially Implemented

UC Berkeley has created tools to help explain the different options available to students who report incidents of sexual violence and sexual harassment. However, its practices and standards in responding to reports of incidents of sexual violence and sexual harassment are being reviewed.

All Recommendations in 2013-124

Agency responses received are posted verbatim.