Report 2013-124 Recommendation 49 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 #49 To: University of California

The Office of the President should clarify in the UC policies that a complainant must have and be informed about the right to end the early resolution process at any time and request that his or her complaint be handled under the university's formal process.

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 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 a formal 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 determine 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.

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 Violence and Sexual Harassment (SVSH) Policy requiring that campus 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 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 a formal 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 determine 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 University began the requisite formal review process for the revised SVSH Policy in September 2018, and anticipates issuing the revised SVSH Policy by July 2019.

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 thus contemplates the right to request a formal investigation, but does not state that a formal investigation must be conducted upon a complainant's request. The federal guidance 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.) UC 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'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 states that although the relevant federal guidance contemplates the right to request a formal investigation, it 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

The University's Policy on Sexual Violence/Sexual Harassment has been revised and became effective January 1, 2016.

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

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. 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"

Annual Follow-Up Agency Response From September 2015

The University's policy on sexual harassment/sexual violence (http://policy.ucop.edu/doc/4000385) has been revised in accordance with the Final Regulations on amendments to the Violence Against Women Act (VAWA) issued on October 20, 2014 and recently enacted changes in California law. This update of the policy will be implemented no later than July 1, 2015. In addition, a full revision of the policy is underway and a final policy revision is scheduled to be complete in January 2016. The current UC Policy for Sexual Harassment and Sexual Violence, and the contemplated revised UC Policy for Sexual Harassment and Sexual Violence, do not permit mediation for cases involving sexual violence. The current, and contemplated revised UC Policy, expressly state that early resolution is voluntary and not required before beginning a formal investigation.

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

1-Year Agency Response

The University's policy on sexual harassment/sexual violence (http://policy.ucop.edu/doc/4000385) has been revised in accordance with the Final Regulations on amendments to the Violence Against Women Act (VAWA) issued on October 20, 2014 and recently enacted changes in California law. This update of the policy will be implemented no later than July 1, 2015. In addition, a full revision of the policy is underway and a final policy revision is scheduled to be complete in Fall 2015. The current UC Policy for Sexual Harassment and Sexual Violence, and the contemplated revised UC Policy for Sexual Harassment and Sexual Violence, do not permit mediation for cases involving sexual violence. The current, and contemplated revised UC Policy, expressly state that early resolution is voluntary and not required before beginning a formal investigation.

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

6-Month Agency Response

The University is updating its policy on sexual harassment/sexual violence in accordance with the Final Regulations on amendments to the Violence Against Women Act (VAWA) issued on October 20, 2014 and recently enacted changes in California law. The updated policy will be implemented no later than July 1, 2015. President Napolitano's Task Force on Preventing and Responding to Sexual Violence and Sexual Assault developed key recommendations regarding implementing reporting and the complaint processes, utilization of consistent nomenclature, uniform advocacy and case management services, and education and training. The Task Force continues its work implementing its recommendations to ensure that students receive the University's policy on sexual harassment/sexual violence, and have a clear understanding of their rights and expectations when filing a complaint.

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

60-Day Agency Response

The University revised its policy on sexual harassment/sexual violence in February 2014 to bring the policy in line with amendments to the Violence Against Women Act (VAWA). We will update our policy accordingly after the final rule for VAWA is promulgated in November. President Napolitano's Task Force for Preventing and Responding to Sexual Violence and Sexual Assault is reviewing current practices regarding dissemination of policy, information on reporting and the complaint process, and utilization of consistent nomenclature to ensure that students receive the University's policy on sexual harassment/sexual violence, and have a clear understanding of their rights and expectations when filing a complaint.

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

All Recommendations in 2013-124

Agency responses received are posted verbatim.