August 2016

Updating the University's Sexual Misconduct Policies

Over the past year, the Academic Senate has been heavily engaged in the University’s effort to update and improve policies on sexual violence and sexual harassment, including clarifying reporting procedures and resources for responding to prohibited conduct, and clarifying and improving processes for investigating and adjudicating cases in which faculty are accused.

Presidential Policy Review:  A new UC Presidential Policy on sexual violence and sexual harassment became effective on January 1 to comply with new federal requirements, replacing an interim policy issued in June 2015. The new Policy was drafted by a joint Administration-Senate committee during the summer of 2015, and a draft was distributed for expedited systemwide review at the beginning of the fall academic term. The Academic Council submitted comments following discussion at its October meeting.

Following the brief comment period, the Office of Ethics, Compliance, and Audit Services convened a work group to finalize the Policy in light of the comments received. That group included two Senate members, both Professors of Law, the former Senate Executive Director, as well as campus Title IX Officers and other administrators. Representatives from Human Resources, the Office of General Counsel, and student organizations also participated.

The final policy provides clearer definitions and guidance about prohibited conduct as well as clearer, more deliberate reporting structures and response procedures for different kinds of cases of sexual violence or harassment. Three provisions affect faculty in ways that are important to understand. First, the policy defines all faculty as “Responsible Employees,” who are required to report any information they receive from “any person affiliated with the University” about prohibited conduct to the Title IX Office. Second, following federal guidance, Title IX investigations are required to determine whether sexual violence or harassment occurred by the “preponderance of the evidence” – i.e., that it is more likely than not. Such a finding by a Title IX Officer requires follow-up by the administration. Third, the Policy requires the disclosure of disciplinary sanctions to complainants, a break with the long-standing practice in which personnel actions were usually held in confidence.

The Policy clarifies that faculty, staff, and students have distinct processes for adjudication when the accused individual challenges the allegations made against him or her. A special task force developed a detailed framework for adjudication of student cases, which was issued simultaneously with the Policy on January 1. The Faculty Code of Conduct governs the disciplinary process for Senate faculty, guaranteeing the right to hearing if the accused requests it.

With Senate input, UCOP developed new required training modules for students, faculty, and staff that augment existing modules with provisions from the new policy. UC began requiring all students to participate in sexual violence and assault prevention training at the beginning of the fall 2015 term. New training modules were implemented for faculty and staff in 2016.

Joint Committee:  In late fall 2015, the focus turned to an examination of policies and processes for sexual misconduct cases involving faculty. Although plans to review those policies had been in the works, they gained urgency following a high-profile incident in which a tenured faculty member was found to have engaged in repeated sexual harassment at a UC campus, and public statements made by administrators expressing confusion about possible avenues for imposing discipline.

President Napolitano empaneled a Joint Administration-Senate Committee co-led by Senior Vice President Sheryl Vacca and Senate Chair Dan Hare to review systemwide and individual campus disciplinary policies and processes for investigating allegations that faculty have committed sexual violence, assault, and harassment and for imposing discipline on those who are found to have done so. Joint Committee members included academic administrators, Senate representatives, a Title IX officer, student representatives, and the Office of General Counsel. The President directed the Joint Committee to make recommendations around 1) processes for investigation, adjudication, and sanction; 2) University policies and procedures; 3) reporting mechanisms; and 4) interim measures. The Joint Committee was not charged with developing new policies.

The Joint Committee issued a draft report and recommendations in February. The recommendations underwent a 30-day systemwide Senate review, the results of which were summarized in a March letter from the Council chair to Senior Vice President Vacca.

The final report was issued in April.  It found that that existing systemwide and campus policies and procedures are, in general, fundamentally sound, but not well understood by faculty and administrators, and that the roles and responsibilities of Title IX officers and other disciplinary officers are inconsistent across campuses. The report recommended several significant actions to clarify, improve, and increase awareness of existing policy, procedures, and timelines; to increase consistency, transparency, and the effectiveness of procedures leading up to the Privilege and Tenure process; and to clarify the relationship between the P&T process and the Title IX process.

The recommendations included closer integration of the Title IX and the P&T investigations to reduce duplicative efforts, better communication between Title IX officers and chancellors and among all parties about faculty discipline processes; more educational outreach to faculty, graduate students, and administrators about reporting policies, responsibilities, and mechanisms; the designation of a confidential resource on each campus who is familiar with faculty and graduate students issues and exempt from reporting; the clarification of existing policy governing interim measures that administrators may impose during an investigation; and better and more comprehensive collection of data about incidents and their resolution.

The committee recommended clarification of the widely misunderstood “three-year rule,” contained in the Academic Personnel Manual and Senate Bylaws, which refers to the time the Administration has to initiate disciplinary action after it becomes aware of an allegation (not the time since the incident(s) occurred, as many misinterpret).

The President accepted several of the recommendations and asked the Chancellors to implement them immediately. She also announced that she was establishing a systemwide Peer Review Committee to review and approve proposed sanctions for senior UC administrators found to have violated policy and directed the Chancellors to establish similar committees on their campuses to review sanctions for faculty who have violated the policy.

The President then asked the Joint Committee to reconvene and provide additional recommendations in six areas by July 31. This new request centered on recommendations to integrate parallel Title IX and Academic Personnel Office investigations; new structures and support to enable P&T Committees to meet year round; reconsideration of the “three-year rule”; and reducing to five months the total timeframe for investigation, disposition, and adjudication of cases. 

Supplemental Report:  The Joint Committee met twice in May and June and invited a group of Title IX Officers and academic administrators to meet with a subcommittee in June. Its Supplemental Report, delivered to the President on August 1, offered additional recommendations that reflected those deliberations.

The Supplemental Report recommended ways to improve communication and consistency of Title IX and Academic Personnel investigations, but also noted that each investigation has a distinct purpose that may require additional inquiry. It unpacked the process previously labeled “investigation and adjudication” to reflect the different stages of investigation, primarily by the Title IX Office, disposition by academic administrators who receive the Title IX report and determine whether to propose discipline or remediation, and adjudication when an accused faculty member challenges the findings and/or proposed discipline. The Supplemental Report recommended that the investigation and disposition stages could be completed in five months with improved processes, but noted that it is unrealistic for adjudication to also take place within that time. It noted that most cases are resolved prior to adjudication. The report recommended revising APM and Senate Bylaw language on the “three-year rule” to clarify that there is no time limit for a complainant to report a violation, and that an administrator must decide whether to begin disciplinary action within three years of learning about an alleged violation.

Summing up the year-long effort, Senate Chair Dan Hare stated: “Events on UC campuses over the past year show that sexual assault and harassment on campus is a significant problem and concern. We need to ensure that substantiated acts carry real consequences and the University has clear and fair processes for determining policy violations. All members of the University community share a responsibility to help change the culture, behavior, and norms around what constitutes sexual harassment and consent. We appreciate the extended effort to ensure that UC has clear, robust policies and procedures in place both to recognize and eliminate sexual misconduct on campus and to ensure the safety and rights of all members of the University community.”

The President has also asked a third committee to examine policies and processes for staff, including post-docs as respondents, and to report to her by the end of August.