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• Campuses Have Disciplined Staff and Faculty Inequitably and Have Been Slow to Impose Discipline on Faculty
• The Campuses’ Responses to Sexual Harassment Complaints Could Be Much Clearer, and Their Investigations Often Exceed the Established Time Frame
• The Systemwide Title IX Office Has Opportunities to Improve and Standardize the University’s Response to Sexual Harassment Complaints
• Other Areas We Reviewed
• Scope and Methodology

Campuses Have Disciplined Staff and Faculty Inequitably and Have Been Slow to Impose Discipline on Faculty

Key Points:

• The three campuses we reviewed—Berkeley, Davis, and Los Angeles—took much longer to discipline Senate faculty than staff and non‑Senate faculty. When we reviewed 23 cases, we found that on average staff received discipline in 43 days, non‑Senate faculty in 74 days, and Senate faculty in 220 days. Because Senate faculty play a role in governing the university, they have a right to a hearing process that takes longer to determine discipline as it involves many steps and does not always specify time frames for completion.
• The three campuses applied inconsistent discipline on faculty who were the subject of multiple complaints. At times, comparable cases resulted in either stricter or more lenient discipline, leaving the university community uncertain of the campuses’ responses to faculty members’ repeated misconduct. However, for the cases we reviewed, faculty members’ prestige did not generally influence the discipline that the campuses imposed.
• Although campus coordinators are responsible for the university’s overall effort to stop, prevent, and remedy sexual harassment, they do not have sufficient involvement in determining discipline in cases of substantiated sexual harassment. However, the campus coordinators’ expertise and knowledge of all sexual harassment complaints on campus make them uniquely qualified to consult on whether discipline is appropriate and consistent, particularly in cases involving repeat respondents.

The Campuses Did Not Promptly Impose Discipline for Senate Faculty Respondents

In the cases we reviewed involving Senate faculty, the average number of calendar days between the campus office issuing its investigation report and a faculty respondent receiving discipline was 220, as Figure 5 shows. Several faculty cases lasted much longer—310 days and 385 days, for example. In one extreme case, the campus took 600 days from the date the campus office issued the report to the date it terminated the respondent, although this delay was due in part to the receipt of additional complaints about the respondent that resulted in more investigations. In this specific case, we used the time between completion of the last investigation and when the campus imposed discipline—232 days—in Figure 5. In contrast, campuses resolved the discipline process in the staff cases we reviewed in an average of 43 days and in 74 days in the two non‑Senate faculty cases. The lengthy time the campuses take to resolve Senate faculty cases stands in clear contrast to the Title IX requirement that the university adopt procedures for the prompt and equitable resolution of complaints. In its February 2018 review of Berkeley, OCR also determined that Berkeley did not always provide complainants with prompt responses to their complaints. In highlighting its concerns, OCR cited one case involving a faculty member that lasted 355 days between the initial complaint and the final discipline.

Figure 5
Three Campuses Often Did Not Discipline Senate Faculty Promptly

The different disciplinary processes the university follows for Senate faculty, non‑Senate faculty, and staff respondents caused the stark difference in time frames in these cases. Figure 2 shows that for staff and non‑Senate faculty, the disciplinary process is simpler than for Senate faculty. During our review period, campuses resolved the staff and non‑Senate faculty processes in three major steps at most, but for Senate faculty, the process involved more steps, with each step adding more time. Senate faculty, through the Academic Senate, play a role in governing the university, along with the university president and the Regents. The Academic Senate derives its duties, powers, and privileges from the Regents. Senate faculty have the right to a hearing with the Privilege and Tenure Committee (tenure committee) in any case of disciplinary action, a time‑consuming process.

Key steps in the Senate faculty disciplinary process do not include time limits. The Academic Senate’s bylaws suggest time frames, but these are not requirements. Figure 6 details the steps and shows that the process is essentially open‑ended. For example, although the hearing subcommittee should ideally hold the prehearing conference 30 days after its appointment, this time frame is not required; similarly, the hearing subcommittee should ideally hold the hearing 90 days after its appointment but is not required to do so. Further, the bylaws do not provide a time limit within which the hearing subcommittee must issue its disciplinary recommendation, and the disciplinary policy for Senate faculty also does not provide a time limit within which the chancellor must make a final decision.

Figure 6
The Academic Senate Has Not Established a Required Time Frame for the Senate Faculty Disciplinary Process

In most of the Senate faculty cases we reviewed, the faculty member negotiated discipline or a separation agreement with the campus before the hearing subcommittee held a hearing, but because the administrative process moved slowly, the campus and respondent did not reach an agreement promptly. In two cases shown in Figure 5, which lasted 254 days and 310 days, respectively, the campus spent this time negotiating discipline with the respondents. The campus did not need to resolve negotiations promptly because the only time limit under Senate bylaws is that the chancellor needs to initiate disciplinary action within three years after knowing of an alleged violation. Even when a campus did file charges with the tenure committee, the process did not conclude promptly. For example, the insert in Figure 5 details the unfolding of one case in which 181 days elapsed from completion of the investigation report to when the chancellor negotiated a separation agreement with the faculty member in lieu of a hearing. In the one case we reviewed in which a hearing took place—the 600‑day case previously mentioned—three separate allegations had been made against the faculty respondent, resulting in three investigation reports. As a result, 431 days elapsed between completion of the first investigation report and the hearing. The hearing subcommittee then did not issue its recommendation until 111 days following the hearing.

The campuses can put interim measures in place during the long adjudication process for Senate faculty, and they did so in most of the cases we reviewed. Interim measures, such as issuing a directive prohibiting a respondent from interacting with a complainant, are intended to remedy situations in the short term. At Los Angeles, the complainants in three cases were no longer in contact with the respondents, and so the campus determined interim measures were unnecessary. In a fourth case at Los Angeles in which the adjudication lasted 310 days, the campus could not provide documentation that the complainant had requested interim measures or that the campus had considered providing them. Berkeley used no‑contact directives prohibiting a respondent from contacting the complainants in the 600‑day case previously mentioned. In contrast, Berkeley did not put interim measures in place for a case that it resolved within 21 days. According to the campus coordinator, interim measures were unnecessary because the complainants were no longer on campus. At Davis, in a 223‑day case, the campus placed the respondent on involuntary leave with pay shortly after the campus office received the complaint. This involuntary leave lasted until the respondent’s separation from the campus.

The Office of the President has recognized that the lengthy discipline procedure in faculty cases is a problem. Its 2016 Joint Committee of the Administration and Academic Senate (joint committee) report stated that “critics describe the length of time required for [tenure committee] hearings as discouraging complainants from reporting.” In May 2016, the Office of the President issued a directive to develop clear time frames so that discipline in faculty cases did not take longer than two months unless exceptional circumstances prevailed. Yet despite the Office of the President identifying two months as the desired time frame, none of the changes made by the university since 2016 included amending the Academic Senate’s bylaws to specify exact time frames for completing the formal process. In 2017 the Office of the President issued a new faculty investigation and adjudication framework that eliminated a second faculty investigation that sometimes occurred—and when it did, it lengthened the formal process—by stipulating that the chancellor or designee will not reinvestigate the allegations considered in the campus office’s report. The framework also specified that the chancellor or designee must file a charge with the tenure committee within 40 business days of receiving notification of the investigation outcome if the campus has not otherwise resolved the matter. This timeline is meant to address the problem of campuses spending months negotiating discipline with faculty before filing charges. However, the tenure committee’s bylaws do not provide a specific time frame for issuing disciplinary recommendations, and the new framework does not specify a time by which the chancellor must make decisions on recommendations.

In a recent case the hearing subcommittee held its hearing from November 2 to 4, 2017, but it did not issue a disciplinary recommendation until February 23, 2018—longer than the two‑month goal specified by the Office of the President. Delays of this nature contribute to a perception that the university is not responding promptly to complaints, and they also force complainants and respondents to endure a lengthy and stressful process. As a result of a resolution agreement between Berkeley and OCR, the Office of the President agreed to amend its policies and procedures by February 2019 to provide an assurance that the university will resolve complaints against faculty or staff in a reasonably prompt manner, including issuing decisions regarding discipline. Nevertheless, it is not clear whether the Office of the President’s policy changes will result in the university establishing specific time frames for cases involving faculty.

The Campuses Have Imposed Discipline Inconsistently in Comparable Cases of Faculty Misconduct

When campus office investigations substantiated misconduct, campuses imposed discipline depending on the type of misconduct, but we found that the discipline was often inconsistent in comparable cases of faculty accused multiple times of harassment. To assess the disciplinary decisions in cases in which the campus investigations substantiated the allegations, we randomly selected 30 cases—10 each from Berkeley, Davis, and Los Angeles—that were decided from 2007 through 2016. Seven of these 30 cases either did not result in discipline or diverged in ways that made them not comparable to the other staff and faculty cases we reviewed. For example, during the complaint investigations, the respondents either resigned their employment or the campuses chose not to renew their employment contracts. Figure 7 shows the discipline the three campuses imposed in the remaining 23 cases. Because multiple complaints resulted in combined disciplinary outcomes, only 21 respondents appear in the figure. The campuses substantiated behavior ranging from verbal or nonverbal harassment to sexual assault, and they imposed discipline ranging from negotiated agreements to abide by policy to dismissal. As Figure 7 shows, staff were respondents in the five cases that we selected involving either sexual assault or physical contact of a sexual nature, and the campuses dismissed all of them from employment.

Figure 7
Three Campuses Had Varied Disciplinary Responses to Sexual Harassment

Of the seven Senate faculty respondents that we show in Figure 7, four—denoted by red circles—were the subjects of repeated complaints. Table 2 details the complaints against five faculty repeat respondents and shows that they were the subject of complaints spanning several years. The last complaint listed in Table 2 for each respondent resulted in the pertinent campus office investigating and substantiating the complaint and the campus imposing the discipline in Figure 7. For each of these final complaints, the faculty member was in a position of control or authority over the student who alleged harassment. The campuses often handled the earlier complaints using the informal process, which typically does not result in discipline. Many factors influenced the campuses’ decisions to use the informal process. For example, in some instances, the complainants did not want to initiate investigations under the formal process or the campus offices did not have sufficient information to pursue investigations. In these cases, the campuses could not impose discipline as no investigations occurred to substantiate that the alleged instances of misconduct violated policy. In its February 2018 review of Berkeley’s implementation of Title IX, OCR raised several concerns about Berkeley’s use of the informal process to handle repeated complaints against a faculty member. OCR noted that when the campus pursued an informal process in response to several of the complaints, it did not “include reasonably effective steps to prevent further harassment.”

The campuses imposed inconsistent discipline in some cases that we reviewed that involved repeat faculty respondents. For example, Professor A at Berkeley and Lecturer B at Los Angeles both engaged in physical contact of a nonsexual nature, as well as making inappropriate comments toward students. Both had been the subjects of past complaints. Los Angeles intended to dismiss Lecturer B for violating university policy but then entered into a separation agreement with him, which allowed him to leave employment without admitting fault. However, Berkeley negotiated a much lighter discipline with Professor A. Specifically, it required him to commit to abide by university policy and to not engage in further misconduct; if he did, Berkeley would retroactively apply discipline of a one‑semester suspension of leave without pay. Considering Professor A’s repeated misconduct, we question why requiring him to commit to follow university policy, which he should have been doing all along, was an adequate response. Moreover, it stands in contrast to Lecturer B, whom the Los Angeles campus separated from employment.

Other cases involving faculty who were repeated respondents also demonstrated disciplinary inconsistencies. Professor‑in‑Residence D at Los Angeles and Professor E at Davis were each accused of verbal and nonverbal harassment multiple times. Davis reached a separation agreement with Professor E, in which he retired and admitted no fault; this agreement included restrictions on his emeritus privileges. In contrast, Los Angeles reached an agreement with Professor‑in‑Residence D that allowed him to remain in his position without admitting that he had violated university policy. However, he did have to abide by the following provisions, among others: any future policy violations would carry a minimum sanction of suspension without pay, he would be ineligible for a merit promotion for approximately five months, he would take sexual harassment training, and he would meet regularly with the department dean to discuss his behavior. Further, he agreed to irrevocably resign from campus employment 30 months later. Despite the similarity in conduct, Davis immediately ended Professor E’s relationship with the campus while Los Angeles did not do so with Professor‑in‑Residence D. Such inconsistent responses create uncertainty about what response to misconduct should be expected.

Although the three campuses were at times ineffective and inconsistent in addressing faculty misconduct, we did not find a pattern to suggest that they allowed more prestigious faculty greater leeway than less prestigious faculty. Table 3 shows the professional profiles for the nine faculty from Figure 7. We considered each faculty member’s tenure status; publications produced; major awards received; and for the three years before the campus office concluded the formal process, amount of external research funding received. However, it was ultimately difficult to reach clear conclusions on the relative prestige of the faculty members because we could not make reliable comparisons across disciplines. For example, faculty in the sciences generally produce more publications than faculty in the liberal arts. Therefore, a higher number of publications does not necessarily indicate greater prestige. External research funding also is not a reliable indicator as average funding amounts vary widely by field; faculty in the life sciences and engineering are more likely to receive higher amounts than faculty in other fields. Table 3 shows that the campuses generally applied similar discipline to faculty with varying professional profiles. For example, Davis negotiated a separation with Professor E, who had tenure and external funding, but Lecturer B, who did not have tenure or external funding, also reached a negotiated separation with Los Angeles. In another case, Los Angeles negotiated a restriction on promotion or employment with Professor‑in‑Residence D, who had considerable external funding, and also negotiated a restriction on promotion or employment with Professor F, who had no external funding and a lower number of publications.

However, one obviously prestigious faculty member received discipline that was more lenient than the discipline imposed on others. Specifically, Professor A had received more than $1 million in external funding, had a significant number of publications, and was the recipient of major awards. The discipline the campus pursued—an agreement that he would abide by university policy—was the most lenient of that received by the nine faculty in Figure 7. Arguably, this discipline only required him to follow the policy that the campus determined he had violated and that he should have been following all along. However, we did not find any evidence that Berkeley considered his reputation in determining the discipline.

Campus Title IX Coordinators Have Too Little Involvement in the Discipline Process

Although campus coordinators are responsible for the university’s overall effort to stop, prevent, and remedy sexual harassment, the Office of the President has not made the most of their role in disciplining respondents. Federal regulations require each campus to designate a campus coordinator to coordinate the campus’s compliance with Title IX. Because effective discipline is part of a campus’s Title IX obligations, those campus coordinators must play a role in determining the appropriate discipline for respondents. However, several of the Office of the President’s 2016 and 2017 campus office reviews state that campus officials responsible for discipline did not inform campus coordinators about the discipline they were imposing. Further, the joint committee’s report dated April 2016 also raised questions about the campus coordinators’ involvement when the campuses determine discipline for respondents. Increasing the campus coordinators’ involvement in the discipline process could help to ensure the effectiveness of the discipline that campuses impose and thus reduce the number of respondents who repeat sexual harassment behavior.

The Office of the President recently took action to address the problem of ineffective discipline in cases of faculty respondents; however, it is too soon to see the benefits of the action and assess its effectiveness in responding to and preventing harassment. In May 2016, the Office of the President directed each campus to form a peer review committee (peer committee) to provide advice on appropriate discipline to the chancellor or the chancellor’s designee in cases involving Senate faculty. In part, the peer committee decision stemmed from the April 2016 report of the joint committee, which found that the university’s disciplinary policies allowed for “broad discretion,” which resulted “in variation of administrative judgement as to the resolution being proportionate to the violation.” The campuses began forming their peer committees in 2017.

Although it is too early to tell if the peer committees will help the campuses provide effective discipline in faculty cases, we are still concerned that the campus coordinators do not have a role beyond training the peer committee members. At the three campuses we visited, the peer committees consist of six to eight Senate faculty, and the campus coordinators neither serve on the committees nor advise them as the committees develop recommendations about faculty discipline. In a March 2017 letter to the campuses, the former systemwide Title IX coordinator (systemwide coordinator), who held the position until May 2018, explained that the peer committees are meant to assist in ensuring that discipline or other measures imposed are “consistent, proportional, and designed to stop” misconduct and prevent its recurrence. However, the university has yet to establish a role for the campus coordinators, the individuals on campus who should be most familiar with both specific cases and all other campus cases and are thus best positioned to help the campuses ensure that the discipline they impose is appropriate and consistent.

Like its updated faculty process, the university’s new adjudication process for staff respondents does not provide campus coordinators with sufficient involvement in determining discipline. The 2017 staff adjudication process gives a respondent’s supervisor the primary decision‑making authority. Although the 2017 process does provide for regular communication between the campus coordinator and the supervisor during an investigation, the process does not give the coordinator a role once the investigation concludes. The former systemwide coordinator emphasized that although the campus coordinators are knowledgeable about sexual harassment, the designated employees responsible for determining discipline also have relevant expertise and information. For example, an employee’s supervisor has access to personnel files and work history not related to sexual harassment that could be relevant to determining discipline. Although this point is valid, a campus coordinator should still have an established role in the discipline process, especially considering the university’s goal of imposing effective and consistent discipline.

Giving the campus coordinators more involvement in the discipline process could reduce the risk of inconsistencies between the discipline imposed on faculty and staff respondents, and it could also help ensure that the campuses impose discipline that is effective at preventing repeat harassment. In addition to the cases we reviewed for disciplinary outcomes, we identified the three campuses’ total number of staff and faculty against whom multiple complaints had been made and at least one of the complaints involved a student complainant. We determined that 27 faculty and staff met this criteria. In response to these complaints, the campuses pursued the allegations using either informal or formal processes. As Table 4 shows, more faculty members were repeat respondents than staff, and faculty generally had the higher total number of complaints against them. Eight faculty had three or more complaints compared to four staff.

University policy already requires campuses to notify their campus coordinators of disciplinary outcomes for all respondents—both faculty and staff. With these data, campus coordinators can act as consultants in the discipline process: they can use it to inform participants in the decision‑making process whether proposed disciplines are commensurate with respondents’ substantiated behavior. The campus coordinators’ expertise and knowledge of all sexual harassment complaints on their campuses are particularly valuable in cases involving repeat respondents and those involving faculty members in positions of control or authority over students alleging harassment. Because campus coordinators are required to maintain records of all past complaints and the actions taken in response, they are less likely to recommend the same discipline when respondents repeat past behaviors and the previous disciplines were clearly ineffective.

The university can increase the campus coordinators’ role in the discipline process without infringing upon respondents’ due process rights. The former systemwide coordinator cautioned that involving the campus coordinators in discipline decisions could create the perception that the campus coordinators are determining both the violations of policy and the disciplines in response to those violations, and clearly such a process would not be conducive to respondents’ due process rights. However, we believe the university can overcome this perception. First, it is important to note that campus coordinators act as managers rather than as investigators and that they oversee dedicated investigators who determine whether the respondents have violated university policy. Second, the campus coordinators do not need to decide what disciplines to impose in order to have sufficient involvement in the decision process. For example, under the California State University’s sexual harassment policy, the role of the campus coordinators is to coordinate with decision makers to ensure that the university imposes appropriate discipline on all respondents found to have violated its policy, regardless of whether the respondents are faculty or staff members. Similarly, the university campus coordinators could act as a safeguard, ensuring that campuses have valid reasons for imposing discipline that deviates from the systemwide practice.

Recommendations

To achieve prompt resolution of sexual harassment complaints against faculty respondents, the Regents should ensure that the Academic Senate further defines its bylaws with written requirements for the tenure committee that specify exact time frames for completing the phases of the disciplinary process. The following changes should take effect by July 2019:

• Require that a hearing be scheduled to begin within 60 calendar days from the date the chancellor files charges with the tenure committee unless the committee chair extends this time frame for good cause, which the written requirements should define.
• Require that the tenure committee issue a recommendation within 30 calendar days of concluding the hearing. The written requirements should define when a hearing is considered concluded.

To ensure prompt resolution of sexual harassment complaints against faculty respondents, the Office of the President should do the following:

• Amend the appropriate policies to require that the chancellor or designee issue a final decision about discipline within 14 calendar days following receipt of the tenure committee’s recommendation. This change should take effect by July 2019.
• After the Academic Senate develops written requirements to specify exact time frames, complete an annual review of all cases involving Senate faculty to determine the length of time the adjudication process lasted. If an adjudication process takes longer than the time frames specified, the Office of the President should work with the Regents and the Academic Senate to develop further measures to enforce a more prompt adjudication process. The Office of the President should complete its first review by October 2020.

To ensure that the campuses impose appropriate disciplinary sanctions and to determine whether any additional remedies need to be provided, the Office of the President should modify university policy to ensure that campus coordinators consult on the appropriateness of the discipline for respondents found to have violated university policy. This policy change should take effect by July 2019.

The Campuses’ Responses to Sexual Harassment Complaints Could Be Much Clearer, and Their Investigations Often Exceed the Established Time Frame

Key Points:

• Over the past decade, campuses used the informal process twice as often as they used the formal process. When using the informal process, the three campuses we reviewed did not consistently follow federal guidance intended to protect complainants. Although required to obtain agreement from both parties to use the informal process, the campus offices were rarely able to demonstrate that they did so. Further, the campus offices often did not inform complainants of their right to end the informal process at any time and to request the formal process.
• When the campuses identified that preventive actions were necessary as part of the informal process, they generally ensured that the counseling, targeted training, or mediation needed to resolve complaints occurred.
• Berkeley and Los Angeles frequently exceeded the time frame of 60 business days for investigations as stated in university policy without obtaining the approvals necessary for such extensions. The three campuses also did not provide complainants and respondents with all required information about the investigations. Los Angeles inappropriately closed some cases.

Campuses Resolved Complaints Involving Students and Faculty or Staff Through the Informal Process Twice as Often as Through the Formal Process

University data related to campus responses to sexual harassment complaints reveal wide variation in the campuses’ decisions to use the formal process or the informal process. At our request, the 10 campuses reported to us that from 2007 through 2016 they received and processed more than 1,000 sexual harassment complaints, including substantiated and unsubstantiated complaints, that had student complainants and staff or faculty respondents. As Table 5 shows, the campuses used their informal processes 50 percent of the time, more than twice as often as they used their formal processes. We note later that the campuses’ data contained errors; nonetheless, we used it for our audit purposes because it was the only source of information available.

Merced reported using the formal process the most compared to all campuses: it used this process for an average of 64 percent of its complaints. The Merced campus coordinator attributed this high percentage to the office’s philosophy that prompt and proper investigations should be most widely used and to the fact that Merced had a lower caseload than the larger campuses. In contrast, Davis used the informal process more frequently than the other campuses—82 percent of the time—while the other nine reported that they used it 6 percent to 65 percent of the time. According to the Davis campus coordinator, the campus office’s database could only record complaints under the following options: formal process, informal process, and referrals, which we included in the Administratively Closed column of Table 5. Over the past 10 years, the campus office received a large number of complaints in which it could not identify the complainants or respondents because of a lack of critical information. However, the campus coordinator indicated that Davis recorded all of these cases under the informal process because it lacked another option in the database to categorize such complaints.

The number of cases other campuses administratively closed also affected how often they used the formal and informal processes. The complaint data indicate that the campuses administratively closed a total of 275 complaints, meaning that they did not handle these complaints by either a formal or informal process. Such complaints may include allegations that did not suggest sexual harassment, that lacked critical information or cooperation from complainants or other individuals affected by the alleged behaviors, or that the campuses did not have jurisdiction over. Santa Barbara reported the lowest percentage of complaints under the informal process, and the campus coordinator attributed this in part to the fact that it received a high number of complaints from the campus police department that lacked critical information. The campus coordinator stated that because the campus office received limited information and it cannot engage in any type of complaint response without the victims’ participation, the campus closes these cases. In addition, the campus coordinator stated that through the course of reporting data to the Office of the President, which we describe later, she learned that the campus office had been defining the informal process more narrowly than other campuses.

As Table 5 indicates, disparities exist in the percentage of reported complaints processed both formally and informally among university campuses. Beginning July 2017, the systemwide office began to request campus‑level sexual harassment data, instructing each campus to categorize the complaint process with the following three options: investigated, alternative resolution, or no investigation or alternative resolution accompanied by an explanation. To support its goal of standardizing the university’s response to sexual harassment, the systemwide office can now identify and review any campus offices that appear to be outliers in the way they process complaints.

The Three Campuses We Reviewed Have Not Adequately Informed Complainants About the Informal Process

Campus offices used the informal process to address most sexual harassment complaints, but they did not consistently follow federal guidelines intended to protect complainants when doing so. The informal process does not result in a violation‑of‑policy finding. Therefore, the process typically does not result in discipline; rather, the campus addresses the allegation of conduct through counseling, targeted training, separating the parties, mediation, providing for the complainant’s safety, or entering into a settlement agreement. Table 5 shows that Berkeley followed the informal process for 58 percent of its complaints, Davis for 82 percent, and Los Angeles for 33 percent. The campuses’ reliance on the informal process puts more emphasis on the campus offices to handle these cases properly. We analyzed 30 complaints—10 from each of the three campuses—from 2014 through 2016 in which the complainants were students and the respondents staff or faculty members to determine whether the campuses fulfilled the OCR guidelines when using the informal process. Campus offices identified all of the complaints we reviewed as handled through the informal process, and we verified that the complaints included allegations of prohibited conduct as outlined in university policy. Overall, we found exceptions at each campus throughout the three‑year period.

Given that OCR’s guidance allows campus offices to use an informal process only when a complainant and respondent involved agree to do so, we expected to find that the three campuses had retained correspondence or notes showing they provided each complainant the opportunity to agree to participate in the informal process. University policy provides campus coordinators several reasons for using the informal process—Figure 1 in the Introduction summarizes these conditions—and agreement from the complainant and respondent was just one. However, as Table 6 indicates, the campus offices were able to demonstrate that the complainants agreed in only eight cases of the 20 cases in which the complainants could be contacted. In its 2018 letter report to Berkeley, OCR confirmed our analysis by also voicing concern over the university’s policy that allowed the informal process to proceed without concurrence from both parties. The Office of the President plans to address OCR’s concern and amend university policy to adopt this necessary language.

In a similar, but additional requirement, OCR guidance explains that a campus office must notify the complainant of the right to end the informal process at any time and request a formal investigation; however, we found that the three campuses often did not inform complainants of this option. In the cases where complainants could be identified and did participate, the campus offices informed them in just three of the 17 cases we reviewed. The three campus coordinators separately stated that they use the informal process to address behavior that, even if true, would not rise to a policy violation if investigated. These campus coordinators indicated they assess the allegations and take steps to address behavior before it violates the policy. The complaint files did not all clearly delineate which complaints the campus coordinators determined met the definition of sexual harassment and which complaints did not. To the extent that the campuses use the informal process to address complaints that meet the definition, the evidence indicates they are not meeting federal guidelines because the campus coordinators believe they, rather than the complainants, can determine when the informal or formal processes should be used. OCR disagrees with this approach, and in the recent agreement between OCR and Berkeley, it expressed its concern that the university’s informal process was not being presented as voluntary. By not advising complainants of their option to stop the informal process at any time and begin the formal process, campus offices are not fully informing complainants of their rights under Title IX.

We also found that when the three campuses identified during the informal process that preventive actions were necessary, they generally ensured that counseling, targeted training, or mediation occurred. As Table 6 shows, the three campuses were able to demonstrate that preventive action took place in 21 of the 24 cases we reviewed. Typically, the campuses retained correspondence or other documentation that their campus offices or another campus office had counseled respondents about the behavior that had resulted in the complaints.

Finally, the three campuses did not consistently retain adequate case files to demonstrate how they resolved cases through the informal process, with Davis and Los Angeles performing especially poorly. We expected each case file to include a template explaining the facts of a complaint, interview notes, decisions that the campus coordinator made, the preventive action taken, and the reasons for closing the complaint. Essentially, we anticipated finding a complete record of a case that would allow any user—such as an employee of a campus office that is reviewing case files for a future complaint—to understand what transpired and why. Nevertheless, as Table 6 shows, only 12 of the 30 case files we reviewed had sufficiently complete information. Davis acknowledged that it does not retain all communications with individuals or notes from discussions because its campus coordinator believes that university policy does not require the office to do so. Los Angeles also acknowledged that it did not keep supporting records on complaints that it handled through the informal process from late 2014 through late 2015.

By not retaining sufficiently complete case files, campus offices may hamper their own effectiveness in responding to future complaints or external reviews, and they may also be unable to demonstrate they handled complaints properly in the event of litigation. Because sexual harassment is determined case by case, the information within the case files is pertinent for campus offices to determine what happened in previous complaints, how the campus office responded, and why. Moreover, university policy requires campuses to maintain records of actions they take in response to reports of sexual harassment. Information in case files also can be used to determine if a pattern or practice of harassment exists or whether previous preventive measures were effective, ultimately helping to determine if a campus is resolving recurring problems.

In its February 2018 letter report, OCR reported concerns about Berkeley’s informal process that mirror many of our own. OCR repeatedly mentioned that Berkeley could not show that it had obtained both parties’ agreement to proceed with the informal process. OCR focused, in part, on complaints from students about faculty or staff sexual harassment. It reviewed related case files for the academic years 2011–12 through 2014–15 and included for review all complaints or reports about sexual harassment by students against faculty for the 2014–15 academic year. Thus, its review period and scope are included in our own review of calendar years 2007 through 2016. Because we raise the same issues about the other two campuses we reviewed—Davis and Los Angeles—OCR’s concerns with Berkeley are potentially more far‑reaching than a single campus.

Two of the Three Campuses Struggled to Meet University Policy’s Requirements for Investigation Time Frames and Notices

The three campuses we reviewed did not consistently follow university policy or Title IX requirements when using the formal process to investigate complaints. We reviewed 29 formal‑process cases from 2014 through 2016 in which the complainants were students and the respondents staff or faculty: 10 from Berkeley, 10 from Los Angeles, and nine from Davis—the number of formal‑process cases Davis conducted during those three years. As the Introduction discusses, the formal process includes an investigation that leads to a referral for discipline if the investigation substantiates that the respondent’s behavior violated university policy. Table 7 summarizes our review; overall, we found exceptions at each campus throughout the three‑year period reviewed. However, these exceptions were more prevalent at Berkeley and Los Angeles.

To meet the OCR guidelines of resolving complaints promptly, university policy states that campuses shall complete investigations promptly, typically within a time frame of 60 business days or less, unless an extension is granted. Of the 20 total cases we reviewed from Berkeley and Los Angeles, the campuses completed their investigations within 60 business days or had extensions approved for the entire period for only six and four complaints, respectively, as Table 7 shows. In some cases, the two campuses obtained approved time extensions after already exceeding the 60 business‑day time frame, and these time extensions did not cover the entire period. In contrast, Davis completed seven of nine investigations we reviewed within 60 business days and appropriately obtained approval for extensions for the remaining two cases.

Berkeley and Los Angeles performed lengthy investigations that often lacked approved extensions. As Figure 8 shows, of the 29 cases we reviewed from the three campuses, 15 took longer than 60 days, and the campuses lacked extension approvals for 10, or 67 percent. Berkeley and Los Angeles took from 76 to 303 days to complete their investigations, and for one investigation, Los Angeles failed to finalize the report at all. Berkeley’s campus coordinator asserted that the campus has followed the process established in 2014 university policy requiring written approval and communication of timeline extensions. Nonetheless, the campus initiated the investigations we reviewed from 2014 through 2016, and four cases lacked approved time extensions. The current Los Angeles campus coordinator stated that he was not working at the campus during that period, but that he presumed that time extensions were approved but not documented.

Figure 8
Two of Three Campuses Did Not Always Obtain Approval to Extend Investigation Timelines

Although the university policy allows for extensions, it does not specify the number or duration of them. Figure 9 illustrates an investigation that Berkeley took 264 business days to complete, during which its campus office did not obtain approvals for exceeding the 60 business‑day time frame, although it did obtain approval for a six business‑day extension midway through the investigation. However, the investigator did not complete the report within six business days of this approval, which she stated was her intent when she requested the approval; instead, she took 156 more business days before issuing the investigation report, and she failed to request further extensions.

Figure 9
In One Example, Berkeley Did Not Receive All Necessary Extensions for an Investigation

In addition, when these campuses did request time extensions, some of the reasons they cited were not relevant or material to the facts of the investigations, making it unclear why the extensions were needed. Since 2016 university policy has stated that a campus office can approve an extension for good cause. Although university policy does not define good cause, it is reasonable to conclude that good cause should be related to material or unforeseen circumstances connected to that specific case, such as the discovery of new evidence or the recognition of the overall complexity of the investigation. For example, when submitting an extension request, a Los Angeles investigator stated that the case was long delayed due to difficulties contacting the respondent, which is a legitimate reason for an extension. However, the investigator also cited reasons unrelated to the case—her own personal leave and increased workload from other cases. This investigation took 303 business days to complete, well past the 60 business‑day time frame. In another case, a Berkeley investigator cited several legitimate reasons for the requested extension but also said that the campus office’s increased caseload had delayed the investigation. In both these examples, the justifications are not all relevant to the specific cases, and they make the real causes for the extensions difficult to determine. When a campus office seeks or approves an extension for reasons other than good cause, the added length to the investigation unnecessarily hinders the complainant and respondent from receiving prompt resolution.

Campus offices also have not consistently provided complainants and respondents with all of the information required at the beginning of an investigation. In the past, university policy for respondents differed from that for complainants. From 2014 through 2016, policy required that at the beginning of an investigation a campus send notification to the respondent containing a statement of the allegation and providing the university’s policy. In 2016 university policy added that the notification must inform the respondent of the complaint resolution process and the resources available to him or her, such as counseling or advocacy services. Complainants were afforded the same notifications as respondents starting in 2016. However, based on our review of 29 cases, the three campuses sent complete notifications at the beginning of investigations to respondents in only 20 of the 29 cases and to complainants in six of the 11 cases that required it. In the exceptions we noted, the campuses omitted one or more of the information requirements from the notifications or did not send the required notifications at all.

Most frequently, the campuses—particularly Los Angeles—did not include a copy of the university policy. Sending respondents and complainants the policy is important because the formal process used to resolve a sexual harassment complaint is complicated and can be lengthy. The parties deserve to understand the process and their roles and rights in it; thus, including the policy in the notification at the beginning of the investigation provides that necessary information. The three campuses were unable to explain why they did not follow the university’s notification requirements.

Campus offices generally provided notifications to complainants and respondents at the conclusions of the investigations in the cases we reviewed. University policy requires a campus to notify the parties at the completion as to whether it found that the respondent had violated university policy. As we show in Table 7, the campuses notified complainants at the conclusion of 23 of the 25 cases that had listed complainants. Berkeley and Los Angeles did not notify one complainant each. Further, the campuses notified respondents at the conclusion of the investigations for 26 of the 29 cases, again with Berkeley and Los Angeles sometimes not providing these notifications. Similar to others that we describe, this notice helps the campuses maintain transparent and fair processes and bring closure to the complaint.

Finally, as required, the three campuses included a determination of whether the respondent violated university policy in 28 of 29 investigation reports we reviewed. We identified one case in which the Los Angeles campus office began an investigation but failed to publish a final investigation report. In response to our inquiry, the current campus coordinator plans to contact the academic department where this complaint occurred and possibly the complainant to see how the matter was resolved and whether additional action needs to happen. Further, the current campus coordinator told us that the campus office prepared a draft report that did not substantiate the complaint. However, because of a change in staffing, the campus failed to finalize the investigation. This case involved a complainant who was no longer attending the campus, and although the faculty respondent had retired in 2014, he continued to work on campus in a limited teaching role. This case raises the concern that when investigations are not completed, it could result in sexual harassment not being identified or addressed appropriately.

In its February 2018 letter report, OCR expressed concerns with Berkeley’s formal process that mirror our concerns regarding the length of investigations. OCR reported that in at least 12 of the 200 cases that it reviewed for complaints received from 2011 through 2015, Berkeley did not resolve investigations in a reasonably prompt manner; these investigations ranged in length from eight to 14 months. Further, none of these cases included information about mitigating circumstances that might have contributed to the delays. Since OCR did not identify the individual cases it reviewed, we cannot conclude we analyzed the same cases.

Los Angeles Administratively Closed Some Complaints Inappropriately

Sexual harassment data show that some campuses administratively closed complaints more often than others. On average, campuses classified complaints as administratively closed 27 percent of the time. Of the three campuses we reviewed, Los Angeles administratively closed 32 percent of its cases, which was more than Berkeley, at 23 percent, and Davis, at 8 percent. Because Los Angeles was an outlier among these three campuses, we reviewed 10 complaints that the campus administratively closed from 2015 through 2016. Of the 10 complaints we reviewed, we believe that the campus office closed six complaints reasonably because, for example, the respondent or complainant was not identified, the complaint was addressed at another campus, or the campus office could not contact the complainant.

However, we questioned why the campus office did not take action on four of the complaints. Based on our review, those four complaints appeared to include enough information to warrant responses. They included allegations of prohibited conduct and identified both the respondents and complainants. For example, one student filed a complaint that a staff person at the student health and wellness center made inappropriate comments during the student’s visit to the center. However, the campus office administratively closed the complaint citing insufficient evidence and did not indicate it took additional actions. The current Los Angeles campus coordinator reviewed the four complaints we questioned and agreed that all four allegations were appropriate for review and action. However, because he was not at Los Angeles at the time, he could not be certain why the campus office had administratively closed the complaints, and he said it was possible the campus office did not document all actions taken on them. However, by administratively closing these complaints, the campus did not fulfill its responsibility under university policy to address allegations of prohibited conduct that were reported to it.

Recommendations

To ensure that campuses administer the informal process correctly for complaints alleging conduct that would violate university policy, the Office of the President should do the following by July 2019:

• Identify required elements for capturing the agreement between a complainant and respondent to use the informal process and require the campuses to integrate these required elements into their processes.
• Identify required elements for communications that inform a complainant and respondent of the informal and formal processes available to address the complaint, as well as what to expect of each process, and that also inform the complainant of his or her right to end the informal process at any time by requesting the formal process. The Office of the President should require the campuses to integrate these required elements into their processes.
• Modify university policy to require that the campus office either participate directly in the resolution with the respondent and responsible campus officials or that the campus office receive written confirmation from the responsible campus officials describing the resolution and documenting that it took place.

To ensure that campuses retain adequate and consistent documentation for complaints they handle through the informal and formal processes, the Office of the President should determine the types of documents campuses should retain. The Office of the President should consider the types of complaint information, correspondence, and interview notes that would be necessary when determining a campus’s response to a complaint. The Office of the President should modify university policy to include these requirements, and they should take effect by July 2019.

To ensure timely completion of investigations, the Office of the President should modify university policy to address investigation extensions. The policy changes should include, but not be limited to, defining good cause for an extension as material or unforeseen circumstances directly related to the complaint, specifying a standard extension period, requiring that an extension be requested and granted before the initial 60 business‑day period expires, and specifying the time frame within which a campus must notify the parties about each approved extension. The policy should also outline examples of the material or unforeseen circumstances that could warrant an extension and specify the number of extensions available for an investigation before requiring approval from the systemwide coordinator. The changes should take effect by July 2019.

To ensure that the campuses send complete notifications at the start and end of an investigation, the Office of the President should identify required elements for the campuses to include in these notifications and require the campuses to integrate these required elements in their notifications by July 2019.

To ensure that the campuses are using the administratively closed classification correctly and consistently, the Office of the President should modify university policy to include criteria for identifying and classifying complaints as closed. These criteria should identify the circumstances in which it is appropriate to close cases and the documents that campuses should retain. The criteria should also define what services campuses should provide to complainants and detail the type of communication campuses should provide to them. These modifications should take effect by July 2019.

The Systemwide Title IX Office Has Opportunities to Improve and Standardize the University’s Response to Sexual Harassment Complaints

Key Points:

• The systemwide office lacks a clear mission that would enable it to ensure that the university’s response to sexual harassment is coordinated and consistent. At a minimum, the systemwide office should play a central role in setting university policy, analyzing complaint data, and overseeing the campus offices.
• University policy does not fully align with federal regulations and best practices, an issue that the systemwide office should address.
• Most campuses do not effectively analyze complaints data to identify and address trends. The systemwide office has an opportunity to improve the university’s use of complaints data.
• The campuses have not used consistent standards when hiring Title IX investigators. By defining minimum staff qualifications for the campus offices, the systemwide office could help ensure a consistent response to sexual harassment complaints systemwide.

The Systemwide Office’s Mission to Ensure Consistency and Coordination Is Unclear

Established in February 2017, the systemwide office has begun coordinating and standardizing the university’s response to sexual harassment, but the Office of the President needs to clarify the authority of the systemwide office to change campus procedures and to implement consistent practices. The Office of the President charged the systemwide coordinator with ensuring consistency and coordination in the university’s sexual harassment policies and procedures. In addition, it gave the systemwide coordinator shared authority over the 10 campus coordinators, thereby creating a dual reporting structure between the Office of the President and campus leadership. The Office of the President stated that a key role of the systemwide coordinator was to ensure that the 10 campus coordinators all possess the same competencies and execute the same responsibilities.

Although the Office of the President has stated a goal of implementing a consistent and coordinated response systemwide, it needs to define how much consistency it desires and provide the systemwide coordinator the authority to achieve that level of consistency. Over the past year, the systemwide office has consolidated several systemwide Title IX responsibilities. For example, in July 2017, the systemwide coordinator issued new investigation and adjudication procedures (systemwide procedures) for faculty and staff cases. These procedures added a number of new requirements, including that the chancellor’s designee approve the discipline in staff cases, a step intended to aid campuses in maintaining a consistent and proportional response to misconduct across different campus departments. Some campuses, such as Berkeley and Los Angeles, have added provisions to their local Title IX procedures (local procedures) to adapt the systemwide procedures to their circumstances or to incorporate additional information. Although university policy requires campuses to establish and implement local procedures that are consistent with policy, doing so maintains existing inconsistencies between the campuses and introduces new ones. For example, under its local procedures, Los Angeles has maintained an existing inconsistency: it has a separate charges committee that reviews charges of misconduct against Senate faculty to determine if probable cause exists of policy violations before the vice chancellor of academic personnel submits the charges to the tenure committee.

Permitting the campuses to use a variety of documentation further illustrates the lack of clarity in the Office of the President’s vision for a consistent and coordinated Title IX response. For example, the systemwide office has provided campus offices with templates for their investigation reports and general guidance documents about Title IX. The former systemwide coordinator encouraged the campus offices to use these templates and guidance but did not require it. In our review of cases from 2014 through 2016, we noted inconsistencies in case file documentation at the campus offices. For example, the Davis campus coordinator prepared a charge letter to the investigator that detailed the allegations in the complaint and the expected date that the investigator would submit a report. We did not find evidence that the campus coordinators did this at Berkeley or Los Angeles. Doing so may represent a best practice, and having standard templates that all campuses use would ensure that they follow such best practices. The former systemwide coordinator stated that determining how to oversee the campuses has presented challenges because her position is new and its authority has been evolving. One such challenge is that not all campus coordinators share the view that practices and protocols should be the same among campuses.

We recognize that refining procedures will take time, but more importantly, achieving consistency comes from establishing a clear vision of a desired goal and ensuring that those charged with achieving that goal have the authority to implement that vision. The Office of the President has taken some, but not all, necessary steps to define a clear mission for the systemwide office and give it the authority to carry out the mission. Over the course of four years—from 2014 into 2018—the Office of the President has received significant feedback about necessary changes and improvements to the university’s response to sexual harassment complaints. Federal and state oversight entities and internal stakeholder groups—as we describe in the Introduction—have reviewed and made recommendations to the Office of the President to improve the university’s practices. The message in these reviews has been consistent—that the university must do more to stop, prevent, and remedy sexual harassment. As Table 8 summarizes, the findings in our current report align with the findings in those earlier reviews. For example, later in this report, we note that the university could use systemwide data to monitor trends and address issues at underperforming campuses; three prior reviews—including the university’s own internal reviews—also identified data use as an area for improvement.

To address these consistently identified problems, the Office of the President must further clarify the systemwide office’s mission and authority. Based on the university’s stated goals for the systemwide office, we identified three fundamental areas in which the systemwide office should play a central role in the university’s efforts to prevent and respond to sexual harassment: setting policy, analyzing applicable data, and overseeing the campus offices.

As Figure 10 shows, the systemwide office is already doing some things in these areas, but it could do more. Currently, it has responsibility for the university’s policy; however, to better fulfill this role, it should ensure that the campuses have guidance to consistently implement policy and that it approves the campuses’ local procedures to ensure that they align with university policy. Further, although the systemwide office is already undertaking some data collection efforts, it must build on these efforts by analyzing the data for complaint patterns and then acting on those patterns by providing technical assistance to campuses or by clarifying policy to address any trends that indicate that campuses are not effectively addressing sexual harassment. Finally, to achieve consistent campus responses to sexual harassment, the systemwide office must have the authority to hold the campuses accountable for operating in accordance with university policy. Through its Office of Ethics, Compliance and Audit Services, the Office of the President has reviewed the 10 campuses’ Title IX operations once, and it has committed to conducting routine Title IX reviews at each campus at least every three years. However, the systemwide office should regularly perform focused reviews of selected issues it identifies through its analyses of data. These reviews could also target one at a time the long‑standing issues raised in this report and earlier reviews to ensure the campuses fully resolve each issue. The Office of the President needs to take steps of this nature to ensure that it achieves a consistent and effective response to sexual harassment across the university.

Figure 10
Recommended Mission and Authority for the Systemwide Title IX Office to Help Ensure the University Effectively and Consistently Responds to Complaints

University Policy Needs Improvements to Satisfy Regulations and Best Practices

As the Office of the President moves to amend university policy and enforce it at each campus, it also needs to ensure that university policy better aligns with federal regulations and best practices. The systemwide office’s authority over university policy means it will oversee future revisions to the current policy, including revisions required through the agreement that OCR reached with Berkeley in February 2018. As Table 9 shows, many current policy sections, which became effective in January 2016, satisfy regulations and best practices. However, other areas need improvement. For example, defining when an investigation begins will better allow the university to determine whether a campus office promptly resolved an investigation or took longer than the current 60 business‑day time frame. Further, the policy needs to state that its scope includes third parties when they are on university property or participating in university‑sponsored activities. OCR also identified that the university policy needs to state its applicability to third parties, and the Office of the President agreed to make this change by February 2019.

The most significant deficiency with university policy involves the procedures governing the informal process. In our 2014 report on the university’s sexual harassment policies, we determined that the university policy at the time was inconsistent with OCR guidelines because it gave the campus coordinator the discretion to decide whether to use the formal process instead of explicitly giving the complainant the right to the formal process if he or she requested it. Despite the recommendation in our 2014 report that it change its policy, the university has continued to give the campus coordinator this discretionary authority. In its February 2018 letter report, OCR also determined that the university policy was noncompliant in this matter, and the Office of the President has agreed to amend its policy to include this provision by February 2019.

The Systemwide Office Has an Opportunity to Improve the Use of Complaints Data

Opportunities exist for the systemwide office to refine its data collection and analysis and to increase the use of data in identifying trends and potential problems in how campuses respond to sexual harassment complaints. Data analysis is a powerful tool that helps organizations to efficiently identify trends and exceptions that require further attention. Although university policy requires campus offices to identify and address any patterns or systemic problems, most campus coordinators have not effectively used complaints data to do so. In July 2017, the systemwide office began collecting campus‑level sexual harassment data and is currently working to improve and finalize its data collection process.

One use for complaints data is to identify trends of the types of harassment that predominate and the locations on campus where sexual harassment is more likely to occur. However, when we spoke to the campus coordinators at the 10 campuses, several explained to us that because they lacked case management systems in the past, they used data in limited ways, including annual reporting to campus officials of complaint statistics. Those summary reports are informational, but often they are only snapshots of complaints within a short time, and they do not demonstrate trends in complaints. The campus coordinators at Irvine, San Diego, and San Francisco told us that in addition to their annual reports, they produced internal reports to analyze their sexual harassment complaints data. For example, the San Francisco campus office produced statistics on the number of sexual harassment complaints that it received over a three‑year period, and the Irvine campus office sends memos to other campus units summarizing the number of sexual harassment complaints related to the unit that the campus office received and resolved. Nonetheless, we found that almost all of these analyses were too general to assist the campus office in identifying campus locations where complaints frequently occur or in identifying common behaviors that result in complaints. By not using data to systematically identify trends in sexual harassment behaviors or in individuals accused of perpetrating it, the campus offices have missed opportunities to stop, prevent, and remedy sexual harassment. As most campus offices have now begun to use case management systems, opportunities exist for the systemwide office to work with campuses to develop and implement processes and data reports to assist them regularly in identifying patterns related to sexual harassment to inform their training and outreach efforts, among other things.

The systemwide office also has an opportunity to use campus complaints data to support its goal of coordinating and standardizing the university’s response to sexual harassment. Gathering complaints data from all campuses would allow the systemwide office to identify trends among campuses to effectively inform prevention efforts, reduce inconsistencies in discipline, and monitor campus performance. For example, as we previously noted, our analysis of complaints data found that some campuses use the informal process to resolve complaints much more frequently than others. Performing a similar analysis could help the systemwide office identify which campuses are not meeting its expectations and give the systemwide office a basis to focus its on‑site reviews.

As we discuss earlier, because the campuses we visited imposed discipline inconsistently for faculty, we believe the university should give the campus coordinators an established role in the discipline process. For campus coordinators to inform decision makers about whether proposed disciplines are commensurate with respondents’ substantiated misconduct, they should have a systemwide view of disciplinary decisions. This information would need to come from the systemwide office’s compilation and analyses of the campuses’ complaints data. Although the systemwide office is currently requesting complaints data from campuses, including summaries of disciplinary decisions, it would benefit the systemwide office to collect information on repeat respondents as well. By having systemwide records of disciplinary decisions for repeat respondents, the campus coordinators will have better information to evaluate disciplinary decisions to prevent imposing the same ineffective discipline that allowed for repeat misconduct in the past. By effectively collecting and analyzing data on the campuses’ sexual harassment complaints, the systemwide office can establish a baseline to measure how each campus is responding to these complaints, eliminate inconsistencies among the campuses, and guide each campus office to respond more effectively to these complaints.

The Systemwide Office Has Opportunities to Define Staff’s Minimum Qualifications and Training Standards

Opportunity exists for the systemwide office to establish minimum hiring qualifications for campus Title IX investigators. In the broadest sense, Title IX work requires an individual to understand the Title IX law and issues and to possess interview skills, good oral and written communication skills, and analytical and critical thinking skills. We analyzed the job announcements for the 21 individuals involved in investigations during 2016 and 2017 at the three campuses we visited. We found multiple examples of job postings omitting skills that are important for Title IX investigators to have. Not only did the campuses use different hiring standards from year to year, but the standards also varied from campus to campus. For example, three of the four postings at Davis did not require knowledge of Title IX or sexual harassment laws, policies, or procedures. Five of the nine announcements at Los Angeles reflected the same omission. In addition, five job announcements at Los Angeles and one at Berkeley did not list interviewing as a requirement. The Office of the President stated that its vision for the university is a consistent and coordinated Title IX response. Achieving that vision will rely, in part, on those staff performing Title IX work all possessing appropriate skills, which can be facilitated by campuses using consistent and comprehensive job announcements.

The systemwide office also has an opportunity to set training standards for the campus offices. Federal law sets training requirements for Title IX investigators; those requirements state that annual training is required and must cover topics such as understanding sexual assault and conducting investigations. University policy, however, only broadly addresses training, stating that investigators must take regular comprehensive training with a trauma‑informed perspective. The policy does not specify the minimum training hours per year or any required classes. The systemwide office has an opportunity to establish training standards that specify content, frequency, and quantity, which is information that university policy currently lacks. These more specific training standards will help ensure that all university employees associated with or performing Title IX functions—the campus coordinators, investigators, office staff, and other campus staff—develop relevant skills and stay current in emerging theories and techniques for stopping, preventing, and remedying sexual harassment.

Although the Berkeley campus coordinator indicated that the university’s broad view of training allows individuals to take advantage of a full range of training options, we identified a number of concerns with this approach. We analyzed training records for the same 21 individuals involved in investigations at the three campuses we reviewed, noting training hours and topics, and we found that although investigators and coordinators are indeed taking training, the total hours and content vary widely. For example, training hours during 2017 for the three Los Angeles investigators that worked that year ranged from 8.75 hours to 30 hours. During the same year, four investigators at Davis recorded training ranging from 31 hours to 87.5 hours and the training topics ranged from implicit bias to dating and domestic violence in the digital age to diversity awareness. Requirements also varied for new staff, as Davis and Los Angeles generally required newly hired investigators to take a comprehensive training course, whereas Berkeley simply encouraged staff to take such a course because it believes its staff already possess that knowledge and those skills. Additionally, the three campuses lacked formal training programs that defined new hire expectations, outlined different aspects of the complaint process, and reviewed office procedures. A best practice would include the systemwide office more explicitly defining training content to ensure that all individuals involved in investigations are supplementing the skills that the university determines are most relevant to their jobs.

Both the systemwide and campus offices have an opportunity to improve their oversight of training. Campus offices at the three campuses we reviewed relied on staff to self‑report their annual training. Beyond this, however, the campus offices did not actively monitor the accuracy of training information. We found that their training records included errors ranging from incorrect dates to incorrect or missing hours, as well as instances of investigators reporting courses they did not take and more hours than they actually completed. For example, one investigator incorrectly recorded taking an extra seven hours of training because she included a course twice, listing it once as a webinar and then as an in‑person training course. Without accurate information, campus offices cannot ensure that their investigators are up to date on their training and, as a result, that they are current on any new information and techniques presented in those trainings. Similarly, because the Office of the President desires consistency across the university, the systemwide office must play a role in monitoring campuses to ensure that each meets systemwide training standards, thereby verifying that all staff, regardless of their locations, are adequately prepared to carry out their Title IX responsibilities.

Recommendations

To ensure that the systemwide office has appropriate direction and the systemwide coordinator has the necessary authority, the Office of the President should work with the systemwide coordinator to develop a strategic plan for the systemwide office that delineates how it will approach achieving consistency systemwide. This plan should also ensure that the systemwide office updates university policy to comply with federal and state requirements and best practices, that it reviews and approves local procedures for compliance with university policy, that it oversees campus Title IX activities, and that it improves the university’s use of campus data on sexual harassment complaints. The Office of the President should grant the systemwide coordinator the authority needed to enforce the desired plan, and it should develop the plan by December 31, 2018.

To ensure that university policy complies with best practices, the systemwide office should amend that policy by July 2019 to incorporate the following provisions in addition to the other changes that it has already agreed upon in its resolution with OCR:

• A statement that the policy applies to third parties.
• A statement that the policy applies to online behavior or social media that may affect an individual’s educational experience.
• A statement that the university may initiate a complaint.
• The date that identifies or defines the start of an investigation.
• The allowable length of an extension for an investigation and what constitutes good cause for an extension.
• An explanation of how a campus can protect confidentiality when implementing interim measures.
• An explanation of what information a campus can keep confidential and what information it must disclose.
• The requirement to give the complainant the right to end the informal process and begin a formal process.
• Procedures to ensure that the informal process provides prompt and equitable resolution of complaints.

To address any patterns or systemic problems of sexual harassment, the systemwide office should do the following by July 2019:

• Continue to improve and finalize the data collection process, including identifying data points that campuses should gather for each complaint and data points for tracking repeat respondents.
• Work with each campus to develop and implement processes and data reports to assist the campus in regularly identifying patterns and systemic problems related to sexual harassment and in instituting sexual harassment prevention education and training in those areas that need it.
• Work with each campus to implement ongoing data quality control processes in order to ensure sexual harassment complaints data are accurate and complete.
• Identify and review campuses’ complaints data to identify outliers in their use of the formal, informal, and administratively closed processes.

To ensure that each campus hires the most qualified individuals to perform Title IX‑related functions, the systemwide office should, in consultation with the campuses, develop a list of key Title IX positions and the associated minimum and desirable qualifications. The systemwide office should ensure that effective July 2019, each campus follows those qualifications when hiring new staff.

To ensure that all investigators and staff performing Title IX‑related functions have necessary and consistent training, the systemwide office should amend university policy to take effect July 2019 to make clear the Title IX training requirements. The policy should do the following:

• Specify the number of training hours required of each investigator and staff member, the period within which the training must be completed, and the minimum number of training hours within each period.
• Specify the topics that the training must cover and the minimum number of training hours required on each topic.
• Set training topics and the requisite number of hours by topic that new employees must complete and the period within which the new employee must do so.
• Require that each campus develops and implements processes to track staff training.
• Specify that the systemwide office will monitor each campus to ensure it adheres to the training requirements.

Other Areas We Reviewed

The University’s Settlements Did Not Unreasonably Limit Student Victims’ Access to Academic and Employment Opportunities

Based on our review of the Regents’ settlement policy and university practices, the university’s settlements were reasonable and were not intended to restrict students’ opportunities with the university. When a student believes that the university is responsible for harm that a university employee has inflicted upon him or her, such as by failing to prevent sexual harassment, he or she may consider taking action against the university in the form of a lawsuit or a demand for restitution that does not involve litigation. As Table 10 shows, the 10 campuses and the Office of General Counsel for the Office of the President reported entering into 20 settlements with complainants and respondents stemming from sexual harassment complaints, for which the university paid nearly $4.5 million. The Office of General Counsel was responsible for monitoring and approving these settlements. The settlements spanned the 10‑year period from January 2008 through December 2017. We chose this period in order to encompass the most recent settlements because settlements typically begin after campuses have assessed the complaints through their Title IX complaint resolution processes and because settlements can take significant time to resolve.

The Regents’ settlement policy and the university’s templates for settlement agreements are the basis for the university’s agreements with claimants. The Regents’ policy, amended in 2008, defines the levels of authority required to approve a settlement. These levels of authority are based primarily on the dollar amounts the university must pay. According to that policy, the university may negotiate settlements to resolve any litigation or claims, provided that the litigation or claims do not involve significant questions of university policy, university or Regents officers, or payment greater than $500,000. The university does not have a specific policy governing what terms may be included in settlements stemming from sexual harassment complaints; instead, the university uses standard templates as a foundation guiding its settlements with student and employee claimants. Based on our review, these templates do not include terms that would be potentially punitive to student sexual harassment victims. The templates contain common settlement terms, along with legal advice for when to include those terms. For example, the templates do not contain terms barring students from studying at the university. Although the employee liability template contains a term prohibiting future employment at the university, this term is not included in the settlement template currently used for student employees. Further, the deputy general counsel of the Labor, Employment, and Benefits group for the Office of the President (deputy general counsel) clarified that there is no requirement that a student employee end his or her employment as part of a settlement. Therefore, by relying upon its templates, the university is likely to consistently negotiate settlements that do not include terms restricting students’ access to educational and employment opportunities.

The university’s settlements result in legally binding signed agreements that can contain a balance of cash payment and other terms, some of which may be restrictive. Restrictive terms are designed to minimize the risk of any future litigation or claims against the university arising from a settled claim. Examples of restrictive terms include confidentiality terms and terms barring a claimant from future employment. As Table 10 shows, the three campuses we reviewed entered into 14 settlements stemming from sexual harassment complaints. We reviewed only those signed agreements stemming from substantiated complaints; Table 11 summarizes these 10 settlements. As the table shows, nine of the 10 settlements were with complainants, and one was with a respondent. In total, the university paid these 10 individuals over $1.3 million. Because Davis did not have any settlements stemming from substantiated complaints, the 10 settlements in Table 11 are from complaints at Berkeley and Los Angeles.

As Table 11 shows, the signed agreements we reviewed contained a variety of terms, many of which were not present in the university’s templates. For example, as part of a settlement, one complainant negotiated to receive a dissertation‑year fellowship—a program, usually requiring an application, that allows doctoral candidates to focus solely on completing their dissertations. The no‑rehire and confidentiality terms were part of the standard templates for non‑student employees; however, as Table 11 shows, those terms were sometimes included in settlements with student complainants. The deputy general counsel explained that in some circumstances, it is reasonable to include a confidentiality term, such as when the claimant requests it or when publicizing a settlement would harm the university or its employees. The deputy general counsel explained that the settlement process occurs outside of the Title IX complaint resolution process and that whether a settlement term is reasonable depends on the specific circumstances of each negotiation. More often than not, she noted claimants also have legal representation during settlements.

Furthermore, Table 11 lists several examples of other restrictive terms not found in the templates, such as a term barring a student from studying or working at the university. By including this term, the university sought to fully close the dispute and to minimize its risk that the complainant would pursue future action against it. We did not observe other settlements that included a term barring the student complainant from studying or working at the university at the campuses we reviewed.

Campuses Can Improve Their Record Keeping Practices to Eliminate Data Errors

The data the campuses maintain related to sexual harassment complaints contain errors, and before the campus offices can effectively use these data for analyses and reporting, the campuses need processes in place to ensure their reliability. Beginning July 2017, the Office of the President collected from all campuses some sexual harassment data monthly and more comprehensive data semiannually. However, in reviewing complaints data from Berkeley, Davis, and Los Angeles, we found errors in two of the three databases. After obtaining sexual harassment complaints data from the remaining seven campuses and randomly selecting 29 items from each campus for review, we also found errors in four other campuses’ databases. To ensure that the complaints data for all 10 campuses were complete, we selected 29 case files from each campus, then verified that each complaint was recorded appropriately in the campus’s database. As Table 12 indicates, we found that of the 10 campuses, only Berkeley’s database was not complete in two instances. However, these errors and the others that we found indicate that the university’s complaints data contains some unreliable information that can limit the university’s ability to identify sexual harassment trends.

The data errors we found may have occurred because the campuses lack quality control processes to ensure that their data are accurate. Data quality is supported by an entity’s ongoing commitment to ensuring that its data are entered correctly and consistently. However, most of the campus coordinators we interviewed told us that their campus offices did not have regular data review processes in place but instead relied on staff noticing data errors. Additionally, most campuses have maintained data in two or three data systems over the past 10 years. Because of these multiple systems, campuses have been exposed to the inherent risk of data loss during system transfers as well as inconsistencies in the way complaints were formatted and inputted into the various systems. We note that most campuses have recently upgraded to data software programs that are specifically designed for case management purposes. Although implementing new systems often represents progress, changes in data systems may pose a challenge to the campuses’ ability to maintain reliable data spanning multiple years. The Office of the President should ensure that university campuses implement ongoing data quality control processes to help ensure that sexual harassment complaints data are accurate and complete. That way, both campuses and the systemwide office can effectively use data to identify trends to better prevent sexual harassment, as well as to reduce disciplinary inconsistencies among campuses.

Scope and Methodology

The Joint Legislative Audit Committee (Audit Committee) directed the California State Auditor to conduct an audit of the university’s practices for handling sexual harassment complaints. The analysis the Audit Committee approved contained seven objectives. We list the objectives and the methods we used to address them in Table 13.

Assessment of Data Reliability

The U.S. Government Accountability Office, whose standards we are statutorily required to follow, requires us to assess the sufficiency and appropriateness of computer‑processed information that we use to support findings, conclusions, and recommendations. In performing this audit, we obtained electronic data files from three campuses—Berkeley, Davis, and Los Angeles—to identify the total number of sexual harassment complaints with student complainants and staff or faculty member respondents and to evaluate the university’s practices for handling such sexual harassment complaints. Because supporting documentation for their electronic complaint records was lacking, we were unable to perform standard accuracy testing for these three campuses’ databases; however, through observation and using the data to identify cases for review, we identified data errors in the databases of both Berkeley and Los Angeles. We also performed completeness testing by haphazardly selecting 29 complaint files from each campus’s paper file system and ensuring that these complaints were recorded in the campus’s electronic database. Our testing found that Davis and Los Angeles maintained complete electronic data, but we cannot ensure the completeness of Berkeley’s electronic database.

For the remaining seven campuses—Irvine, Merced, Riverside, San Diego, San Francisco, Santa Barbara, and Santa Cruz—we requested that each campus provide us with its data on sexual violence and sexual harassment complaints involving students, faculty, and staff members for the 10‑year period from 2007 through 2016. We performed accuracy testing by randomly selecting 29 items from each campus’s electronic dataset and testing key data elements against their supporting documentation. These key fields included the year the complaint was filed, the complainant and respondent’s affiliation with the campus, the complaint type, and the complaint process used in addressing the complaint. For example, we verified that the complaint type, which describes a complaint allegation, was of a sexual harassment nature. We found that the data from four of the seven campuses contained errors, which we discuss in the Other Areas We Reviewed.

We also performed completeness testing by haphazardly selecting 29 complaint files from each campus’s paper files and ensuring that no relevant cases related to sexual harassment complaints were erroneously excluded from the electronic data the campuses provided to us. Our testing found that all seven campuses maintained complete electronic data. Based on our tests at the 10 campuses, we determined that the campuses’ data are not sufficiently reliable for purposes of this audit. However, these data are the only available source of sexual harassment complaints at the university. Although the lack of reliability of these data may affect the precision of the numbers we present, there is sufficient evidence in total to support our audit findings, conclusions, and recommendations.

We conducted this audit under the authority vested in the California State Auditor by Section 8543 et seq. of the California Government Code and according to generally accepted government auditing standards. Those standards require that we plan and perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives specified in the Scope and Methodology section of the report. We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objectives.

Respectfully submitted,

ELAINE M. HOWLE, CPA
State Auditor

Date:
June 21, 2018

Staff:
John Baier, CPA, Audit Principal
Sharon L. Fuller, CPA
Brendin James, MPSA
Cori Knudten, PhD
James Stallworth
Cecilia White, MPPA, CFE
Ashley Yan

Legal Counsel:
J. Christopher Dawson, Sr. Staff Counsel

For questions regarding the contents of this report, please contact
Margarita Fernández, Chief of Public Affairs, at 916.445.0255.

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