Last year, the University of California released revised draft versions of the SVSH policy and its implementation frameworks to comply with 2020 changes to federal Title IX regulations made by the U.S. Department of Education (“DOE”).
Last month, the UC president’s office released further revised versions of those same documents. They entered into force on January 1, 2022.
Later this year, the DOE plans to propose new amendments to the Title IX regulations. The university expects the new changes to be a significant improvement. In the meantime, UC is making every effort to mitigate the damage caused by existing regulations, including issuing these revised policies.
the SVSH Policy and Frameworks are important to our ongoing efforts to combat sexual harassment. The Title IX office and campus partners involved in managing our SVSH policy have exercised great care and attention to ensure implementation consistent with our commitment and values.
Major revisions, impetus for changes, and other important information are summarized below.
Amendments to Senate Bill 493
Some revisions must comply with California Senate Bill (SB) 493. This legislation was authored by former Senator Jackson of Santa Barbara and sponsored by Equal Rights Advocates and the Women’s Foundation of California. It was prompted in large part by concerns, which UC shares, about the potential negative effects of the 2020 changes to Title IX regulations.
The SVSH policy and implementation frameworks have already codified most of the
Requirements of SB 493. Revisions are therefore limited. In the SVSH policy, they include:
- the addition of “sexual exploitation” as a form of prohibited conduct;
- Limitations on UC’s Use of No Contact Orders to Restrict a Complainant’s Contact
- with a Respondent (but not a Respondent’s contact with a Complainant);
- a requirement that confidential resources inform a person who discloses prohibited conduct of their right to report under Title IX, and how to do so;
- the addition of pastoral counselors as a specified confidential resource, and – in the same section – a broader reference to “CARE” rather than “CARE Advocates”. As in the past, these employees are confidential resources only when acting in a confidential capacity;
- a statement that the resolution processes under the SVSH Policy are non-adversarial;
- a statement that Title IX officers will periodically update the parties on the status of investigations;
- adding certain notification requirements when a Title IX officer initiates an investigation despite a complainant’s wishes. Note that this happens relatively rarely, when a potential risk to the campus community requires it;
- a statement that the Title IX agent will consider potential systemic remedies once investigations are complete; and
- a requirement that sites inform volunteers and contractors who regularly interact with students of the SVSH policy.
- In Appendix E, Appendix F, Faculty Framework, and Staff/NFAP Framework, the changes include statements that:
- any evidence available but not disclosed by a party during an investigation may not be considered at a subsequent hearing;
in the very limited circumstances where an investigator or hearings officer determines that a party’s sexual history is relevant, they will explain their decision to the parties in writing;
- parties may object, in writing only, to questions posed at a hearing and submit their objections at the end of the hearing for inclusion in the record; and
- investigators and hearing officers are required to exclude questions that a party proposes to ask another party or witness (or, in DOE grievance process hearings, asks by the through their advisor) if the questions are irrelevant, repetitive, or harassing (in Appendix E) or violate SVSH Rules of Conduct (as part of a DOE complaints process); previously this was discretionary in some cases.
Title IX Regulatory Amendment
Appendix F, Faculty Framework, and Personnel Framework/NFAP also include revisions in response to a significant provision of Title IX regulations becoming ineffective. The conduct resolution procedures covered by the regulations issued last year have significantly limited the Title IX hearing officer’s ability to rely on out-of-court statements not subject to cross-examination during the hearing. hearing. The regulatory provision requiring this limitation is no longer in effect, due to a federal court ruling overturning it and the DOE’s subsequent announcement that it would not enforce it. UC included the limitation only because it was legally required at the time. Now that it’s not, UC removes it. Under the revised frameworks, the unavailability or decision of a party or witness not to answer questions at the hearing no longer automatically precludes the hearings officer from reviewing the statements of the party or witness. Instead, the Hearing Officer will determine whether and how to assess such representations in accordance with the principles and procedures described in the applicable framework.
Changes in the clinical setting
The University has devoted considerable effort and resources to the prevention, detection and response to prohibited conduct arising from the context of patient care. To deepen this work, some revisions aim to better take into account the clinical context. These revisions were reviewed last year by the President’s Working Group on SVSH in the Clinical Setting. They mainly include:
- a requirement that all responsible employees report any prohibited conduct that occurs in the course of patient care. Employees with increased reporting obligations under the current SVSH policy—teachers, human resources administrators and academic staff, police, managers and supervisors, and Title IX personnel—already had this obligation;
- amended definitions of prohibited conduct that apply when allegations arise in the context of patient care;
- a provision that sexual assault during a clinical encounter is considered “aggravated”, as well as the use of force, violence or threat, deliberately causing or taking advantage of the incapacity and misuse of a complainant’s image. A determination that the conduct is aggravated may affect corrective action; and
- adding examples and references to university policies and officials, regulations and regulatory bodies relevant to the clinical setting.
Application of amendments to ongoing investigations and judgments
Generally, in resolution processes under the SVSH Policy, the University applies the SVSH Policy’s definitions of prohibited conduct in effect at the time the alleged policy violations occurred, and the procedures for investigation and arbitration (set forth in both the SVSH Policy and the applicable resolution framework) in place at the time the Title IX office initiates an investigation. However, in certain circumstances, the University will apply revised procedures to resolution processes already underway, particularly where required by law or to ensure fairness. Based on these principles, the revised procedures apply as follows:
- Title IX Regulatory Amendment. The revisions to Appendix F, Faculty Framework, and Personnel Framework/NFAP described above under “Title IX Regulatory Amendment,” apply to cases still in the investigation phase and to cases in which the he investigation is over but still within the 20-day period, it is up to the parties to accept or not the preliminary decision of the investigator. The Title IX Offices will notify the parties in such cases of this review and will give parties who have already so indicated if they agree an opportunity to reconsider.
- SB 493 Amendments. Other revisions to Appendix F, Faculty Framework and Personnel Framework/NFAP, and Appendix E and SVSH Policy Procedures – to comply with SB 493 – apply to any investigation open from the effective date of January 1, 2022, and its subsequent decision. For cases already open on that date, the Title IX office will continue to use the procedures already in place.
Additionally, when analyzing alleged conduct during patient care that occurred prior to January 1, 2022, the University will consider the Prohibited Conduct definitions in effect at the time of the alleged conduct as amended. by the definitions now codified in Appendix V, when they apply. Note that these definitions are already used in accordance with the December 2019 Office of Title IX system-wide guidance and ensure that the unique circumstances of the patient care setting are considered.
While revisions to these policies are not material and most are legally required, the UC System appreciates stakeholder input during the limited management consultation and formal 90-day review of the SVSH Policy. In particular, the university thanks the Title IX Officers, Academic Senate, Directors of Student Conduct, Directors of CARE, Title IX Student Advisory Council, and UC Health colleagues.
Please contact UC Santa Cruz Title IX Office if you have any additional questions.
Director of Ethics and Compliance and Associate Vice-Chancellor, Equity and Equal Protection