Last year, the University of California issued revised interim versions of the SVSH Policy and its implementing frameworks to comply with the 2020 amendments to the federal Title IX regulations made by the U.S. Department of Education (“DOE”).
Last month, the UC Office of the President issued further revised versions of those same documents. They were effective January 1, 2022.
Later this year, the DOE plans to propose new amendments to the Title IX regulations. The university expects the new amendments will be a significant improvement. In the meantime, UC is making every effort to mitigate harm from the 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 that participate in stewardship of our SVSH policy have exercised great attention and care to ensure implementation consistent with our commitment and values.
Summarized below are the key revisions, the impetus for the changes, and other information of note.
Senate Bill 493 Changes
Certain revisions are to 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 motivated largely by concerns, which UC shares, about potential adverse effects of the 2020 amendments to the Title IX regulations.
The SVSH Policy and implementing frameworks together already codified most of
SB 493’s requirements. 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 to 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 they are acting in their confidential capacity;
- a statement that resolution processes under the SVSH Policy are not adversarial;
- a statement that Title IX Officers will periodically update parties on the status of investigations;
- the addition of certain notice requirements when a Title IX Officer opens an investigation despite a complainant’s wishes. Note that this happens relatively rarely, when a potential risk to the campus community compels it;
- a statement that the Title IX Officer will consider potential systemic remedies after investigations are concluded; and
- a requirement that locations notify volunteers and contractors who regularly interact with students of the SVSH Policy.
- In Appendix E, Appendix F, the Faculty Framework and the Staff/NFAP Framework, changes include statements that:
- any evidence available to but not disclosed by a party during an investigation might not be considered at any subsequent hearing;
in the very limited circumstances when an investigator or hearing officer determines a party’s sexual history is relevant, they will explain their determination to the parties in writing;
- parties may object, in writing only, to questions asked at a hearing, and submit their objections at the conclusion of the hearing for inclusion in the record; and
- investigators and hearing officers are required to exclude questions a party proposes they ask of another party or witness (or, in DOE Grievance Process hearings, asks through their advisor) if the questions are irrelevant, repetitive, or are harassing (in Appendix E) or violate the SVSH rules of conduct (in a DOE Grievance Process); previously, this was discretionary in some instances.
Title IX Regulatory Change
Appendix F, the Faculty Framework and the Staff/NFAP Framework also include revisions in response to one significant provision of the Title IX regulations becoming ineffective. The procedures for resolving conduct covered by the regulations issued last year severely limited the Title IX hearing officer’s ability to rely on out-of-hearing statements not subject to cross-examination during the hearing. The regulatory provision requiring this limitation is no longer in effect, due to a federal court decision vacating it and 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 is not, UC is removing it. Under the revised frameworks, a party or witness’s unavailability or decision not to answer questions at the hearing now no longer automatically bars the hearing officer from considering the party or witness’s statements. Rather, the hearing officer will determine whether and how to weigh such statements consistent with the principles and procedures described in the applicable framework.
Clinical Setting Changes
The University has dedicated significant effort and resources to preventing, detecting, and responding to Prohibited Conduct arising from the context of patient care. To further that work, certain revisions are to better account for the clinical context. These revisions were reviewed last year by the President’s Working Group on SVSH in the Clinical Setting. They primarily include:
- a requirement that all Responsible Employees report possible Prohibited Conduct that occurs in the context of patient care. Employees with heightened reporting obligations under the current SVSH Policy—faculty, Human Resources and Academic Personnel administrators, police, managers and supervisors, and Title IX personnel—already had this obligation;
- modified 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,” along with use of force, violence or menace, deliberately causing or taking advantage of incapacitation, and misuse of a complainant’s image. A determination that conduct is aggravated may affect the corrective action; and
- the addition of examples and of references to University policies and officials, regulations, and regulatory agencies relevant to the clinical setting.
Application of Changes to Current Investigations and Adjudications
As a general matter, in resolution processes under the SVSH Policy, the University applies the SVSH Policy definitions of Prohibited Conduct in place at the time alleged violations of the policy occurred, and the investigation and adjudication procedures (set forth in both the SVSH Policy and the applicable resolution framework) in place at the time the Title IX office charges an investigation. However, in some circumstances, the University will apply revised procedures to resolution processes that are already underway—specifically, when doing so is required by law or to ensure fairness. Based on these principles, the revised procedures apply as follows:
- Title IX Regulatory Change. The revisions to Appendix F, the Faculty Framework and Staff/NFAP Framework described above under “Title IX Regulatory Change,” apply to cases still in the investigation phase, and to cases in which the investigation is complete but still in the 20-day period for parties to accept or not accept the investigator’s preliminary determination. The Title IX Offices will notify parties in such cases of this revision, and give parties who have already indicated that whether they accept the opportunity to reconsider.
- SB 493 Changes. The other revisions to Appendix F, the Faculty Framework, and the Staff/NFAP Framework, as well as Appendix E and the procedures in the SVSH Policy – to comply with SB 493—apply to any investigation opened on or after the effective date of January 1, 2022, and its subsequent adjudication. For cases already open on that date, the Title IX office will continue using the already-applicable procedures.
Additionally, when analyzing alleged conduct during patient care that occurred before January 1, 2022, the University will consider the Prohibited Conduct definitions in place at the time of the alleged conduct as modified by the definitions now codified in Appendix V, when they apply. Note that these definitions are already in use per December 2019 guidance from the Systemwide Title IX Office, and ensure that the particular circumstances of the patient care setting are accounted for.
While revisions to these policies are not extensive, and most are legally required, the UC system appreciates the input of stakeholders during the limited management consultation and 90-day formal review for the SVSH Policy. In particular, the university extends its thanks to the Title IX Officers, Academic Senate, Student Conduct directors, CARE directors, Title IX Student Advisory Board, and UC Health colleagues.
Please contact the UC Santa Cruz Title IX Office if you have any additional questions.
Sincerely,
Isabel Dees
Chief Ethics and Compliance Officer & Associate Vice Chancellor, Equity & Equal Protection
