Systemwide Title IX Director Suzanne Taylor’s letter to campuses announcing new Title IX regulations from the U.S. Department of Education

May 11, 2020





Dear Colleagues:

Last week, the U.S. Department of Education issued long-anticipated Title IX regulations detailing how schools across the country must respond to complaints of sexual harassment, including sexual violence. UC identified serious problems with the regulations when the Department first proposed them, as memorialized in our January 2019 comment letter.  Despite our advocacy for changes, the Department retained the most problematic parts in the final rules.  Our charge now is to comply with the regulations while also continuing to meaningfully advance the sexual harassment prevention, detection and response efforts so critical to UC’s mission.  The University’s initial response to the regulations is memorialized in President Napolitano’s statement and my letter to the Title IX officers at your locations.  I write to provide additional information about the regulations, their significance to UC, and next steps. 

Timeline; Policy Revisions; Continued Implementation of Current Policies.

The regulations go into effect August 14, 2020.  This means we must revise and reissue UC’s relevant systemwide policies—including the Sexual Violence and Sexual Harassment (SVSH) Policy and the investigation and adjudication frameworks for students, faculty and staff—by that date. Until then, we will continue implementing our current policies and procedures. 

Given the tight timeline, we will begin the revision process right away.  As a first step, my office will form a workgroup with systemwide representation to advise on the revisions.  Such a workgroup proved very valuable in early 2019, when UC had to quickly develop a hearing model for students to comply with a California appellate court decision.  I will work closely with Eric Heng, Acting Director, Student Policies and Governance, Student Affairs, on the student policies, and consult with other key stakeholder groups throughout the process. 

We expect some states and advocacy organizations to legally challenge the regulations.  Should these challenges delay or stop implementation of the regulations, we will suspend re-issuance of the policies.  In the meantime, we will work diligently on the revisions, so we are prepared if and when the regulations go into effect.

Key Provisions; Significance for UC

I am working with Student Affairs and the Office of General Counsel to thoroughly assess the ways our policies diverge from the regulations.  For now, I call your attention to the following key observations:

  • While the regulations are quite prescriptive about what we must include in our Title IX grievance procedures, our processes already include many of the required elements. For example, we provide parties with detailed written notices at the beginning and conclusion of the process; the right to an advisor of their choice; the opportunity to identify witnesses and present evidence, review and respond to evidence gathered, and pose questions to the other party and witnesses; the right to a hearing and appeal for students; and services, accommodations, and other measures to ensure access to our programs and activities. 
  •  We do not currently include other required elements in our procedures because we do not consider them best practices.  These include, for example, direct cross-examination by parties’ advisors, allowing parties to see each other during cross-examination, and making evidence deemed irrelevant available for inspection.  We must carefully think through how to implement these requirements while still treating parties engaged in the process compassionately.  Note that we must also provide an advisor to any party who does not have one, to conduct the cross-examination. 
  • The regulations allow us to use our Title IX grievance procedures to resolve only complaints that are made to the Title IX officer and take a certain form;  allege “sexual harassment” that occurred in the United States and in the context of a University program or activity; and are made by a person participating in or attempting to participate in a University program or activity.  Sexual harassment is narrowly defined, and excludes some conduct currently prohibited  by our SVSH Policy.  The rules specifically allow us to use other procedures to resolve allegations that do not clear these hurdles; one challenge we must confront is how to do this while ensuring our processes are sensible, understood by our community, and executable by the professionals tasked with their implementation.
  • The Department determined that “employees should receive the same benefits and due process protections that students receive” under the regulations.  So, we must use our Title IX grievance procedures—with all elements required by the regulations, including live hearings—to resolve complaints against not only students but also faculty and staff.  Currently, the investigation process is largely the same for students and employees, but the processes for determining responsibility are different, as are certain rights—such as the right to appeal.  So, we will need to align the faculty and staff adjudication frameworks.
  • The regulations allow us to choose between “preponderance of the evidence” and “clear and convincing” as the evidentiary standard, but require we use the same standard in all sexual harassment cases, regardless of the respondent’s identity.  As stated in the SVSH Policy, the University uses preponderance; this is not only a deliberate policy decision, but required by state law in sexual violence cases.  The clear and convincing standard, on the other hand, is used in faculty privilege and tenure hearings.  So, the administration and Academic Senate must work together to resolve this conflict. 

Other Timely Guidance

Unchanged Responsible Employee Obligations.  The regulations require schools to respond only to sexual harassment of which they have “actual knowledge.” Actual knowledge is narrowly defined as notice to the Title IX Coordinator or other official “with authority to institute corrective measures.”  I understand from the campus Title IX officers that some employees have wrongly read this as abrogating their duties as responsible employees. 

The reporting obligations of UC employees come from the SVSH Policy.  Specifically, all employees who are not Confidential Resources must inform the Title IX officer of possible Prohibited Conduct (as defined in the policy) toward any student, and designated employees must inform the Title XI officer of possible Prohibited Conduct toward any other University affiliate.  These obligations are important because they help enable the Title IX officers to respond appropriately to possible misconduct—and an employee’s failure to comply with them may result in corrective or other action. 

I request your location’s assistance in reinforcing both the importance of responsible employee reporting obligations, and that the regulations do not affect those obligations.

Possible Dismay and Confusion in UC Community.  The prospect of the regulations has caused anxiety for many students and others in the University community for the past two years.  Additionally, UC issued new versions of the SVSH Policy and investigation and adjudication frameworks for students, faculty and staff less than a year ago, in July 2019.  Finally, it is unfortunate that the Department issued the regulations at a time of uncertainty, suffering and worry nationwide, and when all schools’ operations are so disrupted.  These circumstances may increase dismay and confusion in our community.  I will partner with Acting Director Heng and other officials in the Office of the President to educate stakeholders and allay concerns, including forming the workgroup referenced earlier to advise on policy revisions, actively engaging with student leaders and other stakeholder groups, developing educational materials, and engaging with the media.  I appreciate the statements some of you have already issued to your communities, and know the Title IX officers and their campus partners will continue their tireless work to inform and reassure community members as well. 

I greatly appreciate your support in this undertaking.  Don’t hesitate to contact me with any questions. 

Yours very truly,

Suzanne Taylor

Systemwide Title IX Director

cc:       President Napolitano

           Chief of Staff to President Kao

           Division Leaders

           Executive Director Baxter

           Vice Provost and Interim Vice President Gullatt      

           Vice Provost Carlson

           Interim Vice President and Associate Vice President and Chief Risk Officer Lloyd

           Acting Director Heng

           Ethics, Compliance & Audit Services Chief of Staff Levintov

           Deputy General Counsel Woodall

           Title IX Officers

           Student Conduct Directors