Case: Department of Education OCR Title IX Investigation of University of California at Berkeley

On July 15, 2015, The United States Department of Education, Office for Civil Rights (OCR) opened an investigation after three similar complaints were filed against the University of California, Berkeley. The complainants alleged that the university failed to respond promptly and equitably to notice that the complainants, and other students, had been subjected to sexual harassment, including sexual violence. OCR investigated five specific issues: 1) whether the university complied with Title IX requirements regarding development and

dissemination of notice of nondiscrimination, 2) whether the university complied with Title IX requirements regarding the designation and notice of a Title IX Coordinator, 3) whether the university’s sexual harassment and sexual violence policies and procedures, as written, comply with Title IX, 4) whether the university provided a prompt and equitable response to incidents of sexual harassment and sexual violence of which it had notice, and 5) whether the University’s failure to provide a prompt and equitable response to notice of sexual harassment and sexual violence allowed the Complainants and other affected students to be subjected to or to continue to be subjected to a sexually hostile environment.

OCR found that the university's notice of nondiscrimination was available in multiple locations on the university's website, but that the university was not in compliance with Title IX between the 2010-11 and 2013-14 academic years, because its policies and procedures lacked required information about the Title IX Coordinator and a statement that inquiries may be made to OCR. The university's updated policy was found to be in compliance with Title IX except that it did not include a statement that inquiries regarding Title IX may be referred to OCR. OCR found that the university was in compliance with Title IX regarding the designation and notice of a Title IX coordinator.

OCR found that the university had effectively amended its written policies and procedures since 2011 to promptly and equitably resolve complaints overall but still did not comply with Title IX in several areas. Specifically, the policy contained no timeframe for completion of the alternative resolution process and did not provide for any notice of the outcome to the parties. The policy additionally did not state that its coverage applied to complaints against third parties. It also failed to provide reasonably prompt timeframes for major stages of the complaint process or information about the rights of complainants and respondents to present witnesses and other evidence.

Regarding the complaint resolution process, OCR determined that the university had provided the parties with an equitable complaint resolution process and that it conducted an adequate, reliable, and impartial investigation. OCR also determined that, regarding the first complaint, the university completed its investigation in a reasonably prompt manner. OCR administratively closed the second complaint, because the complainant had resolved her allegations through mediation with the university.

OCR found that the university was in noncompliance with Title IX for its failure to promptly and equitably resolve complaints of repeated incidents of unwelcome sexual conduct by a faculty member, even though the university was on notice regarding the faculty member's conduct. The university did not consider whether interim measures were appropriate. It also failed to provide notice to the complainants regarding the outcome of their complaints. OCR also identified a concern with the way the university used an alternative resolution process that was not voluntarily agreed upon by the parties. The university's responses to allegations against faculty members were also not consistently prompt.

OCR identified compliance issues regarding the university's use of the alternative resolution process for student's complaints against other students. In one instance, the university failed to provide students with notices of the outcome of the resolution in a timely manner; in another, the university did not provide the complainant with adequate notice of the option to proceed with a formal investigation.

The university entered into a voluntary resolution agreement on February 20, 2018. The university agreed to amend its notice of nondiscrimination and written policies and procedures to comply with Title IX. The university also agreed to provide comprehensive training to all faculty, in addition to specialized training for its Peer Review Committee, and to implement a new training program for all graduate students. The university was also required to review a number of specific cases, and conduct an internal assessment of complaints that were resolved through an alternative resolution process during the 2018-19 and 2019-20 school years. The university agreed to ongoing monitoring by OCR.