Title IX Case Reveals Systemic Concerns

Prolonged investigations and case complications not uncommon in process

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*Name has been withheld for anonymity.

Last academic year, Emma* joined 233 other UC Santa Cruz community members in filing a Title IX report. Her case was one of nine that Title IX staff said wasn’t a violation of the sexual violence and sexual harassment (SVSH) policy. But there’s only been one case at UCSC where the Title IX Office and student conduct officer reached differing conclusions, and that was Emma’s case.

“I wasn’t lying,” she wrote to a member of Campus Advocacy, Resources and Education (CARE), who was helping her mentally cope with the process at the time.

Like many others, she was at a party when it happened. Title IX found there wasn’t a preponderance of evidence to support her claims that she had been assaulted and harassed, and recommended there be no resulting disciplinary sanctions.

“It’s not that we don’t believe [complainants],” said Title IX director Tracey Tsugawa. “It’s that the case does not meet the level that we set of being in violation of the policy.”

Title IX typically has 60 business days to investigate and make a final determination or recommendation. Emma’s case took upward of 100 business days.

“I understand that it is a process, but we are coming up on six months after I filed my report, so I really hope that this estimate is the real estimate,” Emma said in an email to CARE. “I am not sure how much more disappointment […] my mental health can take.”

It is not uncommon for cases to exceed their 60-day allotment, Tsugawa said. Given investigations can be impacted by external factors, like other cases that involve immediate action or pose a safety threat or the investigating officer’s health and workload. With the increasing number of reports and investigations, and only three principal investigators plus one Title IX director for all of faculty, staff and student alleged sexual discrimination cases on campus, meeting the allotment isn’t always realistic.

“I don’t want to give excuses to students,” Tsugawa said. “There will always be exceptions and reasons why cases take longer, but the goal is to move through quicker adjudications.”

The Department of Education’s Office for Civil Rights, however, had a four-year average time span when investigating sexual violence complaints on college campuses for cases concluding in 2014. Currently, UCSC is under investigation for its handling of two Title IX cases from March 2015 and June 2016.

“In my experience, 60 days is very challenging,” said UC systemwide Title IX coordinator Kathleen Salvaty. “You’re always trying to balance your need to get as much [information] as you can to do a thorough investigation on this timeline. There are all kinds of reasons why you want to get these done as quickly as possible, but you are struggling to get as much info as you can.”

Per UC policy, the recommendation from Title IX was sent to Ross Maxwell, the assistant director of student conduct in Colleges, Housing and Educational Services (CHES), to make the final decision as to whether there was a preponderance of evidence or not. Maxwell wasn’t part of the fact finding of the investigation. In this case, Maxwell disagreed with the Title IX officer recommendations for the first time, ever.

“Most of the time — [because the Title IX office does] a really thorough job — we are probably going to agree because they put a lot of working into making sure it’s a thorough report,” Maxwell said. “But not all of the time, and I would be wary of a process where everybody agrees all of the time, because you don’t have a truly independent decision maker.”

Although a new 2016 UC systemwide Title IX policy was introduced, it doesn’t clearly define what constitutes sexual violence in some cases. For example, Emma’s case involved open mouth kissing, filed as mouth penetration by tongue, which does not fall under the SVSH policy definition of “intimate body part.” The UC Office of the President set up the system so that two people will look at the same document, aiming to make decisions more consistent across the UC campuses.

For cases found in violation of the student conduct policy, disciplinary sanctions for sexual assault violations begin at a two year suspension. Likewise, there is an educational component of the discipline that can include counseling, an apology letter or an academic paper.

“Anything less than [dismissal] we do want to give some kind of educational growth,” Maxwell said. “It depends on the circumstances, every person is different and every case is different. What education is appropriate in one situation may not be appropriate in another situation.”

Unlike the student adjudication model, in faculty case context, the Title IX officer makes a final finding as to whether the policy is violated. In staff context, the decisionmaking is up to the employee supervisor after consulting the Title IX Office’s investigation and finding.

“The reason why the model the [UC] president put in place has this recommendation is to have a second set of eyes [on cases],” Kathleen Salvaty said.

The goal of the UC-wide system is to have equal understanding of what does and doesn’t violate the policy, Salvaty said. However, each incident is very specific and isn’t necessarily outlined in the policy. This gap for interpretation falls on one or two people, which doesn’t always ensure consistency across the system or within the policy.

“I talked to so many people over such a long period of time that the policies and how they determine them changed so much. It gets muddled,” Emma said. “You are left with so much information that you don’t know [what the policy is].”

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