Report 2022-109 Recommendations

To ensure that campuses consistently and appropriately justify and document their decisions about whether to conduct formal investigations, the Chancellor's Office should, by July 2024, create clearer and more comprehensive expectations for how campuses should perform and document their initial assessments of allegations. The written procedures or guidelines it develops should apply, at a minimum, to any report or complaint that includes allegations of possible sexual harassment involving an employee respondent and should do the following:

- Require campuses to determine whether a respondent has been the subject of multiple or prior reports of misconduct.

- Clarify how to assess the benefits and risks of conducting or not conducting an investigation when there are challenges with or ambiguities about a complainant's desire or ability to participate. Such an assessment might include applying more broadly the factors that CSU's policy already incorporates when a complainant explicitly requests that no investigation occurs.

- Provide guidance about attempting to identify or contact any potential complainants mentioned or discovered during the intake and initial assessment process and about evaluating the likelihood that an investigation could reveal new allegations, context, or information.

- Specify that if a campus decides not to conduct an investigation because a report or complaint fails to allege a sexual harassment policy violation, the campus must explain why there are clear indications that the alleged conduct, even if true, could not reasonably meet CSU's definition of sexual harassment.

- Require a thorough, documented rationale for campuses' decisions about whether to conduct an investigation that addresses, at a minimum, any applicable factors listed above and any other relevant factors in CSU's policy.

To ensure that campuses conduct consistent and effective investigations of allegations of sexual harassment, the Chancellor's Office should, by July 2024, establish more specific expectations for how investigators should structure their analyses of evidence and their determinations in sexual harassment investigation reports. The written procedures or guidelines should, at minimum, do the following:

- Specify how investigators should perform and document credibility evaluations.

- Require that before investigators assess whether the alleged conduct violated policy, they document an assessment of each allegation that establishes whether the alleged conduct likely occurred and that these assessments consider all relevant conduct for which the investigator has identified evidence.

- Require investigators to document analysis specific to each relevant component of CSU's sexual harassment definition that addresses whether conduct met or did not meet the particular component of the definition.

- Require that investigators' analyses and final determinations about whether conduct violated the sexual harassment policy take into account the cumulative effect of all relevant conduct found to have likely occurred.

To ensure that campuses' determinations about sexual harassment are consistent and appropriate, the Chancellor's Office should create and disseminate written guidance by July 2024 that provides a framework for how investigators should interpret each component of CSU's sexual harassment definition and how they should determine whether alleged conduct meets that definition. The guidance should include specific examples as necessary.

To ensure consistency in campuses' responses to sexual harassment allegations and mitigate the risk of inappropriate interference, the Chancellor's Office should amend CSU's sexual harassment policy or create other procedures by July 2024 to require a documented review and approval of the analyses and outcomes of each report of sexual harassment. In particular, the Chancellor's Office should specify the following:

- Unless resource constraints or other good causes exist, the campus Title IX coordinator should assign each case to another staff member or investigator. The coordinator should then document his or her review of each case, including certification that the case's resolution—such as the initial assessment or the investigation and related report, as applicable—aligns with policy requirements.

- For exceptions such as cases that the Title IX coordinator handles directly, another qualified reviewer should document his or her review and approval of the analyses and outcomes.

To ensure that campuses adequately address problematic behavior that does not meet the threshold of sexual harassment, the Chancellor's Office should, by January 2025, establish a systemwide policy or systemwide procedures for addressing this type of unprofessional or inappropriate conduct. At minimum, the Chancellor's Office should require that when campuses determine through an investigation that a respondent's conduct does not meet the threshold of sexual harassment, but that the conduct nevertheless occurred and was unprofessional or inappropriate, campuses make written findings specific to the unprofessional conduct and impose discipline or corrective action, as appropriate, based on the conduct.

To ensure the effectiveness of the informal resolution process, the Chancellor's Office should, by July 2024, provide additional guidance to campuses related to this process. In particular, the guidance should clarify how campuses should offer complainants information about possible remedies that address their concerns. For example, the Chancellor's Office could work with campuses to create a template for an informal resolution agreement that also includes examples of specific corrective action options or other outcomes that parties could consider when determining remedies.

To improve the timeliness of campuses' responses to sexual harassment allegations, the Chancellor's Office should require all campuses to track key dates and timeline extensions related to reports of sexual harassment in a consistent manner by July 2024. For example, it could require the use of a tracking spreadsheet or automated alerts to ensure that campuses
are aware of relevant deadlines and that they identify any trends in their timeliness of handling reports.

To better ensure the timeliness of investigations, the Chancellor's Office should identify a solution by July 2024 for ascertaining that campuses have adequate resources for conducting formal investigations. As part of this process, the Chancellor's Office should consider whether employing a pool of dedicated systemwide investigators who are external to campuses would help provide timely, consistent, and independent investigations for campuses when they choose not to investigate allegations themselves or lack the available internal resources to do so. Finally, once it has identified a solution, the Chancellor's Office should implement this solution.

To more effectively communicate the status of cases to the parties involved, the Chancellor's Office should amend CSU's sexual harassment policy by January 2025 to include specific requirements for campuses to provide regular status updates to complainants and respondents unless those parties request not to receive them. These updates should also communicate the outcomes of cases, including any associated disciplinary or corrective actions, to the extent possible under law. The Chancellor's Office should also consider developing or requiring campuses to develop a method for allowing complainants and respondents to check the status of their specific cases at any time through an online portal, dashboard, or similar means.

To ensure that campuses provide prompt discipline, the Chancellor's Office should provide guidance to campuses by July 2024 about best practices for initiating, carrying out, and documenting timely disciplinary or corrective actions after a finding of sexual harassment. Further, it should encourage campuses to communicate these principles to relevant decision makers. This guidance should include providing a prompt notice of pending disciplinary action to a respondent when applicable.

To ensure that campuses make and document appropriate efforts to address sexual harassment allegations, the Chancellor's Office should, by July 2024, develop procedures or guidelines that include a specific list of documents that the campus Title IX coordinator must maintain in a sexual harassment case file before closing the case. The Chancellor's Office should consider attaching these guidelines to the CSU sexual harassment policy. The list should include the following, at a minimum:

- Documentation of the campus's initial assessment of allegations and its rationale for whether or not to conduct an investigation.

- Any evidence relevant to the allegations and documentation of all interview notes or transcripts.

- If applicable, an informal resolution agreement signed by all parties and documentation of the agreed-upon outcomes.

- Any significant correspondence between Title IX staff and the parties, from the report stage through case closure, including emails and notices of allegations, investigation, extension, and outcome.

- If applicable, the preliminary investigation report or review of evidence and the final investigation report.

- Evidence of and specific details about the disciplinary or corrective actions that the campus took to resolve the case.

To improve the quality and consistency of campuses' data and case files, the Chancellor's Office should require that, by July 2026, all campuses use the same electronic case management system to securely maintain sexual harassment data and case files and ensure that all campuses' case management systems are also accessible to systemwide Title IX staff. In addition, the Chancellor's Office should develop and disseminate guidance for consistently tracking data in each campus's system, including requiring that each system include the same fields for entering relevant data such as key dates and corrective actions taken. The guidance should also ensure that campuses maintain data sufficient to identify and address any concerning patterns or trends related to repeat subjects, particular departments, specific student or employee populations, or similar issues.

To improve CSU's systemwide response to sexual harassment, the Chancellor's Office should establish a process no later than July 2024 for regularly collecting and analyzing sexual harassment data—via annual Title IX reports or a similar mechanism—from all campuses to identify any concerning patterns or trends, such as those involving repeat subjects, particular academic departments, or specific student or employee populations. As a part of these efforts, it should also collect and analyze data related to the timeliness of campuses' responses to allegations. When it identifies concerning trends or patterns, the Chancellor's Office should share its findings with the campuses and offer guidance for addressing the issues in question. Finally, upon implementing the recommendation that all campuses use the same case management system, the Chancellor's Office should use these systems to collect and facilitate its analysis of these data.

To assist campuses in providing a harassment-free environment for their students and employees, the Chancellor's Office should, by July 2024, create a policy—such as an attachment to its sexual harassment policy—for conducting regular compliance reviews of its campus Title IX offices to determine whether they are complying with relevant portions of federal law, state law, CSU policy, and best practices for preventing, detecting, and addressing sexual harassment and related misconduct. The Chancellor's Office should publicize the results of these reviews to the extent possible considering confidentiality concerns, and it should similarly publicize any steps it has taken or plans to take to address areas of concern it identifies. In preparation for performing this work, the Chancellor's Office should determine the number of additional staff that it will need to conduct these reviews.

To encourage systemwide adoption of best practices, the Chancellor's Office should, by January 2025, make revisions to its systemwide prevention policy or otherwise provide written guidance to campuses reflecting comprehensive best practices for preventing, detecting, and addressing sexual harassment. To develop these best practices, it should consult sources such as the U.S. Department of Justice's 2021 resolution agreement with San José State. The best practices should cover at least the following:

- How campuses should maintain accessible options for reporting sexual harassment.

- How campuses can widely disseminate information about their sexual harassment reporting options and related processes through methods such as campus-wide emails, social media platforms, on-campus postings, and student handbooks.

- How campuses can develop and distribute streamlined informational materials that explain key aspects of their processes related to sexual harassment.

- How campuses can monitor whether students and employees have completed required training.

- How campuses can most effectively make use of climate surveys through steps such as surveying both students and employees, designing surveys to assess the effectiveness of their sexual harassment prevention and education efforts, and establishing a documented process for taking action in response to survey findings.

To ensure that campuses do not endorse employees who have been found responsible for sexual harassment, the Chancellor's Office should amend its policy for letters of recommendation by July 2024 to prohibit official positive references for all employees or former employees with findings of sexual harassment, including those who have received less severe discipline than termination, such as suspension or demotion. Alternatively, the Chancellor's Office could consider amending its policy for letters of recommendation to require that official positive references for employees or former employees with findings of sexual harassment that did not lead to separation include a disclosure of the employee's violation of CSU's sexual harassment policy.