Deborah Wood’s eloquent and well-reasoned July 3 opinion piece, “When is sexual misconduct ‘severe’ or ‘pervasive’ enough for UC?”, identifies some of the challenges in effectively responding to sexual harassment on university campuses. We welcome discussion of this topic, one to which we have devoted considerable thought and resources. Much has changed, and improved, in our campus practices over the last few years. But there is still so much more work to be done.
The article raises a number of issues, on which we offer some reflections below.
Sexual harassment cannot be tolerated
We completely agree that sexual harassment on a university campus is very damaging. It can derail academic and professional careers; it has a lasting disruptive effect on the community. Sexual harassment is incompatible with an academic environment, and it is wrong.
Much has changed in the UC system and on our campus over the last few years to improve our ability to address sexual harassment and to make lasting cultural change. We have strengthened policies, increased staffing, created a confidential resource center for survivors, and worked to make the disciplinary process more transparent. The Berkeley campus is the first in the UC system to have appointed a special faculty advisor to the Chancellor on sexual violence/sexual harassment. Colleagues across the campus meet regularly with community partners to assess, and work to improve, our campus resources for preventing and responding to sexual violence and sexual harassment.
With all of that said, however, we are aware that there is much more work to do, not only in responding to sexual harassment when it occurs, but in providing our campus community with the tools needed to prevent sexual harassment from happening in the first place. As the July 3 opinion piece underscores, prevention, through education and community buy-in (including by faculty), is our best hope. This is an ongoing effort.
Privacy and confidentiality are necessary but frustrating to third parties
One of the frustrating aspects of any discussion of sexual harassment on a university campus is that privacy considerations and confidentiality requirements, including federal privacy rights regarding student records, generally make it impossible for the university to discuss individual cases, even though the community naturally wants to understand how and why a decision was reached.
The July 3 article brings up several individual cases; frustratingly, we cannot comment on them. We understand that citing privacy considerations can feel like stonewalling. But it is hugely important to parties in past and current cases — and to parties in potential future cases — to know that the university will keep their personal details confidential. Sometimes parties choose to share some or all of what has happened; sometimes they do not. This choice must remain their own to make. The best we can do in such situations is explain the general process that our campus follows.
The July 3 article raises a number of important points that relate to our campus process. One involves ‘open secrets,’ or incidents or patterns of misconduct that the community believes have occurred, but which haven’t led to any sort of visible investigation or disciplinary outcome. Another is what constitutes ‘pervasive’ misconduct under the UC Policy on SVSH, in determining whether sexual harassment has occurred. A third is ‘Alternative Resolution,’ in which matters are resolved without a formal investigation. These are all very valid topics to discuss.
Open secrets are damaging
‘Open secrets,’ or misconduct that the community believes has occurred but which hasn’t led to any sort of visible investigation or disciplinary outcome, are frustrating and lead to distrust in the system.
Some ‘open secrets’ involve behavior that has not been reported to the Office for the Prevention of Harassment and Discrimination (OPHD). OPHD can only investigate misconduct that it knows about. Campus adjudicators can impose discipline for sexual harassment only if an OPHD investigation has identified a policy violation. While the University of California has a system-wide ‘responsible employee’ policy whereby employees must report misconduct that they learn about to OPHD, some ‘open secrets’ go back in time, before this policy was in place.
In other ‘open secrets’ cases, a report has been made to OPHD, but the complainant isn’t ready to participate in a formal investigation. In that situation, OPHD may be unable to proceed — and the community cannot be told why.
Numerous factors can go into a complainant’s decision not to move forward with an investigation. As a campus we offer survivors confidential support and explain their options; we do not compel survivors to talk to OPHD. That must always be a survivor’s free choice. Some survivors come forward, or choose to proceed with an investigation, after a long time has passed, because they want to hold the perpetrator accountable or prevent harm from coming to others. OPHD has no statute of limitations, and will do its best to investigate any claim brought forward. ‘Open secrets’ need not remain secrets forever. Indeed, we hope that as our campus response and survivor support system continues to improve, more survivors will feel comfortable reporting.
‘Pervasive behavior,’ as noted in the July 3 article, is part of the definition of sexual harassment in the UC Policy on SVSH. It can mean repeated misconduct that impacts one complainant, or misconduct that involves multiple complainants.
To assess whether behavior is pervasive, OPHD investigators are able to look at information from multiple complainants to determine whether a respondent is engaging in a pattern of behavior. In addition, adjudicators, who impose discipline based on the findings of an OPHD investigation, are also able to consider past misconduct in determining the sanctions for new cases.
We agree with the view expressed in the July 3 article that terms like ‘pervasive’ could use clearer explanations, either in the UC Policy on SVSH or in accompanying discussions. This is something our campus can review.
After a complaint has been made to OPHD, there is a range of possible next steps. OPHD can initiate a formal investigation, if the complainant is willing and if the alleged conduct would amount to a policy violation. A formal investigation involves interviewing witnesses and collecting documentary evidence. If an OPHD investigation makes a finding of misconduct, the case passes to campus adjudicators for discipline.
An “alternative resolution” is another option that allows for the resolution of a complaint, but does not require a formal investigation or result in formal discipline.
In an alternative resolution, both the complainant and respondent must agree that the complaint should be resolved without a formal investigation. Alternative resolutions could involve space-sharing agreements, no-contact directives, work reassignments, counseling for one or both parties, or other solutions tailored to the particular situation. Alternative resolutions are documented outcomes, often with provisions that are enforced over a period of time. It is important for everyone to understand that choosing an alternative resolution does not mean that a case is being dismissed or diminished.
Clearly, the university needs to do more to strengthen the alternative-resolution process. In its recent evaluation of UC’s policies and procedures, the U.S. Department of Education, Office for Civil Rights recommended more tracking, consultation and notification when alternative resolutions are put in place. We agree with this recommendation and will be complying with it.
Sometimes a complainant doesn’t wish to pursue either kind of resolution process with OPHD, or a third party makes a report but doesn’t share the names of the parties. Under circumstances like these, OPHD typically has limited ability to address the issue. Outside observers who know that something happened may wonder why OPHD is not taking action, but unfortunately, OPHD is not able to discuss the matter with non-involved parties. Importantly, the complainant and respondent also have rights to privacy. They should not be pressed to disclose case details. When OPHD cannot move forward in a situation of this kind, the matter is termed ‘administratively closed,’ although records are retained, and it can be re-opened in the future.
We are grateful for this opportunity to discuss some of the dimensions of UC Berkeley’s response to sexual harassment allegations. It disheartens us any time we learn that our students feel that we did not do all that we could to assist them during a difficult time. But from such experiences, we derive even greater motivation to ensure that survivors know about the resources that are available to support them (survivorsupport.berkeley.edu), and to continue our campus efforts to prevent sexual harassment. The community’s input — both critical and supportive — is essential as we work towards our goal of an academic community in which students, staff and faculty can do their best work without worrying about harassment or discrimination.