Letter to US Secretary of Education, Miguel Cardona

To Sign: https://actionnetwork.org/petitions/modifying-title-ix-mandatory-reporting-policies-on-campus?source=direct_link&

Miguel Cardona, Ed.D.
Secretary of Education

Suzanne B. Goldberg, J.D.

Acting Assistant Secretary for Civil Rights

Dear Dr. Cardona and Ms. Goldberg,

Sexual misconduct is a serious threat to the campus community yet, rates of reporting to university officials (e.g., Title IX office) are very low, ranging from 1.75% to 4.30% across studies (e.g., Fleming et al., 2018; Holland & Cortina, 2017; Khan et al., 2018; Lindquist et al., 2013). One way that policy makers and administrators have tried to address the issue of campus sexual misconduct is through mandatory reporting policies. As the Biden administration begins reviewing Title IX regulations addressing sexual misconduct (sexual assault, harassment, dating violence, etc.), we urge you to consider both the intent and the likely outcomes of such policies.

Currently, the majority of institutions of higher education designate all (or nearly all) faculty and staff as mandatory reporters who must report all instances of sexual misconduct that come to their attention to university officials (Holland et al., 2018). Institutions have created such policies in response to Title IX regulations, because of the mandatory reporting role for school employees (“Responsible Employee”) as it was first defined and explained in the OCR 2001 Revised Guidance on Sexual Harassment. The introduction to this guidance document stated that “preventing and remedying sexual harassment in schools is essential to ensuring a safe environment in which students can learn” and “school personnel who understand their obligations under Title IX…are in the best position to prevent harassment and to lessen the harm to students if, despite their best efforts, harassment occurs.” (p. ii, Department of Education, 2001). Thus, the widespread creation of university policies designating employees as mandatory reporters (“Responsible Employees”) was connected to OCR efforts to improve schools’ response to sexual violence.

However, there are several assumptions embedded within mandatory reporting policies, especially those that designate all employees as mandatory reporters (i.e., universal mandatory reporting policies; Holland et al., 2018). One assumption is that requiring all employees to report all known instances of sexual assault will increase university officials’ ability to take prompt and effective action. Another assumption is that increasing reports to university officials will mitigate harm to survivors when a sexual assault occurred. These are admirable aims. However, there is little evidence to suggest that policies that designate all employees as mandatory reporters actually increase reports and reduce harm to survivors. In fact, a growing body of evidence shows that mandatory reporting policies can decrease reports and cause further harm to survivors (e.g., Holland et al., 2018; Holland et al., 2020a; Holland et al., 2020b).  

If a survivor discloses an experience of sexual violence to a faculty or staff member with the intention of initiating a formal process against the offender, that university employee should be required to report this information to the Title IX Coordinator so that the university can pursue an investigation. But what happens if formal action isn’t what the survivor wants?  Currently, most university employees must immediately report details of the disclosure to their Title IX Coordinator, or face investigation and sanction if they fail to comply, regardless of when the assault occurred, how they found out about the assault, or what the survivor wants.

Faculty and staff learn about sexual misconduct experiences in numerous ways. In some cases, survivors intentionally disclose with the specific goal of initiating an investigation. In others, survivors disclose in order to receive emotional support (Ahrens et al., 2007; Carson et al., 2021) or accommodations such as extensions on assignment deadlines or alternate housing options. But, in many cases, disclosures are not intentional, and survivors are neither seeking support nor hoping to initiate an investigation when they disclose. For instance, students reveal experiences of sexual violence during class or in class assignments (e.g., class discussions, reflection papers), during interviews (e.g., for graduate school admissions, for research assistant positions), during prevention and awareness events (e.g., SpeakOuts, Take Back the Night), on social media (e.g., using #metoo), and as human subjects of empirical research on sexual violence. The intent of such disclosures is to promote public awareness, educate and help fellow students, engage in self-reflection, or contribute to empirical knowledge, not to have their identity and personal experiences reported to college authorities.

Let’s stop and think about the implications of universal mandatory reporting policies.  Imagine that you are an undergraduate student who has been asked to write a reflection paper about overcoming stress for a class. You choose to write about the most stressful experience of your life – a sexual assault you experienced at age 13. Your intention in disclosing this information is to fulfill the requirements of the paper and express pride in your ability to overcome this experience. Your expectation is that your professor will keep this information private, just as they do for other class assignments, and as required by the Federal Educational Rights and Privacy Act (FERPA). Imagine, then, how betrayed you would feel when the professor you trusted reports your name, contact information, and details of your assault to the Title IX office on campus. Imagine your confusion and dismay when the Title IX Office calls and emails you to discuss the assault. Imagine the stress and anxiety of having to talk about the assault against your will with people you did not choose to disclose to.

Or imagine you are a graduate student working closely with your faculty advisor in developing a research project about college women’s lives. You choose to share your personal experience of sexual victimization with your advisor in an effort to improve the project by providing a survivor’s perspective.  Now imagine your advisor telling you that they must share your personal information with the Title IX Coordinator. Imagine the feeling of betrayal, and how this will affect your relationship with your advisor moving forward. Mentoring relationships between graduate students and faculty are a backbone of the graduate school experience. When graduate students cannot trust their mentors, when they must guard what they say both personally and professionally, and when they cannot use their own experiences to improve the quality of their research, then their academic careers are affected negatively. Title IX policies were designed to remove barriers to students’ success, but mandatory reporting policies often create barriers to success.

Across the country, colleges and universities are requiring all or nearly all faculty and staff to report forward any knowledge of sexual violence, regardless of how that information was obtained, when the assault occurred, and what the survivor wants. The scope of these policies can be dangerously broad. At a four-year college, for instance, an informational brochure for Responsible Employees includes this instruction for when to report sexual misconduct: “When you see or learn of retaliatory conduct; campus gossip, rumors or vague reports; and when the incident is reported through media outlets, such as social or news media.” Similarly, one of the largest state university systems in the country recently stated that there are no exceptions to faculty reporting requirements. Any disclosure of any experience of sexual and dating violence must be reported to the Title IX Office, even when the assault occurred prior to enrollment and the student explicitly asks the faculty not to report the assault.  These are not isolated examples.

If one of the main goals of universal mandatory reporting policies was to ensure that students gain access to supportive services, we must then ask: is betraying students’ trust and violating their autonomy really the best way to ensure access to services, particularly when employees must do so without a survivor’s consent? Research finds that when support providers take control away, survivors report increased posttraumatic stress, depression, and anxiety (Dworkin et al., 2019; Orchowski et al., 2013; Peter-Hagene & Ullman, 2014). After enduring an extreme loss of control, “one of the only aspects that remains in [survivors’] control is if, how, when, and to whom to share their story” (DeAmicis, 2013, para. 29). Numerous research studies in psychology, as well as best practices followed by victim advocacy organizations, demonstrate that regaining a sense of control is central to recovery and healing after sexual trauma (e.g., Frazier, 2003; Walsh & Bruce, 2011; Zweig & Burt, 2007). According to the U.S. Department of Health and Human Services Substance Abuse and Mental Health Services Administration (SAMHSA), the six key principles of a trauma-informed approach to working with survivors include (1) safety, (2) trustworthiness and transparency, (3) peer support, (4) collaboration and mutuality, (5) empowerment, voice and choice, and (6) cultural, historical and gender issues (SAMHSA, 2014).”

Unfortunately, mandatory reporting policies systematically limit the ability of faculty and staff to support students in a trauma-informed way. As “front-line” employees dealing with student concerns, staff and faculty who teach, supervise, and support students are also those most likely to be approached by students who want to share their experiences of sexual violence. When faculty and staff are seen as safe spaces for information and support, student disclosures are more likely. But when students are told that any disclosure of sexual misconduct will be reported to the Title IX office, disclosures can decline, and students will be less likely to receive information and support from the sources they trust most (Holland et al., 2018; Holland et al., 2020a). This lack of safe spaces may be particularly problematic for marginalized students, including students of color, LGBTQ students, students with disabilities, international students and others who often have few trusted outlets for support.  Such students often choose to disclose to faculty and staff who share their background or who have expressed solidarity in other ways (Branch et al., 2011).  When these trusted sources of support are taken away, students who are already marginalized may become even more isolated and alone.

Unintended negative consequences of mandatory reporting policies also extend beyond the student population. University employees are not just mandatory reporters, many are also survivors of both past and continuing sexual misconduct (NASEM, 2018). On many campuses, there are no exceptions to mandatory reporting requirements. This means that faculty and staff must report any sexual misconduct experienced by a colleague (past or present) to the Title IX Office without regard for the desires of the staff or faculty member who was its target. This is particularly problematic given the potential harm to the employee’s job, promotion, and professional reputation that can accompany a sexual misconduct investigation. Policies that make all employees in higher education mandatory reporters, and subject to sanctions if they do not comply, actively discourage staff and faculty from seeking support. 

Mandatory reporting policies can also undermine or limit research on sexual misconduct on college campuses, research critical for sexual violence prevention itself. On some campuses, faculty members are being instructed that they must report sexual misconduct that they learn about while conducting a research study—including the contact information for the survivors who are participating. Research designs that require the researcher to gather identifying information (e.g., to coordinate interviews with participants, to track participants longitudinally over time, to pay participants for participating) can no longer be conducted without violating participants’ right to confidentiality. These policies are currently affecting research on sexual violence.  In a recently published study on Perceptions of Sexual Assault and Associated Consequences Among LGBTQ+ College Students, Hackman et al., 2020 states:

We did not specifically recruit sexual assault survivors because mandated reporter policies would have required us to report disclosure of victimization regardless of the participant’s wishes. While sexual assault survivors were neither barred nor discouraged from participating, the researchers informed participants before participation that the interviewers would report any disclosure of a victimization that occurred while the participant was enrolled at the university to the university’s Title IX Office in compliance with mandated reporting policies.”

Empirical research is essential for improving understanding of sexual violence, identifying supportive efforts for survivors, informing empirically supported policy, and developing and testing prevention programming. While some Title IX Coordinators (or other university officials) may grant individual exemptions to mandatory reporting policies for the purposes of empirical research, not all have chosen to do so.  Furthermore, designating administrators as the sole arbiter of who can conduct research on sexual violence and how such research should be conducted is a serious violation of academic freedom.

Mandatory reporting policies may also have a direct impact on campus-based prevention and education. Faculty and staff who would otherwise help organize or attend events such as Take Back the Night or Speakouts can no longer attend without having to report the names and personal information of attendees to the Title IX office. Faculty and staff who would otherwise run sexual misconduct prevention programs can no longer include interactive discussions or activities (which have proven to be far more effective than online programming or didactic lectures) without having to report the names and personal information of participants who disclose. If the goal of Title IX legislation is to reduce sexual and dating violence on campus, restricting the ability to conduct effective prevention programming on campus is not the way to accomplish this.

Many of the problems resulting from overly broad mandatory reporting policies stem from the dual role given to Title IX offices.  On most college campuses, Title IX Coordinators are simultaneously responsible for investigating reports of sexual misconduct and providing supportive services, but investigating allegations and providing support are two very different skill sets.  Asking Title IX investigators to serve as the primary source of support for survivors on campus is the functional equivalent of asking police to serve as the primary source of support for survivors off-campus. While we would certainly hope that both Title IX officers and police investigators have been trained to be supportive and empathetic, we would never designate police stations as the primary source of support for survivors off-campus. Why, then, are we designating Title IX offices as the primary source of support on campus?

The Title IX Office/Coordinator—while a vital component of institutional response to sexual assault—is not the best place to centralize and monopolize the provision of supportive resources. The simple fact that the Title IX Office’s institutional role is to be “impartial” and “neutral” when responding to sexual assault allegations renders these officials incapable of offering the support that survivors most need: advocacy. An advocate will have nothing but the survivors’ interests and needs in mind when answering their questions, offering resources, and explaining reporting options. In contrast, a primary role of the Title IX Office/Coordinator is to investigate and remediate reports of sexual misconduct, so they cannot guarantee confidentiality for survivors, and survivors’ wishes cannot always be followed. This has been clearly stated in all Title IX guidance on the issue of sexual assault: that a survivor can request confidentiality and no investigation, but the Title IX Office/Coordinator holds the ultimate decision to pursue the report. In fact, a law recently passed in the state of Oregon (ORS 350.253) requires institutions of higher education to “conduct an initial inquiry, or to make contact with named parties, whenever a designated responsible employee has actual knowledge, or in the exercise of reasonable care should know, that possible sexual harassment, sexual assault, domestic violence, dating violence or stalking has occurred.” The requirement to contact all named parties, without the survivors’ permission, can place survivors in danger, both physically and socially (e.g., contacting the alleged perpetrator will alert them that the victim has disclosed). 

The problem is that there are two different, sometimes incompatible, concerns at play in universities’ response to sexual violence. On the one hand, universities seek to address instances of sexual and dating violence that occur on their campuses. On the other, universities strive to provide supportive services for any survivor in their midst.  While these two goals sometimes dovetail, often they do not.  Survivors who experienced childhood sexual assault may very well benefit from supportive services on campus, but do we really need to report them to the Title IX office against their will in order to give them access to supportive services? And what about survivors who do not want to report assaults that occur on campus?  On most college campuses, there are multiple forms of support available to survivors of sexual and dating violence.  Many colleges have on-campus counseling centers, and a number of campuses also have specialized victim advocates or victim service centers. The staff at victim advocacy centers have been specially trained to respond to sexual assault survivors in a supportive and empathetic manner and can greatly benefit survivors (e.g., Brubaker, 2019; Wood et al., 2021). 

If our intention is to provide supportive services to survivors, allowing trained campus advocates to support survivors and provide accommodations will be far more effective than centralizing such services within the investigatory arm of the Title IX office. If our intention is to encourage reporting of sexual and dating violence, policies that emphasize survivor voice and choice are far more likely to enhance trust and eventual reporting than policies that compel disclosure without survivors’ consent. If our intention is to effectively investigate and remediate assaults that occur on campus, policies and services that encourage voluntary disclosure are far more likely to result in the kind of cooperation and participation that are needed to move investigations forward.  If our intention is to help faculty respond appropriately to student disclosures of sexual and dating violence, properly training and equipping university employees to provide referrals will be far more effective than requiring them to report forward survivors’ personal information against their will. If our intention is to create a safer campus through education, encouraging faculty to create a safe classroom space where students can learn about sexual and dating violence is likely to be far more effective than threatening to report any student who talks about these issues in class.

As the Biden administration reconsiders Title IX legislation, we encourage them to look at some of the innovative policies and practices that are already in place at select universities across the country.  The University of Oregon designates most faculty and staff as student-directed employees who are required to provide students with information, resources, and support, but are only required to report the student to the Title IX office if that is what the student wishes. At Tulane University, faculty and staff are required to report disclosures of sexual misconduct to the University’s Case Management and Victim Support Services (CMVSS) rather than the Title IX Office. Victim support through CMVSS gives students control over their recovery process by providing survivors with support, information, resources, and accommodations when appropriate. Other universities include exceptions to reporting requirements in their sexual misconduct policies, such as disclosures made during public awareness events (e.g., Take Back the Night), IRB-approved human subjects research, and in-class activities and discussions (e.g., Keuka College, Ohio State University, Cheyney University of Pennsylvania). Survivor-centered reporting policies and exceptions to reporting requirements are essential for reducing risk of retraumatization during and after disclosures. Indeed, student survivors and campus service providers who work with survivors both prefer student-directed policies over universal mandatory reporting policies because of the increased choice, autonomy, and sense of safety such policies provide (Holland et al., 2020a; Holland et al., 2020b).

As the Biden administration moves forward with their review of Title IX policy, we urge them to consider the following modifications to the recommended role of “mandatory reporters” (which prior OCR guidance and some schools still refer to as “responsible employees”) and the provision of supportive services:

  1. Adopt a discloser-centered reporting policy that removes employee mandatory reporting requirements in cases where the survivor does not want to report to the Title IX Office
  2. Mandate trauma-informed training for faculty and staff on how to respond to survivor disclosures of sexual and dating violence (e.g., supportive listening, referrals)
  3. Allow survivors to receive supportive measures and accommodations from a variety of sources on campus, not just the Title IX Office (e.g., confidential victim advocacy centers on campus)
  4. Ensure that there are clear exceptions in any mandatory reporting policy, meaning that there are clearly defined instances when a person who has been designated as a mandatory reporter will not need to report. Exceptions should include, but are not limited to, information that is disclosed:
    • at public awareness events (e.g., Take Back the Night, candlelight vigils, protests, speak outs)
    • in social media posts (e.g., using #metoo)
    • in academic classes and work products (e.g., during a class discussion, in an assignment)
    • during the hiring or admissions process (e.g., personal statements, interviews)
    • in IRB approved human subjects research
    • in campus climate surveys
    • and occurred prior to enrollment or employment

The Biden administration has the opportunity to right many of the wrongs that have been inflicted on student survivors across the country. The OCR 2001 revised guidance on sexual harassment states that, “If harassment has occurred, doing nothing is always the wrong response. However, depending on the circumstances, there may be more than one right way to respond” (p. iii). As faculty, students, advocates, survivors, and concerned citizens, we, the undersigned, urge the Department of Education to move away from a culture fear to a culture of respect, autonomy, and agency for all survivors.

Sincerely,

Kathryn J. Holland, Courtney E. Ahrens, Liz Hutchison, and Rebecca L. Howard, for the Academic Alliance for Survivor Choice (ASC)

And the undersigned:

References

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