Guidance for Submitting a Comment

The final date to submit comments is Monday, September 12.  All comments can be submitted using the link below:

In addition to adding your name to our letter, we are encouraging interested parties to also submit an individual comment.  Thus far, only 65 comments have been submitted on this topic.  Given that there are over 40,000 other comments, we are concerned that our voices may get lost in the shuffle.

To help you craft such comments, we have put together a short template and a list of some suggested arguments for different topics.  Feel free to paraphrase from the arguments that resonate most for you. Your comments don’t have to be long, but we feel that they would be more impactful if they included personal stories and concerns that are relevant to your institutional context.

Comment Template:

I am [briefly describe yourself, such as “a college student,” “a professor,” “an advocate,” “a survivor”]. I am writing because I am deeply concerned about the proposed requirements on mandatory reporting for institutions of higher education (§ 106.44(c) “notification requirements”) that would result in most employees being required to report any possible sex discrimination they learn about (including sexual harassment and assault) to the Title IX Coordinator, even if the victim/survivor does not want or consent to the report. The proposed requirements [insert the argument(s) you would like to make against the requirement and/or why this matters to you]. I urge the Department to reconsider the proposed mandatory reporting requirements and to reference the comment by the Academic Alliance for Survivor Choice in Reporting Policies (ASC) submitted by Dr. Kathryn Holland for empirically-supported and survivor-centered solutions.

Possible Arguments/Points to Choose From:

Broad Mandatory Reporting Policies Ineffective

  • Most colleges and universities have already been implementing broad mandatory reporting policies like this (Holland, Cortina, & Freyd, 2018), but rates of sexual harassment/assault have not declined (see any study of campus sexual harassment/assault in the past 30 years)
  • Fewer than 5% of victim/survivors voluntarily report to the university and fewer than 25% seek help from campus supports (see Holland et al., 2021 and Holland & Cipriano, 2021 for a review)
  • Reports to the Title IX office rarely result in formal institutional actions (e.g., grievance procedures) or meaningful supportive measures (Cipriano, Holland, O’Callaghan, & Riger, pre-print; Know Your IX, 2021; Richards, 2019; Richards et al., 2021)

Harm to Survivors

  • Proposed mandatory reporting polices are more harmful for victims/survivors than the Trump administration regulations they are replacing
  • Proposed policies take choice and control away from survivors, reinforcing the lack of choice and control survivors experienced during the assault;  regaining a sense of autonomy and control is essential to recovery and healing after individuals experience sexual assault and harassment (Bryant-Davis, 2011; Frazier, 2003).
  • Victim/survivors routinely experience additional trauma and institutional betrayal when they come into contact with the Title IX office (Know Your IX, 2021; Smith & Freyd, 2014).
  • Survivors can feel betrayed when faculty report disclosures of sexual assault against the survivors’ will

Scope of Reporting Policies Too Broad

  • Mandatory reports are not limited to direct disclosures or witnessed acts
  • Must also report when someone other than the complainant (including another student, a parent, a member of the local community, or the media) mentions it or it is learned about it “by any other means” (p. 186), including indirectly learning of conduct via flyers, posts on social media or online platforms, assignments, and class-based discussions.
  • Students do not expect faculty to report rumors or things they see on social media

Absence of Exceptions

  • Proposed mandatory reporting policies do not exclude disclosures that occurred before students matriculated at the university (even though the university has no jurisdiction over assaults that occurred in high school or earlier)
  • Proposed mandatory reporting policies do not exclude non-intentional disclosures (e.g., class discussions, reflection papers, prevention programs, etc.) where students are not explicitly seeking help
  • Students have a reasonable expectation that disclosures made for the purpose of a school assignment or educating others will not be reported to university officials

Take Back the Night Marches & Speakouts

  • The Department explicitly chose not to make exceptions for employees who learn of possible harassment/assault at an activist event like Take Back the Night (§ 106.44(c)), stating that “nothing…obligate[s] a postsecondary institution’s employees to attend public awareness events” (p. 196).
  • Faculty often integrally involved in organizing such events and attendance is an important way that faculty, advisers, and other employees can demonstrate commitment to a violence-free campus and foster an environment in which people will voluntarily come forward with experiences of harassment and assault.

Silencing Effect of Policies

  • Broad mandatory reporting policies that compel disclosures can discourage victim/survivors from seeking help and disclosing to employees they trust, including to their teachers and advisors (Freyd, 2016; Holland et al., 2018; 2020; 2021; Richards et al., 2021).
  • There will be a serious chilling effect if we now must warn students and employees that if they speak about harassment/assault in classes, on social media, at activist events, in an interview, (and other ways), and an employee learns about it, their personal information will be reported to university officials.
  • Broad mandatory reporting policies not only discourage some students from seeking help, but also may discourage staff and faculty from seeking help, advice, and support from their colleagues who are obligated to report.  This effect is especially problematic for graduate teaching assistants of color who – as mandatory reporters themselves – may avoid disclosure to trusted peers and advisors because they are among the most vulnerable to retaliation (Cantalupo, 2018)

Discrimination Against Survivors

  • Many students experience challenges that can affect their ability to succeed in college (e.g., homelessness, food insecurity, mental illness, disabilities), but sexual assault victims are the only students who are required to be reported to university officials
  • University students are adults who have the right to make their own decisions; the current policies infantilize survivors and treat them differently than every other student on campus
  • All the negative outcomes of mandated reporting will disproportionately impact survivors, who are more likely to be members of classes that TIX was designed to protect. Thus, TIX becomes an institutionalized agent of discrimination against protected classes. 
  • Many fields of study, such as psychology, anthropology, sociology, social work, and women & gender studies, rely on students incorporating themselves and their histories into their coursework. For the 95% of student survivors who would not voluntarily report their sexual assault to Title IX, their education will be negatively impacted when they are unable to fully engage with the course material due to hiding their sexual assault. Thus, TIX becomes an institutionalized agent of discrimination against protected classes.

Mandatory Reporting of Employee Victimization

  • The Department of Education is giving institutions the power to decide what will happen when an employee learns about another employee’s experience of possible harassment/assault
  • Employees may end up reporting one another’s victimization experiences
  • Like most college students, employees are not children and have the right to decide if a report will be made.

Violation of Autonomy

  • At a time when women have been stripped of bodily autonomy through the overturning of Roe v Wade, our school’s policies must not further limit their autonomy and control.
  • Current policies are paternalistic
  • Is this the legacy the Biden administration wants?

Need for Confidential Support Services

  • Survivors need emotional support and advocacy, and Title IX Offices are not equipped to provide this (as the investigative arm of the university, they must remain neutral)
  • Most Title IX Coordinators hold a second job, many of which have nothing to do with supporting students (e.g., operations manager, bookstore manager, financial aid officer, librarian)
  • Certified confidential advocates have extensive training in trauma-informed care and are better equipped to provide emotional support to survivors; each campus should have a confidential advocate who can provide emotional support and supportive measures to students who do not wish to make a formal report or participate in an investigation
  • Victim advocates are beneficial for enabling formal reporting, as victim/survivors who work with a victim advocate are more likely to follow through with formal reporting and report more positive experiences during formal reporting processes (Campbell, 2006; Nightingale, 2022; Patterson & Tringali, 2015; Patterson & Campbell, 2010).
  • Need a requirement that all institutions identify confidential employees on campus.  Need a place for victims/survivors to go without risk of investigation. 

Need to Separate Supportive Measures from Investigations

  • Current regulations include an intentional concentration of supportive measures in Title IX offices;  advocates must be enabled to provide supportive measures
  • Separate Title IX and confidential advocates;  inform students where to go for confidential support services and where to go to make official reports for investigation
  • Faculty far more likely to refer students to confidential support services than report them to Title IX against their will;  this system would get more compliance

Mandatory Supporting Policies

  • There are many reasons why survivors choose to disclose – some students may want an employee to help them initiate official action, some students may want an employee to tell them about confidential resources, and some students may just want an extension on an assignment
  • If survivors want institutional action, then employees should be required to report it. If survivors want information about confidential resources, then employees should be required to provide that information. If survivors just want an extension, then employees should give them an extension.
  • Instead, require only employees who institutions have determined to have true “authority to institute corrective measures” and who serve in positions of administrative leadership (e.g., administrators, deans, chairs, public safety supervisors, coaches, housing directors) to notify the Title IX Coordinator when the employee has information about possible sex discrimination experienced by a student or employee (which would establish “actual knowledge”)
  • Require all other employees who directly learn about possible sex discrimination experienced by a student or employee to provide supportive intervention by informing that person how to report to the Title IX coordinator, asking if they want to report—without attempting to discourage or encourage reporting—and make a report if they give consent, referring them to a confidential victim advocate (either on campus or in the community), and informing them about other confidential employees/services on campus;

Need for Institutional Discretion

  • Several universities have implemented policies that are evidence-based and survivor-centered (e.g., University of Oregon, University of Washington, Tulane).
  • Revise the proposed regulations on notification requirements (§ 106.44(c)) to allow institutions more flexibility in setting mandatory reporting policies, including which employees are required to report and when/what they are required to report
  • Include discretion to designate confidential resources and exempt them from Title IX reporting requirements

Legal Considerations

  • Mandatory reporting as unconstitutional:  right to privacy, freedom of association, freedom of speech.
  • Proposed regulations as arbitrary and capricious (i.e., could be determined if they fail to consider an important aspect of the problem).
  • Proposed regulations as ultra vires (i.e., exceed scope of powers).  Frame mandatory reporting as a clear departure from the statutory mandate of Title IX. Proposed regulations are not consistent with Title IX itself.