Thursday, July 22, 2021
Justine Dunlap, Harmful Reporting, 51 New Mexico L.Rev. (2021)
Title IX is used in many ways; perhaps most prominent and controversial is its use to address issues of sexual harassment and sexual assault on college campuses. The regulations governing that use have just been changed, with the Department of Education issuing new final regulations on May 6, 2020. The recent spotlight aside, an aspect of Title IX that has gotten too little attention has been the move towards having all or nearly all university employees categorized as “mandatory reporters.” A mandatory reporter is one who must report an allegation of sexual assault to the university’s Title IX coordinator. This report must be made even if it is against the wishes of the student who discloses that she or he was the victim of the assault. This widespread use of mandatory reporters, perhaps counterintuitively, confers harm on the individual disclosing the assault. It also does not achieve the intended goals, one of which is often stated as making it known that the institution takes sexual assault very seriously. Anointing all employees, including nonsupervisory faculty members, as mandatory reporters actually drives down student desire to disclose. This in turn prevents student survivors from getting the support they need in order to have equal education opportunities regardless of sex, which is the core purpose of Title IX. Therefore, having a widespread mandatory reporting requirement not only inhibits disclosure but itself may be a violation of Title IX. Other phenomena presently influence the willingness to disclose and/or report sexual assault. The #MeToo Movement and the Harvey Weinstein trial reveal much about the challenges and trauma associated with disclosing and reporting. Further, some state legislatures have codified mandatory reporting and others have considered or will consider it. There are better ways to comply with Title IX and protect survivors. Those ways must become more widespread.