Wednesday, May 13, 2015
Title IX is the foundation for the progress of female students on campus.
With the recent controversies around campus sexual assault, Title IX is the standard (and indeed the enforcement remedy) through which we view appropriate and effective responses. Some schools do better than others. As do some faculty.
Most schools consider faculty as responsible employers under Title IX.. This means that if a student discloses sexual harassment on campus the faculty member is required to make a report to the campus employee designated to receive Title IX complaints. But nowhere in Title IX is there an obligation to report the names of the parties when making reports. The Department of Education interprets the mandatory reporting obligation as including the obligation to name the parties involved. The Department is not insensitive to concerns of survivor autonomy. DOE suggests that faculty members warn students that faculty have an obligation to report the details, including names, of allegations of sexual harassment, including sexual assault. The Department then suggests that the faculty member refer the students to campus resources that provide confidentiality. Suggested referrals are to campus medical a counseling centers.
Most universities fail to provide faculty information on warning the student survivor early in the conversation,however, so many faculty do not know of the suggested caution. Those of us who are attorneys can claim privilege, as can faculty members who are therapists. But the majority of faculty are not so fortunate.
The lack of survivor autonomy in whether to disclose is disturbing. Nearly all university and colleges students have reached the age of majority. Yet faculty are obligated to report the most intimate details of a student experience simply because the student trusted that faculty member in disclosing what happened.
While the campus Title IX officer may decide whether or not to take the claim further, that decision is not the student's. The campus Title IX officer has a dilemma. The officer may honor student requests for anonymity and face possible public repercussions should the same perpetrator repeat the offensive behavior. Typically, protection of the employer will prevail and a complaint pursued by the Title IX investigator.
Presumably, if the student's initial thought was to pursue a complaint through the criminal justice system, s/he would report to the police in the first instance rather than engage the school's administrative process. As with domestic violence survivors, the police are often not the desired first step in disclosure or remedy. Students understand the complications that arise when a survivor reaches out for help. But most do not recognize that their trusted faculty advisor will be part of those complications.
I advocate for policy change so that faculty Title IX reporting obligations permit reporting that does not include the parties' names, if that is what the student chooses.