Monday, May 25, 2020
In two previous posts, Professor Dunlap wrote about the adverse timing of the release of the Title IX final regulations and about the perpetual battles over the regulations. In this post, she discusses an overlooked positive of the new regulations—the move away from universal mandatory reporting on college campuses.
by Prof. Justine Dunlap, UMass Law School
Most of the provisions of the new Title IX regulations released May 6th have been rightfully critiqued as negatively affecting survivors who allege that they have been the subject of sexual assault or sexual misconduct on college campuses. The outcry has been strong against, for instance, the institution of cross-examination as well as permitting, and in some instances mandating, a higher standard of proof. The focus on these changes, however, has resulted in one revision that will benefit many survivors have gone largely unnoticed.
Over the last decade or so, there has been a move towards having all or nearly all university employees designated 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 sexual assault or misconduct. This phrase grew out of the phrase “responsible employee” in old DOE guidance which defined the term in a cumbersome and confusing way. That guidance, moreover, led many schools to believe that the prior administration’s Department of Education favorably looked upon classifying nearly every employee in this manner. The exception to this requirement was individuals who were deemed “confidential employee” due to the counseling nature of their responsibilities.
This near-universal approach to responsible employees/mandatory reporters was, perhaps counter-intuitively, often harmful towards the individual disclosing the assault. If virtually all employees are mandatory reporters who must make an official report to the Title IX coordinator, then students who do not wish to go that route are foreclosed from disclosing to, for instance, a trusted faculty member. 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. By connecting disclosing and reporting, survivors were being forced into a situation where they were once again stripped of control. The data is copious that being able to control the process of disclosing and reporting, including the right to do the first but not the second, is core to a survivor’s healing. That is why many survivor groups have long opposed widespread Title IX mandatory reporting requirements. It is good to have the opportunity to restore that control. The challenge will be in getting universities to rescind those mandatory reporter policies.
Editors' Note: Prof. Dunlap writes of mandatory reporting obligations in more depth in a forthcoming article to be published by the University of New Mexico Law Review next year.