Raising the Stakes on Title IX Compliance

Student affairs practitioners across the United States are coming back to work this week and preparing for classes to resume and students to return after the holiday break. But our Texas colleagues in student affairs are coming back to work with an additional job duty: a requirement to report to the Title IX coordinator any disclosures of sexual assault they receive from students.

This requirement is not a new one for student affairs professionals. The duties of responsible employees under Title IX were detailed in the 2001 Guidance published by the Department of Education, Office for Civil Rights (OCR). The definition then was articulated as “A responsible employee would include any employee who has the authority to take action to redress the harassment, who has the duty to report to appropriate school officials sexual harassment or any other misconduct by students or employees, or an individual who a student could reasonably believe has this authority or responsibility.”

Under the Department of Education during the Obama administration, OCR further expanded upon the duties of responsible employees, saying “a responsible employee must report to the school’s Title IX coordinator, or other appropriate school designee, all relevant details about the alleged sexual violence that the student or another person has shared and that the school will need to determine what occurred and to resolve the situation.” The duties of responsible employees have been in place for decades, and policies compelling employees to report sexual assault disclosures to institutional administrators are not new. In fact, in a 2018 study conducted by Holland, Cortina, and Freyd (2017), 69% of institutions indicated that they have policies that designate all employees as responsible employees, which makes them mandatory reporters of sexual violence. What is new is that the Texas Senate Bill 212 makes failure to report disclosures punishable as a misdemeanor under the law.

The intent of this legislation, similar to many laws, is to increase the safety of survivors who come forward to report their experiences of sexual violence. These laws are a direct consequence of sexual assault scandals on campuses, such as those at Baylor in Texas and the Nassar cover-up in Michigan, so it makes sense that legislators have a vested interest in preventing such flagrant Title IX violations from occurring in the future. But similar to much of the other well-intended legislation, this law centers the institution and its responsibility while making the needs of survivors of sexual assault secondary in the dialogue. For example, some students in Texas have articulated concern about the rights of survivors who disclose to someone but do not want an official report to be made with the institution. 

There is already so much at stake for student affairs administrators involved in addressing sexual misconduct violations. Some professionals have fears that range from lawsuits by both complainants and respondents who feel as though the institution did not meet their needs to fears of being fined by the Department of Education for Clery Act or Title IX non-compliance. This anxiety is exacerbated by the sheer number of personnel on a given campus whose roles involve sexual misconduct response – including survivor advocates, hearing board members, respondent support personnel, Title IX coordinators, appeals decision-makers, and general counsel. The Texas law heightens the stakes for higher education administrators who, with a few notable and consequential exceptions, are trying to prevent and respond to sexual misconduct from a student-centered perspective. Adding to the confusion for higher education administrators, the Texas legislation, similar to legislation in several other states, may conflict with the new Title IX guidance from the Department of Education, Office for Civil Rights. 

Researchers have demonstrated the ways that these mandatory reporting policies can negatively impact reporting on campus. Holland, Cortina, and Freyd (2017) call these mandated reporter/responsible employee policies compelled disclosure policies. Their research clearly articulates the ways that these policies continue to remove consent from survivors. When survivors’ stories are shared with campus administrators without their consent, institutions re-traumatize these students and continue to disempower victims of sexual assault. Laws that are designed to protect survivors often have the opposite effect, but the significant work of researchers like Freyd and her colleagues can provide evidence and data that can be used by well-intentioned policymakers and legislators. 

The importance of research in the field is just one of the reasons that NASPA is thrilled to have Dr. Jennifer Freyd as the keynote speaker for the 2020 Strategies conference taking place in New Orleans next week. Freyd’s address, Harnessing the Power of Institutional Courage to Address Campus Sexual Misconduct and Promote Student Well-Being, will explore the power of institutions to act with institutional courage and the importance of accountability and transparency in these critical moments. We hope to see you in New Orleans, as we work as a field to ensure the accountability of both our institutions and our colleagues, while also centering the students who need institutional support in these challenging cases and the face of equally challenging state and federal legislation.