A Principled and Legal Approach to Title IX Reporting

Abstract

Institutions of higher education identify “responsible employees” to further their compliance with Title IX. Responsible employees typically report instances of campus gender-based violence to the institution, usually to the Title IX coordinator. Unfortunately, most colleges and universities make virtually every employee a responsible employee. This “wide-net” approach to reporting, sometimes referred to as universal mandatory reporting, produces two categories of related unintended consequences: (1) it weakens the autonomy of victims when they need their autonomy most, thereby undermining their sense of institutional support and aggravating their psychological and physical harm from the assault; and (2) because of these negative consequences, it deters some victims from accessing the help they need and from invoking university processes designed to hold their perpetrators accountable. After describing the drawbacks of wide-net reporting policies, this Article examines whether current law and guidance permits colleges and universities to limit the number of responsible employees. It argues that recent guidance from the Office for Civil Rights (OCR) increases institutional discretion beyond what existed even under Obama-era guidance and allows institutions to move away from wide-net reporting policies. Nonetheless, because some troubling language still remains in OCR guidance, this Article urges the Trump administration to inform colleges and universities expressly that they can narrow the number of responsible employees.

The Article then describes in detail the components of a legally sufficient and principled reporting policy. The Article identifies key principles that should guide an institution’s formulation of policy, discusses which employees should be made responsible employees, and analyzes several tricky categories of employees. To facilitate reporting and to support survivors, the Article recommends that all employees be obligated to report for a survivor if the survivor wants to report and to offer the survivor access to confidential support services. Several other aspects of reporting policies that deserve consideration are also highlighted. Finally, the Article argues that institutions cannot credibly justify their wide-net policies by invoking concerns about liability. No reliable estimates exist about the relative liability risks attending different types of policies. The purported institutional advantages of wide-net reporting policies, including the simplification of matters for employees and the removal of perpetrators from campus, appear overstated. Moreover, the liability risks associated with wide-net policies, including the increased institutional vulnerability when employees do not report or when students do not want them to report, are typically ignored. The Article concludes by urging colleges and universities to revise their reporting policies to better advance the goals of Title IX.

Keywords: Title IX, reporting, higher education, college, university, #metoo, sexual assault, sexual harassment, gender, responsible employee, civil rights