Faculty Forum: Cop and Gown?

The Secretary amends the Student Assistance General Provisions regulations issued under the Higher Education Act of 1965, as amended (HEA), to implement the changes made to the Clery Act by the Violence Against Women Reauthorization Act of 2013 (VAWA). These regulations are intended to update, clarify, and improve the current regulations.—Federal Register

With these dry words, the US Department of Education is ushering in a host of changes with far-reaching implications for teaching staff at colleges and universities. The changes, which include new requirements under the Clery Act for reporting on sexual assault and other crimes, will take full effect on July 1, 2015, and many campuses have preemptively implemented them.

My own campus, the University of Maine, recently enacted new policies that require teaching staff to inform on students who mention any experience of gender-based discrimination, harassment, or violence. As a longtime AAUP member, I have many concerns about this “cop and gown” expectation.

First, why the policy change? Many victims feel that having their experience “outed” violates them further. It should be up to them, not the institution, to decide how to respond. Due-process rights for possible offenders should exist, too.

In addition to abrogating student privacy and due-process rights, the new policy is unclear about what experiences, exactly, students must beware of our reporting. University documents variously cite “discriminatory treatment,” “potentially discriminatory behavior,” and “discriminatory harassment (including sexual assault or stalking)”; “alleged sexual violence” and “possible sexual assault”; “sexual assault, sexual harassment, stalking, relationship abuse, sexual misconduct, or any form of gender discrimination”; “discriminatory harassment (including sexual assault or stalking)”; “sexual harassment, sexual assault, and similar issues”; and “sexual violence.” The wording is vague, and the range of different behaviors that must be reported is broad. Some of the behaviors have legal definitions; others do not. For instance, according to the
New York Times, “sexual misconduct” is “left to each school to define.” Surely students deserve to know what they can say in front of us.

I am also concerned about protecting teaching staff—undergraduate classroom assistants, graduate student teachers, adjuncts, and full-time faculty members—from potential litigation. Because experts disagree about whether the purportedly enabling legislation, the 1990 Clery Act and Title IX, require that we become informants, and because of the large and vague scope of what we are to report, do we run a risk of being named in civil actions? Again, according to the New York Times, “At least 30 male students, some of whom were suspended or expelled for sexual misconduct, have filed suits against their universities, claiming that the process was unfair.” If we are named in a suit, who will represent us? Given that university attorneys represent the system rather than the faculty, should we purchase liability insurance?

Protecting teaching staff against possible university sanctions concerns me, too. Suppose someone fails to comply with the new requirements. Is this person’s class grade or degree, continued employment, or progress toward tenure, promotion, or post-tenure review in jeopardy? Is the person’s department chair or supervisor required to report noncompliance? The chain of required informants conjures the specter of Big Brother.

Speaking of Big Brother, why are we not required to inform about other behaviors listed in the Clery Act—for instance, “destruction/damage/vandalism of property” that involves an alleged hate crime? Why are we not required to report all possible hate crimes? Here is the Clery Center’s list of categories of prejudice: “race, gender, religion, sexual orientation, ethnicity [and national origin], and disability.” Why do the new requirements focus only on gender? And since gender is specified, is the university open to legal challenge for not including the others? Or are we all to report them, too?

Finally, of course, I object to the new requirements on Bill of Rights and Fourteenth Amendment grounds. Mandated reporting chills both free speech and due process. Good higher education—indeed, a good civil society—inspires passionate, open, and sometimes controversial discourse. We should welcome such discourse, not suppress it.

Ann Leffler is Presidential Professor of Sociology at the University of Maine. Academe accepts submissions to this column. Write to [email protected] for guidelines. The opinions expressed in Faculty Forum are those of the author and do not necessarily represent the policies of the AAUP.