Trouble with Title IX

I used to dread grading student work in my online classes in the week we studied sexual assault. Every time, at least one student confided in her written assignment that she had been raped. Typically, students would write something like this: “Until reading this chapter, I didn’t realize that what happened to me last semester was rape.” Face-to-face classes were even worse. I used to show the 2012 film Rape Myths on Trial: Naming the Unnamed Conspirator, which features veteran sex-crime prosecutor Anne Munch exposing the fallacies of various rape myths. Inevitably, students would drop by my office afterward to tell me that they had been raped. The film was a revelation for them, they would say, affirming that what had happened was sexual assault. They trusted me because I demonstrated in class that I understood the ideologies behind rape myths.

I no longer show that film, and today I avoid discussing sexual assault with my students altogether. Why have I changed the course? After all, I am a sociologist, and my teaching and research specialties include sexuality and gender inequality. My latest research focuses on predatory heteromasculinity, and I have long been an activist against sexualized violence on campus and in our larger society. But I teach at a university that recently designated all employees as mandatory reporters. If a student confides that she or he has been raped, faculty are required to report the student to university authorities within twenty-four hours or face disciplinary sanctions that may include dismissal. Even if the student pleads for confidentiality, we have to report the incident or risk our jobs.

Okay, you might say, forewarn students that faculty are mandatory reporters and that they should not confide in us if they do not want to be reported. But it’s not that simple. The student’s e-mail is already in my inbox. The written assignment is already submitted online. The student has already confided to me in my office. It’s too late. I already know. And I must report the student or be fired.

Problems with Mandatory Reporting

The administrative command that made all workers mandatory reporters poses many problems. Some involve students, while others center on the process by which the policy came about, lack of shared governance chief among those.

First, students have privacy rights. Privacy is a constitutional right, not a “special privilege.” Students should not have to forfeit this constitutional right when they enroll at my university. What students write in their papers and other assignments and what they say in conversations is protected by privacy rights.  

Second, students, like faculty, have academic freedom. They have the right to apply course concepts to their own personal experience through class discussions and written or oral assignments, and they should not have to fear being reported to a campus authority. They should not have to censor themselves in order to avoid being reported. The issue of academic freedom works another way as well. Faculty like me who are mandatory reporters no longer feel that we have the academic freedom to teach about or to discuss sexual misconduct with our students.

Third, students have the right to confidential conversations. In a free nation, students should be able to discuss personal issues with others, free from the fear of being reported to campus authorities. Certainly all of us must report illegal, dangerous, or threatening behavior. But being a victim, being a survivor, is not illegal behavior and should not be reported to campus authorities without the survivor’s consent. In the first iteration of my university’s mandatory reporting rule, even student workers were required to report each other to campus authorities if they knew that someone had experienced sexual assault. In the required training for dealing with allegations of sexual misconduct, faculty, staff, and students were all told that they were required to report any knowledge of sexual misconduct, including even a rumor overheard at a restaurant.

Fourth, in America, people who are eighteen and older are considered to be legal adults and should be treated as such. Blanket mandatory reporting policies infantilize students. In Alaska, where I work, state law requires teachers and other professionals to report children who the teachers suspect are victims of sexual or domestic violence. But once a person turns eighteen, the professionals around him or her are no longer bound by this requirement—unless the eighteen-year-old happens to enroll at the state university.

Fifth, survivors of sexual assault should have the right to determine whether, and if so when, and how, to report the crime. In the case of sexual harassment, assault, or other forms of sex discrimination, survivors must have the right to decide what course of action is in their best interest. Research has demonstrated again and again that most rape survivors do not report assaults to police or to other authorities. We all know why: police and other authorities believe in rape myths; reporting to authorities sets victim-survivors on a path that they usually cannot control, one that may involve invasive vaginal and rectal exams and interrogation about the victim’s alcohol use, sexual history, and clothing choices as well as the extent of her resistance. It is no wonder that most women do not report sexual assaults but instead find other ways to cope with their distress. Before mandatory reporting was foisted on me and my colleagues, it was not unusual for students who had experienced sexual misconduct to work out their own solutions, their own coping mechanisms, through their coursework and through discussions with friends and sympathetic faculty and staff. But mandatory reporting robs students of these options and in the process steals their agency and autonomy.

Mandatory reporting may violate faculty professional ethics as well. The AAUP’s Statement on Professional Ethics highlights the importance of student confidentiality by stating that professors should “respect the confidential nature of the relationship between professor and student.” The faculty senate at my university endorsed the statement in 1997. The university’s rule thus requires faculty to violate a key ethical principle. The rule also runs counter to the AAUP’s Joint Statement on Rights and Freedoms of Students, which holds that “information about student views, beliefs, and political associations that professors acquire in the course of their work should be considered confidential.”

Title IX Administration

How did we get here? How was the text of Title IX, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance,” transformed into a command for campus Title IX administrators to hunt down potential victims and to destroy the confidential nature of the student-professor relationship?

Most of the Title IX administrators I have known are good people who were drawn to the work out of a commitment to equity. But most of them were not originally tasked with investigating campus sexual assault; instead, they were hired when Title IX mainly concerned equity in college athletics programs. But when campus antirape activists discovered that they could use Title IX to undermine campus rape culture, private companies saw a chance to earn significant profit.

I claimed in a June 22, 2014, post on my blog, the Fiddling Sociologist, that the rise of the higher education risk-management industry has created a niche for specialized external consultants and law offices that create products and services to sell to colleges and universities managing Title IX and other federal mandates. I call this niche industry Title IX profiteers.

One organization in particular, the National Center for Higher Education Risk Management (NCHERM), an umbrella law and consulting firm, produces workshops, creates policy-writing curricula and sample policies and procedures, trains Title IX administrators, and provides legal representation both for higher education institutions and for students who sue their institutions. One of the cofounders of NCHERM, W. Scott Lewis, was instrumental in drafting the 2014 White House policies on campus sexual assault and has acted as a consultant to the federal Department of Education’s Office for Civil Rights (OCR). Another principal of NCHERM, Brett Sokolow, has made a name for himself as the founder of the Association of Title IX Administrators (ATIXA), which offers in-house and conference-type workshops to train Title IX administrators. NCHERM, through its various subsidiaries and consultants, helped to shift the focus of Title IX law from athletics to campus sexual misconduct and shaped the guidance coming out of the OCR.

The first reference that I can find to a blanket mandatory reporting rule that covers colleges and universities comes from a September 23, 2013, Chronicle of Higher Education article. In that piece, Brett Sokolow advises that universities make all campus employees mandatory reporters. Although I have been an outspoken critic of Sokolow, to his credit, he notes in his Chronicle piece that blanket mandatory reporting rules are a “runaway train” when applied inappropriately. His firm, however, has the fix for “returning the train to the station”: workshops for Title IX administrators, membership in ATIXA, and consultation and legal representation when necessary.

My university—which used to pride itself on its commitment to traditional principles of academic governance—instituted a blanket mandatory reporting rule with severe consequences for noncompliance shortly after hiring a new Title IX coordinator and consulting with NCHERM. And only a couple of years later, the OCR announced that our university was under investigation for possible Title IX violations related to sexual assault. This, of course, stoked the university’s fear of reprisal from the OCR, seemingly necessitating further departures from ordinary governance processes.

Title IX compliance offices are often located to the side of university organization charts. At my university, for example, the Title IX coordinator reports directly to the chancellor and works off the charts with the university’s general counsel’s office. This location separates Title IX administrators from governance processes, allowing them to run amok at some campuses, as Laura Kipnis’s recent experiences at Northwestern University, widely publicized in an essay for the Chronicle of Higher Education, illustrate. In fact, for several years after my university’s Title IX administrator commanded that all university workers be mandatory reporters, the rule did not appear anywhere except on the university’s Title IX website. At some point around 2012, mandatory reporter was replaced with responsible employee, a term that came from the official OCR “Dear Colleague” letter of 2011. Still, as I pointed out repeatedly and to multiple audiences, no written rule existed requiring that all faculty be responsible employees. In fact, as far as I can determine, the first written requirement that faculty were responsible employees appeared in a midyear contract in January 2016, nearly five years after the Title IX administrator first told us that we were mandatory reporters.

Resisting the Rule

In 2014 I decided to resist the university’s unilateral implementation of the mandatory reporting rule.

My first action was at the chancellor’s convocation in fall 2014, where I passed out about one hundred copies of a flyer titled “Mandatory Reporting Violates Student Rights.” The then-chancellor was affable and took the flyer that I offered to him. The student newspaper covered my small act of resistance, and a student journalist became especially interested in the issue. The campus representative for my union, United Academics, soon contacted me to say that the chancellor thought I had misunderstood the mandatory reporting requirement and had suggested that I was overreacting. A few days later, an attorney with the university system’s general counsel’s office invited me to discuss the mandatory reporting rule. At his suggestion, we met at a local bar, away from campus. During our three-hour meeting, he detailed the reasons for mandatory reporting while I argued against the policy. It was, overall, a friendly conversation, but neither of us was going to budge from our respective positions. To his credit, he agreed to hear from students and others who had concerns about mandatory reporting. By this time, a small group of other faculty, students, and staff had begun to question the still-to-be-written blanket mandatory reporter rule, so we organized a forum and invited him and the rest of the campus community to attend.

Forty-two people came to our forum. About half were students, and the other half were faculty, staff, administrators, alumni, and members of the local community. The chancellor attended, as did the attorney with whom I had met previously. The campus police chief, the director of the student health and counseling center, and the Title IX coordinator also came. My university system has a student who serves on the system’s board of regents, and she attended the forum as well. Our campus union representative facilitated the discussion. We sat in a big circle with the idea of minimizing power differentials.

The discussion was spirited, to say the least. The administrators defended mandatory reporting as a good and necessary rule, while most of the students vehemently opposed the rule. Faculty in attendance stated their opposition to the rule. Some students cried, an administrator shouted, and there was much anger in the room. The consensus that emerged from the forum was that the mandatory reporter rule should be rescinded or significantly revised to narrow the reporting requirement to those who are responsible employees as defined by the 2011 OCR “Dear Colleague” letter. Student survivors, in particular, expressed concern that the university administration needed to listen to and support them. Students and faculty also spoke against the expansion of surveillance of students.

The Situation Today

Now, three years later, what has changed? The OCR announced in 2014 that our entire university system was being investigated for possible violations of Title IX. The university president says that we may expect the final OCR report any day now. When we were first put under investigation sixty other institutions were in a similar situation. Now three hundred institutions are under investigation, but the country has a new president whose Department of Education may take a different approach to Title IX compliance.

I have spoken several times to my faculty senate about the lack of a written policy, urging that the mandatory reporting rule be rescinded and replaced with a narrow definition that applies only to responsible employees as defined by the 2011 “Dear Colleague” letter. Finally, in 2016, the mandatory reporting rule appeared in our individual contracts, but in spite of my arguments, and in spite of the clear consensus that emerged from the 2014 forum, all faculty were made responsible employees. The new contract language did not go through regular governance processes but simply appeared unannounced. I suspect that, apart from our labor relations office and general counsel’s office, I may be the only one who noticed.

To prevent being required to report students to campus authorities, I now minimize the possibility that anyone will make personal disclosures to me. In my sexualities class, I moved the section on sexual assault to the very end of the course to avoid discussion. I am hoping that if I close the door to conversations about sexual assault, students will not tell me about their experiences. Like Laura Kipnis, I believe that the mandatory reporting rule is part of a nationwide sex panic, with Title IX administrators running amok. I can no longer participate in the university’s hunt for victims to satisfy its hunger for compliance.

Sine Anahita is associate professor of sociology at the University of Alaska Fairbanks. Her research focuses on organized inequalities, or how states and organizations deploy markers of difference such as race, gender, and sexuality to shape social reality. Her e-mail address is [email protected].