Who Must Report?

Citing a chilling effect on study participants, faculty members who study sexual assault say they should be exempt from mandatory reporting requirements. Fraternities are also arguing for an exemption for volunteer chapter advisers.

December 4, 2015

A growing number of colleges and universities in the past few years have adopted policies requiring all faculty members and other professional employees to report sexual misconduct to designated administrators. Though not required by law, the move is an outgrowth of U.S. Department of Education guidance on preventing and investigating campus sexual assault.

The guidance, issued in 2011 by the department's Office for Civil Rights, mandated that certain employees have an obligation to report cases of sexual assault and other sexual misconduct they become aware of. The regulations, at the time, outlined clear exceptions for professional and pastoral counselors, but offered little else in determining which specific employees should be mandatory reporters. Some in higher education -- including groups as varied as sexual assault researchers and the national umbrella organization representing fraternities -- now say colleges and universities have interpreted the guidance far too broadly.

One such group is the University of New Hampshire’s Prevention Innovations Research Center, whose research on preventing sexual violence has been lauded by the White House’s sexual assault task force. Last month, the center published a white paper that argued institutions should exempt academic employees from mandatory reporting when they are acting as researchers.

“It’s having a chilling effect,” said Sharyn Potter, the center’s co-director and an associate sociology professor at the University of New Hampshire. “There’s not a lot of research looking at effective prevention strategies, and this would have the effect of shutting this research down. If I recruit participants for a study, and then say, ‘By the way, I’m going to have to report to administrators everything you tell me,’ nobody is going to sign up for my study.”

There is precedent for exempting researchers from mandatory disclosure requirements. Federal law requires clinics and other testing sites to report positive HIV tests to state health departments, which then forward the results to the U.S. Centers for Disease Control and Prevention. Some state laws also mandate that clinics notify patients’ spouses or sexual partners of the results.

Researchers working with participants who are HIV positive are not required to disclose test results, however, if the testing is done “purely for research purposes” in a research study approved by an institutional review board. The Prevention Innovations Research Center argues that institutions should adopt a similar policy for IRB-approved research on campus sexual assault.

“HIV-AIDS is a reportable disease, but researchers were able to get exemptions for reporting it as they’re trying to examine the larger social culture and context of interactions with how HIV is spread,” Potter said. “It’s a helpful precedent. Right now, institutions want to be in compliance, and so I think sometimes, in an effort to be in compliance, they are almost going too far. But the stakes are so high.”

Researchers aren’t alone in hoping to be exempt from mandatory reporting rules. While the center’s white paper only makes the case for faculty members in research roles to be excluded, Potter admitted the requirement can cause issues when she’s teaching, as well.

In courses focused on interpersonal violence -- the kind Potter often teaches -- students sometimes disclose details about assaults they have experienced, but not always with the intention of the assault being reported to administrators. The problem can also arise in writing courses, in which students are asked to discuss personal topics.

Brett Sokolow, chief executive of the higher education risk management firm NCHERM Group and executive director of the Association of Title IX Administrators, said earlier this year that mandatory reporter requirements are a way for colleges to “bridge” various reporting requirements under different laws related to disclosing information about campus crime. One law, Title IX of the Education Amendments of 1972, sets reporting rules for a broader and less defined group of faculty members and administrators, while another law, the Clery Act, focuses on campus safety and security officials. “If everybody’s a mandated reporter, it simplifies who’s who, and it simplifies the training,” Sokolow said.

Under Title IX -- the gender discrimination law used by the Education Department to address campus sexual assault -- certain “responsible employees," such as faculty members, are required to report sexual misconduct. Exemptions can be made for those employees when the disclosures occur in the context of human subject research, however, Sokolow said this week, and current OCR guidelines regarding Title IX allow for such an exemption.

Under the Clery Act, the campus crime disclosure law, the obligation to report falls on designated “campus security authorities.” Campus security authorities include campus police and safety officials, as well as other employees, such as those in charge of housing and judicial proceedings.

But in some cases, a campus security authority may not be a university employee at all. Though not outright required by the Clery Act, some institutions designate volunteer advisers of fraternity chapters to act as campus security authorities.

“This results in additional risk and liability for these volunteers, creating a high barrier to future alumni involvement and potentially leading to a shortage of alumni volunteers,” said Will Foran, vice president of university relations for the North-American Interfraternity Conference. “A shortage of these volunteers only serves as a detriment to student organizations.”

Preventing this requirement has been a key part of the fraternity umbrella group’s lobbying efforts in the last year. Though the North-American Interfraternity Conference recently pulled its support of the controversial Safe Campus Act -- a bill that would have barred colleges from investigating cases of campus sexual assault unless the victim first reported the crime to law enforcement -- it still supports a similar bill called the Fair Campus Act.

The Fair Campus Act -- introduced by two members of Congress who have received more than $40,000 in contributions from the Fraternity and Sorority Political Action Committee -- would prohibit colleges and universities from designating as a campus security authority “an adult volunteer adviser to a student organization, or any employee of a student organization who is not also an employee of the institution.”

The proposed legislation would also bar institutions from denying recognition of fraternity chapters who refuse to designate advisers and other fraternity employees as campus security authorities.

Allison Kiss, executive director of the Clery Center for Security on Campus, said some alumni advisers may be volunteers or independent employees of a fraternity, but they are still “acting as part of the institution” and should be obligated to serve as campus security authorities. Kiss compared the relationship to that of colleges and volunteer coaches of campus club sports.

“They’re volunteers, but usually a club is required by an institution to have a coach,” she said. “A volunteer coach or adviser is going to be building a rapport with students, and students might disclose something to them that, quite frankly, they are not really qualified to handle. We want to make sure there's a process for getting that information to someone who is qualified, and to make sure the student finds the resources he or she needs.”


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