Title IX Mandatory Reporting Expansion Under Fire

Professors, researchers and sexual assault prevention advocates want the U.S. Department of Education to rethink plans to expand mandatory reporting requirements to more college employees as part of its overhaul of the Title IX law. 

The department proposed requiring most campus employees to report cases of potential sex discrimination to Title IX in the regulations released earlier this summer. The public comment period for the new rules closed Sept. 12. The department received more than 240,000 comments, which it is reviewing before publishing a final set of regulations on Title IX of the Education Amendments of 1972, the law that prohibits sex discrimination in any education program or activity that receives federal funding.

Dozens of the published comments mentioned the mandatory reporting change, with faculty members, advocacy groups, students and others weighing in. Nearly all of the comments were opposed, criticizing the proposed provisions as ill-advised, complicated and not beneficial for survivors of sexual assault. Many critics said the department’s proposal would result in nearly all faculty members becoming mandatory reporters.

“Mandatory reporting systems where all but a few faculty and staff are required to report anything they hear, whether or not they have talked to or gotten consent from the student, effectively ruins opportunities for survivors to have a safe avenue for getting help,” wrote Pardes Lyons-Warren, chair of the Student Title IX Assistant Resource Team at Colorado College. “Maintaining control over survivors remains mandatory reporting’s key purpose, regardless of the violations of free speech, privacy and academic freedom that come with that.”

An Education Department spokesperson said in a statement that the Office for Civil Rights is reviewing the comments received during the comment period.

“We will take into consideration those comments and respond to them as part of our publication of the final rule,” the statement said.

What’s in the Regulations

Who on college campuses should have to report an instance of sex discrimination has been a sticking point for faculty members, students, advocates, policy makers and administrators since the 2011 Dear Colleague letter that detailed colleges’ and universities’ responsibilities under Title IX related to sexual violence. That letter said that if “a school knows or reasonably should know about student-on-student harassment that creates a hostile environment, Title IX requires the school to take immediate action to eliminate the harassment, prevent its recurrence, and address its effects.”

Current Title IX rules, issued in 2020, dictate that “a recipient with actual knowledge of sexual harassment in its education program or activity against a person in the United States must respond promptly in a manner that is not deliberately indifferent.”

Within several years after the Dear Colleague letter, many universities adopted policies requiring all faculty members and other professional employees to report sexual misconduct or harassment to the Title IX coordinator—much to the consternation of some faculty members. The Education Department is looking to essentially codify that approach as part of the latest revision to Title IX regulations, but employees will only have to notify the Title IX coordinator if they hear about an issue involving a student, as opposed to one involving only employees.

The proposal also would create a new role—confidential employee—that’s exempt from the reporting requirements. Confidential employees could include individuals whose communications are privileged under federal and state law, who are in a position to provide services in connection with sex discrimination, or who conduct research studies designed to gather information about sex discrimination, according to the proposed regulations.

But under the new regulations, all employees who aren’t confidential employees and who have authority to institute corrective measures on behalf of the recipient or a responsibility for administrative leadership, teaching or advising are required to notify the Title IX coordinator when the employee has information about conduct that may constitute sex discrimination. Determining which employees fall into those categories is up to the individual institution.

The department said in the proposed regulations that it heard from stakeholders that the current “actual knowledge” standard is too narrow and insufficient for colleges and universities to meet their obligations under Title IX. The proposal is the “most effective way to ensure that a recipient’s program or activity is free from sex discrimination,” according to the department.

“These requirements directly contradict research on such policies and trauma-informed responses and will be more harmful for victims/survivors than the Trump administration regulations they are replacing,” the Academic Alliance for Survivor Choice in Reporting Policies wrote in its comment, which was also signed by dozens of researchers.

Jennifer Freyd, a professor emerit of psychology at the University of Oregon and founder of the Center for Institutional Courage, has studied how institutions’ responses to sexual misconduct reports affect survivors of sexual assault. She and other researchers have found that broad reporting policies can cause further harm to survivors and discourage disclosures.

“I’m baffled,” she said. “I don’t know why the Department of [Education] is thinking this is a good idea … I do think people have good intentions who are working on this in the Department of Education. All I could think is they just fundamentally don’t understand the psychological reality of a trauma survivor.”

Tracey Vitchers, executive director of It’s On Us, said she’s particularly concerned about the provision giving colleges and universities discretion to designate some staff members as confidential employees. She wants the role required and for institutions to have to notify students about whom those employees are.

Vitchers added that confidential employees shouldn’t just be clergy or medical professionals but also those who have the background and skills to support a student in crisis.

“We feel very strongly about this because we know mandatory referral or reporting can create a chilling effect on survivors seeking support services, seeking information on what their rights are for folks who might need it,” Vitchers said. “Ultimately, we want survivors to be able to pursue whatever justice or healing looks like for them.”

Vitchers added that the Supreme Court’s ruling on Roe v. Wade, which has led to more state laws prohibiting abortions, complicates the reporting requirements, because the proposed Title IX regulations prohibit discrimination related to a person’s pregnancy status.

“In a post-Roe world, if a student were to be in a state where they have zero right or access to an abortion, they disclose to somebody that they experienced some form of discrimination under Title IX. Then that student is no longer pregnant at some point, because of miscarriage or because they’ve traveled out of state to obtain abortion care, that could actually result in additional harm to that individual because they have exercised their right to choose or have had a miscarriage,” Vitchers said.

Changes Sought

The American Council on Education recommended in its formal comment on the proposed regulations that the department simplify its proposal and give colleges and universities flexibility in determining who should be mandatory reporters.

“While some institutions have extended mandatory reporting requirements to all of their employees, other institutions have chosen not to do so, based on extensive consultation with their community members,” the ACE letter says. “Providing additional flexibility to allow individual institutions to define which employees are required to report would help campuses respond in a way that makes sense for their communities and is sensitive to the needs of survivors.”

The American Association of University Professors said in its formal comment that the proposed change is “an ill-advised over-correction.” The organization wants the department instead to prohibit colleges and universities from designating all employees as mandatory reporters and recommended the University of Oregon’s reporting system as a model.

In the Oregon model, some employees are considered “designated reporters” who are obligated to report to the Title IX coordinator when they hear about a possible instance of prohibited discrimination. Other employees are considered “assisting employees”; they don’t have to share information unless an individual requests that they do, but they are required to provide support resources. AAUP said that most faculty are considered assisting employees. The Oregon model also includes confidential employees.

“The problems that exist with regard to mandatory reporting currently are serious problems, but they would be worse if the proposed new regulations go through because the proposed new regulations provide requirements for making basically all faculty mandatory reporters with regards to students,” AAUP general counsel Risa Lieberwitz said in an interview.

Lieberwitz said faculty members are worried students would not feel comfortable talking with them about a problem—concerns the AAUP has raised for several years.

“We’d like to be in a position where we can be helpful as opposed to being in a position where we’re forced to report even if the person who comes to us doesn’t want it,” Lieberwitz said.

The Association of Title IX Administrators generally supports broad mandatory reporting requirements, but association president Brett Sokolow said the current proposal is overly complex and doomed to fail. ATIXA’s letter requests clarity about which employees would be considered mandatory reporters and how disclosures made in the context of class assignments be handled, among other questions.

The current approach has worked for most colleges and creates a broad safety net, Sokolow said.

Sokolow said having most employees be mandatory reporters doesn’t make sense for all colleges and universities, especially if the students and faculty members don’t support it.

“The one that exists in Oregon seems to be a nice innovation, but I am concerned with all of the comments that were submitted to OCR that want to take that model and apply it to every school on the assumption that that culture, that context is universally applicable, when I don’t believe that could be the case,” Sokolow said.

Sokolow said Title IX coordinators have an obligation to address certain situations, even if a student or complainant doesn’t want to move forward, such as when a faculty member is accused of being a serial harasser.

“You can’t have an environment where everybody says, no, survivors should be empowered 100 percent to decide what direction they want, but oh, let’s turn around and criticize you because why haven’t you stopped the faculty member from engaging in this behavior for years and years and years? You can’t have both,” Sokolow said.