Opposition to Required Reporting From AAUP 2016 Report

"The disjuncture between OCR mandates and institutional realities has pushed overzealous administrators to implement policies that are not required under Title IX and have harmful effects on the educational mission. This is evident in the issue of mandatory faculty reporting. College and university administrations often designate all faculty members as mandated reporters, although Title IX does not require such a broad sweep. Such action by colleges and universities may be a result of OCR guidelines that provide latitude to institutions in designating “responsible employees” while nonetheless being specific about exemptions for members of the clergy and health professionals; administrators generally disregard how faculty members differ from most other staff members in their degree of responsibility for the academic and personal well-being of students.53 For example, the OCR’s compliance agreement with the University of Montana obligates “all employees who are aware of sex-based harassment, except health-care professionals and any other individuals who are statutorily prohibited from reporting,” to report cases to the “Title IX coordinator regardless of whether a formal complaint was led.” As noted above, the OCR has stated that the Montana agreement will serve as a “blueprint” for other institutions of higher education. However, such an overly broad definition of faculty members as mandatory reporters, adopted by colleges and universities without consultation with the faculty, disregards compelling educational reasons to respect the confidentiality of students who have sought faculty advice or counsel.54 Indeed, many colleges and universities require “all employees” (including faculty members) to complete online sexual misconduct “training” that involves answering multiple-choice and true-or-false questions about, among other things, their status as mandatory reporters; this sidesteps any attempts to determine what mechanisms and policies exist for allowing appropriate exemptions, particularly when faculty members teach in areas involving the study of gender and sexuality.

"Some institutions have in addition adopted policies requiring that course syllabi include statements informing students of faculty reporting obligations relating to sexual harassment and discrimination. The chilling effect such requirements pose constitutes a serious threat to academic freedom in the classroom. How can instructors share their knowledge and research with students if they are unable to ensure privacy when a disclosure by a student to a teacher might happen as part of the student’s learning process? If many students view faculty members as “first responders” in their advising and pedagogical capacities, they should be explicitly classified by institutional policies as “confidential” rather than “mandatory” reporters. In addition, reporting mandates perpetuate sex-based double standards that disproportionately burden women and LGBTQ faculty members; students may experience these professors as more responsive to some issues without realizing how bureaucratic and legalistic dynamics may hamstring those faculty members most affected by, and most invested in, advancing Title IX’s educational objectives."

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3. College and university policies should not require all faculty members to serve as mandatory reporters under Title IX.

Colleges and universities are not required, under Title IX, to define all faculty members as mandatory reporters. Such overly broad policies compel faculty members to violate confidentiality in their relationships with students. Institutions of higher education can better facilitate the achievement of Title IX’s commendable goals of remedying sex-based discrimination if they more resolutely focus on creating educational initiatives and recommending procedural models that involve faculty members in more relevant ways. For example, Title IX policy development at the institutional level could support ways for faculty members to engage students who are concerned about how best to achieve gender and sex equity on campus. They would work collaboratively to address those issues without violating academic freedom and due-process rights. This is an issue not only of shared
governance but also of the educational mission of colleges and universities.

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Sections on mandatory reporting

From AAUP Report on Title IX

June 2016

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