Mandatory Reporting Can Trigger Investigation Without Survivors’ Consent

Title IX of the Education Amendments of 1972 prohibits sex discrimination in higher education to enforce that no one be “excluded from participation in, or be denied benefits of, or be subjected to discrimination under any education program or activity” on the basis of sex. U.S. higher education institutions that receive federal funding must comply with Title IX guidelines, which includes responding to allegations of sexual violence (including harassment and assault) with a prompt grievance process that is fair to both parties. Up until Betsy DeVos’s modifications to the guidelines established in the Obama-era 2011 Dear Colleague Letter, Title IX required institutions to have a mandated reporting process as part of their mechanism of responding to sexual violence allegations. Mandated reporting requires that any disclosure of sexual violence made to a higher education employee (e.g., faculty, staff, coaches, graduate workers) who is designated as a responsible employee must be promptly reported to the Title IX office at that institution. Mandated reporting policies, while packaged as a supportive mechanism to prevent allegations of sexual violence from being “swept under the rug” by campus administrators, in practice have usually been an agent of controlling survivor narratives at the threat of disciplinary action for university employees who receive these disclosures and a mechanism for silencing survivors.

As the Biden administration reevaluates the current Title IX policies, there has been ongoing debate regarding the value of mandated reporting. In addition to this debate, concerns surrounding free speech, privacy and academic freedom are continuously at the forefront of academic conversations. While rarely discussed as such, these are also Title IX issues. Mandated reporting prevents survivors at all levels in higher education from fully engaging in academic opportunities because they are unable to share their experiences as part of their learning process. Academic freedom in itself enables students and faculty to share their views, opinions and beliefs without sanction or retaliation. Yet, survivors cannot discuss their experiences of sexual violence in any academic setting without fear of being reported to Title IX. This not only prevents survivors from contributing to classroom discussions, assignments or professional development opportunities with perspectives that are informed by these experiences — bordering on censorship — but can constitute a violation of their privacy rights when an investigation into their sexual assault is triggered without their consent. Survivors are frequently deterred from filing formal reports like Title IX out of fear of retaliation, but mandated reporting exposes them to potential retaliation that academic freedom is supposed to protect them from.

For undergraduate students, mandatory reporting policies prevent survivors from fully engaging in course material that may relate to their victimization experience. An undergraduate who is a survivor may be unable to share their unique insights and expertise as a survivor during class out of fear of a subsequent report and investigation by Title IX. For graduate workers, a similar dynamic may take place regarding their ability to fully engage with course material; however, the consequences of a Title IX report and investigation have the potential to impact their education and current/future employment in academia. Simultaneously, graduate workers are subject to mandated reporting from undergraduate and graduate students who disclose to them, as well as other graduate workers and faculty they disclose to, which in our experience has served as a barrier to fully engaging in mentor/mentee relationships and in our own research labs.

For faculty who are also survivors, navigating course instruction with mandatory reporting obligations renders the separation of survivorship and educator an impossible and daunting task. Faculty members who seek to educate both graduate students and undergraduate students from a lens influenced by their own victimization experiences may be forced to censor their course content to avoid disclosures that would trigger a Title IX report. As contingent and untenured faculty, we are frequently under observation in the classroom and the looming threat of mandated reporting by other faculty is an obstacle to using our experiences in our pedagogy. Students who have experienced sexual violence themselves are often drawn to share their experiences with us inside and outside the classroom because of the nature of our scholarship to which we are then burdened by our mandated reporting obligation, which creates barriers to forming relationships with student-survivors and providing them the support they really need.

As student-centered educators and graduate students, we are strictly at odds with our mandated reporting obligations. As experts on sexual assault, we argue that the Title IX training that most mandated reporters are required to complete at the start of each academic year is a clear contradiction of how to support sexual violence survivors. We are trained to interrupt and stop the student at the first sign of a disclosure to inform them of our reporting obligation, which then either: 1) prevents them from disclosing and receiving the support they need; and/or 2) takes away control of their own narrative by forcing disclosure to other sources. The lack of clarity in the Title IX guidelines often leads campus administrators to advise mandated reporters to report any cases that may fall under the umbrella of a mandated report to protect the institution and mandated reporters from liability from Title IX non-compliance, encouraging over-reporting out of fear of under-reporting. Some states/institutional systems are going above and beyond the mandated reporting policies that were introduced by the Obama administration: The State of Texas has law/policies that state any disclosure of sexual violence/abuse — not just campus-related — must be referred to the Title IX office, or the responsible employee can face disciplinary action, including termination. It is hard to imagine a scenario where a university’s Title IX office would need to know about the sexual abuse a student experienced as a child long before they ever attended that university. Yet again, maintaining control over survivors remains mandatory reporting’s key purpose, regardless of the violations of free speech, privacy and academic freedom.

This is the logical conclusion when the backlash to how institutions have handled sexual violence (e.g., Baylor University) continues to primarily focus on policy that gives more power and control to the institution, rather than survivors. By abiding by our mandated reporting obligation, we are contradicting our work as sexual violence scholars, but in not following mandated reporting obligations, we are at risk for disciplinary action — which, as contingent employees, is of significant concern. With the looming threat of discipline or dismissal for not abiding by mandated reporting obligations, many instructors are opting to avoid topics of sexual violence altogether to minimize the possibility of receiving a disclosure, which disadvantages all students by not receiving this educational content and further marginalizes survivors by ignoring their experiences and denying them the opportunity for informal support and relevant class engagement.

Mandatory reporting has clear negative impacts on education for folks at all levels of higher education, and ironically, bars survivors from fully participating in their education — something that Title IX is supposed to protect. For survivors in this position, there are few, if any, opportunities for recourse away from Title IX processes short of filing a complaint with the Department of Education, pursuing a lawsuit against the institution or suffering in silence. As such, mandatory reporting policies must be abandoned entirely; there is no evidence that they do anything but harm survivors. Without mandatory reporting, survivors could finally have the autonomy and choice to seek the support they want without sacrificing their education, their scholarship and their work. We are resistant to recommend simply reforming Title IX because we believe that reforms happening within the institution will only replicate harms and reify the legitimacy of these processes.

Therefore, we urge the consideration of alternatives, such as transformative justice approaches to addressing sexual violence and opportunities for survivor-led organizing. Any model of support and reporting must be led by survivors for survivors, without the agenda of the university influencing the alternative model. One such alternative is a Responsible Reporting policy which empowers survivors through the ability to determine the type of support they receive, including the option of reporting to Title IX, but eliminates the requirement to report, which would provide survivors with the resources and knowledge they need to make an informed decision for themselves. The groundwork for this option has already been established through faculty receiving training on how to provide support to survivors, to assist them in reporting to Title IX if that is what they want, or refer them to resources if they do not wish to report.

Additionally, we recognize that the harms experienced by survivors on campus are often at the intersection of identity-based oppressions, and therefore we recommend building models that address the structural factors in academia that enable sexual violence to occur including racism, ableism and transphobia, and approach reports of violence that prioritizes healing instead of processes that mimic the criminal legal system. These models must include the restoration of all autonomy for the survivor, accommodations and options for support that do not rely on punitive measures or a formal investigation, and resources for all parties.

Finally, we must also consider the conditions that enable harm against students and particularly graduate students/workers to occur in the first place like academic hierarchies, low wages and policies against organizing. There are alternatives that can provide survivors with the support and accommodations they need while maintaining control over their narrative and healing, something that Title IX and mandatory reporting processes do not allow.