Which Matters More: Reporting Assault or Respecting a Victim's Wishes?

A conservative reading of Title IX has some schools ordering faculty and staff to report cases of sexual harassment even when the victim has pleaded for secrecy.
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The campus of Columbia University (Mike Segar/Reuters)

At Barnard-Columbia's Take Back the Night Speak Out, the mood in the room is expectant and somber. The lights are dim, and in the darkness the silhouettes of the students sitting against the back wall look like witnesses in a trial.

One by one, people stand behind a temporary wall and share their sexual harassment and assault survival stories. They whisper, shout and occasionally cry. As each of them finishes their story and goes silent, the crowd responds, "We support you!"

The speak-out is supposed to be a safe, anonymous space for survivors to share their stories with others. However, this year for the first time ever, any student residential advisor (RA) who recognizes the voice of a speaker must report that person's name and story to Columbia or Barnard's Title IX coordinator. Supervisors warned student RAs not to attend, but a few days prior the Columbia Daily Spectator suggested another solution. "We urge RAs who wish to participate to do exactly that and maintain the anonymity of the speak-out," said the staff editorial. "When a policy doesn't embody the values it's supposed to protect, sometimes it's worth breaking."

Columbia University's and Barnard College's policy was introduced in 2011. It requires all members of staff and faculty to report any sexual harassment/assault to the administration, regardless of the victim's wishes for privacy. Like similar policies on other campuses where "mandatory reporting" is becoming the new buzzword, this one was produced in response to strict warning from the federal government.

In April 2011, the Department of Education's Office of Civil Rights sent the 19-page "Dear Colleague" letter, as it is now known, to elementary, secondary, undergraduate, and graduate schools across the country. The letter said that if a school doesn't have systems in place to deal with sexual violence, then they're violating Title IX -- a gender discrimination law passed by Congress in the 1970s.

In the past, the highest-profile Title IX cases dealt with funding inequality in men's and women's sports programs, but the "Dear Colleague" letter reminded schools that sexual harassment also counts as discrimination under Title IX. The directive came about because many schools weren't conducting sexual assault investigations when they should. The latest universities to make headlines for ignoring rape reports include Occidental, Swathmore, and Amherst, following in the footsteps of the University of North Carolina, Princeton and Yale, among others.

The letter sent schools scrambling to tighten their sexual harassment procedures or risk losing federal funding. Though the letter included clear orders that colleges should change the way they prosecute sexual harassment crimes, develop brochures explaining procedures, and choose one employee to be the permanent "Title IX coordinator," other parts of the letter were less clear. Who on campus must report issues of sexual harassment to the Title IX coordinator so that the school can address it? The president of the school? The adjunct professors or assistant teachers? The student RAs? Janitors?

An unclear answer can be found in 50 pages of "guidance" on sexual harassment the Office of Civil Rights released in 2001, which states that a responsible employee is "any employee who has the authority to take action to redress the harassment ... or an individual who a student could reasonably believe has this authority or responsibility."

Confused? So are all the schools. The Victim Rights Law Center has advised hundreds of colleges following the "Dear Colleague" letter. Colby Bruno, Managing Attorney at the Center, says that schools are constantly inquiring who has to report to the Title IX coordinator. "It is the single most question we get asked," Bruno sighed.

W. Scott Lewis, partner at the National Center for Higher Education Risk Management, a firm specializing in gender discrimination law, explained that the Office of Civil Rights wanted deans, directors, assistant directors, VPs, and provosts to be the "responsible employees" who must report sexual harassment. These are the people who can do suspensions or no-contact orders, move people from residence halls, or find other solutions to a sexual harassment problem.

But the 2001 guidance memo doesn't cite these roles specifically. Because the letter was written to apply to every school in the nation -- primary, secondary, private, and public -- it had to define "responsible employee" vaguely. As a result, the Office of Civil Rights has essentially left the choice up to the school as to who must report sexual harassment to the Title IX coordinator. "Because Title IX applies to thousands of ... schools around the country," Rachel Gettler, a staff attorney at the Office of Civil Rights explained by email, "we are unable to keep track of policy changes made by every individual school."

In what victims' advocates say is an overreaction to the "Dear Colleague" letter, universities like Columbia and Barnard aren't just making employees with authority mandatory reporters. They're making every single member of staff or faculty on campus report, aside from a few exceptions like Counseling Services or the Rape Crisis Center. The University of Oregon, the California State college system, and Duke have all introduced or started retraining staff on similar mandatory reporting, while other universities are considering adopting such procedures.

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Carmel DeAmicis is a writer living in New York, and a Digital Media Fellow at the Columbia School of Journalism.

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