Proposed Expansion of Mandatory Reporting Is Criticized

The Education Department wants to expand who must report possible sexual misconduct to the college’s Title IX coordinator. Many think that is a bad idea.

The expansion was advanced as part of the new rules suggested by the U.S. Department of Education (DOE) and released in June 2022, coinciding with the 50th anniversary of Title IX. The expansion is not the only aspect of the rules creating controversy. The changes, if implemented, would roll back due-process protections for those accused of violations.

The required comment period on the proposed rulemaking opened in July and closed on Sept. 12, 2022. Federal law requires DOE to solicit and consider public feedback before the proposed rules are finalized.

Title IX of the Education Amendments of 1972 is a federal law that prohibits discrimination on the basis of sex in any federally funded education program or activity.

Current Title IX Mandatory Reporters

Who on college campuses with a responsibility to report possible Title IX violations has long been a sore subject. A 2011 Dear Colleague letter stated 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.”

Updated reporting direction came in new rulemaking implemented in 2020. The current rules mandate 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.”

Many universities require employees to report possible Title IX violations even when the student expressly asks them not to.

Possible New Mandatory Reporters

In the proposed changes, most campus employees would be required to report possible sex discrimination or misconduct to the campus’ Title IX office. The reporting mandate is regardless of whether the school employee has permission from the student to share what allegedly happened.

The changes to mandatory reporting would essentially codify the intent of the 2011 Dear Colleague letter.

The new rule would also allow “confidential employees” to be exempt from reporting. Employees in this category include the following:

  • Those who are allowed privileged communication under state and federal law
  • Those who provide services in connection with sex discrimination
  • Those who conduct research studies about sex discrimination

Virtually any employee not classified as a confidential employee would be required to notify the school’s Title IX coordinator about any conduct that could possibly fall under Title IX’s definition of sexual discrimination. Each educational institution determines which employees are confidential.

Organizations like the Academic Alliance for Survivor Choice in Reporting Policies believe that compelled disclosure is more harmful to possible victims and undermines the student-faculty relationship.

The American Council on Education submitted comments asking the DOE to allow universities to have more flexibility in determining mandatory reporters on their campuses.

The American Association of University Professors suggested creating three levels of employees: mandatory reporters, assisting employees (provide services and can report if the student requests), and confidential employees.

Evaluating the Shifting Landscape of Title IX

All our legal professionals at Parisi, Coan & Saccocio, PLLC continuously assess how Title IX changes through rulemaking, legislative changes, and court rulings. We focus our practice on defending those accused of wrongdoing under Title IX. Anyone implicated by a sexual discrimination allegation can have their life’s trajectory changed in an instant. From being kicked out of school to being fired from employment, the consequences are far-reaching.

If you are accused of violating Title IX on a school campus, contact us right away. Reach out to us online or call (737) 200-2332. We represent clients around the U.S.