Rule change for reporting sexual misconduct could hurt grad students and others

When Allison Cipriano read the U.S. Department of Education’s recently proposed amendments to Title IX, the federal statute prohibiting sexual discrimination at educational institutions that receive federal funding, she was “quickly disappointed.” The 700-page document includes many rule changes she wanted to see, including protections for sexual minorities. But Cipriano, a Ph.D. student in psychology at the University of Nebraska, Lincoln, who studies sexual misconduct investigations in academia, and others are dismayed by one set of changes. They would compel most university employees to be “mandatory reporters”—required to notify their institution’s Title IX office of any alleged sexual misconduct involving students they become aware of, regardless of whether the student wants them to.

Researchers who study such policies have spoken out against them, saying they re-traumatize targets of sexual misconduct and reduce their ability to seek the support they need. Mandatory reporting, which proponents argue helps universities unearth and address misconduct, is already common at U.S. universities; a 2018 study found 88% of institutions required most or all employees to serve as mandatory reporters. But the government’s proposed rule changes—open for comment until 12 September—would make the requirement universal, blocking efforts to try other approaches.

“I was expecting all the changes to be good, so I’m caught off guard … by what I perceive to be a potential—if it doesn’t get fixed—disaster,” says Jennifer Freyd, a trauma researcher and professor emerit at the University of Oregon. She fears the new mandatory reporting rules will be particularly harmful to graduate students, who are often highly dependent on faculty members and are more vulnerable than undergraduates to “career-killing” retaliation. “If … a grad student can speak privately with a supportive faculty member in their department about how to navigate the bind they are in, it can save a career,” she says.

Past regulations have required universities to designate some employees as mandatory reporters but didn’t define who those employees should be. The new regulations, in contrast, would require any university employee who “has the authority to institute corrective measures” or the “responsibility for administrative leadership, teaching, or advising” to serve as a mandatory reporter. That definition encompasses most faculty members, says Lilia Cortina, a professor at the University of Michigan, Ann Arbor, who studies gender and co-authored the National Academies of Sciences, Engineering, and Medicine’s 2018 sexual harassment report.

“In the report, we talked about how problematic that is,” Cortina says of broad mandatory reporting policies. “[There’s] research showing that when you take control away from victims, that’s actually associated with an increase in psychological distress.” The requirements “essentially amount to nonconsensual reporting [of] their traumatic or humiliating or otherwise extremely distressing experience.”

In a statement to Science, a Department of Education spokesperson wrote that the updates were developed “with the aim of ensuring full protection under Title IX for students, employees, and others and to end all forms of sex discrimination.” They declined to comment about why universal mandatory reporting is necessary, but the proposed regulations note that students “may be less capable of self-advocacy” and may share Title IX violations with those who fall under the proposed mandatory reporter definition “with the expectation that doing so would obligate the recipient to act.”

But targets of sexual harassment may go to trusted faculty members for reasons other than to trigger a formal investigation, as Cipriano found when she interviewed graduate students about their experiences with mandatory reporting. For instance, one student opened up to her adviser because she wanted to let him know she was seeking mental health services, Cipriano and her colleagues report in a preprint posted last month. “I had to do it on work time, so I felt like he deserved to know why I wasn’t at my desk,” the student said.

Most of the students in Cipriano’s study weren’t aware their institution even had a mandatory reporting policy. “I was under the impression that talking to my adviser was a safe communication,” one said. Another told Cipriano she freaked out after learning a report would be filed. “When you’re in the midst of trauma … you’re not going to be thinking about the ins and outs of university policy,” Cipriano says. “Students are not going to see their professors as a de facto arm of the Title IX office.”

At a listening session the Department of Education held last year to help guide the development of the new regulations, Cipriano shared research she and others have done on mandatory reporting—which made it all the more frustrating when she read the resulting amendments. “It really does feel like a bit of a slap in the face,” she says.

Others, including Brett Sokolow, a lawyer who serves as president of the Association of Title IX Administrators, see the issue differently. “What most research on mandated reporting misses is that mandated reporting largely does not result in ‘forced prosecutions’ but instead results in outreach, sharing of resources, and discussion of options. That’s not really taking agency away from survivors,” he says. “For most schools, a wide mandated reporting requirement is functional, easy to teach, and works.”

Given the widespread nature of such policies, the proposed regulations won’t change reporting procedures at most universities—but they will block efforts to test other approaches. The University of Oregon, for instance, has a “mandatory supporter” policy, which requires most employees—including most faculty members—to tell students how they could report sexual misconduct and then let the student decide how to move forward. (Those in higher administrative positions, such as deans and department heads, are mandatory reporters.)

“We need some room for experimentation,” says Freyd, who helped develop the University of Oregon policy. “I don’t think we’re at a point yet where we have enough information for the federal government to dictate to institutions everything about how they should handle Title IX issues.”

Risa Lieberwitz, a professor of labor and employment law at Cornell University and the general counsel for the American Association of University Professors, which opposes universal mandatory reporting policies, adds that the approach is at odds with Title IX’s goal of protecting students. “The evidence that’s out there … supports thinking in a far more nuanced way about who should be a mandatory reporter, what should be the scope of that reporting requirement, and who should not be a mandatory reporter,” she says.

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