August 30, 2019
This is the third article in a series addressing proposed Title IX regulations, which were published by the U.S. Department of Education on November 16, 2018 and intended to address institutional procedures for investigating and resolving complaints of sexual harassment and sexual assault in educational institutions funded by the federal government. As discussed in the two earlier articles in this series, the proposed rules, set forth in a notice of proposed rulemaking, represent Secretary Betsy DeVos’s attempt to pare back the more fulsome requirements of the Obama era, set forth in an April 4, 2011 Department of Education “Guidance,” which attempted to address sexual assault and harassment on campus. This article will focus on the proposed Title IX rules insofar as they are designed to narrow the responsibility of universities to respond to incidents of sexual harassment or assault.
A. The Obama Guidance and Mandatory Reporting
The Obama Guidance provided that “[i]f a school knows or reasonably should know [emphasis added] about student-on-student harassment [which, under the Guidance, includes sexual assault] 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.” The Guidance noted that this standard (sometimes called having “constructive” knowledge of wrongdoing, as opposed to a narrower “actual” knowledge) was more expansive than the standard imposed for civil liability under private lawsuits for money damages — the U.S. Supreme Court had found, in Davis v. Monroe Cnty. Bd. Of Ed., 526 U.S. 629 (1999), that a university could only be held civilly liable under Title IX where it had “actual knowledge” of the wrongdoing and showed “deliberate indifference” to same.
The issuance of the Guidance, as well as the general concern on campus about widespread sexual harassment and violence, led many universities to impose “mandatory reporting” obligations on virtually all faculty and administrators. This was designed to broaden reporting of sexual misconduct. It was also designed to protect the university from a claim that it had “constructive” knowledge of wrongdoing though a report to faculty or other responsible persons, by requiring faculty and employees to report wrongdoing through official Title IX channels. To give just one example, the current policy in place at Columbia University requires that any “instance or allegation of prohibited conduct involving a student” be reported to Title IX administrators by “Faculty, Officers of Administration, Research, the Libraries and the Coaching Staff,” as well as “Staff who work directly with students, including: teaching assistants, advising and residential program staff (including residence assistants and student affairs staff).” The only exceptions are “employees serving in a privileged professional capacity (counselors, clergy, medical providers, and rape-crisis counselors).”
This type of policy leads to a distinct quandary. University policies generally do not promise confidentiality to students opening up to “mandatory reporters.” This places a faculty member or resident advisor, to whom a student is reporting sexual misconduct, in the position of having to immediately warn that the student’s identity and charges may be reported to Title IX administrators and others. All this might discourage a student approaching a trusted advisor. For example, Colleen Flaherty, in her article “Endangering a Trust” (February 4, 2015 issue of Inside Higher Ed), cited a professor’s views: “My concern is that although the intent is to help make this a safer campus and to be sure we are being responsive to a victim’s needs, some students may feel they cannot talk about an incident for fear of losing control.” The proposed Title IX rules directly address this issue of “constructive notice” by attempting to remove it from the equation.
B. The Proposed Title IX Rules on Constructive Notice and the Critics’ Response
The proposed Title IX Rules seek to narrow the circumstances where a university is required to act when sexual misconduct is reported. Thus, Proposed Rule § 106.44(a) provides that universities can be found responsible for failing to respond to sexual harassment and assault only when they have “actual knowledge” of the harassment and assault. Proposed Rule § 106.30 defines “actual knowledge” as “notice of sexual harassment or allegations of sexual harassment to a recipient’s Title IX Coordinator or any official of the recipient who has authority to institute corrective measures on behalf of the recipient….” Proposed Rule § 106.45 only requires universities to start up investigations or grievance proceedings in response to “formal complaints.” This rule, if adopted, would relieve universities from the burden of “constructive notice,” thus narrowing the duty of the university to identify and investigate sexual misconduct not reported to Title IX authorities.
Many critics of the Title IX proposals believe that Secretary DeVos went too far. For example, according to the January 30, 2019 comments submitted by the American Civil Liberties Union (“ACLU Comments”):
The “actual notice” standard that the Proposed Rule adopts would frustrate the purpose of Title IX. In both the K-12 context and higher education context, schools would not be responsible for failing to address complaints of sexual harassment and assault made to non-teacher employees such as campus security guards, guidance counselors, or athletics coaches. Additionally, in the higher education context, colleges and universities would not be responsible for failing to address complaints of sexual harassment and assault made to professors. But many students disclose sexual harassment and assault to employees who do not have the authority to institute corrective measures, both because students seek help from the adults they know and trust the most, and because students may not be informed about which employees have authority to address the conduct.
The ACLU recommends that the Department modify the notice standard so that a university’s responsibilities are triggered if they knew, or reasonably should have known, about the harassment. The ACLU, then, suggests a full-on return to the strictures of the Obama Guidance and a continuation of “mandatory reporting,” and reliance upon a limited number of counselors and others on campus who would have the right to maintain confidentiality for a student, if that is what the student wants. According to the ACLU, “[s]chools should clearly communicate to students which staff are and are not mandatory reporters.”
Similarly, the comments of the New York State Attorney General dated January 30, 2019, state: “Rather than place the onus on the recipient to remedy harassment of which it is, or should be, aware, the proposal would place the burden on the victim of such harassment to both locate and notify the proper individuals before any corrective action can be taken.”
The Department of Education has yet to state if it intends to modify the proposed Title IX rules in light of the flood of criticisms it has received. We predict that Secretary DeVos will make no changes to the constructive notice/mandatory reporting provisions currently proposed.
C. The State Law Alternative
One possible way to maintain the mandatory reporting regime is to enact legislation at the state level requiring reporting of sexual misconduct. That is exactly what has happened in Texas. There, on June 14, 2019, the governor signed into law a requirement that employees of public, private and independent institutions of higher education who witnessed or received information about an incident that the employee reasonably believed constituted sexual harassment, sexual assault, dating violence or stalking against a student or employee to report the incident to the institution’s Title IX coordinator or deputy coordinator. An employee designated by an institution as a person with whom students could speak confidentially or who received information under circumstances that rendered the employee’s communications confidential or privileged under other law would, in making a report, state only the type of incident reported and could not include any information that would violate a student’s expectation of privacy. (The law also does not require students employed by the university to report wrongdoing, nor does it require reporting misconduct directed against the employee.) Obviously, this type of legislation runs directly contrary to the direction of the proposed Title IX regulations, and could preserve the mandatory reporting that is now the norm on campuses nationwide.
In our upcoming articles we will address additional specific proposals and representative responses from commentators.
This article is intended only as a general discussion of these issues. It is not considered to be legal advice or relied upon. We would be pleased to consider providing additional details or advice about specific situations. For additional information on this topic, please feel free to contact Mark H. Moore, who regularly counsels and litigates for clients in connection with business disputes.