Rachel Otwell goes to great lengths to assure students across the University of Illinois system that they can speak to her confidentially about any sexual misconduct they’ve experienced and how the university has responded.
So she was shocked recently to learn that since she works for NPR Illinois, which is owned by the university’s Springfield campus, she is required to turn over such reporting tips to its Title IX office.
Otwell has been working with NPR’s reporting partner, ProPublica, on a yearlong series investigating how sexual-misconduct complaints are handled at public colleges and universities across the state. Needless to say, being lumped into the category of mandated reporters is putting a crimp in her work.
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Rachel Otwell goes to great lengths to assure students across the University of Illinois system that they can speak to her confidentially about any sexual misconduct they’ve experienced and how the university has responded.
So she was shocked recently to learn that since she works for NPR Illinois, which is owned by the university’s Springfield campus, she is required to turn over such reporting tips to its Title IX office.
Otwell has been working with NPR’s reporting partner, ProPublica, on a yearlong series investigating how sexual-misconduct complaints are handled at public colleges and universities across the state. Needless to say, being lumped into the category of mandated reporters is putting a crimp in her work.
“Having to tell potential sources that I might have to report everything they say to the Title IX office if they continue talking to me is not a realistic way to report,” she wrote in an email to The Chronicle. “This is a time institutions should be doing a better job of listening, and not shutting down conversation.”
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Her first stories detailed how several professors at the University of Illinois’s flagship campus, in Urbana-Champaign, had been able to maintain seemingly unblemished records even though they were found to have violated the university’s sexual-misconduct and other policies. Some were able to leave quietly to continue their careers at other universities, while others stayed on the faculty at Illinois.
Her articles have included a questionnaire asking for information from those who experienced sexual harassment or assault, even if they did not report it to the university. The request promised confidentiality that, Otwell learned suddenly, she couldn’t guarantee. In the end, ProPublica agreed to collect those tips and share them with NPR Illinois only if they involved another university or if they’d already been reported.
Otwell’s dilemma is shared by others who have found, sometimes to their surprise, that sensitive conversations they’d had with students must be turned over to their university’s Title IX office, even if the students would prefer the talks remained confidential.
Title IX, the federal gender-equity law, mandates the reporting of sexual misconduct, but the requirements can be confusing and enforcement uneven. In recent years, colleges have sought to spell out who must report on sexual abuse they hear about, and what happens if they don’t, in mandatory reporting policies. Those who support policies that apply to nearly all employees say that they help ensure that sexual-misconduct complaints aren’t swept under the rug and that victims get the support they need.
But some experts believe that in their zeal to protect themselves from liability and potential sanctions, many colleges and universities rely on a one-size-fits-all model for reporting responsibilities that refuses to make logical exceptions.
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The Title IX juggernaut, in some cases, takes on a life of its own.
“The Title IX juggernaut, in some cases, takes on a life of its own when universities enforce a formulaic set of standards where the law doesn’t require that kind of response,” said Brett A. Sokolow, chief executive of TNG, a risk-management firm that advises colleges on Title IX and other issues.
He called the decision not to exempt Otwell from the reporting duty “crazy.”
“Why would you impose a requirement,” he asked, “that intentionally interferes with the ability of professionals to do their job?”
‘Responsible Reporters’
About two-thirds of NPR member stations are owned by, or affiliated with, a college or university. Randy Eccles, general manager of the Illinois member station, said he’d asked around, but hasn’t heard from other stations that have run into similar controversies.
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“Responsible reporters,” the university spells out on its web page, are required to “report in detail all incidents of sexual violence, sexual harassment, or other sexual misconduct” to the Title IX coordinator or another university administrator who would pass it on to the coordinator. “As a responsible employee, it is understood that students may reasonably believe you have the authority or duty to receive and report their concerns,” the university says.
Otwell said she receives the same annual online training about Title IX requirements as other university employees. She figured that, as a responsible employee, she’d have to notify the Title IX office if someone in her office was harassing one of her colleagues. “However, as a member of an independent media organization, it had not crossed my mind that these same rules would apply to me as a reporter engaged in news gathering,” she wrote.
Studies have shown that most victims of sexual misconduct don’t report it to their Title IX offices, often because they legitimately fear retaliation, she wrote in her email. “Not being able to cover this angle means leaving out a huge part of this story.”
Thomas P. Hardy, a university-system spokesman, defended the policy. “Our primary goal is to enhance campus safety, and making sure that all employees report any instance of sexual misconduct is part of how we protect students and their welfare,” he wrote in an email.
After receiving outside legal advice, the university system concluded that “requiring media employees to adhere to the ‘responsible employee’ reporting requirements is in the best interest of our students and would not violate any constitutional or other legal protections.”
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Requiring media employees to adhere to the ‘responsible employee’ reporting requirements is in the best interest of our students.
Reporters can continue to pursue information, but should “avoid promising confidentiality to anyone about allegations of sexual misconduct,” Hardy said. Otwell was not, however, asked to turn over her existing notes or sources.
Illinois employees who are exempt from the reporting requirement include mental-health counselors, campus advocates, and others who are specially trained to give confidential assistance to victims. When the NPR affiliate requested that it, too, be exempt, the university said no, so the affiliate plans to ask the university system’s Board of Trustees to consider the request, which it made public this month.
“Asking journalists to reveal sources or prohibiting them from receiving confidential information is antithetical to freedom of the press and editorial independence,” the station wrote.
‘Liability-Driven Policy’
Some faculty members also struggle over their reporting requirements, especially when their areas of expertise relate to this sensitive issue. Nicolle Littrell, a lecturer in women’s, gender, and sexuality studies at the University of Maine at Orono, said she was disciplined two years ago for failing to report that one of her students had revealed in a classroom assignment that she was sexually assaulted a year before. She told Littrell she had reported it to the Title IX office and the perpetrator had been expelled. Given that the case had already been adjudicated, it didn’t occur to Littrell that she was expected to notify the Title IX office again.
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But then, during a classroom discussion that touched on sexual assault, “things got kind of stirred up” for the student and she turned to the Title IX officer, who asked whether she had told anyone about the assault, Littrell said. The student mentioned her conversation with Littrell, who ended up being found in violation of the university’s Title IX procedures. The finding stayed in her personnel file for four semesters, Littrell said.
“This kind of liability-driven policy can have a chilling effect when the faculty could be a soft landing for a victim” who wants to talk, Littrell said. She now includes on her syllabus a statement that makes it clear that when she learns about a sexual assault, she must report it.
A campus spokeswoman said she could not respond to the specifics of an individual personnel decision, but she said an employee has no way of knowing whether a case has actually been adjudicated since cases are handled confidentially and the student might not be telling the truth.
“The university simply asks the employee to communicate to the Title IX coordinator the information the employee was told,” she wrote. “It would then be up to the Title IX coordinator to determine if it is a case that has already been reported and adjudicated or not. This prevents any cases from falling through the cracks.”
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In Texas the penalties for not reporting are far more severe. Under a law passed this year and signed by the governor, people who learn about but fail to report complaints of sexual harassment, assault, dating violence, or stalking could face criminal charges. They could also be fired for failing to promptly report such incidents to their Title IX administrators. The law applies to both public and private colleges.
Students who write for campus newspapers probably wouldn’t be covered by such policies, but it’s not clear whether their faculty or staff advisers would be, Mike Hiestand, senior legal counsel at the Student Press Law Center, told The Texas Monitor. He said that puts them in a bind, and their responsibilities need to be spelled out.
‘The Nuclear Option’
Many colleges designate nearly all of their employees as mandatory reporters, although many carve out exceptions for counselors, chaplains, and others whose jobs require confidentiality.
Sokolow said more campuses are tweaking their policies to allow for more nuance, as the University of Oregon did in 2017, when it set up tiers of reporting responsibilities. Faculty members could refrain from reporting on sexual assault or harassment they learned about if the students weren’t ready to report. (Exceptions could be made if there’s an imminent risk that someone could be seriously hurt.)
In some cases, Sokolow said, campuses are creating exceptions for people like ombudsmen, physical trainers, and student advocates. But other colleges are moving in the opposite direction, making even student leaders mandatory reporters.
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He said he hears at least weekly from universities that want to know what they should do about an employee who failed to pass along a sexual-misconduct complaint. Usually, he said, the best approach is to sit down with the people who failed to report, to explain the reasons for the policy — including the need to connect victims with supportive resources — and to issue a warning, if necessary.
But in a handful of cases, he said, employees have been fired, which he referred to as “the nuclear option.” Such action can be justified in the wake of athletics scandals like those that rocked Baylor University, Pennsylvania State University, and Michigan State University, but sometimes it seems excessive, he said.
Mandy Lau said she was pressured to quit her job as an assistant swim coach at Lindenwood University, in Missouri, after she belatedly reported that one of her swimmers had told her of being sexually assaulted a year before. Lau said that she had helped the student, who was suffering from a number of medical and emotional issues, get counseling and medical help, and that she had immediately notified other members of the coaching staff so they could support the student when she missed or had problems in practices.
Lau said that after hearing a presentation by Brenda Tracy, a gang-rape survivor who advises college athletics departments on their reporting responsibilities, she and the other coaches realized they should have contacted the Title IX office. It was too late, Lau said she had learned. Told she was about to be fired, she said, Lau resigned instead.
Lindenwood’s Title IX officer said Lau’s account wasn’t accurate, but she said she could not discuss personnel issues and declined to comment further. Neither a campus spokeswoman nor the head swim coach responded to phone calls or emails seeking comment.
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It becomes a closed community, where people look out for their own.
Sokolow said that the swim team’s response is typical of how many sports teams handle problems within their ranks. “When I hear from coaches, they often say we were hesitant to take it outside athletics because we thought we could handle it the way the reporting person wanted,” Sokolow said. “It becomes a closed community, where people look out for their own. There’s value in that, but there are too small a set of tools to provide the broad range of accommodations many survivors need.”
Title IX offices, he said, “need to do a better job of explaining to mandated reporters how they act as a safety net” as well as an enforcement arm.
He added that it’s hard to understand how coaches, with all the attention and training being devoted to Title IX compliance, could fail to realize they needed to notify that office.
Lau said she doesn’t know why she didn’t think of it. She said she had missed the coach’s most recent meeting, where compliance was discussed, because she was supervising a practice. But she said it’s possible that, “subconsciously,” she wanted to avoid repeating a situation that happened a few years previously, when a student told her about a sexual assault and Lau insisted they go to the Title IX office. The student didn’t want to report it, Lau said. After that, “it was a complete break” in their relationship.
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“It’s unfair in that all three of us tried to do the right thing, and I now don’t have a job, and 52 athletes suffer because of one mistake I made,” Lau added. Still, she said, “I take full responsibility. I just wish they had spelled out that you’ll be terminated if you don’t report.”
Katherine Mangan writes about community colleges, completion efforts, and job training, as well as other topics in daily news. Follow her on Twitter @KatherineMangan, or email her at katherine.mangan@chronicle.com.
Katherine Mangan writes about community colleges, completion efforts, student success, and job training, as well as free speech and other topics in daily news. Follow her @KatherineMangan, or email her at katherine.mangan@chronicle.com.