Legal challenges about gender identity have dominated discussion of the Biden administration’s rollout of new Title IX rules, which took effect on Thursday. But an inconspicuous provision quietly closed the door on a unique policy that was hailed as a model by some sexual-violence researchers.
The University of Oregon recently began requiring all faculty and staff members to alert the campus Title IX office if they learn about any allegations of sex discrimination, harassment, or retaliation. That’s known as mandatory reporting, and the vast majority of colleges have such policies in place.
Previously, Oregon did things differently. The university’s old policy — dubbed “mandatory supporting” — required faculty and staff members to provide students who told them about possible sexual misconduct with resources and information about reporting, but left the ultimate choice to report — or not to report — in their hands.
Trump-era federal regulations allowed Oregon’s unique system to flourish, with advocates pointing to it as a more trauma-informed approach that protected students’ autonomy. When the Biden administration released an updated rule, with strict reporting requirements for campus employees, the university lobbied for leeway in hopes of saving the policy. Those efforts failed.
Now Oregon officials are trying to preserve their progressive philosophy without disobeying the new rules.
With that, Oregon is in a familiar — albeit politically different — bind. Title IX coordinators in many states are caught between Republican state officials and a Democratic presidential administration’s policies. In Oregon, campus leaders are directly tussling with federal mandates they disagree with.
“We’re doing our best to maintain these values even as the landscape we’re operating under changes,” said Drew Terhune, director of Oregon’s care and advocacy program. “As a therapist, I want us to prioritize student autonomy over reporting, but that’s not what the new guidance seems to prioritize.”
‘It’s Such a Contradiction’
Mandatory reporting is ostensibly good for combating sexual violence. Proponents of the requirement argue that enforcing Title IX and mitigating misconduct can best be done when centralized offices have the most information.
“How can you maintain a campus free from harassment and discrimination if you don’t know what’s happening?” said Jody Shipper, managing director of Grand River Solutions, a Title IX consulting firm.
But a group of psychologists and sociologists who study sexual violence don’t see things that way. In short, they’ve argued that part of what makes sexual assault so traumatic is the loss of control and autonomy. When college administrators get involved without their permission, the researchers say, it can be retraumatizing.
Victims often don’t want formal reports to be filed or investigations to be conducted, at least not right away. Mandatory reporting might stop students from going to trusted professors for support, fearing unwanted inquiries from investigators, said Jennifer Freyd, an emeritus professor at Oregon who studies the psychology surrounding sexual violence. “These rules are like putting a big piece of tape on their mouths,” she said.
When the U.S. Education Department released proposed Title IX regulations, in 2022, they included a strict reporting mandate for nearly all campus employees. Freyd and other backers of Oregon’s approach were furious. It was “particularly baffling coming from Biden,” whose other reforms were largely supported by victims’ advocates, said Freyd.
“It’s such a contradiction, it’s so paternalistic,” she said of the rules. “This same group of people are very adamantly pro-choice [about abortion], they seem to care about autonomy there.”
In public comments on the draft rule, Freyd and other experts asked the department to amend the mandatory-reporting requirement. They also met with department lawyers to present their case, she said.
Oregon administrators also wrote in. A letter from the university’s Title IX coordinator, Nicole Commissiong, said campus leaders feared a mandate “could have a chilling effect on reporting.” The letter argued that Oregon’s policy had helped victims get supportive resources without fear.
“There is concern that if the university was forced to abandon its reporting policy, survivors may be less likely to come forward, thereby leaving the university with notice of alleged sexual harassment but an inability to undertake a meaningful investigation,” the letter said.
In the final rule, the department kept the mandate but added a clarification that some employees could be allowed to only give information about reporting, leaving victims with the ultimate choice of whether to do so. But that leeway could be granted only to employees without “responsibility for administrative leadership, teaching, or advising” — language that would rule out nearly all faculty and staff members.
A spokesperson for the Education Department didn’t respond to a request for comment.
Oregon Adapting
The caveat didn’t save “mandatory supporting,” said Terhune, director of Oregon’s care and advocacy program. The employees whom students regularly interact with all have some connection to administration, teaching, or advising, so “it felt like we didn’t really have a ton of options,” he said.
The university is attempting to create new avenues for disclosure without reports, Commissiong told The Chronicle. Health professionals and student workers will not be subject to the reporting requirements. The administration is also trying to find a new group of employees who could be designated as confidential. But Commissiong said officials had not yet found a group that both complies with the regulations and interacts with students.
It is rare for a college to effectively leverage ambiguity in federal rules, said Alexandra Brodsky, a lawyer who focuses on sex discrimination and other civil-rights issues. Colleges usually take an “overly conservative approach,” finding “one model they know the department has blessed and just do that,” said Brodsky, author of the book Sexual Justice: Supporting Victims, Ensuring Due Process, and Resisting the Conservative Backlash.
Some Oregon faculty members are upset with the shift in expectations, Terhune said, fearing “that students just won’t tell them why they aren’t coming to class or didn’t turn in a paper.” His office is working on a training for faculty members focused on transparency and choice in interactions, so they “can be a mandatory reporter in a way that is still trauma-informed.”
The university is updating orientations and campus messages to include warnings about the mandates for students, Terhune said. He’s most worried about returning students, who could have conversations with trusted faculty members that unexpectedly lead to inquiries from the Title IX office, he said.
The solution? Telling students that even if their disclosure is reported against their wishes, they don’t have to cooperate with a Title IX investigation, Terhune said.
“I tell all students: ‘You are completely empowered to ignore the emails,’” Terhune said.
However, even an inquiry ignored can turn into an investigation. It’s rare but permitted under federal rules.
For most reports at Oregon, that won’t happen, Commissiong said. Many concern nonviolent offenses like harmful language or perceived gender discrimination, making it “pretty easy to respect claimants asking us not to investigate,” she said.
Reports of severe offenses like rape are trickier, Commissiong said, sometimes requiring an investigation without a victim’s participation if there is “a risk of repetition” or a threat to campus safety.
“On one hand, survivor autonomy is important,” she said. “On the other side, if we don’t know about it, we can’t do anything about it or anything to help the person. Those two things are always going to be in tension, no matter what the reporting responsibilities are.”
