What’s Required of a Professor Who Learns of a Student’s Rape? One University Seeks a Nuanced Answer

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Faculty members at the University of Oregon will no longer be required to notify campus authorities when students confide in them that they’ve been sexually assaulted or harassed but say they don’t want the information reported.

The new policy, announced this week, comes at a time when colleges nationwide are struggling to meet the demands of tough but confusing requirements under the federal gender-equity law known as Title IX.

Adding to the uncertainty is the question of how aggressively the Trump administration will enforce colleges’ reporting requirements.

Ever since the U.S. Department of Education’s Office for Civil Rights issued a pivotal “Dear Colleague” letter in 2011 outlining colleges’ responsibilities for preventing and dealing with sexual misconduct, there’s been confusion about faculty members’ reporting obligations when a student confides in them.

Many universities, acting on the advice of their lawyers, passed blanket policies requiring just about everyone to report information about sexual assaults, regardless of what the student who confided in them wanted.

That created a backlash from students and faculty and staff members who said students are less likely to open up if they feel that they don’t have control over what happens next.

Providing confidentiality for sexual-assault victims has been a sensitive issue at Oregon, which was sued in 2015 by a student over the handling of her complaint that she was gang-raped by three university basketball players.

She said the university had violated her privacy rights by retrieving the records of her therapy sessions at the campus counseling center and then turning those records over to its general counsel’s office. The university ended up paying her $800,000 and giving her four years of free tuition, housing, and fees to settle the case.

While other universities have been tweaking their reporting requirements, Oregon’s approach stands out because it is especially nuanced in the way it details employees’ duties.

The policy creates three tiers of reporting responsibility, with faculty falling into the category of those who will take their cues from students. If a student says she was raped but isn’t ready to a report it, her professor can generally honor that request.

Oregon’s president, Michael H. Schill, signed the policy on Monday. It was developed by a campuswide task force over eight months of often contentious debate.

U. of Oregon

“I hope this policy provides a more compassionate response to survivors on campus when they come forward to disclose sexual and gender-related violence,” said Merle Weiner, a professor of law and chair of the task force. “I hope more of them will come forward, knowing they have more control over what happens when they confide in people they trust.”

‘Mandatory Supporting’

The policy will take effect September 15, to give the university time to educate everyone about their new reporting requirements and make sure that students know, before they open up, who is required to alert campus authorities and who isn’t.

Rocked by the scandal that led to the 2015 settlement, Oregon officials were determined to come up with a strong reporting policy that made it clear that students who reported sexual misconduct would be treated fairly.

The Faculty Senate narrowly defeated a proposed policy that would have made just about everyone a mandatory reporter. The president later enacted a similar plan as an emergency measure for six months while a new task force worked out a more acceptable solution.

University lawyers had argued that a sweeping mandatory-reporting approach was necessary to comply with Title IX and to ensure that sexual-misconduct cases weren’t ignored.

Since then, campus officials have become persuaded, largely by research conducted at the university, that requiring faculty members to violate confidence makes students more reluctant to confide in them.

“It sounds counterintuitive, but eliminating mandatory reporting actually encourages more reporting,” said Missy Matella, an assistant general counsel at Oregon who worked with the task force.

The new policy, which its drafters refer to as “mandatory supporting” rather than “mandatory reporting,” will divide Oregon’s faculty and staff members into three groups:

“Designated reporters” must report an offense to the university’s Title IX coordinator under any circumstances. These include high-level and supervisory employees, including the president, vice presidents, deans and athletic directors. Resident advisers and campus police officers also fall into this category.

“Student-directed employees” will report potential misconduct if the student wants them to. These include most faculty and staff employees as well as student workers. They must help students report to the institution if they choose to. Otherwise, they will be required to provide information about support services and reporting options. They also must consult with a “confidential employee” to be sure they’ve covered all their bases to help the student.

“Confidential employees” will report if the students wishes, but they’ll have an added level of confidentiality. People in this group, which includes campus health and crisis counselors, are also required to provide reporting students with information about available help.

With Oregon’s new policy, faculty members could override a student’s request for confidentiality if there is an imminent risk that someone could be seriously harmed — say, for instance, a student reported that date-rape drugs were being used off campus or that she had been gang-raped.

Even in cases where there is no imminent harm, “faculty members are not off the hook” when a student confides in them, Ms. Matella said. “They still have to actively listen, be compassionate,” and inform students about available resources.

One of the most hotly-debated questions during the policy negotiations was whether resident advisers should have to report. Guidance issued by the Office for Civil Rights in 2014 made it fairly clear, Ms. Matella said, that if RA’s report other kinds of misconduct (which they do at Oregon), they need to report sexual assaults as well.

When a student tells an RA about an assault, the RA must immediately contact a crisis advocate the student can talk to without fear that the information will be shared.

Rumblings on Other Campuses

Oregon’s new policy reflects a trend toward creating “more complex or nuanced classes of reporters and confidential sources,” said Peter F. Lake, a professor of law and director of the Center for Higher Education Law and Policy at Stetson University.

The University of Michigan, for instance, developed an online tool to identify which employees were required to report possible sexual misconduct.

Faculty and staff members at the University of California who object to the university’s mandatory-reporting policy have been circulating a letter to the president, Janet Napolitano, asking that they be allowed to remain confidential sources of support for students.

The American Association of University Professors has also objected to mandatory reporting. In an essay for the association’s May-June newsletter, Sine Anahita, an associate professor of sociology at the University of Alaska at Fairbanks, explained why she used to dread grading papers in an online class that deals with sexual and gender inequality. “Every time, at least one student confided in her written assignment that she had been raped,” she wrote. Since her campus recently designated all employees as “mandatory reporters,” she would be required to report the student to university authorities within 24 hours, even if the student asked her not to. If she refused, she could face disciplinary sanctions that could include dismissal.

Alaska’s chief Title IX officer, Mary Gower, disputed that characterization. In addition to its mandatory reporting policy, the university offers a variety of confidential reporting options and victim advocates, she told The Chronicle in an email.

“Since initiating these efforts, the number of student reports have risen dramatically, indicating that students are increasingly comfortable reaching out to university personnel, and that these efforts have not had the chilling effect Dr. Anahita suggests,” Ms. Gower wrote.

Brett A. Sokolow, a Title IX legal expert whose Ncherm Group advises colleges on a variety of risks, said that if other universities look to model their approaches after Oregon, “it will touch off greater rebellion against mandated reporting by faculty on many campuses, for better or worse.”

“One of the good things to debate,” Mr. Sokolow said, “would be whether the default should be that faculty must report unless a survivor asks them not to, or the opposite, that faculty need not report unless a survivor requests.”

Oregon’s policy, he said, embraces what many campuses do in practice.

“I think the classification of faculty demonstrates a more legally precise understanding of notice than making all faculty mandatory reporters,” Mr. Sokolow wrote in an email to The Chronicle.

Rights and Responsibilities

The rollout of the new policy is being timed to coincide with the university’s introduction of Callisto, an online reporting system that allows students to keep a time-stamped record of their assault and report the perpetrator only if others have identified the same person.

The committee tried unsuccessfully to get the Office for Civil Rights to review the policy before it was approved, but Ms. Matella said she is confident that the new policy will satisfy federal requirements for handling sexual-misconduct complaints.

Laura L. Dunn, executive director of SurvJustice, a victims’-rights group, said Oregon’s new policy does a good job of balancing students’ privacy rights with colleges’ legal responsibilities. “It also gives faculty, who often resent being forced to report, the option to be supportive of survivors in a way that will hopefully empower them,” she said.

Mandatory reporting is “basically a checkbox that says we’re doing what we need to do to address the problem while at the same time shoving it under the carpet,” said Jennifer J. Freyd, a professor of psychology who served on the working group that developed the new policy.

“We’re trying to do something no one’s quite accomplished,” she added. “We’re going up against a lot of misunderstanding about how trauma and disclosure works.”

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.