Title IX Privacy Ban Thwarts Campus Sexual Assault Policies


College sexual assault gains a higher national profile, and colleges and universities are bringing their sexual assault and harassment policies in line with guidelines issued by U.S. Department of Education Title IX. For campus sexual assault (the topic of my forthcoming book, Unsafe On Any Campus? College Sexual Assault and What We Can Do About It, due out in July 2016), Title IX may actually lengthen and deepen the trauma experienced by victims and further hamper efforts to gather reliable data. The irony is as epic as it is tragic.

The most problematic part of DOE’s Title IX policy as a faculty member (at Florida State University) and someone actively invested in trying to reduce sexual on campuses is confidentiality. Title IX sexual assault policies require all Responsible Employees to report any incident they believe is sexual assault or harassment. Responsible Employees are, in effect, all faculty and staff except those directly tied to a college’s designated counseling center, health clinic, or victim advocate program (including the Title IX office). This triggers the opening of a case file and an investigation by the Title IX officer to determine whether the university or college should take action. Responsible Parties are required to identify the victim, the circumstances of the incident, and the assailants to the office and provide contact information.

On its face, this doesn’t sound like a bad idea: One of the biggest issues universities and colleges face is getting a handle on the number, frequency and character of assaults or harassment incidents so they can design remedies (also mandated by Title IX). The accuracy of the data is suspect, and it’s perceived unreliability has helped polarize positions on the policy importance of sexual assault. In theory, by requiring reporting from faculty and staff, the university will be able to gather more and better data.

Here’s the hitch: Most college students don’t report their assaults to their university, in part because they don’t trust the institution. In a survey of college students on 27 campuses, the Association of American Universities found that three quarters of students that reported being raped, and 87% of the students raped through incapacitation, did not report the incident to a university program (see Table 6-1, p. 110 of the report). One third said they were embarrassed, ashamed, or that it would be too emotionally difficult. Students responding to the survey were also afraid of the potential social consequences of reporting their assault: about one quarter said that they didn’t want to get the person who committed the rape in trouble–a complex and layered issue I discuss in my book–or feared negative social consequences. Twenty percent of those saying they were raped feared their information would not be kept confidential. Most students report their attacks and rapes, but to friends and family, not impersonal institutions and bureaucracies.

The importance of trust is hard to underestimate in the case of sexual assault. Sexual assault and rape is often deeply traumatic. Victims are often confused, emotionally vulnerable and searching for answers to questions that are not even fully formulated. Their first step is seeking friends and, at times faculty and staff members, for advice. Yet, Title IX turns confidential personal relationships with faculty and staff into an inhuman, impersonal institutional one by taking the most important element of the relationship out of play: trust.

Indeed, Title IX explicitly denies students have a right to privacy or confidentiality with faculty and staff. DOE’s Office of Civil Rights says that it “strongly supports a student’s interest in confidentiality involving sexual violence.” But, there “are situations in which a school must override a student’s request for confidentiality in order to meet its Title IX obligations.” Students have an “interest” in confidentiality but not a right to it, nor do faculty or staff members at universities or colleges have a right to give it. Given that almost all college students are legal adults, this is an extraordinary negation of personal civil liberties.

Florida State uses this language to bring itself into compliance, but I decided to check a few other colleges and universities to see how they have implemented the confidentiality requirements of the law. I first went to my undergraduate alma mater, Colby College, a leading small liberal arts college in Maine. On the one hand, the college recognizes the importance of ensuring students have control over their particular circumstances. The college, for example, emphasizes that faculty should not make decisions for students. It’s important to let them make the decisions. “Again,” Colby’s website says, “you [a faculty member or Responsible Employee] can encourage a student to file a formal report, but you shouldn’t force them to do so. Reporting takes a lot of courage, and students should be encouraged to do so of their own volition and in their own time.” But as Responsible Employees, faculty “are required to inform a Title IX Coordinator (within 24 hours) of any instance of sexual or gender-based harassment/violence of which they gain knowledge.” So, pretend the student has control, but the faculty or staff member is required to trigger a process of inquiry anyway even if the student asks for confidentiality.

I then went to another one of my former employers, the University of Dayton. UD is ranked as one of the nation’s top Catholic universities. Their policies are even more explicit and uncompromising, advising that faculty and staff should not promise confidentiality. “Faculty and staff members do not have a special privilege or ability to maintain the confidentiality of reports shared with them.” Trust and confidentiality are special privileges granted by the university to faculty and staff. If someone “begins to discuss an incident of harassment or discrimination,” the university recommends saying the following:

I appreciate your willingness to share this information with me. Please know that I am here to help in any way that I can. If you would like to file a formal complaint with the University, I will help you connect with [the appropriate Designated Reporting Office], so that it can begin investigating this matter. It is important that you understand that I cannot promise to keep what you share confidential. If you are still comfortable speaking with me, I am here to listen. If not, please let me help you connect with one of the University’s confidential resources [Health Center (93131)/Counseling Center (93141)/Campus Ministry (93339)]. Above all, please know that the University takes this matter seriously and wants to help.

This policy is almost bizarre coming from a Catholic university, particularly one established in the Marianist tradition. Their model for Christian faith and spirituality is Mary, the mother of Jesus. In principle, Marianists carry out their spiritual path by working with the poor and marginalized, focusing their work on nourishing the mind, body and soul. Title IX takes their own faculty off mission on one of the most important issues facing students on campus today.

A policy of forcing faculty and staff to breach confidentiality flies in the face of what we know about sexual assault and the interests of victims. Requiring reporting undermines the very element of trust that most often leads the victim to seek out a faculty or staff member in the first place. It undermines the support we give to students to give them the confidence they need to report the incident and begin and investigation. It also explicitly undermines the student’s own agency, the power and authority to make the decision for themselves as an adult. Thus, current policy is likely to exacerbate under reporting of campus assault, and lengthen and deepen the period of recovery for these students.

Samuel R. Staley, Ph.D., is director of the DeVoe L. Moore Center, a market-oriented think tank in the College of Social Sciences and Public Policy at Florida State University in Tallahassee and a Research Fellow at the Independent Institute.
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