Late last month, Professor Stephen Bainbridge of the University of California, Los Angeles (UCLA) School of Law penned a perceptive criticism of his institution’s new mandatory sexual harassment reporting policy. Bainbridge’s concern was sparked by an email from UCLA Chancellor Gene Block (the relevant portion of which Bainbridge captured in a screenshot) informing all faculty that “an important new provision” of UCLA’s new sexual harassment policy requires faculty members to report “information about possible sexual harassment” to the institution’s Title IX coordinator “as soon as possible.”
As Bainbridge points out, Block’s missive raises several issues—including core questions about the autonomy of both the alleged victim and the mandatory reporter. Not only has our legal system “generally refused to impose mandatory Good Samaritan rules,” Bainbridge emphasizes that “the policy apparently requires one to report even if that is not what the victim wishes (apparently even without consulting with the victim).”
And given the controversy surrounding the civil liberties impact of the recent push towards aggressive Title IX enforcement, Bainbridge is also frustrated at being “drafted into the Title IX cops”:
Suppose I think that UCLA’s definition of sexual harassment is too broad (as many are) or I think UCLA’s policy for handling complaints in this area lacks due process (as many do). Requiring me to become an informer despite those concerns strikes me as a serious abuse of academic and personal freedom.
Making this obligation all the more problematic on a practical level is the fact that faculty are asked to determine on their own, under pain of possible punishment, what does and does not qualify as “possible” sexual harassment for purposes of mandatory reporting. Bainbridge makes this deficiency clear:
Finally, I am deeply troubled by the requirement to report “possible” sexual harassment. I have been unable to find a definition of “possible” in the new policy. I assume possible means something less than “more likely than not,” but how much less? How do I know when I am supposed to report?
Leaving faculty and students to guess about what exactly must be reported to college administrators is a surefire recipe for chilling speech. As former FIRE intern Rachael Russell wrote here on The Torch last summer, mandatory reporting chilled classroom discussion at her institution, the University of Delaware:
While the foundation of Title IX and its goal of eliminating sex-based discrimination in education is desirable, I have seen the negative effects of the pressures to keep up with Title IX’s standards firsthand in the classroom setting. In a course I took this semester, our class discussed a variety of subjects including abortion, sex-based discrimination, rape, and sexual assault on college campuses. Our professor confided that in the past many students felt comfortable discussing their sexual assault experiences with her and the class, as these topics were commonly examined in class. Victims of sexual assault were able to confide in my professor about extremely delicate and emotional information—at least they were able to before UD found itself under investigation by OCR. Since OCR’s enforcement and the references placed on my syllabus, my professor reports that not one student has come to her to discuss past experiences of sexual assault.
Bainbridge isn’t the only campus community member with these common-sense concerns. The American Association of University Professors expressed similar worries in a 2012 statement on campus sexual assault. And as Inside Higher Ed’s Colleen Flaherty reported last May, faculty nationwide feel deeply conflicted about mandatory reporting provisions:
[W]hile faculty members overwhelmingly support their institutions’ transparency and accountability goals, many feel that mandatory reporting will hurt the cause more than help it. They worry that fewer students will come forward if doing so means a report — likely including personally identifiable information — will be filed with the institution, with or without victims’ permission. And for those students who do come forward, faculty members worry about awkwardly having to explain their reporting obligation. So professors in many cases resent the choice with which they are faced: complying with students’ wishes about privacy or with their institutions’ reporting requirements.
Bainbridge’s criticisms are important and warrant response from UCLA’s administration.
It’s worth noting that FIRE has supported a different type of mandatory reporting of campus sexual assault allegations—specifically, a requirement that campus administrators who have received a formal complaint of sexual assault report that complaint to law enforcement. This requirement, designed in part to prevent self-interested university administrators from hiding potentially damaging allegations from public scrutiny, is distinguishable from the faculty reporting requirement Bainbridge and others have criticized on several grounds. Because it does not bind faculty, it does not interfere with faculty autonomy, threaten the trust between students and faculty, or require faculty to determine the boundaries of “possible sexual harassment.” And by requiring administrators to involve law enforcement in responding to a formal allegation of one of society’s most horrible crimes, the safety of both campus and the general public is enhanced; the criminal justice system alone possesses the tools, training, impartiality, and punitive power to fairly determine guilt and mete out appropriate punishment.
This type of mandatory reporting structure need not threaten the autonomy of the alleged victim, either. As my colleague Joe Cohn has explained, FIRE would support a mandatory reporting system for administrators that allowed the alleged victim to determine whether administrators reported the allegation to law enforcement. If the victim declined to notify law enforcement, he or she would still be able to receive non-punitive accommodations like access to counseling, altered class and housing arrangements, and other institutional support, but the campus disciplinary process would not move forward. This system would make it harder for campus administrators to discourage alleged victims from involving the police and would protect both the alleged victim and the accused student from the well-documented deficiencies of the campus kangaroo courts, while still allowing colleges to perform functions within their institutional competence.