The following resolution was approved by the Academic Senate at the University of Texas, Dallas.  The AAUP this month published for comment an extensive draft report prepared by a joint subcommittee of Committee A on Academic Freedom and Tenure and the Committee on Women in the Profession on “The History, Uses, and Abuses of Title IX.”  (See also Risa Lieberwitz’s post on this blog.)  Comments on that report should be communicated by April 15 to titleIX@aaup.org

UT Dallas Sense of the Senate Resolution on Implementation of Title IX.

The sense of the Senate of the University of Texas at Dallas is that the policy titled Prohibited Discrimination and Sexual Harassment/Sexual Misconduct Policy is being interpreted and applied by the Office of Compliance in a way that is inconsistent with the plain meaning of its language and with Title IX of the Civil Rights Act that it is intended to implement. It is also contrary to the spirit of cooperation, mutual concern and regard for one another that we consider to be foundation of safety and security of all forms for all members of the U T Dallas campus community. To cultivate a campus of open communication free of discrimination or intimidation, we believe it is imperative that survivors of sexual assault and misconduct have voice and agency in their own process.

The Senate rejects the demand by Mr. Dockery, made in his training sessions and reaffirmed in his discussion with the Academic Senate on January 16, 2016, that a faculty member must report to his office all mentions of actual or possible sexual misconduct or assault, including indirect allusions such as might be found in class writing exercises, in confidential emails between students and faculty, and via online discussion boards, whether or not the student who is the source of the information wishes such a report to be made or whether the student in fact considers that sexual misconduct or a sexual assault has occurred. The Senate also rejects the violation of privacy implicit in the present formal reporting process and incident reporting forms provided by the University of Texas at Dallas Title IX office, which require an identified report with victim names and contact information for all responsible university officials (RUO’s) without the victim’s consent or permission.

The policy approved by the Senate requires faculty to report “incidents” and “complaints.” An enquiry about a possible assault, a request between students and university faculty for clarification or explanation of Title IX policies or options, or a vague allusion to a possibility is neither an incident nor a complaint.

The Senate takes related exception to Mr. Dockery’s position that it is not up to faculty to interpret the law. It is his contention that faculty are to accept Mr. Dockery’s interpretation. In American law, each individual is responsible for their own compliance or non-compliance and each individual has not only the right, but the duty, to make their own interpretation..

The Senate of the University of Texas at Dallas considers that all members of the faculty, and all members of the campus community, are obligated to assure each others’ security and safety. It follows that if a faculty member is approached by anyone seeking to discuss a matter that may threaten such safety and security, or that may indicate a failure to provide such safety and security, the faculty member should feel free to engage in the discussion in order to arrive at an understanding of what may have happened and provide whatever advice and assistance they consider appropriate on behalf the student directly concerned as well as the community as a whole. It is the duty of a faculty member to be informed on the process of Title IX complaints and to be able to direct students or other members of the university community to appropriate resources. If a student wishes to lodge a formal complaint, in accordance with the policy approved by the Senate, the faculty member must assist them in doing so. However, if a student does not wish to be identified in a formal complaint, a reporting option should be available to a faculty member that allows them to report the incident to the Title IX office without student identifying information. Such a policy is consistent with the spirit of Title IX as directed by the Office of Civil Rights within the U.S. Department of Education, which states, “when a responsible employee knows or reasonably should know of possible sexual violence, OCR deems a school to have notice of the sexual violence. The school must take immediate and appropriate steps to investigate or otherwise determine what occurred (subject to confidentiality provisions….” (U.S. Department of Education, p. 15). Moreover, the Office of Civil Rights “strongly supports a student’s interest in confidentiality in cases involving sexual violence” (p. 18) and says that institutional exceptions to such wishes should be very limited. Indeed, it posits that “a school should be aware that disregarding requests for confidentiality can have a chilling effect and discourage other students from reporting sexual violence” (p. 19). As the main goal of Title IX is provide an equitable, open, and transparent climate where sexual assaults and misconduct are investigated and all members of our university community are ensured equal protections, to disregard these compelling issues related to cultural, gender, sexual orientation, religion, or other personal issues related to the victim and event are contrary to the spirit of the law.

To ensure that this process is as transparent to all parties involved as possible, it is imperative that all members of the UT Dallas community are clear regarding how incidents of sexual assault, misconduct, or harassment will be handled and what situations are covered under the law. If the faculty member determines that a sexual assault or any other action that threatens the safety of others has occurred but the student does not wish to lodge a complaint, the disinclination of the student must not bar the faculty from making the report on their own per Title IX law. However, this report by the faculty member should seek to determine and respect the student’s reasons for hesitation to report, especially regarding compelling reasons related to maintaining victim anonymity and confidentiality, insofar as it does not endanger others. Such a policy is in keeping with best practices across other American university campuses who provide for anonymous reporting of incidents of sexual misconduct and violence by responsible university officials and with the U.S. Department of Education Office of Civil Rights directive on Title IX compliance.

A faculty member may believe that engaging in a conversation regarding Title IX issues are beyond their authority or competence. If a student approaches such a faculty member with a concern about relationships of a sexual nature that the faculty member feels unable to respond to, which may or may not attract Title IX, they should direct the student to someone else who can understand their concerns and respond appropriately. These options may include the Counseling Center, Student Health Center, Galerstein Women’s Center, off-campus resources, and/or the Office of Institutional Equity & Compliance.

The Senate notes the following wording in the policy and urges that it be taken in its ordinary and clear sense.

Sec. 3. “All members of the University Community…are “strongly encouraged” to report. They are not required to report. If they report they are not required to provide with full identifying information on the victim. They are compelled to maintain anonymity and confidentiality of student reports.

They are to report “any incidents of …” . Faculty are not required to report enquiries about sexual misconduct or assault, allusions to, or rumors of. The same wording occurs in Section 3.2.

Sec 3.3 refers to “a complaint of sexual misconduct.” A request to discuss the topic of sexual misconduct or violence, an enquiry, a rumor, or an indirect allusion is not a complaint.

The Senate notes that Sec 4 of the policy says: “Under federal law, however, Responsible Employees who receive a report of sexual misconduct must share that information with the Title IX Coordinator and/or a Deputy Coordinator.” This statement appears to allude to Section d-1 of Questions and Answers on Title IX and Sexual Violence, issued by the Assistant Secretary of the Office of Civil Rights. The question is: “Which school employees are obligated to report incidents of possible sexual violence to school officials?” The statement in response is: “A responsible employee must report incidents of sexual violence to the Title IX coordinator or other appropriate school designee, subject to the exemption for school counseling employees discussed in question E-3.” The obligation should attach to faculty to report “incidents,” not , “reports” and a fortiori not conversations, enquiries, allusions, or rumors. Accordingly, the Senate withdraws its approval of this section of the policy until it is reworded consistently with the law.